Griffin v. United States of America
Filing
17
OPINION AND ORDER denying re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) Criminal Case No. 2:13-cr-152-FtM-38CM. The Clerk of Court is directed to terminate any pending motions, enter judgment accordingly, and close this case . The Clerk of the Court is further directed to file a copy of this Order in criminal case number 2:13-cr-152-FTM-38CM and to terminate the motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 (Cr. Doc. 78) pending in that case. A certificate of appealability is denied and Petitioner is not entitled to proceed in forma pauperis on appeal. Signed by Judge Sheri Polster Chappell on 11/14/2017. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TAURI GRIFFIN,
Petitioner,
v.
Case No: 2:16-cv-701-FtM-38CM
2:13-cr-152-FtM-38CM
UNITED STATES OF AMERICA,
Respondent.
/
OPINION AND ORDER1
Petitioner Tauri Griffin (Petitioner or Griffin) initiated this action by filing a Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on September
14, 2016. (Doc. 1).2 The United States filed a Motion to Dismiss (Doc. 10), which the
Court construes as a response to the § 2255 motion, on December 13, 2016 (Doc. 10).
Griffin filed a reply on March 20, 2017 (Doc. 14). For the following reasons, Petitioner’s
motion is denied.
1
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2
The Court will make references to the dockets in the instant action and in the related criminal
case throughout this Opinion and Order. The Court will refer to the docket of the civil habeas case
as “Doc.”, and will refer to the docket of the underlying criminal case as “Cr. Doc.”
BACKGROUND
On November 13, 2013, a federal grand jury in Fort Myers, Florida returned a ninecount Indictment charging Petitioner with possession of cocaine and cocaine base with
intent to distribute, possession of a firearm by a convicted felon, and possession of
firearms in furtherance of a drug-trafficking offense.3 (Cr. Doc. 1). The Indictment lists
seven prior felony convictions, all from the state of Florida: three convictions for sale of
cocaine within 1,000 feet of a place of worship in violation of Fla. Stat. § 893.13, three
convictions for possession of cocaine with intent to distribute in violation of Fla. Stat. §
893.13, and one conviction for grand theft.4 (Id.) Petitioner pleaded guilty to Counts 1,
2, 3, 4, 5, 7, and 8, and the Court, upon the Government’s request, dismissed Counts 6
and 9. (Cr. Doc. 62). Griffin acknowledged in the plea agreement and during the plea
colloquy that he understood that the Armed Career Criminal Act would apply to increase
the mandatory minimum sentence for Counts 1, 4, and 7 to fifteen years, and the
maximum penalties that could apply. (Cr. Doc. 39, ¶ 3).
In his Presentence Investigation Report (“PSR”), it was recommended that
Petitioner be classified as an armed career offender based in part upon his convictions
for selling, manufacturing, or delivering a controlled substance within 1,000 feet of a place
of worship and using a firearm in connection with the offense (Cr. Doc. 46, ¶¶ 32-34).
Under the Armed Career Criminal Act of 1984 (“ACCA”), a defendant convicted of being a felon
in possession of a firearm faces more severe punishment if he has three or more previous
convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(2)(B). See
Johnson v. United States, 135 S. Ct. 2551, 2555 (2015).
3
4
The Offense Conduct section of the Presentence Investigation Report (Cr. Doc. 46, ¶¶ 13-17),
states that Griffin was taken down by undercover narcotics officers with the help of a confidential
informant, conducting controlled buys from August-November 2013.
2
Petitioner had a recommended criminal history category of VI, based upon his criminal
history and his career offender status, and he faced a United States Sentencing
Guidelines imprisonment range of 292 to 365 months (Id. at ¶¶ 56, 99).
At sentencing, the Court found Petitioner to be a career offender and adopted the
PSR’s advisory guidelines range. (Cr. Doc. 68). Petitioner was sentenced to 300 months
in prison, to be followed by a term of supervised release. (Id.) Griffin appealed his
sentence (Cr. Doc. 64). On June 25, 2015, the Eleventh Circuit granted the Government’s
motion to dismiss the appeal based on the appeal waiver in Griffin’s plea agreement (Cr.
Doc. 77).
Petitioner’s timely § 2255 motion raises five grounds for relief, all based upon
ineffective assistance of counsel. (Docs. 1, 14). The United States argues in response
that by pleading guilty Griffin agreed to waive his right to collaterally attack his sentence;
that Petitioner is procedurally defaulted on his claims; that Petitioner qualifies as an armed
career criminal; and the Petition otherwise fails on the merits. (Doc. 10).
DISCUSSION
Title 28 U.S.C. § 2255 provides federal prisoners with an avenue for relief under
limited circumstances:
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). If a court finds a claim under § 2255 to be valid, the court “shall
vacate and set the judgment aside and shall discharge the prisoner or resentence him or
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grant a new trial or correct the sentence as may appear appropriate.” Id. at § 2255(b).
To obtain this relief on collateral review, a petitioner must clear a significantly higher
hurdle than would exist on direct appeal. See United States v. Frady, 456 U.S. 152, 166
(1982) (rejecting the plain error standard as not sufficiently deferential to a final judgment).
Under § 2255(b), unless “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,” the court shall “grant a prompt
hearing thereon, determine the issues and make findings of fact and conclusions of law
with respect thereto.” The Eleventh Circuit Court of Appeals has explained, “[a] habeas
corpus petitioner is entitled to an evidentiary hearing on his claim ‘if he alleges facts which,
if proven, would entitle him to relief.’” Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir.
1999) (quoting Futch v. Dugger, 874 F.2d 1483, 1485 (11th Cir. 1989)). However, “if the
record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550
U.S. 465, 474 (2007); see also Aron v. United States, 291 F.3d 708, 715 (11th Cir. 2002)
(explaining that no evidentiary hearing is needed when a petitioner’s claims are
affirmatively contradicted by the record or patently frivolous).
Here, because each of the claims raised in the § 2255 motion is either time-barred,
procedurally barred, contrary to law, or affirmatively contradicted by the record, an
evidentiary hearing is not required. See Holmes v. United States, 876 F.2d 1545, 1553
(11th Cir. 1989) (“A hearing is not required on patently frivolous claims or those which are
based upon unsupported generalizations. Nor is a hearing required where the petitioner’s
allegations are affirmatively contradicted by the record.”).
4
A. Waiver
The Court first addresses the Government’s argument that Petitioner waived his
right to collaterally attack his sentence - and easily rejects this argument. Although the
Government argues that a § 2255 motion falls within the scope of the appeal waiver
contained within the plea agreement, a review of the waiver shows this is not the case:
The defendant agrees that this Court has jurisdiction and authority to
impose any sentence up to the statutory maximum and expressly waives
the right to appeal defendant’s sentence on any ground, including the
ground that the Court erred in determining the applicable guidelines range
pursuant to United States Sentencing Guidelines, except (a) the grounds
that the sentence exceeds the defendant’s applicable guidelines range as
determined by the Court pursuant to the United States Sentencing
Guidelines; (b) the ground that the sentence exceeds the statutory
maximum penalty; or (c) the ground that the sentence violates the Eighth
Amendment to the Constitution; provided, however, that if the government
exercises its right to appeal the sentence imposed, as authorized by 18
U.S.C. § 3742(b), then the defendant is released from his waiver and may
appeal the sentence as authorized by 18 U.S.C. § 3742(a).
(Cr. Doc. 39, ¶ 7) (emphasis in original). During the plea colloquy the Magistrate Judge
stated: “Under this plea agreement, however, you give up and waive your right to appeal
or otherwise challenge the sentence which is imposed upon you, except in certain specific
circumstances.” (Cr. Doc. 73, 21:15-19).
The Court finds that although Petitioner did waive his right to direct appeal, he did
not agree to waive his right to collaterally attack his sentence. Other than the cursory
argument that the right to collaterally attack the sentence is within the scope of the waiver,
the Government does not otherwise explain how this is so, and the Court will not construe
the plea agreement in favor of the Government at the expense of Petitioner. Therefore,
the Government’s waiver argument fails and the Court will turn to the merits of the
Petition.
5
B. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Petitioner must show
that: (1) “counsel’s representation fell below an objective standard of reasonableness”;
and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v. Washington, 466 U.S.
668, 688, 694 (1984). These two elements are commonly referred to as the performance
and prejudice prongs. Reece v. United States, 119 F.3d 1462, 1464 n.4 (11th Cir. 1997).
If a petitioner fails to establish either prong, the Court need not consider the other prong
in finding that there was no ineffective assistance of counsel. Strickland, 466 U.S. at 697.
A court must adhere to a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance. Strickland, 466 U.S. at 689-90. “Thus,
a court deciding an actual ineffectiveness claim 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.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals:
[The test for ineffective assistance of counsel] has nothing to do with what
the best lawyers would have done. Nor is the test even what most good
lawyers would have done. We ask only whether some reasonable lawyer at
the trial could have acted, in the circumstances, as defense counsel acted
at trial. Courts also should at the start presume effectiveness and should
always avoid second guessing with the benefit of hindsight.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under
those rules and presumptions, “the cases in which habeas petitioners can properly prevail
on the ground of ineffective assistance of counsel are few and far between.” Rogers v.
Zant, 13 F.3d 384, 386 (11th Cir. 1994).
6
The Strickland standard for evaluating claims of ineffective assistance of counsel
was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58 (1985). It falls upon
a petitioner alleging ineffective assistance in this context to establish that counsel's
performance was deficient and that counsel's deficient performance “affected the
outcome of the plea process.” Id. at 59. To establish prejudice under the Hill test, a
petitioner “must show that there is a reasonable probability that, but for counsel’s errors,
he would ... have pleaded [not] guilty and would ... have insisted on going to trial.” Id.
1. Petitioner's prior controlled substance offense was properly used to
classify him as a career offender
Petitioner argues that counsel was ineffective for failing to object to the use of his
prior drug conviction as a predicate “career offender” offense under the United States
Sentencing Guidelines (“U.S.S.G.”), and failure to object and argue that his prior
convictions do not qualify as “serious drug offenses.” (Doc. 1, Grounds One and Five).
Petitioner argues that if his counsel would have objected to the use of the Florida drug
convictions, the Court would have traced the history of the Florida statutory scheme in
place at the time of his state drug convictions and found that the convictions did not qualify
as serious drug offenses, citing Mathis v. United States, 136 S. Ct. 2243 (2016). This
argument fails for two reasons.
First, Mathis was decided on June 23, 2016 - long after the conclusion of Griffin’s
direct appeal. The Eleventh Circuit has specifically held that Mathis did not announce a
new rule of constitutional law; rather it merely provided guidance to courts in interpreting
an existing criminal statute. In re Hernandez, 857 F.3d 1162, 1163 (11th Cir. 2017).
Accordingly, this claim, raised for the first time on September 14, 2016, is clearly timebarred.
7
Next, Petitioner's ineffective assistance argument does not entitle him to relief
because his convictions under Florida Statute § 893.13 is a U.S.S.G. § 4B1.1 controlled
substance offense.5 Petitioner was convicted of possession of marijuana with intent to
sell within 1,000 feet of a place of worship on September 7, 1999; selling cocaine within
1,000 feet of a place of worship on November 2, 2000; and possession of cocaine with
intent to distribute on November 2, 2000 (Cr. Doc. 46, ¶ 32).6 These convictions were
used to classify him as a career offender under U.S.S.G. § 4B1.1. (Id.) Petitioner’s
arguments are foreclosed by the Eleventh Circuit’s opinion in United States v. Smith, 775
F.3d 1262 (11th Cir. 2014) which held that convictions under Florida Statute § 893.13
qualify as controlled substance offenses under U.S.S.G. § 4B1.2(b) despite the statute’s
lack of a mens rea element. Id. at 1268; see also United States v. Perez-Prado, 598 F.
App’x 739, 740 (11th Cir. 2015) (it was error for the district court to conclude that
petitioner’s conviction under § 893.13 did not qualify as a controlled substance offense
pursuant to § 4B1.2(b)).
Under the sentencing guidelines, a defendant is a career offender “if (1) the defendant was at
least eighteen years old at the time the defendant committed the instant offense of conviction; (2)
the instant offense of conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony convictions of either a crime
of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). “Controlled substance
offense” is defined as “an offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the possession of a controlled substance
(or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 4B1.2(b).
5
Pursuant to Florida Statute § 893.13(1)(e), a “person may not sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or deliver, a controlled substance not authorized by law
in, on, or within 1,000 feet of a physical place for worship at which a church or religious
organization regularly conducts religious services[.]” Id. A violation of this statute is punishable
by up to fifteen years in prison. Fla. Stat. § 775.082(3)(c).
6
8
Given that Petitioner's conviction under Florida Statute § 893.13 is a controlled
substance offense, the Court did not err when it concluded that Petitioner’s prior drug
conviction qualified as a controlled substance offense under U.S.S.G. § 4B1.2(b) and
sentenced him as a career offender. Because Petitioner’s legal argument is meritless,
he cannot show he was prejudiced by counsel’s failure to raise it.
2. Whether to plead guilty or proceed to trial
Petitioner argues that counsel failed to advise him that he could face more than 20
years in prison, including failing to advise him of the mandatory consecutive term of 60
months. Petitioner states that if he would have known he faced 300 months in prison he
would not have pled guilty, and would have proceeded to trial. (Doc. 1, Ground Two).
“A guilty plea is more than a confession which admits that the accused did various
acts.” United States v. Broce, 488 U.S. 563, 570 (1989) (citations omitted). “By entering
a plea of guilty, the accused is not simply stating that [s]he did the discrete acts described
in the indictment; [s]he is admitting guilt of a substantive crime.” Id. For this reason, the
United States Constitution requires that a guilty plea must be voluntary, and defendant
must make the related waivers knowingly, intelligently and with sufficient awareness of
the relevant circumstances and likely consequences. United States v. Ruiz, 536 U.S.
622, 629 (2002); Hill v. Lockhart, 474 U.S. 52, 56 (1985); Henderson v. Morgan, 426 U.S.
637, 645 (1976). A criminal defendant who has pled guilty may attack the voluntary and
knowing character of the guilty plea, Tollett v. Henderson, 411 U.S. 258, 267 (1973);
Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992), or the constitutional
effectiveness of the assistance she received from her attorney in deciding to plead guilty,
United States v. Fairchild, 803 F.2d 1121, 1123 (11th Cir. 1986).
9
To be voluntary and knowing, (1) the guilty plea must be free from coercion; (2)
the defendant must understand the nature of the charges; and (3) the defendant must
know and understand the consequences of her guilty plea. United States v. Mosley, 173
F.3d 1318, 1322 (11th Cir. 1999). Rule 11 explicitly directs the district judge not to accept
a plea without determining these “core concerns.” “With respect to the Sentencing
Guidelines, where the court confirms that a defendant is aware of the Guidelines and has
discussed the effect of the Guidelines on his sentence with his attorney, Rule 11
compliance has occurred.” United States v. Bokerman, 543 F. App'x 974, 976 (11th Cir.
2013).
Relief from a Rule 11 violation is available “only in the most egregious cases.”
United States v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004).
The Court finds no grounds for prejudice or miscarriage of justice. Petitioner was
advised by the Court of the applicable minimum mandatory terms of imprisonment at the
plea colloquy as well as at sentencing, which Petitioner acknowledged that he
understood, and informed Petitioner at sentencing that he was facing 60 months on Count
3 to run consecutively. (Cr. Doc. 73, 16:2-17:24; Cr. Doc. 68, 29:8-12). Furthermore, the
plea agreement itself contains a provision regarding the nonbinding nature of sentencing
recommendations:
It is understood by the parties that the Court is neither a party to nor bound
by this agreement. The Court may accept or reject the agreement, or defer
a decision until it has had an opportunity to consider the presentence report
prepared by the United States Probation Office. The defendant understands
and acknowledges that, although the parties are permitted to make
recommendations and present arguments to the Court, the sentence will be
determined solely by the Court, with the assistance of the United States
Probation Office. Defendant further understands and acknowledges that
any discussions between defendant or defendant’s attorney and the
attorney or other agents for the government regarding any
recommendations by the government are not binding on the Court and that,
should any recommendations be rejected, defendant will not be permitted
10
to withdraw defendant's plea pursuant to this plea agreement. The
government expressly reserves the right to support and defend any decision
that the Court may make with regard to the defendant’s sentence, whether
or not such decision is consistent with the government’s recommendation
contained herein.
(Cr. Doc. 39, ¶ 6).
“There is a strong presumption that the statements made during the colloquy are
true.” United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (citing United States
v. Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th Cir. 1987)). Petitioner was made
aware of the minimum mandatory terms of imprisonment, and that any predictions by
counsel were not binding on the sentencing Court because the Presentence Report had
not yet been created, which he acknowledged that he understood. (Cr. Doc. 73, 21:411). See also United States v. Bokerman, 543 F. App’x 974, 976 (11th Cir. 2013) (finding
nothing in the record to indicate that, but for the failure to mention that U.S. Sentencing
Guidelines Manual § 2G2.2, petitioner would not have entered his guilty plea). The fact
is that neither the non-sentencing judge, nor counsel for Petitioner, or even the
government had a presentence report such that the criminal history category could be
accurately determined.
To the extent Petitioner is arguing that he would have withdrawn his guilty plea
and proceeded to trial if he had been properly advised of the applicable guideline factors,
the Court considers the totality of the circumstances when determining whether a
defendant would have withdrawn their guilty plea, “including: (1) whether close assistance
of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether
judicial resources would be conserved; and (4) whether the government would be
prejudiced if the defendant were allowed to withdraw the plea.” United States v. Gittens,
11
No. 16-14572, 2017 WL 2859509, at *1 (11th Cir. July 5, 2017) (citing United States v.
Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988)).
As of the date of sentencing, petitioner had not sought to withdraw his plea, even
if he did lose the opportunity to timely object to the recommendation. Petitioner also did
not raise the issue on direct appeal. Petitioner was represented by counsel throughout
the proceedings, including his direct appeal, and the Court has determined that the guilty
plea was knowing and voluntary. Moreover, regardless of what conversations took place
between counsel and petitioner before the change of plea hearing, Petitioner stated on
the record that he understood the consequences of the guilty plea, including that the
sentence could not be predicted. Because Petitioner’s allegations are “affirmatively
contradicted by the record”, by his own responses at the change of plea hearing, no
hearing is required and no relief is warranted based on “unsupported generalizations.”
Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989).
3. Failure to file a motion to dismiss
Petitions argues under Ground Three that counsel was ineffective for failing to
raise what is essentially an entrapment defense in a motion to dismiss. (Doc. 1, Ground
Three).
Petitioner entered a plea of guilty pursuant to a plea agreement containing an
appeal waiver with three limited exceptions:
(a) the ground that the sentence exceeds the defendant's applicable
guidelines range as determined by the Court pursuant to the United States
Sentencing Guidelines; (b) the ground that the sentence exceeds the
statutory maximum penalty; or (c) the ground that the sentence violates the
Eighth Amendment to the Constitution.
(Cr. Doc. 39, ¶ 7). This substantive argument does not fall within the parameters of the
exceptions, and the appeal waiver is enforceable when a defendant is specifically
12
questioned during the plea colloquy about the waiver, which is the case here, and
defendant confirms is understanding of it significance. Bokerman, 543 F. App’x at 976.
Because the issue was not raised on direct appeal, the issue will be dismissed pursuant
to the appeal waiver.
Moreover, Petitioner was aware, prior to entering his plea,that counsel had not filed
a motion to dismiss. “When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea.” Tollett, 411 U.S. at 267. This is because a defendant who
pleads guilty is convicted and sentenced according to his plea and not upon the evidence.
Brady v. United States, 397 U.S. 742, 750 (1970).
4. Remaining arguments
Petitioner also argues that the plea agreement was never executed. (Doc. 1, p.
4). A review of the plea agreement (Cr. Doc. 39) clearly shows that it was signed and
initialed by Griffin on every page.
Petitioner finally asserts that he did not understand the difference between the
Magistrate Judge and the District Judge, and counsel was inadequate for failing to explain
to him that pleading guilty in front of the Magistrate Judge would have no impact on his
sentence. (Doc. 1, Ground Four). While unclear, Petitioner seems to be arguing that he
believed that pleading guilty in front of the Magistrate Judge would result in some sort of
reduction in his sentence. There is no indication in the record that his counsel caused
this confusion (indeed, Petitioner states that his counsel failed to explain the difference to
him). Furthermore, the record shows that Griffin was advised by the Magistrate Judge at
13
the plea colloquy of his right to consent to enter a plea in front of a District Judge, which
he stated he understood. (Cr. Doc. 73, 11:17-12:6). Most importantly, Petitioner has not
shown that pleading guilty in front of the Magistrate Judge prejudiced him in any way.
Accordingly, it is now
ORDERED:
1.
Petitioner's motion to vacate, set aside, or correct an illegal sentence
pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED.
2.
The Clerk of the Court is directed to terminate any pending motions, enter
judgment accordingly, and close this case.
3.
The Clerk of the Court is further directed to file a copy of this Order in
criminal case number 2:13-cr-152-FTM-38CM and to terminate the motion to vacate, set
aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 (Cr. Doc. 78) pending
in that case.
IT IS FURTHER ORDERED:
4.
A CERTIFICATE OF APPEALABILITY IS 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 (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)(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
14
further.’” Miller–El v. Cockrell, 537 U.S. 322, 336 (2003) (citation omitted). Petitioner has
not made the requisite showing in these circumstances.
5.
Because Petitioner is not entitled to a certificate of appealability, he is not
entitled to proceed in forma pauperis on appeal.
DONE and ORDERED in Fort Myers, Florida this 14th day of November, 2017.
Copies:
Tauri Griffin
Counsel of Record
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