Clumm v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DONALD MERRILL CLUMM,

Petitioner,

Vv. Case No: 6:17-cv-445-Orl-28GJK

SECRETARY, DEPARTMENT OF

CORRECTIONS and ATTORNEY

GENERAL, STATE OF FLORIDA,

Respondents.

ORDER

Donald Merrill Clumm (“Petitioner”) filed a Petition for Writ of Habeas Corpus

(“Petition,” Doc. 1) pursuant to 28 U.S.C. § 2254, alleging seven claims for relief based on

ineffective assistance of counsel at trial in violation of the Sixth Amendment to the United

States Constitution. Petitioner also filed a supporting Memorandum of Law (Doc. 3).

Respondents filed a Response to Petition (“Response,” Doc. 13) and a Supplemental

Response to Petitioner (“Supplemental Response,” Doc. 21) in compliance with this

Court's instructions and with the Rules Governing Section 2254 Cases in the United States

District Courts. Petitioner filed a Reply (Doc. 27) to the Response and Supplemental

Response. For the following reasons, the Court concludes that Petitioner is not entitled

to relief on his claims.

I. PROCEDURAL BACKGROUND

The state trial court sentenced Petitioner to 4 years of incarceration and 6 years of

probation for the offense of aggravated battery in Seminole County, Florida on January

4, 2010. (Doc. 14-1 at 30; case number 2008CF005107A). Judge Marlene Alva presided

over this proceeding. (Id. at 28). Petitioner was released to probation on January 23, 2012.

(Id. at 41), On April 13, 2012, while on probation, Florida’s Department of Corrections

filed an affidavit of violation of probation alleging that Petitioner had violated the

conditions of his probation in three ways, the most serious violation being committing

the criminal offense of burglary of a conveyance. (Id. at 41-42).

Petitioner made his first appearance on the violation of probation on April 13,

2012. (Id. at 40). On May 14, 2012, the state filed an information charging Petitioner with

a new substantive offense for the burglary of a conveyance (Count One). (Id. at 68). This

new offense was assigned case number 12CF1095A. At Petitioner’s violation of probation

arraignment on May 29, 2012 before Judge Kenneth Lester, the violation was consolidated

with case number 12CF1095A. (Id. at 44). The parties agreed to this consolidation.!

The case proceeded to trial before Judge Lester on August 29, 2012 and a jury

found Petitioner guilty of a burglary of a conveyance. (Id. at 117). The trial court

adjudicated Petitioner guilty of that offense (Doc. 14-3 at 324) and then found Petitioner

1 At an August 27, 2012 hearing on Defendant's Motion in Limine, the Court stated:

“Incidentally with everyone’s permission and consent in Case Number 2008-5107 which

is the violation of probation case, that will be tried at the same time as the regular case.”

(Doc. 14-4 at 11). In Petitioner’s January 29, 2013 Brief to the Fifth District Court of

Appeal, Petitioner stated: “The parties agreed that the jury trial on the burglary charge

would also serve as the violation of probation hearing in the 2008 case.” (Id. at 56).

in willful violation of his probation on the aggravated battery charge. (Id. at 325; Doc.

14-1 at 50). On October 10, 2012, the trial court sentenced Petitioner as a violent career

criminal to a term of fifteen years imprisonment for the burglary of a conveyance offense.

(Doc. 14-1 at 56, 125-28). The trial court also sentenced Petitioner to a term of fifteen years

imprisonment for the violation, to be served consecutively to the sentence imposed for

the burglary offense.? (Doc. 14-1 at 56-59; 14-4 at 116).

Petitioner filed an appeal of the October 10, 2012 order adjudicating Petitioner

guilty and imposing the sentences for the burglary offense and the violation with

Florida’s Fifth District Court of Appeal. (Doc. 14-2 at 58). The Fifth District Court of

Appeal affirmed per curiam. (Doc. 14-4 at 94).

Petitioner next filed a motion to correct sentence pursuant to Florida Rule of

Criminal Procedure 3.800(a), which the trial court granted only to the extent that the

violent career criminal designation was stricken from the sentencing order as to the

violation of probation. (Doc. 14-5 at 43-51). The Fifth District Court of Appeal affirmed

per curiam. (Id. at 65).

2 The original Minutes, Judgment and Sentence for both the burglary offense and the

violation reflected that Petitioner was adjudicated a violent career criminal. This

designation as to the violation was later stricken as Petitioner was not originally

adjudicated as a violent career criminal in the violation of probation case. (Doc. 14-5 at

50-51).

Petitioner then filed a motion for postconviction relief pursuant to Florida Rule of

Criminal Procedure 3.850, which the trial court denied. (Doc. 14-4 at 97-119). Petitioner

appealed the denial, and the Fifth District Court of Appeal affirmed per curiam. (Doc. 14-

5 at 35).

Finally, Petitioner filed a second Rule 3.850 motion, which the trial court dismissed

as an abuse of process. (Id. at 72-111). The Fifth District Court of Appeal affirmed per

curiam. (Id. at 132).

II. | LEGALSTANDARDS

A. Standard of Review Under the Antiterrorism Effective Death Penalty Act

(“AEDPA”)

Pursuant to the AEDPA, federal habeas relief may not be granted with respect to

a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

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

State court proceeding.

28 U.S.C. § 2254(d). The phrase “clearly established Federal law,” encompasses only the

holdings of the United States Supreme Court “as of the time of the relevant state-court

decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

“[S]ection 2254(d)(1) provides two separate bases for reviewing state court

decisions; the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent

considerations a federal court must consider.” Maharaj v. Secretary for Dep’t. of Corr., 432

F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was described in Williams:

Under the “contrary to” clause, a federal court may grant the writ if the

state court arrives at a conclusion opposite to that reached by [the United

States Supreme Court] on a question of law or if the state court decides a

case differently than [the United States Supreme Court] has on a set of

materially indistinguishable facts. Under the ‘unreasonable application’

clause, a federal habeas court may grant the writ if the state court identifies

the correct governing legal principle from [the United States Supreme

Court’s] decisions but unreasonably applies that principle to the facts of the

prisoner's case.

Williams, 529 U.S. at 413. Even if the federal court concludes that the state court applied

federal law incorrectly, habeas relief is appropriate only if that application was

“objectively unreasonable.” Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001), citing

Williams, 529 U.S. at 410.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the

state court’s decision “was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” A determination of a factual

issue made by a state court, however, shall be presumed correct, and the habeas petitioner

3 In considering the “unreasonable application” inquiry, the Court must determine

“whether the state court's application of clearly established federal law was objectively

unreasonable.” Williams, 529 U.S. at 409. Whether a state court's decision was an

unreasonable application of law must be assessed in light of the record before the state

court. Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685,

697 n. 4 (2002) (declining to consider evidence not presented to state court in determining

whether its decision was contrary to federal law).

shall have the burden of rebutting the presumption of correctness by clear and convincing

evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Standard for Ineffective Assistance of Counsel

The Supreme Court decision applicable to an ineffective-assistance claim is

Strickland v. Washington, 466 U.S. 668 (1984). See Premo v. Moore, 562 U.S, 115, 121 (2011).

To make a successful claim of ineffective assistance of counsel, a defendant must show

that (1) his counsel's performance was deficient, and (2) the deficient performance

prejudiced his defense. Strickland, 466 U.S. at 687. In determining whether counsel gave

adequate assistance, “counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment.”

Id. at 690. Counsel's performance is deficient only if it falls below the wide range of

competence demanded of attorneys in criminal cases. See id. at 687-88. To make such a

showing, a defendant must demonstrate that “no competent counsel would have taken

the action that his counsel did take.” United States v. Freixas, 332 F.3d 1314, 1319-20 (11th

Cir. 2003) (quotation omitted).

Prejudice 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. “Conclusory allegations of ineffective assistance are insufficient.” Wilson

v. United States, 962 F.2d 996, 998 (11th Cir. 1992) (quotation omitted). In light of the

general principles and presumptions applicable to a claim of ineffective assistance of

counsel, the cases in which a habeas petitioner can prevail are “few and far between.”

Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc).

ANALYSIS

A. Claim One

Petitioner claims trial counsel was ineffective for failing to advise him “of the

maximum prison exposure he faced if he refused the State’s plea offer.” (Doc. 1 at 5).

According to Petitioner, he would have accepted the State’s plea offer if he had known

that the rejection thereof “exposed him to 30 years in prison.” (Id. at 6). It does not appear

that this claim was raised with the state courts and, thus, it is procedurally defaulted.

However, Petitioner argues that this claim should be considered pursuant to Martinez v.

Ryan, 566 U.S. 1 (2012).4

In this case, the trial court held a Pretrial Conference on August 16, 2012, which

appeared to involve the burglary of a conveyance case (Case Number 2012-CF-1095) and

the violation of probation case (Case Number 2008-CF-5107).5 At the Pretrial Conference,

the State informed the trial court that Petitioner qualified as a “violent career criminal”

4 Under Martinez, a prisoner may establish cause for the default of a claim of ineffective

assistance of trial counsel in two circumstances: (1) there is no appointed counsel for the

initial-review collateral proceeding; or (2) post-conviction counsel was ineffective under

the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984). Further, the

ineffectiveness-of-trial-counsel claim must be “substantial,” which means that the

prisoner must show that “the claim has some merit.” Martinez, 566 U.S. at 14. Petitioner

did not have counsel for his collateral proceedings.

5 The transcript of the Pretrial Conference identified both cases. (Doc. 14-4 at 1).

and that it had made a plea offer of “seventy months prison.” (Doc. 14-4 at 3-4). The

State noted that there was a minimum mandatory sentence of ten years’ imprisonment.

(Id.). The State also filed in open court a Notice of Intention to Seek Sentencing As Violent

Career Criminal (“Notice”), which was served on Petitioner.* (Doc. 14-1 at 76; Doc. 14-4

at 4). The Notice revealed a “Maximum Prison Exposure” of “15 Years Prison,” and a

minimum mandatory sentence of “10 Years Prison.” (Doc. 14-1 at 76). There is no

indication from the record that Petitioner was ever advised by the trial court or by his

counsel that he could also receive a sentence of fifteen years’ imprisonment for violating

the terms of his probation, which would result in a total sentence of thirty years.

Respondents argue that “Petitioner was specifically informed that he was facing a

VCC sentence with a minimum mandatory sentence of ten years. He was not facing a

possible thirty years sentence and it does not appear he was ever told this.” (Doc. 21 at

5). However, it is Petitioner's position that, by rejecting the plea offer, he was actually

facing the possibility of a sentence of thirty years—fifteen years in the burglary of a

conveyance case and fifteen years in the violation of probation case. According to

Petitioner, his counsel never informed him of the possibility of a thirty-year sentence.

(Doc. 1 at 6). Petitioner states that he would have accepted the offer of seventy months if

he had been properly advised by counsel of the actual sentence he was facing. (Id.).

_ 6 Petitioner acknowledges in the Petition that he received a copy of the Notice at the

August 16, 2012 hearing. (Doc. 1 at 6).

The Court concludes an evidentiary hearing is warranted on Claim One to

determine whether Petitioner is entitled to relief under Martinez.

B. Claim Two

Petitioner next claims that trial counsel was ineffective for failing to advise him

that he was “eligible to be sentence[d] as a VCC during plea negotiations.” (Doc. 1 at 8).

This claim was raised in Petitioner’s first Rule 3.850 motion, and it was denied.

This claim is refuted by the record. Petitioner acknowledges that on August 16,

2012 his counsel showed him “a copy of the ‘notice to seek sentencing as a Violent Career

Criminal.” (Id.). Petitioner expressed to his counsel “I don’t qualify for that.” (Id.).”

Petitioner concludes that “[h]ad he known that he could be sentenced as a VCC he would

have accepted state’s 70 month plea offer.” (Id.). Petitioner was shown the Notice by

counsel on the day the plea offer was discussed. Even if he thought he did not qualify as

a violent career criminal, Petitioner knew the state was seeking that designation and thus

was made aware that there was a possibility he could be sentenced as a violent career

criminal.

Petitioner has failed to demonstrate that counsel acted deficiently with regard to

this matter or that he sustained prejudice. He has failed to demonstrate that the state

7 This conversation took place before the hearing on August 16, 2012. (Doc. 27 at 7).

court's decision rejecting his claim was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme Court of

the United States. Applying the AEDPA's deferential standard, Claim Two is denied.

C. Claim Three

Petitioner states that trial counsel was ineffective for failing “to file a timely motion

to suppress [his] Miranda statement.” (Doc. 1 at 9). Petitioner claims that his statement

was involuntary because he was promised leniency if he confessed. (Id.). This claim was

raised in Petitioner’s Rule 3.850 motion and was denied.

At trial, Gregory Luge of the Seminole County Sheriff's Office testified that

Petitioner voluntarily accompanied him to the police station for an interview, but that

Petitioner was not arrested until after the conclusion of the interview. (Doc. 14-3 at 239,

250). Prior to the interview, Deputy Luge advised Petitioner of his Miranda’ rights and

Petitioner signed the Miranda form waiving those rights. (Id. at 240-41). According to

Deputy Luge, Petitioner freely and voluntarily waived his Miranda rights (Id. at 241), and

there is no evidence to the contrary. The Court found this was not a custodial

interrogation. (Doc. 14-4 at 117). The Court further concluded that “even if it was

custodial, the deputy read the Defendant Miranda prior to asking questions and the

Defendant waived his rights.” (Id.).

"8 Miranda v. Arizona, 384 U.S. 436 (1966).

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The interview was recorded and admitted into evidence. (Doc. 14-3 at 243). □□ □□

point in the recording did Deputy Luge make any promises of leniency. Deputy Luge

asked Petitioner about the events of that evening, and Petitioner admitted entering the

vehicle and “look[ing] in it,” although he denied taking anything from the vehicle. (Id.

at 245-46).

Petitioner has failed to demonstrate that there was any basis upon which to file a

motion to suppress. There is no evidence that Deputy Luge made any promises of

leniency, and Petitioner freely and voluntarily waived his Miranda rights. Petitioner has

failed to demonstrate that counsel acted deficiently with regard to this matter or that he

sustained prejudice. Petitioner has thus failed to demonstrate that the state court's

decision rejecting this claim was contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme Court of the United States.

Applying the AEDPA's deferential standard, Claim Three is denied.

D. Claim Four

Petitioner asserts that the judge who presided over his 2008 aggravated battery

charge should have been the judge that presided over his violation of probation in that

case. He thus maintains that his trial counsel was ineffective for failing to “object to the

appointment of a successor judge.” (Doc. 1 at 11). This claim was raised in both

Petitioner’s Rule 3.850 motion and his 3.800(a) motion. It was denied on the basis that

Petitioner was “not entitled to have the original judge preside over subsequent revocation

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proceedings.” (Doc. 14-4 at 118; see also, Id. at 136, citing Scott v. State, 909 So, 2d 364 (Fla.

5th DCA 2005)). This court agrees.

Petitioner was not entitled to have the original judge preside over the revocation

proceedings. Thus, counsel had no basis for objection. Petitioner has failed to

demonstrate that counsel acted deficiently with regard to this matter or that he sustained

prejudice. Petitioner has failed to demonstrate that the state court's decision rejecting his

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

federal law, as determined by the Supreme Court of the United States. Applying the

AEDPA's deferential standard, Claim Four is denied.

E. Claim Five

Petitioner’s claim five is contradictory. Petitioner first asserts that “[d]efense

counsel was ineffective in that he advised the Petitioner to not testify because his prior

criminal record could be used against him.” (Doc. 1 at 13). He then alleges that defense

counsel told Petitioner not to testify without any explanation as to why. (Id.) Petitioner

also states “[d]efense [counsel] failed to advise Petitioner that the nature of his prior

offenses could not be used against him if he were to testify.” (Id.). This claim was raised

in Petitioner’s Rule 3.850 motion.? The trial court denied Petitioner’s claim finding that

9”Ground 5: Trial counsel was ineffective in that he failed to advise the Defendant

that the nature of his prior offenses would not come in if the defendant were to testify.

Counsel told Defendant that ‘You don’t want to testify.’ Trial counsel allowed the

Defendant to believe that the State could impeach him with the facts and nature of his

prior convictions should he testify. Thus, allowing the State’s version of events to go

uncontradicted. Trial counsel told the Defendant that ‘You don’t want to testify’ but

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“the Defendant does not assert that counsel gave improper legal advice or even that

counsel knew that the Defendant was under any misconception about the scope of

permissible impeachment. Based upon counsel’s legal advice, the Defendant made a

voluntary, personal choice not to testify. .. There is no basis to find that this choice was

involuntary.” (Doc. 14-4 at 118).

The day jury selection for Petitioner’s trial took place, the trial court discussed the

decision to testify with Petitioner and his counsel:

THE COURT: And you’ve discussed with Mr. Clumm if he wants to

testify or not testify?

MR. STERLING: We have had that discussion.

THE COURT: You've had a chance to discuss that. Mr. Clumm,

during the course of the trial I will give you a chance to tell me what

your position is after we have had the State put on their side of the

case and you can make up your mind again if you want to change it.

If you want to testify, that’s fine. Your testimony is considered by

the same standards as any other witness. If you don’t want to, that’s

fine. You always act in your best interest because the State’s always

acting in theirs.

(Doc. 14-3 at 7-8).

At the preliminary charge conference, the trial court again discussed with

Petitioner that it was his decision whether to testify:

THE COURT: I’m going to ask Mr. Clumm again at that time if he

wants to testify. Just like I told you the other day, Mr. Clumm, if you

want to testify, that’s fine. If you don’t want to testify, that’s your

decision. Obviously make sure that you listen very carefully to your

attorney. He’s very experienced in these matters and his advice

should be strongly considered, but in the end it’s your life, your trial.

offered no reason why. Trial counsel's advise (sic) cause (sic) the Defendant's waiver of

his right to testify to be involuntary.” (Doc. 14-4 at 106).

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You do whatever you think is in your best interest, okay. Everything

is okay?

MR. CLUMM: Yes.

(Doc. 14-3 at 219-20).

Finally, after the State rested, the trial court conducted an inquiry of Petitioner as

to his decision to testify.

THE COURT: Okay. Just like your attorney said and we talked about

this before, this is the part of the trial where if you want to testify this

is your opportunity. If you want to, that’s fine with me. If you don’t

want to, that’s fine with me. You do what's in your best interest. The

State’s always acting in their best interest. You have had a chance,

an opportunity, on a number of occasions to discuss this with your

attorney. Just need to hear from you what you want to do, sir. Do

you want to testify or not testify?

MR. CLUMM: No, I don’t want to testify.

THE COURT: Okay. And that’s your personal decision after

listening to your attorney, sir?

MR. CLUMM: Yes, sir.

(Id, at 254-55).

It is clear that, on several occasions, the trial court discussed the decision to testify

with Petitioner and that Petitioner had discussed the matter with his counsel. Petitioner

informed the trial court that is was his “personal decision” not to testify after discussing

the matter with his counsel. (Id.).

Petitioner has failed to demonstrate that counsel acted deficiently with regard to

this matter or that he sustained prejudice. As such, Petitioner has failed to demonstrate

that the state court's decision rejecting his claim was contrary to, or involved an

unreasonable application of, clearly established federal law, as determined by the

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Supreme Court of the United States. Applying the AEDPA's deferential standard, Claim

Five is denied.

F, Claim Six

Petitioner states that trial counsel “failed to move for a mistrial on two separate

occasions when State witnesses violated the motion in limine.” (Doc. 1 at 14). This claim

was raised in Petitioner’s Rule 3.850 motion, and it was denied because such a motion

would not have been granted. (Doc. 14-4 at 119).

Petitioner was charged with a single count of burglary of a conveyance. Prior to

trial, Defendant’s Motion in Limine excluding testimony that Petitioner was trying to

enter other cars was granted. (Doc. 14-3 at 168). During the trial, there were three

statements made that violated the trial court’s pretrial order. Petitioner’s counsel

objected and moved for a mistrial with regard to the first violation. (Id.). The trial court

denied the request for a mistrial but provided the jury with a corrective instruction. (Id.

at 168-70). Petitioner’s counsel made an objection with regard to the second violation,

and the trial court again provided the jury with a corrective instruction. (Id. at 185-86).

Petitioner's counsel also made an objection with regard to the third violation in which the

deputy mentioned receiving a call about someone “possibly trying to break in to [sic] a

vehicle or vehicles.” (Id. at 213-14). The trial court overruled the objection, but the deputy

clarified that the incident related to a single vehicle. (Id. at 214).

Petitioner’s counsel moved for a mistrial on the first violation and objected to the

last two violations. The trial court denied the request for a mistrial, overruled the

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objections, provided curative instructions to the jury, and ensured, as to the last violation,

that the deputy clarified his statement. Petitioner’s counsel’s actions were not deficient

with regard to this matter, and Petitioner has not demonstrated prejudice.

Petitioner has failed to demonstrate that the state court's decision rejecting his

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

federal law, as determined by the Supreme Court of the United States. Applying the

AEDPA's deferential standard, Claim Six is denied.

G. Claim Seven

Petitioner argues that the “cumulative effect” of counsel’s errors deprived him of

a fair trial. (Doc. 1 at 16). However, none of Petitioner's individual claims of error or

prejudice has any merit, and therefore the Court has nothing to accumulate. The Eleventh

Circuit Court of Appeals has made clear that when “[t]here [is] no error in any of the

[trial] court's rulings, the argument that cumulative trial error requires that this Court

reverse [the defendant's] convictions is without merit.” Morris v. Sec'y, Dep't of Corr., 677

F.3d 1117, 1132 (11th Cir. 2012). Moreover, the Court has considered the cumulative effect

of Petitioner’s ineffective assistance claims and concludes that he cannot demonstrate

cumulative error sufficient to entitle him to habeas relief. Consequently, Claim Seven is

denied.

Allegations not specifically addressed herein are without merit.

IV. CONCLUSION

Accordingly, it is ORDERED and ADJUDGED as follows:

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1. The Court will hold an evidentiary hearing on Claim One only as discussed

above. The hearing is scheduled for November 15, 2019 at 9:30 a.m. in

Courtroom 6B of the George C. Young United States Courthouse Annex,

401 W. Central Blvd., Orlando, Florida 32801.

2. United States Magistrate Judge Kelly is directed to appoint counsel on

behalf of Petitioner pursuant to Rule 8(c) of the Rules Governing Section

2255 Proceedings.

3. At least twenty-one days prior to the evidentiary hearing, Petitioner shall

file a statement entitled “Pretrial Narrative Statement” consisting of the

following:

(a) A brief general statement of the case;

(b) Anarrative written statement of the facts that will be offered by oral

or documentary evidence at the evidentiary hearing;

(c) A list of all exhibits to be offered into evidence at the evidentiary

hearing;

(d) _ A list of the full names and addresses of places of employment for

all the witnesses that Petitioner intends to call; and

(e) | Asummary of the anticipated testimony of each witness named in

subparagraph (d).

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4, At least fourteen days prior to the evidentiary hearing, Respondents shall

file a “Pretrial Narrative Statement” complying with paragraph 3(a)-(e)

above.

5, Claims Two, Three, Four, Five, Six, and Seven are DENIED and

DISMISSED with prejudice.

DONE and ORDERED in Orlando, Florida o st 27, 2019.

JOHN ANTOON II

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Party

OrlP-2 8/27

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