Sparrow v. Secretary, Florida Department of Corrections (St. Johns) County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

VICTOR T. SPARROW, □

_ Petitioner,

v. Case No. 3:19-cv-164-HLA-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al,

Respondents.

HLCM us. ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding on

a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc.

1) and Appendix (Doc. 2). He challenges a state court (St. John’s County,

Florida) judgment of conviction for felony battery, burglary of an occupied

dwelling, and two counts of child abuse. Respondents filed a Response

(Doc. 8) with exhibits (Doc. 8-1).! Petitioner filed a Reply (Doc. 9). This

case is ripe for review.

Il. Governing Legal Principles

A. Standard of Review

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). “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

1 Some pages of the exhibits are unnumbered. Thus, for ease of reference, the

Court cites to the document and page numbers as assigned by the Court’s

electronic case filing system.

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.” Richter,

562 U.S. at 101 (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, @.9.,

Mitchell v. Esparza, 540 US. 12, 18 (20083);

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, 1258-54 (11th Cir. 2013)

(internal citations modified).

B. Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner

must exhaust all state court remedies that are available for challenging

his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust state

remedies, the petitioner must “fairly present|]” every issue raised in □□□ _

4 □

federal petition to the state’s highest court, either on direct appealoron —

collateral review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis

omitted). Thus, to properly exhaust a claim, “state prisoners must give.

the state courts one full opportunity to resolve any constitutional issues

by invoking one complete round of the State’s established appellate

review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999): see also

Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel

applies to the state collateral review process as well as the direct appeal

process.”).

The United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a

state prisoner must exhaust available state

remedies, 28 U.S.C. § 2254(b)(1), thereby giving

the State the “opportunity to pass upon and

correct’ alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995)

(per curiam) (quoting Picard v. Connor, 404 U.S.

270, 275 (1971)). To provide the State with the

necessary “opportunity,” the prisoner must “fairly

present” his claim in each appropriate state court

(including a state supreme court with powers of

discretionary review), thereby alerting that court

to the federal nature of the claim. Duncan, 513

U.S. at 365-366; O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations modified).

A state prisoner’s failure to properly exhaust available state

remedies results in a procedural default which raises a potential bar to.

federal habeas review. The United States Supreme Court has explained

the doctrine of procedural default as follows:

Federal habeas courts reviewing the

constitutionality of a state prisoner’s conviction

and sentence are guided by rules designed to

ensure that state-court judgments are accorded

the finality and respect necessary to preserve the

integrity of legal proceedings within our system of

federalism. These rules include the doctrine of

procedural default, under which a federal court

will not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[?] supra, at

747-48; Sykes, supra, at 84-85. A state court’s

invocation of a procedural rule to deny a prisoner’s

claims precludes federal review of the claims if,

among other requisites, the state procedural rule

is a nonfederal ground adequate to support the

judgment and the rule is firmly established and

consistently followed. See, e.g., Walker v. Martin,

1318. Ct. 1120, 1127-28 (2011); Beard v. Kindler,

1308. Ct. 612, 617-18 (2009). The doctrine barring

procedurally defaulted claims from being heard is

not without exceptions. A prisoner may obtain

federal review of a defaulted claim by showing

cause for the default and prejudice from a violation

of federal law. See Coleman, 111 S. Ct. 2546.

* Coleman v. Thompson, 501 U.S. 722 (1991).

° Wainwright v. Sykes, 433 U.S. 72 (1977).

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (internal citations modified).

Thus, procedural defaults may be excused under certain circumstances.

Notwithstanding that a claim has been procedurally defaulted, a federal

court may still consider the claim if a state habeas petitioner can show

either (1) cause for and actual prejudice from the default; or (2) a

fundamental miscarriage of justice. Ward v. Hall, 592 F.3d 1144, 1157

(11th Cir. 2010). For a petitioner to establish cause and prejudice,

the procedural default “must result from some

objective factor external to the defense that

prevented [him] from raising the claim and which

cannot be fairly attributable to his own conduct.”

McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.

1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct.

2639).[4] Under the prejudice prong, [a petitioner]

must show that “the errors at trial actually and

substantially disadvantaged his defense so that he □

was denied fundamental fairness.” Id. at 1261

(quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if

the petitioner can establish that a fundamental miscarriage of justice,

4 Murray v. Carrier, 477 U.S. 478 (1986).

the continued incarceration of one who is actually innocent, otherwise

would result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, □

there remains yet another avenue for him to

receive consideration on the merits of his

procedurally defaulted claim. “fI]Jn an

extraordinary case, where a_ constitutional

violation has probably resulted in the conviction of

one who is actually innocent, a federal habeas

court may grant the writ even in the absence of a

showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

. exception is exceedingly narrow in_ scope,”

however, and requires proof of actual innocence,

not just legal innocence. Johnson v. Alabama, 256

F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.8d at 1157. “To meet this standard, a petitioner must ‘show

that it is more likely than not that no reasonable juror would have _

convicted him’ of the underlying offense.” Johnson v. Alabama, 256 F.3d

1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327

(1995)). Additionally, “[t]o be credible,’ a claim of actual innocence must

be based on reliable evidence not presented at trial.” Calderon v.

Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324),

With the rarity of such evidence, in most cases, allegations of actual

innocence are ultimately summarily rejected. Schlup, 513 U.S. at 324.

C. 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);

Strickland v. Washington, 466 U.S. 668, 687 (1984)). Courts employ a

two-part test when reviewing ineffective assistance of counsel claims. See

Strickland, 466 U.S. at 687.

To establish deficient performance, a person

challenging a conviction must show that □

“counsel’s representation fell below an objective

standard of reasonableness.” 466 U.S. at 688. A

court considering a claim of ineffective assistance

must apply a “strong presumption” that counsel’s

representation was within the “wide range” of

reasonable professional assistance. Id. at 689.

The challenger’s burden is to show “that counsel

made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but □

for counsel’s unprofessional errors, the result of

the proceeding would have been different. A

reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. at

694. It is not enough “to show that the errors had

some conceivable effect on the outcome of the

proceeding.” Id. at 693. 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.

Richter, 562 U.S. at 104 (internal citations modified).

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. Secy Fla.

Dep't of Corr., 776 F.8d 1209, 1218 (llth 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.8d 1144,1163

(11th Cir. 2010). Both prongs of the two-part Strickland test must be

satisfied to show a Sixth Amendment violation; thus, “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 □□□□□

1243, 1248 (11th Cir. 2000)). “If it is easier to dispose of an ineffectiveness

10 .

claim on the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.” Strickland, 466 U.S. at 697.

A state court’s adjudication of an ineffectiveness claim is afforded _

great deference. _

“[T]he standard for judging counsel’s

representation is a most deferential one.” Richter,

562 U.S. at 105. But “[e]stablishing that a state

court’s application of Strickland was

unreasonable under § 2254(d) is all the more

difficult. The standards created by Strickland and

§ 2254(d) are both highly deferential, and when

the two apply in tandem, review is doubly so.” Id.

(citations and quotation marks omitted). “The

question is not whether a federal court believes

the state court’s determination under the

Strickland standard was incorrect but whether

that determination was unreasonable - a

substantially higher threshold.” Knowles v.

Mirzayance, 556 U.S. 111, 123 (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.

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

citations modified). In other words, “[i]n addition to the deference to

counsel’s performance mandated by Strickland, the AEDPA adds another

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

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

11

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

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

v. Kentucky, 559 U.S. 856, 371 (2010).

Ill. Analysis

Petitioner raises several claims under “Ground One” of his Petition,

which the parties refer to as Grounds One-A through One-F. Respondents —

argue that Grounds One-B through One-F are unexhausted and

procedurally barred. See Doc. 8 at 8-11. In his Reply, Petitioner states:

“Petitioner concedes that grounds One-B through One[-]F w[ere] not

properly argued the same way in this Court as they were in the State .

Court. However, this default was caused by a law clerk, but Petitioner

respectfully agrees with the Respondents ONLY on those grounds.” Doc.

9 at 1 (emphasis omitted). He then goes on to address only Ground One-

A. See id. at 1-6.

Upon review of the parties’ positions and the record, the Court _

agrees that Grounds One-B through One-F are unexhausted and

procedurally barred. Although Petitioner seemingly attempts to place □

blame on an inmate law clerk, such reasoning fails to provide cause to

excuse the procedural defaults. See Francis v. Sec’y. Dep’t of Corr., □□□

12

8:15-cv-2205-T-36AAS, 2018 WL 3093481, at *4 (M.D. Fla. June 22, 2018)

(citing Tower y. Phillips, 7 F.3d 206, 211 (11th Cir. 1998) (“[I]gnorance of

available post-conviction remedies cannot excuse a procedural default.”); □□

McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992) (neither a lack

of legal education nor pro se status constituted cause for petitioners.

procedural default); Harmon v. Barton, 894 F.2d 1268, 1275-76 (11th Cir.

1990) (a petitioner’s pro se status was insufficient to establish cause); □

Whiddon v. Dugger, 894 F.2d 1266, 1267 (11th Cir. 1990) (misadvice from

inmate law clerks during collateral proceedings does not establish

cause)). He also has not alleged facts justifying application of the

fundamental miscarriage of justice exception to the procedural bar of

these claims. Therefore, considering Petitioner’s concession that these _

claims are unexhausted as well as the record as a whole, the Court finds

that Grounds One-B through One-F are unexhausted and procedurally □

barred. Thus, these grounds are due to be denied.

In Ground One-A, Petitioner argues that his trial counsel

ineffective for “failing to inform Petitioner that he had a viable defense of

unconditional possessory interest to the burglary charge when Petitioner

was a resident of the house he was accused of allegedly burglarizing.”

18

Doc. 1 at 4 (emphasis and capitalization omitted). Petitioner asserts that

had counsel advised him of this defense, he would not have pled nolo □

contendere but would have proceeded to trial. See id. at 4-11.

Petitioner raised this ineffectiveness claim in his amended Florida

Rule of Criminal Procedure 3.850 motion. The postconviction court

denied the claim:

In ground one of the instant motion,

Defendant alleges his counsel was ineffective for

failing to advise him of an available defense to the

charge of Burglary with an Assault or Battery.

Specifically, Defendant asserts that he informed

counsel that he resided at the home he was

accused of burglarizing. Defendant asserts he

informed his counsel that he listed the property

as his address on his driver's license and paid rent

to the owner. Defendant concludes that had

counsel properly investigated, he would have

known Defendant was a co-tenant and asserts

that he should have been charged with Domestic

Violence, not Burglary. Defendant contends he

would have gone to trial with a defense of a

possessory interest and the fact that there was no

lawful eviction or termination of the rental

agreement. Defendant asserts he would have

been acquitted or if convicted, would have

received a shorter sentence.

The Court notes that Defendant was

previously afforded leave to amend ground one to

allege supporting facts regarding his possessory

interest in the property. The Court specifically

directed Defendant to address whether the

14

property was owned or leased in his name. In his □

amended motion, Defendant asserts that he lived

at the residence, his driver’s license listed the

residence as his address and that “he had been

paying rent to the owner of the house.” Defendant

does not assert that his name was ever on the

lease. Accordingly, there is no allegation that

Defendant had a legal interest in the property. [FN]

See Washington v. State, 11 So. 3d 980 (Fla. 5th

DCA 2009); see also Pierre v. State, 77 So. 3d 699

(Fla. 8d DCA 2011).

[FN.] Further, the

victim advised the deputies

that Defendant voluntarily

moved out 4 days before the

incident.

The Court finds under the facts as alleged,

defense counsel was not deficient. Moreover, the

Court notes that a factual basis was articulated

on the record by the State, which was not objected

to by the Defendant or his attorney, establishing

the elements of the burglary charges to which he

pled no contest. For these reasons, ground one will

be summarily denied.

Doe. 8-1 at 158-60 (some internal citations omitted).

Petitioner filed a motion for reconsideration as to the denial of this

claim, id. at 215-20, which the postconviction court denied, id. at 223...

Petitioner appealed, and the Fifth District Court of Appeal per curiam

affirmed the denial without a written opinion on October 16, 2018. □□□ □□

230. Petitioner filed a motion for rehearing, id. at 232-34, which the Fifth

15

DCA denied, id. at 244. The mandate issued on December 4, 2018. Id. at

246.

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon

thorough review of the record and the applicable law, the Court concludes

that the state court’s adjudication of this claim was not contrary to clearly

established federal law, did not involve an unreasonable application of □ -

clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented. Thus, _

Petitioner is not entitled to federal habeas relief.

Even assuming the state court’s decision is not entitled to

deference, this claim is without merit. The information charged

Petitioner with burglary with an assault or battery (Count IT), which is a

first-degree felony. Id. at 4. At the beginning of the plea and sentencing

hearing, the state advised the trial court that it was amending Count II,

as the parties had agreed to a negotiated plea disposition. See id. at 11.

The state announced: “[T]he State will amend the Information orally in

court today to burglary of a occupied dwelling, second-degree felony. The.

sentence as to Count II will be ten years in the Department of

16

Corrections, concurrent with Count I.” Id. The state proffered the

following as to the burglary count:

As to Count II, pursuant to the negotiations on the

record, Victor Sparrow, on the 14th day of

September, 2015, in St. Johns County, did

knowingly enter and remain in property that was

in the possession of Sabrina Willis, and that

property was occupied at the time he entered, with

the intent to commit an offense therein.

Id. at 18. Petitioner’s counsel indicated that Petitioner had “[nJo objection

[to the proffered factual basis] for purpose of the plea.” Id. Petitioner

testified under oath that he desired to plead no contest to the charges and

that he understood his rights, the charges, and the terms of the

negotiated agreement; he further testified that he believed the plea was

in his best interest. Petitioner averred that he had not been threatened,

coached, or told to testify falsely, and his only question of the judge was

whether he could hug his family before leaving the courtroom.

Burglary is a crime “involving the possessory rights of another.”

Morris v. State, 87 So. 3d 89, 90 (Fla. 4th DCA 2012) (quoting Potter v.

State, 109 So. 91, 91 (1926)). “However, the concept of ‘ownership’

purposes of proving a burglary is different than commonly-understood

concepts of ownership under general property law: Ownership means any

17

possession which is rightful as against the burglar and is satisfied by

proof of special or temporary ownership, possession, or control.” Pierre,

77 So. 3d at 701 (quotations and citations omitted); see Bagnara v. State,

189 So. 3d 167, 172-73 (Fla. 4th DCA 2016).

Had the case proceeded to trial, the state hkely would have

presented the following evidence.5 In the Warrant Affidavit, it is noted

that the victim (Sabrina Willis) told police that Petitioner had moved out

of the subject residence several days before the incident. Doc. 8-1 at 171.

Ms. Willis further told police that on the date in question, Petitioner

arrived at her home to talk, but after a short conversation, Ms. Willis □

entered her residence and locked the door. Id. A short time later,

Petitioner returned to the residence and when Ms. Willis would not let

him inside, he kicked the door in. Id. Ms. Willis’ daughter told police that

she witnessed Petitioner kick the door open, which caused it to break. Id.

In the Offense Report completed by the St. Johns County Sheriff's

Office, there are multiple notations by different officers recognizing that

° The postconviction court attached the Warrant Affidavit to its order denying

Petitioner's amended Rule 3.850 motion. Doc. 8-1 at 171-72. The state attached.

the Offense Report to its response to Petitioner’s amended Rule 3.850 motion.

Id. at 140-48.

18

Petitioner did not live at the residence on the date of the burglary.

Specifically, Officer Goldman noted that “Victor Sparrow (suspect)

previously resided at this address, but voluntarily moved out with all of

his possessions in my presence during a prior call on September 10,

2015.” Doc. 8-1 at 141. Officer Dees noted that on September 10, 2015,

which was four days prior to the burglary, Deputy Ong had responded to

the subject residence, and “Victor voluntary moved out of the residence”

and “removed all his belongings from the residence.” Id. at 144.

Additionally, when responding to the subject burglary call, deputies —

observed a footprint on the exterior of the door, the door frame was

damaged, and the deadbolt was in the locked position. Id. at 144,171. -

When police interviewed Petitioner, his shoes matched the footprint that

was left on the door. Id. at 147. □

Even if Petitioner had a legal interest in the property, the state

could have presented evidence showing that Petitioner either did not

have a possessory interest in the property on the day in question or that

Ms. Willis had a superior possessory interest. See Pierre, 77 So. 3d at 701

(“Because the victim (and not [the defendant]) was actually living in the

efficiency on the night in question, the mere fact that [the defendant] held

19

some legal interest in the efficiency (as a lessee) is not itself

determinative of his possessory interest, because the crime of burglary

involves a disturbance to habitable security and not to the fee.”

(quotations and citation omitted)); see also Washington v. State,

3d 980, 981-82 (Fla. 5th DCA 2009). Moreover, as noted by the

postconviction court, “absent an agreement with the State, [Petitioner] □□

faced a sentence of up to life imprisonment on the Burglary with an

Assault or Battery (firearm) charge.” Doc. 8-1 at 162; see also Doc. 8 at

18. However, because Petitioner entered a negotiated plea of no contest,

the state agreed to amend the count and request that the trial court

impose a ten-year term of incarceration. Considering the record, the

Court finds that Petitioner has failed to show a reasonable probability

that had counsel advised him of this defense, he would not have entered

the negotiated plea and would have insisted on going to trial. Therefore,

Ground One-A is due to be denied.

Accordingly, it is

ORDERED:

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

DISMISSED WITH PREJUDICE.

20

2. The Clerk of Court shall enter judgment dismissing this

case with prejudice, terminate any pending motions, and close the file.

3. If Petitioner appeals the denial of his Petition, the Court

denies a certificate of appealability. Because the Court has determined

that a certificate of appealability is not warranted, the Clerk shall _

terminate from the pending motions report any motion to proceed on

appeal as a pauper that may be filed in this case. Such termination shal —

serve as a denial of the motion.®

DONE AND ORDERED at Jacksonville, Florida, this (6 day of

February, 2022.

a ATATES DISTRICT : (moh

JAX-3 2/7

C: .

Victor T. Sparrow, #V05618

Counsel of Record

The Court should issue a certificate of appealability only if the Petitioner

makes “a substantial showing of the denial of a constitutional right.” 28U.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.

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