Clark v. Florida Attorney General (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RENARDO CLARK,

Petitioner,

v. Case No. 3:18-cv-994-MMH-JRK

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Renardo Clark, an inmate of the Florida penal system,

initiated this action with the assistance of counsel on August 15, 2018, by filing

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

Clark is proceeding on an amended petition (Amended Petition; Doc. 5), with

exhibits (Pet. Ex.). In the Amended Petition, Clark challenges a 2009 state

court (Duval County) conviction for armed robbery, aggravated fleeing, and

possession of a firearm by a convicted felon. Clark raises one ground for relief.

See Amended Petition at 7-9.1 Respondents submitted an answer in which they

1 For purposes of reference, the Court will cite the page number assigned

by the Court’s electronic docketing system.

moved the Court to dismiss the Amended Petition as untimely but also

addressed the merits of the Amended Petition in the alternative. See Answer

in Response (Response; Doc. 12) with exhibits (Resp. Ex.). Clark initially filed

a brief in reply only as to Respondents’ statute of limitations argument. See

Clark’s Reply to the State’s Response (Doc. 13). On April 19, 2021, the Court

denied Respondents’ request to dismiss the Amended Petition as untimely and

directed Clark to file a reply to Respondents’ merits analysis. See Doc. 14.

Thereafter, Clark filed his supplemental reply. See Petitioner Clark’s Reply to

State’s Response (Reply; Doc. 15). The Amended Petition is ripe for review.

II. Relevant Procedural History

On March 12, 2007, the State of Florida (State) charged Clark by way of

Information with armed robbery (count one), aggravated fleeing or attempting

to elude a law enforcement officer (count two), and possession of a firearm by

a convicted felon (count three). Resp. Ex. 1 at 15. Following a trial, a jury found

Clark guilty as charged in the Information on all three counts. Id. at 65-67. On

November 8, 2007, the trial court adjudicated Clark to be a habitual violent

felony offender (HVFO) as to counts one, two, and three and a prison releasee

reoffender as to count one. Id. at 70-77. The trial court sentenced Clark to a

life term of incarceration as to count one and a term of incarceration of fifteen

years in prison as to counts two and three. Id. As an HVFO, the trial court

imposed a ten-year minimum mandatory sentence as to counts one, two, and

three. Resp. Ex. 1 at 76. It also imposed a ten-year minimum mandatory

sentence as to count one and a three-year minimum mandatory sentence as to

count three because of Clark’s actual possession of a firearm during the

commission of these offenses. Id. The trial court ordered counts two and three

to run concurrently with the sentence imposed on count one. Id. On December

24, 2008, the First District Court of Appeal (First DCA) affirmed Clark’s

convictions and sentences and issued the mandate on January 9, 2009. Resp.

Ex. 7.

On February 9, 2009,2 Clark filed a pro se motion to correct an illegal

sentence under Florida Rule of Criminal Procedure 3.800(a) (Rule 3.800(a)

Motion), in which he moved to strike the ten-year HVFO term imposed as to

count one. Resp. Ex. 8. The postconviction court denied the Rule 3.800(a)

Motion. Resp. Ex. 8. On October 20, 2009, the First DCA reversed the denial

of the Rule 3.800(a) Motion and remanded the matter for the postconviction

court to strike the HVFO sentence. Resp. Ex. 11. The First DCA issued the

mandate on November 17, 2009. Id.

The postconviction court entered an order on remand vacating and

setting aside the portions of the judgment that adjudicated Clark as an HVFO

2 Although filed pro se, the Court cannot use the mailbox rule to calculate

the date because there is no prison time stamp and Clark did not date his

motion. Accordingly, the Court relies on the date the Clerk stamped on the

motion.

and imposed the ten-year minimum mandatory term of imprisonment. Resp.

Ex. 12. All other provisions of the judgment remained the same. Id.

On January 10, 2011, Clark, with the assistance of counsel, filed a

motion for postconviction relief pursuant to Florida Rule of Criminal Procedure

3.850 (Rule 3.850 Motion). Resp. Ex. 14 at 1-15. Clark alleged in the Rule 3.850

Motion that his trial counsel was ineffective for failing to object to and cross-

examine testimony from the State’s DNA expert and call an independent DNA

expert. Id. On July 19, 2017, the postconviction court denied relief. Resp. Ex.

17. On August 7, 2018, the First DCA per curiam affirmed the denial of relief,

without a written opinion, and issued the mandate on October 3, 2018. Resp.

Ex. 20.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

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 [Clark’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.’”[3] 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,

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

3 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).

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, - U.S. at -, 131 S. Ct.

at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable - a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, - U.S. at -, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference--this one to a state court’s decision--when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

Clark contends that his trial counsel was ineffective for failing to object

to testimony from the State’s DNA expert, Greg Brock, concerning DNA found

on the handle of a gun and failing to adequately cross-examine Brock on this

testimony. Amended Petition at 7-9. Additionally, Clark asserts that his

counsel should have retained a DNA expert to rebut Brock’s conclusions

concerning this evidence. Id. At trial, Brock testified that Clark was a possible

contributor to a mixture of DNA found on the handle of a gun the State alleged

Clark used during the commission of the offenses. Id. at 7-8. According to

Clark, “[u]nder Florida law it was improper to introduce this testimony without

explaining its significance.” Id. at 8. Clark maintains that an independent

DNA expert “could have explained to the jury that there was no evidentiary

significance to the State DNA expert’s DNA finding about the DNA on the

handle of the gun.” Id. Following the trial, Clark’s mother retained a DNA

expert, Dr. Charlotte Word, who concluded that the trial court should not have

permitted Brock’s testimony concerning Clark as a possible contributor to the

DNA mixture or should have required the testimony be accompanied with an

explanation of “their scientific significance[.]” Id. at 8-9. Clark attached Word’s

reports as exhibits to the Amended Petition.

Clark raised a substantially similar claim in his Rule 3.850 Motion.

Resp. Ex. 14 at 1-15. The postconviction court denied relief, explaining in

pertinent part:

Specifically, Defendant claims Mr. Brock should not

have been permitted to testify that Defendant was

“included as a possible contributor” to the DNA

recovered from the handle of the gun without

additional testimony explaining population frequency

statistics. Defendant cites Brim v. State, 695 So. 2d,

269-70 (Fla. 1997), which holds that both steps of DNA

testing must satisfy the Frye[4] test, but also notes:

This first step of the DNA testing process

relies upon principles of molecular biology

and chemistry. In oversimplified terms,

the results obtained through this first step

4 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (superseded by rule

as stated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993)).

in the DNA testing process simply indicate

that two DNA samples look the same. A

second statistical step is needed to give

significance to a match. The need for this

second step is explained as follows by the

National Research Council (NRC)2: “The

insistence on quantitative estimation has

been fueled by the observation in the 1992

report that ‘[t]o say that two patterns

match, without providing any

scientifically valid estimate (or, at least,

an upper bound) of the frequency with

which such matches might occur by

chance, is meaningless.’[”] Certainly, a

judge’s or juror’s untutored impression of

how unusual a DNA profile is could be

very wrong. This possibility militates in

favor of going beyond a simple statement

of a match, to give the trier of fact some

expert guidance about its probative value.

Defendant has also provided letters from Dr.

Charlotte Word wherein she opines that the DNA from

the handle of the gun could have been a “match” to as

many as 1 in 2 DNA profiles. In other words, half the

world could have been “included as a possible

contributor.” Defendant argues that Mr. Brock’s

testimony was highly misleading without the context

of the population frequency statistics.

Concededly, in hindsight, it would have been

better for the jury to hear such testimony to

understand the significance of the DNA evidence from

the handle of the gun. However, even if counsel was

deficient for failing to object, failing to cross-examine

Mr. Brock on this subject or call another expert to

clarify the population frequency statistics, Defendant

cannot prove prejudice.

The charges in this case arose from an incident,

followed by a high-speed car chase, which ended when

Defendant crashed and fled on foot into an apartment

complex. Although Sgt. Nemeth testified that during

the foot chase, he lost sight of Defendant briefly as

Defendant ran around a corner, Officer Knecht

testified that he was in “parallel pursuit,” and saw

Defendant run up a stairwell. Police then found

Defendant sitting on the stairwell, in the same clothes

as the suspect they were chasing, breathing heavily

and sweating profusely on a February evening. The

victim positively identified Defendant as the person

who robbed him.

Defendant [sic] counsel cross-examined Mr.

Brock at length, highlighting that Defendant was

excluded as a contributor to the DNA on the trigger of

the gun. However, the critical piece of DNA evidence

was from the steering wheel of the stolen car.

Defendant was found to be a match, and Mr. Brock

testified that the frequency of the occurrence of that

DNA was 1 in 400 trillion Caucasians; 1 in 11 trillion

African-Americans, and 1 in 82 trillion Southeastern

Hispanics. The gun was found in the car where

Defendant’s DNA was found on the steering wheel.

The victim identified the gun as the one Defendant

used in the robbery. Therefore, evidence beyond DNA

linked Defendant to the gun.

In sum, objecting, cross-examining or hiring

another expert could have all resulted in testimony

providing population frequency statistics, which

would have apparently diminished the significance of

the DNA evidence from the handle of the gun.

Nevertheless, even if the jury had heard the

population frequency statistics, the outcome of the

trial would not have been different. Hence, Defendant

has not proven that he was prejudiced by counsel’s

inaction and he is not entitled to relief.

Resp. Ex. 17 2-4 (record citations omitted). The First DCA per curiam affirmed

the denial of relief, without issuing a written opinion. Resp. Ex. 20.

To the extent that the First DCA decided the claim on the merits,5 the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Clark is not entitled to relief

on the basis of this claim.

This Court agrees with the state court that Clark cannot demonstrate

prejudice. At trial, the victim testified that Clark approached him in the

parking lot of an apartment complex, told him the victim to give him his money,

and showed half of a silver revolver that was inside the pocket of Clark’s grey

sweatshirt. Resp. Ex. 2 at 25-26. Although the hood of the jacket was covering

Clark’s head, the victim was still able to observe Clark’s face. Id. at 26-27.

While at gunpoint, the victim gave Clark six dollars in one-dollar bills and the

keys to his car. Id. at 28-29. Clark then drove off in the victim’s car. Id. at 29.

With the assistance of a bystander and his car, the victim drove after Clark

5 In looking through the appellate court’s per curiam affirmance to the

circuit court’s “relevant rationale,” the Court presumes that the appellate court

“adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.

while calling 911. Id. at 29-31, 45-46. Clark drove too fast for the victim to

follow but by that time police had taken over the chase. Id. at 30-31.

Clark led police on a high-speed chase that started on the interstate and

ended at an apartment complex where Clark crashed the victim’s vehicle into

a fence and fled on foot. Id. at 54-67. Sergeant Matt Nemeth observed Clark,

wearing the same gray sweatshirt the victim had told the 911 operator the

suspect was wearing, run from the vehicle, at which point Nemeth ran after

him. Id. at 67-68. Nemeth lost sight of Clark for ten to twenty seconds as he

ran up the exterior stairwell of an apartment building. Id. at 69-71. However,

another officer on foot had also seen Clark run up the stairwell and pursued,

ultimately arresting Clark, who by that time was sweating profusely and

breathing heavily. Id. at 69-71, 96-100. Officers searched Clark and found five-

dollars-worth of dollar bills in his pocket. Id. at 100-01, 121.

At the scene of the crash, the vehicle was still running, and the stereo

was playing loudly. Id. at 74-75, 126, 130, 159-60. Officers found a fully loaded

and operable silver revolver on the floorboard. Id. Police brought the victim to

the scene of the crash, where the victim identified his vehicle and positively

identified Clark as the assailant. Id. at 32-35, 113-15. According to the victim,

there was no doubt in his mind that Clark was the robber. Id. at 42.

No fingerprints of value were found in the vehicle or on the gun. Id. at

150, 153. However, several areas tested positive for DNA. The handle of the

gun had a mixture of profiles on it, and Brock testified, without giving

statistical data, that Clark was a possible contributor to that mixture. Id. at

186. Notably, during cross-examination, trial counsel elicited testimony from

Clark that it was only a possibility that Clark was a contributor to that mixture

and that Brock could not say for certain that Clark was a contributor. Id. at

213. This was not the only DNA evidence linking Clark to the crime, though.

Brock concluded that Clark’s DNA profile matched that of the major

contributor to a DNA mixture found on the steering wheel of the stolen vehicle.

Id. at 188-96. Clark’s own expert agrees with Brock’s conclusion that Clark’s

DNA was on the steering wheel. Resp. Ex. 4 at 2.

Given the existence of Clark’s DNA on the steering wheel of the victim’s

vehicle, the victim’s unequivocal in-court and out-of-court identification of

Clark, and the pursuing officers’ identification of Clark, there is no reasonable

probability the outcome of the trial would have been different. Indeed, Clark’s

own expert would have provided testimony linking Clark to the crimes. In light

of the overwhelming evidence identifying Clark as the assailant, Clark has

failed to demonstrate prejudice and relief on the claim in the Amended Petition

is due to be denied.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Clark 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, Clark “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 Amended Petition (Doc. 5) is DENIED, and this action is

DISMISSED WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Amended

Petition and dismissing this case with prejudice.

3. If Clark appeals the denial of the Amended 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 19th day of July,

2021.

United States District Judge

19

Jax-8

C: Counsel of record

Renardo Clark #126790