Blake v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MERIENNE BLAKE,

Petitioner,

v. Case No. 3:19-cv-746-TJC-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER OF DISMISSAL WITH PREJUDICE

I. Status

Petitioner, 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) on June 12, 2019 (mailbox rule). Because the

Petition was unsigned, the Court directed Petitioner to file a signed amended

petition. See Order (Doc. 2). Petitioner did so on July 29, 2019 (mailbox rule).

See Amended Petition (Doc. 4). Petitioner challenges a state court (Duval

County, Florida) judgment of conviction for first degree murder and conspiracy

to commit robbery. She is serving life imprisonment. Respondents filed a

Response arguing that Grounds One, Three, and Four should be dismissed as

untimely, and Ground Two should be denied.1 See Response (Doc. 6), with

exhibits (Docs. 6-1 to 6-5; “Resp. Ex.”). Although given an opportunity to reply,

Petitioner declined to do so. See Petitioner’s Notice (Doc. 8) (indicating she will

rely on the assertions and claims as stated in the Amended Petition). This case

is ripe for review.2

II. Governing Legal Principles

a. One-Year Limitations Period

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

amended 28 U.S.C. § 2244 by adding the following subsection:

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.

The limitation period shall run from the latest of--

(A) the date on which the judgment

became final by the conclusion of direct

1 Grounds One, Three, and Four are ineffective assistance of trial counsel claims. Doc.

4 at 5, 8, 10. In Ground Two, Petitioner argues that newly discovered evidence shows

her trial was fundamentally unfair due to a biased judge. Id. at 7.

2 “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.

review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to

filing an application created by State

action in violation of the Constitution or

laws of the United States is removed, if

the applicant was prevented from filing by

such State action;

(C) the date on which the constitutional

right asserted was initially recognized by

the Supreme Court, if the right has been

newly recognized by the Supreme Court

and made retroactively applicable to cases

on collateral review; or

(D) the date on which the factual predicate

of the claim or claims presented could

have been discovered through the exercise

of due diligence.

(2) 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.

28 U.S.C. § 2244(d).

b. 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 in order for the

state court’s decision to qualify as an adjudication on the merits. See Harrington

v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s adjudication on the

merits is unaccompanied by an explanation,

the 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, 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).

c. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. 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 his federal petition to the state’s highest court, either on

direct appeal or on 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.”).

In addressing exhaustion, 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 365-66; 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, 501 U.S. at 747-48;

Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). 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, 131 S. Ct. 1120,

1127-28 (2011); Beard v. Kindler, 130 S. 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, 501 U.S. at 750.

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 Murray

v. Carrier, 477 U.S. 478, 488 (1986). 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).

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

modified).

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, 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. “[I]n 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. “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.3d at 1157 (internal citations modified). “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.

III. Analysis

a. Grounds One, Three, and Four

Following a jury trial, the state court entered judgment on January 9,

2014, sentencing Petitioner to life imprisonment. Resp. Ex. A at 165-71.

Petitioner appealed, and the First District Court of Appeal per curiam affirmed

Petitioner’s judgment and sentence without a written opinion on April 17, 2015.

Resp. Ex. H. The Mandate issued on May 5, 2015. Id.

Petitioner’s judgment and sentence became final on July 16, 2015, which

is 90 days after the First DCA’s per curiam affirmance. See Clay v. United

States, 537 U.S. 522 (2003); 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.” (citing Supreme Court Rule 13.33)).

Petitioner’s one-year limitations period ran for 292 days until it was tolled on

May 4, 2016, when Petitioner filed a pro se motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. I at 1-12. She

filed an amended Rule 3.850 motion on September 20, 2016. Id. at 14-20. The

state filed a response. Id. at 25. The circuit court denied the Rule 3.850 motions

on February 5, 2018. Id. at 26-35. Petitioner appealed, and the First DCA per

curiam affirmed the denial without a written opinion and issued the mandate

on March 25, 2019. Ex. L. The next day, March 26, 2019, Petitioner’s one-year

limitations period continued to run until its expiration on June 10, 2019.4

Petitioner filed the Petition on June 12, 2019. Thus, Grounds One, Three, and

Four are untimely.

3 See Sup. Ct. R. 13.3 (“The time to file a petition for a writ of certiorari runs from the

date of entry of the judgment or order sought to be reviewed, and not from the issuance

date of the mandate.”).

4 Respondents calculate Petitioner’s one-year limitations period as including 366 days,

because 2016 was a leap year. The Court does the same, as it has no effect on the

outcome. Adding 74 days to March 26, 2019, results in an expiration date of Saturday,

June 8, 2019. Thus, the Court uses the following Monday, June 10, as the expiration

date.

Petitioner does not address the untimeliness of her Petition, and she fails

to present any circumstances suggesting that she would be entitled to equitable

tolling. Nor does she make any showing of actual innocence. See McQuiggin v.

Perkins, 569 U.S. 383, 386 (2013); Rozzelle v. Sec’y Fla. Dep’t of Corr., 672 F.3d

1000, 1011 (11th Cir. 2012). Considering the record, the Court finds that

Grounds One, Three, and Four are due to be dismissed with prejudice as

untimely.

b. Ground Two5

Petitioner argues that “[n]ewly discovered evidence shows [her] trial was

fundamentally unfair based on a biased judge.” Doc. 4 at 7. She contends that

she “was made aware of material evidence . . . on or about 8/2/2016 claiming

formal charges were being brought against trial judge, Honorable Mark Hulsey,

III.” Id. She further contends that during her trial, she “was also made aware

that Judge Hulsey was napping during oral arguments and told ‘not to worry

about it.’” Id.

5 Respondents recognize that this claim is timely based on 28 U.S.C. § 2244(d)(1)(D)

(“The limitation period shall run from the latest of--the date on which the factual

predicate of the claim or claims presented could have been discovered through the

exercise of due diligence.”). See Doc. 6 at 14-18.

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

Ex. I at 16-17.6 In making this argument, Petitioner did not cite to any legal

authority. She argued that “[t]here exists a reasonable and substantive

probability that [her] entire trial was fundamentally unfair and could

reasonably be taken to put the whole case in such a different light as to

undermine confidence in the entire proceeding, where all the odds were against

[her] because she was female and both of her counsels[] were African American.”

Id. at 17. In response, the state argued that Petitioner “failed to allege any

specific prejudice.” Id. at 25. According to the state, Petitioner was required to

“allege specific rulings or actions that this judge did that were improper and

were based on his alleged racial and gender biases.” Id. (citing Blackwood v.

State, 946 So. 2d 960 (Fla. 2006)).

The postconviction court denied Petitioner’s claim:

In this Ground, Defendant alleges newly

discovered evidence, citing formal charges brought

against the trial judge who presided over Defendant’s

case for making derogatory emails about females and

stating that all African Americans “should go get back

on a ship and go back to Africa.” Defendant states that

as a female Defendant who proceeded to trial with two

African American attorneys, one of which was also

female, it was impossible for her to have received a fair

trial before this trial judge. Defendant further asserts

6 In her amended Rule 3.850 motion, Petitioner also raised a “cumulative error” claim

based on the trial judge’s alleged bias. See Ex. I at 18. Petitioner did not raise a

cumulative error claim in the Amended Petition.

this evidence undermines the confidence in the

outcome of the proceeding.

Under rule 3.850(b)(l), a claim of newly

discovered evidence requires that the facts on which

the claim is predicated were unknown to the movant or

the movant’s attorney and could not have been

ascertained by the exercise of due diligence. Fla. R.

Crim. P. 3.850(b)(l). Generally, to obtain a new trial

based on newly discovered evidence, a defendant must

show: (1) the evidence was not known by the court, the

party, or counsel at the time of trial, and that the party

nor counsel could have known of it through the use of

diligence; and (2) the “evidence is of such nature that it

would probably produce an acquittal on retrial.”

Hitchcock v. State, 991 So. 2d 337, 349 (Fla. 2008).

Newly discovered evidence satisfies the second prong if

it “weakens the case against [the defendant] so as to

give rise to a reasonable doubt as to his culpability.”

Jones v. State, 709 So. 2d 512, 521 (Fla. 2009).

This Court recognizes that Defendant nor

counsel could likely have known or ascertained this

evidence at the time of trial. However, this Court does

not find that the “evidence is of such nature that it

would probably produce an acquittal on retrial.[”]

The only pivotal pretrial Motion the trial court

denied was Defendant’s Motion to Dismiss based on

Stand Your Ground laws. This Court finds such ruling

was appropriate considering the evidence presented at

the hearing. (Ex. J.) This Court also finds the result of

the trial would not have been different despite another

judge sitting due to the State’s presentation of evidence

at trial. Particularly, the State presented evidence that

the victim and her codefendant, Enrique Pajaro

(“Pajaro”), concocted a plan to steal crack cocaine and

money from the victim after the victim showed up at

Defendant’s house and to get the victim to leave

Defendant alone. (Ex. G at 225-233, 289-91, 299, 300-

01, 302, 321, 324, 326, 351.) Indeed, prior to the attack,

a friend of the co-defendants noted seeing a drawer

with a long knife in it and a yellow mallet with a steel

hammer on the counter that came from under the

witness’s kitchen sink. (Ex. G at 229-30.) Defendant

acknowledged in her interview that she knew this was

a premeditated attack and the attack of the victim

began while the victim was passed out. (Ex. G at 297-

98, 301-02, 304, 310, 324.) Defendant further admitted

more than once that she brought the mallet to her

codefendant while he was fighting with the victim, as

well as hit the victim with the mallet a couple times

before the co-defendant took it and started hitting the

victim with it. (Ex. G at 173-74, 277, 286, 331, 341-42,

351-52.) The detective indicated that Pajaro gave a

similar account. (Ex. G at 352.) However, Defendant

and Pajaro lied initially and tried to claim the victim

broke in and tried to hurt Defendant, so Pajaro was

protecting her. (Ex. G at 173, 283-84, 308.) In light of

the evidence presented, this Court finds there would be

no acquittal even if there were a retrial with a different

judge. Accordingly, Defendant is not entitled to relief.

Resp. Ex. I at 32-33. Petitioner appealed, and the First DCA per curiam

affirmed without issuing a written opinion. Resp. Ex. L.

According to Respondents, Petitioner failed to present the federal nature

of this claim to the state courts; thus, the claim is unexhausted. See Doc. 6 at

18-22. The Court agrees. Petitioner failed to cite or address any federal law in

her Rule 3.850 motion or brief on appeal with respect to this claim. Her

conclusion in her amended Rule 3.850 motion that she has proven that “she was

denied her United States Constitutional rights” is insufficient. See generally

Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 457-59 (11th Cir. 2015). She

did not place the state courts on notice that she was raising a federal claim, and

thus failed to exhaust this claim in state court, which renders this claim

procedurally barred. Petitioner has not shown cause and prejudice to excuse the

bar, nor has she shown a fundamental miscarriage of justice would result if this

claim were not addressed on the merits. Accordingly, Ground Two is due to be

denied.

Alternatively, Respondents assert that “even if Petitioner could be

deemed to have fairly presented the state circuit and appellate courts with a

federal claim, she still cannot demonstrate entitlement to relief.” Id. at 22.

Again, this Court agrees. Petitioner’s argument in the state courts that the trial

judge denied all of her pretrial motions and objections at trial is not supported

by the record. While the trial judge denied Petitioner’s pretrial motion to

dismiss based on the Stand Your Ground law, such ruling was supported by the

record.7 And in light of the evidence presented at the trial, there is no

reasonable probability that the outcome would have been different had another

trial judge presided. Petitioner has failed to show that her trial was

fundamentally unfair.

Petitioner’s generic allegations in her Amended Petition show—at most—

a potential appearance of bias. But “there is no Supreme Court decision clearly

7 At the conclusion of the evidentiary hearing on Petitioner’s stand your ground

motion, the trial judge took the motion under advisement. See Ex. I at 266. There is

no final ruling on the state court’s docket, but given that Petitioner proceeded to trial,

the motion was implicitly (if not overtly) denied.

establishing that an appearance of bias or partiality, where there is no actual

bias, violates the Due Process Clause or any other constitutional provision.”

Hendrix v. Sec’y, Fla. Dep’t of Corr., 527 F.3d 1149, 1153 (11th Cir. 2008); see

Davis v. Jones, 506 F.3d 1325 (11th Cir. 2007) (denying the petitioner’s federal

habeas claim that his due process rights were violated because the judge was

related to one of the prosecutors; reasoning that the mere appearance of bias is

not enough to violate the Due Process Clause). Petitioner has failed to point to

any part of the record to show the trial judge’s alleged actual bias in her case.

Additionally, the other claims in the Amended Petition focus on counsel’s

alleged errors—she does not raise any trial court error claims. Upon due

consideration, Ground Two is due to be denied.

Accordingly, it is

ORDERED:

1. The Court dismisses as untimely Grounds One, Three, and Four

and denies Ground Two. This case is DISMISSED with prejudice.

2. The Clerk shall enter judgment accordingly, terminate any

pending motions, and close this case.

3. If Petitioner appeals, 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 7+* day of July,

2022.

WW. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 6/17

C:

Merienne Blake, #J51496

Counsel of Record

8 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.

17