Devero v. United States of America
Filing
23
ORDER denying 1 Motion to Vacate, Set Aside, or Correct Sentence as supplemented by 12 Supplement to Motion to Vacate; granting 6 motion requesting leave to file response out of time; denying 14 Motion to Supplement; denying 17 Motion to Supplement. Signed by Judge Timothy J. Corrigan on 7/3/2017. (JHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DONTAE JAMAR DEVERO,
Petitioner,
vs.
Case No.:
UNITED STATES OF AMERICA,
Respondent.
3:14-cv-606-J-32JRK
3:13-cr-12-J-32JRK
/
ORDER
This case is before the Court on Petitioner Dontae Jamar Devero’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1), 1
Supporting Memorandum (Civ. Doc. 2), supplement (Civ. Doc. 12), first Motion to
Amend (Civ. Doc. 14), and Second Motion to Amend (Civ. Doc. 17). The United States
has responded (Civ. Doc. 6, 15, 20), 2 and Petitioner has replied (Civ. Doc. 22). The
claim underlying all of Petitioner’s filings is the same: that his mandatory minimum
sentence was illegally enhanced from five years to ten years, under 21 U.S.C. §§
841(b)(1)(B) and 851, because his prior drug convictions do not qualify as “felony drug
offense[s]” within the meaning of § 841(b)(1)(B), and counsel was ineffective for not
Citations to the record of the underlying criminal case, United States vs. Dontae
Jamar Devero, Case No. 3:13-cr-12-J-32JRK, will be denoted as “Crim. Doc. __.”
Citations to the record of the civil § 2255 case, Case No. 3:14-cv-606-J-32JRK, will be
denoted as “Civ. Doc. __.”
1
The United States inadvertently filed its response three days late, and
requested leave to file its response out of time. (Civ. Doc. 6 at 1). The request is
granted.
2
objecting to the alleged error.
Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings, the
Court has determined that an evidentiary hearing is not necessary to decide the
petition.
See Aron v. United States, 291 F.3d 708, 714–15 (11th Cir. 2002) (an
evidentiary hearing is not required when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently frivolous, or if in assuming that
the facts he alleges are true, he still would not be entitled to any relief). For the
reasons set forth below, Petitioner’s Motion to Vacate is due to be denied.
I.
Background
On January 23, 2013, a grand jury returned a four-count indictment charging
Petitioner with (1) conspiracy to distribute 28 grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846; (2) possession with intent to
distribute cocaine base, in violation of §§ 841(a)(1) and 841(b)(1)(C); (3) possession of
a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c);
and (4) possession of a firearm by a convicted felon, in violation of § 922(g)(1).
As a result of negotiations between the prosecutor and Petitioner’s counsel,
Thomas Bell, the United States agreed to drop Counts Two, Three, and Four, including
the § 924(c) firearm charge. In exchange, Petitioner agreed to plead guilty to Count
One, subject to an enhanced ten-year mandatory minimum sentence pursuant to 21
U.S.C. §§ 841(b)(1)(B) and 851, as Petitioner had been previously convicted of a felony
drug offense. (See Crim. Doc. 38, § 851 Information). Both sides, including Petitioner
himself, agreed that this arrangement was mutually advantageous. As the parties
2
explained:
MR. TALBOT:
Yes, Your Honor. And just to – my – my – Mr. Bell
and I went back and forth quite – quite a lot just kind
of negotiating the case.
He was originally charged with a 924(c). So he faced
ten years minimum; five for the drug conspiracy, five
for the 924(c), consecutive.
Mr. Bell, through negotiations, got me to agree to
drop the 924(c). But in exchange I was taking the
position that we weren’t willing to give up the tenyear minimum mandatory, whether we reached the
ten years with the 924(c) and no 851 enhancement or
whether we reached it with it. I think actually his
guidelines are more favorable in this scenario –
THE COURT:
Right.
MR. TALBOT:
– than they otherwise would have been, that scenario,
being that he – he understood we were going to file
the 851 and take it up to ten years that way.
THE COURT:
Right.
MR. TALBOT:
So that –
THE COURT:
And that was – Mr. Bell, I take it that was – you felt
like it was in Mr. – knowing that the ten years was
going to be there anyway, you felt like it was in Mr.
Devero’s interest to have it all be on the drugs and
not involve the gun; is that correct?
MR. BELL:
Well, we mutually agreed –
THE COURT:
Yeah.
MR. BELL:
– that that was favorable. I mean, the government
feels strongly that they certainly could have charged
all three mandatories, as the court correct – you
know, whether they could have proven at trial, had
we gone that way, you know, obviously –
3
THE COURT:
Right.
MR. BELL:
– remains to be seen. But I would say that it’s my
understanding from Mr. Devero that this was
perceived to be in his best interest to proceed this way
on the 851 – the 851 enhancement, rather than the
924(c) enhancement.
THE COURT:
Fair enough.
MR. BELL:
Is that fair?
DEFENDANT:
Yes, sir.
THE COURT:
So, Mr. Devero, I think, again – you know, I’m not
expecting you to be happy with all those answers, but
I think I’m telling you like it is.
DEFENDANT:
Oh, I’m content with that, sir.
(Crim. Doc. 60, Sentencing Transcript at 29-31).
In furtherance of this plea agreement, on May 17, 2013, the United States filed
an information to establish prior convictions pursuant to 21 U.S.C. § 851. (Crim. Doc.
38). The United States notified Petitioner that it was seeking an increased mandatory
minimum sentence on Count One due to Petitioner’s prior convictions for (1)
possession of cocaine, in Case Number 16–2010–CF–003355–AXXX–MA, in the circuit
court in and for Duval County, Florida, and (2) possession of cocaine and possession
with intent to sell cannabis, in Case Number 16–2011–CF–005533–AXXX–MA, in the
circuit court in and for Duval County, Florida. (Crim. Doc. 38 at 1-2). The United
States attached the judgments for the prior convictions, which reflected that each
offense was a third-degree felony. (Crim. Doc. 38-1; Crim. Doc. 38-2).
A few days later, Petitioner pled guilty to Count One pursuant to the written
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plea agreement. (Crim. Doc. 43, Plea Agreement; Crim. Doc. 59, Plea Transcript). The
Court reminded Petitioner that because of the § 851 enhancement, the mandatory
minimum sentence was ten years in prison and the maximum sentence was life.
(Crim. Doc. 59 at 16-17). Petitioner stated that he understood the potential sentence,
and his counsel assured the Court that he and Petitioner had reviewed the § 851
enhancement. (Id. at 17). Petitioner admitted that he and a co-conspirator sold
approximately 100 grams of cocaine base from a motel room in Jacksonville, Florida,
and additionally, that he and the co-conspirator kept two loaded firearms in the room.
(Crim. Doc. 59 at 25-27; Crim. Doc. 43 at 19-20). Petitioner acknowledged that he did
not know what sentence he would ultimately receive, but he hoped that it would be
the mandatory minimum of ten years. (Id. at 29).
At the sentencing hearing, and pursuant to 21 U.S.C. § 851(b), the Court asked
Petitioner whether he affirmed or denied that he had been convicted of the felony drug
offenses alleged in the § 851 information. (Crim. Doc. 60 at 2-3). Petitioner affirmed
that he had been convicted as alleged. (Id. at 3). The Court notified Petitioner that if
he did not challenge those prior convictions, he waived the right to challenge their
validity later on. (Id. at 3-4). Petitioner stated that he understood, and he raised no
objection to the convictions. (Id. at 4).
The Court sentenced Petitioner to the ten-year mandatory minimum. (Crim.
Doc. 51, Judgment; Crim. Doc. 60 at 37). While the Court noted that Petitioner had a
lengthy criminal record for someone who was only 23-years old, the Court expressed
optimism that he could still get his life back on track. As such, the Court concluded
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that ten years was sufficient, but not greater than necessary, to accomplish the
purposes of sentencing. The Court entered judgment on September 13, 2013, and
Petitioner did not file an appeal.
II.
Petitioner’s Claim
Petitioner timely filed the Motion to Vacate. He argues that his prior convictions
for possession of cocaine, in violation of Fla. Stat. § 893.13(6)(a), and possession of
cannabis with intent to sell, in violation of Fla. Stat. § 893.13(1)(a)2, do not qualify as
“felony drug offense[s]” for purposes of the enhanced sentence under 21 U.S.C. §§
841(b)(1)(B) and 851. Relying chiefly upon Descamps v. United States, 133 S. Ct. 2276
(2013), Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), and Donawa v. Attorney General,
735 F.3d 1275 (11th Cir. 2013), Petitioner contends that his prior convictions do not
qualify as “felony drug offense[s]” because they do not categorically match a generic
federal drug trafficking crime. (Civ. Doc. 2 at 5-9). Specifically, Petitioner argues that
his prior convictions are not “felony drug offense[s]” because knowledge of the illicit
nature of a controlled substance is not an element of an offense under Fla. Stat. §
893.13, whereas such knowledge is an element of a federal drug trafficking crime. (Civ.
Doc. 2 at 8-9). Petitioner claims counsel was ineffective for not raising this challenge
to the sentencing enhancement.
Before the United States responded, Petitioner moved for leave to supplement
his Motion to Vacate with a claim that counsel failed to advise him, before he pled
guilty, that any “mention of a firearm eliminates the benefit[s] of completing the
[Residential Drug Abuse Program].” (Civ. Doc. 5). The Court granted leave to amend
6
(Civ. Doc. 7), and extended the deadline to file the supplemental claim to December
22, 2014 (Civ. Doc. 10). On December 22, 2014, however, Petitioner filed a supplement
that merely repeated arguments concerning the § 851 enhancement. (Civ. Doc. 12).
On July 10, 2015, Petitioner filed a single-page motion to supplement, in which
he sought to raise a claim pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015)
(holding that the Armed Career Criminal Act’s “residual clause,” part of 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague). (Civ. Doc. 14). This motion is due to be
denied as futile. Petitioner was never sentenced under the Armed Career Criminal Act
(ACCA), and as such, Johnson has no bearing on Petitioner’s case.
On August 9, 2016, Petitioner filed a second motion to supplement based on
Mathis v. United States, 136 S. Ct. 2243 (2016). (Civ. Doc. 17). In Mathis, the Supreme
Court clarified how to identify whether a criminal statute is “divisible,” i.e., whether
it has alternative elements, for purposes of analyzing whether a prior conviction
qualifies as a generic burglary under the ACCA. Petitioner repeats his argument that
his prior convictions do not qualify as “felony drug offense[s],” within the meaning of
21 U.S.C. § 841(b)(1), because their elements do not match those of a generic federal
drug crime. This motion is also due to be denied because Mathis concerned only how
to analyze criminal statutes for purposes of the ACCA; it had no bearing on Title 21
sentencing enhancements. In any event, Petitioner’s focus on whether his prior
convictions matched a generic federal drug crime is misplaced for the reasons stated
below.
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III.
Discussion
Pursuant to Title 28, United States Code, Section 2255, a person in federal
custody may move to vacate, set aside, or correct his sentence. Section 2255 permits
such collateral challenges on four specific grounds: (1) the imposed sentence was in
violation of the Constitution or laws of the United States; (2) the court did not have
jurisdiction to impose the sentence; (3) the imposed sentence exceeded the maximum
authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack.
28 U.S.C §2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims
of error that are so fundamental as to cause a complete miscarriage of justice will
warrant relief through collateral attack. United States v. Addonizio, 442 U.S. 178,
184-86 (1979). A petitioner’s challenge to his sentence based on a Sixth Amendment
claim of ineffective assistance of counsel is normally considered in a collateral attack.
United States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).
To succeed on a claim of ineffective assistance of counsel, a petitioner must show
both (1) that counsel’s performance was deficient, and (2) that as a result of counsel’s
deficient performance, the petitioner suffered prejudice. Strickland v. Washington,
466 U.S. 668, 687 (1984). In determining whether counsel performed deficiently, the
Court adheres to the standard of reasonably effective assistance. Weeks v. Jones, 26
F.3d 1030, 1036 (11th Cir. 1994). The petitioner must show, in light of all the
circumstances, that counsel’s performance fell outside the “wide range of
professionally competent assistance.” Id. To show that counsel’s deficient performance
prejudiced the defendant, the petitioner must show that there is a reasonable
8
probability that, but for counsel’s error, the result of the proceeding would have been
different.
Id. at 1036-37 (citing Strickland, 466 U.S. at 694).
A “reasonable
probability” is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694. In determining whether a petitioner has met the two
prongs of deficient performance and prejudice, the Court considers the totality of the
evidence. Id. at 695. However, because both prongs are necessary, “there is no reason
for a court… to approach the inquiry in the same order or even to address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.
at 697; see also Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We
need not discuss the performance deficiency component of [petitioner’s] ineffective
assistance claim because failure to satisfy the prejudice component is dispositive.”).
A. Whether Petitioner’s Prior Convictions Qualified as “Felony Drug
Offense[s]” Within the Meaning of 21 U.S.C. § 841(b)(1)(B)
To the extent Petitioner directly challenges his enhanced sentence under 21
U.S.C. § 841(b)(1)(B), such a claim is procedurally defaulted. “Under the procedural
default rule, a defendant generally must advance an available challenge to a criminal
conviction or sentence on direct appeal or else the defendant is barred from presenting
that claim in a § 2255 proceeding.” Lynn v. United States, 365 F.3d 1225, 1234 (11th
Cir. 2004) (citing McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001)).
Petitioner could have argued, either before this Court or on direct appeal, that his
prior convictions did not qualify as “felony drug offense[s]” under § 841(b)(1)(B), but
he did not. To the contrary, Petitioner accepted the consequences of the § 851
enhancement when he pled guilty, he raised no objection to the enhancement at the
9
sentencing hearing, and he did not appeal. As such, Petitioner cannot raise this claim
for the first time on collateral review.
B. Whether Counsel Gave Ineffective Assistance
To the extent Petitioner argues that counsel should have challenged whether
his prior drug convictions qualified him for an enhanced sentence under § 841(b)(1)(B),
he has not shown deficient performance or prejudice. Petitioner’s prior convictions for
possession of cocaine and possession of cannabis with intent to sell, in violation of Fla.
Stat. §§ 893.13(6)(a) and 893.13(1)(a)2, respectively, properly qualified him for an
enhanced sentence. It does not matter if the prior offenses did not match the elements
of a generic federal drug crime, or that neither statute required proof of the defendant’s
mens rea regarding the illicit nature of a controlled substance.
Pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, any person who
conspires to distribute 28 grams or more of cocaine base is subject to a five-year
mandatory minimum sentence and a 40-year maximum sentence. If a person “commits
such a violation after a prior conviction for a felony drug offense has become final, such
person shall be sentenced to a term of imprisonment which may not be less than 10
years and not more than life imprisonment[.]” 21 U.S.C. § 841(b)(1)(B).
While Petitioner insists that none of his prior drug convictions qualify as a
“felony drug offense” because their elements do not match those of a generic federal
drug crime, he overlooks the statutory definition of “felony drug offense.” “The term
‘felony drug offense’ means an offense that is punishable by imprisonment for more
than one year under any law of the United States or of a State or foreign country that
10
prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids,
or depressant or stimulant substances.” 21 U.S.C. § 802(44) (emphasis added). The
words “or of a State or foreign country” make clear that a prior drug conviction need
not be the equivalent of a felony under the federal Controlled Substances Act to qualify
as a “felony drug offense.” It is sufficient if an offense (1) is punishable by
imprisonment for more than one year, (2) under any State law, (3) that regulates
conduct relating to narcotics, marijuana, anabolic steroids, depressants, or stimulants.
And, like the ACCA’s definition of the term “serious drug offense,” “[n]o element of
mens rea with respect to the illicit nature of the controlled substance is expressed or
implied by” § 802(44)’s definition of “felony drug offense.” See United States v. Smith,
775 F.3d 1262, 1267 (11th Cir. 2014).
Turning to Petitioner’s prior drug convictions, any one of them would have
satisfied the definition of a “felony drug offense.” The judgments from Petitioner’s two
prior drug convictions reflect that on both occasions he was convicted of possession of
cocaine under Fla. Stat. § 893.13(6)(a), which is a third-degree felony. (Crim. Doc. 381 at 1; Crim. Doc. 38-2 at 1). Florida law provides that third-degree felonies are
punishable “by a term of imprisonment not exceeding 5 years.” Fla. Stat. §
775.082(3)(e). Florida’s drug schedules include cocaine, a stimulant, among the list of
controlled substances. Fla. Stat. § 893.03(2)(a)4. Thus, either of these convictions
qualified as a “felony drug offense” because each offense was (1) punishable by
imprisonment for more than one year, (2) under a State law, (3) that regulated conduct
relating to a stimulant substance (among other substances). Indeed, the Eleventh
11
Circuit has stated that “[b]ecause [a] conviction for cocaine possession under §
893.13(6)(a) [is] punishable by more than one year of imprisonment, it constitute[s] a
‘felony’ drug offense” under 21 U.S.C. §§ 841(b)(1)(B) and 802(44). United States v.
Neal, 520 F. App’x 794, 795 (11th Cir. 2013); see also Albo v. United States, 498 F.
App’x 490, 496 (6th Cir. 2012) (finding that a defendant’s prior conviction for
possession of cocaine under Florida law was a “felony drug offense” within the meaning
of 21 U.S.C. §§ 841(b)(1)(B) and 802(44)).
The same conclusion applies to Petitioner’s prior conviction for possession of
cannabis with intent to sell. (See Crim. Doc. 38-2 at 1). Section 893.13(1)(a)2 of the
Florida Statutes makes it a third-degree felony to possess with intent to sell any
substance listed in Fla. Stat. § 893.03(1)(c). Cannabis is listed under § 893.03(1)(c)7.
The judgment from Petitioner’s conviction in Case Number 16–2011–CF–005533–
AXXX-MA reflects that he was convicted of “Possession with Intent to Sell Cannabis,”
in violation of Fla. Stat. § 893.13(1)(a)2. (Crim. Doc. 38-2 at 1). Thus, this conviction
also qualified as a “felony drug offense” because it was (1) punishable by imprisonment
for more than one year, (2) under a State law, (3) that regulated conduct relating to
marijuana.
As such, any objection to whether Petitioner’s prior convictions qualified as
“felony drug offense[s]” would have been meritless. Although Petitioner contends that
counsel should have invoked Descamps, Moncrieffe, and Donawa to challenge the
enhancement, all of these cases are inapposite. Descamps involved whether burglary
under California law matched the generic definition of burglary for purposes of the
12
ACCA’s 15-year mandatory minimum sentence. 133 S. Ct. at 2281-83. Moncrieffe and
Donawa concerned whether a noncitizen’s prior conviction, under state drug laws,
equated to “an offense that the Controlled Substances Act (CSA) makes punishable by
more than one year's imprisonment” for purposes of deportation under the
Immigration and Nationality Act. Moncrieffe, 133 S. Ct. at 1683; see also Donawa, 735
F.3d at 1280-81. 3 What all three cases had in common is that they required a
comparison of the elements of a person’s prior conviction under state law with the
generic definition of some offense, be that generic burglary or a generic federal drug
crime. By contrast, determining whether a prior conviction qualifies as a “felony drug
offense” under 21 U.S.C. §§ 841(b)(1)(B) does not require that the crime match the
generic definition of some other offense. Section 802(44) supplies the definition of the
term “felony drug offense,” and it includes any drug crime that state law makes
punishable by imprisonment for more than one year. As such, Descamps, Moncrieffe,
and Donawa are inapplicable, and they gave counsel no ground for challenging
whether Petitioner’s prior convictions qualified as “felony drug offense[s].”
Moreover, Petitioner knowingly accepted the enhanced § 841(b)(1)(B) sentence
pursuant to a negotiated plea that he judged to be in his best interest. (See Crim. Doc.
60 at 29-31). As the parties recounted during the sentencing hearing, Petitioner was
facing a ten-year mandatory minimum regardless of the § 851 enhancement. Even
Moncrieffe and Donawa focused on whether the noncitizen’s state law drug
conviction equated to a felony under the CSA because the Immigration and
Nationality Act expressly tied the definition of “illicit trafficking in a controlled
substance” to whether an offense would be a felony under the federal CSA. See 8
U.S.C. § 1101(a)(43)(B); Moncrieffe, 133 S. Ct. at 1683; Donawa, 735 F.3d at 1280.
3
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without the enhancement, Petitioner was facing a five-year mandatory minimum on
the § 841(b)(1)(B) charge (Count One) plus a five-year consecutive mandatory
minimum on the 18 U.S.C. § 924(c) firearm charge (Count Three). By pleading guilty
to the § 841(b)(1)(B) charge with the sentencing enhancement, he avoided the § 924(c)
firearm charge. As a result, Petitioner’s mandatory minimum exposure was still ten
years, but he avoided the more severe guidelines calculation that might have
accompanied a firearm conviction. (See Crim. Doc. 60 at 29-31). Thus, Petitioner
accepted the § 851 enhancement as part of a plea deal that was for his benefit.
Petitioner has not demonstrated that counsel’s decision not to challenge the § 851
enhancement was deficient or prejudicial.
In light of the foregoing, it is hereby ORDERED:
1. The United States’ motion for leave to file its response out of time (Civ. Doc. 6
at 1) is GRANTED.
2. Petitioner Dontae Jamar Devero’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Civ. Doc. 1), as supplemented (Civ. Doc. 12), is
DENIED.
3. Petitioner’s motions to supplement (Civ. Doc. 14, Civ. Doc. 17) are DENIED as
futile for the reasons stated herein.
4. The Clerk shall enter judgment in favor of the United States and against
Petitioner, and close the file. 4
The Court recently received a letter from Mr. Devero inquiring about his case
and reporting on some things he has done to better himself while in custody, including
4
14
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to
appeal a district court’s denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (COA). Id. “A [COA] may issue…
only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. at § 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) (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)).
Petitioner has not made the requisite showing in these circumstances.
Because
Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in
forma pauperis.
DONE AND ORDERED at Jacksonville, Florida this 3rd day of July, 2017.
obtaining a G.E.D. While I have no legal basis to grant Mr. Devero relief, I want to
encourage him to continue to make the most out of his time in custody so when he is
released, he can become a productive, law-abiding citizen. I wish him well in his
efforts.
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Lc 19
Copies:
Counsel of record
Petitioner Dontae Jamar Devero
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