McFadden v. Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ERNA McFADDEN,

Petitioner,

v. Case No. 3:19-cv-891-TJC-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Erna McFadden, an inmate of the Florida penal system,

initiated this action in the Northern District of Florida 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. The Honorable Gary R. Jones, United States Magistrate Judge,

transferred the action to this Court. Doc. 3. Petitioner challenges a state court

(Duval County, Florida) judgment of conviction for armed robbery and two

counts of aggravated battery.1 Petitioner is serving a cumulative life term of

1 Petitioner entered an open plea of guilty to the two counts of aggravated

battery. She subsequently proceeded to trial on the armed robbery charge and the jury

found her guilty of the offense. In the Petition, Petitioner only raises claims

challenging her armed robbery conviction and trial counsel’s actions during trial.

incarceration. Respondents filed a Response. See Doc. 13 (Resp.).2 The Court

provided Petitioner with an opportunity to reply, but she declined and filed a

notice advising that she relies on her allegations as stated in her Petition. See

Doc. 15. This case is ripe for review.3

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)).

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

“Resp. Ex.”

3 “In a habeas corpus proceeding, the burden is on the petitioner to establish

the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299,

1318 (11th Cir. 2016) (citing Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060

(11th Cir. 2011)). “In deciding whether to grant an evidentiary hearing, a federal court

must consider whether such a hearing could enable an applicant to prove the petition’s

factual allegations, which, if true, would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). “It follows that if the

record refutes the applicant’s factual allegations or otherwise precludes habeas relief,

a district court is not required to hold an evidentiary hearing.” Id. The Court finds that

“further factual development” is not necessary. Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.

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

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.

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. Grounds One and Two4

Petitioner alleges her trial counsel was ineffective for failing to object to

“improper prosecutorial comments”; specifically, the state’s inclusion of a jury

instruction on the principal theory. Doc. 1 at 5. According to Petitioner, the

4 Petitioner raises the same claim in Grounds One and Two of the Petition. See

Doc. 1 at 5-7.

evidence presented at trial did not support the instruction, and its presence

misled and confused the jury during deliberations. Id.

Petitioner raised this claim in her amended Florida Rule of Criminal

Procedure 3.850 motion for postconviction relief. Resp. Ex. C1 at 15-17. The

trial court summarily denied the claim, finding the following:

In Defendant’s Amended Motion, she avers the

State improperly argued principal theory and that the

jurors were improperly instructed on the theory.

Specifically, Defendant argues the State only alleged

that Defendant committed the robbery at CVS, not that

she aided her codefendant in committing the robbery.

Thus, Defendant contends it was improper for the jury

to be instructed on the principal theory and for the

State to argue anything regarding the principal theory.

To prove the offense of Armed Robbery, the State

had to show Defendant took property of value from CVS

with the intent to permanently deprive CVS of that

property and that “force, violence, assault, or putting in

fear was used in the cour[se] of the taking.” The jury

was instructed on the principal theory to find these

elements. The State is entitled to proceed on alternate

theories where there is evidence to support both

theories. See Hodge v. State, 970 So. 2d 923, 926 (Fla.

4th DCA 2008).

Here, the State indeed presented evidence [] to

support both theories. The State presented evidence

Defendant committed the armed robbery herself by

presenting the following evidence: testimony from the

store manager that he witnessed Defendant conceal

CVS store merchandise in her blue purse, testimony

from two individuals that Defendant never went to the

register to pay for these items, testimony from those

same two individuals that Defendant cut them both

with an object while trying to leave the store, and

testimony that when Defendant was pulled over in the

car described by a CVS employee soon after the

robbery, there was merchandise and a box cutter found

in the car.

However, the officer who stopped the vehicle

Defendant was a passenger in, stated that Defendant’s

blue and white bag only had [a] box-cutter in it, not any

store merchandise. Defense counsel used this

testimony to argue that, while Defendant did commit

the aggravated battery offenses, she did not rob the

store and commit Armed Robbery. In response, the

State alternatively argued the principal theory to

allege that even if the jury did not believe Defendant

took items from CVS, she knew of the plan and assisted

the other suspect by using the boxcutter on the victims

to allow her and the other suspect to escape the store.

Considering the evidence, this Court finds it was

proper for the trial court to give the principal

instruction. Thus, counsel cannot be deemed deficient

for failing to object to the instruction being given or the

arguments made by the State regarding the principal

theory. See Schoenwetter v. State, 46 So. 3d 535, 546

(Fla. 2010) (finding counsel cannot be deemed

ineffective for failing to make a meritless objection).

Accordingly, Defendant is not entitled to relief on this

Ground. See Strickland, 466 U.S. at 697 (“[T]here is no

reason for a court deciding an ineffective assistance

claim . . . to address both components of the inquiry if

the defendant makes an insufficient showing on one.”).

Resp. Ex. C1 at 28-29 (record citations omitted). Petitioner appealed, and the

First District Court of Appeal affirmed the denial through a written opinion.

Resp. Ex. C4. The First DCA explained the following, in relevant part:

In the Appellant’s first and second grounds, she

argued that her attorney was ineffective for failing to

object to the reading of the principal instruction. She

alleged that neither the information nor the evidence

showed that she acted in concert with anyone to commit

a robbery. She asserted that she was simply shopping

with the codefendant until Mr. McDonald approached

and asked to search their purses. She claimed that she

had been unaware that the codefendant was stealing

until she ran away. The Appellant alleged that she only

struck the clerk because he struck her first, not to aid

in the codefendant’s escape. She argued that if counsel

had objected, she would have been acquitted of robbery

or convicted of a lesser offense.

To prove ineffective assistance, an appellant

must allege (1) the specific acts or omissions of counsel

that fell below a standard of reasonableness under

prevailing professional norms and (2) that the

appellant’s case was prejudiced by these acts or

omissions such that the outcome of the case would have

been different. Strickland[], 466 U.S. [at] 690-92.

However, “[c]ounsel cannot be deemed ineffective for

failing to make a meritless objection.” Hitchcock v.

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

“The principals instruction may be given if the

evidence adduced at trial supports such an instruction.”

McGriff v. State, 12 So. 3d 894, 894 (Fla. 1st DCA

2009). Under the law applicable to principals,

a defendant will be treated as if he did all

the acts performed by the others involved

in the perpetration of a crime if (1) the

defendant “ha[d] a conscious intent that

the crime be done” and (2) the defendant

“d[id] some act or sa[id] some word which

was intended to and d[id] incite, cause,

encourage, assist, or advise another person

to actually commit the crime.”

Charles v. State, 945 So. 2d 579, 581-82 (Fla. 4th DCA

2006) (quoting R.J.K. v. State, 928 So. 2d 499, 503 (Fla.

2d DCA 2006)).

Here, the evidence supported the jury

instruction. Mr. McDonald testified that he saw both

women stealing items from the store. When confronted

about the theft, the Appellant attacked Mr. McDonald.

Both Mr. McDonald and Mr. Campbell testified that

when the attack began, they were distracted by the

codefendant and were not paying attention to the

Appellant. It was only after the Appellant injured Mr.

McDonald that Mr. Campbell struggled with her.

Furthermore, the Appellant attacked Mr. Campbell

again after he had disengaged from her to aid Mr.

McDonald. This interaction was caught on video

surveillance. Under these circumstances, grounds one

and two were properly denied.

Resp. Ex. C4; McFadden v. State, 268 So. 3d 224, 226-27 (Fla. 1st DCA 2019).

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 finds that the state court’s

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

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

determination of the facts given the evidence presented to the state court. See

28 U.S.C. § 2254(d). Grounds One and Two are denied.

B. Ground Three

Petitioner argues that her trial attorney was ineffective for failing to call

an expert witness at trial who would have testified about Petitioner’s extensive

mental health issues and how long-term incarceration may affect Petitioner’s

conduct. Doc. 1 at 8.

Petitioner raised this claim in ground four of her amended Rule 3.850

motion. Resp. Ex. C1 at 18-19. The trial court summarily denied the claim as

follows:

Defendant alleges counsel was ineffective for

failing to present information regarding her “extensive

mental health issues” and for failing to call an expert

to testify regarding those issues at trial. Defendant

notes counsel had her evaluated by a doctor and

presented that doctor’s testimony at sentencing but

avers counsel should have had her evaluated prior to

trial so that testimony could have formed viable

defenses.

On October 2, 2017, this Court granted

Defendant sixty days leave to amend this ground to

provide more details regarding her allegations.

Defendant still does not specifically identify her

“extensive mental health issues.” She does, however,

allege the doctor could have testified regarding a link

between her illness and her response to the employee’s

actions to “show[] that the Defendant perceived the

CVS employee’s actions as a threat and that

[Defendant] felt that she needed to defend herself.”

This Court finds such testimony would be improper for

a doctor to give as they are Defendant’s assertions, not

his own conclusions. Moreover, this Court finds such

testimony regarding why the Defendant cut the

employee with her razor blade, and any theory of self-

defense, would only be relevant to the Aggravated

Battery charges Defendant pleaded guilty to, not the

Armed Robbery charge on which Defendant was tried.

Such testimony would have been irrelevant and, thus,

inadmissible at trial. Counsel, therefore, cannot be

deemed deficient for failing to try to present this

testimony at trial. Additionally, contrary to

Defendant’s assertions, because the testimony would

have been irrelevant to the charge tried, there is no

reasonable probability the result of the proceeding

would have been different if counsel had Defendant

evaluated sooner and presented that testimony at trial.

Lastly, as mentioned by Defendant, counsel did

have Defendant evaluated by a doctor who then

testified at sentencing to show mitigation. Accordingly,

this Court finds Defendant is not entitled to relief on

this Ground.

Resp. Ex. C1 at 30-31 (record citations omitted). Petitioner appealed, and the

First DCA affirmed, finding the following in pertinent part:

In the Appellant’s fourth ground, she argued that

her attorney was ineffective for failing to call an expert

witness to testify regarding her mental health issues.

She alleged that Mr. McDonald grabbed her arm and

threw her into a wall, prompting her to use the

boxcutter to defend herself. She asserted that a mental

health expert could have testified that she felt

threatened under these circumstances due to her

mental health issues. She claimed that this omission

left the jury without a complete picture of her state of

mind. She also argued that counsel failed to present

mitigating evidence regarding her mental health

issues.

The Appellant does not appear to be arguing that

at the time of the offense, she was unable to appreciate

the difference between right and wrong or understand

the nature or quality of her act. Thus, she does not seem

to suggest that an insanity defense was available.

Rather, because this argument is premised upon

demonstrating her state of mind and the need to defend

herself, it appears to be a self-defense argument. Cf.

Filomeno v. State, 930 So. 2d 821, 822 (Fla. 5th DCA

2006) (holding that a psychologist’s testimony

concerning the “fight or flight” response was admissible

as state-of-mind evidence to support a claim of self-

defense).

As an initial matter, the Appellant’s factual

allegations in this ground are inconsistent with the

evidence presented at trial. Mr. McDonald’s and Mr.

Campbell’s testimony established that the Appellant

injured Mr. McDonald with the boxcutter while he was

distracted by her codefendant’s flight. Mr. McDonald

did not touch or strike the Appellant. Rather, it was Mr.

Campbell who struggled with the Appellant and only

after Mr. McDonald had been attacked. The Appellant

subsequently attacked Mr. Campbell after the struggle

was over, while he was assisting Mr. McDonald.

Furthermore, the Appellant pleaded guilty to the

aggravated battery charges and only proceeded to trial

on armed robbery. Her attorney relied on her guilty

pleas to argue that while she committed the aggravated

batteries and would be punished for them, she neither

stole property nor intended to help her codefendant

steal, and thus, she did not commit armed robbery. The

Appellant does not explain how a self-defense theory

would apply under these circumstances. Regardless,

even if a self-defense theory would apply, this ground

remains facially insufficient after an opportunity to

amend, as the Appellant does not identify her mental

illness or how it affected her perceptions. Therefore,

this aspect of her claim was properly denied with

prejudice. See Fla. R. Crim. P. 3.850(f)(3).

Insofar as the Appellant argued that counsel

failed to present expert testimony regarding her mental

health as mitigating evidence, the record reflects that

counsel did present such testimony. Therefore, this

aspect of ground four is conclusively refuted by the

record.

Resp. Ex. C4; McFadden, 268 So. 3d at 227-28.

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 finds that the state court’s

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

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

determination of the facts given the evidence presented to the state court. See

28 U.S.C. § 2254(d). Ground Three is denied.

C. Ground Four

Petitioner asserts her trial counsel was ineffective for failing to move for

a judgment of acquittal based on the state’s failure to present a prima facie case

for armed robbery. Doc. 1 at 10. According to Petitioner, the state did not prove

that Petitioner took money or other CVS property or that Petitioner used force

or violence during the alleged taking. Id.

Petitioner raised this claim in her amended Rule 3.850 motion. Resp. Ex.

C1 at 20-24. The trial court summarily denied the claim as follows:

Defendant asserts counsel was ineffective for

failing to make an adequate motion for judgment of

acquittal.

To be entitled to relief on such a claim, Defendant

must show he “may very well have prevailed on a more

artfully presented motion.” White v. State, 977 So. 2d

680, 681 (Fla. 1st DCA 2008). “Where there is no

showing that a motion for judgment of acquittal had a

likelihood of success, a movant has not presented a

facially sufficient claim of ineffectiveness of counsel.”

Neal v. State, 854 So. 2d 666, 670 (Fla. 2d DCA 2003)

(citation omitted). Additionally, counsel cannot be

deemed ineffective for failing to move for a judgment of

acquittal where there is sufficient evidence to support

the defendant’s convictions and the argument would

have been meritless. Ferrell v. State, 29 So. 3d 959, 976

(Fla. 2010) (citing Mungin v. State, 932 So. 2d 986, 997

(Fla. 2006)).

The Florida Supreme Court has said the

following about motions for judgment of acquittal:

[a] defendant, in moving for a judgment of

acquittal, admits not only the facts stated

in the evidence adduced, but also admits

every conclusion favorable to the adverse

party that a jury might fairly and

reasonably infer from the evidence. The

courts should not grant a motion for

judgment of acquittal unless the evidence

is such that no view which the jury may

lawfully take of it favorable to the opposite

party can be sustained under the law.

Where there is room for a difference of

opinion between reasonable men as to the

proof or facts from which an ultimate fact

is sought to be established, or where there

is room for such differences as to the

inferences which might be drawn from

conceded facts, the Court should submit

the case to the jury for their finding, as it is

their conclusion, in such cases, that should

prevail and not primarily the views of the

judge. The credibility and probative force of

conflicting testimony should not be

determined on a motion for judgment of

acquittal.

Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974).

At trial, counsel made a boilerplate motion for

judgment of acquittal and [a] renewed motion for

judgment of acquittal. However, based on the evidence

as outlined in Grounds One and Two, this Court finds

even a more artfully presented motion for judgment of

acquittal would have been properly denied as there was

sufficient evidence to support the conviction[].

Defendant is, thus, not entitled to relief on this Ground.

Resp. Ex. C1 at 31-32 (record citations omitted). Petitioner appealed, and the

First DCA affirmed, explaining the following in relevant part:

In the Appellant’s fifth ground, she argued that

her attorney was ineffective for failing to make an

adequate motion for judgment of acquittal. She alleged

that her attorney should have argued that the state did

not prove all the elements of robbery, as she did not

take any property, use force in the course of a taking,

or have the intent to deprive the victim of any property.

“In moving for a judgment of acquittal, a

defendant ‘admits not only the facts stated in the

evidence adduced, but also admits every conclusion

favorable to the adverse party that a jury might fairly

and reasonably infer from the evidence.’” Beasley v.

State, 774 So. 2d 649, 657 (Fla. 2000) (quoting Lynch v.

State, 293 So. 2d 44, 45 (Fla. 1974)). “A motion for

judgment of acquittal should only be granted if there is

no view of the evidence from which a jury could make a

finding contrary to that of the moving party.” Jeffries v.

State, 797 So. 2d 573, 580 (Fla. 2001) (citing Lynch, 293

So. 2d at 45).

Here, any motion for judgment of acquittal

arguing that the state did not prove the elements of

robbery would have been denied. When viewed in the

light most favorable to the state, the evidence

introduced at trial shows that the Appellant and a

companion stole items from CVS. When two clerks

confronted them about the theft, the Appellant injured

them both with a boxcutter to aid in her and her

companion’s escape. Under these circumstances, this

ground was properly denied.

Resp. Ex. C4; McFadden, 268 So. 3d at 228-29.

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 finds that the state court’s

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

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

determination of the facts given the evidence presented to the state court. See

28 U.S.C. § 2254(d). Ground Four 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 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 31st day of May,

2022.

□ Cirmotheg Corrig oN

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Erna McFadden, # J47975

counsel of record

5 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.

18