# Booker v. Secretary, Florida Department of Corrections (Nassau County)

> District Court, M.D. Florida · April 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10107359

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107359

## How later opinions describe it (automated extraction)

- stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

PETER BOOKER,

Petitioner,

v. Case No. 3:18-cv-839-MMH-PDB

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,

Respondents.

________________________________

ORDER
I. Status
Petitioner Peter Booker, an inmate of the Florida penal system, initiated
this action on July 5, 2018, by filing, with the assistance of counsel, a Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody
(Petition; Doc. 1), with a memorandum of law (Memorandum; Doc. 1-1). In the
Petition, Booker challenges a 2016 state court (Nassau County, Florida)
judgment of conviction for robbery with a firearm. Booker raises one ground
for relief. See Petition at 5.1 Respondents have submitted a memorandum in
opposition to the Petition. See Florida Department of Corrections’ Answer to

Petition for Writ of Habeas Corpus (Response; Doc. 10) with exhibits (Resp.
Ex.). Booker filed a brief in reply. See Reply in Response to Florida Department
of Corrections Answer to the Petition for Habeas Corpus Relief (Reply; Doc.
16). This case is ripe for review.

II. Relevant Procedural History
On August 6, 2013, the State of Florida (State) charged Booker by way
of Information with robbery with a firearm. Resp. Ex. 3A at 19. Booker,
through counsel, filed a motion to suppress Alcir De Souza’s out of court

identification of him in a photo lineup because De Souza viewed it and
identified Booker while consulting with two men who were with De Souza at
the time Booker robbed him. Id. at 25-32. The prosecution stipulated that the
identification occurred “in an overly suggestive manner.” Resp. Ex. 6A at 32;

Resp. Ex. 8 at 84-85. Booker proceeded to trial, at which the State asked De
Souza to make an in-court identification of Booker as the suspect. Resp. Ex. 6A
at 77-78. Defense counsel objected. Id. The trial court overruled the objection,
at which point Booker became upset and began ranting in front of the jury

about the unfairness of the proceedings and also accused De Souza of lying. Id.

1 For purposes of reference, the Court will cite the page number assigned by the
Court’s electronic docketing system.
Thereafter, the trial court ordered Booker removed from the courtroom and
proceeded to continue with the trial until the trial court had a discussion with

the parties outside the presence of the jury. Id. at 110-12. Following that
discussion, the trial court declared a mistrial, credited it to the defense due to
Booker’s outburst, and found Booker to be in criminal contempt. Id. at 112-14.
Prior to his second trial, Booker filed two motions to suppress De Souza’s

out of court and in court identification of Booker, one focusing on a previous
discussion with the prosecutor concerning her intentions not to use De Souza
as an identifying witness and another duplicating Booker’s original argument
regarding the out of court identification. Resp. Ex. 3A at 58-60, 65-72. The trial

court held a hearing on the motions, after which it denied relief. Resp. Ex. 8.
Following the second trial, a jury found Booker guilty of robbery, and further
found that Booker carried and possessed a firearm during the commission of
the offense.2 Resp. Ex. 3A at 104-05. Booker moved to dismiss the charges

because of prosecutorial misconduct based upon the State’s handling of De
Souza’s out of court identification. Resp. Ex. 3B at 10-14. The trial court denied
the motion to dismiss as legally insufficient without further explanation. Id. at
15. Booker later filed a supplemental motion to dismiss based on new evidence

obtained from a Florida Bar inquiry regarding the prosecutor assigned to his

2 The verdict form Respondents provided lacks a date and signature and also contains
strange marking on it. However, Booker does not deny that a jury convicted him.
case. Id. at 42-54 During that inquiry, the prosecutor stated in a written
response to the Florida Bar that she and De Souza “developed a signal whereby

at trial he would notify me whether or not he was able to identify the suspect.”
3 Id. at 43. The trial court denied the motion. Id. at 57. On May 19, 2016, the
trial court sentenced Booker to a term of incarceration of twenty-five years,
with a ten-year minimum mandatory. Id. at 63-72.

Booker appealed to Florida’s First District Court of Appeal (First DCA).
Id. at 85-92. In his amended initial brief, Booker, with the assistance of
counsel, argued that the trial court erred is denying his motions for mistrial
and the trial judge should have disqualified himself prior to ruling on his

posttrial motions. Resp. Ex. 9. The State filed an answer brief. Resp. Ex. 11.
On July 6, 2017, the First DCA per curiam affirmed Booker’s conviction and
sentence without a written opinion. Resp. Ex. 13. The First DCA issued the
Mandate on July 24, 2017. Resp. Ex. 14.

III. One-Year Limitations Period
This proceeding was timely filed within the one-year limitations period.
See 28 U.S.C. § 2244(d).

3 Respondents provided a copy of the prosecutor’s response to the Florida Bar inquiry
that includes this quote. Resp. Ex. 6A at 207
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.
Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a
hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017). “It
follows that if the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary
hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully
developed in the record before the Court. Because the Court can “adequately
assess [Booker’s] claim[s] without further factual development,” Turner v.

Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not
be conducted.
V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal petition for habeas corpus. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure
that federal habeas relief functions as a guard against extreme malfunctions

in the state criminal justice systems, and not as a means of error correction.’”
Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks
omitted)). As such, federal habeas review of final state court decisions is
“‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,
Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,
562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is
unaccompanied by an explanation, the United States Supreme Court has

instructed:
[T]he federal court should “look through” the
unexplained decision to the last related state-court
decision that 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). The presumption may be
rebutted by showing that the higher state court’s adjudication most likely
relied on different grounds than the lower state court’s reasoned decision, such
as persuasive alternative grounds that were briefed or argued to the higher
court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars
relitigation of the claim unless the state court’s decision (1) “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.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.
The Eleventh Circuit describes the limited scope of federal review pursuant to
§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for
claims of state courts’ erroneous legal conclusions. As
explained by the Supreme Court in Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),
§ 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable application”
clause. The “contrary to” clause allows for relief only
“if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523
(plurality opinion). The “unreasonable application”
clause allows for relief only “if the state court identifies
the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for
claims of state courts’ erroneous factual
determinations. Section 2254(d)(2) allows federal
courts to grant relief only if the state court’s denial of
the petitioner’s claim “was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the
state court’s factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.
Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192
L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual
determination is not unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.’”[4] Titlow, 571 U.S. at
---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.
290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S.
Ct. 2298 (2017). Also, deferential review under § 2254(d) generally is limited
to the record that was before the state court that adjudicated the claim on the
merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating the language
in § 2254(d)(1) “requires an examination of the state-court decision at the time
it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

4 The Eleventh Circuit has described the interaction between § 2254(d)(2) and §
2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th Cir.
2016), cert. denied, 137 S. Ct. 1103 (2017).
134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a
state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility
fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.
Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly
present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,
351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state
prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28
U.S.C. § 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and correct” alleged
violations of its prisoners’ federal rights.’” Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d
865 (1995) (per curiam) (quoting Picard v. Connor, 404
U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To
provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default which raises a potential bar to federal habeas
review. The United States Supreme Court has explained the doctrine of
procedural default as follows:
Federal habeas courts reviewing the constitutionality
of a state prisoner’s conviction and sentence are guided
by rules designed to ensure that state-court judgments
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine
of procedural default, under which a federal court will
not review the merits of claims, including
constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman,[5] supra, at 747–

5 Coleman v. Thompson, 501 U.S. 722 (1991).
748, 111 S. Ct. 2546; Sykes,[6] supra, at 84–85, 97 S.
Ct. 2497. A state court’s invocation of a procedural
rule to deny a prisoner’s claims precludes federal
review of the claims if, among other requisites, the
state procedural rule is a nonfederal ground adequate
to support the judgment and the rule is firmly
established and consistently followed. See, e.g.,
Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–
1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558
U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417
(2009). The doctrine barring procedurally defaulted
claims from being heard is not without exceptions. A
prisoner may obtain federal review of a defaulted
claim by showing cause for the default and prejudice
from a violation of federal law. See Coleman, 501 U.S.,
at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may
be excused under certain circumstances. Notwithstanding that a claim has
been procedurally defaulted, a federal court may still consider the claim if a
state habeas petitioner can show either (1) cause for and actual prejudice from
the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,
the procedural default “must result from some
objective factor external to the defense that prevented
[him] from raising the claim and which cannot be
fairly attributable to his own conduct.” McCoy v.
Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)
(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]
Under the prejudice prong, [a petitioner] must show
that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied

6 Wainwright v. Sykes, 433 U.S. 72 (1977).
7 Murray v. Carrier, 477 U.S. 478 (1986).
fundamental fairness.” Id. at 1261 (quoting Carrier,
477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would
result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice,
there remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal
habeas court may grant the writ even in the absence
of a showing of cause for the procedural default.”
Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This
exception is exceedingly narrow in scope,” however,
and requires proof of actual innocence, not just legal
innocence. Johnson v. Alabama, 256 F.3d 1156, 1171
(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that
it is more likely than not that no reasonable juror would have convicted him’
of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be
credible,’ a claim of actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,
allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.
VI. Findings of Fact and Conclusions of Law
In the Petition, Booker contends that his second trial following a mistrial
in his first trial “should have been barred by the double jeopardy clause.”

Petition at 5. Booker contends that during his first trial, the defense and
prosecution agreed that the victim’s out of court identification of Booker in a
photo lineup was unconstitutional and inadmissible. Memorandum at 2-3.
According to Booker, the prosecutor wrote an email to Booker’s counsel stating

there was no need for a suppression hearing as she was not going to attempt
to introduce the photo lineup. Id. at 3. Additionally, the prosecutor stated she
did not think the victim would be able to identify Booker in court, so she “would
be proceeding solely on the identification” by two other witnesses. Id. However,

during the trial, the prosecutor and victim “created a way for the witness,
WHILE TESTIFYING, to indicate to the prosecutor, through a signal only
known to both the prosecutor and the witness, whether he could identify the
Defendant in court.” Id. at 3-4 (emphasis in original). During the first trial, the

victim signaled to the prosecutor he could identify Booker as the suspect and
the prosecutor thereafter asked a question eliciting an in-court identification
of Booker. Id. The prosecutor later admitted to doing so during a Florida Bar
inquiry. Id. at 4.

Once this occurred during trial, defense counsel objected and moved for
a mistrial but was overruled, and then Booker reacted negatively in open court,
causing the trial court to send Booker out of the courtroom. Id. at 4-6.
Thereafter, the trial partially continued without Booker being present. Id. at

6. At some point, the trial court conducted a discussion with the parties that
ultimately resulted in a mistrial credited to Booker’s outburst in court. Id. at
7.
According to Booker, prior to the second trial, the State “retreated from

its admitted and agreed to position that the identification procedures at the
pre-trial photo lineup was [sic] impermissible and stated it would seek to
introduce the results of same during the second trial in this case in chief.” Id.
The State also said it would introduce the victim’s in-court identification of

Booker. Id. During the second trial, the State introduced both. Id. Booker
maintains that “[o]nce jeopardy attached [following the first trial] and this trial
began the Respondent [sic] was entitled to rely upon such an AGREEMENT
with the State and the inherent limitation of their evidence was essential to

the Petitioner’s potential success at trial.” Id. at 8 (emphasis in original).
Booker argues that the trial court’s determination that the mistrial was
attributable to Booker “carries no weight nor presumptive correctness before
this Honorable Court.” Id. According to Booker, “[t]he State caused this
situation through deception, illegal proceedings and will now seek to blame the

Petitioner for his regrettable, but understandable, reaction to the same.” Id. at
9. Booker contends that the prosecutor’s bad faith conduct was the cause of the
mistrial and, therefore, the Double Jeopardy Clause barred the State from
retrying him. Id. at 10. Booker further contends that the State benefited from

this mistrial as it allowed it to present evidence of the photo lineup in the
second trial. Id. at 11-12. To that end, Booker maintains that the prosecutor
purposely goaded Booker into seeking a mistrial. Id. at 12. Additionally, he
asserts that the trial court “overreacted” when it ordered Booker removed from

the trial and did not immediately order a mistrial at that time but instead let
the trial proceed a bit more before ordering such. Id. at 10-11. Therefore,
Booker avers that there was no manifest necessity for a mistrial ruling at the
time the trial court actually declared a mistrial. Id. at 11.

Respondents contend that this claim is unexhausted. Response at 18-19.
In the Petition, Booker admits he did not raise this claim on direct appeal
because he “was represented by a different counsel who submitted an appeal
on other grounds.” Petition at 6. Likewise, he did not raise it in a postconviction

motion. Id. In his Reply, Booker argues that this concession in the Petition did
not amount to him admitting he failed to exhaust this claim. Reply at 2.
According to Booker, Respondents do “not suggest what remedies should have
been utilized prior to the filing of the Writ at bar that were not exhausted by
the Petitioner.” Id. at 4. Additionally, Booker claims that he had no other

alternatives but to file his federal habeas petition in this Court. Id.
The record reflects that Booker did not raise a double jeopardy claim on
direct appeal, Resp. Ex. 9, and he has not otherwise raised this issue before the
state court via postconviction motion.8 As the State court was not given an

opportunity to rule on this issue, it is unexhausted. Booker has failed to allege
cause and prejudice to overcome this issue and has not asserted he is actually
factually innocent. Accordingly, the Petition is due to be denied as
unexhausted.

Regardless of Booker’s failure to exhaust this claim, Booker is not
entitled to relief. Pursuant to the Fifth Amendment of the United States
Constitution, “No person shall be subject for the same offence to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V. Also known as the Double

Jeopardy Clause, this provision of the Constitution “protects a criminal
defendant from repeated prosecutions for the same offense.” Oregon v.
Kennedy, 456 U.S. 667, 671 (1982). However, where a defendant moves for a
mistrial, the Double Jeopardy Clause does not bar retrial unless “the conduct

8 Double Jeopardy claims are cognizable in a motion for postconviction relief pursuant
to Florida Rule of Criminal Procedure 3.850. See Kerrin v. State, 8 So. 3d 395, 396 (Fla. 1st
DCA 2009). However, any such motion would be untimely at this point. See Fla. R. Crim. P.
3.850(b).
giving rise to the successful motion for a mistrial was intended to provoke the
defendant into moving for a mistrial.” Id. at 679.

Here, while perhaps crossing the line of professionalism, nothing in the
record suggests the prosecutor intended to provoke Booker into the outburst
that resulted in the mistrial. Indeed, presenting in-court identification
testimony that the prosecutor previously represented to defense counsel that

she would not introduce demonstrates the prosecutor’s intention to get a
conviction more so than a mistrial. See Hawkins v. Alabama, 318 F.3d 1302,
1308 (11th Cir. 2003) (“The prosecutor's conduct was concealed; the conduct
was intended to obtain a conviction, not to push the defendant into moving for

a mistrial before verdict.”). While Booker speculates about the prosecutor’s
intent, he does not provide actual evidence establishing the same. Accordingly,
as the mistrial was attributable to Booker’s outburst and he has not proven the
existence of the prosecutor’s intent to provoke a mistrial, his federal habeas

claim fails. See Kennedy, 456 U.S. at 679. For the above stated reasons, the
Petition is due to be denied.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)

If Booker seeks issuance of a certificate of appealability, the undersigned
opines that a certificate of appealability is not warranted. The Court should
issue a certificate of appealability only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
this substantial showing, Booker “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)).
Where a district court has rejected a petitioner’s constitutional claims on
the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.
See Slack, 529 U.S. at 484. However, when the district court has rejected a
claim on procedural grounds, the petitioner must show that “jurists of reason
would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of
appealability.

Therefore, it is now
ORDERED AND ADJUDGED:
1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED
WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
3. If Booker appeals the denial of the Petition, the Court denies a
certificate of appealability. Because the 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.
4. The Clerk of the Court is directed to close this case and terminate

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 20th day of April,
2021.

United States District Judge

Jax-8
C: Peter Booker #J25445
Counsel of record

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107359. Public record. Not legal advice.