Milne v. Secretary, DOC (Lee County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

WILLIAM J. MILNE,

Petitioner,

v. Case No. 2:18-cv-760-JES-MRM

SECRETARY, DOC,

Respondent.

OPINION AND ORDER

This cause is before the Court on an amended pro se 28 U.S.C.

§ 2254 petition for habeas corpus relief filed by Petitioner

William J. Milne (“Petitioner” or “Milne”). (Doc. 12).

Respondent argues that Milne is not entitled to federal habeas

relief. (Doc. 36). Milne filed a reply (Doc. 40), and the

petition is ripe for review.

Upon consideration of the pleadings and the state court

record, the Court concludes that none of Milne’s claims warrant

habeas relief. Because the Court was able to resolve the petition

on the record, an evidentiary hearing is not warranted. See

Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

I. Background and Procedural History

On October 18, 2011, the state charged Milne by third amended

information with lewd and lascivious exhibition, in violation of

Florida Statute § 800.04(7)(b) (count one), voyeurism, in

violation of Florida Statute § 810.14 (count two), and misdemeanor

battery, in violation of Florida Statute § 784.03 (count three).

(Doc. 37-2 at 98–99). After a jury trial on count one, Milne was

found guilty as charged. (Id. at 105, 519). He entered guilty

pleas on counts two and three. (Id. at 106–110). The trial court

sentenced him as a habitual felony offender and prison releasee

re-offender to thirty years in prison on count one, with a minimum

mandatory term of fifteen years, and to time served on counts two

and three. (Id. at 168). After oral arguments, Florida’s Second

District Court of Appeal (“Second DCA”) affirmed Milne’s

conviction and sentence without a written opinion. (Id. at 597);

Milne v. State, 118 So. 3d 229 (Fla. 2d DCA 2013).

Milne filed a pro se motion (and two amended motions) under

Rule 3.850 of the Florida Rules of Criminal Procedure

(collectively, “First Rule 3.850 Motion”). (Doc. 37-2 at 620–65,

1179–86, 1216–23). After ordering a response from the state, the

postconviction court ordered an evidentiary hearing on grounds one

and two,1 summarily denied grounds three through six, and reserved

ruling on ground seven (a claim of cumulative error). (Id. at

1095–1105).

1 In ground one, Milne argued that defense counsel Joseph

Proulx was constitutionally ineffective for advising him to reject

a ten-year plea offer from the state. (Doc. 37-2 at 623). In

ground two, Milne argued that defense counsel Stephen Everett was

constitutionally ineffective for advising Milne to reject a

subsequent twelve-year plea offer from the state. (Id. at 626).

After the evidentiary hearing, the postconviction court

entered an order granting ground one and denying all other grounds

in the First Rule 3.850 Motion. (Doc. 37-2 at 1266–75).

Specifically, the Court concluded that Proulx misadvised Milne as

to the validity of a proposed defense on intent. (Id. at 1271–

72). The Court further found a reasonable probability that Milne

would have accepted the plea had he been informed that the defense

did not exist. (Id. at 1272). The postconviction court vacated

the judgment and sentence on count one and directed the state to

set the case for a new trial. (Id. at 1274).

Milne moved to correct the order, arguing that instead of

vacating the judgment, the postconviction court should have

“instruct[ed] the prosecution to re-offer the original ten-year

plea and to then accept the plea. Otherwise, the Court should

have left the conviction undisturbed.” (Doc. 37-2 at 1285). The

postconviction court denied the motion, specifically noting that

“the remedy proposed by Defendant here is one that the Supreme

Court clearly described as discretionary and further recognized

may be limited by state decisional law.” (Id. at 1291).

Florida’s Second DCA affirmed the results of the court’s ruling

without a written opinion. (Id. at 1525); Milne v. State, 203 So.

3d 165 (Fla. 2d DCA 2016).

Thereafter, Milne, through counsel, filed a motion to declare

Florida Statute § 800.04(7) unconstitutional. (Doc. 37-3 at 710).

The state court orally denied the motion without making any

findings. (Id. at 943). Milne appealed, and the Second DCA

affirmed without a written opinion. (Id. at 1058, 1077).

On January 9, 2017, Milne entered an open plea to the court

on count one. (Doc. 37-3 at 902). During the plea hearing,

Milne’s counsel argued that he should receive a ten-year sentence

because of the rejected plea offer, but that the state was only

willing to offer a twenty-year plea. (Id. at 917-18, 923–24).

However, the court once again sentenced Milne as a habitual felony

offender and prison releasee re-offender to thirty years in prison

with a minimum mandatory term of fifteen years. (Id. at 926).

The court noted that a prior sexual battery conviction weighed

into its decision to impose the harsh sentence. (Id. at 927).

Milne appealed, arguing inter alia that the court “exceeded its

discretionary bounds under Lafler in failing to implement a

constitutional remedy” and erred by finding that Florida Statute

§ 800.04(7) was not unconstitutional. (Id. at 1036, 1058). The

Second DCA affirmed without a written opinion. (Id. at 1077).

On November 13, 2018, Milne filed a second motion under Rule

3.850 of the Florida Rules of Criminal Procedure (“Second Rule

3.850 Motion”) alleging four grounds of ineffective assistance of

counsel regarding his newly-entered plea. (Doc. 37-3 at 1107).

The postconviction court summarily denied each claim in a written

order. (Id. a 1443–56). The Second DCA affirmed without a

written opinion. (Id. at 1650); Milne v. State, 295 So.3d 760

(Fla. 2d DCA 2020).

II. Governing Legal Principles

A. The Antiterrorism Effective Death Penalty Act(“AEDPA”)

Under the AEDPA, federal habeas relief may not be granted

with respect to a claim adjudicated on the merits in state court

unless the adjudication of the claim:

(1) resulted in a decision that was contrary

to, or involved an unreasonable

application of, clearly established

Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that 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). When reviewing a claim under §

2254(d), a federal court must presume that any “determination of

a factual issue made by a State court” is correct. Id. § 2254(e).

The petitioner bears “the burden of rebutting the presumption of

correctness by clear and convincing evidence.” Id. “Clearly

established federal law” consists of the governing legal

principles set forth in the decisions of the United States Supreme

Court at the time the state court issued its decision. White v.

Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549 U.S. 70,

74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

A decision is “contrary to” clearly established federal law

if the state court either: (1) applied a rule that contradicts

the governing law set forth by Supreme Court case law; or (2)

reached a different result from the Supreme Court when faced with

materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application”

of the Supreme Court’s precedents if the state court correctly

identifies the governing legal principle, but applies it to the

facts of the petitioner’s case in an objectively unreasonable

manner, Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the state

court either unreasonably extends a legal principle from [Supreme

Court] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.” Bottoson v. Moore, 234 F.3d 526, 531

(11th Cir. 2000) (quoting Williams, 529 U.S. at 406).

The section 2254(d) standard is both mandatory and difficult

to meet. To demonstrate entitlement to federal habeas relief, the

petitioner must show that the state court’s ruling was “so lacking

in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” White, 572 U.S. at 420 (quoting Harrington v.

Richter, 562 U.S. 86, 103 (2011)).

A state court’s summary rejection of a claim, even without

explanation, qualifies as an adjudication on the merits—warranting

deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.

2008). Generally, in the case of a silent affirmance, a federal

habeas court will “look through” the unreasoned opinion and presume

that the affirmance rests upon the specific reasons given by the

last court to provide a reasoned opinion. See Ylst v. Nunnemaker,

501 U.S. 797 (1991); Wilson v. Sellers, 138 S. Ct. 1188 (2018).

However, the presumption that the appellate court relied on the

same reasoning as the lower court can be rebutted “by evidence of,

for instance, an alternative ground that was argued [by the state]

or that is clear in the record” showing an alternative likely basis

for the silent affirmance. Sellers, 138 S. Ct. at 1196.

B. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established

a two-part test for determining whether a convicted person is

entitled to relief on the ground that his counsel rendered

ineffective assistance. 466 U.S. 668, 687–88 (1984). A

petitioner must establish that counsel’s performance was deficient

and fell below an objective standard of reasonableness and that

the deficient performance prejudiced the defense. Id. This is a

“doubly deferential” standard of review that gives both the state

court and the petitioner’s attorney the benefit of the doubt.

Burt v. Titlow, 571 U.S. 12, 15 (2013) (citing Cullen v.

Pinholster, 131 S. Ct. 1388, 1403 (2011)).

The focus of inquiry under Strickland’s performance prong is

“reasonableness under prevailing professional norms.” Id. at 688.

In reviewing counsel’s performance, a court must adhere to the

presumption that “counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689 (citation

omitted). A court must “judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as

of the time of counsel’s conduct,” applying a highly deferential

level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470,

477 (2000) (quoting Strickland, 466 U.S. at 690). Proving

Strickland prejudice “requires showing that counsel’s errors were

so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland, 466 U.S. at 687. To

demonstrated prejudice in the context of a plea, “the defendant

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 v. Lockhart, 474 U.S. 52, 59

(1985).

III. Discussion

The relevant facts surrounding Milne’s charges and

convictions, as alleged in his brief on appeal are as follows:

[SD] is fifteen and is in the tenth grade. In

October 2010, her uncle, William Milne, moved

in with she and her family. This was the first

time she met him. He eventually moved into his

own room in the house-a room [SD} previously

used as a closet. A door leads from [SD]’s

bedroom to the room Mr. Milne occupied. They

would go to the gym together and work out.

Over objection, she testified that her uncle

would make comments when she bent over and say

things like, “Oh, I like to see that” He would

also call her “hot.” They quit going to the

gym because the comments made [SD]

uncomfortable.

Mr. Milne’s job required him to leave town a

week or two at a time. In March 2011, he

started working locally. [SD] would sometimes

wake up in the middle of the night and see her

uncle standing at the foot of the bed watching

her sleep. She would pretend to be asleep or

roll over or make movement and he would leave.

She never said anything to him. On other

occasions, she woke up in the middle of the

night to find her shirt and bra pulled up.

She did not know how this was happening.

Sometime between May 9 and May 18, 2011, [SD}

woke up to find Mr. Milne standing beside her

bed masturbating. Although it was dark, she

was able to see him because the television was

on. She closed her eyes, so she was just

peeking. She was shocked and did not say

anything. When she opened her eyes, he pulled

up his shorts, said “sorry,” and returned to

his room

(Doc. 37-2 at 544–45). As noted, Milne was convicted of lewd and

lascivious exhibition, voyeurism, and misdemeanor battery as a

result of his actions.

Milne now raises four grounds and three sub-grounds for relief

in this petition. He asserts that trial counsel was ineffective

for advising him to reject a ten-year plea offer (Ground One); the

state court erred when it did not require the state to re-offer

the ten-year plea (Ground Two); his guilty plea was unknowing and

involuntary because of postconviction counsel’s errors (Ground

Three); and Florida Statute § 800.04(7) is unconstitutional on its

face (Ground Four). (Doc. 17 at 5–10).

Each of these claims was raised on direct appeal or in a

postconviction motion and affirmed on appeal. The Second DCA did

not explain its reasoning in any of the affirmances. Therefore,

this Court will “look through” the unreasoned decisions of the

state appellate court and presume that it adopted the reasoning of

the lower courts. See Sellers, 138 S. Ct. at 1192.

The Court addresses Milne’s arguments in the order presented.

A. Grounds One and Two-The Lafler Claim

In Ground One, Milne asserts that trial counsel Joseph Proulx

(“Proulx”) rendered ineffective assistance during plea

negotiations, resulting in Milne’s rejection of the state’s ten-

year plea offer. (Doc. 17 at 5; Doc. 18 at 8). Milne acknowledges

that the postconviction court found Proulx ineffective for

suggesting that an intent defense could be raised at trial, but

asserts that the court erred when it vacated his conviction and

ordered a new trial as the remedy for Proulx’s defective advice.

(Doc. 18 at 8, 9–10). In Ground Two, Milne argues that the

postconviction court erred under Lafler v. Cooper, 566 U.S. 156

(2012) when, after finding Proulx ineffective during plea

negotiations, it did not require the state to re-offer the ten-

year plea Milne had rejected. (Doc. 17 at 7; Doc. 18 at 12).

Because resolution of both claims involves a determination of

whether the state court was required to re-offer a ten-year plea

after Proulx was found ineffective during plea negotiations, the

Court addresses Grounds One and Two together.

Milne raised Ground One in his First Rule 3.850 Motion. He

claimed that he did not intend for his niece to wake up when he

masturbated next to her while she slept, and prior to trial, he

asked Proulx whether the state would be required to prove that he

intended for SD to see him masturbating. (Doc. 37-2 at 623).

Proulx advised him that “it appears that the State would in fact

be required to prove that [Milne] acted with the intent for [SD]

to become aware of the [masturbation] by either seeing, hearing,

or sensing the act take place[.]” (Id.) Therefore, Milne “chose

to reject the State’s 10-year plea offer.” (Id. at 624). Milne

asserts that three days prior to trial, he became aware that the

“intent defense” was not viable and that the state was no longer

willing to offer the plea. (Id. at 625). Milne was sentenced to

thirty years in prison after being found guilty at trial.2

The postconviction court held an evidentiary hearing on the

claim. The court summarized the testimony at the hearing. (Doc.

2 Milne also faulted Stephen Everett, another of his trial

attorneys, for advising him to reject a twelve-year plea offer.

(Doc. 37-2 at 626). However, this ground was rejected by the

postconviction court and does not appear to be an issue in this

habeas petition.

37-2 at 1269–71). It found that Proulx did not advise Milne to

reject the ten-year offer, but nevertheless, Proulx did not advise

him that the intent defense was not viable. (Id. at 1271). The

court noted that “there is no reasonable reading of the statute

that would reflect such an understanding, and counsel should have

advised [Milne] of such.” (Id.) The court found a reasonable

probability that Milne would have accepted the plea had he been

fully advised, and granted ground one of the First Rule 3.850

Motion. (Id. at 1272). The court rejected Milne’s claims

involving the subsequent twelve-year offer, finding that Milne

“did not consider the Intent Defense in rejecting the plea;

instead, he rejected the plea based solely on his belief that his

family would not testify against him.” (Id.)

Although the postconviction court granted relief on ground

one of the First Rule 3.850 Motion, it specifically found that

“[e]ven where trial counsel’s misadvice results in a defendant’s

rejection of a favorable plea offer, the State is not required to

reoffer its original plea on remand.” (Doc. 37-2 at 1272) (quoting

Odegaard v. State, 137 So. 3d 505, 508 (Fla. 2d DCA 2014)). The

court vacated the judgment and sentence on count one and directed

the state to set the case for a new trial. This was not the remedy

desired by Milne, who wanted the state to re-offer the ten-year

plea.

Milne moved for rehearing on ground one, arguing that the

postconviction court was required under Lafler and Alcorn v. State,

121 So. 3d 419 (2013) to “instruct the prosecution to re-offer the

original ten year plea and to then accept the plea.” (Doc. 37-2

at 1285.) The postconviction court held a hearing on the motion

(id. at 1304–20), but ultimately disagreed with Milne’s

interpretation of both Alcorn and Lafler. The court concluded

that the Lafler court “explicitly explained that state decisional

law would give a more complete guidance as to the exercise of a

court’s discretion in fashioning a remedy in such situations.

Accordingly, the remedy proposed by Defendant here is one that the

Supreme Court clearly described as discretionary and further

recognized may be limited by state decisional law.” (Id. at 1291).

In other words, the postconviction court concluded that Lafler did

not mandate that it order the state to re-offer a ten-year plea.

Florida’s Second DCA affirmed without a written opinion. (Id. at

1525).3

3 The postconviction court also determined that it did not

err under Alcorn because the Florida Supreme Court’s review of

Lafler’s remedy analysis is dicta. See Alcorn, 121 So. 3d at 433

(“[b]ecause the issue of whether Alcorn can establish prejudice

remains unresolved at this juncture, we do not reach the issue of

the appropriate remedy in this case because it would be premature

to do so.”) Under the AEDPA, federal courts are limited to

consideration of whether the state court’s resolution of a claim

is contrary to, or an unreasonable application of, clearly

established law, as set forth by the United States Supreme Court.

See Shere v. Sec’y, Fla. Dep’t of Corr., 537 F.3d 1304, 1310 (11th

Cir. 2008). Accordingly, this Court will not address whether

Alcorn required a different result under Florida law.

Milne raised the issue of the proper remedy under Lafler again

in his Second Rule 3.850 Motion (after his plea and re-sentencing)

as part of a claim that counsel was constitutionally ineffective

for advising him to enter an open plea to the court.4 In a thorough

5

opinion that expanded on the reasoning in its earlier decision,

the postconviction court summarized the law under both Lafler and

its companion case, Missouri v. Frye, 566 U.S. 134 (2012), and

considered whether those cases mandated a particular remedy in a

case such as Milne’s:

Essentially, Defendant’s claim relates to his desire to

have the State re-offer the original plea it had first

tendered to him and which he had rejected before his

2011 sentencing. He calls this the “Lafler remedy” to

which he believes he is entitled as a result of having

prevailed on a previous rule 3.850 motion.

. . .

Defendant’s belief that he is entitled to have the ten-

year plea re-offered to him derives from a statement

made in Lafler v. Cooper, 566 U.S. 156 (2012): “The

correct remedy in these circumstances, however, is to

order the State to reoffer the plea agreement.” Id. at

174. The United States Supreme Court reviewed

ineffective assistance of counsel claims by failing to

convey a plea offer or by misadvising a defendant to

reject an offer in Lafler and its companion case,

Missouri v. Frye, 566 U.S. 134 (2012). Notably, these

cases address only the prejudice aspect of Strickland as

it had been conceded in both that counsel’s performance

had been deficient. In Lafler, a plea offer had been

4 Petitioner

argued that he believed the sentencing court

would be bound under Lafler to sentence him to ten years if he

made an open plea to the court after his initial conviction was

vacated.

5 Circuit Court Judge J. Frank Porter authored both opinions.

rejected and the defendant proceeded onto trial, at

which he was found guilty and received a sentence less

favorable than the terms of the plea. Lafler, 566 U.S.

at 160. In order to establish prejudice in such cases,

the Lafler court stated that defendants must show that

the plea offer would have been presented to the court,

that the court would have accepted its terms, and that

the conviction, sentence, or both would have been less

severe under the terms of the offer than the judgment

and sentence that were imposed. Id. at 163. The Court

also explained that “[t]he specific injury suffered by

defendants who decline a plea offer as a result of

ineffective assistance of counsel and then receive a

greater sentence as a result of trial can come in at

least one of two forms.” Id. at 170.

In some cases, the sole advantage a defendant

would have received under the plea is a lesser

sentence. This is typically the case when the

charges that would have been admitted as part

of the plea bargain are the same as the charges

the defendant was convicted of after trial.

In this situation the court may conduct an

evidentiary hearing to determine whether the

defendant has shown a reasonable probability

that but for counsel’s errors he would have

accepted the plea. If the showing is made,

the court may exercise discretion in

determining whether the defendant should

receive the term of imprisonment the

government offered in the plea, the sentence

he received at trial, or something in between.

Id. However, in other cases “it may be that

resentencing alone will not be full redress for the

constitutional injury . . . [ such as] if a mandatory

sentence confines a judge’s sentencing discretion after

trial . . . “ Id. (internal cites omitted).

In these circumstances, the proper exercise of

discretion to remedy the constitutional injury

may be to require the prosecution to reoffer

the plea proposal. Once this has occurred,

the judge can then exercise discretion in

deciding whether to vacate the conviction from

trial and accept the plea or leave the

conviction undisturbed.

Id. As mentioned above, Defendant’s belief that he is

entitled to have the ten-year plea re-offered to him

derives from the following passage in Lafler: “As a

remedy, the District Court ordered specific performance

of the original plea agreement. The correct remedy in

these circumstances, however, is to order the State to

reoffer the plea agreement.” Id. at 174.

In Frye, counsel failed to convey a plea and the

defendant accepted a later, less favorable plea. Frye,

566 U.S. at 138. The Court explained that:

[i]n order to complete a showing of Strickland

prejudice, defendants who have shown a

reasonable probability they would have

accepted the earlier plea offer must also show

that, if the prosecution had the discretion to

cancel it or if the trial court had the

discretion to refuse to accept it, there is a

reasonable probability neither the

prosecution nor the trial court would have

prevented the offer from being accepted or

implemented.

Id. at 148. Additionally, the Court stated that if “the

prosecutor could have canceled the plea agreement, and

if [the defendant] fails to show a reasonable

probability the prosecutor would have adhered to the

agreement, there is no Strickland prejudice.” 566 U.S.

at 151. “Likewise, if the trial court could have

refused to accept the plea agreement, and if [the

defendant] fails to show a reasonable probability the

trial court would have accepted the plea, there is no

Strickland prejudice.” Id.

. . .

In sum, Lafler and Frye did not provide clear guidance

on the appropriate remedy for all postconviction claims

of misadvice or non-advice regarding a plea, and

explicitly left the issue to lower and state courts to

decide. Lafler, 566 U.S. at 171 (“In implementing a

remedy . . . the trial court must weigh various factors;

and the boundaries of proper discretion need not be

defined here. Principles elaborated over time in

decisions of state and federal courts, and in statutes

and rules, will serve to give more complete

guidance[.]”); Frye, 566 U.S. at 150 (“Whether the

prosecution and trial court are required to [adhere to

the first plea offer and accept it] is a matter of state

law, and it is not the place of this Court to settle

those matters.”).

The Florida Supreme Court adopted Lafler’s holding in

Alcorn, but it did not reach the issue of remedy either,

reasoning that under the facts of Alcorn, “it would be

premature to do so.” 121 So. 3d at 433. Guidance for

this court is found in the Second District Court of

Appeal’s decision of Odegaard v. State, 137 So.3d 505

(Fla. 2d DCA 2014). Pursuant to Odegaard, if a

defendant successfully proves ineffective assistance of

counsel relating to an unaccepted plea offer, the “State

is not required to reoffer its original plea on remand.”

Id. at 508(internal cites omitted). The Second District

has reiterated this position in Huntoon v. State, 240

So. 3d 142, 146 (Fla. 2d DCA 2018)(“Even where trial

counsel’s misadvice results in a defendant’s rejection

of a favorable plea offer, the State is not required to

reoffer its original plea on remand.”).

Applying the law to the instant case, this Court first

notes that it is bound by Odegaard, and that consequently

while the remedy Defendant seeks was made to the

defendant in Lafler, presumably because the laws of

Michigan permitted a trial court to direct the

prosecutor to re-convey a plea offer, this Court cannot

provide that relief to Defendant. Thus, even had

Defendant gone to trial, lost, and “preserved the issue

for appeal,” the State would still not be forced to re-

convey the ten-year plea offer. Additionally, the

record reflects that the State had filed the HFO and PRR

notices in August of 2011, and that at the time of the

June 1, 2015 pre-trial hearing, announced that it was

“not in a position to make [Defendant] any sort of

meaningful offer of ten years that the victim would be

agreeable to.” Thus, to the extent that Defendant

claims that the State was not making a good faith effort

of negotiation by re-extending the ten-year plea offer

after the first rule 3.850 motion was granted, it appears

that he is mistaken.

(Doc 37-3 at 1445–49)(internal citations to the record omitted and

slight alterations to text for clarity). Milne appealed the

postconviction court’s denial of this claim (Doc. 37-3 at 1605),

and the Second DCA affirmed without a written opinion. (Id. at

1650).

On at least two occasions, Florida’s Second DCA rejected

Milne’s argument that the state was required to re-offer him a

ten-year plea deal after poor advice from Proulx led to his

rejection of the first offer. To obtain federal habeas relief,

Milne must now show that the state court conclusions (that Lafler

did not require the prosecution to re-offer the ten-year deal)

were “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court.” 28 U.S.C. § 2254(d)(1). Milne points to Lafler as the

“clearly established Federal law” implicated in § 2254(d)(1).6

Milne specifically asserts that under Lafler, “the state

court did not have the discretion to vacate the conviction and

resentence Milne without first ordering the State to reoffer the

10-year plea proposal and without Milne first deciding to accept

said plea agreement.” (Doc. 18 at 13). He points to the following

verbiage in Lafler to support his argument:

The correct remedy in these circumstances, however, is

to order the State to reoffer the plea agreement.

Presuming respondent accepts the offer, the state trial

court can then exercise its discretion in determining

whether to vacate the convictions and resentence

respondent pursuant to the plea agreement, to vacate

6 Petitioner does not argue that the state court’s

adjudication of this claim was based upon an unreasonable

determination of the facts. Therefore, the Court does not review

this claim under 28 U.S.C. § 2254(d)(2).

only some of the convictions and resentence respondent

accordingly, or to leave the convictions and sentence

from trial undisturbed.

7

566 U.S. at 174. When Milne made the same argument to the first

postconviction court (in his motion for rehearing), the court

disagreed that Lafler mandated such a remedy. The court pointed

to an earlier portion of Lafler in which the Supreme Court held

that in cases (such as Milne’s) where “a mandatory sentence

confines a judge’s sentencing discretion after trial . . . the

proper exercise of discretion to remedy the constitutional injury

may be to require the prosecution to reoffer the plea proposal.”

Lafler, 566 U.S. at 171 (emphasis added). And the second opinion

pointed out that, contrary to Milne’s assertions, the Lafler court

determined that “the boundaries of proper discretion need not be

defined here.” Id. Rather, “[p]rinciples elaborated over time

in decisions of state and federal courts, and in statutes and

rules, will serve to give more complete guidance as to the factors

7 Notably, when describing this remedy (that Milne argues is

mandatory), the Lafler court did not clarify whether “in these

circumstances” referred to every case in which a defendant rejects

a plea based on poor advice from counsel or simply to the specific

facts and circumstances of Mr. Lafler’s case. If construed as

mandatory, the phrase appears to directly contradict other

passages in Lafler. Therefore, it was reasonable for the state

courts to conclude that the Supreme Court was referring to the

particular “circumstances” facing Mr. Lafler and not providing a

mandate for all similar cases.

that should bear upon the exercise of the judge’s discretion.”

Id.

Moreover, both opinions explained that Lafler specifically

found that guidance on the state judge’s proper discretion in cases

where a defendant rejected a plea because of counsel’s misadvice

could be found, at least in part, in state court decisions.

Lafler, 566 U.S. at 171. The postconviction court relied on

Odegaard v. State (in two separate orders, both affirmed on

appeal), for the proposition that “[e]ven where trial counsel’s

misadvice results in a defendant’s rejection of a favorable plea

offer, the State is not required to reoffer its original plea on

remand.” 137 So. 3d at 508. Rather, the remedy for a Florida

defendant who succeeds on such a postconviction claim is a

recommendation from the postconviction court that the parties

engage in a “good faith resumption of plea negotiations.” Rudolf

v. State, 851 So. 2d 839 (Fla. 2d DCA 2003). However, the

postconviction court in Florida “has no authority to require the

State to reoffer its original plea offer.” Feldpausch v. State,

826 So. 2d 354, 357 (Fla. 2d DCA 2002). Further, the state courts

specifically found that the state had made a good faith effort to

engage in plea negotiations, although (because of the victim’s

objections), it was not willing to re-offer a ten year sentence—

the only remedy that Milne was willing to accept. Rather, it made

a twenty-year offer.

Despite the voluminous record and the postconviction court’s

lengthy discussions of the law applicable to Milne’s claim, the

issue for this Court on habeas review is simple—it must merely

determine whether “the state court’s ruling [that neither Lafler

nor Frye provided clear guidance on the appropriate remedy in these

cases and explicitly left the issue to lower and state courts to

decide] . . . was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 101 (2011).

Given the Lafler court’s comments regarding the significance

of “principles elaborated over time in decisions of state and

federal courts” when crafting appropriate remedies for ineffective

assistance during plea negotiations, this Court is not convinced

that either Lafler or Frye mandate that states re-offer the same

plea after a finding of ineffective assistance during plea

negotiations. Underscoring this conclusion is the language in

Lafler and Frye suggesting that this remedy is discretionary and

should be guided by state law. See Lafler, 566 U.S. at 171 (noting

that the proper remedy “may be to” require the prosecution to

reoffer the plea proposal); Frye, 566 U.S. at 150 (“Whether the

prosecution and trial court are required to [adhere to the first

plea offer and accept it] is a matter of state law, and it is not

the place of this Court to settle those matters.”).

And even if this Court disagreed with the state courts’

adjudication of the claim, such disagreement would not

automatically result in habeas relief. This is because federal

habeas relief is precluded “so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.”

Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)). In other words, “even a strong case for

relief does not mean the state court’s contrary conclusion was

[automatically] unreasonable.” Harrington, 562 U.S. at 102; see

also 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.” (emphases in original)).

Fairminded jurists could certainly disagree over whether the state

was required to re-offer Milne the ten-year deal he now argues was

mandatory. Therefore, he is not entitled to relief under the

AEDPA, and Grounds One and Two are denied.

B. Ground Three-Ineffective Assistance of Counsel

Milne asserts that his guilty plea was unknowing and

involuntary because defense counsel Edward Kelly erroneously

advised him that: (1) his Lafler claim would be preserved for

appellate review if he entered an open guilty plea to the court;

and (2) the sentencing court would consider his sentencing

memorandum and impose a ten-year sentence if he entered an open

plea to the court. (Doc. 18 at 24 (restated)). He also argues

that the cumulative effects of Kelly’s mistakes made his plea

unknowing and involuntary. (Doc. 17 at 8).

Milne raised these ineffective assistance claims in his

Second Rule 3.850 Motion. (Doc. 37-3 at 1107–28). The

postconviction court summarily denied the claims, and the Second

DCA affirmed without a written opinion. (Id. at 1443–56, 1650).

1. Ground 3(a). The state court did not unreasonably

conclude that Kelly was not constitutionally

ineffective for failing to preserve the Lafler

claim for appeal.

Milne alleges that Kelly incorrectly advised him that his

Lafler claim would be preserved “for appellate review whether or

not he plead or went to trial, which amounted to a misstatement of

the law.” (Doc. 18 at 25). He asserts that Kelly should have

advised him to go to trial again to preserve the issue or filed a

post-sentencing motion to withdraw the plea to preserve the issue.

(Id.)

The postconviction court denied this claim on Lockhart’s

prejudice prong. First, the court noted that Milne did raise his

Lafler claim in his pro se brief on direct appeal and Milne did

not show that the claim was rejected by the Second DCA on

procedural grounds. (Doc. 37-3 at 1033).8 The state did not file

8 Appointed counsel filed a brief under Anders v. California,

386 U.S. 738 (1967) asserting that, despite a thorough review of

the record, he found no reversible error. (Doc. 37-3 at 1001).

Therefore, Petitioner filed a pro se brief on direct appeal of his

guilty plea.

an answer brief, and the Second DCA affirmed per curiam without a

written opinion. (Id. at 1077). The postconviction court noted

that “a per curiam affirmance without opinion on direct appeal

does not establish whether the specific issue was or was not

preserved for appeal. In such a case, a per curiam affirmance

might just as well have been based on the conclusion that the issue

was not preserved, as on the conclusion that the issue, though

properly preserved, lacked merit.” (Id. (quoting Tidwell v.

State, 844 So. 2d 701, 702–03 (Fla. 1st DCA 2003))).

Next, the postconviction court noted that Milne’s Lafler

argument had been addressed multiple times by the state courts,

and Milne was told each time that he was not entitled to the ten-

year deal. (Doc. 37-3 at 1449). Moreover, Milne had acknowledged

his guilt at multiple proceedings. (Id.) The court explained

that “Milne’s position in the instant motion is the same as it has

been for the past four years: Milne wants the ten-year plea offer

re-extended, he does not want to go to trial, and he only claims

to wants to go to trial now because he believes that by doing so

he will be able to achieve the result he desires [on appeal].”

(Id. at 1449). In other words, the Court simply did not believe

that—absent Kelly’s failure to properly preserved the Lafler issue

for appeal—Milne would have refused to plead guilty and would have

insisted on going to trial. Lockhart, 474 U.S. at 58. Finally,

at the time of the plea, Milne’s Lafler issue had already been

litigated on appeal (of the First Rule 3.850 Motion) and rejected

by the Second DCA. And the postconviction court that reviewed

Milne’s Second Rule 3.850 Motion also concluded that the claim had

no merit. See discussion Part III(A) infra. As noted by the

Supreme Court in Lockhart, “[i]n many guilty plea cases, the

‘prejudice’ inquiry will closely resemble the inquiry engaged in

by courts reviewing ineffective-assistance challenges to

convictions obtained through a trial.” 474 U.S. at 59. In other

words, preservation of a futile or meritless claim is unlikely to

9

be found to result in Lockhart prejudice. Even had Kelly properly

preserved Milne’s Lafler claim, it would not have changed the

outcome of an appeal after trial—the Second DCA had already ruled

on this issue. That Milne was unlikely to succeed on a further

appeal of his Lafler claim, even if properly preserved, underscores

a conclusion that Milne has not demonstrated prejudice under

Lockhart. The state court did not unreasonably conclude that

Milne suffered no prejudice from Mr. Kelly’s failure to preserve

a meritless argument, and he is not entitled to federal habeas

relief on Ground 3(a).

9 This same reasoning applies to any assertion that Kelly

should have moved to withdraw Milne’s plea so as to preserve his

Lafler claim on direct appeal. Milne has not provided the grounds

on which Kelly could have made such a motion, and Kelly was not

ineffective for failing to make (or advise Milne) to make a futile

or meritless motion.

2. Ground 3(b). The state courts did not unreasonably

conclude that Kelly was not ineffective for

advising Milne that the trial court would honor the

sentencing memorandum and impose a ten-year

sentence if he entered an open plea.

Milne asserts that Kelly told him that the trial court would

be required to adhere to the amended sentencing memorandum if he

entered an open plea. (Doc. 18 at 25). Specifically, he asserts

that Kelly advised him that he would be entitled to prior jail

credit and a potential downward departure to time served. (Id.)

He asserts that Kelly also told him that “the trial court was going

to impose a 10-year sentence in accordance with the trial court’s

statement made at the previous hearing held in December 2016.”

(Id. at 25). He argues that he “would not have entered the guilty

plea, but instead insisted on another fair trial had counsel not

misled Milne to believe that he would be receiving a 10-year

sentence, with the option of having the sentence modified or

reduced or mitigated based on his serious medical condition[.]”

(Id. at 27).

The postconviction court determined that Milne’s claims were

contrary to his sworn statements at his plea colloquy and denied

this claim as follows:

“An open plea is not made pursuant to a plea agreement

with the state, and the defendant is given no assurance

of what sentence he will receive when sentenced.”

Wagner v. State, 895 So. 2d 453, 457 (Fla. 5th DCA 2005).

“When a defendant enters an open plea, he or she

indicates a willingness to accept anything up to and

including the maximum possible sentence.” Id. (internal

marks and cite omitted). A “trial court is always well-

advised, when accepting a plea, to ascertain whether any

promises were made to the defendant apart from those

discussed during the plea colloquy.” Simmons v. State,

611 So. 2d 1250, 1253 (Fla. 2d DCA 1992) (emphasis in

original). “At this juncture it is incumbent upon the

defendant to reveal any additional expectations he may

have; generally, he will be estopped from later arguing

a position contrary to statements made in open court or

in writing.” Id. Additionally, to “defeat a claim that

a defendant entered a plea based on erroneous advice of

trial counsel . . . the court must have addressed the

specific issue with the defendant.” Johnson, 757 So.

2d [587 So.2d 586, 587 (Fla. 2d DCA 2000].

In the instant case, the record reflects that at the

time he entered the plea, Defendant was asked if anyone

had “made any promises to [him] to get [him] to enter

this plea,” to which Defendant replied, “No, sir.” He

was further asked whether he understood that by entering

an open plea, he could be sentenced to the statutory

maximum, and that he could be sentenced as a PRR and

HVFO to 30 years. The court then asked Defendant if he

“still wish[ ed] to plead guilty,” to which Defendant

responded, “Yes, sir.” Thus, Defendant is “estopped from

later arguing a position contrary to statements made in

open court or in writing.” Simmons, 611 So. 2d at 1253.

Defendant has failed to demonstrate any entitlement to

relief.

(Doc. 37-3 at 1452–53 (citations to the record omitted)). The

Second DCA affirmed without a written opinion. (Id. at 1650).

At Milne’s plea colloquy, but before he entered the guilty

plea, Kelly brought up the Lafler case, and the judge noted that

they had already discussed the issue and that he was “maintaining

the position I’ve held since the case got back from the appellant

court.” (Doc. 37-3 at 1269). Accordingly, Milne was well aware

that the court did not believe that he was automatically entitled

to the ten-year plea deal. However, Milne entered a guilty plea

without the benefit of a plea agreement anyway. At the colloquy,

the court questioned him as follows:

Q. You also waive the right to appeal everything in

the case except for the jurisdiction of the court

and the legality of the sentence. Do you

understand?

A. Yes, sir.

Q. Has anyone made any promises to you to get you to

enter this plea?

A. No, sir.

Q. Did you read and understand the felony plea form?

A. Yes, sir.

Q. Do you have any questions?

A. No, sir.

Q. Did you sign the document?

A. Yes, sir.

Q. Do you understand that when you enter a plea that’s

not negotiated that you could – you could receive

up to the statutory maximum

. . .

So you could receive up to 30 years. Do you

understand that?

A. Yes, sir.

Q. Do you still wish to plead guilty?

A. Yes, sir.

Q. Are you pleading guilty because you are, in fact,

guilty?

A. Yes, sir.

Q. Are you satisfied with the services of Mr. Kelly,

your lawyer?

A. Yes, sir.

(Doc. 37-3 at 1272-73). In a post-conviction challenge to a guilty

plea, the representations of the defendant at the plea hearing,

plus the findings of the judge, constitute “a formidable barrier”

to habeas relief. Blackledge v. Allison, 431 U.S. 63, 73-74

(1977). Indeed, a defendant’s solemn declarations in open court

carry a strong presumption of verity. (Id.)

Despite Milne’s present self-serving statement that Kelly

made promises regarding his sentencing exposure and certain

requests in his sentencing memorandum if he entered an open plea,

Milne told the state court under oath that no promises had been

made in exchange for the plea. Milne offers no evidence showing

that he lied at the plea colloquy, and he has not explained why he

did not inform the court of the alleged promises made regarding

his likely sentence and his sentencing memorandum requests.

Rather, Milne told the trial court, under oath, that no promises

had been made to enter the plea, that he was pleading guilty

because he was guilty, and that he understood that he faced up to

30 years in prison for his offense. Milne has not overcome the

strong presumption of the veracity of his sworn statements during

the plea hearing. Even if Kelly told Milne that his likely

sentence would be ten years based on the ruling in his First Rule

3.850 Motion or that the judge was likely to consider a downward

departure based on Milne’s health, “an erroneous strategic

prediction about the outcome of a [proceeding] is not necessarily

deficient performance.” Lafler, 566 U.S. at 174; see also United

States v. Arvanitis, 902 F.2d 489, 494–95 (7th Cir. 1990) (no

ineffective assistance where claim based only on inaccurate

prediction of sentence); Johnson v. Massey, 516 F.2d 1001, 1002

(5th Cir. 1975) (good faith but erroneous prediction of a sentence

by a defendant’s counsel does not render the guilty plea

involuntary).

The state court did not unreasonably conclude that—because

Milne told the trial court that no promises had been made in

exchange for the plea—relief on Ground 3(b) was precluded. He is

not now entitled to federal habeas corpus relief.

3. Ground 3(c). Milne is not entitled to habeas

relief on his cumulative error claim.

Milne asserts, without explanation, that cumulative error

occurred. (Doc. 17 at 8). Milne raised this claim of cumulative

error in his Second Rule 3.850 Motion, but the postconviction court

rejected it because it found no error in any of his other claims.

(Doc. 37-3 at 1455). The Second DCA affirmed without a written

opinion. (Id. at 1650).

Absent Supreme Court precedent applying the cumulative error

doctrine to ineffective assistance claims, the state court’s

denial was neither contrary to, nor based on an unreasonable

application of, clearly established federal law. See Forrest v.

Fla. Dep’t of Corr., 342 F. App’x 560, 565 (11th Cir. 2009).

Therefore, Milne is not entitled to federal habeas relief.

Moreover, he has not established prejudice as to any individual

claim or the collective effect of any deficient performance. See

Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir.

2012) (rejecting claim of cumulative error since “none of

[petitioner’s] individual claims of error or prejudice have any

merit, and therefore we have nothing to accumulate”).

Accordingly, Milne is not entitled to habeas corpus relief on his

claim of cumulative error.

C. Ground Four. Florida Statute § 800.04(7).

Milne asserts that the statute under which he was convicted—

Florida Statute § 800.04(7)—is “lacking sufficient mens rea under

the due process clause of the United States Constitution pursuant

to Staples v. United States, 511 U.S. 600 (1994).” (Doc. 18 at

27). Specifically, he complains that “the statute regulates a

strict liability offense that imposes a harsh penalty, creates

substantial social stigma upon conviction, and punishes otherwise

innocent conduct/expression without requiring proof of knowledge

of the presence of the child[.]” (Id.)10

10 Milne asserts that he has standing to challenge the

constitutionality of the statute based on the overbreadth doctrine

Milne raised this claim in a pre-plea motion seeking to

declare Florida Statute § 800.04(7) unconstitutional. (Doc. 37-3

at 710). The trial court denied the motion without discussion.

(Id. at 944–45). Milne raised the issue again on appeal after

pleading guilty. (Doc. 37-3 at 1058). The Second DCA affirmed

without a written opinion. (Doc. 37-3 at 1077). “When a federal

claim has been presented to a state court and the state court has

denied relief, it may be presumed that the state court adjudicated

because “the act of procreation or sexual intercourse between a

husband and wife in the privacy of their home is plainly expressive

activity that qualifies for First and Fourteenth Amendment

protections.” (Doc. 18 at 27) (citing Roberts v. United States

Jaycees, 468 U.S. 609 (1984); Lawrence v. Texas, 539 U.S. 558

(2003); Bowers v. Hardwick, 478 U.S. 186, 216 (1986)).

However, in his reply, Milne notes that he abandons “his

vagueness challenge to the statute because his conduct is precluded

and the overbreadth doctrine does not apply to a vagueness

challenge under these facts.” (Doc. 40 at 14). Indeed, the

argument for overbreadth set forth in Milne’s appellate brief

(which also rests on a conclusion that section 800.004(7) is a

strict liability offense) does not support a conclusion that it

was unreasonable for the state courts to reject a vagueness or

overbreadth challenge to section 800.004(7). Milne engaged in

conduct that is clearly proscribed by section 800.004(7) and he

“cannot complain of the vagueness of the law as applied to the

conduct of others.” Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 495 (1982). And no reading of the statute

suggests that its overbreadth (if any) is substantial relative to

its “plainly legitimate sweep” of prohibiting sexually explicit

behavior in the presence of children. United States v. Williams,

553 U.S. 285, 292–93 (2008) (“[W]e have vigorously enforced the

requirement that a statute’s overbreadth be substantial, not only

in an absolute sense, but also relative to the statute’s plainly

legitimate sweep.” (emphasis in original)); see also discussion

infra. Therefore, even if Petitioner did not abandon his

vagueness or overbreadth claims, they would be denied on the

merits.

the claim on the merits, in the absence of any indication or state-

law procedural principles to the contrary.” Harrington, 562 U.S.

at 99–100. There is no indication that the appellate court did

not consider the merits of this claim, and as a result, this Court

owes AEDPA deference to its adjudication of Milne’s challenge to

the constitutionality of the statute.

Florida Statute § 800.004(7) provides that:

(a) A person who:

1. Intentionally masturbates;

2. Intentionally exposes the genitals in a lewd

or lascivious manner; or

3. Intentionally commits any other sexual act

that does not involve actual physical or

sexual contact with the victim, including, but

not limited to, sadomasochistic abuse, sexual

bestiality, or the simulation of any act

involving sexual activity

in the presence of a victim who is less than 16 years of

age, commits lewd or lascivious exhibition.

Fla. Stat. § 800.004(7). Milne contends that this is a “strict

liability offense” because it does not require “proof of knowledge

of the presence of the child.” (Doc. 18 at 27). A plain reading

of section 800.004(7), however, refutes Milne’s contention. In

general intent crimes, the person must “intentionally” or

“willfully” do a proscribed act—in Milne’s case, masturbate in the

presence of a child. The placement of the word “intentionally”

in front of the act “distinguish[es] that conduct from accidental

(noncriminal) behavior or strict liability crimes.” Linehan v.

State, 442 So. 2d 244 (Fla. 2d DCA 1983). If the Florida

legislature had intended section 800.004(7) to be a strict

liability offense, there would have been no need to include the

word “intentionally” in the statute at all—it would have made it

a crime for a person to masturbate or engage in other exhibitory

sexual acts in front of a child, whether or not the perpetrator

was aware of the child’s presence. And it would be absurd for any

court to construe the word “intentionally” as modifying only the

word “masturbate” or the other sexual acts proscribed by section

800.004(7) because these acts rarely, if ever, occur without

intent. Rather, the only logical reading of the statute is that

the proscribed act must be intentionally committed in the presence

of a child. Thus, the plain statutory language of section

800.004(7), reasonably construed, rebuts Milne’s argument that he

was convicted of a strict liability offense. See Nobles v. State,

769 So. 2d 1063, 1066 (Fla. 1st DCA 2000) (“[T]he courts have a

duty to interpret a statute in the most logical and sensible way

and to avoid an interpretation that produces an unreasonable

consequence.”).

Moreover, Milne has not explained how the state courts’

rejection of this claim was contrary to, or based upon an

unreasonable application of, clearly established federal law.

Milne directs this Court to Staples as standing for the proposition

that a statute violates the Due Process Clause of the Fifth

Amendment when it imposes a harsh penalty on a strict liability

offense. (Doc. 18 at 27). However, Staples was a narrow holding

on a federal firearms statute (511 U.S. at 619), and the Supreme

Court did not define or otherwise determine the criteria for a

strict liability offense. In fact, the Staples court acknowledged

that no court “has undertaken to delineate a precise line or set

forth comprehensive criteria for distinguishing between crimes

that require a mental element and crimes that do not.” Id. at

620.

As discussed, it would be reasonable for a state court to

conclude that section 800.004(7) is not a strict liability offense,

thus not implicating the Due Process Clause under Staples or any

other Supreme Court case.11 Milne is not entitled to federal

habeas corpus relief on Ground Four.

IV. Conclusion

11 The Supreme Court has held a criminal provision

unconstitutional under the Due Process Clause for failing to

require sufficient mens rea. See Lambert v. California, 355 U.S.

225 (1957). But the offense in Lambert (failing to register as

a convicted felon) was “wholly passive” and “unlike the

commission of acts . . . that should alert the doer to the

consequences of his deed.” Id. at 228. The actions criminalized

by section 800.004(7) are sufficiently distinguishable—requiring

the defendant to intentionally engage in an affirmative sex act in

the presence of a child—that this Court cannot say that the state

courts were unreasonable for not importing Lambert’s reasoning

into this different context.

Based on the foregoing, Milne is not entitled to relief on

the habeas claims presented here. Any allegations or claims not

specifically addressed are found to be without merit.

Accordingly, it is ordered that:

1. Milne’s 28 U.S.C. § 2254 petition is DENIED.

2. The Clerk is DIRECTED to terminate any pending motions

and deadlines as moot, close this case, and enter

judgment accordingly.

Certificate of Appealability12

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition.

28 U.S.C. § 2253(c)(1). Rather, a district court or circuit

justice or judge must first issue a certificate of appealability

(COA). “A [COA] may issue . . . only if the applicant has made 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,” 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, 336 (2003).

12 Under Rule 11(a) of the Rules Governing Section 2254 Cases

in the United States District Courts, the “district court must

issue or deny a certificate of appealability when it enters a final

order adverse to the applicant.”

Upon consideration of the record, the Court declines to issue

a COA. Because Petitioner is not entitled to a COA, he is not

entitled to appeal in forma pauperis.

DONE AND ORDERED in Fort Myers, Florida on August 9, 2022.

—_— □ 2, _ f

AA 9 = Pe

JGHH E. STEELE

5 IGOR UNITED STATES DISTRICT JUDGE

SA: FIMP-2

Copies to:

Counsel of Record

Unrepresented Parties