Broomfield v. United States of America
Filing
15
OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255) on all grounds. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:13-cr-55-FTM-29UM), 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 3/26/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES F. BROOMFIELD, JR.,
Petitioner,
v.
Case No: 2:16-cv-42-FtM-29CM
Case No. 2:13-CR-55-FTM-29UM
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on 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.
#81) 1 filed on January 25, 2016.
The government filed a Response
in Opposition to Motion (Cv. Doc. #9) on April 6, 2016.
For the
reasons set forth below, the motion is denied.
I.
On May 1, 2013, a federal grand jury in Fort Myers, Florida
returned a one count Indictment (Cr. Doc. #1) charging petitioner
with possession of an AR-15 firearm and PMC 223A ammunition after
having been convicted of felony offenses, in violation of 18 U.S.C.
§ 922(g)(1) and § 924(e).
1The
The Indictment identified three Florida
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.”
state court cases which resulted in felony convictions: (1) Case
No. 06-CF-014986: a conviction for possession of cocaine with
intent, in violation of Fla. Stat. § 893.13; (2) Case No. 04-CG002539:
convictions
for
sale/delivery
within 1,000 feet of a school and
of
controlled
substance
possession of cocaine, both in
violation of Fla. Stat. § 893.13,; and (3) Case No. 04-CF-002540:
convictions for sell/manufactured/delivered within 200 feet of
public housing and possession of cocaine, both in violation of
Fla. Stat. § 893.13.
On September 5, 2013, a jury found petitioner
guilty of possession of both the AR-15 rifle and the PMC 223A
ammunition.
(Cr. Doc. #50.)
The Presentence Report (PSR) (Cr. Doc. #59) found petitioner
qualified under the Armed Career Criminal Act (ACCA) by virtue of
the prior convictions listed in the Indictment.
21.)
(Cr. Doc. #59, ¶
The effect of an ACCA enhancement is to increase the
statutory penalty from a maximum ten years imprisonment to a
mandatory minimum of fifteen years imprisonment, and to increase
the Sentencing Guidelines sentence calculation.
The Sentencing
Guidelines range was calculated at 188 to 235 months imprisonment
(Id. at ¶ 74.)
On December 16, 2013, the Court sentenced petitioner to 180
months imprisonment, followed by a term of supervised release.
- 2 -
(Cr. Doc. #58.)
Judgment (Cr. Doc. #60) was filed on December 17,
2013.
Petitioner filed a direct appeal (Cr. Doc. #62) raising
several issues, including:
authenticated
a
video
(1) whether the government adequately
clip
of
petitioner
in
possession
of
a
firearm; and (2) whether the trial court erred in determining that
petitioner’s
three
prior
predicate
convictions
different occasions for purposes of the ACCA.
occurred
on
On December 3,
2014, the Eleventh Circuit affirmed petitioner’s conviction and
sentence, but remanded for the limited purpose of correcting a
clerical error in the judgment regarding the date the offense
concluded.
(Cr. Doc. #77); United States v. Broomfield, 591 F.
App'x 847 (11th Cir. 2014).
January 16, 2015.
The Corrected Judgment was issued on
(Cr. Doc. #79.)
On March 30, 2015, a Petition for a writ of certiorari was
denied.
Broomfield v. United States, 135 S. Ct. 1726 (2015).
II.
Petitioner asserts four claims of ineffective assistance of
counsel.
Petitioner asserts that his trial attorney provided
ineffective assistance because counsel (1) failed to object to the
ACCA enhancement on the basis that the underlying state convictions
were not proper predicate convictions since possession of cocaine
is not a “serious drug offense” under the ACCA (Ground One); (2)
- 3 -
did not allow petitioner to testify as to the authenticity of the
government’s
video
exhibit,
which
would
have
resulted
in
an
acquittal (Ground Two); and (3) failed to negotiate a guilty plea
agreement without the ACCA enhancement (Ground Four).
also
claims
assistance
that
his
because
appellate
counsel
attorney
failed
to
provided
argue
that
Petitioner
ineffective
the
ACCA
enhancement was unconstitutional under its residual clause, and
instead
incorrectly
argued
that
a
valid
statute
was
unconstitutional (Ground Three).
A. Evidentiary Hearing Standard
A district court shall hold an evidentiary hearing on a habeas
corpus 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
patently
frivolous,
- 4 -
based
upon
unsupported
generalizations, or affirmatively contradicted by the record.
Id.
at 715.
A hearing is not necessarily required whenever ineffective
assistance of counsel claims are asserted.
Gordon v. United
States, 518 F.3d 1291, 1301 (11th Cir. 2008).
To establish
entitlement to an evidentiary hearing for such claims, 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).
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
- 5 -
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
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);
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Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).
The same deficient performance and prejudice standards apply
to appellate counsel.
Smith v. Robbins, 528 U.S. 259, 285-86
(2000); Roe v. Flores-Ortega, 528 U.S. at 476-77.
If the Court
finds there has been deficient performance, it must examine the
merits of the claim omitted on appeal.
If the omitted claim would
have had a reasonable probability of success on appeal, then the
deficient performance resulted in prejudice.
States, 103 F.3d 961, 963 (11th Cir. 1997).
Joiner v. United
Nonmeritorious claims
which are not raised on direct appeal do not constitute ineffective
assistance of counsel.
Diaz v. Sec’y for the Dep’t of Corr., 402
F.3d 1136, 1144-45 (11th Cir. 2005).
III.
A. Evidentiary Hearing
As set forth below, the record of the case establishes that
petitioner is not entitled to relief on any of the asserted
grounds.
The Court finds that an evidentiary hearing is not
warranted.
B. Ineffective Assistance of Trial Counsel Claims
(1)
Ground One:
Offenses
Failure
to
Challenge
ACCA
Predicate
Petitioner argues that trial counsel provided ineffective
assistance by failing to argue that “possession of cocaine” did
not qualify as a serious drug offense under the ACCA.
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Had counsel
done so, petitioner argues, his sentence would not have been
enhanced under the ACCA. 1
A
defendant
convicted
of
possession
of
a
firearm
by
a
convicted felon under 18 U.S.C. § 922(g) generally faces a maximum
statutory
penalty
of
ten
years
imprisonment.
18
U.S.C.
§
924(a)(2). A defendant who has three previous convictions “for a
violent felony or a serious drug offense, or both, committed on
occasions different from one another” shall be imprisoned for not
less than fifteen years.
18 U.S.C. § 924(e)(1).
The Indictment
cited § 924(e) and identified five prior felony convictions, three
of which qualified as “serious drug offenses.”
Upon
receipt
of
the
initial
submitted
several
objections,
Presentence
including
to
Report,
the
counsel
offense
level
computation, the calculation of criminal history absent Shepard 2
approved documents, and the application of the ACCA enhancement.
(Doc. #59, pp. 25-28.)
requires
that
the
Counsel’s primary focus was that the ACCA
three
predicate
offenses
be
committed
on
different occasions from one another, and that the government could
The Government argues that this issue is procedurally defaulted
because petitioner failed to assert that his prior convictions
were not “serious drug offenses” either in the district court or
the court of appeals. While the substantive issue was not raised,
the claim of ineffective assistance of counsel is not procedurally
defaulted. Massaro v. United States, 538 U.S. 500 (2003).
1
Shepard v. United States, 544 U.S.C 13, 26 (2005) (limiting
examination for the modified categorical approach).
2
- 8 -
not
establish
occasions.
that
any,
much
less
all,
(Doc. #55, p. 22; Doc. #57.)
occurred
on
separate
Defense counsel did not
argue that there were not three prior convictions which qualified
as “serious drug offenses.”
The
final
Presentence
Report
asserted
that
petitioner
qualified under the ACCA based upon the convictions set forth in
the Indictment.
(Cr. Doc. #59, ¶ 21.)
At sentencing, among other
things, counsel objected to the ACCA enhancement without proof of
the prior convictions by Shepard-approved documents.
#71, pp. 8, 10.)
(Cr. Doc.
The government agreed that Shepard documents
were required to establish petitioner’s qualification for the
ACCA, and introduced certified copies of the Information and
Judgment in each of the three cases identified in the Indictment.
(Id. at 10; Gov’t Exhs. 1, 2, 3.)
These Shepard-approved documents
established the following:
Case No. 06-CF-014986:
The two-count Information charged
petitioner with the following offenses:
1. On or About February 21, 2006 in Lee County,
Florida,
[petitioner]
did
unlawfully
possess, with the intent to sell or deliver,
a controlled substance, to-wit: cocaine,
contrary to Florida Statute 893.13(1)(a),
2. On or About February 21, 2006 in Lee County,
Florida, [petitioner] did drive a motor
vehicle upon a highway having no valid
driver[’]s license, contrary to Florida
Statute 322.03. . . .
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(Doc. #61, Exh. 3).
The Judgment reflects that petitioner entered
a plea of nolo contendere, and he was adjudicated guilty for both
offenses.
(Id.)
Case No. 04-CF-002540:
The two-count information charged
petitioner with the following offenses:
1. On or About September 18, 2004 in Lee
County,
Florida,
[petitioner]
did
unlawfully sell or deliver a controlled
substance, to-wit:
cocaine, in on or
within 1000 feet of the real property
comprising
a
Public
Housing
Facility
contrary to Florida Statute 893.13(1)(f),
2. On or About September 18, 2004 in Lee County
Florida, [petitioner] did unlawfully have,
in his actual or constructive possession, a
controlled
substance,
to-wit:
cocaine,
contrary to Florida Statute 893.13(6)(a).
(Doc. #61, Ex. 1.)
a
plea
of
nolo
The Judgment reflects that petitioner entered
contendere
as
to
both
adjudicated guilty for both offenses.
Case No. 04-CF-002539:
offenses,
and
he
was
(Id.)
The two-count information charged
petitioner with the following offenses:
1. On or About September 08, 2004 in Lee
County,
Florida,
[petitioner]
did
unlawfully sell or deliver a controlled
substance, to-wit:
cocaine, within 1,000
feet of the real property comprising a
public or private elementary, middle, or
secondary school between the hours of 6:00
a.m. and 12:00 a.m., contrary to Florida
Statute 893.13(1)(e),
2. On or About September 08, 2004 in Lee County
Florida, [petitioner] did unlawfully have,
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in his actual or constructive possession, a
controlled
substance,
to-wit:
cocaine,
contrary to Florida Statute 893.13(6)(a).
(Doc. #61, Ex. 2.)
The Judgment reflects that petitioner was
tried and found guilty by jury and adjudicated guilty for both
offenses.
(Id.)
A “serious drug offense” under the ACCA means an offense under
State
law
that
involves
“manufacturing,
distributing,
or
possessing with intent to manufacture or distribute, a controlled
substance . . . for which a maximum term of imprisonment of ten
years or more is prescribed by law.”
18 U.S.C. § 924(e)(2)(A)(ii).
While possession of cocaine is a felony under Florida law for
purposes of § 922(g), it is not a “serious drug offense” for
purposes of the ACCA, because it does not involve manufacturing,
distributing,
or
possessing
with
intent
to
manufacture
or
distribute, as required by 18 U.S.C. § 924(e)(2)(A)(ii).
The Florida statute under which petitioner was convicted in
each of the three cases, Fla. Stat. § 893.13(1), is a divisible
statute
which
creates
separate
offenses
for
selling,
manufacturing, delivering, or possession with intent to sell,
manufacture, or deliver a controlled substance, and therefore a
modified categorical approach is utilized.
Spaho v. U.S. Att’y
General, 837 F.3d 1172, 1177 (11th Cir. 2016).
The Shepard-
approved documents establish that the three convictions under Fla.
- 11 -
Stat. § 893.13(1) are “serious drug offenses” under the ACCA.
Spaho, 837 F.3d at 1177; United States v. Smith, 775 F.3d 1262,
1268 (11th Cir. 2014) (conviction under Fla. Stat. § 893.13(1)
qualifies as a “serious drug offense” under the ACCA); United
States v. Joyner, 882 F.3d 1369, 1377 n.4 (11th Cir. 2018) (citing
Smith).
The Court finds no ineffective assistance of trial counsel
because,
not
counting
the
possession
of
cocaine
convictions,
petitioner had three prior convictions which qualified as serious
drug offenses under the ACCA.
Therefore, the ACCA was properly
applied to petitioner, who has failed to establish any prejudice.
Ground One is denied.
(2)
Ground Two:
Failing to Allow Petitioner to Testify
Petitioner argues that trial counsel provided ineffective
assistance because counsel failed to allow petitioner to testify,
and petitioner could have testified as to the authenticity of the
government’s video, resulting in his acquittal.
At trial, the government sought to submit a YouTube video of
petitioner in possession of the firearm on January 21, 2011, at
the Fowler gun range.
The District Court found that the government
could at least circumstantially establish the authenticity of the
video to the extent that it was what they claimed it was, and it
was of petitioner.
(Cr. Doc. #69, p. 168.)
- 12 -
The Court allowed the
viewing of the video, with sound, but without the transcript and
without testimony as to the upload date of the video.
176-177.)
Defense
counsel
cross
examined
Agent
(Id., pp.
Ryan
Davis
regarding his lack of personal observation, noting that the video
was a compilation of cuts and edits and not a continuous sequence
of events.
(Id., pp. 186-187.)
On appeal, the Eleventh Circuit found sufficient evidence on
the record to support the determination that the video was properly
authenticated “[b]ecause authentication may occur solely through
the use of circumstantial evidence, the government met its burden
of presenting a prima facie case that the video depicted Broomfield
in possession of a firearm.”
United States v. Broomfield, 591 F.
App'x 847, 851–52 (11th Cir. 2014).
After the government rested, the Court specifically advised
petitioner of his right to testify as follows:
. . . The government has rested, and it will
be your turn to present evidence, if you wish
to do so, tomorrow. As you heard me tell the
jury repeatedly during the jury instructions,
you don't have to present any evidence. One of
the things that means is, you have the
absolute constitutional right to testify on
your own behalf, if you wish to do so. You
also have the absolute constitutional right
not to testify, if you don't wish to do so.
That decision is yours, and yours alone. Your
attorney can give you his advice, but you have
to make that call. You don't have to decide
right now. But sometime tomorrow, it looks
like it's going to be your turn to either
testify or not testify, and you'll have to
- 13 -
make a decision by that time. So I am not going
to ask you what you want to do now, but I just
want to make sure you understand your options.
Do you understand those?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions about
that?
THE DEFENDANT: No, sir.
(Id., pp. 232-233.)
The next day, defense counsel sought to admit a video he had
created to show how it can be made to look like petitioner was
shooting a gun.
The Court admitted the video over objections of
the government.
(Cr. Doc. #70, pp. 22-24.)
cross-examination,
testify.
counsel
rested
without
After testimony and
having
petitioner
(Id., p. 70.)
Petitioner now asserts that his attorney would not allow him
to testify, that he had information about the authenticity of the
government’s video, and that he would have been acquitted if he
had testified.
Petitioner’s conclusory statements fail to show
any ineffective assistance of counsel.
It is clearly established “that a criminal defendant has a
fundamental constitutional right to testify in his or her own
behalf at trial.
This right is personal to the defendant and
cannot be waived either by the trial court or by defense counsel.”
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United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992)
(emphasis in original).
Where the defendant claims a violation of his
right to testify by defense counsel, the
essence of the claim is that the action or
inaction
of
the
attorney
deprived
the
defendant of the ability to choose whether or
not to testify in his own behalf. In other
words, by not protecting the defendant's right
to testify, defense counsel's performance fell
below the constitutional minimum, thereby
violating the first prong of the Strickland
test. For example, if defense counsel refused
to accept the defendant's decision to testify
and would not call him to the stand, counsel
would have acted unethically to prevent the
defendant from exercising his fundamental
constitutional right to testify.
Cuthbert v. United States, 296 F. App'x 904, 906 (11th Cir. 2008).
The Court informed petitioner of his right to testify, or to
not testify, and that the decision was entirely his to make after
advice of counsel.
rights.
Petitioner acknowledged he understood these
The record reflects no further discussion after the
government
rested,
and
no
statement
from
counsel
as
to
any
discussions that may have taken place regarding petitioner’s right
to testify, or how he was not allowed to testify.
A petitioner
“must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would
have
been
different.
A
reasonable
probability
is
a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
Petitioner has failed in this
- 15 -
endeavor.
The Court finds that no ineffective assistance of
counsel has been shown because petitioner cannot show prejudice.
Therefore, Ground Two will be denied.
(3)
Ground Four: Plea Negotiation
Petitioner asserts that he would have pled guilty to the
charge if counsel had obtained a plea agreement which eliminated
the
ACCA
enhancement.
Counsel’s
failure
to
obtain
such
an
agreement, petitioner asserts, constitutes ineffective assistance.
This argument is without merit because no such plea agreement would
be legal.
A defendant in a criminal case is entitled to effective
assistance of counsel during plea negotiations.
566 U.S. 156, 162 (2012).
Lafler v. Cooper,
For a claim that a plea would have been
accepted but for counsel’s ineffectiveness, “a defendant must show
that
but
reasonable
presented
for
the
ineffective
probability
to
the
court
that
advice
the
(i.e.,
of
plea
that
counsel
offer
the
would
defendant
there
is
a
have
been
would
have
accepted the plea and the prosecution would not have withdrawn it
in light of intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or both,
under the offer’s terms would have been less severe than under the
judgment and sentence that in fact were imposed.”
- 16 -
Id. at 164.
Here, no such plea offer was made by the government, and
nothing
defense
agreement.
counsel
could
do
could
effectuate
such
an
The Court is required to apply the ACCA enhancement
in every case where it applies, whether the government is seeking
such
an
enhancement
or
mandatory enhancement.
(11th Cir. 1995).
not.
Section
§
924(e)
provides
for
United States v. Cobia, 41 F.3d 1473, 1476
The Court would not have accepted a plea
agreement that purported to eliminate the ACCA enhancement.
discussed
above,
with
three
prior
qualifying
serious
As
drug
offenses, the ACCA requires a mandatory sentence of at least 15
years.
The
enhancement
was
not
subject
to
negotiation,
and
therefore petitioner suffered neither deficient performance nor
prejudice.
Ground Four is denied as without merit.
C. Ineffective Assistance of Appellate Counsel
Petitioner also claims that his appellate attorney provided
ineffective assistance because the initial brief fell below an
objective
standard
of
reasonableness
by
pursuing
an
argument
foreclosed by case law, and by failing to argue that the ACCA
enhancement was unconstitutional under the residual clause.
the
reasons
stated
below,
the
Court
finds
neither
claim
For
is
meritorious.
Petitioner’s reliance on the residual clause of the ACCA is
misplaced.
The arguments about the residual clause relate to the
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residual clause of the statutory definition of “violent felony”
under the ACCA.
Petitioner’s predicate offenses were all “serious
drug offenses” under 18 U.S.C. 924(e)(2)(A), which has no such
residual clause.
As a result, a Johnson v. United States, 135 S.
Ct. 2551, 2574 (2015), argument would have had no merit and there
can be no deficient performance or prejudice for failing to raise
the issue.
Although the arguments that the felon in possession statute
is unconstitutional and the sentence was unconstitutional are both
foreclosed by binding precedent, petitioner was not prejudiced by
counsel raising the issues simply to preserve the arguments.
Ground Three will be denied as without merit.
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. #81) is DENIED on all grounds.
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
- 18 -
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
applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(B)(2).
To make such
a showing, Petitioner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), 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 March, 2018.
Copies:
Petitioner
AUSA
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26th
day
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