# McCormack v. Florida Department of Corrections

> District Court, S.D. Florida · October 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10121169

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 27, 2022
- **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/10121169

## How later opinions describe it (automated extraction)

- finding no prejudice despite “substantial” constitutional error and a curative instruction that was “largely ineffective”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-60555-BLOOM

ORLAND McCORMACK,

Petitioner,

v.

FLORIDA DEPARTMENT
OF CORRECTIONS,

Respondent.
/
ORDER ON MOTION FOR RECONSIDERATION

THIS CAUSE is before the Court upon Petitioner Orland McCormack’s Motion to
Reconsider, Alter, or Amend Judgment, ECF No. [20] (the “Motion”), filed on June 6, 2022.
Therein, McCormack seeks reconsideration of the Court’s Order of Dismissal, ECF No. [19],
denying his petition as untimely. The State did not file a response. For the reasons set forth below,
the Motion is granted, but McCormack’s Petition is denied.
I. BACKGROUND
On October 8, 2020, McCormack filed a Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2254 by a Person in State Custody, ECF No. [13] (the “Petition”). See ECF No. [19] at 1
n.1 (explaining that McCormack provided his Petition to prison authorities for mailing on October
8, 2020); Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009) (“Under the ‘prison
mailbox’ rule, a pro se prisoner’s court filing is deemed filed on the date it is delivered to prison
authorities for mailing.”).
Following briefing, the Court dismissed the Petition as time barred by the one-year statute
of limitations applicable to § 2254 petitions, as set forth in the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). ECF No. [19] at 3. The Court reasoned that the one-year period
commenced on September 15, 2017, thirty days after the Fourth District Court of Appeal (“Fourth
DCA”) affirmed McCormack’s convictions, since that is the period in which he could have sought
discretionary review by the Florida Supreme Court. Id. at 4-5. Because McCormack “did not seek
review from Florida’s highest court,” the Court concluded “he is not entitled to the 90-day period
for seeking certiorari review with the United States Supreme Court.” Id. at 5 n.5 (citing Phillips v.
Warden, 908 F.3d 667, 673 (11th Cir. 2018)). Applying September 15, 2017 as the trigger date for
the one-year limitations period, the Court concluded that the Petition was untimely. Id. at 6.
In the instant Motion, McCormack argues that this Court erred in determining the date
McCormack’s conviction became final. ECF No. [20]. He argues that the Fourth DCA’s
affirmance, albeit a “written opinion,” was not an elaborated opinion addressing any point of law
that would be subject to discretionary review by the Florida Supreme Court. Id. at 3. He therefore

argues that the Fourth DCA constituted his court of last resort in Florida, so he was entitled to the
90-day period after the Fourth DCA’s decision to seek certiorari to the U.S. Supreme Court. Id. at
5 (citing Supr. Ct. R. 13(1)). With the benefit of those additional 90 days, McCormack asserts that
his Petition was timely filed. Id. at 7.
II. LEGAL STANDARD
A motion for reconsideration is “an extraordinary remedy to be employed sparingly.”
Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370 (S.D. Fla. 2002). “The
burden is upon the movant to establish the extraordinary circumstances supporting
reconsideration.” Saint Croix Club of Naples, Inc. v. QBE Ins. Corp., No. 2:07-cv-00468-JLQ,
2009 WL 10670066, at *1 (M.D. Fla. June 15, 2009).

A motion for reconsideration must clearly “set forth facts or law of a strongly convincing
nature to demonstrate to the Court the reason to reverse its prior decision.” Am. Ass’n of People
with Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339 (M.D. Fla. 2003). As such, a court will not
reconsider its prior ruling without a showing of “clear and obvious error where the ‘interests of
justice’ demand correction.” Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., No. 6:11-cv-1637,
2013 WL 425827, at *1 (M.D. Fla. Feb. 4, 2013) (quoting Am. Home Assurance Co. v. Glenn
Estess & Assoc., 763 F.2d 1237, 1239 (11th Cir. 1985)).
III. DISCUSSION
A. Rule 60(b) Reconsideration
McCormack has demonstrated that the Court applied an incorrect legal standard when it
determined that the Fourth DCA’s affirmance was appealable to the Supreme Court of Florida. In
its Order of Dismissal, the Court stated: “Because the Fourth DCA affirmed Petitioner’s
convictions in a written opinion, the Florida Supreme Court had jurisdiction to review the
opinion.” ECF No. [19] at 5 n.5. McCormack is correct that the Supreme Court of Florida’s

jurisdiction does not turn on whether the Fourth DCA’s decision was “written.” ECF No. [20] at
2-6. Rather, the appealability of a DCA decision turns on whether it “contain[s] any discussion of
the facts in the case such that it could be said that the district court expressly addresse[d] a question
of law within the four corners of the opinion itself.” Gandy v. State, 846 So. 2d 1141, 1144 (Fla.
2003) (quotation marks omitted). The Supreme Court of Florida lacks jurisdiction to consider a
decision from a DCA that “does not contain any statement or citation establishing a point of law
upon which the decision rests.” Wheeler v. State, 296 So. 3d 895, 897 (Fla. 2020).
Upon closer examination of the Fourth DCA’s affirmance of McCormack’s convictions, it
is less clear that the affirmance was appealable to the Supreme Court of Florida. See McCormack
v. State, 226 So. 3d 871 (Fla. 4th DCA 2017). The affirmance states in full:

May, J.

We grant the State's motion for rehearing. In its motion, the State advised
the court that the record submitted on appeal failed to include the order denying the
defendant's motion under Florida Rule of Criminal Procedure 3.800(b)(2), which
addressed Williams v. State, 186 So.3d 989 (Fla. 2016). In fact, the record included
an affidavit attesting “there had been no order addressing the 4–12–16 Motion to
Correct Sentencing Error.” This was the sole basis for our reversal.

The State has now filed the order and the transcript from the hearing on the
Rule 3.800(b)(2) motion. We supplement the record with both, withdraw our prior
opinion, and affirm on all issues raised in the appeal.

Affirmed.

Taylor and Ciklin, J.J., concur.
Id. The Fourth DCA’s decision granted rehearing and withdrew its prior opinion, which had
remanded for resentencing in light of the Williams case. See ECF No. [16-1] at 90-93. The State
had agreed to resentencing because it believed the trial court was unaware of Williams when it
sentenced McCormack. See id. at 90. However, subsequent to the Fourth DCA’s remand, the State
discovered that the trial court had already resentenced McCormack in light of Williams. Id. at 96
(explaining that a “clerical error” led to the State’s error). The State supplemented the record and
successfully moved for reconsideration, leading to the decision copied in full above. Id.
McCormack asserts that the Fourth DCA’s affirmance after rehearing does not discuss the
facts of McCormack’s case, nor does it address a question of law. ECF No. [20] at 4. He argues
that it does nothing more than withdraw the prior, erroneous decision, and “affirm on all issues
raised in the appeal.” Id. The Government declined to respond to McCormack’s Motion, and the
Government did not address this specific issue in its original Response. See ECF No. [15] at 5
(arguing incorrectly that the affirmance was appealable because it was a “written opinion”).
The Court has found no authority directly addressing whether an affirmance like
McCormack’s is appealable to the Florida Supreme Court. Although McCormack is correct that
the Fourth DCA’s affirmance contains no discussion of the facts of McCormack’s trial, it does
contain a limited discussion of the procedural issue regarding McCormack’s entitlement to a
resentencing. McCormack, 226 So. 3d at 871. The Court therefore finds it likely that the Supreme
Court of Florida had jurisdiction to consider an appeal of the Fourth DCA’s affirmance.
Accordingly, as this Court previously decided, ECF No. [19] at 5 n.5, McCormack was not
entitled to the 90-day period to seek certiorari to the U.S. Supreme Court. See Phillips, 908 F.3d
at 673. His conviction therefore became final thirty days after the Fourth DCA’s affirmance was
issued, on September 15, 2017. Because that is more than one year before McCormack filed his
Motion for Postconviction Relief on November 1, 2018, ECF No. [16-1] at 104, his one-year
period under AEDPA expired long before his federal Petition was filed. The Court correctly
deemed McCormack’s Petition untimely.
However, due to the uncertainty regarding the appealability of the Fourth DCA’s
affirmance, and the State’s failure to contest McCormack’s position, the Court will entertain the
possibility that the Fourth DCA’s affirmance was not appealable, such that it constitutes the “state

court last resort” in this case, Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (quoting Supr. Ct. R.
13.1). In that regard, McCormack would be entitled to the 90-day period for filing a petition for
certiorari to the United States Supreme Court. Lowe v. Fla. Dep’t of Corrs., 679 F. App’x 756,
757-58 (11th Cir. 2017). His conviction would have become final 90 days after August 16, 2017:
November 14, 2017.
Applying that date as the trigger for the one-year AEDPA period, McCormack would have
accrued 352 days of AEDPA time until November 1, 2018, when he filed his Motion for
Postconviction Relief. ECF No. [16-1] at 104. Following denial, the appellate court’s affirmance,
and denial of rehearing, the mandate was issued on September 25, 2020, at which point the
AEDPA clock would have begun ticking once again. See id. at 207 (denial); id. at 294 (affirmance);

ECF No. [16-2] at 14 (denying rehearing); id. at 16 (mandate). From that date until October 8,
2020, the date when the instant Petition was deemed to have been filed, see ECF No. [19] at 1 n.1,
an additional 13 days passed.
Thus, if McCormack is correct regarding when his convictions became final, he would
have accrued a total of 352 + 13 = 365 untolled days prior to filing his Petition. His Petition would
therefore be considered timely.
While the Court has again rejected McCormack’s timeliness position, the Court recognizes
that “jurists of reason” could “find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, McCormack is
entitled to a certificate of appealability on the issue of timeliness.
Moreover, in light of the uncertainty regarding timeliness, the Court will proceed with a
merits analysis of the claims within McCormack’s Petition. See Trussell v. Bowersox, 447 F.3d
588, 590 (8th Cir. 2006) (considering the merits of a habeas petition despite its probable
untimeliness (citing Day v. McDonough, 547 U.S. 198 (2006), for the proposition that the AEDPA

statute of limitations is not a jurisdictional bar)); see also Damian v. Vaughn, 186 Fed. App’x 775,
at *1 n.1 (9th Cir. 2006) (considering the merits of an untimely habeas petition).
B. The Merits of McCormack’s Petition
In McCormack’s Petition, he attacks his convictions and sentences for battery, kidnapping
with a firearm, and aggravated assault with a firearm, following a jury trial in the Seventeenth
Judicial Circuit in Broward County, Florida, case number 12-16738-CF-10A. ECF No. [13] at 7.
In total, McCormack was sentenced to 30 years in prison. Id. In the instant Petition, he raises three
claims of trial court error and six claims of ineffective assistance of counsel. See id. at 11-29.
1. The Evidence at Trial
The State’s Case

The Government’s evidence in this case largely consisted of the testimony of the victim,
Samantha Baxter, and her eighteen-year-old daughter, Tiffany.
According to Samantha, she and McCormack got married in 2008. ECF No. [17-1] at 312.
According to Samantha, their “marriage had been on the rocks” from the start. Id. The couple
argued frequently, id.; McCormack was jealous and distrustful. Id. at 312, 406. He often accused
Samantha of infidelity and maintaining a relationship with George, her ex-boyfriend. Id. at 328.
On November 1, 2012, Samantha fell asleep in Tiffany’s room while watching a movie.
Id. at 321. McCormack called her around midnight to ask where she was. Id. at 322. Samantha
woke and went to a guest room to sleep. Id. at 324. She did not go to the room she and McCormack
formerly shared, because they had ceased sleeping together in that room due to disagreements. Id.
at 325.
Shortly after Samantha lay down on the bed in the guest room, McCormack entered and
accused her of sleeping with George. Id. at 328. McCormack then pulled out a gun and told her he
was going to shoot her in the head. Id. at 332. He inserted a magazine and loaded a bullet. Id. at

334-35. At this point, Samantha “spring[ed] off the bed” and enveloped McCormack in a “bear
hug.” Id. at 341-42. As the pair struggled, the gun discharged, but no one was hit. Id. at 344.
Having regained control, McCormack pointed the gun at Samantha’s head and pulled her
outside and into his car. Id. at 344. They drove to the house of McCormack’s friend, but they did
not enter. Id. at 355. McCormack then insisted Samantha take him to George’s house. Id. at 358.
While the car was stopped, Samantha saw an opportunity to disarm McCormack, who was driving
while holding the gun. Id. at 366. She grabbed his testicles, causing him to bend down and bite her
hand. Id. at 367. McCormack then apologized for biting Samantha and the two began driving back
to their home. Id. at 370.
At some point on the way home, McCormack nearly hit another car, causing a police officer

to follow them. Id. at 371. When they arrived home, the officer parked in front of the driveway
while McCormack exited his car. Id. at 373. The officer asked where McCormack and Samantha
were coming from and whether they saw the car that McCormack nearly hit. Id. McCormack
apologized and the officer departed. Id. at 374.
Upon returning home, the couple entered the guest room where the scuffle had occurred.
Id. at 381. The bullet had damaged the tile floor and a closet mirror. Id. at 381. Samantha began
cleaning the glass and bullet fragments. Id. at 384-85. She told McCormack to throw the gun in a
nearby lake. Id. at 388. After he left to do so, Samantha woke Tiffany, who was asleep in her bed,
and told her they had to go. Id. at 391. They went to the neighbor’s house, explained what
happened, and eventually called the police. Id. at 401.
Tiffany’s testimony was generally consistent with Samantha’s testimony. She stated that
McCormack was a jealous man who ruined her relationship with George, whom she considered to
be her father, because George recognized that his presence caused McCormack to create trouble.
Id. at 499-500.

On the night in question, Tiffany explained that she did not hear the fight in the guest room
or the shot fired because she is a hard sleeper. Id. at 486 (“My mom always yells at me for sleeping
so hard.”). In the morning, her mother had to physically shake her to wake her up. Id. at 498. After
entering the neighbor’s house, Samantha recounted to Tiffany what happened during the night,
and Tiffany insisted that they call the police. Id. at 495-96. Samantha initially refused, but
eventually consented to Tiffany calling the police. Id. at 497.
The State called Officer Gallardo, who testified as to his discussions with Tiffany,
Samantha, and McCormack following Tiffany’s call to the police. Id. at 515-534. He confirmed
that Samantha had a fresh bite mark on her hand and appeared to be in shock. Id. at 521-23.
Lastly, the State called a crime scene technician, who testified that she conducted

presumptive “gunshot residue testing” on Samantha’s hand. Id. at 561-62. The result of the test
was negative, indicating that Samantha did not fire the gun. Id. at 562. She did not conduct a test
on McCormack, because he was not present. Id. at 572.
McCormack’s Defense
McCormack’s defense consisted entirely of his own testimony. He admitted to being a
jealous person generally but denied being jealous of George specifically. Id. at 720-21. He claimed
to have an excellent relationship with Tiffany and explained how he supported her financially. Id.
at 619-21.
McCormack explained that, in the months leading up to the incident, he began to suspect
Samantha of getting money from a drug-dealing ex-boyfriend. Id. at 625-26. This suspicion was
based on new furniture and other expensive items she was purchasing that he did not think she
could afford. Id. at 623-24.
On the night in question, McCormack testified that when he entered the guest bedroom, he
found Samantha sitting in bed and counting money within a blue duffel bag. Id. at 632. He asked

where the money came from. Id. at 633. As he tried to approach, Samantha suddenly pulled a
firearm from the bottom of the bag and pointed it at McCormack’s forehead. Id. at 634.
Using his training as a police detective in Jamaica, McCormack did an evasive maneuver
and then pulled Samantha close to him to make it difficult for her to shoot him. Id. at 637. He bit
her hand to loosen her grip on the gun. Id. at 638. During the scuffle, the gun discharged. Id.
McCormack eventually succeeded in disarming Samantha and retrieving the gun. Id.
McCormack then threw the gun in a lake nearby their house. Id. at 644. McCormack began
to drive toward his friend’s house, but Samantha insisted on going with him. Id. at 646-47. When
they arrived at the friend’s house, the friend came out and spoke with them, advising them to call
the police and terminate their relationship. Id. at 648.

On the way home, McCormack swerved while driving, causing a police officer to pull him
over in front of his house. Id. at 648-49. The officer approached and asked if McCormack had been
drinking. Id. at 649. McCormack answered that he did not drink and had merely lost focus for a
minute while driving. Id. The officer was satisfied and departed. Id. at 650.
At home, McCormack went upstairs. Id. at 651. From the window, he saw Samantha leave
the house and walk to the neighbor’s house with the blue duffel bag full of money. Id. at 653. She
returned approximately one hour later. Id.
2. Legal Standard
Deference Under § 2254
A court’s review of a state prisoner’s federal habeas corpus petition is governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Abdul–Kabir v. Quarterman, 550
U.S. 233, 246 (2007). “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.” Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642

(11th Cir. 2016) (quotation marks omitted). This standard is “difficult to meet.” White v. Woodall,
572 U.S. 415, 419 (2014) (quotation marks omitted).
According to AEDPA, a federal court may not grant a habeas petitioner relief on any claim
adjudicated on the merits in state court 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); see
also Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017) (citing 28 U.S.C.
§ 2254(d)).
A state court decision is “contrary to” established Supreme Court precedent when it

(1) applies a rule that contradicts the governing law set forth by the Supreme Court; or
(2) confronts a set of facts materially indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from Supreme Court precedent. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law is
different from an incorrect application of federal law. Id. at 410. Consequently, “[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) (quotation marks omitted). If the last state court to decide a prisoner’s federal claim
provides an explanation for its merits-based decision in a reasoned opinion, “a federal habeas court
simply reviews the specific reasons given by the state court and defers to those reasons if they are
reasonable.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Even summary rejection of a claim, without explanation, qualifies as an adjudication on
the merits, warranting deference. See Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335,
1351 (11th Cir. 2019). If the state court’s merits determination is unaccompanied by an

explanation, federal courts should “‘look through’ the unexplained decision to the last related state-
court decision that does provide a relevant rationale” and “presume that the unexplained decision
adopted the same reasoning.” Wilson, 138 S. Ct. at 1192. Furthermore, a decision is still an
adjudication on the merits when it “addresses some but not all of a defendant’s claims.” Johnson
v. Williams, 568 U.S. 289, 298 (2013).
In sum, 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) (quotation marks and footnote omitted). Deferential review under § 2254(d)
is generally 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).

Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution guarantees criminal defendants
the right to assistance of counsel during criminal proceedings. See Strickland v. Washington, 466
U.S. 668, 684-85 (1984). When assessing counsel’s performance under Strickland, the Court
employs a strong presumption that counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690. “[T]he Sixth
Amendment does not guarantee the right to perfect counsel; it promises only the right to effective
assistance[.]” Burt v. Titlow, 571 U.S. 12, 20 (2013). “Where the highly deferential standards
mandated by Strickland and AEDPA both apply, they combine to produce a doubly deferential
form of review that asks only ‘whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.’” Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013)
(quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate
both (1) that counsel’s performance was deficient; and (2) a reasonable probability that the

deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687-88; see also
Harrington, 562 U.S. at 104.
To establish deficient performance, the petitioner must show that, considering all
circumstances, “counsel’s conduct fell ‘outside the wide range of professionally competent
assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009) (quoting
Strickland, 466 U.S. at 690). Strategic choices made after thorough investigation of the law and
facts relevant to plausible options are virtually unchallengeable. See Strickland, 466 U.S. at 690-
91. The court’s review of counsel’s performance should focus on “not what is possible or ‘what is
prudent or appropriate, but only [on] what is constitutionally compelled.’” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (footnote omitted; quoting Burger v. Kemp, 483 U.S.

776, 794 (1987)). Counsel is not ineffective for failing to raise non-meritorious issues, see
Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001); nor is counsel required to present every
non-frivolous argument, see Dell v. United States, 710 F.3d 1267, 1282 (11th Cir. 2013).
Regarding the prejudice component, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. A court need not address both prongs of Strickland
if the defendant makes an insufficient showing on one of the prongs. See id. at 697; Brown v.
United States, 720 F.3d 1316, 1326 (11th Cir. 2013).
3. Analysis of McCormack’s Claims
As noted above, McCormack raises three claims of trial court error and six claims of
ineffective assistance of counsel.
Ground One
In Ground One, McCormack argues that the trial court erred in denying his motion for

mistrial due to the Prosecutor’s allegedly impermissible comment on McCormack’s right to remain
silent. ECF No. [13] at 11. The State agrees that this claim was exhausted when McCormack raised
it on direct appeal. ECF No. [15] at 7.
“A defendant in custody after receiving Miranda warnings indisputably has the right under
the Fifth Amendment to remain silent.” United States v. Wilchcombe, 838 F.3d 1179, 1190 (11th
Cir. 2016). Accordingly, the Fifth Amendment prohibits “comment by the prosecution on the
accused’s silence[.]” Griffin v. California, 380 U.S. 609, 615 (1965). To determine whether the
prosecution made an impermissible comment on a defendant’s right to remain silent, the Eleventh
Circuit directs courts to consider “whether the remark is ‘manifestly intended’ by the prosecutor
or ‘would naturally and necessarily be understood by the jury’ as a comment on the defendant’s

silence.” Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987) (quoting United States v.
Vera, 701 F.2d 1349 (11th Cir. 1983)). “The comment must be examined in context, in order to
evaluate the prosecutor’s motive and to discern the impact of the statement.” United States v.
Knowles, 66 F.3d 1146, 1163 (11th Cir. 1995).
“Because a trial judge is in the best position to evaluate both the tone and demeanor of the
prosecutor, and the prejudicial effect of a statement or evidence on the jury, it is within that judge’s
discretion to grant or deny a mistrial. United States v. Hernandez, 490 F. App’x 250, 253 (11th
Cir. 2012) (internal citations omitted). Accordingly, the mistrial determination must be made “in
the context of the entire trial and in light of any curative instruction.” United States v. Newsome,
475 F.3d 1221, 1227 (11th Cir. 2007). “When a district court gives a curative instruction, the
reviewing court will reverse only if the evidence is so highly prejudicial as to be incurable by the
trial court’s admonition.” Id. (quotation marks omitted).
McCormack takes issue with the Prosecutor’s comment during cross examination of
McCormack. ECF No. [13] at 11. The Prosecutor sought to impeach McCormack with statements

he had made at a bond hearing twenty days after the incident occurred. ECF No. [17-1] at 661.
Referring to that bond hearing, the Prosecutor asked:
Q: That was the first time you gave a statement to anybody about anything in this
case, correct?

A: Correct.

Q: 20 days after this happened.

Id. At this point, McCormack’s counsel objected that the Prosecutor had improperly commented
on McCormack’s right to remain silent and moved for a mistrial Id. at 661-62. After the Court
excused the jury, the Prosecutor explained that he was not commenting on McCormack’s decision
to remain silent during the 20 days following the incident, but rather was attempting to point out
that when McCormack “made his statement . . . he had all of the information that the police had.”
Id. at 664. McCormack was therefore “able to tailor a story” based on that information. Id.
The judge deferred ruling on the motion for mistrial and immediately gave the following
curative instruction:
Ladies and gentlemen of the jury, let me remind you of an instruction that I’ve
already given you previously, that in every criminal proceeding a defendant has the
absolute right to remain silent. At no time is it the duty of a defendant to prove his
innocence. From the exercise of a defendant’s right to remain silent, a jury is not
permitted to draw any inference of guilt.

Id. at 669. The trial court subsequently denied the motion for mistrial. Id. at 821.
The full context of the cross examination reveals that the “20 days after” statement by the
Prosecutor was not an impermissible comment on McCormack’s right to silence. At the start of
the cross examination, the Prosecutor pointed out that McCormack was the only testifying witness
in the case who had the benefit of listening to other witnesses’ testimony. ECF No. [17-1] at 659.
“That makes [McCormack] the only person in the world that would be able to tailor [his] testimony
to fit” prior testimony. Id. at 660. Later, after the Court issued the curative instruction set forth
above, the Prosecutor resumed his line of questioning, emphasizing that, when McCormack
testified at the bond hearing, he “knew all the information that the police had in this investigation,”
including what Samantha had said. Id. at 669-70.
The Prosecutor’s questions – both before and after the alleged impermissible statement –
support the Prosecutor’s explanation as to why he commented on the fact that McCormack did not
provide a statement in this case until 20 days after the incident occurred. ECF No. [17-1] at 664.
The Prosecutor was attempting to show that, at the time of McCormack’s statement, McCormack
had sufficient information from the State to “tailor a story” to fit that evidence. Id. The purpose of
the Prosecutor’s comment was to cast doubt on McCormack’s testimony at the bond hearing and
at trial. It was not “manifestly intended” to be a comment on McCormack’s silence, nor would it
be “naturally and necessarily be understood by the jury” as such. Matire, 811 F.2d at 1435
(quotation marks omitted).
Moreover, to the extent that the Prosecutors’ comment created any doubt or confusion
regarding McCormack’s right to silence, the trial court immediately issued an accurate curative
instruction. The minor remark in this case was certainly not “so highly prejudicial as to be
incurable by the trial court’s admonition.” Newsome, 475 F.3d at 1227 (quotation marks omitted);
see also Al-Amin v. Warden Ga. Dep’t of Corrs., 932 F.3d 1291, 1300 (11th Cir. 2019) (finding
no prejudice despite “substantial” constitutional error and a curative instruction that was “largely
ineffective”).
Accordingly, Ground One is denied on the merits.
Grounds Two and Three
In Ground Two, McCormack claims that the trial court abused its discretion and violated
double jeopardy by imposing consecutive sentences for McCormack’s convictions of aggravated
assault and kidnapping. ECF No. [13] at 13. In the related Ground Three, McCormack argues the

convictions themselves are “barred by double jeopardy protections under the Fifth Amendment[.]”
Id. at 15. The State agrees that both of those related claims were raised in some form on direct
appeal.1 ECF No. [15] at 7-8.
The Double Jeopardy Clause “protects against multiple punishments for the same offense.”
Brown v. Ohio, 432 U.S. 161, 165 (1977) (quotation marks omitted). When a defendant’s single
act violates two separate statutes, consecutive sentences are permissible “if each statute requires
proof of an additional fact which the other does not[.]” Blockburger v. United States, 284 U.S.
299, 304 (1932). Under Florida law, “kidnapping and aggravated assault are separate offenses,
each requiring proof of an element that the other does not.” Wilkins v. State, 543 So. 2d 800, 801

1 In light of the Court’s conclusion that those claims are clearly without merit, the Court declines to address
the State’s additional argument that Ground Two is also procedurally defaulted. See Lambrix v. Singletary,
520 U.S. 518, 525 (1997) (recognizing a district court’s authority to pass over a procedural-bar issue and
deny a habeas claim on the merits when doing so is in the interest of judicial economy).
(Fla. 5th DCA 1989). Accordingly, even if McCormack’s kidnapping and aggravated assault
convictions were the result of the same act, the Double Jeopardy Clause would permit consecutive
sentences. See Harris v. Sec’y, Dep’t of Corrs., No. 18-cv-1075, 2020 WL 5876943, at *5 (M.D.
Fla. Oct. 2, 2020) (finding no Double Jeopardy violation for sentences for kidnapping and
aggravated assault).
In actuality, however, the trial court determined that McCormack’s convictions stem from
separate acts. ECF No. [17-3] at 11. The trial court reasoned that the aggravated assault occurred
in the bedroom when McCormack threatened to kill Samantha and the gun was discharged, and
the kidnapping occurred after, when McCormack forced her into the car. Id. That determination
was a reasonable interpretation of the evidence presented in this case and it is entitled to deference
by this Court. See Wilson, 138 S. Ct. at 1192.
Finally, although the trial court initially believed that it was required to give McCormack

consecutive sentences, see ECF No. [17-3] at 3, the trial court subsequently held a resentencing
hearing. There, the sentencing judge definitively stated that he was excising his discretion to
impose consecutive terms. Id. at 11. McCormack has not shown that federal law prohibited the
trial court from ordering those consecutive sentences.
Accordingly, Grounds Two and Three are denied.
Ground Four
In his fourth claim, McCormack asserts that his trial counsel was ineffective for “failing to
strike an admittedly biased juror.” ECF No. [13] at 17. The State agrees this issue was exhausted
in state court because it was raised within McCormack’s motion for post-conviction relief and
appeal to the Fourth DCA. ECF No. [15] at 8-9.

During jury selection, McCormack’s counsel asked whether jurors would give a police
officer’s testimony “a little more weight than a regular person.” ECF No. [17-1] at 202. Venire
member Humphreys stated that her father was in the military, she was taught that certain people
“choose to protect and serve,” and she tends to “put more weight behind what they are saying[.]”
Id. McCormack’s counsel reiterated his question as to whether Humphreys would give an officer’s
testimony “more weight than an average lay witness,” to which Humphreys answered, “Right.” Id.
McCormack’s counsel then asked if Humphreys could follow the judge’s instruction “that
every individual’s testimony should carry the same weight” if the jurors believe them. Id. at 203.
Humphreys answered, “I think I could be impartial if I needed to be.” Id. McCormack’s counsel
did not move to strike her for cause, and she was selected to be on the jury. Id. at 240.
Petitioner argues that Humphreys’ statements evinced her “actual bias” in favor of law
enforcement, and that such bias was incapable of being rehabilitated. ECF No. [13] at 17. Counsel
was therefore ineffective for failing to strike her. Id.
Effective assistance of counsel is required during jury selection. Brown v. Jones, 255 F.3d

1273, 1278-79 (11th Cir. 20021). “Because empaneled jurors are presumed impartial,
[McCormack] must show that the juror selection process produced a juror that was actually biased
against him to satisfy Strickland’s prejudice prong.” Rockett v. Sec’y, Dep’t of Corrs., 2014 WL
3809146, at *15 (M.D. Fla. Aug. 1, 2014). There is a “strong presumption” that trial counsel’s jury
selection decisions “were the result of sound trial strategy.” Brown v. Jones, 255 F.3d 1273, 1279
(11th Cir. 2001).
McCormack has not shown that Humphreys was actually biased against him. Though
Humphreys initially expressed an inclination to favor a law officer’s testimony, she averred that
she was capable of following the judge’s instructions regarding impartiality. ECF No. [17-1] at
203. “Jurors are presumed to follow the trial court’s instructions.” Miller v. United States, 562 F.

App’x 838, 845 (11th Cir. 2014). McCormack has not met his burden to show that Humphreys
was unwilling or unable to do so, nor has he shown that his counsel’s decision to accept her as a
juror was anything other than “sound trial strategy.” Brown, 255 F.3d at 1279.
Moreover, the testimony of law enforcement officers played a relatively small role in this
case. Virtually all relevant evidence came from the testimony of Samantha, Tiffany, and
McCormack – who happened to have been a law enforcement officer in Jamaica, prior to moving
to the United States. ECF No. [17-1] at 343. Thus, even if McCormack had shown that Humphreys
was biased in favor of police officers – which he has not – his ineffective assistance claim “would
still fail because he cannot establish that failing to strike [her] prejudiced the outcome of his trial.”
Miller, 562 F. App’x at 845.
Ground four is denied.
Ground Five
In his fifth claim, McCormack asserts that his trial counsel was ineffective for failing to
investigate exculpatory evidence and call favorable witnesses. ECF No. [13] at 19. The State

agrees this issue was preserved within McCormack’s motion for post-conviction relief and
subsequent appeal to the Fourth DCA. ECF No. [15] at 9.
McCormack asserts that his counsel should have called three witnesses: the friend whose
house McCormack and Samantha visited during the kidnapping; the police officer who spoke with
McCormack and Samantha that night; and the neighbor Samantha and Tiffany visited in the
morning after the incident. ECF No. [13] at 20. McCormack characterizes those individuals as
“material exculpatory witnesses,” but he does not explain what testimony they would have given.
Id. at 19.
“[C]omplaints of uncalled witnesses are not favored, because the presentation of
testimonial evidence is a matter of trial strategy and because allegations of what a witness would

have testified are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.
1978);2 see also Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (recognizing that vague,
conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim
and do not warrant an evidentiary hearing). “Which witnesses, if any, to call, and when to call
them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second
guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). Therefore, “[w]here a claim of
ineffective assistance is based on counsel's failure to call a witness, the burden to show prejudice
is heavy because often allegations of what a witness would have testified to are largely
speculative.” Walker v. Sec’y, Fla. Dep’t of Corrs., 495 F. App’x 13, 17 (11th Cir. 2012).
As noted above, McCormack has not specified what material testimony the friend, the
police officer, or the neighbor would have given. There is no indication that any of those three
individuals had relevant information as to the key facts of this case regarding what occurred in the
guest bedroom, who threatened whom with a gun, and whether Samantha went willingly into

McCormack’s car. McCormack’s unsupported assertion that those individuals would have
supported his version of the events is merely a “conclusory allegation[ ] unsupported by specifics”
that does not amount to a valid claim of ineffective assistance of counsel. Tejada, 941 F.2d at 1559
(quotation marks omitted).
Ground Five is denied.
Ground Six
In his sixth claim, McCormack alleges trial counsel ineffectiveness for failing to retain and
call a gunshot residue expert. ECF No. [13] at 21. The State agrees this issue was exhausted in
state court because it was raised within McCormack’s motion for post-conviction relief and appeal

2 The Eleventh Circuit has adopted, as binding precedent, all decisions of the former Fifth Circuit handed
down prior to close of business on September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
to the Fourth DCA. ECF No. [15] at 9.
As noted above, the State called a crime scene technician who testified that she conducted
“gunshot residue testing” on Samantha’s hand. ECF No. [17-1] at 561-62. She testified that the
presumptive test was negative, indicating that Samantha did not fire the gun. Id. at 562. She did
not conduct a test on McCormack because he was not present. Id. at 572. On cross examination,
McCormack’s counsel elicited the facts that the test conducted was merely a “presumptive” field
test; a more accurate lab test was not conducted. Id. at 575.
McCormack asserts that a gunshot residue expert called by defense would have “rebutted
the conclusions reached by the State’s expert.” ECF No. [13] at 21. His counsel’s failure to call
such an expert “left the jury with no other option but to accept the State’s expert’s conclusion that
[Samantha] had not fired the gun, and by extension, drew an inference that [McCormack] was in
fact the one who caused the gun to fire.” Id.

As noted in the Court’s discussion of Ground Five, McCormack has a “heavy” burden to
show prejudice stemming from his counsel’s decision not to call a witness “because often
allegations of what a witness would have testified to are largely speculative.” Walker, 495 F. App’x
17. McCormack has not specified what aspect of the State’s witness’s testimony would have been
rebutted by defense’s gunshot residue expert. Instead of calling such an expert, McCormack’s
counsel opted for the strategy of emphasizing that the field test conducted by the State’s witness
is less reliable than a lab test. ECF No. [17-1] at 575. McCormack has not rebutted the presumption
that his counsel’s strategy was reasonable; his “conclusory allegation[ ] unsupported by specifics”
is insufficient to show deficient performance or prejudice. Tejada, 941 F.2d at 1559 (quotation
marks omitted).

Accordingly, Ground Six is denied.
Ground Seven
In his seventh claim, McCormack alleges trial counsel ineffectiveness for failing to clarify
McCormack’s testimony during cross-examination regarding a prior inconsistent statement he
made about the firearm used in this case. ECF No. [13] at 23. The State agrees this issue was
exhausted in state court because it was raised within McCormack’s motion for post-conviction
relief and appeal to the Fourth DCA. ECF No. [15] at 9-10.
Throughout McCormack’s testimony at trial, he asserted that the gun he claims Samantha
pointed at him was a semiautomatic pistol, as opposed to a revolver. ECF No. [17-1] at 635, 657.
On cross examination, the State impeached McCormack with his testimony from a pretrial hearing,
in which he stated that the weapon was a revolver. Id. at 679. McCormack claims that his trial
counsel failed to rehabilitate him on rebuttal. ECF No. [13] at 23. He argues that his counsel should
have elicited that, after McCormack stated it was a revolver at the pretrial hearing, he “immediately

corrected himself[.]” Id.
The trial transcript reveals that counsel’s performance was not deficient. As an initial
matter, during direct examination of McCormack, his counsel tried to address the
semiautomatic/revolver inconsistency. ECF No. [17-1] at 657-58. He asked McCormack if he ever
“use[s] those two words interchangeably[.]” Id. Although McCormack’s answer was not helpful,
Id. at 658 (“I’m not sure if I’m following you.”), counsel’s questioning reveals that he attempted
to get ahead of an impeachment issue he reasonably and accurately anticipated. Later, in closing
argument, McCormack’s counsel defended McCormack’s credibility, arguing that “the worst” the
State proved was that McCormack “said revolver instead of automatic.” Id. at 782. This was a
reasonable strategy to downplay the importance of McCormack’s inconsistent statements.

Moreover, as the State points out, McCormack did not “immediately” correct his testimony
at the pretrial hearing regarding his description of the gun as a revolver. ECF No. [17-4] at 9. In
that hearing, he stated the firearm was a revolver during direct examination, and then stated that it
was a pistol during cross examination. Id. at 16-17. It is speculative whether pointing out
McCormack’s supposed correction on cross examination would have been the better strategy.
In sum, the Court concludes that McCormack’s counsel made tactical decisions as to how
to address the State’s impeachment of McCormack. Those decisions were reasonable and well
within “the wide latitude counsel must have in making tactical decisions.” Cullen v. Pinholster,
563 U.S. 170, 195 (2011) (quotation marks omitted). As such, McCormack has failed to show that
his counsel’s performance was deficient under Strickland. Ground Seven is denied.
Ground Eight
In his eighth claim, McCormack asserts that his trial counsel was ineffective for failing to
object to a Giglio violation. ECF No. [13] at 125. The State agrees this issue was exhausted in state
court because it was raised within McCormack’s motion for post-conviction relief and appeal to

the Fourth DCA. ECF No. [15] at 10.
According to McCormack, the Giglio violation occurred during the testimony of the Crime
Scene Technician (“CST”), who testified that the result of the gunshot residue test on Samantha’s
hands was negative. ECF No. [13] at 25. McCormack asserts that the CST’s testimony was false,
as evidenced by a deposition of Samantha in which she stated that the CST had told her the result
of the gunshot residue test was positive. Id.
Giglio prohibits the Government from knowingly presenting perjured testimony. Davis v.
Terry, 465 F.3d 1249, 1253 (11th Cir. 2006) (quotation marks omitted) (citing Giglio v. United
States, 405 U.S. 150 (1972)). “To obtain a reversal on the grounds that the government relied on
perjured testimony, the following must be shown: (1) the contested statements were actually false,

(2) the statements were material, and (3) the prosecution knew that they were false.” United States
v. Bailey, 123 F.3d 1381, 1398 (11th Cir. 1997) (quotation marks omitted).
Here, it is true that Samantha stated in a deposition that the CST told her that the result of
the gunshot residue test was positive. ECF No. [17-6] at 5. She stated that the CST told her that
her hands “tested positive for residue, but . . . not enough to say [Samantha] was the one with the
gun[.]” Id.
However, the CST’s testimony at trial was entirely consistent with the CST’s deposition,
wherein she testified that the result of the gunshot residue test was negative. ECF No. [17-5] at 18.
McCormack’s counsel indisputably had the deposition testimony of both Samantha and the CST.
Moreover, during trial, the Government averred that it had produced during discovery a
photograph of the negative presumptive test result. ECF No. [17-1] at 564. The trial court found
that no discovery violations had occurred and McCormack “was on notice of the presumptive
gunshot residue test as early as September of 2013.” Id. at 567.
This record does not reveal that the CST committed perjury. Although the CST’s testimony

differed from Samantha’s deposition testimony, such contradictory testimony “does not amount to
a showing that the government knowingly presented false testimony.” United States v. Michael,
17 F.3d 1383, 1385 (11th Cir. 1994). The Eleventh Circuit instructs not to “impute knowledge of
falsity to the prosecutor where a key government witness’ testimony is in conflict with another’s
statement or testimony.” Id. Accordingly, McCormack’s Giglio claim fails because he has not
demonstrated that the CST’s testimony was false.
Because the underlying Giglio claim is without merit, McCormack’s counsel did not
perform deficiently in failing to raise it. See Denson v. United States, 804 F.3d 1339, 1342 (11th
Cir. 2015) (“Failing to make a meritless objection does not constitute deficient performance.”).
Ground Eight is denied.

Ground Nine
In his final claim, McCormack asserts that he was denied ineffective assistance of counsel
for failing to object “to multiple incidents of prosecutorial misconduct during closing arguments.”
ECF No. [13] at 27. The State agrees this issue was exhausted in state court because it was raised
within McCormack’s motion for post-conviction relief and appeal to the Fourth DCA. ECF No.
[15] at 10.
McCormack asserts that the Prosecutor made four types of impermissible comments during
closing. ECF No. [13] at 27. First, McCormack argues that the Prosecutor impermissibly bolstered
the State’s witnesses with the following comments: “a reasonable person with common sense”
would conclude that Tiffany and Samantha were telling the truth; “listen to these women shaking,
crying who obviously did not concoct a story”; “take what they said as truth”; “[Samantha] is not
lying. If [Samantha and Tiffany] are lying, they are the worst liars I’ve ever seen.” Id. Second,
McCormack argues that the Prosecutor impermissibly inserted his personal opinion by stating,
“Mr. McCormack is guilty. That’s it.” Id. Third, McCormack argues that the Prosecutor denigrated

the defense’s version of the events as “ridiculous,” “concocted,” and created “out of thin air.” Id.
Lastly, McCormack argues that the Prosecutor misrepresented the evidence by stating that
Samantha called the police, when in fact Tiffany made the call. Id.
Under Florida law, “[w]ide latitude is permitted in arguing to a jury.” Breedlove v. State,
413 So. 2d 1, 8 (Fla. 1982). Prosecutors’ closing arguments are not limited to “flat, robotic
recitations of ‘just the facts.” Diaz v. State, 797 So. 2d 1286, 1287 (Fla. 4th DCA 2001). Rather, it
“is a time for robust, vigorous, challenging . . . of an opponent’s ideas.” Id. (quotation marks
omitted).
Having reviewed the specific comments quoted by McCormack and the Prosecutor’s
closing argument in full, the Court does not find that the Prosecutor’s comments clearly exceeded

the bounds permitted by Florida law. Particularly under the “doubly differential” standard of
review created by Strickland and AEDPA, the Court does not find deficient performance by
McCormack’s counsel in declining to object to the statements. Gissendaner, 735 F.3d at 1323.
Moreover, McCormack is unable to show prejudice since the jury was properly instructed by the
trial court that attorneys’ argument is not evidence. ECF No. [17-1] at 751; see Miller, 562 F.
App’x at 845 (“Jurors are presumed to follow the trial court’s instructions.”). Ground Nine is
denied under both prongs of Strickland.
4. Evidentiary Hearing
In a habeas corpus proceeding, the burden rests on the petitioner to establish the need for
an evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011). “[I]f 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 v. Landrigan, 550
U.S. 465, 474 (2007); see also Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318-19 (11th
Cir. 2016). Here, the issues presented have been resolved based on the record before the Court.

Because the Court can “adequately assess [McCormack’s] claim[s] without further factual
development[,]” McCormack is not entitled to an evidentiary hearing. Turner v. Crosby, 339 F.3d
1247, 1275 (11th Cir. 2003).
5. Certificate of Appealability
A prisoner seeking to appeal a district court’s final order denying his or her petition for
writ of habeas corpus has no absolute entitlement to appeal; rather, in order to do so, he must obtain
a certificate of appealability. See 28 U.S.C. § 2253(c)(1); see also Harbison v. Bell, 556 U.S. 180,
183 (2009). This Court should issue a certificate of appealability only if McCormack makes “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Where the
district court rejects 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 v. McDaniel, 529 U.S. 473, 484 (2000). Where the district
Case No. 21-cv-60555-BLOOM

court rejects a petitioner’s claims on procedural grounds, the petitioner must additionally show
that “jurists of reason” would find the district court’s procedural ruling “debatable.” Jd.
For the reasons stated above, the Court grants a certificate of appealability as to the issue
of whether McCormack’s Petition was timely. The Court denies a certificate of appealability as to
all Grounds raised within his Petition.
IV. CONCLUSION
For the foregoing reasons, the Court has reconsidered its prior ruling and again concluded
that McCormack’s Petition is untimely. In an abundance of caution, however, the Court has
analyzed the merits of McCormack’s claims and found them to be without merit. Accordingly, it
is ORDERED AND ADJUDGED as follows:
1. McCormack’s Motion to Reconsider, Alter, or Amend Judgment, ECF No. [20], is
GRANTED.
2. The Court’s Order of Dismissal, ECF No. [19], is VACATED.
3. McCormack’s Petition, ECF No. [13] at 7-31, is DENIED.
4. Acertificate of appealability is GRANTED as to the issue of timeliness only.
5. To the extent not otherwise disposed of, any pending motions are DENIED AS MOOT
and all deadlines are TERMINATED.
6. The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on October 26, 2022.

UNITED STATES DISTRICT JUDGE

27

Copies to:

Counsel of Record

Orland McCormack, Pro Se
#147407
Madison Correctional Institution
Inmate Mail/Parcels
382 SW MCI Way
Madison, FL 32340

Noticing 2254 SAG Broward and North
Email: CrimAppWPB@MyFloridaLegal.com

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121169. Public record. Not legal advice.