Levin v. Secretary, Florida Department of Corrections (Nassau County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOSEPH LUIS LEVIN,

Petitioner,

v. Case No. 3:20-cv-1442-TJC-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this action by

filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1).

Petitioner challenges a state court (Nassau County, Florida) judgment of

conviction for six counts of lewd or lascivious battery, one count of soliciting a

child via computer, and one count of traveling to meet a minor. Petitioner is

serving a forty-four-year term of incarceration. Respondents filed a Response

(Doc. 27; Response) with exhibits (Docs. 27-1 to 27-35; Ex.). Petitioner filed a

Reply (Doc. 61). This case is ripe for review.1

1 “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

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). “‘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

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,

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.

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

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. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners

must give the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘opportunity to pass upon and correct’ alleged

violations of its prisoners’ federal rights.” Duncan v.

Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting

Picard v. Connor, 404 U.S. 270, 275 (1971)). To provide

the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, 513 U.S. at 365-66; O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations modified).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman, 501 U.S. at 747-48;

Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). A state

court’s invocation of a procedural rule to deny a

prisoner’s claims precludes federal review of the claims

if, among other requisites, the state procedural rule is

a nonfederal ground adequate to support the judgment

and the rule is firmly established and consistently

followed. See, e.g., Walker v. Martin, 131 S. Ct. 1120,

1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-

18 (2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted claim

by showing cause for the default and prejudice from a

violation of federal law. See Coleman, 501 U.S. at 750.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (internal citations modified). Thus,

procedural defaults may be excused under certain circumstances.

Notwithstanding that a claim has been procedurally defaulted, a federal court

may still consider the claim if a state habeas petitioner can show either (1) cause

for and actual prejudice from the default; or (2) a fundamental miscarriage of

justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). For a petitioner to

establish cause and prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Murray

v. Carrier, 477 U.S. 478, 488 (1986). Under the

prejudice prong, [a petitioner] must show that “the

errors at trial actually and substantially disadvantaged

his defense so that he was denied fundamental

fairness.” Id. at 1261 (quoting Carrier, 477 U.S. at 494).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (internal citations

modified).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

477 U.S. at 496. “This exception is exceedingly narrow

in scope,” however, and requires proof of actual

innocence, not just legal innocence. Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157 (internal citations modified). “To meet this standard, a

petitioner must ‘show that it is more likely than not that no reasonable juror

would have convicted him’ of the underlying offense.” Johnson v. Alabama, 256

F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327

(1995)). Additionally, “‘[t]o be credible,’ a claim of actual innocence must be

based on reliable evidence not presented at trial.” Calderon v. Thompson, 523

U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such

evidence, in most cases, allegations of actual innocence are ultimately

summarily rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

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

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

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 demonstrate that counsel’s performance was

deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dep’t 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

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).

III. Analysis

A. Ground One

Petitioner argues that “[a]ll responsible parties under the Judiciary

Branch of the State Government, i.e. appointed counsel for defense, counsel for

the State, and the trial court, failed to timely observe the procedures adequate

to determine Petitioner’s competency and protect his right to not be tried or

convicted while incompetent to stand trial, depriving him of his due process

right to a fair trial convicting and sentencing him while incompetent contrary

to well established federal laws (violation 5, 6, 14 U.S. Const. amend).” Doc. 1

at 17; see also Doc. 1-2 at 2-11; Doc. 1-3 at 2-15. Petitioner advises that he raised

this claim as issue three in his postconviction motion filed pursuant to Florida

Rule of Criminal Procedure 3.850, and as issue one in his state court habeas

corpus petition. Doc. 1 at 18.

In his Rule 3.850 motion, Petitioner argued, inter alia, that his counsel

was ineffective for failing to investigate his competency and request a

competency hearing prior to allowing Petitioner to enter a guilty plea. The

postconviction court initially denied Petitioner’s Rule 3.850 motion, but on

appeal, the First District Court of Appeal reversed as to these two claims

regarding Petitioner’s alleged incompetency and affirmed as to all other claims.

See Exs. Q, T. On remand, the postconviction court again summarily denied the

claims regarding Petitioner’s alleged incompetency, finding as follows:

As a threshold matter, this Court notes that the

first of Defendant’s remanded claims necessarily

informs the result of the second. In the first remanded

ground, Defendant alleges that his attorney was

ineffective because she did not investigate Defendant’s

competency prior to Defendant entering his plea. In

the second remanded ground, Defendant alleges that

his attorney was ineffective because she failed to move

for a competency hearing prior to Defendant entering

his plea. It is obvious that there can be no prejudice in

failing to move for a competency hearing if Defendant

was, in fact, competent. Additionally, if Defendant was

competent, there can be no prejudice in failing to

investigate Defendant’s competency. Thus, the two

remanded claims are inextricably intertwined: if

Defendant’s first claim succeeds, his second claim will

necessarily also succeed. Likewise, if Defendant’s first

claim fails, his second claim will necessarily also fail.

Therefore, this Court will address Defendant’s two

claims remanded collectively.

. . . .

Here, the record shows that, contrary to what

Defendant now alleges, Defendant’s attorney had no

legal basis to file such a motion prior to Defendant’s

plea.

On March 18, 2015, Defendant entered his

guilty pleas in this case. Prior to receiving Defendant’s

pleas, the trial court conducted an extensive colloquy

with Defendant. Inter alia, Defendant affirmed that

his attorney did everything he asked of her and that

there were no further actions he wanted his attorney

to take prior to Defendant entering his pleas.

Defendant swore that he was entering his pleas

because he was, in fact, guilty of the crimes alleged.

He further swore that he entered his pleas freely,

willingly, and voluntarily, and that he did so free from

the influence of drugs, alcohol, or medication.

Defendant also acknowledged his awareness that the

State possessed DNA evidence incriminating to

Defendant. The trial court, having the benefit of

observing Defendant’s demeanor and responses to its

questions, found that Defendant entered his pleas

freely, willingly, and voluntarily. The trial court also

found that Defendant entered his pleas without the

impediment of any disability, substance, drug, or

condition that would interfere with his ability to

understand and appreciate the terms of his plea

agreement and its consequences.

On March 25, 2015, Defendant filed his first

motion to withdraw plea pursuant to Florida Rule of

Criminal Procedure 3.170. In that motion, Defendant

offered as the sole basis for his motion that he believed

the guilty pleas he entered on March 18, 2015 would

resolve both the instant case as well as another one of

Defendant’s pending criminal cases. The trial court

denied Defendant’s motion and proceeded to sentence

Defendant on July 9, 2015. Defendant testified on his

own behalf at the sentencing hearing, during which he

admitted responsibility for his actions and admitted

that he “did something that was completely awful.” As

with Defendant’s first motion to withdraw plea,

Defendant did not make any mention of his mental

health or competency.

On July 15, 2015, Defendant filed another

motion to withdraw plea pursuant to Rule 3.170.

Defendant based his motion entirely on allegations

that he received various instances of legal misadvice

from his attorney. Defendant’s motion made no

reference to his competency or mental health. On

September 11, 2015, Defendant’s postconviction

counsel (Ms. Nicole Jamieson) filed an amended

version of Defendant’s second motion to withdraw

plea. In that motion, Defendant’s postconviction

attorney argued that Defendant’s plea was

involuntary because it (a) was based on legal

misadvice from his trial attorney, (b) was given while

Defendant was in an adversarial relationship with his

trial attorney, and (c) was a product of Defendant’s

misunderstanding concerning which cases his pleas

would resolve. Again, the motion advanced no

arguments pertaining to Defendant’s competency. The

trial court held a hearing on Defendant’s motion to

withdraw plea, at which Defendant testified.

Defendant did not make any assertions concerning his

competency or mental health. Ultimately, the trial

court denied Defendant’s motions to withdraw plea.

At the hearing on Defendant’s second motion to

withdraw plea, Defendant’s trial attorney testified.

She testified that she had Defendant evaluated twice

between his plea and his sentencing. Dr. Meadows

completed the second evaluation. Dr. Meadows

produced a report, which concluded that Defendant

was competent. Indeed, Dr. Meadows’s report found

that Defendant did not suffer from any genuine

mental illness or psychotic disorder. Instead, Dr.

Meadows found that Defendant had a “strong

tendency to malinger psychiatric disturbances for

secondary gain.” Dr. Meadows pronounced Defendant

legally sane and not in need of any psychiatric

treatment services.

. . . .

Here, the portions of the record cited above

conclusively demonstrate that Defendant cannot carry

his burden of setting forth clear and convincing

circumstances which gave rise to a real, substantial,

and legitimate doubt about his competency at the time

he entered his pleas on March 18, 2015. Indeed, the

record shows that Defendant had sufficient ability to

rationally consult with his attorney and that

Defendant demonstrated a rational and factual

understanding of his case. See Fla. R. Crim. P.

3.211(a)(1). Defendant’s attorney had no basis to

investigate Defendant’s competency or move for a

competency hearing prior to Defendant’s plea hearing

because she did not have a reasonable ground to

believe that her client was not mentally competent to

proceed. See Fla. R. Crim. P. 3.210(b). In fact,

Defendant made no mention of his competence or

mental health at any time during his plea and

sentencing hearings. Nor did Defendant advance any

competency arguments within any of his motions to

withdraw plea, or during his testimony in support of

the last of those motions. Moreover, the existing

record, including Dr. Meadows’s report, proves that

even if Defendant’s attorney had moved for and

received a competency hearing, the court would have

adjudicated Defendant competent to proceed. On the

facts of this case, Defendant can demonstrate neither

deficiency nor prejudice as required under Strickland

and Thompson.[2] As such, he is not entitled to

postconviction relief.

Ex. U at 132-36 (internal record citations omitted). Petitioner appealed, and the

First DCA per curiam affirmed the postconviction court’s denial without issuing

a written opinion. Ex. X.

2 Thompson v. State, 88 So. 3d 312 (Fla. 4th DCA 2012).

The Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record, the Court finds that the state court’s adjudication of this

claim was neither contrary to, nor an unreasonable application of, clearly

established federal law. Nor was the state court’s adjudication based on an

unreasonable determination of the facts given the evidence presented in the

state court proceedings. As such, to the extent Petitioner contends his trial

counsel was ineffective for failing to investigate his competency and request a

competency hearing prior to his guilty pleas, such claim is denied.

Insofar as Petitioner argues that the trial court erred by failing to

investigate his competency or by adjudicating him guilty and sentencing him

while he was allegedly incompetent, his claim is procedurally barred.3

Petitioner acknowledges that he did not raise such a claim on direct appeal. See

Doc. 1 at 18; see also Ex. I (initial brief on direct appeal). And while he contends

that he raised this claim in a state habeas petition, that petition was “denied as

procedurally barred.” Ex. GG. Petitioner has not shown cause or prejudice to

excuse his procedural bar, nor has he shown a fundamental miscarriage of

justice would result if the Court does not address this claim on the merits. As

3 Respondents interpret Ground One as a trial court error claim only and contend that

the claim is procedurally barred. See Doc. 27 at 13-19.

such, Petitioner’s claim that the trial court erred by failing to investigate his

competency is denied.4

To the extent Petitioner is attempting to raise a substantive claim of

incompetency, see Doc. 61 at 5-10, his claim is denied. To succeed on a

substantive incompetency claim, a petitioner must demonstrate by a

preponderance of the evidence that he was in fact incompetent at the relevant

time. Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995); see also

Johnston v. Singletary, 162 F.3d 630, 637 n.7 (11th Cir. 1998). The standard for

assessing a criminal defendant’s mental competency is set forth in Dusky v.

United States, 362 U.S. 402, 402 (1960). The Dusky standard requires a court

to determine whether a defendant “has sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding – and whether

he has a rational as well as factual understanding of the proceedings against

him.” Id.; see also Godinez v. Moran, 509 U.S. 389, 401-02 (1993) (holding the

Dusky standard similarly applies in guilty pleas). “The best evidence of [a

petitioner’s] mental state . . . is the evidence of his behavior” at the relevant

time, such as during trial or a plea hearing. Wright v. Sec’y for Dep’t of Corr.,

278 F.3d 1245, 1259 (11th Cir. 2002). A petitioner must do more than assert he

4 Even if the trial court error claim was not procedurally barred, it has no merit. Based

on the record, especially the plea and sentencing transcripts, there was no reason for

the trial court to sua sponte inquire into Petitioner’s competency.

was suffering from a mental deficiency at the time. See Medina, 59 F.3d at 1106

(“A petitioner raising a substantive claim of incompetency is entitled to no

presumption of incompetency.”). Indeed, “not every manifestation of mental

illness demonstrates incompetence . . . ; rather, the evidence must indicate a

present inability to assist counsel or understand the charges.” Id. at 1107

(internal citations omitted); see also Wright, 278 F.3d at 1259 (“[T]he standard

of proof is high and the facts must positively, unequivocally, and clearly

generate the legitimate doubt about whether the petitioner was mentally

competent when he was tried.” (internal quotations and citation omitted)).

At the conclusion of Petitioner’s plea hearing on April 29, 2015,

Petitioner’s trial counsel asked the court to schedule the sentencing six weeks

out so that she had time “to get an evaluation done,” and “to get some witnesses

for Mr. Levin and have [her] investigator be able to talk to them.” Ex. C at 12-

13. On June 13, 2015, at a status hearing before the sentencing, Petitioner’s

trial counsel represented that she had “a mental health evaluation done on

[Petitioner],” and because she had concerns based on the result, she had “a

second mental health evaluation performed.” Ex. B at 326. She continued that

based on the results of the second evaluation, she was “confident in going

forward” and she advised that she had spoken with Petitioner and “explained

this to him.” Id. At the sentencing hearing on July 9, 2015, there was no mention

of Petitioner’s alleged incompetency. See Ex. F. Likewise, there was no mention

of Petitioner’s alleged incompetency in the motions to withdraw his plea that

he or his court-appointed counsel5 subsequently filed. See Ex. A at 87-91, 109-

36; Ex. B at 251-58. At the hearing on Petitioner’s second motion to withdraw

his plea, his trial attorney testified that she had him evaluated twice between

his guilty pleas and sentencing, and while the first evaluator recommended that

a motion to withdraw the plea be filed because Petitioner was suffering from

delusions and some other things, the second evaluator found Petitioner was

competent. See Ex. U at 304-05, 308-09. Petitioner also testified during that

hearing and did not assert any claim of incompetency or exhibit any behaviors

that would call his competency into question. See id. at 317-49. On cross-

examination, he repeatedly expressed difficulty in remembering some details

about his case, especially from the plea hearing. See id. at 327-49.

Petitioner apparently also relies on competency evaluations that occurred

in relation to Petitioner’s other criminal case approximately two years after he

entered his guilty plea. See Doc. 1-4 at 48-58, 59-60, 61-65, 70-79, 80-86, 87-88;

see also Doc. 61 at 7-8. The gist of these evaluations was that Petitioner was

competent to proceed when he was on medication, but when he stopped taking

his medication, he would decompensate. But these evaluations occurred two

years after Petitioner pled guilty in this case. And while these evaluations are

5 On August 18, 2015, after the sentencing hearing, trial counsel withdrew due to a

conflict of interest and the trial court appointed conflict-free counsel. See Ex. A at 172.

relevant, they do not counter the evidence showing that at the time of his plea

and sentencing, he had the ability to consult with his lawyer “with a reasonable

degree of rational understanding” and he had “a rational as well as factual

understanding of the proceedings against him.” Dusky, 362 U.S. at 402; see

Wright, 278 F.3d at 1259 (reasoning that the petitioner’s “incompetency to

stand trial seven and eight months” after his trial, “like his incompetency to

stand trial seventeen years earlier, is relevant, but it is not enough to counter

the best evidence of what his mental condition was at the only time that counts,

which is the time of the trial”). Upon review of the record, the Court finds that

Petitioner has failed to demonstrate that he was incompetent at the time of his

plea or sentencing. Thus, insofar as Petitioner raises a substantive

incompetency claim, the claim is denied.

B. Grounds Two, Three, and Four

In Ground Two, Petitioner argues that “Counts One and Two violate the

prohibition against double jeopardy punishing the Petitioner multiple times for

the same identical conduct (violation of U.S. Const. amend 5, 14).” Doc. 1 at 19.

In Ground Three, Petitioner contends that his convictions under counts three

and four violate double jeopardy. Id. at 20. Similarly, in Ground Four, Petitioner

argues that his convictions under counts five and six violate double jeopardy.

Id.; see also Doc. 61 at 12-21 (addressing Grounds Two through Four). He

contends that he raised these double jeopardy claims in a Rule 3.800(a) motion,

as well as in “a multitude of motions and petitions,”6 including the following

case numbers: 1D19-3578,7 1D20-0347, SC20-1327, and SC20-1662. Doc. 1 at

19, 20.

The state charged Petitioner by second amended information with six

counts of lewd or lascivious battery, one count of soliciting a child via computer,

and one count of traveling to meet a minor to do unlawful acts. Ex. A at 43.

Counts one and two charged Petitioner with placing his penis in or upon the

vagina of J.P. between August 1, 2013 and November 7, 2013; counts three and

four charged him with placing his mouth on J.P.’s vagina between August 1,

2013 and November 7, 2013; and counts five and six charged him with placing

his penis in or upon J.P.’s mouth between August 1, 2013 and November 7,

2013. Id.

The arrest and booking report states, in pertinent part: “The suspect

traveled to meet with the victim at a remote location in Hilliard, in Nassau

County, where the suspect and the victim engaged in penile/vaginal, penile/oral,

and oral/vaginal sexual intercourse on two separate occasions in the backseat

6 Petitioner indicates that he “has given the State of Florida at least (15) fifteen

opportunities to correct the . . . double jeopardy issues.” Doc. 1-3 at 16.

7 A review of Petitioner’s initial brief in this case reflects that while he mentioned

count seven being subsumed by count eight, he did not raise any double jeopardy

claims. See Ex. V at 3-4 (cm/ecf pagination). Instead, this was the appeal from the

second denial of his Rule 3.850 motion which was solely about his alleged

incompetency.

of the suspect’s vehicle sometime between September and October 2013.” Ex. A

at 2 (emphasis added); see also id. at 3-4 (affidavit for search warrant containing

similar information from the victim).

During the plea hearing, Petitioner’s trial counsel advised the trial court

that Petitioner had “authorized [her] to withdraw his previously entered plea of

not guilty in case 13-CF-958 and enter guilty pleas to counts one through eight

of the information.” Ex. C at 4. Petitioner confirmed that he signed the plea of

guilty form acknowledging that he was pleading guilty to counts one through

eight; he discussed the matter with his counsel and was satisfied with her

representation; he understood the rights he was waiving by entering his guilty

plea; and he was doing so freely, willingly, and voluntarily. Id. at 6-10; see also

Ex. A at 84-85 (executed plea form).8 The state presented the following factual

basis supporting the charges:

Your Honor, the state would be prepared to

prove at trial beyond a reasonable doubt that between

the dates of August 1st, 2013 and November 7th of

2013, in the County of Nassau and the State of Florida

that the defendant did knowingly use a computer

online service, internet service or other device capable

of electronic data storage or transmission, that being

his cell phone, to seduce, solicit, lure or entice a child,

8 The form is titled: “Plea of Guilty and Negotiated Sentence.” Ex. A at 84. However,

the “specific terms of negotiated sentence” were: “Following hearing, Court may

impose any lawful sentence (min [guideline] 42.9 y[ears] max = life).” Id. Despite the

title of the form, the record does not reflect that there were any negotiated terms.

Indeed, at the sentencing hearing, the state recommended that the trial court sentence

Petitioner to life. Ex. F at 61.

that being J.P., to commit any illegal act described in

chapter 800 which is lewd or lascivious battery or

chapter 827 which would be child porn or to otherwise

engage in unlawful sexual contact with J.P. and that

the defendant did misrepresent his age.

Further, the state is prepared to prove beyond a

reasonable doubt that the defendant did travel a

distance within that state by any means and that was

by his vehicle to - - for the purpose of engaging in any

illegal act as described in section 800 or 827 or engage

in any other unlawful sexual contact with J.P. after

using his cell phone to solicit or entice or lure her to

meet him for those purposes.

Further, the state would prove beyond a

reasonable doubt that the defendant did engage in

sexual activity with J.P., a person 12 years of age or

older but less than 16. Specifically she was 13 at the

time.

On two separate incidences he placed his penis

in the vagina of J.P.. He placed his penis in the mouth

of J.P., and he placed his mouth on the vagina of J.P.9

Ex. C at 10-11 (emphasis added). Petitioner’s trial counsel stipulated to the

factual basis, and the trial court found that the state’s proffer was sufficient to

form a factual basis as to each count. Id. at 11. The trial court further found

that Petitioner entered his guilty pleas freely, willingly, and voluntarily with a

9 The Court has copied the transcript exactly as it reads. However, based on the record,

it is apparent that this paragraph should have been transcribed as one sentence with

the phrase, “On two separate incidences,” modifying each phrase thereafter: “On two

separate incidences he placed his penis in the vagina of J.P., he placed his penis in the

mouth of J.P., and he placed his mouth on the vagina of J.P.” (emphasis to show

modification).

“sufficient factual basis to support the plea as to each of the eight counts.” Id.

at 11-12. The state further noted that “[t]here is DNA in this case and it

inculpates the defendant in that his DNA was found mixed with the victim’s

DNA in the - - in two of the four places in the back of the car that were tested

of the defendant’s car, and further that this sentence will subject him to being

- - found to be a sexual predator and therefore Jimmy Ryce would apply.” Id. at

13. At the conclusion of the hearing, the trial court asked Petitioner if he had

“any questions about what we have done this morning.” Id. at 14. Petitioner

responded, “No, Your Honor. I would like to say that it has been an honor doing

the work that I have been able to do in your jail for the last 15 months. It has

been and thank you. Thank you all and you, too, as well, Ms. Thurson” (the

prosecutor. Id.

The victim testified at sentencing that she communicated with Petitioner

for “almost a year, maybe longer,” he texted her “[a]ll day, every day,” and he

left her threatening voicemails, some of which were played at the hearing. See

Ex. F at 26-33, 38. She indicated that she sent him nude photographs of herself,

and then when he threatened to share them unless she sent more, she continued

to send him photographs. See id. at 29-30. She also testified that she snuck out

of her father’s house twice to meet Petitioner and have sex. See id. at 30-31, 38.

Petitioner raised the double jeopardy claims relating to counts one

through six in his Rule 3.800(a) motion to correct illegal sentence, which the

trial court summarily denied without explanation, Ex. M at 17, and the First

DCA per curiam affirmed the denial without issuing a written opinion, Ex. P.

He also raised the claims in several state court habeas corpus petitions. See

Exs. AA, CC, EE. The first habeas petition was dismissed, with a citation to

Baker v. State, 878 So. 2d 1236 (Fla. 2004) (finding that postconviction relief

for noncapital defendants must ordinarily be obtained through a Rule 3.850

motion and not a habeas corpus petition). See Ex. BB. The Supreme Court of

Florida issued the following opinion on the second petition:

To the extent petitioner challenges his judgment

and sentence, the petition for writ of habeas corpus is

hereby denied as procedurally barred. A petition for

extraordinary relief is not a second appeal and cannot

be used to litigate or relitigate issues that were or

could have been raised on direct appeal or in prior

postconviction proceedings. See Denson v. State, 775

So. 2d 288, 290 (Fla. 2000); Breedlove v. Singletary,

595 So. 2d 8, 10 (Fla. 1992). To the extent petitioner

challenges the sex offender designation, the petition is

dismissed without prejudice. Any motions or other

requests for relief are hereby denied. No rehearing will

be entertained by this Court.

Ex. DD. The third habeas petition was dismissed with a citation to Fla. R. App.

P. 9.141(d)(5) (requiring a petition alleging ineffective assistance of appellate

counsel be filed no more than 2 years after the judgment and sentence became

final on direct review). See Ex. FF. The fourth petition10 was “denied as

procedurally barred,” with similar language as to the second petition. Ex. GG.

The Court addresses these claims in accordance with the deferential

standard for federal court review of state court adjudications. The First DCA’s

decision affirming the denial of Petitioner’s Rule 3.800(a) motion is entitled to

deference. At the plea hearing, the state proffered facts showing that there were

two incidences of each type of sexual misconduct during the relevant time

period. Petitioner’s trial counsel stipulated to the factual basis, and Petitioner

was well-aware that he was pleading to all eight counts. Thus, because the

record shows that the state had evidence to show that there were two separate

incidences of each lewd or lascivious misconduct charged, there were no double

jeopardy violations. Upon thorough review of the record, the Court finds that

the state court’s adjudication of these claims was neither contrary to, nor an

unreasonable application of, clearly established federal law. Nor was the state

court’s adjudication based on an unreasonable determination of the facts given

the evidence presented in the state court proceedings. Regardless, the claims

have no merit. As such, Grounds Two, Three, and Four are denied.

10 A copy of this state habeas petition does not appear in the record, but Petitioner

asserts in the Petition that he raised his double jeopardy claims in this state habeas

petition.

C. Ground Five

Petitioner contends that “[u]pon correction of the illegalities in Grounds

Three and Four above the remaining Counts also violate the prohibition against

double jeopardy because the [P]etitioner has been punished multiple times for

the same proscribed conduct of oral sexual activity (violation of U.S. Const.

amend 5, 14).” Doc. 1 at 20; see Doc. 61 at 25-28. Petitioner asserts that he

raised this claim in a “9.300 motion” and his state habeas corpus proceedings

(case nos. 1D19-3578, 1D20-0347). Doc. 1 at 20-21. He also contends that he

raised this Ground in proceedings before the Supreme Court of Florida (case

nos. 1D20-1327, 1D20-1662). Id. at 21.

Assuming this claim is properly exhausted, a review of the record shows

that Petitioner’s claim is meritless. The second amended information describes

the three different types of lewd or lascivious behavior in which Petitioner

engaged. Florida’s lewd or lascivious battery statute “permit[s] punishment for

each distinct ‘episode’ or incident of unlawful sexual activity.” Jones v. Sec’y,

Dep’t of Corr., 778 F. App’x 626, 636 (11th Cir. 2019); see State v. Meshell, 2 So.

3d 132, 136 (Fla. 2009) (“[T]he sex acts proscribed in section 800.04(4) (oral,

anal, or vaginal penetration) are of a separate character and type requiring

different elements of proof and are, therefore, distinct criminal acts. Thus,

punishments for these distinct criminal acts do not violate double jeopardy.”).

Petitioner confirmed, under oath, that he was pleading guilty because he was

guilty, and his counsel stipulated to the state’s factual basis, which noted that

Petitioner engaged in each prohibited act on two separate occasions.

Considering the record, the Court denies Ground Five.

D. Ground Six

Petitioner contends that counts seven and eight violate the prohibition

against double jeopardy “because the underlying conduct in Count Seven is

subsumed in that of Count Eight.” Doc. 1 at 21; see Doc. 61 at 22-25. He advises

that the supporting facts are the same as the other double jeopardy claims, and

that he raised this Ground in his Rule 3.850 motion and in several other

proceedings. Doc. 1 at 21-22 (citing case nos. 1D17-5129, 1D19-3578, 1D20-

0347, SC20-1327,SC20-1662, and 1D20-3394).

Petitioner, through his postconviction counsel, raised this claim in a Rule

3.800 motion. Ex. B at 276-77. However, Petitioner, through postconviction

counsel, subsequently withdrew the Rule 3.800 motion to “allow appellate

counsel to undertake this issue as part of a direct appeal.” Id. at 295-96.

Appellate counsel did not raise the issue on direct appeal.

Respondents assert that Petitioner exhausted this claim by raising it in,

inter alia, his pro se Rule 3.800(a) motion. Doc. 27 at 45. However, Petitioner

did not raise this claim in his Rule 3.800(a) motion, see Ex. M at 3-6, or in the

appeal therefrom, Ex. N.11 Additionally, although Petitioner states he raised

this issue in case no. 1D19-3578, a review of his brief shows that while he

mentioned count seven being subsumed by count eight, he did not raise any

double jeopardy claims. See generally Ex. V.

Petitioner did raise this claim as part of his initial Rule 3.850 proceeding.

See Ex. Q at 45. In that proceeding, Petitioner filed a motion and several

amendments. See id. at 3-46. The trial court summarily denied the motion

finding that Petitioner’s allegations “are included in, or could have been

included in, his two prior appeals to the First District Court of Appeal on direct

appeal . . . and on the appeal from the denial of [his] Motion to Correct Illegal

Sentence.” Id. at 47. Petitioner appealed the denial, and as to this claim, the

First DCA affirmed without comment. See Ex. T (reversing on two competency

claims but affirming as to all other claims).

Petitioner also raised this claim in several state habeas petitions. The

first petition, see Ex. AA at 27-28 (cm/ecf pagination), was dismissed with a

citation to Baker, 878 So. 2d at 1236 (finding that postconviction relief for

noncapital defendants must ordinarily be obtained through a Rule 3.850 motion

and not a habeas corpus petition), see Ex. BB. The second petition, Ex. CC, was

“denied as procedurally barred,” Ex. DD (explaining that “[a] petition for

11 In Petitioner’s pro se Rule 3.800(a) motion, he raised his double jeopardy claims

relating to counts one through six.

extraordinary relief is not a second appeal and cannot be used to litigate or

relitigate issues that were or could have been raised on direct appeal or in prior

postconviction proceedings”). Petitioner contends that he raised this claim in a

habeas petition filed with the Supreme Court of Florida, but that petition was

also denied as procedurally barred. See Ex. GG.12

While it appears at first blush that Petitioner never properly presented

this double jeopardy claim regarding counts seven and eight to the state courts,

his attempt to present it in his Rule 3.850 motion was improperly rejected.

Indeed, the postconviction court found that all of Petitioner’s claims could have

been raised or were raised on direct appeal or in his Rule 3.800(a) proceeding.

Petitioner, however, did not raise this claim in either his direct appeal or Rule

3.800(a) proceeding, and under Florida law, double jeopardy claims may be

raised in Rule 3.850 proceedings. See, e.g., Lippman v. State, 633 So. 2d 1061,

1065 (Fla. 1994) (“[A] double jeopardy claim may be raised in a post-conviction

relief proceeding.”); Kerrin v. State, 8 So. 3d 395, 396 (Fla. 1st DCA 2009)

(“Double jeopardy claims are cognizable in rule 3.850 motions.”). Thus, the

12 In a petition alleging ineffective assistance of appellate counsel, Petitioner argued

that his appellate counsel was ineffective for failing to raise this double jeopardy issue

on direct appeal, and he attached a letter from his appellate counsel acknowledging

her error. Ex. EE. The petition, however, was dismissed as untimely. Ex. FF (citing

Fla. R. App. P. 9.141(d)(5), which requires a petition alleging ineffective assistance of

appellate counsel be filed no more than 2 years after the judgment and sentence

became final on direct review).

postconviction court’s procedural bar to this claim does not rest on an adequate

state law ground that is firmly established and consistently followed. Therefore,

this Court will address the claim on the merits.

Petitioner is correct that the Supreme Court of Florida has held that a

solicitation conviction (count seven) is subsumed by a traveling conviction

(count eight) when based on the same conduct:

[B]ecause the statutory elements of solicitation are

entirely subsumed by the statutory elements of

traveling after solicitation, the offenses are the same

for purposes of the Blockburger[13] same-elements test

codified in section 775.021(4), Florida Statutes. . . .

Therefore, double jeopardy principles prohibit

separate convictions based upon the same conduct.

State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015).

Nevertheless, following the entry of a guilty plea, the scope of federal

habeas review is limited to whether the plea was voluntarily and intelligently

made. See United States v. Broce, 488 U.S. 563, 569 (1989) (‘[W]hen the

judgment of conviction upon a guilty plea has become final and the offender

seeks to reopen the proceeding, the inquiry is ordinarily confined to whether

the underlying plea was both counseled and voluntary.”); Tollett v. Henderson,

411 U.S. 258, 267 (1973). “Just as a defendant who pleads guilty to a single

count admits guilt to the specified offense, so too does a defendant who pleads

13 Blockburger v. United States, 284 U.S. 299 (1932).

guilty to two counts with facial allegations of distinct offenses concede that he

has committed two separate crimes.” Broce, 488 U.S. at 570.

The record supports that conclusion that Petitioner knowingly and

voluntarily entered his guilty pleas. He engaged in a colloquy with the trial

court, acknowledging that he understood the crimes to which he was pleading

guilty and the rights he was waiving, he was satisfied with his counsel’s advice,

and he knew of the minimum and maximum sentences that the court could

impose. He specifically testified that he was not threatened or coerced, and he

was freely and voluntarily entering his guilty pleas.

This case is distinguishable from Shelley. In Shelley, the state relied on

the same conduct to charge both the solicitation offense and the traveling

offense on a single date. See Shelley, 176 So. 3d at 918; Shelley v. State, 134 So.

3d 1138, 1141 (Fla. 1st DCA 2014) (“The State only charged one use of computer

devices to solicit, and that charge was based on a solicitation occurring on the

same date as the traveling offense.” (emphasis added)). Here, each count in the

second amended information was charged as occurring between August 1, 2013

and November 7, 2013. It is clear based on the other counts in the charging

document, the state’s factual basis presented at the plea hearing, and testimony

from Petitioner and the victim at the sentencing hearing that there was more

than one occasion on which each of these crimes occurred. Thus, it is not

apparent from the second amended information alone, or when considered with

the entirety of the record, that a double jeopardy violation occurred. Indeed, the

record suggests that the state could have proven multiple acts of solicitation

during the relevant time period, along with two separate acts of traveling after

solicitation. At the plea hearing, the state specifically included in the factual

basis that Petitioner used his cell phone “to seduce, solicit, lure or entice a child,

that being J.P., to commit any illegal act described in chapter 800 which is lewd

or lascivious battery or chapter 827 which would be child porn or to otherwise

engage in unlawful sexual contact with J.P.” Ex. A at 43 (emphasis added). The

state had evidence that Petitioner used his cell phone, inter alia, to solicit nude

photographs from the victim on more than one occasion and to arrange to meet

her on more than one occasion to engage in unlawful sexual contact. The state

also had evidence that Petitioner traveled to meet the victim on two occasions

to engage in unlawful sexual contact. By voluntarily pleading guilty, Petitioner

admitted that he was guilty of two separate offenses of solicitation and traveling

during the time frame charged. The dual convictions for traveling and

solicitation were not based on the same conduct and no double jeopardy

violation occurred. Ground Six is denied.

E. Ground Seven

Petitioner asserts that he is actually innocent. Doc. 1 at 22; see Doc. 61 at

29-34. He advises that he raised this claim in a Rule 3.850 motion addressing

newly discovered evidence and in case no. SC20-1662, and he was precluded

from raising it in other proceedings. Doc. 1 at 22-23.

Even assuming this claim is properly exhausted, Eleventh Circuit

“precedent forecloses habeas relief based on a prisoner’s assertion that he is

actually innocent of the crime of conviction absent an independent

constitutional violation occurring in the underlying state criminal proceeding.”

Raulerson v. Warden, 928 F.3d 987, 1004 (11th Cir. 2019) (quotations and

citations omitted). Petitioner pled guilty to all eight counts, and in doing so, he

acknowledged he was pleading guilty because he was guilty. Petitioner’s solemn

declarations in court carry a strong presumption of truth and “constitute a

formidable barrier in any subsequent collateral proceedings.” Blackledge v.

Allison, 431 U.S. 63, 73-74 (1977).14 He cannot now go behind his statements

made under oath and contend that he is actually innocent without showing

some independent constitutional violation. He has not done so. Nor has

14 At the sentencing hearing, Petitioner testified that he previously worked with

government agencies to protect children, and then stated: “There is an irony for some

reason that at one point in time in the summer I started to have some kind of memory

lapse or something like that. I have absolutely no sickness and I don’t understand that

at all.” Ex. F at 46. He also testified that he “did something that was completely awful”

and he “made a horrible mistake,” he equivocally accepted responsibility for his

actions, and he acknowledged that he deserved punishment. Id. at 45, 52; see id. at 56

(“I will take responsibility for things even if they aren’t true, but go ahead, I would

have never, unless I had consent.”).

Petitioner presented any newly-discovered evidence showing that he is factually

innocent of the crimes to which he pled guilty. Thus, Ground Seven is denied.

Accordingly, it is

ORDERED:

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

with prejudice.

2. If Petitioner appeals, the Court denies a certificate of appealability.

Because the Court has determined that a certificate of appealability is not

warranted, the Clerk shall terminate from the pending motions report any

motion to proceed on appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.15

15 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.

3. The Clerk shall enter judgment dismissing this case with

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

DONE AND ORDERED at Jacksonville, Florida, this □□ day of August,

2024.

. Cimetbeg 9. Corrig on

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 8/6

C:

Joseph Luis Levin

Counsel of Record

35