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

> District Court, M.D. Florida · August 7, 2024

URL: https://www.frixlaw.com/law-library/cases/10642595

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 7, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642595. Public record. Not legal advice.