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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CANDACE KIARA JACKSON,

Petitioner,

vs. Case No. 3:20-cv-375-BJD-JBT

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

I. STATUS

Petitioner Candace Kiara Jackson is challenging her St. Johns County

conviction for second-degree murder, attempted second-degree murder, and

aggravated battery through a pro se Petition Under 28 U.S.C. § 2254 for Writ

of Habeas Corpus by a Person in the State Custody (Petition) (Doc. 1).

Respondents filed a Response to Order to Show Cause (Response) (Doc. 11) and

an Appendix of Exhibits to Response to Order to Show Cause (Appendix) (Doc.

12). Petitioner filed a Traverse to Order to Show Cause (Doc. 14).1

1 The Court refers to the exhibits contained in the Appendix (Doc. 12) as “Ex.” and references

the page number in the bottom center of the page. For the Petition and Response, the Court

references the docket and page numbers assigned by the electronic filing system.

II. HABEAS REVIEW

The role of this Court is limited when reviewing a state prisoner’s

application pursuant to 28 U.S.C. § 2254; “[u]nder AEDPA, a court cannot

grant relief unless the state court's decision on the merits was ‘contrary to, or

involved an unreasonable application of,’ Supreme Court precedent, or ‘was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.’” McKiver v. Sec’y, Fla. Dep’t of

Corr., 991 F.3d 1357, 1364 (11th Cir.) (citing 28 U.S.C. § 2254(d)(1)-(2)), cert.

denied, 142 S. Ct. 441 (2021). Therefore, habeas relief is limited to those

occasions where the state court’s determinations are unreasonable, that is, if

no fairminded jurist could agree with them. Id.

If there has been one reasoned state court judgment rejecting a federal

claim followed by an unexplained order upholding that judgment, federal

habeas courts employ a "look through" presumption: "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." Wilson v. Sellers, 138 S.

Ct. 1188, 1192 (2018) (Wilson).

Also, a state court's finding of fact, whether a state trial court or

appellate court, is entitled to a presumption of correctness under 28 U.S.C. §

2

2254(e)(1). “The state court’s factual determinations are presumed correct,

absent clear and convincing evidence to the contrary.” Sealey v. Warden, Ga.

Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020) (quoting 28 U.S.C. §

2254(e)(1)), cert. denied, 141 S. Ct. 2469 (2021). This presumption of

correctness, however, applies only to findings of fact, not mixed determinations

of law and fact. Brannan v. GDCP Warden, 541 F. App'x 901, 903-904 (11th

Cir. 2013) (per curiam) (acknowledging the distinction between a pure question

of fact from a mixed question of law and fact), cert. denied, 573 U.S. 906 (2014).2

Furthermore, the second prong of § 2254(d), requires this Court to “accord the

state trial court [determination of the facts] substantial deference.” Dallas v.

Warden, 964 F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v. Cain, 576

U.S. 305, 314 (2015)), cert. denied, 142 S. Ct. 124 (2021). As such, a federal

district court may not supersede a state court’s determination simply because

reasonable minds may disagree about the finding. Id. (quotation and citation

omitted).

2 The Court finds the reasoning of Brannan persuasive on this point. See McNamara v.

Gov’t Emp. Ins. Co., 30 F.4th 1055, 1060-61 (11th Cir. 2022) (reiterating that unpublished

opinions may be cited as persuasive authority but are not binding precedent. See Rule 32.1,

Fed. R. App. P. The Court references other unpublished decisions in this opinion,

recognizing that these decisions constitute persuasive authority, not binding precedent.

3

Of import, “[i]t is not the province of a federal habeas court to reexamine

state-court determination on state-law questions.” Estelle v. McGuire, 502

U.S. 62, 67 (1991). Indeed, a habeas petition grounded on issues of state law

provides no basis for federal habeas relief as a violation of state statute or rule

of procedure does not constitute a violation of the federal constitution.

Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1989) (per curiam). As such,

a federal writ is only available in cases amounting to federal constitutional

error. Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir. 1993). This is so even

if the claim is “couched” in terms of alleged constitutional violations, like due

process. Branan, 861 F.2d at 1508.

The two-part Strickland standard governs claims of ineffective

assistance of counsel.3 Knight v. Fla. Dep’t of Corr., 958 F.3d 1035, 1038 (11th

Cir. 2020), cert. denied, 141 S. Ct. 2471 (2021). See Freeman v. Comm’r, Ala.

Dep’t of Corr., 46 F.4th 1193, 1220 (11th Cir. 2022) (“In an ineffective

assistance of counsel claim, § 22543(d)’s terms are judged by the standard set

forth in Strickland v. Washington.”), cert. denied, 143 S. Ct. 1785 (2023).

Pursuant to this standard, a defendant must show: (1) her counsel's

performance was deficient and (2) the deficient performance prejudiced her

3 Strickland v. Washington, 466 U.S. 668 (1984).

4

defense. Strickland, 466 U.S. at 687. A district court need not address both

prongs if a petitioner makes an insufficient showing on one. Fifield v. Sec’y,

Dep’t of Corr., 849 F. App’x 829, 833 (11th Cir. 2021) (per curiam) (relying on

Strickland), cert. denied, 142 S. Ct. 788 (2022).

To prevail, a petitioner must successfully show her counsel “made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment” as well as show “the deficient

performance prejudiced the defendant, depriving [her] of a ‘fair trial, a trial

whose result is reliable.’” Raheem v. GDCP Warden, 995 F.3d 895, 908 (11th

Cir. 2021) (quoting Strickland, 466 U.S. at 687), cert. denied, 142 S. Ct. 1234

(2022). Additionally, combining the deferential standard for judging the

performance of counsel with the extra layer of deference that § 2254 provides,

the resulting double deference “is doubly difficult for a petitioner to

overcome[.]” Johnson v. Sec’y, DOC, 643 F.3d 907, 911 (2011).

To determine whether Petitioner is entitled to habeas relief, this Court

must ask (1) whether the [state court] decisions were ‘contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined’

in Strickland, or (2) whether the . . . decisions were ‘based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceeding.’” Whatley v. Warden, Ga. Diagnostic & Classification Ctr., 927

5

F.3d 1150, 1175 (11th Cir. 2019) (citations omitted), cert. denied, 141 S. Ct.

1299 (2021). The AEDPA standard is quite difficult to meet as a state court’s

decision must be given deference and latitude.

III. GROUNDS

Petitioner raises eleven grounds in the Petition:

(1) ineffective assistance of counsel for failure to

inform Petitioner of all of the evidence against her

prior to trial;

(2) ineffective assistance of counsel for failure to argue

the evidence only supported a manslaughter

conviction, not murder;

(3) ineffective assistance of counsel for failure to

impeach the arresting officer, Mike Stevens;

(4) ineffective assistance of counsel for failure to argue

that Petitioner could not be convicted of aggravated

battery;

(5) ineffective assistance of counsel for failure to

present favorable evidence;

(6) ineffective assistance of counsel for failure to

ensure Petitioner had a jury of her peers;

(7) ineffective assistance of counsel for failure to file a

motion for change of venue;

(8) insufficiency of the evidence to present a prima

facie case of second-degree murder;

(9) insufficiency of the evidence to sustain a conviction

for attempted second-degree murder;

6

(10) ineffective assistance of counsel for failure to

object when the state declined to seek an attempted

manslaughter jury instruction as a lesser included

offense to attempted first-degree murder; and

(11) ineffective assistance of counsel for failure to

present favorable evidence.

Notably, the state court conducted an evidentiary hearing on grounds

five and eleven. The Court concludes no additional evidentiary proceedings

are required. The pertinent facts are fully developed in the record, or the

record otherwise precludes habeas relief; therefore, the Court can adequately

assess Petitioner’s claims without any further factual development. Turner

v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034

(2004).

IV. DISCUSSION

A. Ground One

In her first ground, Petitioner claims her trial counsel was ineffective for

failure to inform Petitioner of all of the evidence against her prior to trial.

Petition at 5. More specifically, Petitioner contends her counsel performed

deficiently in failing to provide Petitioner with the deposition of arresting

officer Corporal Mike Stevens prior to trial. Id.

7

Petitioner raised the claim in ground one of her Amended Motion for

Postconviction Relief. Ex. G at 1084-86. The circuit court denied this ground

and the motion. Id. at 1179-82. Petitioner appealed. Ex. H; Ex. I; Ex. J.

On March 24, 2020, the 5th DCA per curiam affirmed the decision of the trial

court. Ex. K. The mandate issued on April 17, 2020. Ex. L. As such, this

ground is exhausted.

The circuit court denied the claim relying on the two-pronged standard

set forth in Strickland. Ex. G at 1178-79. As the state court applied the two-

pronged Strickland standard in addressing the motion for post-conviction

relief, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1).

The Court next considers whether the state court unreasonably applied that

principle to the facts or premised its adjudication on the claim on an

unreasonable determination of the facts.

Although not a model of clarity, apparently Petitioner alleges that

Corporal Stevens expanded his statement given in a defense report to include

untruthful incriminating statements. Petitioner asserts she did not testify

because she was unprepared to defend herself against unknown evidence held

by counsel. The circuit court found Petitioner’s contention that she did not

testify for this reason “entirely conclusory and fails to sufficiently allege

prejudice.” Ex. G at 1179 n.2. Petitioner apparently challenges the fact that

8

Corporal Stevens read her Miranda rights and she contends he included

untruthful things. Id. at 1180. See Petition at 6.

The circuit court rejected Petitioner ‘s claim, noting that the probable

cause affidavit notarized May 11, 2013, states Corporal Stevens read

Petitioner her rights.4 Ex. G at 1180. The Arrest Report with Probable

Cause statement is attached as Appendix A to the Interim Order on Motion for

Post-Conviction Relief. Id. at 1198-1209. It states, “[t]he defendant was

placed in handcuffs and read her Constitutional Rights by Corporal Mike

Stevens.” Id. at 1199. The Supplemental Narrative of Officer Toby Erwin

states he was present when Corporal Stevens read Petitioner her Miranda

rights. Id. at 1204.

The circuit court, assuming arguendo Corporal Stevens made a

conflicting statement in his deposition, rejected Petitioner’s claim concluding

he failed to satisfy the prejudice prong of Strickland. Id. at 1181. The court

found, discounting Corporal Steven’s brief testimony, the result of the

proceeding would have been the same. Id. Indeed,

There was no dispute that Defendant hit the

victims with her car, killing one victim and injuring

the other. The only dispute was whether Defendant’s

actions were intentional. The Court finds that

4 Petitioner did not provide the circuit court with a copy of Corporal Stevens’ deposition,

Petitioner did not quote the deposition, and the deposition itself was not part of the state

court record. Ex. G at 1180 n.3.

9

Corporal Steven’s testimony did little to strengthen

the State’s case since he did not witness the incident.

The Court also notes that Corporal Stevens’ testimony

was actually helpful to Defendant in that he testified

that Defendant told him that she did not mean to hit

the victims with her car.[5]

Id. at 1181-82.

In support, the post-conviction court attached the relevant portion of the

trial transcript, Appendix B. Id. at 1225-36. On direct, Corporal Stevens

attested that he told Petitioner she was being detained, not arrested, and he

read her Miranda rights from a card. Id. at 1226. Corporal Stevens testified

that Petitioner said she understood her rights and expressed her desire to

speak with the officer. Id. at 1227-28. Corporal Stevens said Petitioner told

him as she was coming out of the bank the victims jumped in front of her car.

Id. at 1228. On cross-examination, Corporal Stevens confirmed that

Petitioner told him she had a problem with her driver’s license, and she was

on probation and did not want to go to jail. Id. at 1230. Corporal Stevens

attested Petitioner exhibited no signs of impairment. Id.

Finding “Defendant has not sufficiently alleged prejudice, nor can

prejudice be established[,]” the circuit court summarily denied ground one.

5 The last statement is not contained in the trial transcript. Also, Petitioner did not testify

at trial; however, during a police interview with Detective Thomas Marmo, Petitioner said

she did not intend to hit the victims with her car. Ex. G at 1365.

10

Id. at 1182. In failing to satisfy the prejudice prong of Strickland, Petitioner’s

claim of ineffective assistance of counsel will not prevail. Furthermore, the

state court’s determination is consistent with federal precedent. Although

unexplained, the 5th DCA’s decision is entitled to AEDPA deference.

Applying the look-through presumption set forth in Wilson, the Court finds the

state court’s ruling is based on a reasonable determination of the facts and a

reasonable application of Strickland and its progeny. As such, Petitioner is

not entitled to habeas relief on ground one.

B. Ground Two

In her second ground, Petitioner raises a claim of ineffective assistance

of counsel for failure to argue the evidence only supported a manslaughter

conviction, not murder. Petition at 8. In support, Petitioner asserts her

defense “was always that the faulty vehicle she was operating caused her to be

unintentionally negligent.” Id. She wanted the charge of manslaughter to

be given as an option to first or second-degree murder, asserting the jury

“would have been more than likely to find the Petitioner guilty of manslaughter

or not guilty of all charges.” Id.

Petitioner raised this claim in ground two of her Amended Motion for

Postconviction Relief. Ex. G at 1087-88. The circuit court denied this ground

and the motion. Id. at 1182-85. Petitioner appealed and the 5th DCA per

11

curiam affirmed the decision of the trial court. Ex. K. This ground is

exhausted.

As noted previously, the circuit court denied the motion relying on the

two-pronged standard set forth in Strickland. Ex. G at 1178-79. As such,

Petitioner cannot satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1). Next,

the Court considers whether the state court unreasonably applied that

principle to the facts or premised its adjudication on the claim on an

unreasonable determination of the facts.

Review of the verdict form reveals that the jury was given the following

options: (1) guilty of first-degree murder; (2) guilty of the lesser included crime

of second-degree murder; (3) guilty of the lesser included crime of

manslaughter; or (4) not guilty. Ex. A at 0119. Clearly, the court instructed

the jury as to the lesser included crime of manslaughter. Id. at 0596, 0600-

0601.

The Court considers the state court’s instructions as a whole. These

instructions, viewed as a whole, fairly stated the issues and law and were

adequate. United States v. Russell, 717 F.2d 518, 521 (11th Cir. 1983).

Additionally, there is a presumption that jurors follow all instructions.

Richardson v. Marsh, 481 U.S. 200, 211 (1987). Thus, the finding of the circuit

12

court that the jury was given the option to find Petitioner guilty of

manslaughter is fully supported by the record. Ex. G at 1183.

Moreover, during closing argument, defense counsel argued the theory

of the defense, a faulty vehicle. Ex. A at 0630-0634. Initially, counsel

referred to the jury instructions, stating he was not going to go through them

word for word because the jury just heard them. Id. at 0625. He did

emphasize the vehicle’s transmission problems. Id. at 0631. He argued, “the

throttle was depressed, the transmission did not engage in gear until the

engine was revving up, when it did engage in gear, it engaged at a point where

there was a jerk, where the tires squealed. And at 380 pounds, she rotated

backwards faster.” Id. at 0633. Counsel noted it was undisputed that the

seat was broken. Id. He stated, “[g]ranted, she [the defendant] knew that

the seat was broken.” Id. at 0636.

At the conclusion of his closing argument, counsel asked for a not guilty

verdict as to all three counts. Id. at 0647. Of import, during the post-

conviction evidentiary hearing, defense counsel Raymond Warren explained

that he wanted to argue for manslaughter as he felt it was the better argument,

but Petitioner wanted counsel to argue for not guilty of anything and he

believed there was evidence to support that argument, so he used it. Ex. G at

1763, 1771.

13

The circuit court, in denying this claim of ineffective assistance of

counsel found that it was clear from the record the jury rejected the theory that

hitting the victims with the vehicle was accidental. Id. at 1185. The court

was unpersuaded that the jury would have convicted the defendant of

manslaughter instead of second-degree murder if counsel had argued

differently. Id. The jury necessarily found that Petitioner acted out of ill

will, hatred, spite, or an evil intent when the jury found her guilty of second-

degree murder. Ex. A at 0095, 0119. Petitioner is not entitled to a jury

pardon as defendants are not entitled “to the luck of a lawless decisionmaker.’”

Crapser v. Sec’y, Dep’t of Corr., 855 F. App’x 626, 627 (11th Cir. 2021) (per

curiam) (quoting Strickland, 466 U.S. at 695)), cert. denied, 142 S. Ct. 1155

(2022). As such, the court found Petitioner “cannot establish prejudice.” Ex.

G at 1185.

Defense counsel did not perform deficiently as the court instructed the

jury on manslaughter, the verdict form included manslaughter, and the jury

had the option to convict Petitioner of manslaughter. Furthermore, Petitioner

cannot establish prejudice. In failing to satisfy the prejudice prong of

Strickland, Petitioner’s claim of ineffective assistance of counsel will not

prevail. Upon review, the state court’s determination is consistent with

federal precedent. Although unexplained, the 5th DCA’s decision is entitled

14

to AEDPA deference. The Court will apply the look-through presumption set

forth in Wilson. The state court’s ruling is based on a reasonable

determination of the facts and a reasonable application of Strickland and its

progeny. Therefore, Petitioner is not entitled to habeas relief on ground two.

C. Ground Three

Petitioner claims in her third ground that her trial counsel was

ineffective for failure to impeach the arresting officer, Mike Stevens. Petition

at 10. Petitioner raised a comparable claim in ground three of her Amended

Motion for Postconviction Relief. Ex. G at 1089-90. The circuit court denied

post-conviction relief. Id. at 1185-86. The 5th DCA affirmed. Ex. K. The

record shows ground three is exhausted.

The circuit court utilized the two-pronged standard set forth in

Strickland, Ex. G at 1178-79, and the 5th DCA affirmed. As such, Petitioner

cannot satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1). In compliance

with AEDPA, the Court next considers whether the state court unreasonably

applied that principle to the facts or premised its adjudication on the claim on

an unreasonable determination of the facts.

The circuit court summarily denied this ground finding Petitioner failed

to sufficiently allege prejudice and that prejudice cannot be established,

relying on its analysis provided in ground one. Ex. G at 1186. The court

15

reasoned, even discounting Corporal Steven’s brief testimony, the result of the

proceeding would have been the same. Id. at 1181. As noted previously, the

circuit court rejected Petitioner ‘s claim that she was not read her Miranda

rights, noting that the probable cause affidavit notarized May 11, 2013, states

Corporal Stevens read Petitioner her rights and the Supplemental Narrative

of Officer Toby Erwin states he was present when Corporal Stevens read

Petitioner her Miranda rights. Id. at 1180-81.

Petitioner did not satisfy the prejudice prong of Strickland as the court

found the outcome would have remained the same even if counsel had

performed as suggested by Petitioner as the court was convinced that any

attempted impeachment of the arresting officer would have had no significant

impact on the outcome of the case. Without satisfying the prejudice prong,

Petitioner cannot prevail on her claim of ineffective assistance of counsel.

Petitioner has failed to show the state court’s rejection of the claim of

ineffective assistance of counsel raised in this claim is contrary to, or an

unreasonable application of Strickland, nor has she shown the decision is

based on an unreasonable determination of the facts. Petitioner is not

entitled to habeas relief on ground three.

16

D. Ground Four

In ground four, Petitioner contends that her counsel was ineffective for

failure to argue that Petitioner could not be convicted of aggravated battery.

Petition at 12. In support, Petitioner contends that the required elements of

aggravated battery were not met, and the charge of aggravated battery should

have been dismissed upon motion. Id. She also contends that she was

convicted of aggravated battery in violation of the Double Jeopardy Clause as

she was also convicted of attempted second-degree murder for the same

criminal episode. Id. at 13. She complains, “[t]hese convictions constitute

multiple punishments for the same offense and elements where the elements

of the greater offense subsumed the elements of the lesser.” Id.

Generally, this is the same claim Petitioner raised in ground four of her

Amended Motion for Postconviction Relief. Ex. G at 1091-92. The circuit

court denied post-conviction relief. Id. at 1186-88. Petitioner appealed, and

the 5th DCA affirmed. Petitioner has generally exhausted her state court

remedies.

The circuit court analyzed this ground under the two-pronged Strickland

standard. Ex. G at 1178-79. The 5th DCA affirmed. Thus, Petitioner

cannot satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1). Under AEDPA,

the Court next considers whether the state court unreasonably applied that

17

principle to the facts or premised its adjudication on the claim on an

unreasonable determination of the facts.

The circuit court found there was a factual basis for aggravated battery.

Ex. G at 1187. The court noted it was undisputed that Petitioner hit the

victims with her vehicle, the only disputed issue was Petitioner’s intent, and

there was evidence submitted by the state to support a finding of intent. Id.

After giving the charge for attempted first-degree murder of Shaina

Armstrong, the court gave the instruction for attempted second-degree

murder. Ex. A at 0605-0608. For attempted second-degree murder, the

court instructed:

To prove the crime of attempted second-degree

murder, the State must prove the following two

elements beyond a reasonable doubt:

1. That Candace Jackson intentionally

committed an act which would have resulted in the

death of Shaina Armstrong except that someone

prevented Candace Jackson from killing Shaina

Armstrong or she failed to do so.

2. The act was imminently dangerous to

another and demonstrating a depraved mind without

regard for human life.

An “act” includes a series of related actions

arising from and performed pursuant to a single

design or purpose.

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An act is “imminently dangerous to another and

demonstrating a depraved mind” if it is an act or series

of acts that:

1. a person of ordinary judgment would know

is reasonably certain to kill or to do serious bodily

injury to another, and

2. is done from ill will, hatred, spite, or an

evil intent, and

3. is of such a nature that the act itself

indicates an indifference to human life.

In order to convict the defendant of attempted

second-degree murder, it is not necessary for the State

to prove that the defendant had an intent to cause

death.

It is not an attempt to commit second-degree

murder if the defendant abandoned the attempt to

commit the offense or otherwise prevented its

commission under circumstances indicating a

complete and voluntary renunciation of her criminal

purpose.

Id. at 0607-0608.

Not only was Petitioner charged with attempted murder she was also

charged with aggravated battery. The court provided the following

instruction for the offense of aggravated battery:

To prove the crime of aggravated battery, the

State must prove the following two elements beyond a

reasonable doubt. The first element is the definition

of battery[:]

19

1. That Candace Jackson intentionally

touched or struck Shaina Armstrong against her will,

or Candace Jackson intentionally caused bodily harm

to Shaina Armstrong, and

2. That Candace Jackson in committing the

battery (a) intentionally or knowingly caused great

bodily harm, permanent disability, or permanent

disfigurement to Shaina Armstrong; or (b) used a

deadly weapon.

A weapon is a “deadly weapon” if it is used or

threatened to be used in a way likely to produce death

or great bodily harm.

Id. at 0608-0609. The court also provided an instruction for battery, a lesser

included offense of aggravated battery. Id. at 0609.

As recently noted by this Court,

Convictions for attempted second-degree murder and

aggravated battery with a deadly weapon do not

violate double jeopardy because attempted second-

degree murder requires proof of an element that

aggravated battery with a deadly weapon does not. See

State v. Florida, 894 So. 2d 941, 949 (Fla. 2005),

receded from on other grounds by Valdes v. State, 3 So.

3d 1067, 1077 (Fla. 2009); Schirmer v. State, 837 So.

2d 587, 589 (Fla. 5th DCA 2003) (“[A]ttempted second

degree murder requires proof of an act which could

have resulted in death–an element not required for

aggravated battery.”).

20

Tramel v. Sec’y, Fla. Dep’t of Corr., No. 3:19-cv-1071-MMH-MCR, 2022 WL

2818111, at *16 (M.D. Fla. July 19, 2022). Indeed, an act need not have had

the potential to cause death to constitute aggravated battery; therefore each

offense requires proof of an element not included in the other. As such,

Petitioner was not subject to multiple punishments for the same offense in

violation of the Double Jeopardy Clause of the United States Constitution.

Upon review, based on this record, Petitioner did not receive multiple

punishments for the same offense when she was convicted of both attempted

second-degree murder and aggravated battery. See Kendrick v. Sec’y, Dep’t

of Corr., No. 6:10-cv-333-Orl-31KRS, 2011 WL 4529638, at *5 (M.D. Fla. Sept.

30, 2011) (not reported in F.Supp.2d) (finding the state court’s determination

that convictions for attempted second-degree murder and aggravated battery

do not violate double jeopardy is neither contrary to nor an unreasonable

application of clearly established Federal law). Petitioner was not subjected

to a double jeopardy and this claim is due to be denied.

Petitioner has failed to establish that the state court’s decision denying

her claim of ineffective assistance of counsel was contrary to or an

unreasonable application of federal law. Petitioner has not shown that the

state court unreasonably determined the facts. Finally, Petitioner has failed

to show a reasonable probability exists that the outcome of the case would have

21

been different if her counsel had given the assistance that Petitioner has

alleged should have been provided.

The 5th DCA’s decision, although unexplained, is entitled to AEDPA

deference. Under Wilson, applying the look through presumption described

therein, the Court finds the state court’s ruling is based on a reasonable

determination of the facts and a reasonable application of the law. As such,

the state court’s adjudication of the claim is not contrary to or an unreasonable

application of Strickland or based on an unreasonable determination of the

facts. Petitioner is not entitled to habeas relief on ground four.

E. Ground Five

In her fifth ground, Petitioner raises a claim of ineffective assistance of

counsel for failure to use evidence favorable to Petitioner. Petition at 14.

Petitioner wanted her counsel to obtain fuel logs in order to determine whether

low fuel played a factor in the performance of Petitioner’s vehicle and the

striking of the two victims. Id. at 14-15.

Petitioner raised this claim in ground five of Petitioner’s Amended

Motion for Postconviction Relief. Ex. G at 1093-94. The circuit court, in its

Interim Order on Motion for Post-conviction Relief decided that Petitioner

should be granted an opportunity to amend the claim. Id. at 1116-17.

Petitioner did so. Id. at 1121-24. The circuit court entered an Interim Order

22

on Motion for Post-conviction Relief scheduling grounds five and eleven for an

evidentiary hearing. Id. at 1197. The court appointed post-conviction

counsel for Petitioner and conducted an evidentiary hearing on March 7, 2019.

Id. at 1713-1785.

Ultimately, the circuit court entered a Final Order Denying Defendant’s

Motion for Post-Conviction Relief. Id. at 1462-71. Once again, the court

employed the Strickland two-pronged standard of review. Id. at 1464.

Petitioner alleged that “the lack of fuel in her vehicle caused it to operate in a

sporadic manner,” meaning her actions were unintentional. Id. at 1465. She

contended that her counsel should have obtained the record that the Sheriff’s

Office had to add fuel in order to conduct a reenactment of the incident and

counsel’s failure to acquire these documents constituted deficient performance.

Id.

Both Petitioner and her trial attorney, Mr. Warren, testified at the

evidentiary hearing. The court recognized that Mr. Warren is a very

experienced trial attorney who has defended numerous murder cases at trial,

including capital cases. Id. at 1466. Mr. Warren explained his strategic

decision not to pursue the claim of low fuel as it would have defeated his

defense. Id. at 1467. In short, Mr. Warrant attested “that pursuing the lack

of fuel theory would have been inconsistent with Mr. Church’s favorable

23

deposition testimony, the other evidence developed, and his theory of defense.”

Id. Moreover, through discovery and based on evidence presented at trial,

Officer Stephen M. Briggs was going to testify and did testify that when he

approached the empty vehicle, the engine was running with the keys in the

ignition. Ex. A at 0250. Thus, any argument that the vehicle was devoid of

fuel would be directly countered by this strong evidence that the engine was

still running. Ex. G at 1467-68.

Taking into consideration the testimony provided at the evidentiary

hearing, the circuit court found neither deficient performance nor prejudice

under Strickland. Finding counsel employed a very reasonable trial strategy,

the court concluded that he did not act outside the wide bounds of professional

standards. Id. at 1468. Additionally, the court found Petitioner failed to

demonstrate prejudice as she did not know whether the investigators added

fuel, if there were records supporting her contention, and she faced the

formidable testimony that the engine was still running when the police arrived

on the scene. Id.

In failing to satisfy the performance prong of Strickland, Petitioner’s

claim of ineffective assistance of counsel will not prevail. The record confirms

Petitioner had very experienced counsel. “The presumption of reasonableness

is even stronger when we are reviewing the performance of an experienced trial

24

counsel.” Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (quoting

Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir. 2005)), cert. denied, 547

U.S. 1133 (2006).

The state court applied the Strickland two-pronged standard and found

Petitioner failed to establish any deficient performance by her attorney as

counsel’s advice and performance was clearly within the wide range of

reasonably competent counsel. Also, there is a strong presumption that an

experienced trial counsel’s performance is not ineffective, and here, the state

court, in denying relief, found Petitioner failed to overcome the presumption of

effective performance accorded to his counsel. The court also found Petitioner

failed to establish prejudice.

The Court finds the state court’s determination is consistent with federal

precedent. Although unexplained, the 5th DCA’s decision is entitled to

AEDPA deference. After applying the look-through presumption set forth in

Wilson, the Court finds the state court’s ruling is based on a reasonable

determination of the facts and a reasonable application of Strickland and its

progeny. Thus, Petitioner is not entitled to habeas relief on ground five.

F. Ground Six

Petitioner, in her sixth ground, claims her trial counsel was ineffective

for failure to ensure that she had a jury of her peers. Petition at 16.

25

Petitioner is an African American and alleges that her jury was all Caucasian.

Id. She submits that the victims were Caucasian as well as the judge. Id.

Petitioner states that the only non-Caucasians in the courtroom were

Petitioner and her family. Id. Petitioner thought many jurors knew the

victims. Id. at 17. She also believed it was necessary for her counsel to

request a change of venue to obtain a fair trial. Id.

Petitioner raised a comparable claim in ground six of her Amended

Motion for Postconviction Relief. Ex. G at 1095-97. The circuit court denied

relief. Id. at 1189-91. Petitioner appealed, and the 5th DCA affirmed.

Thus, the claim is exhausted.

The circuit court employed the two-pronged Strickland standard of

review. Ex. G at 1178-79. The 5th DCA affirmed. Under these

circumstances, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C. §

2254(d)(1). The Court next considers whether the state court unreasonably

applied that principle to the facts or premised its adjudication on the claim on

an unreasonable determination of the facts.

The record demonstrates that defense counsel performed well within the

range of reasonable professional performance during voir dire. Ex. A at 684-

896. Upon inquiry, the venire assured the court that they had not read and

did not know anything about the case. Id. at 0714. The state listed its

26

witnesses for the venire. Id. at 0706. In response, only one individual, Ms.

Peralta, said she knew someone, the victim Shaina Armstrong, and was

familiar with the case. Id. at 1706-0707. The trial court promptly excused

her. Id. at 0707. Defense counsel read his list of potential witnesses. Id. at

0709-0711. The venire knew none of the defense’s potential witnesses. Id. at

0712.

In denying post-conviction relief, the circuit court considered Petitioner’s

allegations and found them wanting as they “are purely speculative” in that

Petitioner failed to sufficiently identify particular acts or omissions by her

counsel that were outside the broad range of reasonable assistance. Ex. G at

1190. The court noted that racial comments made at the scene of the crime

did not bear on the impartiality of the jury. Id. The court also found

Petitioner’s assumption that the jurors must have been biased against her to

find her guilty was entirely unsupported. Id. Furthermore, the court found

that Petitioner failed to identify any particular acts or omissions by counsel

that would have altered the make-up of the all-white jury. Id. The court

found no evidence of racial discrimination in the selection process, either by

the state or the trial court. Id. at 1190-91. As such, the court denied the

claim raised in ground six. Id. at 1191.

27

The state court’s decision is entitled to deference pursuant to AEDPA.

The ruling is based on a reasonable determination of the facts and a reasonable

application of the law. The 5th DCA’s adjudication of the claim is not contrary

to or an unreasonable application of Strickland or based on an unreasonable

determination of the facts. Petitioner is not entitled to habeas relief on

ground six.

G. Ground Seven

In ground seven, Petitioner claims her counsel was ineffective for failure

to file a motion for change of venue. Petition at 18. Petitioner avers that she

asked counsel to move for a change of venue as the crash occurred in St.

Augustine, Florida, a small town, where Petitioner was born and raised. Id.

Defense counsel declined to file a motion to change venue, explaining that it

was not a high-profile case. Id. Petitioner contends, “the jurors were very

much aware of the case through the constant media attention and publicity.”

Id.

Petitioner raised a similar claim in ground seven of her Amended Motion

for Postconviction Relief. Ex. G at 1098-1101. The circuit court denied relief.

Id. at 1191-95. Petitioner exhausted this ground as she appealed the circuit

court’s decision, and the 5th DCA affirmed.

28

The trial court used the two-pronged Strickland standard in addressing

this claim. Ex. G at 1178-79. The 5th DCA affirmed. Thus, Petitioner

cannot satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1). The Court next

considers whether the state court unreasonably applied that principle to the

facts or premised its adjudication on the claim on an unreasonable

determination of the facts as required by AEDPA.

The court considered Petitioner’s allegations and found that the record

shows that pretrial publicity was not a factor in the parties’ ability to select a

jury. Ex. G at 1193. Indeed, the venire said it was unaware of the case,

except for the one venire member who was promptly excused. The court found

“trial counsel was not deficient in declining to move for change of venue.” Id.

at 1194. Additionally, the court concluded that there is no reasonable

probability the trial court would have or should have granted a motion for

change of venue under the circumstances presented. Id. The court found

neither deficient performance nor prejudice. Id. at 1194-95.

Again, the threshold standard of Strickland has not been met. The

reviewing court applied the two-pronged standard and found Petitioner had

failed to establish any deficient performance by counsel. Additionally, the

court found Petitioner did not satisfy the prejudice prong. The state court’s

adjudication of this claim is not contrary to or an unreasonable application of

29

Strickland or based on an unreasonable determination of the facts. Here, the

court was objectively reasonable in its Strickland inquiry. The 5th DCA

affirmed. Applying the look through presumption described in Wilson, the

state court’s ruling is based on an reasonable determination of the facts and a

reasonable application of the law.

As the threshold standard of Strickland has not been met, Petitioner has

failed to demonstrate that the state court proceeding was fundamentally unfair

and her counsel ineffective. Thus, she has failed to demonstrate a Sixth

Amendment violation under the Constitution. Petitioner is not entitled to

habeas relief on ground seven.

H. Grounds Eight and Nine

In grounds eight and nine, Petitioner claims insufficiency of the evidence

to support her convictions for second-degree murder and attempted second-

degree murder. Petition at 20, 22. She claims the element of intent could

not be satisfied, indicating that the evidence best supported a lesser charge of

manslaughter, not murder. Id. at 20, 22.

Petitioner raised comparable contentions on direct appeal. Ex. B at

0961 (‘The trial court erred to deny the motion for a judgment notwithstanding

the verdict when the evidence did not set forth a prima facie case of second

degree murder or attempted second degree murder.”). On December 8, 2015,

30

the 5th DCA per curiam affirmed. Ex. E. The mandate issued on January 4,

2016. Ex. F.

Petitioner raised comparable claims in her Amended Motion for

Postconviction Relief. Ex. G at 1102-1107. The circuit court summarily

denied relief. Id. at 1195. Petitioner appealed the circuit court’s decision,

and the 5th DCA affirmed. Ex. K.

The indictment charged one count of first-degree murder, one count of

attempted first-degree murder, and one count of aggravated battery. Ex. A at

0039. The trial commenced on May 27, 2014. Id. at 0203-0681. The trial

record demonstrates that defense counsel, Mr. Warren, made a motion for

judgment of acquittal on all three counts. Id. at 0558-0562. He argued that

the state had not shown specific mental intent. Id. at 0559-60.

The state responded that the physical evidence and the eyewitness

testimony showed that Petitioner intended to run over the victims. Id. at

0561. The court found this was a matter for the jury as “someone can have

the intent to kill at 16 miles an hour or 30 miles an hour.” Id. at 0562. The

court explained its ruling,

And the evidence as far as the Court has seen so

far shows – shows the – as far as the State’s evidence

is concerned shows someone being struck, and the car

continuing on through a hedge – or through bushes

and onto the thing.

31

This jury certainly can infer that that’s

sufficient intent to warrant giving it to them. I’m not

saying they will. I’m just saying I don’t – I don’t think

you met the burden that I need to grant your motion.

So you’re [sic] motion is denied.

Id.

Thereafter, defense counsel renewed his motion for a judgment of

acquittal. Id. at 0566, 0571. The court denied the renewed motion. Id. at

0571-72.

The court instructed the jury on both first-degree premeditated murder,

second-degree murder, and manslaughter. Ex. G at 0598-0604. The court

then provided instructions for attempted first-degree murder and attempted

second-degree murder. Id. at 0604-0608. Finally, the court instructed the

jury on aggravated battery and battery. Id. at 0608-0609.

With regard to the crime of second-degree murder, the court provided the

three elements that must be proved beyond a reasonable doubt:

1. That Rosa Lee Armstrong is dead.

2. The death was caused by the criminal act

of Candace Jackson.

3. There was an unlawful killing of Rosa Lee

Armstrong by an act imminently dangerous to another

and demonstrating a depraved mind without regard

for human life.

32

Id. at 0599-0600.

The court elaborated:

An “act” includes a series of related actions

arising from and performed pursuant to a single

design or purpose.

An act is “imminently dangerous to another and

demonstrating a depraved mind” if it is an act or series

of acts that:

1. a person of ordinary judgment would know

is reasonably certain to kill or do serious bodily injury

to another, and

2. is done from ill will, hatred, spite, or an

evil intent, and

3. is of such a nature that the act itself

indicates an indifference to human life.

In order to convict of second-degree murder, it is

not necessary for the State to prove the defendant had

an intent to cause death.

Id. at 0600.6

The record shows the court considered the evidence and denied the

motion for judgment of acquittal based on the evidence and argument of

counsel. The 5th DCA affirmed. Ex E. Petitioner has not established that

the 5th DCA’s decision was contrary to or an unreasonable application of

6 The Court previously set forth the instruction given for attempted second-degree murder

in ground three.

33

federal law, nor that there was an unreasonable determination of the facts.

Thus, the Court will give deference under AEDPA to the state court’s decision

to the extent the claim was raised and addressed in the federal constitutional

sense. See Jackson v. Virginia, 443 U.S. 307 (1979).

After reviewing the evidence in the light most favorable to the

prosecution, a rational trier of fact could have found Petitioner committed the

crimes of second-degree murder and attempted murder in the second degree.

See Wilcox v. Ford, 813 F.2d 1140, 1143 (11th Cir.) (given that evidence may

give some support to the defendant’s theory of innocence, that is not sufficient

to warrant habeas relief), cert. denied, 484 U.S. 925 (1987). As such, the

evidence at trial was sufficient to convict Petitioner of these offenses and there

was no denial of due process of law.

This Court will defer to this resolution as well as give AEDPA deference

to the 5th DCA’s decision to the extent the claim of insufficiency of the evidence

was raised and addressed in the federal constitutional sense. The state

court’s rejection of the constitutional claim is entitled to deference under

AEDPA. McDaniel v. Brown, 558 U.S. 120, 132 (2010) (per curiam) (a

reviewing court must not depart “from the deferential review that Jackson and

§ 2254(d)(1) demand”). See Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449,

463 (11th Cir. 2015) (recognizing that a petitioner raising a Jackson claim faces

34

a high bar in federal habeas due to the two layers of judicial deference) (citing

Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam)). Thus, grounds

eight and nine are due to be denied.

Petitioner is not entitled to habeas relief on her claim of a Fourteenth

Amendment violation. A state prisoner is entitled to habeas relief if the

federal court finds: “upon the record evidence adduced at the trial no rational

trier of fact could have found proof beyond a reasonable doubt.” McDaniel v.

Brown, 558 U.S. at 121 (quoting Jackson, 443 U.S. at 324). Not only must the

federal court consider all of the evidence admitted at trial the court must also

review the evidence in the light most favorable to the prosecution. Jackson,

443 U.S. at 319. This criterion impinges upon the jury’s role, “only to the

extent necessary to guarantee the fundamental protection of due process of

law.” Id. (footnote omitted).

Upon review, the evidence adduced at Petitioner’s trial was sufficient to

convict Petitioner of second-degree murder and attempted murder in the

second degree. After viewing the evidence in the light most favorable to the

prosecution, a rational trier of fact could have found Petitioner committed

these offenses. See McGhee v. Sec’y, Dep’t of Corr., No. 8:18-cv-2358-T-

33AEP, 2019 WL 3388232, at *12 (M.D. Fla. July 26, 2019) (not reported in F.

Supp.) (for the depraved mind element of second-degree murder, the court may

35

consider the defendant’s conduct prior to the use of deadly force). Evidence of

an adversarial relationship or ill will between the parties and the inferences

which may be drawn from these facts may be considered when analyzing

whether there is competent substantial evidence to support a conviction for

second-degree murder. Morales v. State, 251 So. 3d 167, 172 (Fla. 4th DCA

2018). Notably, “[t]he Defendant’s convictions arise out of an incident on May

10, 2013, in which she and her girlfriend Shaina Armstrong got into an

argument in a bank parking lot. The Defendant then drove her automobile at

Shaina Armstrong and her mother Rosa Armstrong, striking them, which

resulted in the death of Rosa Armstrong.” Ex. G at 1464.

After reviewing the evidence in the light most favorable to the

prosecution, a rational trier of fact could have found Petitioner committed the

crimes of second-degree murder and attempted murder in the second degree.

Although there may be conflicting inferences, there is a presumption that the

jury resolved the conflicts in favor of the prosecution. Johnson v. Ala., 256

F.3d 1156, 1172 (2001) (“federal courts must defer to the judgment of the jury

in assigning credibility to the witnesses and in weighing the evidence”), cert.

denied, 535 U.S. 926 (2002). Viewing the record of the evidence and

reasonable inferences in the light most favorable to the prosecution and

referring to the essential elements of the crimes as defined by Florida state

36

law, a rational trier of fact could have found the essential elements of these

crimes beyond a reasonable doubt. Petitioner is not entitled to relief under

Jackson as no due process violation exists.

This Court will defer to this resolution as well as give AEDPA deference

to the 5th DCA’s decision to the extent the claims were raised and addressed

in the federal constitutional sense. The state court’s rejection of these claims

is entitled to deference under AEDPA. Petitioner is not entitled to habeas

relief on grounds eight and nine.

I. Ground Ten

In ground ten, Petitioner claims her trial counsel was ineffective for

failure to object when the state declined to seek an attempted manslaughter

jury instruction as a lesser included offense for attempted murder. Petition

at 24. Petitioner raised a similar claim in ground ten of the Amended Motion

for Postconviction Relief. Ex. G at 1108-1110. The circuit court summarily

denied this ground, citing Sanders v. State, 946 So. 2d 953, 959-60 (Fla. 2006)

(finding the possibility of a jury pardon cannot form the basis for a finding of

prejudice). Ex. G at 1195. Petitioner appealed the circuit court’s decision,

and the 5th DCA affirmed. Ex. K.

The circuit court denied the claim relying on the two-pronged standard

set forth in Strickland. Ex. G at 1178-79. Thus, Petitioner cannot satisfy the

37

“contrary to” test of 28 U.S.C. § 2254(d)(1) as the state court applied the two-

pronged Strickland standard in addressing the motion for post-conviction

relief. The Court next considers whether the state court unreasonably applied

that principle to the facts or premised its adjudication on the claim on an

unreasonable determination of the facts.

Clearly, the state court was not convinced that Petitioner was able to

show a reasonable probability that, but for counsel’s alleged unprofessional

errors, the result of the proceeding would have been different. Indeed, “any

finding of prejudice resulting from defense counsel's failure to request an

instruction on lesser-included offenses necessarily would be based on a faulty

premise: that a reasonable probability exists that, if given the choice, a jury

would violate its oath, disregard the law, and ignore the trial court's

instructions.” Sanders, 946 So. 2d at 959 (relying on Strickland).

The jury found Petitioner guilty of the greater offense, attempted murder

in the second degree. Here, Petitioner failed to satisfy the prejudice prong of

Strickland. Moreover, Petitioner has failed to show the state court’s rejection

of the claim of ineffective assistance of counsel raised in this claim is contrary

to, or an unreasonable application of Strickland, nor has she shown the

decision is based on an unreasonable determination of the facts. Petitioner is

not entitled to habeas relief on ground ten.

38

J. Ground Eleven

Petitioner claims her trial counsel was ineffective for failure to present

evidence at trial of Petitioner’s eye condition, Keratoconus Disease. Petition

at 26. Petitioner raised the same claim in ground eleven of her Amended

Motion for Postconviction Relief. Ex. G at 1111. The circuit court entered an

Interim Order on Motion for Post-conviction Relief scheduling grounds five and

eleven for an evidentiary hearing. Id. at 1197. The court appointed post-

conviction counsel for Petitioner and conducted an evidentiary hearing on

March 7, 2019. Id. at 1713-1785.

Afterwards, the circuit court entered a Final Order Denying Defendant’s

Motion for Post-Conviction Relief. Id. at 1462-71. Once again, the court

employed the Strickland two-pronged standard of review. Id. at 1464. The

court denied ground eleven. Id. at 1468-70.

The claim is exhausted. Here, Petitioner cannot satisfy the “contrary

to” test of 28 U.S.C. § 2254(d)(1) as the state court applied the two-pronged

Strickland standard. Next, the Court considers whether the state court

unreasonably applied that principle to the facts or premised its adjudication

on the claim on an unreasonable determination of the facts.

Based on the evidentiary hearing testimony, the court found counsel

employed a reasonable trial strategy and performed well within the wide range

39

of reasonably competent assistance under prevailing professional standards.

Ex. G at 1470. As such, the court concluded that counsel did not perform

deficiently in failing to pursue or introduce testimony at trial regarding

Petitioner’s vision issues. Id.

In essence, the theory of the defense was that Petitioner was thrown back

in the driver’s seat; therefore, her vision issues had no bearing on her striking

the victims. Id. at 1469. Additionally, the defense wanted to avoid putting

Petitioner on the stand as she would have been subject to impeachment by her

statement to the police in which she admitted intentionally striking the victims

with her automobile. Id. at 1170. Of import, the state had not introduced

the statement in the state’s case based on possible suppression issues. Id.

Defense counsel did not want to open that door as it may have led to a first-

degree murder conviction. Id.

Upon review, the circuit court properly applied the Strickland standard.

The 5th DCA affirmed. Therefore, Petitioner cannot satisfy the “contrary to”

test of 28 U.S.C. § 2254(d)(1). Applying the look-through presumption set

forth in Wilson, the Court finds the state court’s ruling is based on a reasonable

determination of the facts and a reasonable application of the law. Petitioner

has not demonstrated that the state court unreasonably applied Strickland or

40

unreasonably determined the facts. Thus, the 5th DCA’s decision, although

unexplained, is entitled to AEDPA deference.

The Court finds the state court’s adjudication of this claim is not contrary

to or an unreasonable application of Strickland or based on an unreasonable

determination of the facts. As the AEDPA standard is quite difficult to meet,

and Petitioner has failed to meet that standard, Petitioner is not entitled to

habeas relief on ground eleven of the Petition.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED.

2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk shall enter judgment accordingly and close this case.

4. If Petitioner appeals the denial of his Petition (Doc. 1), the Court

denies a certificate of appealability.7 Because this Court has determined

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

7 This Court should issue a certificate of appealability only if a 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)). Upon due consideration, this Court will deny a certificate of appealability.

41

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 20th day of July,

2023.

J) i

fd Agee | 4a,

BRIAN/I, DAVIS

United States District Judge

sa 7/17

C:

Candace Kiara Jackson

Counsel of Record

42