Lewis v. Secretary, Department of Corrections (Glades County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

KOTY CHEYENNE LEWIS,

Petitioner,

v. Case No: 2:19-cv-449-JES-MRM

SECRETARY, DEPARTMENT OF

CORRECTIONS and ATTORNEY

GENERAL, STATE OF FLORIDA,

Respondents.

/

OPINION AND ORDER

Before the Court is Petitioner Koty Cheyenne Lewis’s Petition

Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. #1).

Lewis challenges his conviction and sentence for second degree

murder, aggravated assault, and possession of drug paraphernalia.

I. Background

The State of Florida charged Lewis with murdering Gordon

Suleiman (Count 1), assaulting Gregory James with a firearm (Count

2), and possessing drug paraphernalia (Count 3). (Doc. #12-2 at

6). Lewis pled not guilty, and Assistant Public Defender Beatriz

Taquechel represented him at trial. The charges stemmed from

Lewis’s encounter with three bail bondsmen: Gregory James, Gordon

Suleiman, and Cynthia Suleiman.

The Court will summarize the relevant trial testimony as

described in the Response (Doc. #12), which Lewis agrees is

accurate. (See Doc. #26). Lewis was arrested for violating

probation in October 2010. James bonded Lewis out of jail and

agreed to produce Lewis if he failed to appear at court on December

6, 2010. On December 15, 2010, James received notice that Lewis

missed the court date and enlisted the Suleimans to help locate

and arrest Lewis. On December 26, 2010, the trio found Lewis on

his family’s farm, and during the encounter Lewis fatally shot

Gordon Suleiman. The details were disputed at trial.

According to Gregory James and Cynthia Suleiman, upon

arriving at the property, they first encountered Lewis’s sister,

Marti Lewis. James approached and spoke with Marti, while

Cynthia—armed with a taser—knocked on the door of the adjacent

trailer. Lewis suddenly appeared from behind the trailer and

pointed a rifle at James and Gordon. James jumped behind the

truck, and Gordon—without drawing his gun—tried to diffuse the

situation by identifying himself as a bondsman and asking Lewis to

surrender. Lewis ran, and the Suleimans gave chase. Marti fled

in the truck.

After jumping a fence, Lewis turned and pointed the rifle at

Gordon, who drew his Glock 45. Lewis jumped a second fence and

again pointed his rifle at Gordon. Gordon drew his gun again and

demanded that Lewis surrender. Lewis ran to a clearing in the

woods and again aimed at Gordon. Gordon put his hands up with the

Glock dangling from his finger. Lewis fired one shot through

Gordon’s chest, killing him. Cynthia ran to Gordon, attempted

CPR, and pleaded for Lewis to help. Lewis ran, stashed the rifle,

and hid under an outhouse until discovered by Glades County

Sheriff’s deputies.

Lewis and his sister, Marti, described the encounter

differently. While parking her truck, Marti saw the three

bondsmen rushing towards her—the Suleimans with guns drawn.

Cynthia ran towards the front door of the trailer, and Marti jumped

in front of her. Cynthia pointed a gun at Marti and stated she

had a warrant. Marti moved towards Cynthia, who took off running.

Lewis appeared out of nowhere—Marti did not know he was on the

property—and Gordon ran towards Lewis with gun drawn. While

fleeing the scene, Marti saw Lewis and Gordon stop running. Lewis

yelled something, and Gordon advanced. Marti could not see

Gordon’s hands. Lewis raised his rifle, and Marti heard three

shots. She believed Gordon fired twice and Lewis fired once.

Marti then left.

Lewis testified that after skipping town to avoid arrest, he

returned on December 26, 2010, intending to feed the cows and turn

himself in. After feeding the cows, Lewis heard loud voices coming

from Marti’s house. Lewis stepped onto the back porch and saw

Gordon—who Lewis did not know—point a gun at him. Gordon did not

speak. Lewis ran to his truck, grabbed a rifle, and fled towards

the fence line. After jumping two fences, Lewis was exhausted and

stopped running. Gordon continued towards Lewis without speaking.

Lewis, fearing for his life, fired a single shot. He then hid

until he was discovered and arrested.

The jury found Lewis guilty on all counts. (Doc. #12-2 at

14-15). The trial court sentenced him to a total of 465.6 months

in prison, followed by 20 years of probation. (Id. at 29-33).

Lewis appealed, and the Second District Court of Appeals of Florida

(2nd DCA) affirmed without a written opinion. Lewis v. State, 177

So. 3d 616 (Dist. Ct. App. Fla. 2015). Lewis then filed a Petition

for Writ of Habeas Corpus, which the 2nd DCA denied. (Doc. #12-2

at 239).

Lewis also filed a motion for postconviction relief under

Florida Rule of Criminal Procedure 3.850. The postconviction

court summarily denied it. (Doc. #12-3 at 2-12). And the 2nd DCA

affirmed without a written opinion. Lewis v. State, 272 So. 3d

394 (Dist. Ct. App. Fla. 2019). Lewis’s federal habeas Petition

timely followed.

II. Applicable Habeas Law

a. AEDPA

The Antiterrorism Effective Death Penalty Act (AEDPA) governs

a state prisoner’s petition for habeas corpus relief. 28 U.S.C.

§ 2254. Relief may only be granted on a claim adjudicated on the

merits in state court if the adjudication:

(1) resulted in a decision that 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) resulted in a decision that 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). This standard is both mandatory and difficult

to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state

court’s violation of state law is not enough to show that a

petitioner is in custody in violation of the “Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2254(a); Wilson

v. Corcoran, 562 U.S. 1, 16 (2010).

“Clearly established federal law” consists of the governing

legal principles set forth in the decisions of the United States

Supreme Court when the state court issued its decision. White,

134 S. Ct. at 1702; Casey v. Musladin, 549 U.S. 70, 74 (2006)

(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Habeas

relief is appropriate only if the state court decision was

“contrary to, or an unreasonable application of,” that federal

law. 28 U.S.C. § 2254(d)(1). A decision is “contrary to”

clearly established federal law if the state court either: (1)

applied a rule that contradicts the governing law set forth by

Supreme Court case law; or (2) reached a different result from the

Supreme Court when faced with materially indistinguishable facts.

Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v.

Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application”

of Supreme Court precedent if the state court correctly identifies

the governing legal principle, but applies it to the facts of the

petitioner’s case in an objectively unreasonable manner, Brown v.

Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526,

531 (11th Cir. 2000), or “if the state court either unreasonably

extends a legal principle from [Supreme Court] precedent to a new

context where it should not apply or unreasonably refuses to extend

that principle to a new context where it should apply.” Id. at

531 (quoting Williams, 529 U.S. at 406). “A state court’s

determination that a claim lacks merit precludes federal habeas

relief so long as fair-minded jurists could disagree on the

correctness of the state court’s decision.” Harrington v.

Richter, 562 U.S. 86, 101 (2011). “[T]his standard is difficult

to meet because it was meant to be.” Sexton v. Beaudreaux, 138

S. Ct. 2555, 2558 (2018).

Finally, when reviewing a claim under 28 U.S.C. § 2254(d), a

federal court must remember that any “determination of a factual

issue made by a State court shall be presumed to be correct[,]”

and the petitioner bears “the burden of rebutting the presumption

of correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] state-

court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in

the first instance.”).

b. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a

two-part test for determining whether a convicted person may have

relief for ineffective assistance of counsel. 466 U.S. 668, 687-

88 (1984). A petitioner must establish: (1) counsel’s performance

was deficient and fell below an objective standard of

reasonableness; and (2) the deficient performance prejudiced the

defense. Id.

When considering the first prong, “courts must ‘indulge a

strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.’” Sealey v. Warden,

954 F.3d 1338, 1354 (11th Cir. 2020) (quoting Strickland, 466 U.S.

at 689). And “[a] state court’s determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded

jurists could disagree’ on the correctness of the state court’s

decision.” Franks v. GDCP Warden, 975 F.3d 1165, 1176 (11th Cir.

2020) (quoting Harrington, 562 U.S. at 101). Thus, a habeas

petitioner must “show that no reasonable jurist could find that

his counsel’s performance fell within the wide range of reasonable

professional conduct.” Id.

The second prong requires the petitioner to “show that there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Sealey, 954 F.3d at 1355 (quoting Strickland, 466 U.S. at 694).

“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. The critical question on federal

habeas review is not whether this Court can see a substantial

likelihood of a different result had defense counsel taken a

different approach. Mays v. Hines, 141 S. Ct. 1145, 1149 (2021).

All that matters is whether the state court, “notwithstanding its

substantial ‘latitude to reasonably determine that a defendant has

not [shown prejudice],’ still managed to blunder so badly that

every fairminded jurist would disagree.” Id. (quoting Knowles v.

Mirazayance, 556 U.S. 111, 123 (2009)).

“An ineffective-assistance claim can be decided on either the

deficiency or prejudice prong.” Sealey, 954 F.3d at 1355. And

“[w]hile the Strickland standard is itself hard to meet,

‘establishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult.’” Id.

(quoting Harrington, 562 U.S. at 105).

III. Analysis

a. Ground 1: Trial counsel failed to impeach Cynthia

Suleiman

Lewis first argues he did not receive effective assistance of

counsel because Taquechel did not impeach Cynthia Suleiman with a

pre-trial statement. During a police interview on December 26,

2010, Mrs. Suleiman stated that James “didn’t make any contact

with [Lewis].” (Doc. #12-5 at 47). Lewis argues that impeaching

Cynthia with this statement during cross-examination “could have

led the jury to find him innocent of aggravated [sic] and would

have called into question the veracity of all further testimony

from either witness, i.e., Mrs. Suleiman and Mr. James.” (Doc.

#2 at 6). Lewis does not identify any specific trial testimony

that is inconsistent with Mrs. Suleiman’s pretrial statement.

Rather, the basis of his argument seems to be that the statement

cuts against the State’s charge that he pointed his rifle at James

and Mr. Suleiman before running.

The postconviction court found this ground refuted by the

record and meritless:

8. Mrs. Suleiman’s testimony was not materially

inconsistent with her statement made to law enforcement

on the day of the crime. Rather, Defendant takes the

statement out of context in an effort to paint it as an

inconsistency…Defendant also assumes that “did not make

contact with him” necessarily means “did not point a gun

at him.” This is a conclusory assumption of Defendant

and not a factual reality of the record. There is no

likelihood that pointing out this “inconsistency” would

have changed the jury’s verdict. For the same reason

stated above, pointing out the “inconsistency” would

have had no effect on the jury’s finding of guilt for

the murder charge.

(Doc. #12-3 at 6).

The Court agrees that Mrs. Suleiman’s pretrial statement—when

considered in context—was not inconsistent with her trial

testimony or the aggravated-assault allegations. Mrs. Suleiman

was not in a position to see Lewis when he appeared behind the

trailer and pointed his gun at James. She was in the front of the

trailer, knocking on the door and speaking to Marti Lewis. (Doc.

#12-8 at 342). Mrs. Suleiman did not see Lewis until after he

started running. (Id. at 342-43).

The postconviction court’s conclusion that cross-examining

Mrs. Suleiman with the pretrial statement would not likely have

led to a different result is reasonable. The statement did not

meaningfully contradict her testimony. Lewis has not established

either prong of Strickland. The Court denies Ground 1.

b. Ground 2: Trial court improperly instructed the jury

Lewis next argues the trial court’s jury instructions were

inconsistent with state law. Lewis does not claim the jury

instructions ran afoul of any federal law. This ground is thus

not cognizable on federal habeas review. “[I]t is not the province

of a federal habeas court to reexamine state-court determinations

on state-law questions. In conducting habeas review, a federal

court is limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.” Estelle

v. McGuire, 502 U.S. 62, 67 (1991). Ground 2 is denied.

c. Ground 3: Trial court erroneously denied motions for

acquittal and for a new trial

Lewis’s explanation for Ground 3 is brief and conclusory. He

claims the trial court erred by denying a judgment of acquittal or

a new trial, but he does not explain why he was entitled to either.

This claim—like Ground2—appears to be based entirely on state law

and is thus not cognizable here. Lewis veers into ineffective-

assistance-of-counsel territory by suggesting his Taquechel should

have filed a motion for a new trial. (Doc. #2 at 12). But she

did file such a motion. (Doc. #12-2 at 17). So even if the Court

generously construes Ground 3 as an ineffective-assistance claim,

the record refutes it. Ground 3 is denied.

d. Ground 4: Trial counsel failed to object to photographs

of the victim

Lewis argues Taquechel should have objected to the State’s

repeated publication of pictures of Gordon Suleiman’s body because

they were prejudicial and inflammatory. The postconviction court

provided a detailed analysis of why the photographs were admissible

under Florida law:

12. First, the Court notes that the homicide incident in

this case was not a brutal stabbing, dismemberment, or

other type of gruesome and highly violent death.

Rather, the victim was killed with a single gunshot wound

to the chest. The fact that the jury was shown photos

of the body as it was found by law enforcement is not

automatically unduly prejudicial. Moreover, several

photos that Defendant objects to are shots of the crime

scene generally or other objects found at the scene. In

these photos, the body is seen incidentally. These

photos cannot reasonably be characterized as shocking,

disturbing or likely to cause the jury to be unable to

focus during deliberations.

13. The record indicates that the photos were introduced

in order to prove a number of relevant details about the

case, including law enforcement’s preservation of the

crime scene, the area around the body, the condition of

the victim’s firearm, the preservation of any evidence

that could be found on the victim’s hands, the face of

the victim for identification purposes, the trajectory

of the bullet that killed the victim and the manner in

which it killed him, and how the projectile was recovered

from the body. The Court has reviewed the photographs

cited in Defendant’s motion and finds that they depict,

at most, a “PG-13” level of violence. Defendant does

not identify any element of the cited photographs that

causes them to be truly, unduly prejudicial.

14. The only photo that could plausibly be considered

prejudicial is a black and white photograph of the

victim’s heart, which was taken during the autopsy,

after it was removed from his body. This black and

white photo was entered into evidence in order to

demonstrate the severe damage done to the victim’s heart

by the single gunshot wound. The Court finds that this

photo was not unduly prejudicial, largely thanks to its

publication in black and white and the fact that the

organ was removed from the body and photographed

separately. The victim is not seen in the photograph.

Moreover, even if the photo could be considered

prejudicial, it had important probative value and it was

not so prejudicial that it inappropriately affected the

jury’s verdict. Finally, even if prejudicial, the

prejudice did not outweigh the other, significant amount

of evidence presented at trial that proved Defendant’s

guilt and contradicted his theory of defense.

(Doc. #12-3 at 7-8). The postconviction court concluded that

“[b]ecause the photos were not unduly prejudicial, counsel could

not have been ineffective for failing to object to them on that

basis.” (Id. at 8).

A federal habeas court cannot find counsel ineffective for

failing to make an objection based on state law after a state court

has determined the objection would have been overruled. Callahan

v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005). Granting habeas

relief in such a case would require the federal court to conclude

the state court misinterpreted state law, which would be

inconsistent with the “fundamental principle that state courts are

the final arbiters of state law.” Id.

The postconviction court explained that objections to the

photographs would have been meritless under Florida law. Thus,

Taquechel was not ineffective for failing to make them, and Lewis

was not prejudiced. Ground 4 is denied.

e. Ground 5: Trial counsel failed to sever the drug-

paraphernalia charge or advise Lewis to plead guilty to

it

Lewis next contends that Count 3—possession of drug

paraphernalia—had nothing to do with Counts 1 and 2, and it allowed

the State to present prejudicial evidence that Lewis had a pipe

with methamphetamine reside when police found him. Lewis argues

Taquechel should have either moved to sever Count 3 or advised

Lewis to plead guilty to Count 3 so the drug-possession evidence

could be excluded.

The postconviction court found that Lewis failed to satisfy

either Strickland prong for a host of reasons:

16…The Court finds that there is no reasonable

likelihood that severance of count 3 would have changed

the jury’s verdict on counts 1 and 2, considering the

other evidence of Defendant’s guilt presented at trial.

Moreover, the facts relating to count 3 were

sufficiently intertwined with counts 1 and 2 because the

methamphetamine pipe was discovered by police following

Defendant’s extended, continuous attempt to evade law

enforcement. The pipe also shows intent as to why

Defendant was so determined to avoid being taken into

custody by the bondsmen. There was no “episodic”

division between counts 1 and 2 and count 3 because all

three crimes were committed in the course of Defendant’s

attempt to evade custody for his failure to appear for

violation of probation proceedings. See Fotopoulos v.

State, 608 So. 2d 784 (Fla. 1992). Defendant’s argument

that there was “no relationship” between count 3 and

counts 1 and 2 is incorrect. Similarly, Defendant’s

allegation that pleading to count 3 before trial would

have prevented any evidence relating to count 3 from

being presented at trial is a conclusory allegation.

The motion contains no legal argument explaining why

entering a plea to count 3 would have necessarily

prevented the State from admitting evidence of the pipe.

Defendant has failed to show that count 3 was not linked

to the other charges or that presentation of evidence

related to count 3 affected the jury’s verdict on counts

1 or 2.

17. Alternatively, the Court finds that there is no

likelihood that evidence relating to count 3 could have

made the jury improperly speculate that the Defendant

was high on meth at the time of the crime. The record

indicates that the State and defense counsel entered a

stipulation into evidence that a blood sample from

Defendant was sent to FDLE for testing and the results

showed no trace of drugs or alcohol. This stipulation

was read into evidence by the judge prior to Defendant’s

trial testimony…Additionally, a document stating the

stipulation was sent back to the jury room as an admitted

exhibit during deliberation to help the jury remember

the stipulated facts. Accordingly, the Court finds that

there is no likelihood that the evidence presented to

prove count 3 caused the jury to engage in the

prejudicial speculation described in Defendant’s motion.

(Doc. #12-3 at 9-10).

The postconviction court’s determination that, under Florida

law, the State could have presented evidence of the pipe even

without Count 3 is fatal to Lewis’s argument here. As with Ground

4, granting relief on this ground would require the Court to find

error in the state court’s application of state law, which this

Court cannot do. See Callahan, supra. The postconviction court’s

application of state law fatally undermines both prongs of

Strickland. Severing or pleading guilty to Count 3 would not have

led to the exclusion of the pipe. Ground 5 is denied.

f. Ground 6: Trial counsel failed to object to Bail Bond

Agent jury instruction

Lewis argues that Taquechel should have objected to the trial

court’s Bail Bond Agent jury instruction because it might have

confused the jury about his defense—that Lewis did not know Gordon

Suleiman was a bondsman, and if he had known he would have

surrendered. Lewis does not explain in his habeas filings how the

instruction misled the jury. He was more specific in his state

postconviction motion, which identified this portion of the

instruction:

A licensed bail bond agent is not allowed to wear or

display any identification other than the department

issued or approved license or approved identification,

which includes a citation of the licensee’s arrest

powers, in or on the property or grounds of a jail,

prison, or other place where prisoners are confined or

in or on the property or grounds of any court.

(Doc. #12-2 at 266-67). Lewis suggested the instruction might

have led the jury to believe “that Mr. Suleiman was not permitted

to wear or display any type of badge or identification at any

time.” (Id. at 268).

As with Grounds 4 and 5, the postconviction court denied this

ground because the proposed objection would have been overruled:

[T]he Court finds that the bail bondsmen jury

instruction is, as a matter of law, not ambiguous or

misleading in the manner that Defendant claims in his

motion, because the instruction includes the words

“other than the department issued or approved

identification,” which clearly indicates that bondsmen

are legally permitted to display a type of

identification. Moreover, the instruction clearly

indicates that it applies to bondsmen only when they are

on the property of a jail, prison, or court. Counsel

cannot be ineffective for failing to make the objection

proposed in Defendant’s motion because the objection is

meritless.

(Doc. #12-3 at 10). Again, this Court must defer to the state

court on matters of state law. See Callahan, supra. Because an

objection to the instruction would have been meritless, Lewis

cannot show either Strickland prong. Ground 6 is denied.

g. Ground 7: Trial counsel failed to file a Stand Your

Ground motion

Lewis next argues Taquechel was deficient for failing to file

a motion to dismiss under Florida’s Stand Your Ground law. The

postconviction court rejected this claim because Lewis could not

have met the standard governing Stand Your Ground motions:

20. Under the law in effect at the time to crime was

committed and this case was pending, Defendant would have

been entitled to prosecutorial immunity if he proved by

a preponderance of the evidence that the use of force was

justified as permitted in Fla. Stat. §776.012, §776.012,

or §776.031. See Dennis v. State, 51 So. 3d 456 (Fla.

2010); Bretherick v. State, 170 So. 3d 766 (Fla. 2015).

21. Defendant has failed to prove sufficient error or

prejudice under Strickland because he has failed to show

that a motion to dismiss based on §776.032 had any

reasonable likelihood of being granted.

22. In his motion, Defendant pleads that he told his

attorney his version of the events leading up to the

shooting, including his claim that he did not know the

victim was a bail bondsman and believed his life was in

danger because the victim was carrying a gun. These

facts are substantially identical to the testimony

Defendant gave at trial. As evidenced by the verdict,

the jury did not find Defendant’s testimony to be

credible. The Court has reviewed the trial transcript

and also does not find Defendant’s testimony to be

credible. Many of the details that Defendant provided

about what happened were highly implausible and were not

credible in light of other witness testimony presented

at trial.

23. At trial and at all times pre-trial, Mrs. Suleiman

consistently said that the victim was yelling “Bondsman!

Bondsman!” as he chased after Defendant. Moreover, Mrs.

Suleiman testified that the victim had stopped running

after Defendant, put his hands up, and did not have his

gun pointed at Defendant at the time Defendant shot him

in the chest. The totality of the evidence refutes

Defendant’s claim that he did not know the victim was a

bondsman and that the victim was threatening him at the

time he was shot. Considering the available evidence

and testimony, the Court finds that Defendant would not

have been able to meet his burden to prove justifiable

force by a preponderance of the evidence even if counsel

had filed a pre-trial motion to dismiss based on “Stand

Your Ground.”

(Doc. #12-3 at 10-12).

The Court must give deference to the postconviction court’s

determination that Lewis could not have shown entitlement to Stand

Your Ground immunity under Florida law. See Callahan, supra. The

state court’s factual determinations, including questions of

credibility, are also presumed correct. Consalvo v. Sec’y for

Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011). Based on the

postconviction court’s factual findings and application of Florida

law, Lewis could not have succeeded in a Stand Your Ground hearing,

so Taquechel’s failure to request one was not unreasonable and did

not prejudice Lewis. Ground 7 is denied.

h. Ground 8: Cumulative effect of errors

Finally, Lewis argues the cumulative effect of previous seven

grounds warrants habeas relief. But because none of Lewis’s seven

grounds have merit, there is no error to accumulate. See Ballard

v. McNeil, 785 F. Supp. 2d 1299, 1336 (N.D. Fla. 2011) (“cumulative

error analysis should evaluate only matters determined to be in

error, not the cumulative effect of non-errors”); see also United

States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1084) (“Without

harmful errors, there can be no cumulative effect compelling

reversal.”). Ground 8 is denied.

IV. Certificate of Appealability

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court's denial of his petition.

28 U.S.C. § 2253(c)(1). Rather, a district court must first issue

a certificate of appealability (COA). “A [COA] may issue...only

if the applicant has made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a

showing, a 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) (citations omitted). Lewis has not made the requisite

showing here and may not have a certificate of appealability on

any ground of his Petition.

Accordingly, it is now

ORDERED :

1. Petitioner Koty Cheyenne Lewis’s Petition Under 28 U.S.C.

§ 2254 for Writ of Habeas Corpus (Doc. #1) is DENIED.

2. The Clerk is DIRECTED to enter judgment, terminate any

pending motions or deadlines, and close this case.

DONE AND ORDERED in Fort Myers, Florida this Ist day of

July 2021.

/ (2b fp

: le fy DE, Ah

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record