Pennington v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LEROY PENNINGTON,

Petitioner,

v. Case No. 3:21-cv-47-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Leroy Pennington, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254. See Doc. 1. Petitioner challenges a state court

(Duval County, Florida) judgment of conviction for three counts of sale or

delivery of cocaine and one count of sale or delivery of heroin. He is serving a

ten-year term of incarceration. Respondents responded. See Doc. 10 (Resp.).1

1 Attached to the Response are various exhibits. The Court refers to the exhibits

as “Resp. Ex.”

Petitioner declined to file a reply. See Doc. 13. This case is ripe for review.2

II. Governing Legal Principles

A. Standard Under AEDPA

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

governs a state prisoner’s federal habeas corpus petition. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice systems, and not as a means of error correction.’” Id.

(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale for the state court’s

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

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

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

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

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

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

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

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

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

“further factual development” is unnecessary. Turner v. Crosby, 339 F.3d 1247, 1275

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

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decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). When the state court’s adjudication on the merits is

unaccompanied by an explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that

does provide a relevant rationale. It should then

presume that the unexplained decision adopted the

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

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quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

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reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

The two-part Strickland test applies to challenges to the validity of guilty

pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,

58 (1985). The petitioner must still show that counsel’s performance was

deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dept. of Corr., 776 F.3d 1209,

1218 (11th Cir. 2015). To establish prejudice, however, the petitioner “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,474 U.S. at 59 (footnote omitted); Lynch, 776 F.3d at 1218.

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). Since both prongs of the two-part Strickland test must be satisfied to

show a Sixth Amendment violation, “a court need not address the performance

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.

(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in

Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of

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lack of sufficient prejudice, which we expect will often be so, that course should

be followed.” 466 U.S. at 697.

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether

that determination was unreasonable – a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If

there is “any reasonable argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not disturb a state-court

decision denying the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s

representation was ‘within the wide range of reasonable professional

assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th

Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling

on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans

v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)

(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004).

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III. Factual History

The facts of the case are taken from Petitioner’s initial brief filed on direct

appeal. Resp. Ex. 6.

[Appellant] was charged by information with three

counts of sale of cocaine and one count of sale of heroin.

[Appellant] was tried by [a] jury and convicted as

charged. Appellant was sentenced to ten years in prison

for each count. Each sentence was imposed

concurrently.

. . . .

At trial, Detective Sylvia Mitchell of the Jacksonville

Sheriff’s Office (JSO) testified that she was working

undercover attempting to make drug purchases in the

Eureka Gardens apartment complex in August of 2016.

She testified that on August 16, 2016, she purchased

$60 worth of crack cocaine from Appellant. She testified

that another undercover officer, Detective Robin

Waters, was with her during the undercover operation.

She testified that she audio and video recorded the $60

cocaine transaction with Appellant. She testified that

Appellant came out of apartment number 106 in order

to sell her the cocaine. She testified that Appellant gave

her a cell phone number and identified himself as

“Champ[.]” The video of the sale and the cocaine were

both introduced into evidence as Exhibit[s] 1 and 2. She

testified that after the sale she left the apartment

complex and field-tested the suspected crack cocaine

and that it tested positive for the presence of cocaine.

Mitchell testified that she returned to the same

apartment complex the next day, on August 17, 2016,

and purchased another $40 worth of crack cocaine from

Appellant. This sale was also video and audio recorded.

The recording and the cocaine were introduced into

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evidence. Detective Waters was also present for this

transaction.

Mitchell testified that on August 23, 2016, she and

Waters were parked outside of a convenience store in

the same neighborhood. They were both still in their

undercover capacity. Mitchell testified that Appellant

approached them and then sold them $8 worth of

heroin. This sale was also audio and video recorded.

The recording and the heroin were introduced into

evidence. Mitchell testified that Appellant referred to

the heroin as “boy,” which is a slang term for heroin. A

field test of the suspected heroin tested positive for

heroin.

She testified that on August 25, 2016, she purchased

$80 worth of cocaine from Appellant outside of

apartment number 106. The sale was video and audio

recorded. The cocaine and recording were introduced

into evidence. She testified that the suspected crack

cocaine field-tested positive for the presence of cocaine.

She testified that she then sought a search warrant for

apartment number 106. The search warrant was

executed on September 15, 2016. Appellant was

arrested there. She testified that the drug seller never

gave her the name “Leroy Pennington[.]” She testified

that when she gave an earlier deposition about the

sales she did not mention the seller’s tattoos.

The State had Appellant unbutton his shirt and show

the jury the tattoos on his chest and neck over

Appellant’s attorney’s objection. Detective Robin

Waters then testified that she was present for the three

cocaine sales and the heroin sale and that Appellant

was the seller in each instance. Waters testified that

she remained in the car while Mitchell completed the

transactions.

Officer Nicholas Shobe testified that he participated in

the execution of the search warrant at apartment

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number 106 and that there was an adult male present

in the apartment. He testified that the adult male was

Appellant and that he identified himself as Leroy

Pennington.

Steven Miles, an FDLE lab analyst, testified that he

analyzed the suspected drugs bought by JSO in this

case. He testified that . . . Exhibits 2, 4, and 8 contained

cocaine. He testified that Exhibit 6 was heroin.

Resp. Ex. 6 at 6-9 (record citations omitted).

IV. The Petition

a. Ground One

Petitioner alleges that his trial counsel was ineffective for misadvising

Petitioner to waive severance of the charged offenses for trial. Doc. 1 at 5.

According to Petitioner, trial counsel incorrectly advised him that if he did not

agree to waive severance of the counts, the evidence of each offense would be

admissible as Williams3 Rule evidence in each trial. Id.

Petitioner raised this claim in his Florida Rule of Criminal Procedure

3.850 motion filed in state court. Resp. Ex. 10 at 2. The trial court summarily

denied the claim, finding:

Defendant alleges counsel was ineffective for

misadvising Defendant to waive severance of Counts

One, Two, Three, and Four. While counsel filed a

“Motion for Severance of Counts,” Defendant agreed to

withdraw the Motion because counsel misadvised him

that each count could be used as Williams [R]ule

evidence during the trials on the other counts.

3 Williams v. State, 110 So. 2d 654 (Fla. 1959).

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Defendant also claims that counsel did not advise him

that the trial court would determine the admissibility

of Williams [R]ule evidence after a hearing. Counsel’s

failure to advise Defendant resulted in his waiver of a

hearing on the “State’s First Notice of Other Crimes,

Wrongs or Acts Evidence” (“Notice”). Defendant claims

that if counsel had not misadvised him, then he would

have sought a separate trial for each count and the jury

would not have learned that he had been charge[d] on

four separate counts.

Initially, this Court notes that, although the State filed

its Notice, the record does not demonstrate that the

trial judge made a ruling on the admissibility of the

Williams [R]ule evidence or that Defendant waived a

hearing on the Notice. The State also did not use the

four transactions as Williams [R]ule evidence during

trial.

Counsel was not deficient for advising Defendant to

waive severance of the counts because each count could

be used as Williams [R]ule evidence during the trials

on the remaining counts. Sufficient similarities existed

among Defendant’s transactions with undercover

Detectives Sylvia Mitchell (“Detective Mitchell”) and

Robin Waters (“Detective Waters”). The four

transactions occurred within a ten day period of time.

Three of the transactions, during which the detectives

purchased crack cocaine from Defendant, occurred at

the same location, Eureka Garden Apartments, near

the same apartment unit. The third transaction, during

which the detectives purchased heroin from Defendant,

occurred at a convenience store; however, the store and

Eureka Garden Apartments were located on the same

street. Defendant identified himself as “Champ” to the

detectives, and they used this alias when speaking with

Defendant during the deals. Further, the undercover

detectives attempted to contact Defendant using the

same mode of communication, a phone, after the first

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transaction when Defendant gave his phone number to

them.

The State could have offered the transactions as

Williams [R]ule evidence to prove identity. Defense

counsel disputed Defendant’s identity as the dealer.

However, Detective Mitchell identified Defendant as

the dealer in each transaction, and Detective Waters

testified that she identified “Champ” as Defendant

after the first transaction by using his physical

description, phone number, and address in a database

search. At a trial on a severed count, the State then

could use the evidence to further establish Defendant’s

identity. See Johnson v. State, 796 So. 2d 1196, 1198

(Fla. 4th DCA 2001) (finding the lower court’s denial of

defendant’s motion to sever was harmless because

evidence of three hand-to-hand drug transactions could

have been introduced in separate trial as similar act

evidence to prove identity); Vinas v. State, No. 3D18-

1433, 2020 WL 355585, at * 1, *3 (Fla. 3d DCA Jan. 22,

2020) (citing Johnson, 796 So. 2d at 1198).

Nevertheless, counsel’s alleged deficiency did not result

in prejudice given the overwhelming evidence

presented against Defendant at trial. See Pardo v.

State, 941 So. 2d 1057, 1070-72 (Fla. 2006)

(determining counsel’s alleged deficiency in waiving

the severance of offenses did not result in prejudice

because of the overwhelming evidence against the

defendant). Detectives Mitchell and Waters identified

Defendant as the dealer who sold crack cocaine and

heroin to them during their investigation. The State

presented video evidence of each transaction. The field

tests conducted by the detectives, as well as the

laboratory tests conducted by a Florida Department of

Law Enforcement analyst, demonstrated that

Defendant had provided the detectives with crack

cocaine on three occasions and heroin on one occasion.

Accordingly, this Court denies Ground One.

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Resp. Ex. 10 at 18-20 (record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the trial court’s denial without a written

opinion. Resp. Ex. 11.

The Court addresses Petitioner’s claim in accordance with the deferential

standard for federal court review of state court adjudications. Similar fact

evidence, also known as “collateral crime evidence” or Williams Rule evidence,

is evidence that points to the commission of a separate crime, and is admissible

if relevant for any purpose except demonstrating bad character or propensity.

Williams, 110 So. 2d at 654. Williams Rule evidence can be relevant to establish

the identity of a perpetrator. See Conahan v. State, 844 So. 2d 629, 632-34 (Fla.

2003). Here, as the trial court explained in its order, if Petitioner did not waive

his motion to sever the counts, evidence of each separate offense still would be

presented to the jury as Williams Rule evidence during Petitioner’s separate

trials. Indeed, the location and circumstances of all four sales were similar, and

evidence of each sale would be relevant to a misidentification defense as the

officers who participated in Petitioner’s four drug sales identified him as the

dealer.

Petitioner has neither shown counsel was deficient, nor has he shown that

but for counsel’s alleged error, the outcome of his trial would have been different

had he pursued the motion to sever. To that end, upon thorough review of the

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record and the applicable law, the Court finds that the state court’s decision to

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

of Strickland, and it was not based on an unreasonable determination of the

facts given the evidence presented to the state court. Ground One is denied.

b. Ground Two

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

the prosecutor becoming a witness during Petitioner’s sentencing hearing and

testifying to “highly inflammatory facts” not in evidence. Doc. 1 at 7. According

to Petitioner, the prosecutor commented on uncharged crimes for which

Petitioner was not convicted; and the trial court considered those offenses when

sentencing him. Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. 10 at 7.

The trial court summarily denied the claim:

Defendant claims counsel was ineffective for failing to

object to the prosecutor’s arguments at sentencing.

Defendant specifically takes issue with the prosecutor’s

statement about the presence of drugs around

Defendant’s children:

And I think Mr. Cobbin and I have learned

during the depositions of Detective Waters

and Detective Mitchell that the allegation

was that his children were in the

apartment complex in which he was selling

drugs out of. And, in fact, Mr. Cobbin and I

learned during the depositions of those

detectives that when the search warrant

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was executed, there was crack cocaine all

over the apartment and the kids were

sitting right in the living room.

Defendant claims counsel should have objected because

this statement was untrue and did not constitute a “fact

in evidence.” Further, it resulted in the consideration

of an uncharged crime. If counsel had objected to this

statement or contested its veracity, then the outcome of

Defendant’s sentencing would have been different.

This Court finds that the prosecutor did not offer the

above statement as evidence of an uncharged crime.

The prosecutor responded to defense counsel’s

argument that Defendant should receive a limited term

of imprisonment so that he could receive addiction

treatment and care for his children. In response, the

prosecutor argued that Defendant had not attempted to

change his ways even after the birth of his children and

noted the children’s presence during the execution of

the search warrant. The prosecutor did not present this

statement as evidence of an uncharged crime and based

it on evidence from the record.

Nevertheless, counsel’s alleged deficiency did not result

in prejudice. Counsel corrected the prosecutor’s

statements by noting that he believed law enforcement

found only marijuana and a scale during the search.

The detectives testified in their depositions that

children were present in the house when they executed

a search warrant in the case of Defendant’s girlfriend,

but the detectives did not testify that Defendant was

present at that time. Defendant then clarified that he

never sold drugs in front of his daughter.

Further, no evidence exists that the prosecutor’s

statement factored into the trial judge’s sentencing

decision. Defendant stated that he never sold drugs in

front of his daughter; the trial judge responded, “I

understand.” When pronouncing the sentence, the trial

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judge noted that he chose not to order drug treatment

in lieu of a prison sentence because of Defendant’s prior

record, which included violent crimes and prior sales,

as well as the seriousness of the offenses. Accordingly,

this Court denies Ground Two.

Resp. Ex. 10 at 20-21 (record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the trial court’s denial without a written

opinion. Resp. Ex. 11.

The Court addresses Petitioner’s claim in accordance with the deferential

standard for federal court review of state court adjudications. In doing so, the

Court notes that during Petitioner’s sentencing hearing, trial counsel

highlighted Petitioner’s relationship with his young daughter and asked for the

imposition of a sentence that allowed Petitioner to receive parental counseling

and treatment for his drug addiction. Resp. Ex. 10 at 299. In response, the state

explained that before being charged with the drug offenses, Petitioner took no

actions showing a desire to change his ways despite having an infant child. Id.

at 303. The state also argued that when officers executed the search warrant,

crack cocaine was found all over Petitioner’s apartment and the children were

located in the living room among the drugs. Id. Petitioner then addressed the

court and stated he never sold drugs in front of his daughter, to which the trial

court replied that it understood. Id. at 307. The trial court then explained its

sentencing decision was based on Petitioner’s criminal record and the severity

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of the current convictions. Id. at 309-11. The trial court clarified that

Petitioner’s parenting skills played no part in its sentencing decision and

explained that it did not question Petitioner’s desire to be a good parent. Id. at

309-10.

As such, Petitioner has neither shown counsel was deficient for failing to

object, nor has he shown that but for counsel’s alleged error, the outcome would

have been different. To that end, upon thorough review of the record and the

applicable law, the Court finds that the state court’s decision to deny

Petitioner’s claim was neither contrary to nor an unreasonable application of

Strickland, and it was not based on an unreasonable determination of the facts

given the evidence presented to the state court. Ground Two is denied.

c. Ground Three

Petitioner argues that his sentence is illegal because he was convicted of

four separate counts, but the trial court only imposed a general ten-year term

of incarceration rather than sentencing him separately for each conviction. Doc.

1 at 8-9.

Petitioner raised this issue in his Rule 3.850 motion. Resp. Ex. 10 at 9.

The trial court summarily denied the claim:

Defendant asserts his sentence is illegal because the

trial court allegedly entered one general sentence for

Counts One, Two, Three, and Four. “A general sentence

. . . occurs when the trial court imposes only one

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sentence after a defendant has been convicted of

several offenses.” Carroll v. State, 361 So. 2d 144, 147

(Fla. 1978). A court may not impose a general sentence.

Parks v. State, 765 So. 2d 35, 35 (Fla. 2000) (finding

that general sentences have been prohibited since

1977). However, a general sentence “is distinguished

from . . . concurrent sentences, where several sentences

are served simultaneously.” Carroll, 361 So. 2d at 147.

The record demonstrates that the trial court did not

impose a general sentence, but imposed concurrent

sentences where Defendant would simultaneously

serve the sentence for each count. During the

sentencing hearing, the trial court imposed a ten-year

term of imprisonment for each count and ordered those

sentences to run concurrent with one another:

Trial Court: The three counts of sale of

cocaine and the one count of sale of heroin,

all second-degree felonies, the Court

adjudicates you guilty of that offense. It’s

the judgment and sentence of this Court

that you be adjudicated guilty of those

offenses, serve ten years in the Florida

state prison, with credit for - how much

time?

The Clerk: 175 days.

Trial Court: 175 days time served . . . those

sentences will run concurrent with each

other . . . .

The written judgment and sentence also demonstrates

the trial court properly apportioned the sentences.

Accordingly, this Court denies Ground Three.

Resp. Ex. 10 at 22 (record citations omitted). Petitioner appealed, and the First

DCA per curiam affirmed the trial court’s denial without a written opinion.

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Resp. Ex. 11.

First, the Court finds that Petitioner’s challenge to his sentence makes no

showing of a federal constitutional violation and is instead an issue of state law

not cognizable on federal habeas review. See Branan v. Booth, 861 F.2d 1507,

1508 (11th Cir. 1988) (“[F]ederal courts cannot review a state’s alleged failure

to adhere to its own sentencing procedures.”). Second, even if this claim were

cognizable on federal habeas review, it lacks merit because the trial court did

not impose one general sentence but issued a ten-year term of incarceration on

each count; and it also ordered that each sentence run concurrent with the

other. See Resp. Ex. 10 at 311-12. Thus, Ground Three is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED

WITH PREJUDICE.

2. The Clerk shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

3. If Petitioner appeals this denial, the Court denies a certificate of

appealability. Because this 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

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in this case. Such termination shall serve as a denial of the motion.*

DONE AND ORDERED at Jacksonville, Florida, this 30th day of

January, 2024.

□ Cirmotheg Corrig oN

Ww TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Leroy Pennington, #680864

Counsel of record

4 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, Petitioner “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Here, after consideration of the record as a whole, the Court will deny a certificate of

appealability.

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