Afshar v. Secretary, Department of Corrections, Lee County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MORTEZA AFSHAR,

Petitioner,

v. Case No. 2:24-cv-826-JES-NPM

SECRETARY, DEPARTMENT OF

CORRECTIONS,

Respondent.

/

OPINION AND ORDER

This cause is before the Court on the 28 U.S.C. § 2254

petition for habeas corpus relief filed by Morteza Afshar, a

prisoner of the Florida Department of Corrections. (Doc. 1). At

the Court’s direction (Doc 4), Respondent filed a response (Doc.

10), and the petition is ripe for review.

Upon careful consideration of the pleadings, the state court

record, and the entire file, the Court concludes that Afshar is

not entitled to federal habeas corpus relief. Because the

petition is resolved on the record, an evidentiary hearing is not

warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

I. Background and Procedural History

On June 29, 2015, the state charged Afshar by amended

information with one count of sexual battery on a person twelve

years of age or older, a second degree felony, in violation of

Florida Statute § 794.011(5). (Doc. 11-2 at 16). A jury found

Afshar guilty as charged. (Id. at 481). The state court

sentenced him to twelve years’ imprisonment. (Id. at 503–09).

Thereafter, Afshar filed an amended motion for postconviction

relief under Rule 3.850 of the Florida Rules of Criminal Procedure

(Rule 3.850 Motion). (Doc. 11-2 at 561). The postconviction

court summarily denied relief on three claims and ordered an

evidentiary hearing on one claim. (Id. at 850–58). After the

hearing, the postconviction court denied the remaining claim.

(Id. at 946). The Second District Court of Appeal (Second DCA)

affirmed without a written opinion. (Id. at 1107).

On February 25, 2020, Afshar filed an amended motion for

arrest of judgment under Rule 3.610 of the Florida Rules of

Criminal Procedure. (Doc. 11-2 at 1124). The circuit court

denied the motion as untimely. (Id. at 1162). The court

explained that “[a] motion for arrest of judgment must be filed

within ten days of the verdict, and this time limit is

jurisdictional and cannot be extended.” (Id.) The Second DCA

affirmed with string cites. (Id. at 1191).

Afshar then filed a motion and an amended motion to correct

an illegal sentence under Rule 3.800(a) of the Florida Rules of

Criminal Procedure (collectively, Rule 3.800(a) motion). (Doc.

11-2 at 1208–20). The postconviction court denied relief on

December 20, 2022. (Id. at 1391–99). Florida’s Sixth District

Court of Appeal affirmed. (Id. at 1473.)

Afshar signed the present petition on September 6, 2024. (Doc.

1 at 15).1

II. Governing Legal Principles

A. The Antiterrorism Effective Death Penalty Act (AEDPA)

Under the AEDPA, federal habeas relief may not be granted

with respect to a claim adjudicated on the merits in state court

unless the adjudication of the claim:

(1) resulted in a decision that was contrary

to, or involved an unreasonable

application of, clearly established

Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the

facts in light of the evidence presented

in the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2). In this context, “clearly established

federal law” consists of the governing legal principles, and not

the dicta, set forth in the decisions of the United States Supreme

Court at the time the state court issued its decision. White v.

Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549 U.S. 70,

74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

A decision is contrary to clearly established federal law if

the state court either: (1) applied a rule that contradicts the

governing law set forth by Supreme Court case law; or (2) reached

1 Under the “mailbox rule,” an inmate’s pleading is considered

filed on the date delivered to prison authorities for mailing,

which—absent contrary evidence—is the date it was signed.

Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).

a different result from the Supreme Court when faced with

materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A decision involves an unreasonable application of clearly

established law if the state court correctly identifies the

governing legal principle, but applies it to the facts of the

petitioner’s case in an objectively unreasonable manner, Brown v.

Payton, 544 U.S. 133, 134 (2005), or “if the state court either

unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.” Bottoson v. Moore, 234 F.3d 526, 531

(11th Cir. 2000) (quoting Williams, 529 U.S. at 406).

The section 2254(d) standard is both mandatory and difficult

to meet. To demonstrate entitlement to federal habeas relief, the

petitioner must show that the state court’s ruling was “so lacking

in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” White, 572 U.S. at 420 (quoting Harrington v.

Richter, 562 U.S. 86, 103 (2011)). Moreover, when reviewing a

claim under section 2254(d), a federal court must presume that any

“determination of a factual issue made by a State court” is

correct, and the petitioner bears “the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e).

A state court’s summary rejection of a claim, even without

explanation, qualifies as an adjudication on the merits,

warranting deference. Ferguson v. Culliver, 527 F.3d 1144, 1146

(11th Cir. 2008). Generally, in the case of a silent affirmance,

a federal habeas court will “look through” the unreasoned opinion

and presume that the affirmance rests upon the specific reasons

given by the last court to provide a reasoned opinion. See Ylst

v. Nunnemaker, 501 U.S. 797, 806 (1991); Wilson v. Sellers, 138 S.

Ct. 1188, 1192 (2018). However, the presumption that the

appellate court relied on the same reasoning as the lower court

can be rebutted “by evidence of, for instance, an alternative

ground that was argued [by the state] or that is clear in the

record” showing an alternative likely basis for the silent

affirmance. Sellers, 138 S. Ct. at 1196.

B. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established

a two-part test for whether a convicted person is entitled to

relief on the ground that his counsel rendered ineffective

assistance. 466 U.S. 668, 687–88 (1984). A petitioner must

establish that counsel’s performance was deficient, and that the

deficient performance prejudiced the defense. Id. A showing on

only one prong will not support an ineffective assistance claim.

Id. at 687 (“Unless a defendant makes both showings, it cannot be

said that the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.”).

The focus of inquiry under Strickland’s performance prong is

“reasonableness under prevailing professional norms.” Id. at 688.

In reviewing counsel’s performance, a court must adhere to the

presumption that “counsel’s conduct falls within the wide range of

reasonable professional assistance[.]” Id. at 689 (citation

omitted). A court must “judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as

of the time of counsel’s conduct,” applying a highly deferential

level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470,

477 (2000) (quoting Strickland, 466 U.S. at 690). Proving

Strickland prejudice “requires showing that counsel’s errors were

so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland, 466 U.S. at 687.

C. Exhaustion and Procedural Default

The AEDPA precludes federal courts, absent exceptional

circumstances, from granting habeas relief unless a petitioner has

exhausted all means of available relief under state law. 28 U.S.C.

§ 2254(b)(1). Exhaustion of state remedies requires that the

state prisoner “fairly presen[t] federal claims to the state courts

in order to give 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). Under the similar doctrine

of procedural default, “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.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).

To avoid dismissal under these rules, a petitioner must

extablish objective cause for failing to properly raise the claim

in state court and actual prejudice from the alleged constitutional

violation. Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1179–

80 (11th Cir. 2010). To show cause, a petitioner “must demonstrate

that some objective factor external to the defense impeded the

effort to raise the claim properly in state court.” Wright v.

Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show prejudice, a

petitioner must demonstrate a reasonable probability the outcome

of the proceeding would have differed. Crawford v. Head, 311 F.3d

1288, 1327–28 (11th Cir. 2002). A second exception, known as the

“fundamental miscarriage of justice,” only occurs where a

“constitutional violation has probably resulted in the conviction

of one who is actually innocent[.]” Murray v. Carrier, 477 U.S.

478, 479–80 (1986).

III. Discussion

Afshar raises four grounds for relief in this habeas petition.

His first three grounds allege ineffective assistance of trial

counsel Jason Kruska and Jason Rios (collectively, “Counsel”). In

his fourth ground, Afshar alleges that he was tried, convicted,

and sentenced for an uncharged crime. Afshar raised the

ineffective assistance claims in his Rule 3.850 Motion. They were

denied by the postconviction court, and the denial was affirmed by

the appellate court without a written opinion. (Doc. 11-2 at

1107). Accordingly, these claims were exhausted, and this Court

looks through the appellate court’s summary affirmance, and unless

stated otherwise, presumes that the Second DCA’s affirmance rested

upon the specific reasons given by the postconviction court.

Sellers, 138 S. Ct. at 1196. As explained below, Afshar’s due

process claim (Ground Four) must be dismissed as unexhausted.

A. Ground One

Afshar claims that Counsel was constitutionally ineffective

for advising him not to testify at trial. (Doc. 1 at 5). He

asserts that he was “misadvised and misled as to the necessity of

testifying on his own behalf in order to place evidence of his

theory of defense before the jury[.]” (Id. at 25). He argues

that the error was compounded because “Counsel had promised the

jury in opening statements that they would hear Petitioner’s

testimony.” (Id.)

Afshar raised this claim in his Rule 3.850 Motion. The

postconviction court concluded that it could not determine “from

the face of the record” whether Counsel’s advice was reasonable,

and ordered an evidentiary hearing. (Doc. 11-2 at 853).

At the hearing, Afshar testified that he wanted (and planned)

to testify at trial because the only evidence against him was his

wife’s testimony.2 (Doc. 11-2 at 959, 986). He asserted that,

before trial, Kruszka tried to talk him out of testifying because

of his (Afshar’s) limited English skills. (Id. at 987–88, 1007).

He testified that Rios also advised against testifying because of

Afshar’s language barrier and because he was originally from Iran.

(Id. at 989). Afshar admitted that he knew that the decision

whether to testify was his own, and that the trial judge had

emphasized that point to him. (Id. at 990).

In stark contrast to Afshar’s testimony, Kruszka said that he

told Afshar he should testify at trial and that “all the way up

until the point where he decided not testify, it was my expectation

that he would testify at trial.” (Doc. 11-2 at 997). Kruszka

explained that the statement Afshar had given to law enforcement

was not “entirely advantageous to him” and that there were portions

of his statement and aspects of his relationship with the victim

that the defense “wanted to get out.” (Id. at 998–99).

Similarly, Rios denied advising Afshar not to testify. (Id. at

1003). Rios explained that he was not the primary counsel on the

case and “never wanted to advise [Afshar] whether he should testify

or not.” (Id. at 1004).

The postconviction court resolved the dispute by finding

2 Afshar was accused of sexually assaulting his wife.

“credible the testimony of attorneys Kruszka and Rios that neither

one of them affirmatively advised [Afshar] not to testify at

trial.” (Doc. 11-2 at 951). The Court further found that

Counsel had “made a reasonable strategic decision in advising

[Afshar] to testify. [Afshar] exercised his own free will when

he chose not to testify against the advice of counsel.” (Id.

(emphases in original)). Therefore, the postconviction court

concluded, Afshar “has failed to meet his burden of proof as to

either prong of Strickland.” (Id.)

Federal habeas courts have “no license to redetermine

credibility of witnesses whose demeanor has been observed by the

state trial court, but not by them.” Marshall v. Lonberger, 459

U.S. 422 (1983); Consalvo v. Sec’y, Dep’t of Corr., 664 F.3d 842

(845) (11th Cir. 2011)(“Determining the credibility of witnesses

is the province and function of the state courts, not a federal

court engaging in habeas review.”). In short, the credibility of

a witness is a question of fact, and the state courts’ finding on

this question is cloaked with a presumption of correctness.

Consalvo, 664 F.3d at 845; 28 U.S.C. § 2254(e). A court may not

disturb the state courts’ finding unless it was “ an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Afshar argues that the postconviction court’s credibility

determination was unreasonable, and points out that Counsel argued

in closing that Afshar did not need to testify since “all the

information that you need is in [Afshar’s statement to police].”

(Doc. 1 at 27). Afshar claims that this argument shows that both

Kruszka and Rios lied under oath at the evidentiary hearing because

Counsel could have argued to the jury (in closing) that Afshar

chose not to testify because the evidence to convict him was

insufficient. (Id. at 26–27). However, Afshar does not explain

why Kruszka told the jury in his opening statement that Afshar was

going to testify if, as he alleges, Kruszka had already advised

Afshar against doing so. (See Doc. 11-2 at 217–18). Applying

deference to the state courts’ credibility determinations and

considering the record evidence supporting Kruska’s claim that he

advised Afshar to take the stand, the Court concludes that the

state courts’ findings were reasonable. Thus, the courts’

rejection of Ground One on both Strickland prongs was not “so

lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for

fairminded disagreement.” White, 572 U.S. at 420. Afshar is not

entitled to federal habeas corpus relief on Ground One.

B. Ground Two

Afshar asserts that Counsel was constitutionally ineffective

for failing to call the victim’s 16-year-old son, Mohammed Ehson,

to testify at trial. (Doc. 1 at 7). He asserts that Ehson was

the only other person home when the alleged rape occurred and that

he would have testified if subpoenaed to do so. (Id. at 29).

Afshar raised this claim in his Rule 3.850 Motion, and the

postconviction court summarily denied it on Strickland’s prejudice

prong. (Doc. 11-2 at 854, 952). The postconviction court noted

that the “victim testified that her son was asleep at the time,

the incident was not loud and violent, she did not tell the son

what happened, and she did not yell or scream during the incident.”

(Id. at 854.) The court then determined that Afshar’s claim of

prejudice “is purely speculative, which cannot be a basis for

postconviction relief.” (Id.) Florida’s Second DCA affirmed

without a written opinion. (Id. at 1107).

Afshar argues that the state courts’ rejection of this claim

was unreasonable because: (1) an evidentiary hearing “was

necessary in order to evaluate counsel’s performance and fully

develop the state court record”; and (2) “the victim’s testimony

with regard to what she believed her son may or may not have heard

was an improper basis for summary denial.” (Doc. 2 at 30). These

arguments do not carry the day for two reasons.

First, to the extent Afshar argues that the state court erred

under Florida law by failing to hold an evidentiary hearing on

this claim, the argument is not cognizable on federal habeas corpus

review and is subject to dismissal for that reason alone. See

Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987) (“Neither

the state court’s failure to hold a hearing on petitioner’s 3.850

motion nor its failure to attach the relevant portions of the

record in any way undermines the validity of petitioner’s

conviction.”); Quince v. Crosby, 360 F.3d 1259, 1261–62 (11th Cir.

2004) (recognizing that “while habeas relief is available to

address defects in a criminal defendant's conviction and sentence,

an alleged defect in a collateral proceeding does not state a basis

for habeas relief”).

Next, “Strickland places the burden on [the petitioner], not

the State, to show a ‘reasonable probability’ that the result would

have been different” had Counsel performed as Afshar now argues he

should have. Wong v. Belmontes, 558 U.S. 15, 27 (2009) (quoting

Strickland, 466 U.S. at 694). Here, Afshar only speculates that

Ehson’s testimony would have resulted in a different outcome at

trial. See Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir.

2001) (“Johnson offers only speculation that the missing witnesses

would have been helpful. This kind of speculation is

‘insufficient to carry the burden of a habeas corpus petitioner.’”)

(quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.

1985)); Jones v. State, 845 So. 2d 55, 64 (Fla. 2003)

(“Postconviction relief cannot be based on speculative

assertions.”). In fact, Afshar speculates as to the actual

substance of Ehson’s testimony. He has not offered Ehson’s sworn

testimony detailing what he would have said if deposed or called

to testify at trial. Without such a showing, Afshar cannot

demonstrate Strickland prejudice. See United States v. Ashimi,

932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony

of a putative witness must generally be presented in the form of

actual testimony by the witness or on affidavit. A defendant

cannot simply state that the testimony would have been favorable;

self-serving speculation will not sustain an ineffective

assistance claim.”).

The state courts reasonably concluded that Afshar did not

show Strickland prejudice from Counsel’s failure to call Ehson as

a witness at trial. Afshar is not entitled to federal habeas

relief on Ground Two.

C. Ground Three

Afshar next asserts that Counsel was constitutionally

ineffective for failing to call the emergency room physician, Dr.

Schulz, who examined the victim upon her arrival at the hospital.

(Doc. 1 at 8). He explains that Dr. Schulz “noted no signs of

forced sexual contact” which would have supported his “defense

theory of fabrication.” (Id. at 33).

Afshar raised this claim in his Rule 3.850 Motion, and the

postconviction court once again denied the claim on Strickland’s

prejudice prong. The postconviction court noted that “[t]he

victim’s medical records, which included medical treatment

provided by Dr. Schulz and Ms. Paradiso [a nurse practitioner and

sexual assault nurse examiner], were admitted and published to the

jury, without objection; therefore, the information that Dr.

Schulz could have provided via testimony actually did go to the

jury.” (Doc. 11-3 at 856). The postconviction court explained:

Had Dr. Schulz testified at trial, his

testimony would have been consistent with the

victim’s ER medical records, and the testimony

from the ER nurse. Defendant failed to allege

how Dr. Schulz’s testimony would have a

reasonable probability of changing the outcome

when the medical record evidence from the

hospital visit, the sexual examination, the

sexual assault kit, testimony from Ms.

Paradiso, and testimony from Ms. Rommel[an

Florida Department of Law Enforcement crime

laboratory analyst] were presented to the

jury.

(Id. at 857). Florida’s Second DCA affirmed without a written

opinion. (Id. at 1107). Afshar concedes that some of Dr.

Schulz’s testimony may have been cumulative, but argues that the

postconviction court overlooked the fact that the testimony would

have supported his defense theory of fabrication and “[a]s such,

an evidentiary hearing was necessary to explore Counsel’s

reasoning for not calling this doctor, and to allow Petitioner the

opportunity to sustain his burden in support of a new trial.”

(Doc. 1 at 33).

Ground Three suffers from the same defects as Ground Two.

Namely, Afshar cannot base a federal habeas claim on a defect in

state postconviction proceedings. Thus, the postconviction

court’s failure to hold an evidentiary hearing on this ground does

not entitle him to federal habeas corpus relief. Likewise, Afshar

does not offer sworn testimony from Dr. Schulz detailing what he

would have said if called to testify at trial. Therefore, the

nature and helpfulness of Dr. Schulz’s testimony is merely

speculative. See discussion supra Ground Two. Moreover, the same

information that could have been elicited from Dr. Schulz’s

testimony—that the victim did not show obvious physical trauma

from the sexual assault—was introduced through other testimony and

evidence offered to the jury. Counsel is not ineffective for

failing to present redundant evidence. See Van Poyck v. Fla.

Dep’t of Corr., 290 F.3d 1318, 1324 n.7 (11th Cir. 2002) (“A

petitioner cannot establish ineffective assistance by identifying

additional evidence that could have been presented when that

evidence is merely cumulative.”).

Afshar has not shown deficient performance or resulting

prejudice from Counsel’s failure to call Dr. Schulz as a defense

witness. Accordingly, the state courts reasonably rejected this

claim on Strickland’s prejudice prong, and Afshar is not entitled

to federal habeas relief on Ground Three.

D. Ground Four

Afshar asserts that his right to due process was violated

“when he was tried, convicted and sentenced for an uncharged

crime.” (Doc. 1 at 10). Specifically, he asserts that he was

initially charged under Florida Statute § 794.011(5) for a sexual

battery that occurred on November 11, 2014. (Id. at 35; Doc. 11-

2 at 11). He was later charged in an amended information that did

not clarify the applicable subsection of section 794.011(5). (Id.

at 36). Afshar claims that the verdict was thus based on a charge

not made in the indictment. (Id. at 35–36.)3

Afshar raised this claim in his motion for an arrest of

judgment. (Doc. 11-2 at 1124). However, the circuit court

declined to consider the claim’s merits because the motion was

filed outside the ten-day limit for filing such a motion. (Doc.

11-2 at 1162). The Sixth DCA affirmed with string cites. (Id.

at 1191). Likewise, when Afshar re-raised the matter in his motion

3 This claim is dismissed as unexhausted. See discussion

infra. However, by way of explanation, the Court notes that

Plaintiff was convicted for a crime charged in the information.

See 28 U.S.C. § 2254(b)(2). The amended information was merely

imprecise. Before October 1, 2014, sexual battery (without force)

on a person 12 or older was a second-degree felony. See Fla.

Stat. § 794.011(5) (2013). Section 794.011 was amended, effective

October 1, 2014, to re-classify sexual battery by an adult on a

person between the ages of 12 and 18 as a first-degree felony.

See § Fla. Stat. § 794.011(5) (2014), Ch. 2014-4, §§ 3, 18, at 5,

40, Laws of Fla. As amended, section 794.011(5) contained several

subsections that delineate the degree of felony depending upon the

ages of the perpetrators and victims. Fla. Stat. § 794.011(5)(a)–

(d). Afshar’s amended information erroneously retained the

“twelve years or older” language. (Doc. 11-2 at 16, 485, 503).

Although the amended information did not specify the subsection of

section 794.011(5) under which Afshar was charged, he was charged

with (and convicted of) a second-degree felony. Given that Afshar

and the victim were both over eighteen years of age when the crime

occurred, the only applicable subsection was section

794.011(5)(b). (Doc. 11-2 at 16); see also the trial court’s

“Order Denying Defendant’s 3.800(a) Amended Motion” (“The Court

finds that the amended information, taken as a whole was sufficient

to support the Defendant’s conviction and sentence for violation

of Florida Statute section 794.011(5)(b)”).

to correct illegal sentence (id. at 1459), the trial court

concluded that the information did not fail to charge the crime

for which Afshar was convicted, and he had “waived any defects in

the information.” (Id. at 1395). The Sixth DCA affirmed without

a written opinion. (Id. at 1473).

A federal habeas court “will not review a question of federal

law decided by a state court if the decision of that court rests

on a state law ground that is independent of the federal question

and adequate to support the judgment.” Coleman v. Thompson, 501

U.S. 772, 729 (1991). This doctrine “applies to bar federal habeas

[relief] when a state court declined to address a prisoner’s

federal claims because the prisoner had failed to meet a state

procedural requirement. In these cases, the state judgment rests

on independent and adequate state procedural grounds.” Id. at

729–30. Here, the state courts “clearly and expressly” stated

that its rejection of this claim was based on a procedural default;

Afshar did not timely raise this claim, and by failing to do so,

he waived it. See Fla. R. Crim. P. 3.590 (stating that “a motion

. . . in arrest of judgment . . . may be made. . . within 10 days

after the rendition of the verdict or the finding of the court”);

State v. Perkins, 977 So.2d 643, 645 (Fla. 5th DCA 2008) (“It has

long been Florida law that technical deficiencies or defects in

form may be waived by failure to make timely objection or by a

plea to the merits.”); McMillan v. State, 832 So.2d 946, 948 (Fla.

5th DCA 2002) (“Where the charging document is merely imperfect or

imprecise, the failure to challenge it by motion to dismiss waives

defect.”).

In short, Afshar procedurally defaulted this claim, and as a

result, it was not exhausted in state court. He does not advance

cause for his failure to timely raise the claim in state court or

allege facts showing that a fundamental miscarriage of justice

occurred. Accordingly, Ground Four is dismissed under 28 U.S.C.

§ 2254(b)(1)(A).

IV. Conclusion

Based on the foregoing, it is ORDERED that:

1. The amended 28 U.S.C. § 2254 petition filed by Morteza

Afshar is DENIED. Grounds One, Two, and Three are

denied on the merits, and Ground Four is dismissed as

procedurally barred and unexhausted.

2. The Clerk is DIRECTED to enter judgment in favor of

Respondent and against Afshar, deny any pending motions

as moot, terminate any deadlines, and close this case.

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). Rather, a district court or circuit

justice or judge must first issue a certificate of appealability

(COA). “A [COA] may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c) (2). To make this substantial showing, a

petitioner “must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims

debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000),

or that “the issues presented [are] adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537

U.S. 322, 336 (2003). When, as here, the district court has

rejected a claim on procedural grounds, the petitioner must show

that “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack,

529 U.S. at 484.

Upon consideration of the record, the Court declines to issue

a COA. Because Afshar is not entitled to a COA, he is not entitled

to appeal in forma pauperis.

DONE and ORDERED in Fort Myers, Florida on February 5th, 2025.

fo ao Afr

aff le fy dE, Ah Zook

J9GHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Morteza Afshar, counsel of record

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