# George v. Secretary, Department of Corrections (Duval County)

> District Court, M.D. Florida · March 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10112393

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10112393

## How later opinions describe it (automated extraction)

- noting that a suspect must knowingly, intelligently, and voluntarily waive his Miranda rights
- holding counsel cannot be ineffective for failing to raise a meritless argument
- stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ALFRED L. GEORGE,

Petitioner,

v. Case No. 3:20-cv-608-MMH-MCR

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,

Respondents.
________________________________

ORDER
I. Status
Petitioner Alfred L. George, an inmate of the Florida penal system,
initiated this action in the United States District Court for the Southern
District of Florida on November 13, 2019,1 by filing a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 The assigned judge
transferred the action to the Middle District of Florida on June 15, 2020. Doc.
7. In the Petition, George challenges a 2013 state court (Duval County,
Florida) judgment of conviction for burglary of an occupied dwelling. He
raises three grounds for relief. See Petition at 5-10. Respondents submitted a

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
2 For purposes of reference to pleadings and exhibits, the Court will cite the
document page numbers assigned by the Court’s electronic docketing system.
memorandum in opposition to the Petition. See Response (Doc. 17). They also
submitted exhibits. See Doc. 17-1. George filed a brief in reply. See Reply

(Doc. 19). This action is ripe for review.
II. Relevant Procedural History
On March 15, 2013, the State of Florida charged George by information
with burglary of an occupied dwelling (count one). Doc. 17-1 at 23. At the

conclusion of a trial, on October 8, 2013, the jury found George guilty of count
one. Id. at 55, 57. On November 22, 2013, the trial court sentenced George to
a fifteen-year term of imprisonment. Id. at 108-13.
On direct appeal, George, with the benefit of counsel, filed an initial

brief and an amended initial brief, arguing the trial court erred when it:
denied George’s motion for a judgment of acquittal (ground one); refused to
instruct the jury on the defense of abandonment (ground two); and refused to
instruct the jury on attempted burglary (ground three). Id. at 538-600. The

State filed an answer brief. Id. at 602-40. George filed a reply brief. Id. at
642-51. Florida’s First District Court of Appeal (First DCA) per curiam
affirmed George’s conviction and sentence without a written opinion on April
20, 2015, id. at 653, and issued the mandate on May 6, 2015, id. at 655.

2
On February 22, 2016, George filed a pro se motion for postconviction
relief pursuant to Florida Rule of Criminal Procedure 3.850. Id. at 692-710.

In his Rule 3.850 Motion, George alleged counsel was ineffective when he
failed to: call Deputy H.R. Brooks as a witness (ground one); file a motion to
exclude George’s confession (ground one-subclaim two); request a jury
instruction on burglary, a lesser included offense (ground one-subclaim

three); and object to the trial court “read[ing] back” to the jury witnesses’
testimony to the jury (ground one-subclaim four). Id. at 695-710. On August
8, 2017, the postconviction court summarily denied relief on all grounds. Id.
at 717-23. The First DCA per curiam affirmed the denial of relief without a

written opinion on June 20, 2019, id. at 787, and issued the mandate on July
19, 2019, id. at 788.
III. One-Year Limitations Period
This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to
3
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); Jones v. Sec’y, Fla. Dep’t of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016). “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.” Schriro, 550 U.S. at
474. The pertinent facts of this case are fully developed in the record before
the Court. Because the Court can “adequately assess [George’s] claim[s]
without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275

(11th Cir. 2003), an evidentiary hearing will not be conducted.
V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal petition for habeas corpus. 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
4
v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks omitted)). As such, federal
habeas review of final state court decisions is “‘greatly circumscribed’ and

‘highly deferential.’” Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th
Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the last state
court decision, if any, that adjudicated the claim 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 a written 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 United
States Supreme Court has instructed:
[T]he 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.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be
rebutted by showing that the higher state court’s adjudication most likely
relied on different grounds than the lower state court’s reasoned decision,
5
such as persuasive alternative grounds that were briefed or argued to the
higher court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d)
bars relitigation of the claim unless the state court’s decision (1) “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) “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);
Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited scope
of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for
claims of state courts’ erroneous legal conclusions. As
explained by the Supreme Court in Williams v.
Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d
389 (2000), § 2254(d)(1) consists of two distinct
clauses: a “contrary to” clause and an “unreasonable
application” clause. The “contrary to” clause allows
for relief only “if the state court arrives at a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court
decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts.” Id.
at 413, 120 S. Ct. at 1523 (plurality opinion). The
“unreasonable application” clause allows for relief
only “if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Id.
6
Second, § 2254(d)(2) provides for federal review for
claims of state courts’ erroneous factual
determinations. Section 2254(d)(2) allows federal
courts to grant relief only if the state court’s denial of
the petitioner’s claim “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)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the
state court’s factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield
v. Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192
L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual
determination is not unreasonable merely because
the federal habeas court would have reached a
different conclusion in the first instance.’” Titlow, 571
U.S. at ---, 134 S. Ct. at 15 (quoting Wood v. Allen,
558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d
738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential
review under § 2254(d) generally is limited to the record that was before the
state court that adjudicated the claim on the merits. See Cullen v. Pinholster,
563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an
examination of the state-court decision at the time it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,
7
134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a
state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility
fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting
Richter, 562 U.S. at 102-03). This standard is “meant to be” a “difficult” one
to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s

claims were adjudicated on the merits in the state courts, they must be
evaluated under 28 U.S.C. § 2254(d).
B. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’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 deficient performance, a person
challenging a conviction must show that “counsel’s
representation fell below an objective standard of
reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.
Ct. 2052. A court considering a claim of ineffective
assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range”
of reasonable professional assistance. Id., at 689, 104
8
S. Ct. 2052. The challenger’s burden is to show “that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id., at 687, 104 S. Ct.
2052.

With respect to prejudice, a challenger must
demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id., at 694, 104 S. Ct.
2052. It is not enough “to show that the errors had
some conceivable effect on the outcome of the
proceeding.” Id., at 693, 104 S. Ct. 2052. Counsel’s
errors must be “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id., at
687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of
any iron-clad rule requiring a court to tackle one prong of the Strickland test
before the other.” Ward, 592 F.3d at 1163. 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.” Strickland, 466
U.S. at 697.
9
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.

“[T]he standard for judging counsel’s representation
is a most deferential one.” Richter, 562 U.S. at ---,
131 S. Ct. at 788. But “[e]stablishing that a state
court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d) are
both highly deferential, and when the two apply in
tandem, review is doubly so.” Id. (citations and
quotation marks omitted). “The question is not
whether a federal court believes the state court’s
determination under the Strickland standard was
incorrect but whether that determination was
unreasonable — a substantially higher threshold.”
Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct.
1411, 1420, 173 L.Ed.2d 251 (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 ---,
131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the
deference to counsel’s performance mandated by Strickland, the AEDPA adds
another layer of deference — this one to a state court’s decision — when we
are considering whether to grant federal habeas relief from a state court’s
decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As
10
such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law
A. Ground One
As Ground One, George alleges counsel was ineffective when he failed
to depose and call Deputy H.R. Brooks as a witness. Petition at 5. He states

that both Deputy Brooks and Officer Donald Crews responded to the crime
scene, which resulted in conflicting reports of the incident. Id. George raised
a substantially similar claim as ground one of his Rule 3.850 Motion. Id. at
695-97. In denying relief on ground one, the postconviction court stated in

pertinent part:
This allegation is in regard to Deputy H.R.
Brooks of the Jacksonville Sheriff’s Office. The
Defendant outlines the testimony that the Detective
would have given as summarized in the police
reports. The Defendant claims in his allegation that
Detective Brooks was listed in the State’s discovery
exhibit. The Defendant did not attach such [an]
exhibit to this Motion. The court record shows that
there are only two State’s discovery exhibits and one
Defense discovery exhibit. Detective Brooks is not
listed on any of those discovery exhibits.

The Defendant does not allege how the
testimony would have affected the outcome of the
trial. The Detective’s testimony as listed by the
Defendant in his allegation, if taken as true, actually
11
supports the verdict of guilty in that the Detective’s
summation is consistent with the evidence at trial.
The Defendant cannot show how the failure to depose
and call this witness proves that Counsel was
deficient. Assuming arguendo, that Counsel’s
performance was deficient, this Defendant cannot
show prejudice. Two minor children testified that the
Defendant rang the bell, broke their front door, and
stepped into the residence. The Defendant made
statements to detectives that he broke into the home
to steal a gaming system to sell on the street for a
little money. The failure to depose and call Detective
Brooks does not create a probability sufficient to
undermine confidence in the reliability of the verdict.
Consequently, the Defendant is not entitled to relief.

Id. at 720 (record citations and emphasis omitted). The First DCA per curiam
affirmed the denial of relief without a written opinion. Id. at 787.
To the extent that the First DCA decided the claim on the merits,3 the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
did not involve an unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the facts in light of

3 Throughout this Order, in looking through the appellate court’s per curiam
affirmance to the circuit court’s “relevant rationale,” the Court presumes that the
appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.
12
the evidence presented in the state court proceedings. Thus, George is not
entitled to relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is
not entitled to deference, George’s ineffectiveness claim is without merit. To
prove the offense of burglary of an occupied dwelling, the State had to
demonstrate George entered a structure owned by the victim, and, at the

time of entering the structure, George had the intent to commit a theft in
that structure. Doc. 17-1 at 65; Fla. Std. Jury. Instr. (Crim.) 13.1.
Additionally, the State was required to show “there was another human
being in the structure, at the time [George] entered or remained in the

structure.” Id. at 67. In his Rule 3.850 Motion, George alleged Deputy Brooks
would have testified that George “kicked in [the victim’s] front door while she
was at work; that her two minor children were in the house during the
incident and confronted [George]; that [George] fixed the front door and fled

the scene; that [George] did not touch anything but the front door of the
home.”4 Doc. 17-1 at 695. Therefore, the alleged testimony from Deputy
Brooks would have supported a finding that George committed elements of

4 The Court further notes that Deputy Brooks’s alleged testimony does not
materially conflict with Officer Crews’s trial testimony or report. Doc. 17-1 at 16,
389-90.
13
the offense. As such, counsel was not deficient when he failed to call Brooks
as a witness.

Even assuming arguendo deficient performance by counsel, George has
not shown any resulting prejudice. Other witnesses at trial provided
testimony similar to the proposed testimony of Deputy Brooks. The victim’s
sons testified that George broke the front door and entered the house while

they were inside it. Id. at 341-44, 357, 359 Detective Vincent Agresano and
Officer Donald Crews confirmed that George confessed to breaking the front
door and entering the house with the intent to steal electronics and video
games. Id. at 389, 402, 406-407. Therefore, Deputy Brooks would only have

provided cumulative testimony. George has not shown a reasonable
probability exists that the outcome of the case would have been different if
counsel had called Deputy Brooks as a witness. His ineffectiveness claim is
without merit because he has shown neither deficient performance nor

resulting prejudice. Accordingly, George is not entitled to federal habeas
relief on the claim in Ground One.
B. Ground Two
In Ground Two, George contends that counsel was ineffective when he

failed to file a motion to suppress George’s confession. Petition at 7.
14
According to George, law enforcement officers never advised him of his
Miranda5 rights when they arrested him at his mother’s house. Id. George

therefore argues “any claimed confession at his home [is] void absen[t] being
Mirandized at the jail.” Id.
George raised a substantially similar claim as ground one-subclaim two
of his Rule 3.850 Motion. Doc. 17-1 at 697-700. In denying relief, the

postconviction court stated in pertinent part:
The Defendant alleges that Counsel should
have objected to the admission of his statements to
the Detective and that Counsel should have argued in
the Motion for Judgment of Acquittal that the State
failed to prove an element of burglary independent of
the Defendant’s statement. The argument is without
merit. There was evidence at trial from the minor
witnesses that the Defendant broke the door and
stepped into the residence. See Campbell v. State,
139 So. 3d 490, 498 (Fla. 2d DCA 2014). Therefore,
the Defendant is not entitled to relief.

Id. at 721. The First DCA per curiam affirmed the denial of relief without a
written opinion. Id. at 787.
To the extent that the First DCA decided the claim on the merits, the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record

5 Miranda v. Arizona, 384 U.S. 436 (1966).
15
and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,

did not involve an unreasonable application of clearly established federal law,
and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, George is not
entitled to relief on the basis of this claim.

Nevertheless, even if the appellate court’s adjudication of the claim is
not entitled to deference, George’s ineffectiveness claim is without merit. The
record reflects that Officer Crews apprehended George at his mother’s house
and advised him of his Miranda rights, including the right to remain silent

and to retain an attorney. Doc. 17-1 at 387-88. Officer Crews noted that
George agreed to speak with him. Id. at 389. George admitted to Officer
Crews that he intended to steal video games and a video game system from
the victim, so he forced open the door to her house. Id. at 389. Officer Crews

then arrested George. Id. at 390. Following George’s transfer to the police
station, Detective Agresano interviewed him. Id. at 401. Detective Agresano
testified that because George could not read or write, he read each Miranda
right to George and asked him if he understood it, after which George

initialed the line on the form. Id. Detective Agresano asked George “if he had
16
any questions about the entire rights.” Id. He testified George did not have
any questions and signed the form, after which George agreed to speak with

him. Id. at 401-02.
Based on the above, counsel had no basis to file a motion to suppress
the confession. Law enforcement officers advised George of his Miranda
rights on two occasions, and George provided a knowing, intelligent, and

voluntary waiver of those rights. See Ramirez v. State, 739 So. 2d 568, 575
(Fla. 1999) (noting that a suspect must knowingly, intelligently, and
voluntarily waive his Miranda rights). Counsel is not deficient for failing to
raise a meritless argument. See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d

1136, 1142 (11th Cir. 2005) (holding counsel cannot be ineffective for failing
to raise a meritless argument). As such, George has failed to carry his burden
of showing that his counsel’s representation fell outside that range of
reasonably professional assistance.

Even assuming arguendo deficient performance by counsel, George has
not shown any resulting prejudice. He has not shown that a reasonable
probability exists that the outcome of the case would have been different if
counsel had acted as George claims he should have. His ineffectiveness claim

is without merit because he has shown neither deficient performance nor
17
resulting prejudice. Therefore, George is not entitled to federal habeas relief
on the claim in Ground Two.

C. Ground Three
Lastly, George argues counsel was ineffective when he failed to request
a jury instruction on abandonment. Petition at 8. He maintains that he left
the victim’s house without taking anything; therefore, he abandoned any

“intent to ‘take’ from within the dwelling.” Id. George raised a similar claim
as ground one-subclaim three of his Rule 3.850 Motion. Doc. 17-1 at 700-03.
In denying relief, the postconviction court stated in pertinent part:
The Defendant’s allegation is without merit.
The undisputed facts of the case show that the home
in question was occupied by two minor children at the
time of the incident. The dispute in the case was
whether Defendant’s actions of breaking the door
were accidental and/or whether he abandoned the
intent. Trial Counsel in this case requested the lesser
included offenses of Attempted Burglary, Criminal
Mischief and a special instruction on Abandonment.
The Defendant cannot show that Counsel’s
performance was deficient or that he was prejudiced.
These requests were supported by the evidence,
covered the theory of defense, was a correct
statement of the law, and was not misleading or
confusing to the jury. Therefore, the Defendant is not
entitled to relief.

Id. at 721-22 (record citation omitted). The First DCA per curiam affirmed
the denial of relief without a written opinion. Id. at 787.
18
To the extent that the First DCA decided the claim on the merits, the
Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s
adjudication of this claim was not contrary to clearly established federal law,
did not involve an unreasonable application of clearly established federal law,

and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, George is not
entitled to relief on the basis of this claim.
Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, George’s ineffectiveness claim is without merit
because the record refutes it. During the charge conference, counsel
requested jury instructions on attempted burglary and abandonment. Doc.
17-1 at 424-32. The trial court denied both instructions, specifically noting

that the abandonment instruction did not apply where the State never
charged George with attempted burglary and the facts did not support such
an instruction. Id. at 431-32. As such, counsel was not deficient where he
requested the abandonment instruction as George claims he should have.

19
Accordingly, George is not entitled to federal habeas relief on the claim in
Ground Three.

VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)

If George seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not warranted. The
Court should issue a certificate of appealability only if the petitioner makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, George “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)).
Where a district court has rejected a petitioner’s constitutional claims

on the merits, the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong. See Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show that “jurists
20
of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.
Upon consideration of the record as a whole, the Court will deny a certificate
of appealability.
Therefore, it is now

ORDERED AND ADJUDGED:
1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED
WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.
3. If George appeals the denial of the Petition, the Court denies a
certificate of appealability. Because the Court has determined that a
certificate of appealability is not warranted, the Clerk shall terminate from

the pending motions report any motion to proceed on appeal as a pauper that
may be filed in this case. Such termination shall serve as a denial of the
motion.

21
4, The Clerk of the Court is directed to close this case and terminate

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 21st day of
March, 2023.

MARCIA MORALES HOWARD
United States District Judge

Jax-9 3/16
C: Alfred L. George, #036566
Counsel of record

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112393. Public record. Not legal advice.