Dumas v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DEMOND DUMAS,

Petitioner,

vs. Case No. 3:18-cv-1517-J-39PDB

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

I. INTRODUCTION

Petitioner Demond Dumas is challenging his state court (Duval

County) conviction for armed burglary with assault through an

Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus

By a Person in State Custody (Petition) (Doc. 4). Respondents

filed an Answer to Petition for Writ of Habeas Corpus (Response)

(Doc. 11). Thereafter, Petitioner filed a Reply (Doc. 13).1

1 Respondents filed an Appendix (Doc. 11). The Court will refer

to the Exhibits in the Appendix as “Ex.” Where provided, the page

numbers referenced in this opinion are the Bates stamp numbers at

the bottom of each page of the exhibit. Otherwise, the page number

on the document will be referenced. For the Petition, Response

and Reply, the Court references the page numbers assigned by the

electronic filing system.

II. EVIDENTIARY HEARING

“In a habeas corpus proceeding, the burden is on the

petitioner to establish the need for an evidentiary hearing.”

Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318 (11th

Cir. 2016) (citations omitted), cert. denied, 137 S. Ct. 2245

(2017). To be entitled to an evidentiary hearing, the petitioner

must allege “facts that, if true, would entitle him to relief.”

Martin v. United States, 949 F.3d 662, 670 (11th Cir. 2020)

(quoting Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002))

(citation omitted), cert. denied, 2020 WL 5883300 (U.S. Oct. 5.

2020). See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057,

1060 (11th Cir. 2011) (opining a petitioner bears the burden of

establishing the need for an evidentiary hearing with more than

speculative and inconcrete claims of need), cert. denied, 565 U.S.

1120 (2012); Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir.

1982) (same).

If the allegations are contradicted by the record, patently

frivolous, or based upon unsupported generalizations, the court is

not required to conduct an evidentiary hearing. Martin, 949 F.3d

at 670 (quotation and citation omitted). In this case, the

pertinent facts are fully developed in this record or the record

otherwise precludes habeas relief; therefore, the Court can

"adequately assess [Petitioner's] claim without further factual

2

development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), cert. denied, 541 U.S. 1034 (2004).

Petitioner has not met his burden as the record refutes the

asserted factual allegations or otherwise precludes habeas relief.

Therefore, the Court finds Petitioner is not entitled to an

evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474

(2007).

III. PETITION

Petitioner claims he was deprived of the effective assistance

of trial counsel resulting in a Sixth Amendment violation and a

due process violation under the Fourteenth Amendment. Petition

at 3. In support, Petitioner provides the following supporting

facts:

The Petitioner asserts that the

Petitioner was denied effective assistance of

counsel, where the petitioner[’s] counsel who

was representing the petitioner at the

petitioner[’s] hearing on the petitioner[’s]

motion for new trial failed significantly,

where the petitioner[’s] counsel brought in no

evidence to support or substantiate the

grounds in which the petitioner[’s] counsel

himself filed and knew to be true and were

supported by the petitioner[’s] trial

transcript records, where review of the

petitioner[’s] trial transcript records were

necessary at such hearing in order to

substantiate the grounds filed in the

petitioner[’s] Motion for New Trial, and where

the petitioner[’s] trial transcript records

were available and the petitioner did request

the petitioner[’s] counsel to also obtain such

records.

3

Id.

In sum, Petitioner contends he did not receive a fair and

impartial proceeding because his counsel failed to present the

trial transcripts to support grounds raised in the motion for new

trial. Id. More specifically, Petitioner references three of

the seven allegations in the amended motion for new trial (grounds

one, four, and six of the amended motion for new trial) that he

submits would have been supported by substantial proof through the

trial transcript. Id. at 4-11.

Briefly, the record demonstrates the following. Petitioner

decided to proceed pro se at trial. Ex. A at 127. The court

warned Petitioner that a lawyer may ensure that any errors

committed during the trial are properly preserved for appellate

review. Id. at 114. The court offered to have the Assistant

Public Defender act as stand-by counsel. Id. at 127. Petitioner

accepted the offer. Id. The court reminded Petitioner he would

still have the entire responsibility for his defense. Id.

Petitioner acknowledged the court’s warning. Id.

At trial, on December 1, 2011, the court again warned

Petitioner that a lawyer may prevent improper argument and aid in

the preservation of errors for appeal. Ex. B at 200-201. The

court told Petitioner, “[i]t is almost always unwise to represent

yourself in court[.]” Id. at 201. Petitioner insisted on

4

proceeding pro se at trial despite repeated warnings this was a

risky proposition.

Petitioner’s stand-by counsel for trial, Assistant Public

Defender James S. Forrest, was appointed for the purpose of filing

a motion for new trial. On January 17, 2012, Mr. Forrest filed a

Motion for New Trial. Ex. A at 88-89. On January 30, 2012, he

advised the court that Petitioner had provided three pages of case

law that he asked counsel to consider in support of the motion.

Ex. C at 24. Further, Mr. Forrest told the court that Petitioner

wanted counsel to order the transcript of the closing arguments of

the prosecutor. Id. Mr. Forrest asked for additional time to

obtain the transcript. Id. The court inquired as to whether

counsel would need the “JAC’s permission to do that?” Id. The

prosecutor said Mr. Forrest would not only need permission but

there had been no contemporaneous objections made during closing

argument; therefore, the appellate court would only review

Petitioner’s current complaints based on fundamental error. Id.

at 24-25. The prosecutor argued it was fiscally irresponsible to

order the transcript of the closing argument as there had been no

objections by Petitioner. Id. at 25.

Mr. Forrest said he could not comment on that. Id. He then

stated that Petitioner wanted a more complete motion filed. Id.

The court responded that Mr. Forrest could file a more complete

5

motion, and there would be a hearing on the motion, and that the

parties should get together with a court staff member to schedule

a hearing date. Id.

On March 2, 2012, Mr. Forrest filed an Amended Motion for New

Trial. Ex. A at 98-100. On March 2, 2012, a hearing was held,

and Mr. Forrest explained that he had been appointed as stand-by

counsel for trial and was appointed to represent Petitioner for

purposes of the motion for new trial. Id. at 133. Mr. Forrest

stated that Petitioner was unhappy with counsel’s representation

because Petitioner wanted to include grounds that counsel found

inapplicable to the case. Id. Counsel explained:

One of the issues that Mr. Dumas has is

that initially when we spoke[,] I talked about

ordering a transcript of the State’s closing

arguments. He indicated that he thought that

the State’s closing arguments were improper;

however, he did not make objection to those

arguments so therefore they’re not issues that

are waived. If they are fundamental error,

the D.C.A. would take care of those issues.

Your Honor, you sat through the trial and

were the presiding judge over the closing

arguments and so I believe that there’s not a

need to have a transcript as to what Mr.

Caliel’s [Mark Caliel, Assistant State

Attorney] closing arguments were, especially

since there was no objection made at the time,

so I didn’t order the transcripts because

frankly without the objection it would still

be something that the D.C.A. would take up,

not Your Honor. So I think Mr. Dumas’

arguments are one that there is no transcript

as to the closing arguments.

6

Id. at 134.

Mr. Caliel responded that he concurred, stating there was no

need to order any transcripts as the court presided over the

closing arguments, and if there had been any actions amounting to

fundamental error, the court would have intervened, especially

given the circumstances that Petitioner was representing himself

at trial. Id. at 135. Mr. Caliel stated:

The State’s position is that we do not

believe that any of our statements during the

course of the closing arguments were improper

and none were objected to which makes it even

a higher standard to achieve that it must be

fundamental error even to be reversable error

at that point.

Id.

When Petitioner complained that his counsel was supposed to

get with the court reporter to order the transcript, Mr. Forrest

responded that, after discussing the matter with his co-workers at

the Public Defender’s Office, he determined the issue became moot

because Petitioner failed to object at closing, and even if counsel

were to provide the transcripts to the court, it would be a matter

solely for the 1st DCA, and the 1st DCA will be provided with the

transcripts on appeal. Id. at 137-38. Mr. Forrest said he

understood Petitioner’s concern, but it could not be rectified by

providing the court with transcripts because Petitioner failed to

object at trial. Id. at 138-39. The court said:

7

Mr. Dumas, had ample opportunity to have

a counselor and lawyer at trial and he

refused. He decided to proceed pro se. I

don’t know how many times I gave him that

chance. I tried to convince him that he

needed a lawyer and he decided that he could

do it on his own. So he did that. If he’s

made any errors, that’s something that the

First District Court of Appeals could deal

with.

Id. at 139.

After hearing argument, the court denied the amended motion

for new trial. Id. at 156. The court entered a written order

denying the amended motion for new trial on March 2, 2012. Id.

at 97.

IV. HABEAS REVIEW

Petitioner, through his pro se Petition, claims he is detained

“in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). The Antiterrorism and Effective

Death Penalty Act (AEDPA) governs a state prisoner's federal

petition for habeas corpus and “prescribes a deferential framework

for evaluating issues previously decided in state court[,]” Sealey

v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir.

2020) (citation omitted), limiting a federal court’s authority to

award habeas relief. See 28 U.S.C. § 2254; Shoop v. Hill, 139 S.

Ct. 504, 506 (2019) (per curiam) (recognizing AEDPA imposes

“important limitations on the power of federal courts to overturn

the judgments of state courts in criminal cases").

8

Recently, the Eleventh Circuit opined:

[federal courts] are prohibited from granting

a state prisoner’s habeas corpus petition

unless the relevant state court decision on

the merits of the petitioner’s claim ‘was

contrary to, or involved an unreasonable

application of, clearly established Federal

law, as determined by the Supreme Court of the

United States,’ or (2) ‘was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.’

James v. Warden, Holman Correctional Facility, 957 F.3d 1184, 1190

(11th Cir. 2020) (quoting 28 U.S.C. § 2254(d)(1)-(2)).

The Eleventh Circuit explained the analysis which must take

place pursuant to AEDPA:

A decision is “contrary to” clearly

established federal law if the state court

applied a rule that contradicts governing

Supreme Court precedent, or if it reached a

different conclusion than the Supreme Court

did in a case involving materially

indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 412-13, 120 S. Ct. 1495, 146

L.Ed.2d 389 (2000). A state court decision

involves an “unreasonable application” of

clearly established federal law if the court

identifies the correct legal principle but

applies it unreasonably to the facts before

it. Id. “The question under AEDPA is not

whether a federal court believes the state

court’s determination was incorrect but

whether that determination was unreasonable –

a substantially higher threshold.” Schriro

v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933,

167 L.Ed.2d 836 (2007).

James, 957 F.3d at 1190-91.

9

A state court's finding of fact, whether a state trial court

or appellate court, is entitled to a presumption of correctness

under 28 U.S.C. § 2254(e)(1). “The state court’s factual

determinations are presumed correct, absent clear and convincing

evidence to the contrary.” Sealey, 954 F.3d at 1354 (quoting 28

U.S.C. § 2254(e)(1)). This presumption of correctness, however,

applies only to findings of fact, not mixed determinations of law

and fact. Brannan v. GDCP Warden, 541 F. App'x 901, 903-904 (11th

Cir. 2013) (per curiam) (recognizing the distinction between a

pure question of fact from a mixed question of law and fact), cert.

denied, 573 U.S. 906 (2014). Furthermore, the second prong of §

2254(d), requires this Court to “accord the state trial court

[determination of the facts] substantial deference.” Dallas v.

Warden, 964 F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v.

Cain, 576 U.S. 305, 314 (2015)). Thus, this Court may not

supersede a trial court’s determination simply because reasonable

minds may disagree about the finding. Id. (quotation and citation

omitted).

Finally, where there has been one reasoned state court

judgment rejecting a federal claim followed by an unexplained order

upholding that judgement, federal habeas courts employ a "look

through" presumption: "the federal court should 'look through' the

unexplained decision to the last related state-court decision that

10

does provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning." Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner’s claim of ineffective assistance of counsel is

“governed by the familiar two-part Strickland[v. Washington, 466

U.S. 668 (1984)] standard.” Knight v. Fla. Dep’t of Corr., 958

F.3d 1035, 1038 (11th Cir. 2020). In order for a petitioner to

prevail on a claim of ineffective assistance of trial counsel, the

petitioner must satisfy the two-pronged Strickland test, requiring

that he show both deficient performance (counsel's representation

fell below an objective standard of reasonableness) and prejudice

(there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different). Id. (quotation and citation omitted). See

Brewster v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019)

(reviewing court may begin with either component).

VI. GROUND ONE

Upon review of the state court record, Petitioner exhausted

this claim of ineffective assistance of counsel by raising it in

his Rule 3.850 motion. Ex. L. The trial court, referencing the

Strickland standard, Ex. L at 66-67, denied this ground, finding

that counsel considered ordering the transcripts for submission to

11

the trial court, but after “thoughtful consideration,” decided the

transcripts were unnecessary. Id. at 67. First, and foremost,

counsel pointed out that the same judge who presided over the trial

was presiding over the motion for new trial proceeding. Id.

Furthermore, counsel noted that as Petitioner appeared pro se at

trial, he failed to preserve many of the arguments, and it would

be up to the 1st DCA on direct appeal to consider if any fundamental

error had occurred. Id. Finding counsel’s decision both

“strategic and reasonable[,]” the court rejected Petitioner’s

claim of ineffectiveness.

Of import, the court noted that during the three-month span

between the jury verdict and the hearing on the amended motion for

new trial, the court had been “kept abreast of the case” through

various intervening court dates and filings. Id. Thus, the court

concluded it had maintained its familiarity with the case through

its continued interaction in the case post-trial. Finally, noting

the trial court’s previous rulings and the affirmance of the

judgment of conviction by the First District Court of Appeal (1st

DCA),2 the court determined there was no entitlement to relief,

particularly with respect to any challenge to the factual basis

and sufficiency of the evidence. Id. at 67-68.

2 The 1st DCA affirmed the conviction on February 8, 2013. Ex. G.

The mandate issued on February 26, 2013.

12

Finding counsel provided reasonable professional service in

deciding that the transcripts were unnecessary, the trial court

denied Petitioner’s claim of ineffective assistance of counsel for

failure to demonstrate the first prong of the Strickland standard,

the performance prong. Id. at 68. After assuming arguendo

counsel was deficient in failing to acquire and provide the

transcripts to the court, the court also found Petitioner failed

to satisfy the second prong of the Strickland standard, the

prejudice prong. Id.

The court thoroughly analyzed the three sub-claims at issue:

(1) firearms and bullet proof vest testimony; (2) judgment of

acquittal – State’s failure to prove assault; and (3) verdict

contrary to the weight of the evidence. Id. at 68-72. With

respect to the first sub-claim, the court held:

Contrary to Defendant’s allegation,

counsel’s alleged failure to provide the trial

transcripts did not prejudice Defendant.

Standby counsel objected to the relevancy of

Mr. Hollinsworth’s and Detective Sikes’s

testimony regarding firearms and the bullet-

proof vest at trial. (Ex. F at 306-307). The

trial court overruled the objection, finding

the testimony relevant and admissible because

Defendant opened the door to such. (Ex. F at

304-309.) Thus, since the trial court has

already denied the claim, there is no

reasonable probability the outcome of the

proceeding would have been different and

Defendant would be granted a new trial. (Ex.

F at 308-309.) Accordingly, Defendant has

13

failed to establish that he was prejudiced by

counsel’s alleged errors.

Ex. L at 68-69.

The record shows that witness Nikisha Brown described the gun

she saw in Petitioner’s hand as a big gun. Ex. B at 218, 225,

230. On cross-examination, Petitioner asked if Ms. Brown saw

Petitioner go to the back of the victim’s home “with what you

thought to be a dangerous weapon, correct, and/or a firearm?” Id.

at 256. Ms. Brown responded in the affirmative. Id. When asked

if she were certain, Ms. Brown reiterated that it was a big gun in

Petitioner’s hand. Id. On re-direct, when asked if there was any

doubt that Petitioner had a gun in his hand, Ms. Brown responded

there was no doubt. Id. at 260.

When witness Emily Fulton testified, she said Petitioner

burst in with a weapon. Id. at 267. She described the gun as

real big and black. Id. at 270. The prosecutor asked if it

appeared to be a real gun, and she responded yes. Id. On cross-

examination, Petitioner asked if he had entered the house “with

what you {Ms. Fulton] thought to be a dangerous weapon and/or a

firearm[?]” Id. at 281. Petitioner asked the witness if she were

scared by virtue of the fact that she had “seen this alleged

firearm and/or dangerous weapon[.]” Id. at 283. Petitioner asked

if it could have been a plastic toy gun, and Ms. Fulton responded

14

“[r]ight.” Id. at 284. Petitioner then inquired: “were you

running because of me or y’all thought that I was going to try and

hurt one of y’all or just because by virtue of the fact that you

seen me with this plastic toy gun?” Id. at 285. Ms. Fulton

responded that they ran in fear of their lives because they saw

Petitioner come into the house with a gun. Id. Petitioner asked

additional questions about “this gun, plastic toy gun that you

suspected to be real[.]” Id. at 292.

Thereafter, the prosecutor, Mr. Caliel, notified the court

that the state intended to call Terry Hollinsworth and Detective

Sikes to provide testimony concerning firearms and a bullet-proof

vest. Id. at 304-305. Stand-by counsel, based on some questions

from Petitioner, told the court that he assumed Mr. Caliel is

asserting Petitioner opened the door “by talking about a toy gun.”

Id. at 306. Mr. Forrest said he thought Mr. Caliel was the first

to mention a toy gun, and then Petitioner brought it up “a bunch

of times.” Id.

Mr. Forrest asked, on behalf of Petitioner, that the witnesses

be excluded as he thought Petitioner did not open the door. Id.

at 307. Mr. Caliel responded that Petitioner did ask and also

stated that he walked into the house with a toy gun and was the

first person to interject it. Id. Mr. Caliel recollected that

he did ask if the witness was sure it was a real gun and the

15

witness confirmed that she thought it was a real gun. Id. The

court agreed with the prosecutor’s recollection of the testimony

and noted that it was Petitioner who attempted to convince the

witnesses that it was, in fact, a toy gun, and Petitioner brought

the “toy gun” matter up first. Id. at 308-309. The record shows

Petitioner was the first to ask if the weapon could have been a

plastic toy gun. Id. at 284. After hearing argument, the court

denied the motion to exclude the testimony. Id. at 309.

As to the failure to provide transcripts so that the trial

court’s recollection of the trial could be refreshed and the trial

court shown that the state failed to prove an assault and thus,

confirm that the trial court erred in denying the defense’s motion

for judgment of acquittal, the circuit court found that any failure

to provide the trial transcripts did not result in prejudice under

Strickland. Ex. L at 69-70. Indeed, the court found there was

conclusive evidence of guilt based on the evidence presented at

trial, including the testimony of two eyewitnesses who testified

as to Petitioner’s actions and the fear elicited. Id. at 70. As

such, the court concluded it properly denied the motion for

judgment of acquittal and the 1st DCA affirmed the conviction,

providing confirmation of the trial court’s decision. Id.

Finally, the circuit court found a sufficiency of the evidence

argument is more properly raised on direct appeal, and Petitioner

16

was improperly attempting to re-litigate the matter by couching it

in terms of a claim of ineffective assistance of counsel. Id.

Finding no reasonable probability that the outcome of the

proceeding would have been different, the circuit court denied the

claim of ineffective assistance of counsel. Id.

Petitioner also argued his counsel was ineffective for

failure to provide transcripts to the trial court to show “the

proven intent was nothing more than mere speculation,” and Ms.

Emily Fulton’s testimony refuted the state’s contention that

Petitioner “intentionally and unlawfully threatened to do violence

upon any person within the home.” Id. at 70. The circuit court

decided any failure to provide trial transcripts did not prejudice

Petitioner. Id. at 71. The court rested its decision on the fact

that the state had produced conclusive evidence of guilt. Id.

The court noted that the jury considered Petitioner’s testimony in

coming to its verdict. Id. Importantly, the circuit court

recognized that the court denied the claim of insufficiency of

evidence at trial and the 1st DCA affirmed on direct appeal,

leading the circuit court to conclude that Petitioner was

impermissibly recasting the same issue as a claim for ineffective

assistance of counsel. Id. at 71-72. Lastly, the circuit court

found Petitioner failed to establish there was a reasonable

17

probability the outcome of the proceeding would have been

different. Id. at 72.

Petitioner appealed the denial of his post-conviction motion.

Ex. L at 406. The 1st DCA affirmed per curiam. Ex. N. The

mandate issued on June 4, 2018. Ex. O.

The circuit court properly utilized the Strickland two-

pronged standard when addressing the claim of ineffective

assistance of trial counsel. The court found there was no

deficient performance by counsel, and even assuming there had been,

there was no prejudice as evidenced by its other rulings, record

support, and the ruling of the 1st DCA on direct appeal. The 1st

DCA affirmed the denial of the Rule 3.850 motion. As the state

court reasonably determined the facts and reasonably applied

federal law to those facts in rejecting the claim of ineffective

assistance of counsel, Petitioner is not entitled to habeas relief.

This Court finds the state court’s decision is entitled to

AEDPA deference as it is not inconsistent with Supreme Court

precedent, the adjudication of the claim is not contrary to or an

unreasonable application of Strickland or based on an unreasonable

determination of the facts. Giving AEDPA deference, this

Petitioner is not entitled to habeas relief.

Upon review of the record, counsel’s performance fell well

within the broad range of reasonable assistance under prevailing

18

professional norms. Counsel is given wide latitude in making

strategic decisions, and in this instance, counsel’s performance

did not fall outside the norm. The decision not to obtain the

trial transcripts to present to the trial court to support a motion

to dismiss was not so patently unreasonable that no competent

attorney would have made that decision, particularly in a case

where the judge reviewing the motion for new trial is the same

judge that sat through the trial and handled post-trial matters.

Indeed, the court noted it had kept abreast of the case through

post-verdict filings and court dates, signifying the court had not

forgotten Petitioner, the state’s case, or the evidence presented

to convict Petitioner. Finally, finding adequate support for the

decision not to obtain the trial transcripts, the court noted that

Petitioner failed to preserve many of the arguments as he proceeded

pro se at trial, and thus counsel decided it would really be up to

the 1st DCA to look for any fundamental error without preservation

of error at trial.

Here, the representation by counsel was not so filled with

serious errors that counsel was not functioning as counsel

guaranteed by the Sixth Amendment. Counsel attended the trial as

stand-by counsel and was very familiar with the case. Ex. B at

2, 195. Counsel performed reasonably in representing Petitioner

on the amended motion for new trial. Brewster, 913 F.3d at 1056.

19

Not only has Petitioner failed to show deficient performance, he

has failed to show resulting prejudice. As previously noted,

there is no reasonable probability that the outcome of the case

would have been different if counsel had provided transcripts to

support his amended motion for new trial. In sum, the resolution

of the Strickland analysis was proper, and Petitioner is not

entitled to habeas relief.

In conclusion, the Court finds the state court’s

determination is consistent with federal precedent. Here, AEDPA

deference is warranted. The state court’s adjudication of the

claim is not contrary to or an unreasonable application of

Strickland and its progeny or based on an unreasonable

determination of the facts. Thus, the Petition is due to be

denied.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Amended Petition for Writ of Habeas Corpus (Doc. 4)

is DENIED.

2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk shall enter judgment accordingly and close

this case.

4. If Petitioner appeals the denial of his Amended Petition

for Writ of Habeas Corpus (Doc. 4), the Court denies a certificate

20

of appealability. ° Because this Court has determined that a

certificate of appealability is not warranted, the Clerk shall

terminate from the pending motions report any motion to proceed on

appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 9th day of

October, 2020.

4 7 De

af J. DAVIS

United States District Judge

sa 10/7

Cc:

Demond Dumas

Counsel of Record

3 This Court should issue a certificate of appealability only if a

petitioner makes "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253 (2). To make this

substantial showing, Petitioner "must demonstrate that reasonable

jurists would find the district court's assessment of the

constitutional claims debatable or wrong," Tennard v. Dretke, 542

U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)), or that "the issues presented were ‘adequate to deserve

encouragement to proceed further,'" Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)). Upon due consideration, this Court will

deny a certificate of appealability.

21