Robinson v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CURTIS LOUIS ROBINSON,

Petitioner,

v. Case No. 3:18-cv-1018-TJC-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Curtis Louis Robinson, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ

of Habeas Corpus by a Person in State Custody. Doc. 1. Petitioner challenges a

state court (Duval County, Florida) judgment of conviction for possession of

hydrocodone (count one), sale or delivery of cocaine (count two), possession of

less than twenty grams of cannabis (count four), and resisting officer without

violence (count five).1 Petitioner is serving a cumulative nineteen-year term of

1 The trial court granted trial counsel’s motion for judgment of acquittal as to

count three, possession of cocaine.

incarceration. Id. Respondents filed a Response. See Doc. 17 (Resp.).2 Petitioner

replied. See Doc. 19. This case is ripe for review.

II. Governing Legal Principles

A. Standard Under AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal habeas corpus petition. 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)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims 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 an opinion explaining its rationale for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

2 Attached to the Response are several exhibits. The Court cites the exhibits as

“Resp. Ex.”

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the 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 “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “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.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Ineffective Assistance of Trial and Appellate Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’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 ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

This two-part Strickland standard also governs a claim of ineffective

assistance of appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287

(11th Cir. 2016). When considering deficient performance by appellate counsel,

a court must presume counsel’s performance was

“within the wide range of reasonable professional

assistance.” Id. at 689, 104 S. Ct. 2052. Appellate

counsel has no duty to raise every non-frivolous issue

and may reasonably weed out weaker (albeit

meritorious) arguments. See Philmore v. McNeil, 575

F.3d 1251, 1264 (11th Cir. 2009). “Generally, only

when ignored issues are clearly stronger than those

presented, will the presumption of effective assistance

of counsel be overcome.” Smith v. Robbins, 528 U.S.

259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644,

646 (7th Cir.1986)); see also Burger v. Kemp, 483 U.S.

776, 784 (1987) (finding no ineffective assistance of

counsel when the failure to raise a particular issue had

“a sound strategic basis”).

Id.; see also Owen v. Sec’y, Dep’t of Corr., 568 F.3d 894, 915 (11th Cir. 2009)

(“failing to raise or adequately pursue [meritless issues on appeal] cannot

constitute ineffective assistance of counsel”).

To satisfy the prejudice prong of an ineffective assistance of appellate

counsel claim, a petitioner must show a reasonable probability that “but for the

deficient performance, the outcome of the appeal would have been different.”

Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore

v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the

neglected claim would have a reasonable probability of success on appeal”).

Also,

[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. As such, “[a]ppellate counsel might fail to identify a

mediocre or obscure basis for reversal without being ineffective under

Strickland.” Overstreet, 811 F.3d at 1287 (citation omitted).

For both claims of ineffective assistance of trial counsel and appellate

counsel, there is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). 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.” 466 U.S. at 697.

Further, “[t]he 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 (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, 562 U.S. at 105. As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable professional

assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th

Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling

on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans

v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)

(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004).

III. Analysis

A. Ground One

Petitioner argues that his convictions for possession of hydrocodone and

sale or delivery of cocaine are unconstitutional because the offenses lack a

knowledge requirement. Doc. 1 at 3. According to Petitioner, these are strict

liability offenses resulting in felony punishments, and the statutes outlining

these crimes, sections 893.13 and 893.101, Florida Statutes, are facially

unconstitutional. Id.

Petitioner, with help from appellate counsel, raised this issue on direct

appeal, asserting his convictions are unconstitutional as declared in Shelton v.

Sec’y, Dep’t of Corr., 802 F. Supp. 2d 1289 (M.D. Fla. 2011) (Shelton I). Resp.

Ex. E at 20. The state filed an answer brief addressing the claim on the merits,

Resp. Ex. F, and the First District Court of Appeal per curiam affirmed

Petitioner’s judgment and sentences without a written opinion, Resp. Ex. G.

Assuming the First DCA adjudicated this issue on the merits, that

adjudication is entitled to deference. The Court finds the state court’s

adjudication of this claim is not contrary to or an unreasonable application of

federal law or based on an unreasonable determination of the facts.

Alternatively, this claim has no merit and is due to be denied. The Eleventh

Circuit reversed the decision in Shelton I. See Shelton v. Sec’y, Dep’t of Corr.,

691 F.3d 1348 (11th Cir. 2012). As such, Ground One is denied.

B. Ground Two

Petitioner argues that the trial court committed reversible error by

allowing the prosecutor to argue during closing arguments that the evidence

supporting the charge of possession of hydrocodone was undisputed and

uncontradicted. Doc. 1 at 3.

For context, the Court summarizes the relevant closing argument and

procedural history. During its closing, the state made these statements:

The substance is hydrocodone. Well it is

certainly undisputed that the subject of count

number one, these blue pills w[ere], in fact

hydrocodone. It was testified to by the very first

witness today, Katherine Bible. She got up on the stand

and said this is what I do, I test things, and this was

hydrocodone. It’s what they do. That’s their job.

Their stand[ard] operating procedure is to look at

them, make sure they’re all consistent, their markings

are consistent, that the pills are the same, select

randomly among the group and test them. Their

standard procedures call for testing 1, even though

there [are] 30 some odd pills, but she tested 4. She did

four times more than she actually needed to according

to their standard procedures, tested these and found

they’re hydrocodone, and all the pills are the same.

They’re all the same, so it’s hydrocodone. There is no

evidence to suggest that it’s not.

. . . .

You’ll also be asked to make a determination on

which area within trafficking this falls. You’ll be asked

was it 4 to 14 grams, 14 to 28 grams or 28 grams to 300

kilograms. Well, the evidence that’s before you today is

that the hydrocodone that this defendant tossed into

the grass was 30.1 grams, so by the law that His Honor

will instruct you on and by the facts that have been

presented before you, that formula that His Honor

talked about in jury selection, the oath that you’ve

taken requires you to return a verdict if you find

him guilty of trafficking, to 28 grams or more,

because there is no evidence to suggest that --

Resp. Ex. C at 389-90 (emphasis added). Trial counsel then objected to the

state’s characterization of the evidence as undisputed, arguing it amounted to

improper burden shifting because Petitioner did not testify or present any

evidence. Resp. Ex. C at 390-91. The state responded to the objection, asserting

that the comment about the weight of the hydrocodone came directly from state

witness testimony, and that trial counsel did not challenge that testimony on

cross-examination. Id. at 392. The trial court then ruled as follows:

The state has the right to comment, if they feel like it’s

an issue in the case, they have the right to comment

that you didn’t get the expert to come offer an opinion

that those grams were established, so since we’re – that

specifically they’ve got the right to do that, and that’s

not burden shifting, and that doesn’t even raise, to me

any inference at all that the defendant didn’t testify

and, as the State accurately pointed out, the defendant

is not an expert. I haven’t heard any – any proffer at all

that he’s an expert on how many grams those pills

contain.

Id. at 394-95.

During his direct appeal, Petitioner, through appellate counsel,

challenged the trial court’s ruling, arguing that the prosecutor’s comments

amounted to reversible error. Resp. Ex. E. The state filed an answer brief

arguing that the prosecutor’s comments were not error but a fair comment

about the irrefutable facts of the case. Resp. Ex. F at 4. The First DCA per

curiam affirmed Petitioner’s judgment and convictions without a written

opinion. Resp. Ex. G. Assuming the First DCA affirmed the denial on the merits,

there is a qualifying state court decision. Thus, this Court considers this claim

in accordance with the deferential standard for federal court review of state

court adjudications.

A reviewing court must evaluate an allegedly improper comment in the

context of both the prosecutor’s entire argument and the trial as a whole,

because “[c]laims of prosecutorial misconduct are fact-specific inquiries which

must be conducted against the backdrop of the entire record.” United States v.

Hall, 47 F.3d 1091, 1098 (11th Cir. 1995); accord United States v. Young, 470

U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly overturned on the

basis of a prosecutor’s comments standing alone, for the statements or conduct

must be viewed in context; only by doing so can it be determined whether the

prosecutor’s conduct affected the fairness of the trial.”). Upon review of the

prosecutor’s closing argument and in the context of the trial record as a whole,

the Court finds that these allegedly improper comments did not affect the

fairness of Petitioner’s trial. Instead, these comments were merely a summary

of the evidence the state presented to the jury.

Detective K.A. Flanagan testified that on the day of Petitioner’s arrest,

Flanagan and Detective J.C. Hux were working as undercover narcotics officers

engaging in buy-bust operations. Resp. Ex. C at 191-92. Flanagan contacted co-

defendant Eric Cook who advised Flanagan he would contact Petitioner to

obtain the requested drugs. Id. at 192-202. Flanagan followed Cook in his

vehicle to an apartment complex where a black male wearing all black clothing

got into Cook’s vehicle. Id. at 202. Cook then got out of his vehicle, approached

Flanagan, and asked for $50 to conduct the transaction. Id. at 214. Flanagan

provided Cook with $50 which police previously photocopied for identification

purposes. Id. at 215. Cook returned to his vehicle and about five minutes later,

approached Flanagan and handed her a piece of paper with a white powdery

substance inside (state’s Exhibit E). Id. at 234-35. Flanagan gave the takedown

signal and Detective Adam K. Hiers, a member of the takedown team, began

pursuing Petitioner, who immediately exited Cook’s vehicle and began fleeing

on foot. Id. at 331. Hiers witnessed Petitioner throw something on the ground.

Id. Following Petitioner’s arrest, officers retrieved the items thrown on the

ground – notably, a bag of blue pills (state’s Exhibit F), marijuana (state’s

Exhibit H), and a bag of white powder (state’s Exhibit G). Id. at 242, 316.

Officers also found $30 of the marked money from the transaction in Petitioner’s

pocket upon arrest. Id. at 283.

Florida Department of Law Enforcement analyst Katherine Bible

testified that she weighed and analyzed state’s Exhibit F (the bag of blue pills)

and determined that the Exhibit contained 42 pills that were consistent in

shape, color, texture, and size, and weighed 30.1 grams. Resp. Ex. C at 167-70.

Under standard operating procedure, because all the pills appeared to be

identical, she tested four of the pills and determined they all contained

hydrocodone. Id. at 168-69. Bible also tested the substance found in state’s

Exhibit E (the white powdery substance hand delivered to Flanagan during the

transaction) and determined it was cocaine weighing 0.2 grams. Id. at 168. The

state’s closing arguments were merely a summary of that testimony. Thus, upon

review of the record, this Court finds 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 given the evidence presented in

the state court proceedings. Ground Two is due to be denied.

C. Ground Three

Petitioner alleges that his appellate counsel was ineffective for failing to

argue on direct appeal that the trial court erred in denying trial counsel’s

request to strike from evidence the state’s Exhibit G (a bag containing a white

powdery substance that Petitioner discarded during his attempt to flee arrest).

Doc. 1 at 8. According to Petitioner, trial counsel objected to the state’s Exhibit

G because the state identified the Exhibit as cocaine but failed to present

evidence that an expert tested the substance. He also contends that the trial

court ultimately granted counsel’s request for a judgment of acquittal as to the

possession of cocaine charge (count three), and thus the evidence, Exhibit G,

which the state intended to use to support that charge, should have been

entirely excluded from the jury’s consideration. For context, the Court provides

a relevant summary.

Before Flanagan’s trial testimony, trial counsel objected to the state’s

potential introduction of Exhibit G. Resp. Ex. C at 203-11. Trial counsel stated

that the state intended to introduce Exhibit G to support count three, the

possession of cocaine charge, and further explained that the state had presented

other evidence of cocaine (state’s Exhibit E) to support the sale or delivery of

cocaine charge and that Bible testified she tested Exhibit E and confirmed its

illicit nature. However, because the substance in state’s Exhibit G was never

tested, trial counsel argued it must be excluded as substantive evidence

supporting the separate possession of cocaine charge. The trial court agreed

with trial counsel’s argument that without expert testimony proving the

substance was in fact cocaine, the state could not admit the evidence as

substantive evidence of guilt supporting that charge. The trial court also stated

that it would be inclined to grant a motion for judgment of acquittal on the

possession of cocaine charge if the state could not prove that fact. Id. at 207.

The trial court explained, however, that since the state intended to present

evidence that Petitioner threw the bag containing the white substance (Exhibit

G) while fleeing and police collected it as evidence related to the offenses, it was

relevant and could be introduced as circumstantial evidence supporting the

other drug offenses. Id. at 207-09. Thereafter, during Flanagan’s trial

testimony, the state submitted Exhibit G as evidence, eliciting testimony that

Petitioner had thrown the evidence during his attempt to flee and that police

saw Petitioner throw the bag, which they later collected from the ground along

with a bag of hydrocodone and marijuana. Id. at 234, 314, 321.

Petitioner now argues that appellate counsel should have challenged on

direct appeal the trial court’s ruling and admission of Exhibit G. Doc. 1 at 8.

Petitioner raised this claim of ineffective assistance of appellate counsel in a

petition filed with the First DCA. Resp. Ex. U. The First DCA issued a one-line

order denying the petition “on the merits.” Resp. Ex. X. The First DCA’s

adjudication of this claim is entitled to AEDPA deference. And the Court gives

considerable deference to appellate counsel’s strategic decision of selecting the

issue or issues to raise on appeal. The danger of raising weaker issues in a

“kitchen-sink” approach is that it detracts from the attention an appellate court

can devote to the stronger issues and reduces appellate counsel’s credibility. See

Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989); see also McBride v.

Sharpe, 25 F.3d 962, 973 (11th Cir. 1994). Thus, effective appellate attorneys

“will weed out weaker arguments, even though they may have merit.” Philmore,

575 F.3d at 1264; see also Overstreet, 811 F.3d at 1287. Appellate counsel’s

failure to raise a meritless or weaker issue does not constitute deficient

performance. See Brown v. United States, 720 F.3d 1316, 1335 (11th Cir. 2013)

(citing Jones v. Barnes, 463 U.S. 745, 754 (1983)); Owen, 568 F.3d at 915.

Prejudice results only if “the neglected claim would have a reasonable

probability of success on appeal.” Philmore, 575 F.3d at 1264-65.

Initially, “[a]s a general rule, a federal court in a habeas corpus case will

not review the trial court’s actions concerning the admissibility of evidence,”

because the state court “has wide discretion in determining whether to admit

evidence at trial[.]” Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994); see

also Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1985) (federal habeas

corpus is not the proper vehicle to correct evidentiary rulings); Boykins v.

Wainwright, 737 F.2d 1539, 1543 (11th Cir. 1984) (federal courts are not

empowered to correct erroneous evidentiary rulings in state court unless

rulings deny petitioner fundamental constitutional protections). Thus,

Petitioner’s underlying challenges to the state’s court’s determination on the

admissibility of Exhibit G are not generally proper for this Court’s

consideration.

In any event, even assuming such challenges are proper in the context of

Strickland, Petitioner cannot show the required prejudice. Indeed, the trial

court granted Petitioner’s motion for judgment of acquittal as it applied to the

possession of cocaine charge for which the state intended Exhibit G to support.

Although Exhibit G was relevant because it was evidence collected from the

crime scene, even if the trial court granted Petitioner’s request to exclude the

evidence, such exclusion would not have affected the admissibility of the

evidence supporting the other charged offenses for which Petitioner was

ultimately convicted. As such, Petitioner cannot demonstrate that but for

appellate counsel’s alleged error, the outcome of his trial would have been

different. Accordingly, upon review of the record, this Court finds 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 given the

evidence presented in the state court proceedings. Ground Three is denied.

D. Ground Four

Petitioner argues that his appellate counsel was ineffective for failing to

raise on direct appeal a claim that trial counsel was ineffective for failing to

object to the admission of evidence only pertaining to crimes his co-defendant

committed. Doc. 1 at 9. According to Petitioner, during trial, trial counsel

questioned Flanagan about marijuana and a wooden pipe that co-defendant

Cook possessed during the incident. Id. Petitioner also contends that the state

admitted the marijuana and wooden pipe into evidence as state’s “exhibit 9 and

10,” and questioned Cook at trial about the evidence and Cook admitted he had

marijuana and a pipe on his person when he was arrested. Id. Petitioner argues

that this testimony and evidence were irrelevant to the charges for which

Petitioner faced and the prejudice of their admission outweighed any probative

value. Id.

Petitioner raised this claim of ineffective assistance of appellate counsel

in a petition filed with the First DCA. Resp. Ex. U. The First DCA issued a one-

line order denying the petition “on the merits.” Resp. Ex. X. The First DCA’s

adjudication of these allegations is entitled to AEDPA deference. In applying

such deference, the Court notes that in Florida, ineffective assistance of trial

counsel claims are generally not cognizable on direct appeal unless under “rare”

circumstances that are not present here. See Robards v. State, 112 So. 3d 1256,

1265-57 (Fla. 2013) (holding that ineffective assistance of trial counsel claims

may be treated on the merits on direct appeal where “(1) ineffectiveness is

apparent on the face of the record, and (2) it would be a ‘waste of judicial

resources to require the trial court to address the issue.’”). Thus, appellate

counsel cannot be ineffective for failing to raise a claim that would not have

been cognizable on direct appeal.

Further, even if this claim were cognizable on direct appeal, a review of

the record shows trial counsel elicited testimony about Cook’s possession of

marijuana to reduce Petitioner’s culpability as it related to the marijuana

Petitioner threw while fleeing police and to show that such evidence should only

be attributed to Cook rather than Petitioner. Resp. Ex. C at 257. Further,

during his trial testimony, Cook admitted he had marijuana and a pipe on his

person during the transaction and the record is clear that such evidence was at

all times associated with Cook. Id. at 292. Thus, upon review of the record, the

Court finds 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 given the evidence presented in the state court

proceedings. Ground Four is due to be denied.

E. Ground Five

Petitioner asserts that his trial counsel was ineffective for permitting

impeachment evidence to be used as substantive evidence of guilt. Doc. 1 at 15.

Petitioner contends that trial counsel tried to impeach certain state witnesses

using narcotic incident reports, police reports, and arrest and booking reports,

but the state and trial counsel then referenced these reports throughout their

closing arguments. Id. According to Petitioner, trial counsel should have

requested that the jury be instructed on the limited use of this impeachment

evidence and her failure to do so resulted in the jury relying on this hearsay

evidence as substantive evidence of guilt that corroborated the state’s version

of events. Id.

Petitioner raised this claim in his Florida Rule of Criminal Procedure

3.850 motion for postconviction relief. Resp. Ex. K at 2. The trial court denied

the claim, finding the following:

In this ground, Defendant alleges counsel was

ineffective for allowing impeachment evidence to be

used as substantive evidence of guilt. Specifically,

Defendant maintains counsel was deficient because she

never requested that the Court instruct the jury on the

limited use of impeachment evidence. To support this

contention, Defendant states the jury became confused

and was misled on the improper use of the narcotic

incident reports, police reports, and arrest and booking

reports during impeachment of several detectives.

Defendant also cites to the questions the jury

submitted to the Court during deliberations. Defendant

further avers the jury was permitted to rely on hearsay

evidence to improperly corroborate the State’s theory of

prosecution or otherwise enhance the State’s case with

evidence that was not even sent back to the jury room

during deliberations.

The record shows the jurors were properly

instructed on weighing credibility, and as the fact-

finder, it was the jury’s duty to weigh the credibility of

all the witnesses and evidence presented. (Ex. E.)

Counsel attempted to cast doubt on the testimony of the

detectives by impeaching them over details they

transcribed in various reports to show inaccuracies in

their police work. (Ex. F.) Thus, counsel cannot be held

ineffective for failing to request a limiting instruction

on impeachment evidence when it is clear from the

record that counsel utilized that technique to cast

doubt on the State’s case.

Importantly, upon a thorough review of the

closing arguments, neither the State nor trial counsel

improperly relied on the impeachment evidence as

substantive evidence of guilt. (Ex. F at 380-430.)

Instead, they detailed for the jury the issue of

credibility with the witnesses. Moreover, the reports

were never entered into evidence, thereby refuting

Defendant’s hearsay claims. As for the questions the

jury asked during deliberations, the Court responded

that it cannot answer any questions of credibility, as

that duty belongs to the jury only and no one else. (Ex.

F at 471-72.) As such, the Court finds Defendant failed

to show that counsel’s performance was outside the

wide range of reasonable professional assistance under

Strickland and denies Ground One.

Resp. Ex. K at 548-49. Petitioner appealed and the First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. O.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. In applying such

deference, the Court notes that trial counsel discussed the subject reports

during cross examination to impeach relevant state witnesses. Resp. Ex. C at

251, 252, 258, 333, 336, 337, 338. These reports were not admitted into evidence

nor were they submitted for the jury’s consideration during deliberations.

Although the jury asked a question about “which report carries more

credibility,” id. at 470, the trial court and the parties agreed that the trial court

could not answer that question because those reports were not evidence but

merely factors the jury could consider when conducting its duty to weigh each

witnesses’ credibility, id. at 471. Considering the trial court’s answer to the

jury’s question and the standard jury instructions that the trial court used,

Petitioner cannot satisfy either prong of Strickland. The Court finds 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

given the evidence presented in the state court proceedings. Ground Five is due

to be denied.

F. Ground Six

Petitioner again argues that trial counsel was ineffective for failing to

request a limited jury instruction on the use of impeachment evidence, relying

on the facts as alleged in Ground Five above. Doc. 1 at 16. Petitioner raised this

issue in his Rule 3.850 motion, and the trial court denied the claim, finding as

follows:

Defendant alleges ineffective assistance of

counsel for failing to move for a limiting instruction on

the use of impeachment evidence and relies on the facts

as presented in Ground One. Defendant argues the jury

should have been instructed that it was impeachment

evidence and it was only to be used for evaluating

credibility of witnesses, and not as substantive

evidence of guilt.

Based on the analysis and record cited in Ground

One above, the Court denies Ground Two. Additionally,

the record shows the jurors were properly instructed on

weighing credibility. (Ex. E.) As such, counsel cannot

be held to be deficient. Accordingly, Defendant is not

entitled to relief.

Resp. Ex. K at 549. Petitioner appealed and the First DCA per curiam affirmed

the trial court’s denial without a written opinion. Resp. Ex. O.

The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications. For the reasons

discussed in Ground Five, the Court finds 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 given the evidence

presented in the state court proceedings. Ground Six is due to be denied.

G. Ground Seven

Petitioner asserts that trial counsel was ineffective for failing to

investigate and call a witness to testify at trial that Petitioner’s fingerprints

were not found on the plastic bags that police allegedly found near the path

Petitioner took when trying to flee. Doc. 1 at 17. According to Petitioner, but for

trial counsel’s failure, “there exists a real likelihood that, once the jury would

have discovered that [] Petitioner was not the owner or possessor of said

evidence, the jury would have issued an acquittal.” Id.

Petitioner raised this claim in his Rule 3.850 motion. The trial court

denied the claim, finding the following:

Defendant claims ineffective assistance for

counsel’s failure to investigate and call a witness to

verify Defendant’s fingerprints were not on the

evidence. Defendant maintains counsel should have

investigated and called a witness who would testify

that Defendant’s fingerprints were not on any of the

bags that contained incriminating evidence. Defendant

also argues he suffered prejudice because counsel’s

inaction denied him an opportunity to prove to the jury

that he had never possessed nor touched the baggies

that contained the incriminating evidence.

Upon a review of the State’s Response, in

conjunction with the record attachments provided with

said Response, this Ground is denied. (State Resp.

February 22, 2016 at 8-11); see Barnes, 38 So. 3d at

219-20. Notably, there was overwhelming evidence

against Defendant at trial. Detective Flanagan testified

she engaged in a buy-bust operation on January 27,

2011. (Ex. F at 192.) Law enforcement made contact

with Mr. Cook and followed him in a separate vehicle

to his “spot” at the Timuquana apartment complex. (Ex.

F at 201, 248, 259.) Detective Flanagan testified she

observed a black male, later identified as Defendant,

enter the passenger side of Mr. Cook’s truck. (Ex. F at

201-02.) Mr. Cook retrieved fifty dollars from Detective

Flanagan, which had been photocopied for

identification purposes, and went back to his truck.

(Ex. F at 214-15, 250, 269, 274.) According to testimony

at trial, Mr. Cook returned to the undercover vehicle

moments later with cocaine. (Ex. F at 215, 253, 269,

275.) Detective Flanagan gave the takedown signal,

and the takedown team responded. (Ex. F at 216.)

Detective J.C. Hux (“Detective Hux”) testified he

saw the man in the passenger side of Mr. Cook’s truck

flee. (Ex. F at 270.) Detective A.K. Hiers (“Detective

Hiers”) testified he saw Defendant run from the scene.

(Ex. F at 329.) Detective Hiers testified that while he

was pursing Defendant, he saw Defendant throw

something on the ground. (Ex. F at 329.) Detective

Hiers further testified that he informed the other

officers that he saw Defendant drop something and

gave a location. (Ex. F at 330-31.) Detective B.J. Sawyer

(“Detective Sawyer”) also testified he pursued

Defendant and saw Defendant throw several items on

the ground. (Ex. F at 343.) Detective Sawyer testified

that he searched Defendant when he was apprehended

and found thirty dollars of the “buy money” in

Defendant’s front pocket. (Ex. F at 344.) Detectives also

found narcotics on the ground. (Ex. F at 314, 321-22.)

Notably, Detective Hollins testified he did not believe

the bags had been on the ground for very long because

the grass was wet and the bags were dry. (Ex. F at 315-

17.) As such, Defendant fails to demonstrate any

prejudice under Strickland for counsel’s failure to have

the bags tested for fingerprints given the overwhelming

evidence at trial that he threw the bags on the ground.

Defendant is not entitled to relief.

Resp. Ex. K at 552-54. Petitioner appealed and the First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. O. The

Court addresses this claim in accordance with the deferential standard for

federal court review of state court adjudications.

During her cross-examination of FDLE analyst Bible, trial counsel

elicited testimony that Bible did not test the baggies containing the drugs for

fingerprints nor any other form of DNA evidence during her analysis. Resp. Ex.

C at 173. As such, the jury was presented with the testimony that Petitioner

now alleges any potential defense witness would have testified to. Nevertheless,

the jury found Petitioner guilty of the offenses. Petitioner cannot show that but

for trial counsel’s alleged failure the outcome of his trial would have been

different. Accordingly, upon review of the record, this Court finds 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 given the

evidence presented in the state court proceedings. Ground Seven is due to be

denied.

H. Ground Eight

Petitioner contends that trial counsel was ineffective for failing to

impeach Detective Sawyer with his prior inconsistent statements about

witnessing Petitioner throw incriminating evidence as Petitioner ran from

police. Doc. 1 at 18. Petitioner raised this claim in his Rule 3.850 motion. Resp.

Ex. K at 15-16. The trial court denied the claim, finding as follows:

Defendant claims counsel was ineffective for

failing to impeach law enforcement with inconsistent

statements made during depositions. Specifically,

Defendant cites to the allegedly conflicting statements

made by Detective Sawyer in his deposition compared

to his testimony at trial. At trial, Detective Sawyer

testified he saw Defendant throw something when he

started to turn the corner of the building. Defendant

lists portions of Detective Sawyer’s deposition,

however, where Detective Sawyer states that he lost

sight of Defendant for a couple of minutes when he

turned the corner of the building. Detective Sawyer

later states that when he turned the corner of the

building to face Defendant, he saw Defendant throw

something.

The Court finds counsel was not ineffective for

failing to impeach Detective Sawyer based on the

deposition statements cited in Defendant’s Motion.

Detective Sawyer stated during his deposition and at

trial that he witnessed Defendant throw items to the

ground when he ran from police. As such, counsel could

not impeach Detective Sawyer’s statements as they

were not inconsistent. Moreover, the record shows

Detective Hiers testified Defendant was running

behind the apartment complex and threw something on

the ground. (Ex. F at 329.) As such, the Court finds that

even if counsel had attempted to impeach Detective

Sawyer with his deposition testimony, Defendant fails

to show prejudice under Strickland. Accordingly,

Defendant is not entitled to relief.

Resp. Ex. K at 555-56. Petitioner appealed and the First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. O. The

Court addresses this claim in accordance with the deferential standard for

federal court review of state court adjudications.

In his Petition, Petitioner summarizes the relevant portion of Sawyer’s

deposition and trial testimony that are allegedly inconsistent. Doc. 1 at 18. The

statements, however, are not substantially different, and thus trial counsel was

not deficient for failing to impeach Sawyer with the prior statement. Further,

absent Sawyer’s trial testimony, Deputy Adam Hiers also testified at trial that

he saw Petitioner throw something during his pursuit of Petitioner. Resp. Ex.

C at 329. Accordingly, upon review of the record, this Court finds 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 given the

evidence presented in the state court proceedings. Ground Eight is due to be

denied.

I. Ground Nine

Petitioner alleges that trial counsel was ineffective for failing to move to

suppress evidence of the money because “the [s]tate never provided evidence to

legally establish that the money found on Petitioner was the money law

enforcement allegedly recorded and used for the buy.” Doc. 1 at 20. Petitioner

raised this claim in his Rule 3.850 motion. Resp. Ex. K at 20. The trial court

denied the claim, finding the following:

Defendant claims ineffective assistance based on

counsel’s failure to move to have evidence regarding the

money suppressed from the jury’s consideration when

it was never legally linked to Defendant. Specifically,

Defendant contends counsel “should have moved to

have the evidence regarding the money suppressed

from the jury’s consideration when considering it was

never legally linked to Defendant,” and further argues

that “the State never provided evidence to legally

establish that the money found on Defendant was the

money law enforcement allegedly recorded and used for

the buy.” Defendant admits there were photographs

and testimony from law enforcement officers who

allegedly recorded the serial numbers of the money, but

states no one from JSO testified or provided any

physical evidence to legally establish that the money

recovered was the same money used for the buy.

The record refutes Defendant’s claim in that the

money was linked to Defendant. The money exchanged

between Mr. Cook and Defendant had been marked for

a buy-bust operation and thirty of the fifty dollars was

found in Defendant’s possession. (Ex. F at 214-16, 275-

79, 283.) Mr. Cook testified that he gave the marked

bills to Defendant to buy cocaine, and that Defendant

gave him twenty dollars for gas for Mr. Cook to take

him somewhere. (Ex. F at 293-95.) Detective Charles

Humphrey testified at trial that the money recovered

from Defendant was verified to be the money that was

used in the undercover sale.[](Ex. F at 282-83.) Even if

the money had been excluded, Defendant cannot

establish prejudice as there would still be sufficient

evidence to convict him within the record. Detective

Flanagan testified she engaged in a buy-bust operation

on January 27, 2011. (Ex. F at 192.) Detective Flanagan

testified that she observed a black male, later identified

as Defendant, enter the passenger side of Mr. Cook’s

truck. (Ex. F at 201-02.) According to testimony at trial,

law enforcement saw Defendant hand Mr. Cook a bag.

(Ex. F at 230, 250.) Moments later, Mr. Cook returned

to the undercover vehicle with cocaine. (Ex. F at 215,

253, 269, 275.) Detective Flanagan gave the takedown

signal, and the takedown team responded. (Ex. F at

216.)

Detective Hux testified he saw the man in the

passenger side of Mr. Cook’s truck flee. (Ex. F at 270.)

Detective Hiers testified he saw Defendant run from

the scene. (Ex. F at 329.) Detective Hiers further

testified that while he was pursing Defendant, the

Detective saw Defendant throw something on the

ground. (Ex. F at 329.) Detective Hiers stated that he

informed the other officers that he saw Defendant drop

something and gave a location. (Ex. F at 330-31.)

Detective Sawyer also testified he pursued Defendant

and saw Defendant throw several items on the ground.

(Ex. F at 343.) Detectives found narcotics on the ground

in the specified location. (Ex. F at 314, 321-22.) As·such,

even without the money, there was over[whel]ming

evidence at trial. Defendant is not entitled to relief.

Resp. Ex. K at 559-61. Petitioner appealed and the First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. O. The

Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications. Upon review of the record, this

Court finds 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 given the evidence presented in the state court

proceedings. Ground Nine is due to be denied.

J. Ground Ten

Petitioner argues that trial counsel was ineffective for failing to move to

suppress the following evidence: (A) the marijuana, the hydrocodone, and the

unknown white substance; (B) Cook’s marijuana and pipe; and (C) 0.5 grams of

cocaine. Doc. 1 at 21-26. Petitioner raised these issues in his Rule 3.850 motion.

Resp. Ex. K at 40-45. The trial court denied the claim, finding the following:

Defendant alleges counsel was ineffective for

failing to challenge the sufficiency of the evidence

before it was admitted and by failing to file motions to

suppress evidence not connected to Defendant.

Initially, the Court notes that Defendant may not

challenge the legal sufficiency of the evidence in a 3.850

motion by couching it in terms of ineffective assistance

of counsel claim. See Arbelaez v. State, 775 So. 2d 909,

915 (Fla. 2000). Even considering the claims, the Court

finds Defendant is not entitled to relief, for the reasons

set forth below.

When a defendant alleges counsel was ineffective

for failing to litigate a Fourth Amendment claim, the

defendant must also prove the Fourth Amendment

claim is meritorious and that a motion to suppress

based on the claim would have been granted and the

evidence would have been suppressed. Kormondy v.

State, 983 So. 2d 418, 429-30 (Fla. 2007); Zakrzewski v.

State, 866 So. 2d 688,694 (Fla. 2003).

A. Unknown Substance, Marijuana, and Hydrocodone

Defendant argues that although bags of [an]

unknown substance[], marijuana, and hydrocodone

pills were found on the ground in the grass of the area

he ran through, no witness could identify what

Defendant threw down. A search of the area revealed a

bag containing an unknown substance, bags of

marijuana, and a bag of hydrocodone pills but as no

fingerprints were found on the bags, Defendant

contends that this evidence was inadmissible because

it could not be shown in any way to have ever been in

Defendant’s possession and the chain of custody was

broken.

The Court finds counsel was not ineffective for

failing to object to or file a Motion to Suppress the

substances recovered from the grass. As to Defendant’s

allegation that the[] items were never in his possession,

there was evidence at trial that he possessed these

items. Mr. Cook testified that Defendant possessed and

sold to him cocaine from a plastic bag for fifty dollars.

(Ex. F at 284-97.) Detective Hiers testified that

following the drug exchange, while he was pursing

Defendant, the Detective saw Defendant throw

something on the ground. (Ex. F at 329.) Detective

Sawyer testified he pursued Defendant and saw

Defendant throw several items on the ground. (Ex. F at

343.) Detective Sawyer testified that he searched

Defendant when he was apprehended and found thirty

dollars of the “buy money” in his front pocket. (Ex. F at

344.) Detectives also found narcotics on the ground.

(Ex. F at 314, 321-22.)

Next, Defendant maintains the chain of custody

was broken because different detectives searched the

area a period of time after Defendant’s arrest.

According to testimony at trial, Defendant was arrested

after a short pursuit by Detective Hiers a short distance

away in a parking lot near the fence that Defendant

jumped just after he threw the bags to the ground. (Ex.

F at 328-31.) Detective Hollins testified that he and

Detective Hiers chased Defendant behind the building.

(Ex. F at 313.) Detective Hiers further testified that he

informed the other officers that he saw Defendant drop

something and gave a location. (Ex. F at 330-31.)

Detective Hollins testified he did not believe the bags

had been on the ground for very long because the grass

was wet and the bags were dry. (Ex. F at 315-17.)

Furthermore, counsel thoroughly cross-examined law

enforcement to create doubt as to how long the drugs

had been on the ground. (Ex. F at 322-24.)

Notably, Defendant admitted that he

participated in the drug deal to law enforcement, and

stated that the drugs found on the ground belonged to

him. (Ex. M.) Accordingly, based on the testimony

presented at trial in conjunction with statements made

by Defendant, there was no reasonable basis for

counsel to object or file a motion to suppress, as there

was evidence [] that these items had been in

Defendant’s possession and that law enforcement

recovered the items from the ground within a short

time after Defendant’s arrest. Defendant is not entitled

to relief.

B. Co-Defendant’s Marijuana and Pipe

Defendant maintains counsel knew or should

have known that the evidence of Mr. Cook’s marijuana

and pipe were irrelevant to his case. Defendant

contends that this evidence was prejudicial in this case

because it was evidence of other crimes.

The Court finds counsel was not ineffective for

failing to make a meritless objection. As discussed in

the State’s Response, the marijuana and pipe found on

Mr. Cook were necessary to establish the entire context

of the instant offense. See generally State v. Rambaran,

975 So. 2d 519, 524 (Fla. 3d DCA 2008). Specifically,

that Mr. Cook knew how to obtain drugs because he had

drugs on his person. (Ex. F at 290-92.) The Court also

adopts the additional arguments contained within the

State’s Response, in conjunction with the record

attachments provided with said Response. (State Resp.

February 22, 2016 at 14-19); see Barnes, 38 So. 3d at

219-20. Accordingly, Defendant is not entitled to relief.

C. .5 Grams of Cocaine

Defendant maintains counsel was ineffective for

failing to challenge the use of the .5 grams of cocaine as

evidence. Defendant alleges that counsel knew or

should have known that some of the cocaine evidence

was consumed during the testing process and, because

the State admitted .5 grams of cocaine at trial, it was

clear that tampering occurred with the cocaine

evidence.

Upon a review of the State’s Response, in

conjunction with the record attachments provided with

said Response, this allegation is denied. (State Resp.

February 22, 2016 at 14-19); see Barnes, So. 3d at 219-

20.

Conclusion

Defendant has failed to prove his Fourth

Amendment claim is meritorious, that such a motion to

suppress would have been granted, and that such

evidence would have been suppressed. Based on all the

evidence presented, the jury was free to draw a logical

inference that the bags containing drugs belonged to

Defendant, that Defendant sold drugs to the

undercover detectives through Mr. Cook, who testified

at trial about the details of the exchange, and that

certain bags tested positive as cocaine and hydrocodone

by FDLE. (Ex. F.)

Based on the record and evidence presented, the

Court finds Defendant failed to prove a motion to

suppress on these grounds would have been granted

and evidence suppressed. Furthermore, counsel stated

during a Nelson hearing that she filed a motion to

suppress and felt that was the only appropriate motion

to suppress to file. (Ex. K at 8.) The Court finds

Defendant fails to prove the two-prong test under

Strickland. As such, the Court denies Ground Fifteen.

Resp. Ex. K at 569-73. Petitioner appealed and the First DCA per curiam

affirmed the trial court’s denial without a written opinion. Resp. Ex. O. The

Court addresses this claim in accordance with the deferential standard for

federal court review of state court adjudications.

Police witnessed Petitioner throwing the hydrocodone, marijuana, and

the bag containing the white powdery substance while he ran from police.

Cook’s testimony about his own possession of marijuana provided context and

amounted to relevant evidence for which the jury could consider when

evaluating his credibility as a participant in the transaction. And as to

Petitioner’s allegation regarding the “0.5 grams of cocaine,” the state explained

in its response to the Rule 3.850 motion that Petitioner was “making

assumptions based upon tracking logs that were not submitted into evidence or

discussed at trial.” Resp. Ex. K at 306. Notably, the property storage card for

the cocaine used during the sale or delivery described the item as

“cocaine/powder with JSO package; 0.50gr,” which was the weight of the plastic

bag and the substance for which it contained. Id. The net weight of the cocaine

without the bag was .28 grams, and after Bible extracted a sample for testing,

the weight equaled 0.2 grams. Id. at 307. Upon review of the record, this Court

finds 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 given the evidence presented in the state court proceedings. Ground

Ten is due to be denied.

K. Grounds Eleven through Sixteen

In Grounds Eleven through Sixteen, Petitioner restates the ineffective

assistance of trial counsel claims already alleged and discussed in Grounds Five

through Ten of this Order and challenges the First DCA’s affirmance of the trial

court’s denial of those respective claims.3 See Doc. 1 at 10-22. The Court denies

these claims for the reasons already discussed.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED

with prejudice.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3 In their Response, Respondents construe Grounds Eleven through Sixteen of

the Petition to be the same claims as those raised in Grounds Five through Ten. Resp.

at 89. In his Reply, Petitioner does not challenge Respondents’ construction and

appears to concede this fact. See generally Doc. 19.

3. If Petitioner appeals this Order, 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.*

DONE AND ORDERED at Jacksonville, Florida, this 18th day of

August, 2021.

□ Cirmotheg Corrig oN

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Curtis Louis Robinson, #303717

counsel of record

4 The Court should issue a certificate of appealability only if Petitioner makes

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(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)). Here, after consideration of

the record as a whole, the Court will deny a certificate of appealability.

36