Sugrin v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

JEAN ROBERT NAVUIS SUGRIN,

Petitioner,

v. Case No. 5:22-cv-85-TPB-PRL

SECRETARY, DEPARTMENT

OF CORRECTIONS; FLORIDA

ATTORNEY GENERAL,

Respondents.

________________________________/

ORDER OF DISMISSAL WITHOUT PREJUDICE

Jean Robert Navuis Sugrin, a Florida prisoner, timely filed a petition for writ

of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Upon consideration of the second

amended petition (Doc. 7) and the response in opposition (Doc. 15), the Court denies

the petition.1 The Court further denies Sugrin’s motion for an evidentiary hearing

(Doc. 22) because the petition may be resolved based on the record. See Rules

Governing Section 2254 Cases in the United States District Courts, Rule 8(a).

Background2

On July 17, 2016, at around 2:00 a.m., Paola Gambini sat in her car outside a

Wawa gas station in Lake County, Florida, when a man wearing a camouflage shirt

wrapped around his face attempted to rob her with a pink firearm. (Doc. 16-1,

1 Sugrin did not file a reply and his time to do so is expired. Therefore, the petition is ripe for review.

2 This summary is based on the trial transcript, appellate briefs, and Lake County, Florida’s records

concerning Sugrin’s underlying criminal proceedings of which this Court takes judicial notice. See

Fed. R. Evid. 201(b)(2).

Ex. M, pp. 183–84.) Gambini tricked the robber into fleeing by telling him that a

police officer was inside Wawa. (Id., pp. 184–85.) The robber fled the parking lot in

a silver Prius. (Id., p. 185.) Nicholas Emmett witnessed the attempted robbery while

sitting in his car in the Wawa parking lot. (Id., p. 226.) Officers arrived at Wawa

and reviewed surveillance video footage that depicted the silver Prius entering the

parking lot at 2:03 a.m. and departing two minutes later but did not depict the

robbery. (Id., pp. 177–78.) The footage did not depict the driver or license plate

number. (Id.)

Officers issued a “be on the lookout” for someone matching the robber’s

description. (Id., p. 178.) Orange County Sheriff’s Office officials spotted the silver

Prius driving from Lake County into Orange County and engaged their emergency

lights. (Id., p. 239.) The driver attempted to flee and crashed the Prius after a short

chase. (Id., pp. 239–40.) Sugrin emerged from the driver’s side of the car with a pink

firearm falling out of his right pocket. (Id., pp. 241, 256.) Officers also found a

camouflage shirt in the car. (Id., p. 242.) There were no other occupants in the car.

(Id.) Sugrin claims he found the Prius, a stolen vehicle. (Id., p. 273.) Officers

brought Gambini to the crash scene where she identified Sugrin and the Prius. (Id.,

pp. 189–90, 216–17.)

After the crash, Sugrin was arrested in Orange County for multiple offenses

he committed on a crime spree across Orange County and Lake County. (Id., Ex. W,

p. 407.) On July 18, 2016, the Lake County Court issued an arrest warrant finding

there was probable cause to believe that Sugrin attempted to rob Gambini in Lake

County during the crime spree. Case No. 35-2016-CF-001822-AXXX-XX (Lake Cty.,

Fl.) (Criminal Case Docs. 1, 2.) On July 31, 2017, Sugrin was tried in Orange

County for multiple offenses committed in Orange County during the crime spree.

(Doc. 16-1, Ex. W, p. 407.) While Sugrin was held and tried in Orange County, there

was no activity in his Lake County case. (See Criminal Case.)

On December 8, 2017, Sugrin filed a speedy trial demand in his Lake County

case. (Doc. 16-1, Ex. A.) On December 27, 2017, while serving his Orange County

sentence at Jackson Correctional Institution, Sugrin was transferred to the Lake

County jail to stand trial in his Lake County case. (Id., Ex. B, pp. 8–9.) On

December 28, 2017, the Lake County Court appointed counsel for Sugrin at his first

appearance. (Id., p. 10); (Criminal Case Docs. 12, 13.) On January 19, 2018, Sugrin

was charged by information in his Lake County Case with attempted robbery in

possession of a firearm while masked. (Doc. 16-1, Ex. D, p. 16.)

On February 14, 2018, Sugrin’s trial counsel moved for a continuance and

waived Sugrin’s right to a speedy trial. (Id., Ex. E.) On May 17, 2018, Sugrin filed a

motion to dismiss his counsel, but withdrew the motion on June 7, 2018. (Id.,

Exs. F, G.) On July 3, 2018, Sugrin filed a pro se demand for a speedy trial and a

waiver of his right to counsel. (Id., Exs. H, I.) On July 31, 2018, the trial court held

a Faretta hearing regarding Sugrin’s pro se filings.3 (Id., Ex. K.) Sugrin asserted two

bases for dismissing his trial counsel: (1) counsel did not schedule Sugrin’s trial and

3 A Faretta hearing is conducted by a court to determine if a defendant, who wants to represent

themselves, understands the risks of self-representation. See Faretta v. California, 422 U.S. 806

(1975).

(2) counsel did not provide Sugrin with copies of deposition transcripts for Sugrin to

prepare for trial. (Id., pp. 38–39.) The trial court noted that the trial was scheduled

for August 13, 2018. (Id., pp. 38–40.) Trial counsel testified that he reviewed the

deposition contents with Sugrin, and he ordered transcripts that Sugrin would

receive once they arrived. (Id., p. 39.) The trial court found Sugrin’s concerns were

all addressed and there was no cause to believe that trial counsel rendered

ineffective assistance. (Id., p. 40.) Notwithstanding this finding, Sugrin asked to

represent himself. (Id.) The trial court allowed Sugrin to represent himself. (Id.,

p. 51.)

On August 21, 2018, a state court jury convicted Sugrin of one count of

attempted robbery in possession of a firearm while masked. (Id., Ex. N.) The trial

court sentenced Sugrin to twenty-years’ imprisonment to run concurrent to his

Orange County sentence. (Id., Ex. P, pp. 353, 356.) The trial court vacated the

sentence after realizing it did not offer to reappoint counsel for Sugrin at

sentencing. (Id., Ex. Q, pp. 360–62.) The trial court appointed counsel,4 and

resentenced Sugrin to twenty-years’ imprisonment adding the ten-year minimum

required by Fla. Stat. § 775.087(2)(a)(1), but the trial court did not state whether

the sentence ran concurrent to Sugrin’s Orange County sentence. (Id., pp. 361–62;

Ex. S, p. 376; Ex. T, pp. 382, 385.) Because the trial court did not address whether

the sentences ran concurrent or consecutive, they automatically ran consecutive

under Fla. Stat. § 921.16(1).

4 The public defender who previously represented Sugrin was appointed to represent him at

sentencing.

Appellate counsel filed an Anders brief on Sugrin’s behalf arguing that the

waiver of his right to counsel was not knowing or voluntary.5 (Id., Ex. U.) Sugrin

filed a pro se appellate brief asserting additional claims. (Id., Ex. W.) Among the

many claims asserted in Sugrin’s pro se brief, the appellate court found one

potentially meritorious claim and instructed appellate counsel to brief the issue.

(Id., Ex. Y.) Appellate counsel submitted a brief arguing that the trial court erred

when it resentenced Sugrin in the Lake County case to a sentence that ran

consecutive to his Orange County case rather than concurrent. (Id., Ex. Z, p. 478.)

Appellate counsel raised the same argument in a Florida Rule of Criminal

Procedure 3.800 motion. (Id., Ex. AA, pp. 484–86.) The postconviction court granted

the Rule 3.800 motion and amended Sugrin’s Lake County sentence to run

concurrent to his Orange County sentence. (Id., p. 488.) The appellate court per

curiam affirmed the sentence. (Id., Ex. CC); Surgrin v. State, 291 So. 3d 586 (Fla.

5th DCA 2020).

Sugrin petitioned for a writ of habeas corpus under Florida Rule of Appellate

Procedure 9.141. (Doc. 16-1, Ex. EE.) The appellate court denied the petition. (Id.,

Ex. LL.) Sugrin moved for postconviction relief under Florida Rule of Criminal

Procedure 3.850. (Id., Exs. MM, OO, QQ.) The postconviction court denied the

motion. (Id., Ex. RR.) Sugrin appealed and the appellate court per curiam affirmed.

(Id., Exs. SS, UU.) Sugrin filed a notice of intent to invoke the Florida Supreme

5 An Anders brief is filed by counsel when their client wishes to appeal but they believe the appeal is

wholly frivolous. See Anders v. California, 386 U.S. 738, 744 (1967).

Court’s discretionary jurisdiction that the Florida Supreme Court dismissed. (Id.,

Exs. WW, XX.)

Sugrin now petitions this Court for a writ of habeas corpus under 28

U.S.C. § 2254 and asserts five grounds of ineffective assistance of counsel,

ineffective assistance of appellate counsel, and trial court error. (Doc. 7.)

Standards of Review

The AEDPA

The Antiterrorism and Effective Death Penalty Act governs this proceeding.

Carroll v. Sec’y, DOC, 1354 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can be

granted only if an applicant is in custody “in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that

federal habeas relief cannot be granted on a claim adjudicated on the merits in state

court unless the state court’s adjudication:

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

State court proceeding.

For purposes of § 2254(d)(1), the phrase “clearly established Federal law”

encompasses the holdings only of the United States Supreme Court “as of the time

of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

This section “defines two categories of cases in which a state prisoner may obtain

federal habeas relief with respect to a claim adjudicated on the merits in state

court.” Id. at 404. First, a decision is “contrary to” clearly established federal law “if

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

Court on a question of law or if the state court decides a case differently than [the

Supreme] Court has on a set of materially indistinguishable facts.” Id. at 413.

Second, a decision involves an “unreasonable application” of clearly

established federal law “if the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. The AEDPA was meant “to prevent

federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to

the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly,

“[t]he focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, and . . . an unreasonable application is

different from an incorrect one.” Id. at 694. As a result, to obtain relief under

§ 2254(d)(1), “a state prisoner must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s

application of clearly established federal law must be objectively unreasonable” for

a federal habeas petitioner to prevail and that the state court’s “clear error” is

insufficient).

For purposes of § 2254(d)(2), “it is not enough to show that ‘reasonable minds

reviewing the record might disagree about the finding in question.’” Brown v.

Davenport, 596 U.S. 118, 135 (2022) (quotations omitted). “An unreasonable

determination of the facts occurs when the direction of the evidence, viewed

cumulatively, was too powerful to conclude anything but the petitioner[’]s factual

claim.” Teasley v. Warden, Macon State Prison, 978 F.3d 1349, 1355 (11th Cir. 2020)

(internal quotation marks and alterations omitted). A state court’s findings of fact

are presumed correct, and a petitioner can rebut the presumption of correctness

only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Even when a petitioner succeeds in rebutting the presumption, he must show

that the state court’s decision is “based on” the incorrect factual determination. Pye

v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1035 (11th Cir. 2022). This is

because a state court decision may still be reasonable “even if some of the state

court’s individual factual findings were erroneous—so long as the decision, taken as

a whole, doesn’t constitute an ‘unreasonable determination of the facts’ and isn’t

‘based on’ any such determination.” Id. (quoting Hayes v. Sec’y, Fla. Dep’t of Corr.,

10 F.4th 1203, 1224–25 (11th Cir. 2021) (Newsom, J., concurring)).

Ineffective Assistance Of Counsel

Ineffective assistance of counsel claims are analyzed under the test

established in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a

showing of deficient performance by counsel and resulting prejudice. Id. at 687.

Deficient performance is established if, “in light of all the circumstances, the

identified acts or omissions [of counsel] were outside the wide range of

professionally competent assistance.” Id. at 690. “[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id.

A petitioner must also show that their counsel’s alleged error prejudiced the

defense because “[a]n error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no

effect on the judgment.” Id. at 691. To demonstrate prejudice, a petitioner must

show “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on

federal habeas review because “[t]he standards created by Strickland and § 2254(d)

are both highly deferential, and when the two apply in tandem, review is doubly so.”

Richter, 562 U.S. at 105 (internal quotation and citations omitted). “The question

[on federal habeas review of an ineffective assistance claim] ‘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)

(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

Claims for ineffective assistance of appellate counsel are also governed by

Strickland, and thus to prevail, a petitioner must establish that their appellate

counsel’s performance was deficient and but for counsel’s performance, they would

have prevailed on appeal. Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 1325, 1331

(11th Cir. 2016) (citing Strickland, 466 U.S. at 687; Brooks v Comm’r, Ala. Dep’t of

Corr., 719 F.3d 1292, 1300 (11th Cir. 2013)); see also Smith v. Robbins, 528 U.S.

259, 285–86 (2000).

Discussion

Ground One

Sugrin contends that his trial counsel was ineffective for failing to secure his

right to a speedy trial. (Doc. 7 at 3.) Respondents argue that Sugrin was not entitled

to a speedy trial because his counsel was still preparing until the trial began.6

(Doc. 15, p. 20.) Sugrin asserted this claim in his amended Rule 3.851 motion.

(Doc. 16-1, Ex. QQ, pp. 700–04.) The postconviction court applied Strickland and

denied the motion finding Sugrin’s trial counsel could not be ineffective for waiving

Sugrin’s right to a speedy trial when he required more time to prepare. (Id., Ex. RR,

p. 759.) When addressing Sugrin’s argument that he would have been sentenced as

a youthful offender under Fla. Stat. § 958.04 if trial counsel secured his right to a

6 Respondents also argue that Sugrin procedurally defaulted this claim by failing to raise it before

his appeal. (Doc. 15, pp. 11–13.) Sugrin asserts a claim of ineffective assistance of counsel that was

properly raised for the first time on state habeas review in his Rule 3.850 motion. (Doc. 16-1, Ex. QQ,

pp. 700–04; Ex. SS, pp. 834–37); see Castille v. Peoples, 489 U.S. 346, 351 (1989) (exhaustion requires

a petitioner to “fairly present[]” the issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review (emphasis omitted)); see also Hills v. State, 78 So. 3d

648, 652 (Fla. 4th DCA 2012) (claims of ineffective assistance of counsel are “properly made in a

motion for post-conviction relief under Rule 3.850”). Furthermore, Sugrin raised the underlying

issue—his right to a speedy trial—before his appeal when he filed a pro se demand for speedy trial

and raised the issue during his Faretta hearing. (Doc. 16-1, Ex. H; Ex. K, pp. 38–39.)

speedy trial,7 the postconviction court found Sugrin could not demonstrate prejudice

because the trial court considered his age when it sentenced him.8 (Id., p. 760.) The

appellate court per curiam affirmed the postconviction court’s findings. (Id.,

Ex. UU.)

To determine whether the State violated a criminal defendant’s right to a

speedy trial, courts first ask “if the length of the delay has been long enough” “to

trigger a full-fledged constitutional analysis.” United States v. Vargas, 97 F.4th

1277, 1285 (11th Cir. 2024), cert. denied, No. 24-5230, 2024 WL 4427453 (U.S.

Oct. 7, 2024) (citations omitted). The delay should “approach a year” to “trigger the

speedy trial analysis.” Id. (citing Doggett v. United States, 505 U.S. 647, 652 n.1

(1992); United States v. Oliva, 909 F.3d 1292, 1298 (11th Cir. 2018); Turner v.

Estelle, 515 F.2d 853, 855–56 (5th Cir. 1975)). “The Sixth Amendment right to a

speedy trial attaches at the time of arrest or indictment, whichever comes first, and

7 Under Florida law, trial courts may apply sentencing alternatives to defendants between eighteen

and twenty-one years old “to improve the chances of correction and successful return to the

community.” Fla. Stat. §§ 958.021, 958.04.

8 The postconviction court also found that Sugrin was not prejudiced because the operative date for

determining whether a defendant can be sentenced as a youthful offender under § 958.04 is the date

on which the defendant committed the crime, not the date on which the defendant is sentenced.

(Doc. 16-1, Ex. RR, p. 760.) The postconviction court incorrectly applied the version of § 958.04 in

effect at the time of its ruling rather than the version in effect when Sugrin was sentenced. During

the postconviction proceedings, the relevant date for determining youthful offender status was the

date the crime was committed, not the date the sentence was imposed. See Fla. Stat. § 958.04(1)(b)

(effective October 1, 2019). This version of § 958.04 went into effect after Sugrin was sentenced. See

id. During Sugrin’s sentencing, the operative date for determining youthful offender status under

§ 958.04 was the sentencing date. See Fla. Stat. § 958.04 (1)(b) (effective October 1, 2008, to

September 30, 2019). The trial court sentenced Sugrin one month and eleven days after his twenty-

first birthday and he was therefore not eligible for youthful offender status. (Doc. 16-1, Ex. S, p. 371.)

Although the state postconviction court applied the incorrect version of the statute, its ultimate

determination that Sugrin was not prejudiced was reasonable because the application of § 958.04 is

discretionary and the trial court considered Sugrin’s age when sentencing him notwithstanding the

operative date of § 958.04. See Knowles, 556 U.S. at 123 (quoting Schriro, 550 U.S. at 473) (a federal

habeas court may defer to an incorrect state court determination if that determination was

reasonable).

continues until the date of trial.” United States v. Gonzalez, 671 F.2d 441, 444 (11th

Cir. 1982) (citation omitted); United States v. Dunn, 345 F.3d 1285, 1296 (11th Cir.

2003) (“the delay with which we are concerned is that between the date of the

indictment and the trial date[]” (citing United States v. Schlei, 122 F.3d 944, 987

(11th Cir. 1997)).

Sugrin argues that he was deprived of his right to a speedy trial in his Lake

County case because the Lake County information was filed a year and a half after

his arrest in Orange County. (Doc. 7, pp. 18, 21–23.) Sugrin misunderstands the

application of his right. Although Sugrin was arrested on July 17, 2016, in Orange

County, he was not arrested in Lake County until December 27, 2017, when he was

transferred from Jackson Correctional Institution to the Lake County Jail. (Doc. 16-

1, Ex. B, pp. 8–9.) Sugrin was not charged by information in Lake County until

January 19, 2018, and his trial began on August 20, 2018. (Id., Ex. D, p. 16; Ex. M,

p. 58.) Accordingly, the speedy trial period ran from, at the earliest, the time Lake

County arrested Sugrin on December 27, 2017, until his trial began on August 20,

2018, a period of less than eight months.

Further, once Sugrin was arrested in Lake County, the State did not cause

any delay in scheduling the trial, but rather, Sugrin’s counsel continued the trial to

further prepare Sugrin’s defense. (Id., Ex. E.) A delay caused by Sugrin’s counsel is

treated as if caused by Sugrin himself. See Vermont v. Brillon, 556 U.S. 81, 92

(2009). Sugrin cannot claim he was denied his right to a speedy trial when he

caused the delay. See id. (“counsel’s failure ‘to move the case forward’ does not

warrant attribution of [a] delay to the State[]”). Because the State did not deprive

Sugrin of his right to a speedy trial, Sugrin’s trial counsel could not have been

unreasonable for failing to raise this meritless issue in the underlying proceedings.

See Cave v. Sec’y for Dep’t of Corr., 638 F.3d 739, 755 (11th Cir. 2011) (“[c]ounsel

cannot be labeled ineffective for failing to raise issues which have no merit” (quoting

Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990)).

To the extent that Sugrin claims his counsel’s performance was unreasonable

because he delayed the trial, “an attorney, acting without consent from his client,

may waive his client’s right to a speedy trial because ‘[s]cheduling matters are

plainly among those [decisions] for which agreement by counsel generally controls.’”

Fayson v. Sec’y, Fla. Dep’t of Corr., 568 F. App’x 771, 773 (11th Cir. 2014) (quoting

New York v. Hill, 528 U.S. 110, 115 (2000)). In addition, it was reasonable for

Sugrin’s trial counsel to continue the trial when he was unprepared to proceed. See

Fayson, 568 F. App’x at 774 (“counsel’s decision to move for a continuance was not

objectively unreasonable under the circumstances because” more discovery was

required to prepare for trial); see also Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.

1994) (“Even if many reasonable lawyers would not have done as defense counsel

did at trial, no relief can be granted on ineffectiveness grounds unless it is shown

that no reasonable lawyer, in the circumstances, would have done so.”).

Consequently, Sugrin does not show that his trial counsel performed deficiently.

Even if Sugrin could show trial counsel’s deficient performance, he does not

allege that he was prejudiced by trial counsel’s failure to “secure his right.” To the

extent that Sugrin wishes to revive the argument that the delayed trial resulted in

him not being sentenced as a youthful offender, this argument fails. Even if Sugrin

was under twenty-one when he was sentenced, youthful offender status is not an

entitlement. Under Fla. Stat. § 958.04, Florida sentencing courts have “the

discretion to sentence eligible defendants who are under [twenty-one] years of age

as ‘youthful offender[s].’” United States v. Cortes, 427 F. App’x 803, 806–07 (11th

Cir. 2011). During resentencing, the trial court considered Sugrin’s age, but found

“that a departure sentence [was] not the best sentence in this case” because Sugrin

posed a “danger to the community.” (Doc. 16-1, Ex. S, p. 375.) Accordingly, Sugrin

does not establish a reasonable probability that he would have been sentenced as a

youthful offender if his counsel went to trial when he was still twenty years old.

Sugrin fails to show that his counsel rendered ineffective assistance and thus

fails to show that the state court’s decision was contrary to or involved an

unreasonable application of clearly established federal law or was based on an

unreasonable factual determination. Therefore, Sugrin is not entitled to relief on

Ground One.

Ground Two

Sugrin contends that his trial counsel was ineffective for failing to move for

youthful offender status during sentencing and for failing to seek a sentence

concurrent and coterminous with Sugrin’s Orange County sentence. (Doc. 7, pp. 7,

24–27.) Respondents argue that Sugrin cannot demonstrate prejudice because trial

counsel argued for a downward sentence departure based on his age, and there is no

indication that the trial court would have awarded a sentence equal to his Orange

County sentence if counsel argued for one. (Doc. 15, pp. 24–25.)

Beginning with the youthful offender argument that Sugrin first asserted in

his amended Rule 3.851 motion. (Doc. 16-1, Ex. QQ, pp. 712–14.) The postconviction

court applied Strickland and denied the motion finding Sugrin was not entitled to

youthful offender status because it is discretionary and finding the trial court

considered Sugrin’s age when sentencing him. (Id., Ex. RR, pp. 761–62.)

This claim fails for two reasons. First, Sugrin was outside the youthful

offender statute when he was sentenced, and trial counsel cannot be unreasonable

for failing to raise a meritless argument. See Fla. Stat. § 958.04 (1)(b) (effective

October 1, 2008, to September 30, 2019); see also Cave, 638 F.3d at 755 (quoting

Card, 911 F.2d at 1520). Second, Sugrin cannot show prejudice. Although trial

counsel noted for the trial court that Sugrin did not qualify for youthful offender

status, he argued for a lower sentence of the mandatory ten-year minimum based

on Sugrin’s age, drug use, mental health issues, and family issues.9 (Doc. 16-1,

Ex. S, pp. 371–73.) The trial court considered Sugrin’s age, Sugrin’s mental health

issues, Sugrin’s life and family circumstances, the nature of the crime, and the

evidence presented at trial. (Id., p. 375.) The trial court concluded that a downward

departure was not appropriate because of the danger Sugrin posed to the

community. (Id., pp. 375–76.) Because granting youthful offender status is

9 During resentencing counsel stated: “the incident took place on or about July 17, 2016. I say that

because I’d like to point out that on July 17, 2016, this kid was nineteen years old.” (Doc. 16-1, Ex. S,

p. 370.)

discretionary and the trial court considered Sugrin’s age during sentencing, Sugrin

cannot show that he was prejudiced.

Moving to the concurrent sentence argument. In his pro se appellate brief

Sugrin argued that his appellate counsel was ineffective for failing to file a

Rule 3.850 motion raising the trial court’s error in failing to run his Lake County

sentence concurrent to his Orange County sentence. (Id., Ex. W, pp. 461–62.) The

appellate court instructed Sugrin’s appellate counsel to brief the issue of why

Sugrin “was originally sentenced concurrent with all of his other cases[] but [was]

resentenced to a prison term not pronounced concurrent with any other cases.” (Id.,

Ex. Y.) Appellate counsel submitted an appellate brief and a Rule 3.800 motion

addressing the issue as a claim of trial court error. (Id., Ex. Z; Ex. AA, pp. 484–86.)

The postconviction court granted the Rule 3.800 motion and amended Sugrin’s Lake

County sentence to run concurrent to his Orange County sentence. (Id., Ex. AA,

p. 488.) The appellate court affirmed. (Id., Ex. CC); Surgrin, 291 So. 3d 586.

In Sugrin’s Rule 3.851 motion he later argued that his trial counsel was

ineffective for failing to seek a concurrent and coterminous sentence. (Doc. 16-1,

Ex. QQ, p. 712.) The postconviction court applied Strickland and denied the motion

finding:

Defendant contends that had his attorney argued for coterminous

sentencing with the sentenced passed in Orange County that the trial

court would likely have sentenced the Defendant to four (4) years

D.O.C. and two (2) years of probation and enrollment with the JobCore

Program. However, as noted above, the trial court, after a review of the

record, found no reason for a downward departure and that even if

there had been such, it would not have been applied in the instant

matter. See Exhibit "C" at 9, Lines 21-24. Defendant’s argument that

such a plea would even have been offered had his counsel made such

an argument is conclusory in nature and the Defendant does not show

prejudice in the record.

(Id., Ex. RR, pp. 762–63.)

Regardless of whether Sugrin’s trial counsel provided reasonably competent

assistance,10 Sugrin cannot show prejudice for counsel’s failure to raise this issue.

The postconviction court granted Sugrin’s Rule 3.800 motion and his Lake County

sentence is running concurrent to his Orange County sentence. In addition, the

Lake County trial court found Sugrin was not entitled to a downward departure

because he posed a danger to the community. There is nothing in the record to

demonstrate that trial counsel’s request for a coterminous sentence would have

changed the trial court’s finding or resulted in a shorter sentence equal to his

Orange County sentence of four years’ imprisonment followed by two years’

probation. Sugrin’s argument is further undercut by the fact that his Lake County

charge carried a mandatory minimum of ten years from which the trial court had no

discretion to depart. See Fla. Stat. § 775.087(2)(a)(1).

Sugrin fails to show that his counsel rendered ineffective assistance and thus

fails to show that the state court’s decision was contrary to or involved an

unreasonable application of clearly established federal law or was based on an

unreasonable factual determination. Therefore, Sugrin is not entitled to relief on

Ground Two.

10 A court need not “address both components of the [Strickland] inquiry if the defendant makes an

insufficient showing on one.” Strickland, 466 U.S. at 697.

Ground Three

Sugrin argues that his trial counsel was ineffective for failing to protect him

against double jeopardy. (Doc. 7, p. 8.) Sugrin claims that when the trial court

resentenced him to twenty years and added a ten-year mandatory minimum, it

violated his right to be free from double jeopardy. (Id.) Respondents argue that

Sugrin’s resentencing does not amount to double jeopardy because Sugrin’s first

sentence was not yet final when the trial court vacated it, and the original sentence

was illegal because it was shorter than required by law. (Doc. 15, pp. 26–27.)

Sugrin raised this argument in his Rule 3.851 motion. (Doc. 16-1, Ex. QQ,

pp. 730–32.) The postconviction court applied Strickland and denied the motion

finding:

Imposition of a minimum mandatory sentence for the first time at a

resentencing hearing does not violate double jeopardy. In Dunbar v.

State, 89 So. 3d 901 (Fla. 2012), the trial court initially pronounced a

sentence it had no discretion to impose, realized its error later that

day, and added the nondiscretionary mandatory minimum terms to the

sentence. The Florida Supreme Court in Dunbar held that the trial

court did not violate double jeopardy principles in adding the

mandatory minimum term to defendant’s sentence on the same day as

oral pronouncement. Id. at 906-907. “When a trial court fails to

pronounce nondiscretionary sentencing terms, the defendant has no

legitimate expectation in the finality of that sentence, at least until the

reviewing court has issued a mandate or the time for filing an appeal

has run.” Id. at 906.

Based on the above, this Court finds Defendant’s allegations that

counsel was ineffective for failing to protect against double jeopardy

are without merit.

(Id., Ex. RR, pp. 769–70.)

“The Double Jeopardy Clause affords the defendant three basic protections[:]”

(1) protection “against a second prosecution for the same offense after acquittal,”

(2) protection “against a second prosecution for the same offense after conviction,

and” (3) protection “against multiple punishments for the same offense.” Jones v.

Thomas, 491 U.S. 376, 380 (1989); North Carolina v. Pearce, 395 U.S. 711, 717

(1969). The multiple punishment prohibition may be violated when a court vacates

a defendant’s sentence during resentencing and imposes a harsher punishment.

United States v. Cochran, 883 F.2d 1012, 1016–17 (11th Cir. 1989) (citing Pearce,

395 U.S. at 723). “Resentencing violates the [D]ouble [J]eopardy [C]lause only when

it disrupts the defendant’s legitimate expectations of finality.” United States v.

Young, 953 F.2d 1288, 1291 n.3 (11th Cir. 1992); Cochran, 883 F.2d at 1016 (“the

double jeopardy inquiry turns on the extent and legitimacy of a defendant’s

‘expectation of finality in the original sentence’” (citations omitted)). “[A]ny

expectation of finality in a sentence is wholly absent where[] . . . the defendant

requests that his prior sentences be nullified.” Cochran, 883 F.2d at 1017.

On August 23, 2018, Sugrin was sentenced to twenty years’ imprisonment.

(Doc. 16-1, Ex. P, pp. 353, 356.) On September 4, 2018, Sugrin appeared in front of

the trial court, and the court noted that it did not offer to reappoint counsel to

Sugrin before it sentenced him.11 (Id., Ex. Q, pp. 360–61.) The trial court asked

Sugrin: “do you wish me to appoint counsel to represent you for sentencing?” (Id.,

11 The hearing transcript and the Lake County docket do not provide any clarity on why Sugrin was

in front of the trial court on this day—whether by Sugrin’s request, his former counsel’s request, or

the trial court’s own volition. (Doc. 16-1, Ex. Q, pp. 360–62); (See Criminal Case Doc. 175–97.)

p. 361.) Sugrin replied: “yes, your Honor.” (Id.) The trial court then set aside and

vacated Sugrin’s sentence and appointed counsel for a resentencing hearing. (Id.)

On November 29, 2018, at a resentencing hearing, the trial court resentenced

Sugrin to twenty-years’ imprisonment and added the ten-year minimum required

by Fla. Stat. § 775.087(2)(a)(1). (Id., Ex. S, p. 376.)

Sugrin did not have an expectation of finality in his sentence because he

requested the trial court to appoint counsel to represent him for resentencing. See

Cochran, 883 F.2d at 1017 (“the Double Jeopardy Clause, which guards against

Government oppression, does not relieve a defendant from the consequences of his

voluntary choice[]” (citations omitted)); Mincey v. McNeil, No. 806-CV-264-T-

30TBM, 2008 WL 2694112, at *5 (M.D. Fla. July 7, 2008) (“Because the [p]etitioner

requested that the court correct his sentence, he had no reason to expect the

sentence was final, and his double jeopardy claim is thus without merit.”).

Accordingly, trial counsel’s failure to argue that including the mandatory minimum

on resentencing violated Sugrin’s right against double jeopardy was not

unreasonable.

Even if Sugrin could demonstrate his trial counsel’s unreasonable

representation, he does not demonstrate a reasonable probability that the result of

the proceedings would have been different if his trial counsel argued against

imposing the mandatory minimum. Under Florida law, “[w]hen a trial court fails to

pronounce nondiscretionary sentencing terms, the defendant has no legitimate

expectation in the finality of that sentence, at least until the reviewing court has

issued a mandate or the time for filing an appeal has run.” See Dunbar v. State, 89

So. 3d 901, 906 (Fla. 2012). The trial court did not have the discretion to impose

Sugrin’s original sentence because it did not include the mandatory minimum

required by Fla. Stat. § 775.087(2)(a)(1). In addition, Sugrin’s initial sentence was

vacated before the trial court issued a mandate and before Sugrin’s time to appeal

expired. See Fla. R. App. P. 9.140 (b)(3) (a criminal defendant has thirty days to

appeal a sentence). Consequently, if trial counsel argued that the mandatory

minimum imposed on resentencing violated Sugrin’s right against double jeopardy,

the argument likely would have been rejected, and Sugrin cannot demonstrate

prejudice for counsel’s failure to raise the issue. See Moss v. Sec’y, Fla. Dep’t of

Corr., No. 3:19-CV-881-MMH-JBT, 2022 WL 1321149, at *12 (M.D. Fla. May 3,

2022) (finding a trial court did not violate a defendant’s right against double

jeopardy when it resentenced the defendant to include a mandatory minimum

before “the expiration of the time to file an appeal.” (citing Dunbar, 89 So. 3d at

906)).

Sugrin fails to show that his counsel rendered ineffective assistance and thus

fails to show that the state court’s decision involved an unreasonable application of

Strickland or was based on an unreasonable factual determination. Therefore,

Sugrin is not entitled to relief on Ground Three.

Ground Four

Sugrin contends that his appellate counsel was ineffective for failing to raise,

on appeal, that the evidence against him was insufficient to convict him. (Doc. 7,

p. 10.) Respondents argue that Sugrin raised this issue in his pro se brief on direct

appeal and therefore he cannot demonstrate prejudice by appellate counsel’s failure

to raise it in the Anders brief. (Doc. 15, p. 30.)

On appeal, Sugrin’s appellate counsel filed an Anders brief that raised one

ground. (Doc. 16-1, Ex. U.) However, Sugrin subsequently filed a pro se appellate

brief in which he asserted the claim that the evidence against him was insufficient.

(Id., Ex. W, p. 409.) Although the appellate court did not directly discuss the merits

of the insufficient evidence claim, it did not instruct Sugrin’s counsel to brief the

issue. (Id., Ex. Y.) In his Rule 9.141 petition, Sugrin argued that his appellate

counsel was ineffective for failing to argue that the evidence against him was

insufficient. (Id., Ex. EE, pp. 535–44.) The postconviction court denied the petition

without a written opinion. (Id., Ex. LL.)

Sugrin cannot show that his appellate counsel was unreasonable for failing to

raise this issue on appeal because there was sufficient evidence to convict him.

During the trial, the State called eight witnesses, including Gambini and Emmett.

Both Gambini and Emmett identified the pink firearm and camouflage shirt

recovered from the crash scene, as the firearm and face covering the robber used.

(Id., Ex. M, pp. 191–94, 197, 228–30.) Gambini also identified Sugrin as matching

her observations of the robber’s physical appearance—black, skinny, and average

height—and identified the Prius as the car in which the robber fled Wawa.

(Id., pp. 194–96, 202–03, 189–90, 216–18.) After the State rested its case, Sugrin

moved for a judgment of acquittal arguing that the evidence against him was

insufficient to convict him. (Id., pp. 325–28.) The trial court denied the motion

finding that there was both sufficient circumstantial evidence and direct evidence to

support a guilty verdict. (Id., pp. 274, 328.)

Sugrin takes issue with the lack of direct evidence against him. (Doc. 7,

p. 10.) Under federal law circumstantial evidence “is intrinsically no different from

testimonial evidence.” Holland v. United States, 348 U.S. 121, 139–40 (1954);

United States v. Henderson, 693 F.2d 1028, 1030 (11th Cir. 1982) (“Circumstantial

evidence can be and frequently is more than sufficient to establish guilt beyond a

reasonable doubt” (citing United States v. Hinds, 662 F.2d 362, 367 (5th Cir. 1981))).

The only distinction between the two types of evidence is that circumstantial

evidence requires the jury to decide “whether to draw the inference or connection

between the evidence presented and the fact asserted.” Henderson, 693 F.2d at

1031.

Here the evidence was circumstantial as the witnesses and surveillance video

footage did not observe the robber’s face. To find Sugrin guilty, the jury was

required to draw the inference that Sugrin robbed Gambini because he was found

alone in the stolen Prius in which the robber fled Wawa, and in possession of the—

very distinctive—pink firearm and camouflage shirt that the robber used. The jury

ultimately concluded Sugrin was guilty and did so reasonably as there was

sufficient evidence from which it could draw that inference. See Jackson v. State,

296 So. 3d 549, 552 (Fla. 1st DCA 2020) (the State’s circumstantial evidence was

sufficient to establish the appellant’s identity as the robber when it showed: the

robber and appellant wore the same distinctive clothing; appellant closely

resembled the robber’s description; appellant’s home was near the robbery site;

appellant left his home in the morning and ran back seventeen minutes later after

the robbery occurred; a K-9 tracked the robber’s path to the appellant’s home;

appellant was found hiding in his closet and refused consent to search his bedroom;

and appellant’s brother worked at the robbery location and knew where cash was

kept); Meeks v. State, 247 So. 3d 700, 705 (Fla. 1st DCA 2018) (“the following

provides ‘substantial, competent evidence to support the jury verdict[:]’” the

appellant was found in the victim’s stolen car shortly after the robbery and after

leading police on a high-speed chase; appellant was in possession of the gun used

during the robbery; and a witness identified appellant as the person in the video of

the robbery); but see Williams v. State, 767 So. 2d 601, 602 (Fla. 4th DCA 2000)

(testimony by the defendant’s friend that they saw someone walking away from the

robbery site and towards defendant’s home who was “short and stubby” like the

defendant and wore similar shoes to defendant, and testimony that the defendant

said the robbery site was a “good hit,” was not enough to support a conviction of

attempted robbery when the victim gave a different description of the robber). The

State presented sufficient evidence to support a guilty verdict and Sugrin did not

present any witnesses or evidence to rebut the State’s evidence, other than his own

testimony during which he claimed he found the Prius and was in the wrong place

at the wrong time, fleeing from the police. (Doc. 16-1, Ex. M, pp. 274, 276–77, 281,

283.)

Sugrin also takes issue with the fact that the finger-print analysis on the

pink firearm and DNA analysis on the camouflage shirt came back as “not

identified.” (Doc. 7, p. 10.) The expert witness who testified regarding this evidence

noted that it is not unusual for fingerprint or DNA evidence to come back as “not

identified.” (Doc. 16-1, Ex. M, p. 271.) This is not a case in which fingerprint or DNA

evidence matched another person, instead the evidence came back as not identifying

anyone. (Id., pp. 268–71.) The lack of fingerprint or DNA evidence does not

demonstrate Sugrin’s innocence or guilt. There is no constitutional requirement

that a conviction be supported by fingerprint or DNA evidence. Because there was

sufficient evidence to convict Sugrin, his appellate counsel was not unreasonable for

failing to raise this meritless argument on appeal. see Cave, 638 F.3d at 755

(quoting Card, 911 F.2d at 1520).

Even if Sugrin could show his appellate counsel’s deficient performance, he

cannot show prejudice for counsel’s failure to argue that there was insufficient

evidence to convict him because he raised the issue in his pro se appellate brief and

gave the appellate court the opportunity to consider it. Thus, even if counsel raised

this issue on appeal, Sugrin does not demonstrate a reasonable probability that the

result would have been different.

Sugrin fails to show that his counsel rendered ineffective assistance and thus

fails to show that the state court’s decision involved an unreasonable application of

Strickland or was based on an unreasonable factual determination. Therefore,

Sugrin is not entitled to relief on Ground Four.

Ground Five

Sugrin contends that the trial court erroneously handled a jury question.

(Doc. 7, p. 12.) Respondents argue that this is an issue of state law not cognizable on

federal habeas review. (Doc. 15, p. 10.) Sugrin asserted this argument in his pro se

appellate brief. (Doc. 16-1, Ex. W, pp. 450–52.) Although the appellate court did not

directly discuss the merits of this claim, it did not instruct Sugrin’s appellate

counsel to brief the issue. (Id., Ex. Y.) Sugrin did not raise this issue in the

postconviction proceedings.12

“A jury instruction that ‘was allegedly incorrect under state law is not a basis

for habeas relief[.]’” Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 688 (11th Cir.

2005) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). “[T]o grant habeas relief

based on constitutional trial error, the federal habeas court must find” that “the

error had [a] substantial and injurious effect or influence in determining the jury’s

verdict.” Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1111 (11th Cir. 2012)

(citations and quotations omitted); Jamerson, 410 F.3d at 690 (“Our inquiry [] is not

whether the challenged instructions were ‘undesirable, erroneous, or even

universally condemned;’ our inquiry is whether the instructions ‘so infected the

entire trial that the resulting conviction violates due process.’” (quoting McGuire,

502 U.S. at 72 (citation and quotation marks omitted)).

12 Respondent does not argue that Sugrin failed to exhaust this claim. (Doc. 15, pp. 10–13.) Because

Respondent does not raise this issue, and Sugrin’s claim is meritless, this Court declines to

determine whether he exhausted the claim when he only raised it in his pro se appellate brief. See

Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015) (citing Granberry v. Greer, 481 U.S.

129, 131 (1987)) (Although a “court[] may [not] disregard a failure to exhaust and grant relief on the

merits[,]” a court may deny “the petition on the merits without reaching the exhaustion question.”).

Under Florida law, “[a] trial court need only answer questions of law, not of

fact, presented by jurors during deliberations.” Green v. State, 907 So. 2d 489, 498

(Fla. 2005) (citing Coleman v. State, 610 So. 2d 1283, 1286 (Fla. 1992); Kelley v.

State, 486 So. 2d 578, 583 (Fla. 1986)). During jury deliberations, the jury asked the

trial court if there were “any identifiable fingerprints on the victim’s car door” or “on

the [firearm’s] magazine” (Doc. 16-1, Ex. M, p. 329.) This is a factual question

concerning the ultimate determination the jury was called to make: whether Sugrin

attempted to rob Gambini on July 17, 2016. Compare Coleman, 610 So. 2d at 1286

(“the jury’s question regarding whether the vaginal swabs taken from the sexual

battery victims matched the defendant’s DNA” was a factual question), with Green,

907 So. 2d at 498 (a question clarifying a defendant’s eligibility for parole was a

question of law). The trial court responded by telling the jury that it could not

instruct them on what evidence they heard, and they must rely on their

recollections. (Doc. 16-1, pp. 329–30.)

Under Florida law, the trial court was within its discretion in advising the

jury to rely on their recollections of the evidence. See Coleman, 610 So. 2d at 1286

(the trial court “did not abuse its discretion when [it] advised the jurors . . . to rely

on their collective recollection of the evidence[]” “because the jury question involved

matters of fact, not questions of law[]”); Miller v. State, 253 So. 3d 752, 755–56

(Fla. 1st DCA 2018) (the trial court did not err in refusing to answer a factual

question—was there “any more discussion about [the] gun or BB gun on the collect

[jail] call”—because it concerned the ultimate question of fact the jury was called to

decide: whether the evidence was sufficient to prove appellant possessed a firearm);

Frasilus v. State, 46 So. 3d 1028, 1029 (Fla. 5th DCA 2010) (a trial court’s response

to a jury’s factual question that the jury must use their “best recollection of the

evidence” was not a fundamental error); see also Green, 907 So. 2d at 497 (“A trial

court [has] discretion in answering or refusing to answer a jury’s question.”);

Perriman v. State, 731 So. 2d 1243, 1247 (Fla. 1999) (“the trial court did not abuse

its discretion in declining to give an additional instruction[]”).

Similarly, the Eleventh Circuit has concluded “that a district court does not

abuse its discretion by instructing the jury to rely on its collective memory[.]”

United States v. Frederick, 608 F. App’x 744, 746 (11th Cir. 2015) (citing United

States v. Delgado, 56 F.3d 1357, 1370 (11th Cir. 1995)); United States v. McDonald,

935 F.2d 1212, 1222 (11th Cir. 1991); United States v. Bailey, 830 F.2d 156, 157

(11th Cir. 1987) (the plaintiff’s argument that a trial court erred by referring the

jury to earlier jury instructions rather than directly responding to a list of questions

was contrary to Eleventh Circuit precedent (citing United States v. Parr, 716 F.2d

796, 808–09 (11th Cir. 1983)).

Sugrin asserts that the trial court should have read back the pertinent

portion of a witness’s testimony that would have assisted and resolved the jury’s

question. (Doc. 7, p. 12.) Neither Florida nor Federal law requires a trial court to

offer to read back portions of testimony in response to a jury’s factual question, but

rather, under both “[a] trial court’s response to a jury’s question is entrusted to its

own sound discretion[.]” See McDonald, 935 F.2d at 1222 (citations omitted) (“we

cannot say on these facts that the district court abused its discretion in failing to

read back selected portions of the transcript and instructing the jury instead to rely

on its own collective memory[]”); Frasilus, 46 So. 3d at 1032 (“it is difficult to

imagine circumstances under which a trial court’s failure to advise the jury of its

right to request a read-back could vitiate the fairness of the entire trial[]”); see also

Harris v. Sec’y, Fla. Dep’t of Corr., 558 F. App’x 979, 983 (11th Cir. 2014) (denying a

claim of ineffective assistance of counsel “for failing to object when the trial court

denied the jury’s request for a transcript”); United States v. Pacchioli, 718 F.3d

1294, 1306 (11th Cir. 2013) (“District courts have ‘broad discretion in responding to

a jury request that certain evidence be reread.’” (quoting United States v. Alfonso,

552 F.2d 605, 619 (5th Cir. 1977))).

The trial court did not violate Sugrin’s rights when it answered the jury’s

question. Even if the trial court erroneously answered the jury’s question, Sugrin

does not demonstrate that the trial court’s answer “infected the entire trial[.]” See

Jamerson, 410 F.3d at 690 (quoting Estelle, 502 U.S. at 72). Therefore, Sugrin is not

entitled to relief on Ground Five.

Accordingly, it is ORDERED, ADJUDGED, and DECREED:

1. Sugrin’s second amended petition (Doc. 7) is DENIED. The Clerk is

directed to enter judgment against Sugrin and to close this case.

2. Sugrin’s motion for a hearing (Doc. 22) is DENIED as moot.

3. It is further ORDERED that Sugrin is not entitled to a certificate of

appealability. A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition. 28 U.S.C.

§ 2253(c)(1). The district court or circuit court of appeals must first issue a

certificate of appealability. To obtain a certificate of appealability, Sugrin

must show that reasonable jurists would find debatable both (1) the

merits of the underlying claims and (2) the procedural issues he seeks to

raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 4738, 484

(2000). Sugrin has not made the requisite showing. Accordingly, a

certificate of appealability is DENIED. Leave to appeal in forma pauperis

is DENIED. Sugrin must obtain permission from the circuit court to

appeal in forma pauperis.

DONE and ORDERED in Chambers, in Tampa, Florida, on January 22,

2025.

T\ pee

“TOM BARBER awsts—‘i—s

UNITED STATES DISTRICT JUDGE

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