Ramirez, III v. Secretary, Department of Corrections et al
Filing
21
ORDER granting 9 motion to dismiss petition as untimely; dismissing the petition with prejudice; instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 11/3/2015. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GILBERT RAMIREZ, III,
Petitioner,
vs.
Case No. 3:13-cv-979-J-39JRK
SECRETARY, DOC, et al.,
Respondents.
ORDER OF DISMISSAL WITH PREJUDICE
Petitioner initiated this action by filing a Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (Petition) (Doc. 1) on August 8, 2013 pursuant to the
mailbox rule.1
He challenges his 2008 Duval County conviction for
armed burglary with battery.
The Eleventh Circuit, in Espinosa v. Sec'y, Dep't of Corr.,
No. 14-10581, 2015 WL 6405404, at *2 (11th Cir. Oct. 23, 2015),
very recently stated:
1
The Petition was filed with the Clerk on August 12, 2013;
however, giving Petitioner the benefit of the mailbox rule, this
Court finds that the Petition was filed on the date Petitioner
provided his Petition to prison authorities for mailing to this
Court (August 8, 2013). See Houston v. Lack, 487 U.S. 266, 276
(1988); Rule 3(d), Rules Governing Section 2254 Cases in the United
States District Courts. The Court will also give Petitioner the
benefit of the mailbox rule with respect to his inmate pro se state
court filings when calculating the one-year limitations period
under 28 U.S.C. § 2244(d).
The Antiterrorism and Effective Death
Penalty Act provides a "1–year period of
limitation ... [for] an application for a writ
of habeas corpus by a person in custody
pursuant to the judgment of a State court." 28
U.S.C. § 2244(d)(1). The period runs from the
latest of four dates, including, as applies
here, "the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
review." Id. § 2244(d)(1)(A). "The time during
which a properly filed application for State
post-conviction or other collateral review
with respect to the pertinent judgment or
claim is pending shall not be counted toward
any
period
of
limitation...."
Id.
§
2244(d)(2).
Respondents contend that Petitioner has not complied with the
one-year period of limitations as set forth in this subsection.
See Respondents' Motion to Dismiss Petition as Untimely (Response)
(Doc. 9).
exhibits.2
In support of this contention, they have submitted
(Doc. 9).
Petitioner was given admonitions and a time
frame to respond to the request to dismiss the Petition contained
within the Response. See Court's Order (Doc. 6). Petitioner filed
a Response to Motion to Dismiss Petition as Untimely (Doc. 10)
(Reply).
Pursuant to the Antiterrorism and Effective Death Penalty Act
(hereinafter AEDPA), there is a one-year period of limitations:
(d)(1) A 1-year period of limitation
shall apply to an application for a writ of
habeas corpus by a person in custody pursuant
to the judgment of a State court.
The
2
The Court hereinafter refers to the exhibits as "Ex."
2
limitation period shall run from the latest
of–
(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment
to filing an application created by
State action in violation of the
Constitution or laws of the United
States is removed, if the applicant
was prevented from filing by such
State action;
(C)
the
date
on
which
the
constitutional right asserted was
initially recognized by the Supreme
Court, if the right has been newly
recognized by the Supreme Court and
made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual
predicate of the claim or claims
presented could have been discovered
through
the
exercise
of
due
diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral
review
with
respect
to
the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d).
In pertinent part, the record shows the following. Petitioner
was charged by an information with burglary of a dwelling.
at 9.
241.
The jury found him guilty as charged.
Petitioner moved for a new trial.
court denied the motion.
Id. at 56.
3
Ex. A
Id. at 49; Ex. D at
Ex. A at 50-55.
The trial
On February 2, 2005, the
court entered judgment and sentenced him to twenty-two years as a
habitual felony offender.
Petitioner appealed.
Id. at 64-69.
Id. at 71; Ex. F; Ex. G; Ex. H.
The
First District Court of Appeal, on March 7, 2006, vacated the
judgment and sentence and the order of denial of the motion for new
trial and remanded the case for consideration of the motion for new
trial.
Ex. I at 1-9.
The mandate issued on March 23, 2006.
Id.
at 10.
On remand, the trial court appointed Gregory J. Messore,
Petitioner's trial counsel, as counsel.
Ex. K at 17.
The parties
took the sworn statement of the alternate juror, Shakira Sims. Id.
at 19-39.
The trial court conducted a hearing on June 26, 2006,
with Petitioner, his counsel, and the Assistant State Attorney
present.
Id. at 60-72.
In an Order filed on June 29, 2006, the
trial court denied the motion for new trial and reinstated the
judgment and sentence.
Id. at 40-42.
Petitioner sought a belated appeal.
Ex. J.
The First
District Court of Appeal, on September 12, 2007, granted a belated
appeal and appointed the Public Defender to represent Petitioner.
Ex. K at 50-51.
The mandate issued on October 1, 2007.
Id. at 49.
Through counsel, Petitioner submitted an appeal brief. Ex. L. The
state answered.
Ex. M.
Petitioner replied.
Ex. N.
On January
13, 2009, the First District Court of Appeal affirmed per curiam.
Ex. O.
The mandate issued on January 29, 2009.
4
Id.
Of import, Petitioner's conviction became final on April 13,
2009 (90 days after January 13, 2009) ("According to rules of the
Supreme Court, a petition for certiorari must be filed within 90
days of the appellate court's entry of judgment on the appeal or,
if a motion for rehearing is timely filed, within 90 days of the
appellate court's denial of that motion.").
The statute of
limitations period began to run on April 14, 2009, and expired
prior to Petitioner filing a Rule 3.850 motion on September 14,
2010.
Ex. Q at 1-5.
Therefore, the one-year limitations period
expired long before Petitioner filed the instant federal Petition
on August 8, 2013.
Based on the foregoing, the Petition is
untimely and due to be dismissed unless Petitioner can establish
that equitable tolling of the statute of limitations is warranted.
Before addressing the question of whether equitable tolling is
warranted under the circumstances presented, there is one matter
that merits a brief discussion.
The Court recognizes that on
October 22, 2009, Petitioner filed a trial-level mandamus petition
asking the trial court to issue an order directing his trial
counsel to provide Petitioner with a copy of the case file and
records.
Ex. P-1 at 1-17.
On July 15, 2010, the trial court
dismissed the petition finding:
The Defendant attaches to his Petition
copies of two Requests for Case Records from
Attorney, dated May 21, 2007 and July 6, 2007,
which he alleges he sent to trial counsel and
received no response. However, upon review of
the Defendant's exhibits, the Court finds that
5
the Requests were returned to the Defendant by
the post office as "not deliverable as
addressed."
Accordingly, the Defendant has
failed to establish that he has made a valid
request for documents to trial counsel.
Because the Defendant's Petition does not
state a facially sufficient claim for relief,
it is subject to dismissal. Gilliam v. State,
996 So.2d 956, 958 (Fla. 2d DCA 2008).
Ex. P-1 at 1.
The limitations period was not tolled during the pendency of
the mandamus petition as it does not constitute a tolling event.
In the mandamus petition, Petitioner sought free copies of records
from his trial counsel. Upon review, the mandamus petition did not
challenge the underlying conviction.
Instead, it sought material
that might help in developing a challenge.
See Brown v. Sec'y for
the Dep't of Corr., 530 F.3d 1335, 1338 (11th Cir. 2008) (finding
a Rule 3.853 proceeding involves an application for discovery, not
a
challenge
to
the
conviction,
and
does
not
toll
AEDPA's
limitations period during its pendency); Leath v. McNeil, No. 3:07cv-145-J-34HTS, 2008 WL 5427781, at *3 (M.D. Fla. Dec. 30, 2008)
(holding a motion for DNA testing is not an application for post
conviction or other collateral review for purposes of tolling under
AEDPA).
In his mandamus petition, Petitioner sought an order from the
trial court directing trial counsel to provide Petitioner with free
copies of records and files, an act "pursuant to which the court
6
lacks authority to order relief from the movant's sentence or
conviction . . . ."
Brown, 530 F.3d at 1337.
Thus,
Petitioner's argument lacks merit. "[A]
public
records
request
and
litigation
concerning the same is not a collateral attack
and is irrelevant to a time limitation
calculation." Williams v. Sec'y, Dep't of
Corr., 2009 WL 1046131, *2 (M.D. Fla. Apr.20,
2009); see May v. Workman, 339 F.3d 1236, 1237
(10th
Cir.
2003)
("The
district
court
correctly determined that the limitations
period should not be tolled during the
pendency of Mr. May's various motions for
transcripts and petitions for writs of
mandamus
relating
to
those
motions.").
Notably, for purposes of state post-conviction
motions, public records requests "may not be
used by any inmate as the basis for failing to
timely litigate any postconviction action."
Fla. Stat. § 119.07(8) (2006).
Washington v. Tucker, No. 4:11CV414-SPM/CAS, 2012 WL 1964526, at *2
(N.D. Fla. May 11, 2012), report and recommendation adopted by
2012 WL 1969049 (N.D. Fla. May 31, 2012).
As such, the limitations period was not tolled during the
pendency of Petitioner's mandamus petition.
filed
on
August
8,
2013,
was
filed
well
Thus, this action,
after
the
one-year
limitation period expired.
In his Reply, Petitioner claims that he should be entitled to
equitable tolling of the limitations period because there were
"circumstances that were beyond his control and he acted with due
diligence in obtaining records, documents and transcripts necessary
and vital to the preparation of his 3.850 post conviction motion."
Reply at 2.
Of import, "[t]he limitations period is subject to
7
equitable tolling."
Cadet v. Fla. Dep't of Corr., 742 F.3d 473,
474 (11th Cir. 2014) (citing Holland v. Florida, 560 U.S. 631, 130
S.Ct. 2549, 2560 (2010)).
"A petitioner is entitled to equitable
tolling only if he shows both '(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstances
stood in his way.'" Thomas v. Attorney Gen., State of Fla., No. 1314635, 2015 WL 4597532, at *5 (11th Cir. July 31, 2015) (citing
Holland,
560
recognized
U.S.
that
extraordinary
at
649)
equitable
remedy
that
exceptional circumstances.
McNeil,
520
F.3d
1311,
(quotation
tolling
must
omitted).
of
be
the
used
It
time
is
bar
sparingly,
is
in
also
an
only
Id. (citation omitted); see Downs v.
1318
(11th
Cir.
2008)
(stating
that
equitable tolling "is a remedy that must be used sparingly"); see
also Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008) (per
curiam) (noting that the Eleventh Circuit "has held that an inmate
bears a strong burden to show specific facts to support his claim
of
extraordinary
circumstances
and
due
diligence")
(citation
omitted).
The burden is on Petitioner to make a showing of extraordinary
circumstances that are both beyond his control and unavoidable with
diligence, and this high hurdle will not be easily surmounted.
Howell v. Crosby, 415 F.3d 1250 (11th Cir. 2005), cert. denied, 546
U.S. 1108 (2006); Wade v. Battle, 379 F.3d 1254, 1265 (11th Cir.
2004) (per curiam) (citations omitted).
8
Upon a thorough review of
the record, Petitioner has not met the burden of showing that
equitable tolling is warranted.
In response to Petitioner's contention that he was entitled to
equitable tolling, the Court ordered Respondents to address his
assertion
that
he
has
met
this
hurdle.
Order
(Doc.
12).
Respondents filed a Response Opposing Rameriz's Claim for Equitable
Tolling (Supplemental Response) (Doc. 13).
The Court granted
Petitioner an extension of time to file a reply.
Order (Doc. 15).
Petitioner submitted a Reply in Opposition to Respondents' Response
Opposing Petitioner's Claim for Equitable Tolling (Supplemental
Reply) (Doc. 19).
The Court concludes that Petitioner has not presented any
justifiable reason why the dictates of the one-year limitations
period should not be imposed upon him.
In his Supplemental Reply,
Petitioner argues that this Court should find that he is entitled
to equitable tolling because he was trying to obtain records,
"tools" that he needed in order to prepare an adequate Rule 3.850
motion.
claim
Supplemental Reply at 1.
of
due
diligence,
With regard to Petitioner's
Respondents
point
out
that
once
Petitioner's letters to his trial counsel requesting copies of his
file and records were returned as undeliverable, all Petitioner had
to do was write the Florida Bar and request counsel's current
address.
Supplemental Response at 4.
Petitioner states: "[t]his
is a mistake on the Respondent's behalf because the confusion came
9
to the Petitioner when every time he received a letter back from
the Public Defender's office the letters still listed Mr. Messore
Exhibit (c)."3
as an employee from that office.
Supplemental
Reply at 2.
This argument has absolutely no merit.
Petitioner's counsel
was no longer employed by the Public Defender's Office, and
Petitioner actually utilized a private law firm address to try to
obtain records from his trial counsel.
In fact, Petitioner
addressed the May 21, 2009 Request for Case Records from Attorney
to: The Law Offices of Greg Messore, 411 East Monroe Street-Suit[e]
201, Jacksonville, Florida 32202.
was
returned
Deliverable
to
as
Petitioner
Addressed[,]
Ex. P-1 at 9-10.
marked:
Unable
"Return
to
to
This letter
Sender[,]
Forward[.]"
Id.
at
Not
8.
Instead of contacting the Bar to obtain the forwarding address,
Petitioner again, on July 6, 2009, wrote his trial counsel at the
same law firm address.
Id. at 12-13.
The second letter to counsel
was returned for the same reasons previously indicated. Id. at 11.
As such, Petitioner was aware, as early as July, 2009, that he
did not have the proper address for his counsel. Petitioner simply
failed to write the Florida Bar to obtain counsel's forwarding
address. Indeed, the trial court rejected the petition for writ of
3
Apparently, the Public Defender's Office continued to use an
outdated letter-head listing Gregory Messore as an Assistant Public
Defender long after he departed the Public Defender's Office. See
Ex. P-1 at 14, Letter Dated October 5, 2009.
10
mandamus, finding Petitioner failed to establish that he made a
valid request for documents to trial counsel because the requests
for records were returned as undeliverable as addressed and not
ignored by counsel with "no response."
Ex. P-1 at 18-19.
Of particular significance to this issue, the record shows the
following.
The trial court appointed Mr. Messore as counsel for
Petitioner on the remanded motion for new trial.
Ex. K at 17.
When counsel took the deposition of Shakira Sims on June 9, 2006,
his address was listed as: Law Office of Greg Messore, 411 East
Monroe Street, Suite 201, Jacksonville, Florida 32202.
Id. at 20.
Counsel stated on the record that "I used to be with the Public
Defender's Office.
Id. at 21.
Now I'm out on my own, so times have changed."
The Court's Order Denying Motion for New Trial and
Reinstating Judgment and Sentence, filed June 29, 2006, shows that
copies were provided to Mr. Messore at his law firm address and to
Petitioner at his prison address.
Id. at 40-42.
Thus, there is no
question that Petitioner knew that his counsel had left the Public
Defender's Office and was in private practice.
This is evidenced
by the fact that Petitioner wrote his counsel at a private law firm
address.
Petitioner's failure to contact the Bar to obtain counsel's
forwarding address, knowing that counsel had left the Public
Defender's Office and was in private practice, does not constitute
an exercise of reasonable diligence.
11
In sum, the Court is not
persuaded the Petitioner diligently attempted to ascertain the new
address of his trial attorney.
Instead, he just re-mailed a
request for records to the same out-dated address.
As noted by
Respondents, there is nothing extraordinary about an attorney
changing a mailing address, particularly after several years passed
after the representation.
Here, Petitioner's 2009 letters to
counsel were sent long after counsel's representation of Petitioner
in 2006.
Ex. K at 40-42, 71.
Petitioner also attempts to rely on Martinez v. Ryan, 132
S.Ct. 1309 (2012) to argue that his counsel abandoned him after the
evidentiary hearing on the motion for new trial in state court.
Supplemental Reply at 6.
The record does not evince abandonment.
On the contrary, the record demonstrates that counsel requested
that the Public Defender be appointed to represent Petitioner on
appeal.
At the conclusion of the hearing on June 26, 2006, Mr.
Messore said: "I would only ask if Mr. Ramirez can't afford his own
counsel that the Public Defender Officer be appointed to represent
him in any future appeal."
"[t]hey will be appointed."
Ex. K at 71.
Id.
The court responded:
The record also shows that
Assistant Public Defender Richard M. Summa represented Petitioner
on appeal after the trial court denied the motion for new trial and
reinstated the judgment and sentence.
Ex. L; Ex. N.
To the extent that Petitioner is attempting to rely on
Martinez to excuse his untimely filing because of counsel's alleged
12
unresponsiveness during state post conviction proceedings, such a
claim does not excuse Petitioner's untimely filing of his Petition.
The holding in Martinez is inapplicable to this case:
The Eleventh Circuit has expressly rejected
petitioner's argument that Martinez applies to
overcome the statute of limitations bar.
Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir.
2014) (holding that "the Martinez rule
explicitly relates to excusing a procedural
default of ineffective-trial-counsel claims
and does not apply to AEDPA's statute of
limitations or the tolling of that period.").
Sledge v. Jones, No. 3:14-cv92/MCR/CJK, 2015 WL 521057, at *4 (N.D.
Fla. Feb. 9, 2015), appeal filed by Sledge v. Jones (11th Cir. Mar.
12, 2015).
The Eleventh Circuit explained:
As our discussion shows, the Martinez
rule
explicitly
relates
to
excusing
a
p r o c e d u r a l
d e f a u l t
o f
ineffective-trial-counsel claims and does not
apply to AEDPA's statute of limitations or the
tolling
of
that
period.
The
§
2254
ineffective-trial-counsel claims in Martinez
and Trevino were not barred by AEDPA's
one-year limitations period. Instead, those §
2254 claims were dismissed under the doctrine
of procedural default because the petitioners
never timely or properly raised them in the
state courts under the states' procedural
rules. At no point in Martinez or Trevino did
the Supreme Court mention the "statute of
limitations," AEDPA's limitations period, or
tolling in any way.
Arthur v. Thomas, 739 F.3d 611, 630 (11th Cir.), cert. denied, 135
S.Ct. 106 (2014).
In Petitioner's case, there has been no proof of "bad faith,
dishonesty, or the like on counsel's part" in counsel's not sending
13
Petitioner
a
representation
copy
of
the
concluded.
trial
See
court
Wereski
record
v.
after
McNeil,
his
No.
3:08cv213/LAC/EMT, 2009 WL 1098465, at *6 (N.D. Fla. Apr. 22, 2009)
(finding that counsel's failure to send records on appeal did not
entitle Petitioner to equitable tolling when there was no evidence
of egregious attorney misconduct).
Also, Petitioner has failed to
support his assertion that obtaining transcripts was a necessity in
order to complete his Rule 3.850 motion.
See Neal v. McNeil, No.
3:09cv23/MCR/EMT, 2010 WL 298294, at *7 (N.D. Fla. Jan. 15, 2010)
(holding that the petitioner failed to show that denial of a copy
of a trial transcript prevented his filing of a Rule 3.850 motion
because in Florida, the Rule 3.850 form provides the applicant with
the structure to state the grounds and briefly summarize the facts
supporting those grounds without any requirement of attaching
transcripts or providing citations to the transcripts).
Finally, Petitioner could have filed his motion for post
conviction relief while explaining to the court that he was unable
to obtain the transcript from his attorneys or the clerk's office.
Bennett v. McNeil, No. 3:10cv118/LC/MD, 2010 WL 5169084, at *5
(N.D. Fla. Nov. 8, 2010) (footnote omitted) (citing Powe v.
Culliver, 205 F. App'x 729, 734-35 (11th Cir. 2006), cert. denied,
549 U.S. 1270 (2007)), report and recommendation adopted by 2010 WL
5173693 (N.D. Fla. Dec. 13, 2010).
14
In fact, he could have sought
leave to amend the Rule 3.850 after filing his initial motion on
the form.
Petitioner also complains that the State of Florida diminished
his ability to file his Rule 3.850 motion by requiring that claims
of ineffective assistance of counsel be made outside of the direct
appeal process.
Supplemental Reply at 7.
Upon review, this
clearly does not constitute an extraordinary circumstance excusing
Petitioner's
untimely
filing
of
his
federal
Petition.
All
convicted offenders in Florida must comply with this requirement.
Therefore, there is nothing extraordinary about it.
se
representation
alone
is
not
a
meritorious
insufficient to warrant equitable tolling.
States, 544 U.S. 295, 311 (2005).
Moreover, pro
excuse
and
is
Johnson v. United
While the Court recognizes that
the lack of a formal education presents challenges, it does not
excuse Petitioner from complying with the time constraints for
filing a federal petition.
Moore v. Bryant, No. 5:06cv150/RS/EMT,
2007 WL 788424, at *2-*3 (N.D. Fla. Feb. 12, 2007) (not reported in
F.Supp.2d) (Report and Recommendation), report and recommendation
adopted by the District Court on March 14, 2007.
And finally, construing the Supplemental Reply liberally,
Petitioner claims there was limited prison law library access
during the time period in which he needed to pursue post conviction
remedies because the prison system removed a vast majority of legal
books from Columbia Correctional Institution (CCI) as outdated, and
15
CCI was on lockdown for the majority of the time during the last
five years.4
Supplemental Reply at 7.
This claim is unavailing;
Petitioner may seek access to legal materials even if he is in
confinement status by requesting delivery of the legal materials.
Furthermore, although the number of books in an institutional law
library may be reduced, on-line legal library resources are vast.
The Court finds this entire argument unavailing.
"[C]ircumstances warranting equitable tolling"
do not include restricted access to a law
library.
Miller v. Florida, 307 Fed. Appx.
366, 368 (11th Cir. 2009) (citing Akins v.
United States, 204 F.3d 1086, 1089-90 (11th
Cir. 2000); see also Paulcin v. McDonough, 259
Fed. Appx. 211, 213 (11th Cir. 2007)
("Paulcin's transfer to county jail and denial
of access to his legal papers and the law
library did not constitute extraordinary
circumstances."); Coleman v. Mosley, 2008 WL
2039483 at *3 (M.D. Ala. May 12, 2008)
("Petitioner'[s] pro se status, ignorance of
the law, limited law library access, and lack
of legal assistance are insufficient grounds
on which to toll the limitation period.").
Couch v. Talladega Circuit Courts, No. 1:11-cv-1737-JFG-MHH, 2013
WL 3356908, at *5 (N.D. Ala. July 3, 2013).
Petitioner's claim of limited law library access does not
constitute an extraordinary circumstance, and Petitioner has not
met the burden of showing that equitable tolling is warranted.
4
The claim of CCI being on lockdown for the majority of the
time during the last five years appears to be a greatly exaggerated
contention and is completely unsupported.
16
Petitioner had ample time to exhaust state remedies and
prepare and file a federal petition. He fails to demonstrate he is
entitled to equitable tolling.
Also of note, Petitioner does not
assert or demonstrate that he has new evidence establishing actual
innocence.
See Reply and Supplemental Reply.
Therefore, this
Court will grant Respondents' Motion to Dismiss Habeas Petition as
Untimely, and dismiss the case with prejudice pursuant to 28 U.S.C.
§ 2244(d).
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
Respondents'
Motion
to
Dismiss
Habeas
Petition
as
Untimely (Doc. 9) is GRANTED.
2.
The Petition is DISMISSED with prejudice.
3.
The Clerk shall enter judgment dismissing the Petition
with prejudice and dismissing the case with prejudice.
4.
The Clerk shall close the case.
5.
If Petitioner appeals the dismissal of the Petition, the
Court denies a certificate of appealability.5
5
Because this Court
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial 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) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
17
has
determined
that
a
certificate
of
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case.
Such termination shall serve as a denial of
the motion.
DONE AND ORDERED at Jacksonville, Florida, this 3rd day of
November, 2015.
sa 10/29
c:
Gilbert Ramirez, III
Counsel of Record
certificate of appealability.
18
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