Verdieu v. United States of America

Filing 11

OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:11-cr-66-FTM-29DNF), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 6/15/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BARRY FRANZ VERDIEU,
Petitioner,
v.

Case No: 2:14-cv-358-FtM-29MRM
Case No. 2:11-CR-66-FTM-29DNF

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion to
Vacate, Set Aside, or Correct Sentence (Cv. Doc. #1; Cr. Doc.
#141) 1 filed on June 27, 2014.
Opposition

to

Motion

(Cv.

The government filed a Response in

Doc.

#6)

on

August

29,

2014.

The

petitioner filed a Reply (Cv. Doc. #7) on September 18, 2014.
I.
On July 6, 2011, a federal grand jury in Fort Myers, Florida
returned a two-count Indictment (Cr. Doc. #3) charging petitioner
and

his

co-defendant

John

Peterson

Alexis

in

Count

One

with

conspiracy to possess with intent to distribute oxycodone in
violation of Title 21, United States Code, Sections 841(a)(1) and

1The

Court will make references to the dockets in the instant
action and in the related criminal case throughout this opinion.
The Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”

841(b)(1)(C), all in violation of Title 21, United States Code,
Sections 846.

In Count Two, petitioner and his co-defendant were

charged with knowingly carrying a firearm and ammunition during
and in relation to a drug trafficking crime, knowingly possessing
the firearm and ammunition in furtherance of the drug trafficking
crime identified in Count One, and knowingly aiding and abetting
the carrying and possession in violation of Title 18, United States
Code, Section 924(c)(1)(A)(I) and § 2.
Petitioner proceeded to trial as to both counts, and codefendant John Peterson Alexis proceeded to trial as to Count Two
only.

After a 3-day trial, the jury rendered a Verdict of guilty

on both counts for petitioner, and as to the co-defendant on Count
Two.

(Cr. Doc. #78.)
Prior to sentencing, trial counsel Robert P. Harris filed a

Sentencing Memorandum and Request for Reasonable Sentence (Cr.
Doc. #90).

On April 23, 2012, the Court sentenced petitioner to

a term of imprisonment of 60 months as to Count One, and a term of
60 months as to Count Two to be served consecutively to Count One,
followed

by

a

term

of

supervised

release.

(Cr.

Doc.

#94.)

Judgment (Cr. Doc. #97) was filed on April 24, 2012, and a Notice
of Appeal (Cr. Doc. #99) was filed the next day.
The Court permitted attorney Robert P. Harris to withdraw,
and Scott Robbins was appointed to represent petitioner on appeal.
(Cr. Doc. #112.)

On appeal, petitioner and his co-defendant both

- 2 -

argued that the evidence at trial was insufficient to sustain the
conviction as to Count Two.

(Cr. Doc. #139.)

On May 30, 2013,

the Eleventh Circuit affirmed the conviction and sentence finding
that

the

evidence

furtherance

of

.

was
.

.

sufficient
.

to

possesses

convict
prong”

of

under

the

18

U.S.C.

“in
§

924(c)(1)(A), and the evidence at trial was sufficient to establish
a nexus between the pistol and the drug transaction.

(Id., pp.

5-6.)
Petitioner’s current motion was signed and filed by counsel
on June 27, 2014.

Since a petitioner “gets the benefit of up to

90 days between the entry of judgment on direct appeal and the
expiration of the certiorari period 1,” Kaufmann v. United States,
282 F.3d 1336, 1338 (11th Cir. 2002), the motion was timely filed.
See also 28 U.S.C. § 2255(f).
II.
Petitioner’s two arguments focus on Count Two only, i.e., the
carrying of a firearm in relation to a drug trafficking offense,
or possession in furtherance of a drug trafficking offense, or
knowingly aiding and abetting in the carrying or possession in
violation of 18 U.S.C. § 924(c)(1)(A)(i) and § 2.

Petitioner

argues ineffective assistance of counsel for failure to call an

The issuance of the mandate is irrelevant to determining the
finality of the judgment. Close v. United States, 336 F.3d 1283,
1285 (11th Cir. 2003).
1

- 3 -

essential witness (Carol Smith) to verify petitioner’s testimony;
and, for the failure to reasonably investigate and interview the
witness (Carol Smith) to corroborate petitioner’s testimony that
he did not know that the gun was in the center console area of the
vehicle.
A. Evidentiary Hearing Standard
A district court shall hold an evidentiary hearing on a habeas
petition “unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief. . .
.” 28 U.S.C. § 2255(b).

“[I]f the petitioner alleges facts that,

if true, would entitle him to relief, then the district court
should order an evidentiary hearing and rule on the merits of his
claim.”

Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.

2002) (citation omitted).

However, a “district court is not

required to hold an evidentiary hearing where the petitioner’s
allegations are affirmatively contradicted by the record, or the
claims are patently frivolous.”

Id. at 715. See also Gordon v.

United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (a hearing is
not

necessarily

required

counsel is asserted).

whenever

ineffective

assistance

of

To establish entitlement to an evidentiary

hearing, petitioner must “allege facts that would prove both that
his counsel performed deficiently and that he was prejudiced by
his counsel’s deficient performance.”

Hernandez v. United States,

778 F.3d 1230, 1232-33 (11th Cir. 2015).

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Viewing the facts alleged

in the light most favorable to petitioner, the Court finds that
the record establishes that petitioner is not entitled to relief,
and therefore an evidentiary hearing is not required.
B. Ineffective Assistance of Counsel Standard
The legal standard for ineffective assistance of counsel
claims in a habeas proceeding is well established.

To prevail on

a claim of ineffective assistance of counsel, a habeas petitioner
must demonstrate both that (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness, and
(2) prejudice resulted because there is a reasonable probability
that,

but

for

the

deficient

performance,

proceeding would have been different.
___,

134

S.

Ct.

1081,

1087-88

the

result

of

the

Hinton v. Alabama, ___ U.S.

(2014)

(citing

Strickland

v.

Washington, 466 U.S. 668, 687, 694 (1984) and Padilla v. Kentucky,
559 U.S. 356, 366 (2010)).

“Because a petitioner's failure to

show either deficient performance or prejudice is fatal to a
Strickland claim, a court need not address both Strickland prongs
if the petitioner fails to satisfy either of them.”

Kokal v.

Sec'y, Dep't of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010)
(citations omitted).
The

proper

measure

of

attorney

performance

is

simply

reasonableness under prevailing professional norms considering all
the

circumstances.

omitted).

Hinton,

134

S.

Ct.

at

1088

(citations

“A fair assessment of attorney performance requires

- 5 -

that every effort be made to eliminate the distorting effects of
hindsight,

to

reconstruct

the

circumstances

of

counsel's

challenged conduct, and to evaluate the conduct from counsel's
perspective at the time.”

Strickland, 466 U.S. at 689.

See also

Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (the Court looks to
facts at the time of counsel’s conduct).

This judicial scrutiny

is

adheres

highly

deferential,

and

the

Court

to

a

strong

presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.
90.

Strickland, 466 U.S. at 689-

To be objectively unreasonable, the performance must be such

that no competent counsel would have taken the action.

Rose v.

McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611
F.3d 1259, 1290 (11th Cir. 2010).

Additionally, an attorney is

not ineffective for failing to raise or preserve a meritless issue.
United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992);
Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).
C. Factual Background
On

appeal,

the

Eleventh

Circuit

summarized

the

background as follows:
On June 22, 2011, Verdieu rented a Chevrolet
Traverse sport utility vehicle from Enterprise
Car Rental in West Palm Beach, Florida. Two
days later, on June 24, Verdieu and Alexis
drove the Traverse to the Edison Mall in Fort
Meyers [sic] where Alexis had arranged to
purchase 3,000 oxycodone pills for $10,500
from a confidential informant (Cl) cooperating
with the Drug Enforcement Administration

- 6 -

factual

(DEA). DEA agents and local law enforcement
officers were waiting for Verdieu and Alexis
at the mall.
After parking the Traverse in the mall parking
lot, Verdieu and Alexis entered the mall,
where Alexis met the CI in the food court.
When Alexis failed to persuade the CI to
conduct the drug sale in the parking lot,
Alexis and Verdieu returned to the Traverse so
that Alexis could retrieve the cash. Verdieu
then remained in the car while Alexis went
back to the food court to finish the
transaction.
At the food court Alexis and the CI prepared
to exchange “a big wad of cash” for a bag of
pills. The transaction was interrupted when
Alexis “received a phone call from someone .
. . and abruptly got up and . . . left.”
Alexis returned to the Traverse, where Verdieu
was waiting in the driver’s seat, and got in
the front passenger side.
At this point DEA agents moved in and arrested
the pair. As agents were handcuffing Verdieu,
one asked him if he had any guns.
Verdieu
responded that he had one in the back seat of
the Traverse, in a laptop computer bag.
Although the agents did not find the gun in
the back seat or the laptop bag, they found a
fully loaded .38 caliber semi-automatic pistol
between the driver’s seat and the front
passenger seat, in the Traverse’s open center
console. The firearm was located alongside a
partially unwrapped sandwich, an open bottle
of water, a camera case, a phone charger, and
a CD. The gun was positioned in such a way
that it could be easily withdrawn from the
Traverse's console by either the driver or the
front passenger.
The agents also found
$10,500 in Verdieu's pants pocket.
(Cr. Doc. #139, pp. 2-3); United States v. Verdieu, 520 F. App'x
865, 866 (11th Cir. 2013).

- 7 -

During trial, Special Agent Price testified that the semiautomatic pistol was found in the console between the driver’s
seat and the passenger’s seat of the vehicle rented by petitioner.
(Cr. Doc. #117, pp. 192, 213.)

The pistol was loaded, with the

barrel facing the rear of the vehicle, and the magazine contained
five rounds of ammunition in addition to the round that was
chambered.

(Id., pp. 193, 195.)

Also in the center console were

a bottle a water, a sandwich, a camera case, and a phone charger.
(Id., p. 195.)
An investigator with the Department of Agriculture Consumer
Services, Division of Licensing, testified that petitioner applied
for a concealed weapons permit on September 11, 2006, and was
issued the permit on January 16, 2007.

The permit was suspended

on June 29, 2010, and notice was sent by certified mail to
petitioner’s listed address in West Palm Beach, Florida.
Doc. #118, pp. 54-55.)

(Cr.

Avery Vaughn Milstead of First Choice Gun

& Ammo testified that petitioner purchased the Jimenez .380 handgun
and another gun from him in West Palm Beach, Florida, on September
11, 2010.

(Id., pp. 79-81.)

Petitioner admitted upon arrest that he had a firearm in the
car, and indicated it was in his laptop bag.
36.)

(Cr. Doc. #119, p.

The vehicle was a rental car rented by petitioner because

his fiancé was pregnant and she needed the car to take the kids to
school while her car was being repaired.

- 8 -

Petitioner testified he

used the car on the day of the arrest because his fiancé was done
with it, and he figured he could conduct his air conditioner
related business and be back the next day.

(Id., pp. 37-38.)

relevant here, petitioner further testified:
A. Well, the firearm was in my laptop bag and
since the car was in the shop, we parked the
car in our garage and that morning when she
was taking the kids to school, she noticed
that my laptop bag was in the back seat, so
she removed the firearm and put it in the glove
-- inside the center console so the kids
wouldn't mess with it because they -- they go
through my stuff at times. But it was the right
thing to do because she didn't want the
firearm in the back seat with the kids.
Q. Okay. I think I'm a little confused. You
said that you live with your mother?
A. I live with my mother currently because of
the situation.
Q. All right. At the time you lived with your
fiancé?
A. Right, yes.
Q. And children?
A. Yes. The judge would allow me to stay with
my mother during this whole -- this whole
case.
Q. All right. So now did you know that the
firearm was in the center console?
A. No, I did not.
Q. And when the police -- did the police have
you on the ground at the time you told them
where you thought the firearm was?
A. Yes, I was.

- 9 -

As

Q. Did you have any reason to lie to them at
that point?
A. No, I did not.
Q. Were you attempting to be cooperative?
A. I was fully cooperative.
. . .
Getting back to the firearm, you weren't sure
that it was in the center console?
A. No, I was not.
Q. But did you put a hamburger in that center
console at some point?
A. No, I did not. That hamburger was already
in there on top of the firearm.
Q. When did the -- when did the hamburger get
there?
A. Well, it -- I'm not sure what it was. It
was – it was something that was in aluminum
foil and with -- with a paper towel around it.
So I figure it was something that she was
eating, maybe.
Q. You figure that now?
A. Yes.
Q. What do you mean there was a towel around
it?
. . .
A. There was aluminum foil, paper towel, as
far as in the picture. That's how she carries
the sandwiches she would put a sandwich that
she made in aluminum foil and paper towel to
wipe her mouth after she ate it.
Q. So the fact that the firearm was butt up,
I guess as they say, did that have any
significance to you?

- 10 -

A. No, sir.
Q. You didn't put it there?
A. I didn't put it there.
(Id., pp. 38-39, 41, 42.)

Petitioner testified that he did not

know that his concealed weapons permit had been suspended since he
had faxed back the required information and assumed it was “back
in operation.”

(Id., p. 43.)

During closing argument, the

government argued:
And Mr. Verdieu would have you believe that
that's just something his wife left in that
rental car previously. And he would have you
believe that his wife moved, or girlfriend –
fiancé, I think he referred to her, moved the
gun from the computer bag to the center
console, placing it butt up so that anyone who
needed it would have easy access to it. He
didn't know she had done that because she
didn't tell him. A tall tale, ladies and
gentlemen? You alone are the judges of that.
(Id., p. 62.)
The Court instructed the jury that petitioner could only be
found

guilty

if

the

facts

as

to

Count

Two

showed

beyond

a

reasonable doubt that petitioner conspired to possess with intent
to distribute Oxycodone as charged in Count One; that petitioner
knowingly carried or possessed a firearm; and that petitioner
either carried the firearm during and in relation to the drug
trafficking crime, or that petitioner possessed it in furtherance
of the drug trafficking crime.

(Cr. Doc. #119, p. 111.)

- 11 -

D. Merits
“Concerning

the

analysis

of

attorney

competence,

the

protections of the Sixth Amendment necessarily extend to counsel’s
activities

before

trial,

when

consultation,

thorough

investigation and preparation [are] vitally important.”

going

Mulligan

v. Kemp, 771 F.2d 1436, 1440 (11th Cir. 1985) (quoting Powell v.
Alabama,

287

U.S.

45,

57

(1932)).

Evaluating

counsel’s

effectiveness is from the “standpoint of what was possible at the
time”, and the evaluation “of whether an attorney has adequately
conducted pre-trial investigation is complex, depending upon such
factors

as

the

number

of

issues

in

the

case,

the

relative

complexity of those issues, the strength of the government's case,
and the overall strategy of trial counsel.”

Mulligan, 771 F.2d

at 1440 & 1441 (citation omitted).
[S]trategic
choices
made
after
thorough
investigation of law and facts relevant to
plausible
options
are
virtually
unchallengeable; and strategic choices made
after less than complete investigation are
reasonable precisely to the extent that
reasonable professional judgments support the
limitations on investigation. In other words,
counsel has a duty to make reasonable
investigations or to make a reasonable
decision that makes particular investigations
unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be
directly assessed for reasonableness in all
the circumstances, applying a heavy measure of
deference to counsel's judgments.

- 12 -

Strickland, 466 U.S. at 690–91.

“[T]here is no absolute duty to

investigate particular facts or a certain line of defense, although
a

complete

failure

to

investigate

may

constitute

performance of counsel in certain circumstances.”

deficient

Fugate v. Head,

261 F.3d 1206, 1217 (11th Cir. 2001).
Petitioner argues that his fiancé’s testimony would have
corroborated and given credibility to his own testimony at trial
that he did not know that the gun was in the center console during
the drug trafficking.

As a preliminary matter, the Court notes

that no affidavits or statements from Carol Smith were attached in
support of the petition, although counsel states that they could
readily be produced if required. 2

The Court will only consider

what was timely submitted for filing with the motion.

Arguing

that an evidentiary hearing is required without first providing a
factual basis for the hearing does not entitle petitioner to a
hearing.

Rather, to be entitled to a hearing, petitioner must

sufficiently allege facts supporting both deficient performance
and prejudice.

Hernandez v. United States, 778 F.3d at 1232-33.

1. Reasonableness Prong
Speculation as to the substance of Carol Smith’s testimony,
and that it would have been helpful, is insufficient to carry

Counsel argues that if the Court were to find that an affidavit
is required, the “remedy” would be to require petitioner to
supplement or amend the motion, not dismissal. (Cv. Doc. #7, p.
3.) No legal support is provided for this position.
2

- 13 -

petitioner’s burden to show that counsel’s conduct was deficient.
“Which witnesses, if any, to call, and when to call them, is the
epitome of a strategic decision, and it is one that we will seldom,
if ever, second guess.”

Waters v. Thomas, 46 F.3d 1506, 1512

(11th Cir. 1995) (citation omitted). 3

Carol Smith’s testimony may

or may not have been consistent with petitioner’s version of
events, but would obviously have been viewed as biased given her
relationship to petitioner.

Even if consistent, a reasonable

attorney would not necessarily have called her as a witness subject
to cross-examination by the government.

Petitioner’s “mere

speculation”, e.g., Streeter v. United States, 335 F. App'x 859,
864 (11th Cir. 2009), fails to support a finding that counsel’s
failure to call Carol Smith rendered his assistance ineffective.
Chandler v. United States, 218 F.3d 1305, 1319 (11th Cir. 2000)
(“Considering the realities of the courtroom, more is not always
better.

Stacking defenses can hurt a case.”).

Petitioner

elected

to

testify,

and

testimony was not believable to the jury.

it

would

appear

his

United States v. Brown,

53 F.3d 312, 314 (11th Cir. 1995) (“[W]hen a defendant chooses to

“When a defense counsel fails to investigate his client’s only
possible defense, although requested to do so by him; and fails to
subpoena witnesses in support of the defense, it can hardly be
said that the defendant has had the effective assistance of
counsel.”
Gomez v. Beto, 462 F.2d 596, 597 (5th Cir. 1972).
However, in this case, there is no argument or affidavit to
indicate that petitioner told his attorney to investigate his
fiancé, call her as a witness, or that she was willing to testify.
3

- 14 -

testify, he runs the risk that if disbelieved “the jury might
conclude

the

establishes

opposite
that

of

counsel

his

testimony

provided

is

true.”).

ineffective

Nothing

assistance

deciding not to call petitioner’s fiancé as a witness.

in

Based on

the testimony and overwhelming evidence presented at trial of
petitioner’s possession, access, and ownership of the firearm, the
Court

finds

that

petitioner

has

not

shown

that

counsel’s

performance was deficient.
2. Prejudice Prong
Petitioner was charged in Count Two under a statute that
provides: “. . . any person who, during and in relation to any
crime of violence or drug trafficking crime [ ] for which the
person may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment provided
for such crime of violence or drug trafficking crime . . . be
sentenced to a term of imprisonment of not less than 5 years.”
U.S.C. § 924(c)(1)(A)(i).

18

The Jury found petitioner guilty of

Count Two, and specifically found that petitioner both carried the
firearm during and in relation to the drug trafficking crime, and
that petitioner possessed the firearm in furtherance of the drug
trafficking crime.

(Cr. Doc. #78, p. 4.)

The Court defined possession to the jury to include actual
and constructive possession, and as follows:

- 15 -

To possess a firearm in furtherance of a crime
means that the firearm helped, promoted, or
advanced the crime in some way. To carry a
firearm is to transport or control a firearm
in a way that makes it available for immediate
use while committing the drug trafficking
crime. To carry a firearm is not limited to
the carrying of firearms on the person. It
also applies to a person who knowingly
possesses and conveys a firearm in a vehicle,
including the locked glove compartment or
trunk of a car which the person accompanies.
To carry a firearm during a crime means that
there is a temporal link between the carrying
of the firearm and the drug trafficking crime.
That is, the carrying of the firearm must have
occurred at the same time as the drug
trafficking violation.
To carry a firearm in relation to a crime means
that there must be a firm connection between
the defendant, the firearm, and the drug
trafficking crime. The firearm must have
helped with some important function or purpose
of the crime, and not simply have been there
accidentally or coincidentally.
(Id., pp. 112-113) (emphasis added).

While it is true that the

possession of the firearm cannot be “coincidental or entirely
‘unrelated’ to the crime”, it is “in relation to” if it facilitates
or has the potential to facilitate the drug trafficking offense.
Smith

v.

omitted).

United

States,

508

U.S.

223,

238

(1993)

(citations

For “furtherance”, “a conviction under this portion of

§ 924(c) requires that the prosecution establish that the firearm
helped, furthered, promoted, or advanced the drug trafficking.”
United States v. Timmons, 283 F.3d 1246, 1252 (11th Cir. 2002).
The government can establish a nexus between a firearm and the

- 16 -

drug trafficking by “the type of drug activity that is being
conducted, accessibility of the firearm, the type of the weapon,
whether

the

weapon

is

stolen,

the

status

of

the

possession

(legitimate or illegal), whether the gun is loaded, proximity to
the drugs or drug profits, and the time and circumstances under
which the gun is found.”

Timmons, at 1253 (citations omitted).

In this case, petitioner was identified as the driver of the
rental vehicle, which was rented in his name.

At the Edison Mall,

petitioner was observed driving up and down the rows in the parking
lot, and parking in different spaces before exiting the vehicle to
walk

into

the

food

court

with

his

co-defendant.

After

co-

defendant’s meeting with the undercover agent and a confidential
source,

petitioner

was

observed

exiting

the

Edison

returning to the vehicle, which was again moved.

Mall

and

After the

undercover agent left to retrieve the Oxycodone, petitioner was
arrested.

A search of petitioner revealed a large sum of money

in his left pant pocket, and a small amount of marijuana consistent
with personal use inside a bag in his right front pocket.

When

asked, petitioner stated that there may be a gun in his computer
bag, in the vehicle, for which he had a concealed weapons permit.
The firearm was located with a loaded magazine in the open center
console of the vehicle, upside down, butt up, facing the same
direction as the vehicle.

(Cr. Doc. #146, ¶¶ 14-25.)

- 17 -

The testimony of petitioner’s fiancé would not have changed
the result of the guilty verdict because it would not add any
material factual matters that were not already part of the record.
Therefore petitioner cannot establish prejudice.

Strickland, 466

U.S. at 694 (a defendant must show that there is a “reasonable
probability” that the result of the proceedings would have been
different, “sufficient to undermine confidence in the outcome”).
See also Franklin v. United States, 227 F. App'x 856, 860 (11th
Cir. 2007) (finding that evidence of guilt was so overwhelming
that hearing was not required to show an absence of prejudice).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #141) is DENIED.
2.

The Clerk of the Court shall enter judgment accordingly

and close the civil file.

The Clerk is further directed to place

a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.

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); Harbison v. Bell,

556 U.S. 180, 183 (2009).

“A [COA] may issue . . . only if the

- 18 -

applicant has made a substantial showing of the denial of a
constitutional right.”
showing,

Petitioner

28 U.S.C. § 2253(c)(2).

“must

demonstrate

that

To make such a

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), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations omitted).

Petitioner has not made the

requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2017.

Copies:
Petitioner
AUSA

- 19 -

15th

day