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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ALBERT JASON CARTER,

Petitioner,

v. Case No. 3:18-cv-888-TJC-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Albert Jason Carter, 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

four state court (Duval County, Florida) judgments rendered in: State v. Carter,

2009-CF-15483; 2009-CF-15529; 2009-CF-16025; and 2010-CF-1910. Id. at 1.

Petitioner is serving a cumulative twenty-year term of incarceration.

Respondents filed a Response raising one argument – that the Petition is due

to be dismissed with prejudice because it is untimely filed. See generally Doc. 8

(Resp.).1 Petitioner replied asserting that the Petition is timely filed. See Doc.

10. This case is ripe for review.

II. One-Year Limitations Period

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

amended 28 U.S.C. § 2244 by adding a one-year period of limitation, which

generally runs from “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.”

28 U.S.C. § 2244(d). The section further provides, “The time during which a

properly filed application for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.” Id.

On January 27, 2010, Petitioner entered an open plea of guilty to

possession of a controlled substance (2009-CF-15483), grand theft (2009-CF-

15529), and burglary (2009-CF-16025). Resp. Exs. A3, B3, C3. On March 30,

2010, Petitioner entered an open plea of guilty to burglary and grand theft

(2010-CF-1910). Resp. Exs. D3-D4. And on May 16, 2011, he entered an open

plea of guilty to perjury in an official proceeding (2009-CF-16025). Resp. Exs.

C5-C6. On May 20, 2011, the trial court sentenced Petitioner to a five-year term

of incarceration in 2009-CF-15483; a five-year term in 2009-CF-15529; a fifteen-

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

“Resp. Ex.”

year term for the burglary conviction and a consecutive five-year term for the

perjury conviction in 2009-CF-16025; and a fifteen-year term for the burglary

conviction and a five-year term for the grand theft conviction in 2010-CF-1910.

Resp. Exs. A4, B4, C6, D4. Petitioner did not seek a direct appeal of any

judgment of conviction, and thus his judgments and sentences became final

upon the expiration of the time to file a notice of appeal, Monday, June 20,

2011.2 See Fla. R. App. P. 9.140(b)(3). Petitioner’s one-year statute of limitations

for each state court judgment started the next day, June 21, 2011.

Following the June 21, 2011, one-year start date, the procedural history

of each case gets complicated, and for the sake of brevity, the Court merely

summarizes the relevant filings in each state court docket.3 On day forty-one of

2 The thirtieth day fell on a Sunday, June 19, 2011, so Petitioner had until the

following Monday, June 20, 2011, to file a notice of appeal.

3 The captions of Petitioner’s pro se state postconviction motions appear to list

all four of his state court cases; however, not every motion appears on each state court

docket. Also, the captions of the trial court’s orders disposing of each postconviction

motion appear to list all four of Petitioner’s state court cases, and every order appears

on each state court docket regardless of a particular motion’s presence on that docket.

These discrepancies raise questions about whether those motions not appearing on all

dockets were “properly filed” for tolling purposes. Nevertheless, because the parties do

not make such arguments, the Court need not decide that issue; and for purposes of

this Order, the Court takes judicial notice of Petitioner’s state court dockets when

discussing timeliness. See Fed. R. Evid. 201(b)(2) (a court may “judicially notice a fact

that is not subject to reasonable dispute because it . . . can be accurately and readily

determined from sources whose accuracy cannot be reasonably questioned”); Paez v.

Sec’y, Fla. Dep’t of Corr., 947 F.3d 649 (11th Cir. 2020) (“State court records of an

inmate’s postconviction proceedings generally satisfy” the standard for judicial

notice.).

Petitioner’s one-year in 2009-CF-15529, 2009-CF-15483, and 2009-CF-16025,

Petitioner’s statute of limitations was tolled on August 1, 2011, when Petitioner

filed a pro se Florida Rule of Criminal Procedure 3.850 motion.4 See Carter,

2009-CF-15529, 2009-CF-15483, 2009-CF-16025. The trial court granted

Petitioner’s motion to dismiss his August 1, 2011, Rule 3.850 motion without

prejudice on March 12, 2012. Resp. Ex. G1 at 16-17. Thus, in 2009-CF-15529,

2009-CF-15483, 2009-CF-16025, Petitioner’s one-year resumed the next day,

March 13, 2012.

According to each state court docket, on day 106 of his one-year in 2009-

CF-15529 and 2009-CF-16025, Petitioner’s limitations period was tolled on May

17, 2012, when Petitioner filed another Rule 3.850 motion in those cases.5 See

Carter, 2009-CF-15529, 2009-CF-16025. Having not been tolled by the May 17,

2012, Rule 3.850 motion, the limitations period in 2009-CF-15483 was then

tolled on day 133 when Petitioner filed another Rule 3.850 motion on June 13,

2012. See Carter, 2009-CF-15483. Petitioner also filed the June 13, 2012,

motion in 2010-CF-1910, which having been the first postconviction motion

appearing on the state court docket in that case, was day 358 of the case’s one-

year. See Carter, 2010-CF-1910.

4 Petitioner’s August 1, 2011, Rule 3.850 motion does not appear on the state

court docket for 2010-CF-1910.

5 Neither party mentions this May 17, 2012, motion in their briefs, and this

motion does not appear on the state court dockets for 2009-CF-15483 or 2010-CF-1910.

Then, in each of the four cases, on May 17, 2013, Petitioner filed a generic

motion to dismiss all prior Rule 3.850 motions and simultaneously filed an

amended Rule 3.850 motion. Resp. Ex. G1 at 30-35. In the same order, the trial

court granted Petitioner’s motion to dismiss and summarily denied the May 17,

2013, amended Rule 3.850 motion. Resp. Ex. I. Petitioner appealed, and the

First District Court of Appeal issued its mandate affirming the trial court’s

summary denial on November 30, 2015. Resp. Ex. J. Petitioner’s one-year

resumed in all cases the next day, December 1, 2015. Seven days later, on

December 8, 2015, Petitioner’s one-year expired in 2010-CF-1910.

On day 297 in 2009-CF-15529 and 2009-CF-16025, and day 324 in 2009-

CF-15483, Petitioner tolled his one-year by filing a Florida Rule of Criminal

Procedure 3.800(a) motion on June 9, 2016. Resp. Ex. L. While his Rule 3.800(a)

proceedings were pending, Petitioner, with the trial court’s permission, filed his

second amended Rule 3.850 motion in each case. Resp. Ex. G1 at 55-83.

Petitioner’s Rule 3.800(a) proceedings concluded through the First DCA’s

November 9, 2017, mandate, Resp. Ex. M; and his second amended Rule 3.850

proceedings concluded through the First DCA’s June 4, 2018, mandate, Resp.

Ex. H. Petitioner’s one-year in 2009-CF-15529, 2009-CF-15483, and 2009-CF-

16025 resumed the next day, June 5, 2018. On July 17, 2018, day 366, one day

after the expiration of his one-year in 2009-CF-15483, and day 339 of his one-

year in 2009-CF-15529 and 2009-CF-16025, Petitioner initiated this action. See

Doc. 1.

Respondents make a blanket argument that Petitioner initiated this

action one day after the expiration of his federal statute of limitations. See

generally Resp. In support of that assertion, Respondents appear to only outline

the docket history for 2009-CF-15483. But contrary to Respondents’ summary,

a thorough review of Petitioner’s state court dockets shows the procedural

history of Petitioner’s collateral filings in each case cannot be considered in

concert. In his Reply, Petitioner also seems to overlook the differences in his

collateral filings for each case, and simply argues the Petition is timely filed

because he is entitled to the additional ninety-day period for filing a petition for

writ of certiorari with the United States Supreme Court following the expiration

of time to seek a direct appeal with the First DCA. See Doc. 10 at 3. However,

because Petitioner failed to seek a direct appeal in any case, he is not entitled

to that ninety-day period. See Close v. United States, 336 F.3d 1283, 1285 (11th

Cir. 2003) (“According to rules of the Supreme Court, a petition for certiorari

must be filed within 90 days of the appellate court’s entry of judgment on the

appeal or, if a motion for rehearing is timely filed, within 90 days of the

appellate court’s denial of that motion.” (emphasis added)).

That said, despite the parties’ miscalculation and Respondents’ decision

to limit their Response to a timeliness argument, the Court, in its discretion,

finds the administration of justice is better served by reaching the merits of the

Petition. See Day v. McDonough, 547 U.S. 198, 199 (2006) (noting that a statute

of limitations defense is not jurisdictional and holding “a district court has

discretion to decide whether the administration of justice is better served by

dismissing the case on statute of limitations grounds or by reaching the merits

of the petition”). While the Court could have ordered Respondents to file a

supplemental response on the merits, there is “no dispositive difference between

that route, and the one taken here.” Id. at 209; see also Fontenot v. Crow, 4

F.4th 982, 1058 (10th Cir. 2021) (holding that despite the state’s procedural

motion to dismiss, Rules 4 and 5 of the Rules Governing Section 2254 Cases

indicate that a district court is entitled to rule on the merits of a petition after

giving the state an open-ended chance for response). Further, Petitioner fully

exhausted his claims in state court, and he analyzes the deferential standard

set forth in AEDPA when presenting his claims in the Petition; therefore,

Petitioner will not be prejudiced by the Court’s deferential review. See Doc. 1.

As such, the Court addresses the claims raised in the Petition. See, e.g., Scott

v. Sec’y, Dep’t of Corr., 8:15-cv-1290-T-36MAP, 2018 WL 1519046, at *4 n.1

(M.D. Fla. Mar. 28, 2018) (addressing § 2254 habeas petition on the merits

because the respondents agreed the petition was untimely with respect to the

conviction on one of the petitioner’s state court cases but was timely with

respect to the petitioner’s conviction in a second state court case).

III. Governing Legal Principles

A. Standard Under AEDPA

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). Where 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

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 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.

The two-part Strickland test applies to challenges to the validity of guilty

pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,

58 (1985). The petitioner must still demonstrate that counsel’s performance was

deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dept. of Corr., 776 F.3d 1209,

1218 (11th Cir. 2015). To establish prejudice, however, the petitioner “must

show that there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.”

Hill,474 U.S. at 59 (footnote omitted); Lynch, 776 F.3d at 1218.

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).

IV. The Petition

Petitioner raises five Grounds premised on allegations of ineffective

assistance of counsel, in which Petitioner challenges the voluntariness of his

pleas and the factual basis supporting his pleas. See generally Doc. 1. To begin,

the Court notes that Petitioner’s pleas waive many federal constitutional rights,

including the right to a jury trial, the right to a speedy trial, and the right to

require the state to prove the crime beyond a reasonable doubt. Tollett v.

Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty

plea.”); Tiemens v. United States, 724 F.2d 928, 929 (11th Cir. 1984) (“[A] guilty

plea waives all nonjurisdictional defects occurring prior to the time of the plea,

including violations of the defendant’s rights to a speedy trial and due

process.”).

Further, Petitioner’s solemn declarations during his plea colloquies carry

a strong presumption of truth. Blackledge v. Allison, 431 U.S. 63, 74 (1977); see

also Winthrop-Redin v. United States, 767 F.3d 1210, 1217 (11th Cir. 2014)

(stating that a defendant who makes statements under oath at a plea colloquy

bears a heavy burden to show his statements were false). Thus, Petitioner’s

representations at the plea hearings “constitute a formidable barrier in any

subsequent collateral proceedings.” Id. at 73-74; see also Stano v. Dugger, 921

F.2d 1125, 1152 (11th Cir. 1991) (recognizing that the record of the plea

proceedings may contradict any subsequent claim that counsel’s representation

was deficient). Considering the difficult barrier Petitioner must overcome, the

Court considers each of Petitioner’s Grounds in turn below. In doing so, the

Court finds that Petitioner’s “subsequent presentation of conclusory allegations

unsupported by specifics [are] subject to summary dismissal, as are contentions

that in the face of the record are wholly incredible.” Allison, 431 U.S. at 74.

A. Ground One

Petitioner argues that his trial counsel was ineffective for advising him

to enter an open plea of guilty to burglary in 2009-CF-16025. Doc. 1 at 4.

According to Petitioner, before his plea, he advised counsel that he did not enter

the store, nor was he on the property during the burglary, but was instead

merely sitting in his vehicle serving as a “lookout” for others who were

committing the crime. Id. But despite his lack of participation, he alleges that

his trial counsel advised him to enter the open plea even though his actions did

not meet the elements of burglary. Id. at 4-5.

Petitioner raised this claim in his second amended Rule 3.850 motion.

Resp. Ex. G1 at 56-60. The trial court summarily denied the claim, finding the

following:

Defendant argues he informed counsel there was

no evidence indicating Defendant had entered the

structure or property of Pantry, Inc. nor was there

evidence showing Defendant had damaged the

structure or property as alleged in the information.

However, counsel told him that it was in his best

interest to enter a plea, because there was no available

defense. Defendant further argues counsel should have

objected when the Court found a factual basis for the

plea, because there was no evidence, testimony, proffer

of evidence, statements, or reference to the record to

sufficiently satisfy the dictates of Florida Rule of

Criminal Procedure 3.172(a).

The record reflects in case 2009-CF-16025,

Defendant admitted to police he participated in the

burglary by being a look-out while a co-defendant

actually burglarized the store. While Defendant may

not have actually entered the store, his participation in

aiding his co-defendant that did enter the store

sufficiently establishes the elements of burglary for

Defendant pursuant to the principal theory. See §

777.011, Fla. Stat. (“Whoever commits any criminal

offense against the state, whether felony or

misdemeanor, or aids, abets, counsels, hires, or

otherwise procures such offense to be committed, and

such offense is committed or is attempted to be

committed, is a principal in the first degree and may be

charged, convicted, and punished as such, whether he

or she is or is not actually or constructively present at

the commission of such offense.”). Accordingly, as a

principal, Defendant’s proposed defense would not have

been viable.

During the plea colloquies on January 27, 2010

and March 30, 2010, Defendant acknowledged he was

waiving his right to trial by jury and all of its attached

rights. Defendant also testified that no one threatened

or coerced him into entering the plea and that he was

satisfied with his attorney. Notably, Defendant also

admitted he was guilty of the charged crimes. The

Court also notes Defendant could have received a

maximum sentence of thirty years in prison on the

burglary charges, but only received fifteen years in

prison on those charges. Accordingly, based on the lack

of [] viability of Defendant’s proposed defense, his

statements to the Court, and the reduced sentence he

received, the Court finds there is no reasonable

probability Defendant would have rejected this plea.

Grosvenor, 874 So. 2d at 1181-82.

Concerning the factual basis, “[b]efore accepting

a plea of guilty or nolo contendere, the trial judge shall

determine that the plea is voluntarily entered and that

a factual basis for the plea exists.” Fla. R. Crim. P.

3.172(a). A court may satisfy the requirements of rule

3.172(a) by, among other things, receiving the

statements and admissions made by a defendant, his or

counsel, or the prosecutor. Williams v. State, 316 So. 2d

267, 273 (Fla. 1975). Notably, failing to determine a

factual basis for the plea does not render the plea void

unless prejudice can be shown. Fla. R. Crim. P. 3.172(j).

The record reflects the State gave a factual

statement in support of the burglary charges.

Therefore, a proper factual basis was proffered in

support of the plea. Williams, 316 So. 2d at 273.

Accordingly, counsel cannot be deemed ineffective for

failing to raise a meritless argument. Hitchcock v.

State, 991 So. 2d 337, 361 (Fla. 2008). For the above

stated reasons, Defendant is not entitled to relief on

Ground One.

Resp. Ex. G1 at 87-89 (record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the summary denial without a written opinion.

Resp. Ex. H. The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications.

Petitioner is challenging his conviction in 2009-CF-16025 for burglary in

the first degree. Section 810.02(2)(c)2, Florida Statutes, provides that a person

may be guilty of burglary “if, in the course of committing the offense, the

offender . . . [e]nters an occupied or unoccupied dwelling or structure, and . . .

[c]auses damage to the dwelling or structure, or property within the dwelling .

. . in excess of $1,000.”6 Under Florida law, “[a] defendant is guilty as a principal

if he ‘aids, abets, counsels, hires, or otherwise procures such offense to be

committed, and such offense is committed or is attempted to be committed.’”

Wade v. State, 156 So. 3d 1004, 1017 (Fla. 2014) (quoting § 777.011, Fla. Stat.).

Further, “it is immaterial whether the indictment or information alleges that

the defendant committed the crime or was merely aiding or abetting in its

6 In 2009-CF-16025, Petitioner also pled guilty to perjury stemming from a false

statement Petitioner made under oath in an official proceeding on January 7, 2011.

Resp. Ex. C4. Petitioner does not challenge that conviction in this action.

commission, so long as the proof establishes that he was guilty of one of the acts

denounced by the statute.” State v. Roby, 246 So. 2d 566 (Fla. 1971).

A review of the arrest and booking report for the 2009-CF-16025 burglary

shows that on October 5, 2009, police responded to “an active audible alarm” at

a convenience store located at 6003 Roosevelt Boulevard. Resp. Ex. C1 at 2.

Upon arrival, police observed that the front door of the store had been forced

open and the A.T.M. machine had been removed from the store. Id. The video

surveillance showed multiple individuals breaking into the store and taking the

A.T.M. while another individual waited outside and then subsequently helped

load the A.T.M. into a vehicle before fleeing. Id. According to the report, this

incident was the third burglary fitting the modus operandi of a particular

organization of individuals. Id.

Police later arrested Petitioner on an unrelated incident. Id. After

acknowledging his constitutional rights, Petitioner advised police that on

October 5, 2009, he agreed to drive up and down Roosevelt Boulevard as a

lookout while “Brian’ hit the store with his brother” and was tasked with

notifying Brian if police were in the area. Id. Petitioner stated that they used a

stolen vehicle to conduct the burglary and he helped dump the vehicle

afterwards. Id. The state then charged Petitioner with burglary under §

810.02(2)(c)2. Resp. Ex. C2. Petitioner entered a plea of guilty to the charge,

and in doing so advised the trial court that he was entering his plea because he

was, in fact, guilty of the burglary. Resp. Ex. E at 7. In entering his plea,

Petitioner acknowledged, under oath, that he was waiving his right to require

the state to prove his guilt beyond a reasonable doubt. Id. at 6. He stated that

his attorney went over the plea form with him, answered all his questions to his

satisfaction, and that he was satisfied with her representation. Id. at 7. The

trial court then accepted a factual basis for the plea and found that Petitioner

freely and voluntarily entered his plea. Id. at 8-9.

The record evidence and Petitioner’s plea colloquy refute Petitioner’s

claim that he did not participate in the burglary and likewise refute his

allegations that his trial counsel was deficient in advising him to enter a guilty

plea. Upon thorough review of the record and the applicable law, the Court finds

that the state court’s decision to deny Petitioner’s claim was neither contrary to

nor an unreasonable application of Strickland, and it is not based on an

unreasonable determination of the facts considering the evidence presented to

the state court. See 28 U.S.C. § 2254(d). This Ground is denied.

B. Ground Two

Petitioner asserts that his trial counsel was ineffective because she failed

to advise Petitioner of the elements of the charged burglaries in 2009-CF-16025

and 2010-CF-1910; failed to advise him of the available defenses to these

charges; and failed to investigate “mitigating evidence.” Doc. 1 at 7. As alleged

in Ground One, Petitioner maintains that he was merely the “lookout” for the

burglary in 2009-CF-16025. Id. And as to case 2010-CF-1910, Petitioner

contends he simply drove “a ‘front end loader’ into the side of the building in

order to create a hole in the structure,” so another individual could enter, and

that Petitioner never entered the structure. Id. Petitioner argues that he

advised counsel about his limited participation, and had counsel advised him

that he did not meet the elements of the burglary offenses, he would have

proceeded to trial. Id.

Petitioner raised this claim in his second amended Rule 3.850 motion.

Resp. Ex. G1 at 7-8. The trial court summarily denied the claim as follows:

Defendant contends counsel failed to inform him

about the elements of burglary. Specifically, he states

his counsel never told him Defendant would have to

actually enter the structure with the intent to commit

an offense therein. According to Defendant, he had

available defenses to the burglary charges because he

never went into the structure and had no specific intent

to commit an offense in the structure. Had counsel

properly informed him of the elements and these

defenses to the charge, Defendant claims he would have

proceeded to trial instead of entering the plea.

As noted above in the Court’s analysis of Ground

One, Defendant admitted to being an accessory to his

co-defendant’s crime in case 2009-CF-16025. Likewise,

in case 2010-CF-01910, Defendant admitted to actively

participating in the burglary. Therefore, pursuant to

the principal theory, his co-defendant’s actions of

entering the structure with the intent of taking

property are imputed on to Defendant. Defendant’s

theorized defense in Ground Two would therefore not

have been viable. The non-viability of the defense,

coupled with Defendant’s statement to the Court

during the colloquy, including admitting his guilt, and

the sentence he received in comparison to the

maximum sentence possible, demonstrate there is no

reasonable probability Defendant would have foregone

the plea to proceed to trial. Grosvenor, 874 So. 2d at

1181-82. Accordingly, Defendant has failed to

demonstrate deficient performance or prejudice and is

therefore not entitled to relief on Ground Two.

Resp. Ex. G1 at 89 (record citations omitted). Petitioner appealed, and the First

DCA per curiam affirmed the summary denial without a written opinion. Resp.

Ex. H. The Court addresses the claim in accordance with the deferential

standard for federal court review of state court adjudications.

In Ground One above, the Court discusses the evidence and factual basis

supporting Petitioner’s plea and conviction for burglary in 2009-CF-16025, and

it relies on that discussion here. As to 2010-CF-1910, Petitioner is challenging

another conviction for burglary in the first degree. Resp. Exs. D2-D3. According

to the arrest and booking report for that case, in December 2008, police were

called to the scene of a burglary at Premier Pharmacy where they observed

severe damage to the structure. Resp. Ex. D1. Police watched the surveillance

video, which showed two hooded and gloved suspects. Id. One of the suspects

drove a front-end loader into the side of the structure, creating a large hole,

while the second suspect crawled into the hole to enter the structure. Id. The

front-end loader was left at the scene and when police conducted a walkthrough

of the surrounding area, they found clothing believed to have been used by one

of the suspects. Id. Police submitted the clothing for DNA testing and received

a “DNA hit.” Id.

In February 2010, while Petitioner was in custody on other charges, police

questioned Petitioner about the December 2008 burglary. Id. He first denied

involvement, but when police confronted him with the DNA evidence, Petitioner

admitted to stealing the front-end loader and driving it through the pharmacy

while his accomplice went inside and stole drugs. Id. The state then charged

Petitioner with burglary, and he entered an open plea of guilty to the charge.7

Resp. Ex. F. In entering his plea, Petitioner acknowledged, under oath, that he

was waiving his right to require the state to prove his guilt beyond a reasonable

doubt. Id. at 5. Petitioner also advised the trial court that he was entering his

plea because he was, in fact, guilty of the charged offense. Id. at 6. He stated

that his attorney went over the plea form with him, answered all his questions

to his satisfaction, and that he was satisfied with her representation. Id. at 7.

The trial court then accepted a factual basis for the plea and found that

Petitioner freely and voluntarily entered his plea with full understanding of its

nature and consequences. Id. at 8.

The record and Petitioner’s plea colloquy refute Petitioner’s claims that

his trial attorney failed to advise him of the facts supporting the burglaries or

7 The state also charged Petitioner with grand theft for the taking of the front-

end loader and Petitioner pled guilty to that charge as well.

that his alleged minimal participation would have been a valid defense. Thus,

upon thorough review of the record and the applicable law, the Court finds that

the state court’s decision to deny Petitioner’s claim was neither contrary to nor

an unreasonable application of Strickland, and it is not based on an

unreasonable determination of the facts given the evidence presented to the

state court. See 28 U.S.C. § 2254(d). This Ground is denied.

C. Ground Three

Petitioner contends that his trial counsel was ineffective for advising him

to enter an open plea of guilty to grand theft in case 2009-CF-15529. Doc. 1 at

10. According to Petitioner, before his plea, he advised counsel that “he did not

have anything to do with the actual taking of the pills that had been stolen, and

did not know who was responsible for the theft.” Id. He alleges that he was

never a suspect in the theft and the only evidence that linked him to the pills

was that police found the pills in the bedroom Petitioner shared with his live-in

girlfriend. Id. at 10-11.

In ground three and ground six of his second amended Rule 3.850 motion,

Petitioner challenged the sufficiency of his grand theft conviction in 2009-CF-

15529. Resp. Ex. G1 at 63-67, 75-77. The trial court summarily denied the

claims, explaining as follows:

Defendant asserts counsel coerced him into

pleading guilty to the offenses of possession of

clonazepam and theft, while counsel also failed to object

to an insufficient factual basis for these crimes.

According to Defendant, there was no evidence to

support any element of this offense, but counsel advised

Defendant it was in his best interest to plea because

there was no defense. He further argues counsel should

have objected because the factual basis presented did

not satisfy the dictates of Florida Rule of Criminal

Procedure 3.172(a).

The record reflects the grand theft charge in case

2009-CF-15529 alleged Defendant stole clonazepam

from a truck deliver[ing] medications to a pharmacy.

Police later raided Defendant’s home and found him to

be in possession of the same drugs stolen from the

pharmacy, which form the basis of his possession of a

controlled substance charge in case 2009-CF-15483.

Accordingly, the arrest and booking reports for each of

these cases, indicate Defendant had stolen goods in his

possession. While he told police he bought them off the

street from some other man, he was unable to provide

a name or even the race of this other man.

The Court notes “[p]roof of possession by an

accused of property recently stolen by means of a

burglary, unless satisfactorily explained, may justify a

conviction of burglary if the circumstances of the

burglary and of the possession of the stolen property

convince [a jury] beyond a reasonable doubt that the

defendant committed the burglary.” Fla. Std. Jury

Instr. (Crim.) 13.1. As stated above, Defendant was in

possession of the exact pills stolen from the pharmacy

and he could not satisfactorily explain his possession of

the pills to police at the time of his arrest. The Court

finds Defendant’s defense would not have been viable

based on these facts. The non-viability of the defense,

coupled with Defendant’s statement to the Court

during the colloquy, including admitting his guilt, and

the sentence he received in comparison to the

maximum sentence possible, demonstrate there is no

reasonable probability Defendant would have foregone

the plea to proceed to trial. Grosvenor, 874 So. 2d at

1181-82.

The record reflects the State gave a factual

statement in support of these charges. Therefore, a

proper factual basis was proffered in support of the

plea. Williams, 316 So. 2d at 273. Accordingly, counsel

cannot be deemed ineffective for failing to raise a

meritless argument. Hitchcock, 991 So. 2d at 361 (Fla.

2008). For the above stated reasons, Defendant is not

entitled to relief on Ground Three.

. . . .

Defendant contends counsel coerced him into

pleading guilty to the offenses of possession and theft

of clonazepam. According to Defendant, there was no

evidence to support any element of this offense, but

counsel advised Defendant it was in his best interest to

plea because there was no defense. Defendant further

contends counsel failed to inform him that a lack of

intent was an available defense.

To the extent Defendant realleges allegations

previously raised in Ground Three, the Court hereby

denies those arguments based on its analysis of Ground

Three above. Regarding Defendant’s argument counsel

failed to inform him specific intent was an element of

grand theft, Defendant admitted his guilt as to both the

grand theft charge and the possession charge.

Therefore, as the basis of this claim is that Defendant

lied under oath, he is not entitled to relief on this claim.

Polk, 56 So. 3d at 808; see also Rivero v. State, 121 So.

3d 1175, 1178 (Fla. 3d DCA 2013) (holding “[b]ecause

the defendant in the instant case clearly stated under

oath during his plea colloquy that he was satisfied with

the services of his attorney, he was not being pressured

or coerced to accept the State’s offered plea, and he was

pleading guilty because he was guilty and for no other

reason, he cannot now claim that his plea was the

product of coercion.”). Moreover, based on his

statements under oath, the lenient sentence he

received, and the fact he was found in possession of

stolen property and was unable to properly explain it,

the Court finds there is no reasonable probability

Defendant would have foregone his plea agreement and

proceeded to trial. Grosvenor, 874 So. 2d at 1181-82.

For these reasons, Ground Six is without merit.

Resp. Ex. G1 at 90-91, 93-94. Petitioner appealed, and the First DCA per curiam

affirmed the summary denial without a written opinion. Resp. Ex. H. The Court

addresses the claim in accordance with the deferential standard for federal

court review of state court adjudications.

The record shows that on November 13, 2009, police responded to a grand

theft at Panama Pharmacy. Resp. Ex. B1. When they arrived, an employee of

Delivery Specialists advised police that she had pulled her delivery truck to the

back of the pharmacy and began unloading several storage bins from the truck

when an unknown individual ran up and grabbed three of the bins, some of

which contained controlled medication. Id. The individual ran back to a truck

and threw the bins in the back before jumping in the passenger seat and fleeing

the parking lot. Id. That same day, another officer was dispatched in response

to a stolen vehicle. Id. That officer recovered one of the bins from the stolen

vehicle, but the other bins containing the controlled medications were not

located at that time. Id.

On November 30, 2009, police arrived at Petitioner’s home, which he

shared with his live-in girlfriend, to investigate a burglary. Resp. Ex. A1.

Petitioner agreed to a search of his room, during which police found, inter alia,

500 1mg Clonazepam pills and 100 2mg Clonazepam pills. Id. Police confirmed

the Clonazepam found in Petitioner’s home were the same pills taken during

the November 23, 2009, theft. Id. Petitioner was arrested and when questioned

by police, Petitioner advised that he bought the pills “from some guy a few

weeks ago.” Id. When police asked “‘from whom’ he began to stutter and got

tongue tied. He would not provide a name or race and stated ‘some dude a few

weeks ago, I don’t know him.’” Resp. Ex. B1. The state then charged Petitioner

with grand theft in the third degree under § 812.014(2)(c), Florida Statutes, in

2009-CF-15529.8 Resp. Ex. B2. The Information provided that Petitioner “did

knowingly obtain or use or endeavor to obtain or use Clonazepam pills, the

value of $300 or more but less that $20,000, the property of Delivery Specialists,

with intent to either temporarily or permanently deprive Delivery Specialists

of a right to the property or benefit therefrom.” Id.

Petitioner then entered an open plea of guilty to the grand theft charge.

Resp. Ex. E. During his colloquy, Petitioner acknowledged, under oath, that by

entering his plea, he was waiving his right to have the state prove beyond a

reasonable doubt that he committed the offense. Id. at 6. He advised the trial

court that no one threatened, coerced, or promised him anything in exchange

8 The state charged Petitioner with possession of the Clonazepam in 2009-CF-

15483. Resp. Ex. A2.

for his plea, and that he was, in fact, guilty of committing the offense. Id. at 6-

7. He attested that his attorney advised him of the nature of the offense and

that he was satisfied with her representation. Id. at 7. The trial court then

acknowledged that a factual basis existed for the plea and found that Petitioner

voluntarily and freely entered his plea with full knowledge of its consequences.

Id. at 8-9.

Petitioner’s sworn statements at his plea hearing and the circumstantial

evidence supporting his plea refute Petitioner’s claims that his guilty plea was

involuntary and that his attorney misadvised him about the factual basis

supporting his plea and the consequences of his decision. By admitting under

oath that he committed this grand theft, Petitioner waived any potential

defense for which he discussed with counsel before he entered that guilty plea.9

Thus, upon thorough review of the record and the applicable law, the Court

finds that the state court’s decision to deny Petitioner’s claim was neither

contrary to nor an unreasonable application of Strickland, and it is not based

on an unreasonable determination of the facts considering the evidence

presented to the state court. See 28 U.S.C. § 2254(d). This Ground is denied.

9 Petitioner’s allegation that he bought the controlled medication from an

unknown individual is also contradicted by the sworn statements Petitioner made in

ground four of his second amended Rule 3.850 motion, in which he alleged the

medication belonged to his then live-in girlfriend and he knew nothing about the

medication before police arrived to search his home. Resp. Ex. G1 at 68-70, 91-92.

D. Ground Four

Petitioner argues that his trial counsel(s) were ineffective for failing to

file a motion to withdraw his guilty pleas. Doc. 1 at 14-16. According to

Petitioner, before pleading guilty, he entered an agreement with the state that

he would provide a statement about the true perpetrators of the crimes and

enter a guilty plea to the charges in exchange for his release from custody and

the state’s promise that it would request a lenient sentence. Id. He claims that

per the alleged agreement, Petitioner pled guilty on January 27, 2010, but was

not released from custody as promised. Id. He contends that police then charged

him with another crime, and “believing that the prosecutor was still willing to

uphold his end of the deal,” Petitioner plead guilty to the new charge. Id.

Petitioner asserts that after his second plea hearing, he “was then informed

that the prosecution was no longer willing to honor the deal they had entered

into.” Id. As such, Petitioner advised his counsel that he wanted to withdraw

all his guilty pleas, but “[c]ounsel simply refused to file the motion(s).” Id.

Petitioner claims that when a new attorney was assigned to his cases, Petitioner

asked that attorney to withdraw his pleas, but he also refused.

Petitioner raised this claim in his second amended Rule 3.850 motion.

Resp. Ex. G1 at 71-74. The trial court summarily denied the claim as follows:

Defendant avers counsel was ineffective for

failing to file a motion to withdraw his plea after the

State breached their agreement. According to

Defendant, he and the prosecutor worked out an

agreement whereby Defendant would give a statement

against his co-defendant and the prosecutor would

release Defendant on his own recognizance and

recommend a lenient sentence. Based on this alleged

agreement, Defendant entered the guilty pleas.

However, Defendant was never released on his own

recognizance nor did the State recommend a lenient

sentence, at which point Defendant asked counsel to

withdraw his plea. Counsel did not move to withdraw

Defendant’s pleas though.

Defendant’s claim is refuted by the record as

Defendant, under oath, acknowledged to the Court that

no one had coerced or promised him anything in

exchange for entering his open pleas. Moreover, by

entering an open plea, Defendant did not have a

negotiated sentence. A fact the Court informed

Defendant about [] while also instructing him on the

maximum penalties he faced. Defendant is estopped

from postconviction relief, because the basis of his

claim is that he lied under oath. Polk, 56 So. 3d at 808.

Defendant is bound by his sworn statements during the

plea colloquy. Kelley, 109 So. 3d 812-13. Accordingly,

as the record refutes Defendant’s claim, he is not

entitled to relief on Ground Five.

Resp. Ex. G1 at 92-93. Petitioner appealed, and the First DCA per curiam

affirmed the summary denial without a written opinion. Resp. Ex. H. The Court

addresses the claim in accordance with the deferential standard for federal

court review of state court adjudications.

In January 2010, while being represented by then Assistant Public

Defender Andrea Fourman, Petitioner entered open pleas of guilty to burglary

in 2009-CF-16025, grand theft in 2009-CF-15529, and possession of a controlled

substance in 2009-CF-15483. Resp. Ex. E. During that colloquy, Petitioner

acknowledged, under oath, that by entering his open pleas, he was facing a

maximum sentence of five years incarceration for the possession and grand

theft charges and a maximum sentence of thirty years for the burglary charge.

Id. at 4. He also testified that he made no agreement with the state nor his

attorney as to what his ultimate sentence would be following his open pleas. Id.

at 4-5. He recognized that the trial court would conduct a sentencing hearing

on a future date, during which it would allow the state and counsel to present

evidence for the trial court to consider before imposing its sentence. Id. at 5.

The state then advised the trial court that Petitioner also had a pending case

in Nassau County, and that “the recommendation [was] going to be whatever

happens in this case will be run concurrent with that case.” Id. at 5. Neither the

state nor Petitioner made any other representations about potential

recommendations regarding Petitioner’s sentences. Petitioner then testified

that no one threatened, coerced, or made any promises in exchange for his pleas

of guilty. Id. at 6. And he advised that he had no other questions for his attorney

or the trial court before his pleas were accepted. Id. at 7-8. Based on Petitioner’s

sworn statements, the trial court accepted his pleas, finding he entered them

freely and voluntarily with a full understanding of their nature and

consequences. Id. at 9.

In March 2010, the state then charged Petitioner in 2010-CF-1910 with

the grand theft of a front-end loader and the burglary of Premier Pharmacy.

Resp. Ex. D2. Petitioner entered an open plea of guilty to those charges. Resp.

Ex. F. During that plea colloquy, Petitioner acknowledged that by entering open

pleas, he was facing a maximum sentence of thirty years incarceration as to the

burglary charge and a five-year maximum as to the grand theft charge but

understood there was no negotiation about what sentence he would ultimately

receive. Id. at 3-4. Petitioner also recognized that the trial court could order the

sentences for all offenses to which he pled guilty to run consecutive, and thus

Petitioner knew he was facing a total exposure of seventy-five years in prison.

Id. at 4. He stated that no one threatened him, coerced him, or made any

promises in exchange for his pleas of guilty. Id. at 6. Petitioner testified that his

attorney went over the plea forms with him in detail, answered all his

questions, and that he was satisfied with counsel’s representation. Id. at 7.

A review of Petitioner’s state court dockets shows that in June 2010,

another Assistant Public Defender, Jon Pierre Lorimier, began representing

Petitioner. See Carter, 2009-CF-15483; 2009-CF-15529; 2009-CF-16025; 2010-

CF-1910. Petitioner then entered his open plea of guilty to perjury on May 16,

2011. Resp. Ex. C5. The trial court sentenced Petitioner in all cases on May 20,

2011. Of import, Petitioner does not provide any details surrounding his perjury

conviction nor does he allege that he asked counsel to file a motion to withdraw

his plea to that charge.

In any event, Petitioner’s sworn statements made during the January and

March 2010 plea hearings refute his allegation that the state made promises to

Petitioner in exchange for his guilty pleas. Had the state made such promises,

Petitioner’s failure to speak up at his plea hearings estops him from now

arguing a position contrary to the statements made under oath in open court.

And despite facing a potential seventy-five-year term of incarceration, the trial

court sentenced Petitioner to a cumulative twenty-year term.10 Given this

record, Petitioner cannot show that but for trial counsels’ alleged failure to file

a motion to withdraw his pleas, such motion would have been granted and

Petitioner would have proceeded to trial. The Court finds that the state court’s

decision to deny Petitioner’s claim was neither contrary to nor an unreasonable

application of Strickland, and it is not based on an unreasonable determination

of the facts considering the evidence presented to the state court. See 28 U.S.C.

§ 2254(d). This Ground is denied.

10 In 2009-CF-16025, the trial court ordered Petitioner’s five-year term of

incarceration for his perjury conviction to run consecutive to his fifteen-year term of

incarceration for his burglary conviction. Resp. Ex. C6 at 5. The court ordered all other

sentences for all other cases to run concurrent.

E. Ground Five

Petitioner argues that his trial counsel was ineffective for advising him

to enter guilty pleas in 2009-CF-16025, 2009-CF-15529, and 2010-CF-1910

without investigating any exculpatory evidence. Doc. 1 at 17. Petitioner alleges

that “[d]uring pre-trial meetings [Petitioner] explained to counsel that he did

not commit the burglaries he was accused of, and he had not been the person

that committed the grand theft of the pills that he purchased at a later date.”

Id. However, according to Petitioner, counsel ignored that information and

“simply convinced [Petitioner] that it was in his best interest to cooperate with

the State. . . .” Id.

Petitioner raised this claim in his second amended Rule 3.850 motion.

Resp. Ex. G1 at 78-79. The trial court summarily denied the claim, finding the

following:

Defendant argues counsel misadvised him and

coerced him into entering the plea where counsel failed

to do any investigation on her own. According to

Defendant, had counsel investigated, she would have

learned there was no physical or circumstantial

evidence to support the charges.

The record refutes Defendant’s allegations that

there was no physical or circumstantial evidence to

support the charges, because Defendant admitted to

participating in the two burglaries and admitted to

being in possession of a controlled substance and stolen

goods. Moreover, Defendant, under oath, told the Court

he was satisfied with his counsel and that he was guilty

of each of the crimes. Accordingly, Defendant cannot

now say his counsel was ineffective for failing to

investigate. Smith, 41 So. 3d at 1040. As the record and

Defendant’s statements to the Court refute his claim,

Defendant is not entitled to relief on Ground Seven.

Resp. Ex. G1 at 94. Petitioner appealed, and the First DCA per curiam affirmed

the summary denial without a written opinion. Resp. Ex. H. The Court

addresses the claim in accordance with the deferential standard for federal

court review of state court adjudications.

As discussed, the record evidence provides an adequate factual basis for

Petitioner’s pleas and convictions. Further, Petitioner’s sworn statements made

during his plea colloquies show that he voluntarily entered his pleas with the

full understanding of the consequences. Indeed, he testified under oath and in

open court that he was entering his pleas because he was in fact guilty of

committing the offenses. Thus, upon thorough review of the record and the

applicable law, the Court finds that the state court’s decision to deny

Petitioner’s claim was neither contrary to nor an unreasonable application of

Strickland, and it is not based on an unreasonable determination of the facts

given the evidence presented to the state court. See 28 U.S.C. § 2254(d). This

Ground is denied.

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. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of

appealability 1s 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 in Jacksonville, Florida, this 7th day of

September, 2021.

□ Cirmotheg Corrig oN

Ww TIMOTHY J. CORRIGAN

United States District Judge

11 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.

35

Jax-7

C: Albert Jason Carter, #J33444

counsel of record