Milling v. Secretary, Department of Corrections et al
Filing
25
ORDER denying the Petition 1 and dismissing the action with prejudice. Signed by Judge Marcia Morales Howard on 10/4/2017. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIE JAMES MILLING,
Petitioner,
v.
Case No. 3:14-cv-1450-J-34PDB
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Willie James Milling, an inmate of the Florida
penal system, initiated this action on November 28, 2014, by filing
a pro se Petition for Writ of Habeas Corpus (Doc. 1) under 28
U.S.C. § 2254. In the Petition, Milling challenges a 2011 state
court (St. Johns County, Florida) judgment of conviction for sale
of cocaine. Respondents have submitted a memorandum in opposition
to the Petition. See Respondents' Response to Petition (Response;
Doc. 13) with exhibits (Resp. Ex.). On September 28, 2015, the
Court entered an Order to Show Cause and Notice to Petitioner (Doc.
12), admonishing Milling regarding his obligations and giving
Milling a time frame in which to submit a reply. Milling submitted
a brief in reply. See Reply to Respondents' Show Cause Answer
(Reply; Doc. 20). This case is ripe for review.
II. Procedural History
On June 10, 2010, the State of Florida charged Milling with
sale of cocaine. See Resp. Ex. 1 at 12, Information. Milling
proceeded to a non-jury trial in June 2011, see Resp. Ex. B,
Transcript of the Non-Jury Trial (Tr.), at the conclusion of which,
on June 14, 2011, the court found him guilty of sale of cocaine,
see id. at 109. On July 21, 2011, the court sentenced Milling to a
term of imprisonment of fifteen years. Resp. Exs. A at 139-44; C,
Transcript of the Sentencing Hearing, at 15.
On direct appeal, Milling, with the benefit of counsel, filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
arguing that the trial court erred when it denied: his motion to
suppress (ground one), and his petition for writ of habeas corpus
(ground two). Resp. Ex. D. Milling filed a pro se brief, arguing
that the trial court erred when it: failed to appoint conflict-free
counsel at a critical stage and conduct a Faretta1 hearing (ground
one); overruled his objection to a discovery violation and admitted
a videotape (ground two); admitted evidence over his objection
relating to a discovery violation (ground three); misstated the
law, overruled his objection, admitted the cocaine and brown bag,
and did not permit him to introduce evidence of tampering (ground
four);
failed
to
correct
a
fundamental
error
as
to
the
unconstitutionality of Florida Statutes section 893.13 (ground
1
Faretta v. California, 422 U.S. 806 (1975).
2
five); and failed to conduct an inquiry as to whether he made a
knowing, intelligent, and voluntary waiver of his right to a jury
trial (ground six). Resp. Ex. E. The State filed a notice that it
did not intend to file an answer brief. See http://www.5dca.org,
Milling v. State of Florida, case number 5D11-2831. On April 20,
2012, the appellate court affirmed Milling's conviction per curiam,
see Milling v. State, 91 So.3d 157 (Fla. 5th DCA 2012); Resp. Ex.
F, and later denied Milling's motion for rehearing on May 22, 2012,
see Resp. Exs. G; H. The mandate issued on August 21, 2012. See
Resp. Ex. I.
Milling filed a pro se motion for post-conviction relief
pursuant to Florida Rule of Criminal Procedure 3.850 on July 5,
2012. See Resp. Ex. J. He filed an amended motion on July 20, 2012,
see Resp. Ex. K; a second amended motion (Rule 3.850 motion) on
September 28, 2012, see Resp. Ex. L; and a supplement on April 3,
2013, see Resp. Ex. M. In his request for post-conviction relief,
Milling
asserted
that
the
trial
court
lacked
subject
matter
jurisdiction to enter the judgment and sentence (ground one); the
State committed a fundamental error when it filed the Information
without obtaining a sworn statement of a material witness (ground
four);
the
Information
had
false
statements
and
facts
that
invalidated it, and therefore, he was convicted of an uncharged
crime (ground five); the trial court erred when it failed to renew
the offer of counsel to Milling at the suppression hearing and
3
trial and conduct a Faretta
inquiry to determine if Milling
understood his right to counsel (ground six); the trial court erred
when it denied his right to a trial by jury and failed to obtain a
waiver from Milling (ground seven); the State failed to provide
Deputy Brush's field notes in its response to discovery (ground
eight); the charging Information is fundamentally defective (ground
nine); Florida Statutes section 893.13 is unconstitutional (ground
ten); there was insufficient evidence to convict (ground eleven);
Milling is actually innocent of the crime (ground twelve); and
Deputy
John
Brush
committed
fraud
upon
the
court
when
he
deliberately included false statements in his affidavit (ground
thirteen). Additionally, he stated that counsel (Tyler Williams and
Craig Atack) were ineffective because they failed to file a motion
to dismiss the invalid Information (grounds two and three). The
State responded. See Resp. Ex. N. The circuit court denied the Rule
3.850 motion. See Resp. Ex. O. On March 4, 2014, the appellate
court affirmed the court's denial of post-conviction relief per
curiam, see Milling v. State, 138 So.3d 467 (Fla. 5th DCA 2014);
Resp. Ex. R, and later denied Milling's motion for rehearing, see
Resp. Exs. S; T. The mandate issued on April 25, 2014. See Resp.
Ex. U.
During
the
pendency
of
the
post-conviction
proceedings,
Milling filed a pro se petition for writ of habeas corpus on April
14, 2014. See Resp. Ex. V. He filed an amended petition on April
4
23, 2014. See Resp. Ex. W. In the amended petition, Milling
asserted that the trial court erred when it failed to offer him
counsel and obtain a waiver of counsel at the suppression hearing
(ground one); appellate counsel was ineffective when he failed to
raise the following claim on direct appeal: the trial court erred
when it failed to conduct a Faretta inquiry (ground two); there was
a
conflict
of
interest
when
the
court
appointed
the
public
defender's office as standby counsel because the office also
represented
Milling's
co-defendant
(ground
three);
and
the
conviction is illegal because the State's charging Information was
invalid since it was not supported by the sworn testimony of the
material witness (ground four). The State responded, see Resp. Ex.
Y, and Milling replied, see Resp. Ex. Z. The appellate court denied
the petition and amended petition on September 4, 2014, see Resp.
Ex. AA, and later denied Milling's motion for rehearing on October
6, 2014, see Resp. Exs. BB; CC.
III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner
to establish the need for a federal evidentiary hearing. See Chavez
v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011). "In deciding whether to grant an evidentiary hearing, a
5
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec'y,
Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2245 (2017). "It follows that 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, 550 U.S. at 474. The pertinent facts
of this case are fully developed in the record before the Court.
Because this Court can "adequately assess [Milling's] claim[s]
without further factual development," Turner v. Crosby, 339 F.3d
1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be
conducted.
V. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas
corpus. See Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct.
1432 (2017). "'The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of error
correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)
(quotation marks omitted)). As such, federal habeas review of final
6
state court decisions is "'greatly circumscribed' and 'highly
deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343
(11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim on
the merits. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227, 1235 (11th Cir. 2016) (en banc), cert. granted, 137 S.Ct.
1203 (2017); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277,
1285 (11th Cir. 2016). Regardless of whether the last state court
provided a reasoned opinion, "it may be presumed that the state
court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary."
Harrington v. Richter, 562 U.S. 86, 99 (2011) (citation omitted);
see also Johnson v. Williams, 568 U.S. 289, --, 133 S.Ct. 1088,
1096 (2013).2 Thus, the state court need not issue an opinion
explaining its rationale in order for the state court's decision to
qualify as an adjudication on the merits. See Richter, 562 U.S. at
100.
If the claim was "adjudicated on the merits" in state court,
§ 2254(d) bars relitigation of the claim unless the state court's
2
The presumption is rebuttable and "may be overcome when
there is reason to think some other explanation for the state
court's decision is more likely." Richter, 562 U.S. at 99-100; see
also Johnson, 133 S. Ct. at 1096-97. However, "the Richter
presumption is a strong one that may be rebutted only in unusual
circumstances . . . ." Johnson, 133 S.Ct. at 1096.
7
decision
(1)
"was
contrary
to,
or
involved
an
unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States;" or (2) "was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d);
Richter, 562 U.S. at 97-98. As the Eleventh Circuit has explained:
First, § 2254(d)(1) provides for federal
review for claims of state courts' erroneous
legal conclusions. As explained by the Supreme
Court in Williams v. Taylor, 529 U.S. 362, 120
S. Ct. 1495, 146 L.Ed.2d 389 (2000), §
2254(d)(1) consists of two distinct clauses: a
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause
allows for relief only "if the state court
arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme] Court has on a
set of materially indistinguishable facts."
Id. at 413, 120 S. Ct. at 1523 (plurality
opinion).
The
"unreasonable
application"
clause allows for relief only "if the state
court identifies the correct governing legal
principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the
facts of the prisoner's case." Id.
Second, § 2254(d)(2) provides for federal
review for claims of state courts' erroneous
factual determinations. Section 2254(d)(2)
allows federal courts to grant relief only if
the state court's denial of the petitioner's
claim
"was
based
on
an
unreasonable
determination of the facts in light of the
evidence
presented
in
the
State
court
proceeding." 28 U.S.C. § 2254(d)(2). The
Supreme
Court
has
not
yet
defined
§
2254(d)(2)'s "precise relationship" to §
2254(e)(1), which imposes a burden on the
petitioner to rebut the state court's factual
findings "by clear and convincing evidence."
8
See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ---, ---, 135 S.
Ct. 2269, 2282, 192 L.Ed.2d 356 (2015).
Whatever that "precise relationship" may be,
"'a state-court factual determination is not
unreasonable merely because the federal habeas
court
would
have
reached
a
different
3
conclusion in the first instance.'"[ ] Titlow,
571 U.S. at ---, 134 S. Ct. at 15 (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct.
841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2298 (2017); see also Daniel v. Comm'r, Ala.
Dep't of Corr., 822 F.3d 1248, 1259 (11th Cir. 2016). Also,
deferential review under § 2254(d) generally is limited to the
record that was before the state court that adjudicated the claim
on the merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011)
(stating the language in § 2254(d)(1)'s "requires an examination of
the state-court decision at the time it was made"); Landers v.
Warden, Att'y Gen. of Ala., 776 F.3d 1288, 1295 (11th Cir. 2015)
(regarding § 2254(d)(2)).
Where
the
state
court's
adjudication
on
the
merits
is
"'unaccompanied by an explanation,' a petitioner's burden under
section 2254(d) is to 'show[] there was no reasonable basis for the
state court to deny relief.'" Wilson, 834 F.3d at 1235 (quoting
Richter, 562 U.S. at 98). Thus, "a habeas court must determine what
3
The Eleventh Circuit has described the interaction between
§ 2254(d)(2) and § 2254(e)(1) as "somewhat murky." Clark v. Att'y
Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th Cir. 2016).
9
arguments or theories supported or, as here, could have supported,
the state court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of
[the] Court." Richter, 562 U.S. at 102; see also Wilson, 834 F.3d
at 1235. To determine which theories could have supported the state
appellate court's decision, the federal habeas court may look to a
state trial court's previous opinion as one example of a reasonable
application of law or determination of fact. Wilson, 834 F.3d at
1239; see also Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir.
2017).4 However, in Wilson, the en banc Eleventh Circuit stated
that the federal habeas court is not limited to assessing the
reasoning of the lower court. 834 F.3d at 1239. As such,
even when the opinion of a lower state court
contains flawed reasoning, [AEDPA] requires
that [the federal court] give the last state
court to adjudicate the prisoner's claim on
the merits "the benefit of the doubt,"
Renico,[5] 559 U.S. at 773, 130 S.Ct. 1855
(quoting Visciotti,[6] 537 U.S. at 24, 123
S.Ct. 357), and presume that it "follow[ed]
the law," Donald,[7] 135 S.Ct. at 1376 (quoting
Visciotti, 537 U.S. at 24, 123 S.Ct. 357).
4
Although the United States Supreme Court has granted
Wilson's petition for certiorari, the "en banc decision in Wilson
remains the law of the [Eleventh Circuit] unless and until the
Supreme Court overrules it." Butts, 850 F.3d at 1205 n.2.
5
Renico v. Lett, 559 U.S. 766 (2010).
6
Woodford v. Visciotti, 537 U.S. 19 (2002).
7
Woods v. Donald, 135 U.S. 1372 (2015).
10
Id. at 1238.
Thus, "AEDPA erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in state
court." Burt v. Titlow, 134 S. Ct. 10, 16 (2013). "Federal courts
may grant habeas relief only when a state court blundered in a
manner so 'well understood and comprehended in existing law' and
'was so lacking in justification' that 'there is no possibility
fairminded jurists could disagree.'" Tharpe, 834 F.3d at 1338
(quoting Richter, 562 U.S. at 102-03). "This standard is 'meant to
be' a difficult one to meet." Rimmer v. Sec'y, Fla. Dep't of Corr.,
864 F.3d 1261, 1274 (11th Cir. 2017) (quoting Richter, 562 U.S. at
102). Thus, to the extent that Milling's claims were adjudicated on
the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
VI. Ineffective Assistance of Counsel
"The
Sixth
Amendment
guarantees
criminal
defendants
the
effective assistance of counsel. That right is denied when a
defense attorney's performance falls below an objective standard of
reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
11
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "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." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized "the
absence of any iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other." Ward, 592 F.3d at 1163.
Since both prongs of the two-part Strickland test must be satisfied
to show a Sixth Amendment violation, "a court need not address the
performance prong if the petitioner cannot meet the prejudice
prong, and vice-versa." Id. (citing Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000)). As stated in Strickland: "If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that
course should be followed." Strickland, 466 U.S. at 697.
12
A state court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he
standard
for
judging
counsel's
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
"[e]stablishing
that
a
state
court's
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is "any reasonable argument
that
counsel
satisfied
Strickland's
deferential standard," then a federal court
may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014), cert.
denied, 135 S.Ct. 2126 (2015); Knowles v. Mirzayance, 556 U.S. 111,
123 (2009). "In addition to the deference to counsel's performance
mandated
by
Strickland,
the
AEDPA
adds
another
layer
of
deference--this one to a state court's decision--when we are
considering whether to grant federal habeas relief from a state
court's decision." Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004). As such, "[s]urmounting Strickland's high bar is never
an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
13
VII. Findings of Fact and Conclusions of Law
A. Grounds One and Seven
Milling asserts that the trial court lacked subject matter
jurisdiction to enter the judgment and sentence (ground one), and
the conviction is illegal because the State's charging Information
was invalid and not supported by sworn testimony of a material
witness (ground seven). See Petition at 4-7, 21-25; Reply at 4-9,
25-30. Petitioner raised the claims in his Rule 3.850 motion in
state court. See Resp. Ex. L at 3-5, 8-10. The post-conviction
court ultimately denied the Rule 3.850 motion with respect to these
claims, stating in pertinent part:
First, Defendant claims the trial court
lacked subject matter jurisdiction to enter
judgment and sentence. "[J]urisdiction in
criminal cases is determined by the charge
made in the indictment or information," and
Section 26.012(2)(d), Florida Statutes (2012),
grants Circuit Courts original jurisdiction
over all felonies. State v. Vazquez, 405 So.2d
203, 204 (Fla. 1984). In this case, Defendant
was charged under Section 893.13(l)(a), which
is a felony, so the Circuit Court had subject
matter jurisdiction. Postconviction relief for
lack of subject matter jurisdiction is denied.
Second,
Defendant
argues
that
the
information is invalid as a fundamental error
and
prevents
proper
subject
matter
jurisdiction because it is not a "plain,
concise, and definite written statement of the
essential facts constituting the offense
charged." Fla. R. Crim. P. 3.140(b). The
information does not violate Rule 3.140(b) as
the information specifically states in plain
language that Defendant "did unlawfully and
knowingly sell, manufacture, or deliver, or
possess with intent to sell, manufacture, or
14
deliver . . . cocaine . . . , a controlled
substance," which is nearly verbatim from the
elements of 893.13(1)(a). The information,
therefore, is not vague in outlining the
essential
elements
that
constitute
the
unlawful offense as it lists certain unlawful
activities with controlled substances.
Furthermore, where omitted matter is not
material to the information, "where the actual
notice provided is sufficient, . . . where all
the elements of the crime in question are
proved at trial," and when the information
language closely resembles that of the
statute, defects in the charging information
are not fundamental. State v. Gray, 435 So.2d
817, 818 (Fla. 1983). The amount of currency
exchanged between Defendant and Detective
Dean is not material to the information, the
notice of the crime from the information is
sufficient, all the elements of the crime were
proved at trial, and, as discussed above, the
information language closely resembles the
statute. Consequently, the potential defect in
not having the amount of currency exchanged in
the
drug
transaction
included
in
the
information is not a fundamental defect.
Third, Defendant contends that the
charging information is invalid because Deputy
John Brush provided false statements and was
not a material witness to the information by
providing information that he did not witness
firsthand from his fellow undercover officer
Detective Robert Dean. Defendant's claim fails
because of the fellow officer rule. "The
fellow officer rule provides a mechanism by
which officers can rely on their collective
knowledge to act in the field. Under this
rule, the collective knowledge of officers
investigating a crime is imputed to each
officer and one officer may rely on the
knowledge and information possessed by another
officer to establish probable cause." State v.
Bowers, 87 So.3d 704, 707 (Fla. 2012).
Defendant relies on State v. Weinberg, 780
So.2d 214, 215-16 (Fla. 5th DCA 2001), in
which the court held that the officer was not
15
a material witness because the officer solely
relied on information about an altered
prescription provided to him by a doctor and
a
pharmacist
and
because
the
altered
prescription was not something the officer
could have interpreted himself since the
pharmacist and doctor worked in occupations
unrelated and unfamiliar to the officer.
Defendant's case is distinguished from both
Bowers and Weinberg because Deputy Brush was
present at the drug transaction scene,
witnessed portions of the event, did not rely
solely on his colleagues' information about
the event, and was able to interpret his
colleagues' information about the event
because of his own experiences in the law
enforcement field. (Transcript at 23-28.)
With the fellow officer rule, Deputy
B[r]ush, as the lead case agent who compiles
all of the information in the case from
evidence and other officers (T. at 44-45),
permissibly relied on his own account of the
events, the recorded audio/video tape of the
events, and Detective Dean's accounts of the
events
for
the
information's
sworn
statement.[8] Thus, Defendant's claim that a
fundamental error occurred because Deputy
Brush was not a material witness is denied.
. . . .
Defendant contends that Deputy Brush was
not
a
material
witness,
causing
the
information to be invalid and a fundamental
error. For the reasons discussed in Claim One,
Deputy Brush is permitted to compile his
firsthand
information,
facts
from
the
audio/video recordings, and fellow police
officer accounts into his affidavit under the
fellow officer rule, so the information is
valid.
8
See Tr. at 19-64 (Deputy John Brush's testimony), 65-87
(Detective Robert A. Dean's testimony).
16
Resp. Ex. O at 1-3, 4. The appellate court affirmed the court's
denial of post-conviction relief per curiam, see Resp. Ex. R, and
later denied Milling's motion for rehearing, see Resp. Exs. S; T.
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the Court will address the
claims in accordance with the deferential standard for federal
court review of state court adjudications. After a review of the
record and the applicable law, the Court concludes that the state
court's adjudication of the claims was not contrary to clearly
established
federal
law,
did
not
involve
an
unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Thus, Milling is
not entitled to relief on the basis of the claims.
Moreover,
even
assuming
the
state
appellate
court's
adjudication of the claims is not entitled to deference, Milling's
claims are still without merit. The claims present issues purely of
state law not cognizable on federal habeas review. The purpose of
a
federal
habeas
proceeding
is
to
review
the
lawfulness
of
Milling's custody to determine whether that custody is in violation
of the Constitution or laws or treaties of the United States.
Coleman v. Thompson, 501 U.S. 722 (1991). Milling's conviction and
sentence do not violate the Constitution or laws or treaties of the
United States.
17
Section 2254(a) of Title 28 provides that "a district court
shall entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State
court" upon a showing that his custody is in violation of the
Constitution
or
laws
of
the
United
States.
For
a
defective
Information to be a cognizable claim in a federal habeas corpus
action, the charging document must be so defective that it deprives
the court of jurisdiction. DeBenedictis v. Wainwright, 674 F.2d
841, 842 (11th Cir. 1982) (citations omitted) ("The sufficiency of
a state indictment or information is not properly the subject of
federal habeas corpus relief unless the indictment or information
is
so
deficient
that
the
convicting
court
is
deprived
of
jurisdiction."). Under Florida law, the state circuit courts have
jurisdiction over all felonies. See Fla. Stat. § 26.012(2)(d).
Moreover,
the
Information
described
the
date
and
in
Milling's
location
of
the
case
named
offense;
Milling;
stated
the
statutory basis; and properly set forth the elements of sale of
cocaine. See Resp. Ex. A at 12. It therefore met the minimum
requirements for invoking the jurisdiction of the state circuit
court. Additionally, the Information contained the required sworn
oath
of
the
Assistant
State
Attorney,
certifying
that
the
allegations in the Information "are based upon facts that have been
sworn to as true, and which, if true, would constitute the offense
therein charged," that the prosecution is instituted "in good
18
faith," and that the facts are "based on testimony of material
witnesses." Id. Such a sworn oath by the prosecutor that she
received testimony under oath from the material witnesses for the
offense is sufficient pursuant to applicable Florida law. See Fla.
R. Crim. P. 3.140(g).9 Undoubtedly, the trial court had subject
matter jurisdiction over Milling's case since the Information
charged him with sale of cocaine, a felony, in violation of Florida
Statutes section 893.13(1)(a). See Resp. Ex. A at 12. Thus, Milling
is not entitled to federal habeas relief on grounds one and seven.
B. Ground Two
As ground two, Milling asserts that Deputy Brush committed
fraud upon the court when he deliberately included false statements
in the probable cause and warrant affidavits. See Petition at 7-10;
Reply at 9-11. Petitioner raised the claim in a supplement to his
Rule 3.850 motion in state court. See Resp. Ex. M. The postconviction court ultimately denied the Rule 3.850 motion with
respect to this claim, stating in pertinent part:
9
Florida Rule of Criminal Procedure 3.140(g) provides:
Signature,
Oath,
and
Certification;
Information. An information charging the
commission of a felony shall be signed by the
state attorney, or a designated assistant
state attorney, under oath stating his or her
good faith in instituting the prosecution and
certifying that he or she has received
testimony under oath from the material witness
or witnesses for the offense.
19
Defendant claims that Deputy Brush
committed fraud practiced upon the court by
deliberately including false statements in his
affidavit. Defendant relies on State v.
Burton, 314 So.2d 136, 137 (Fla. 1975), in
which the court notes that an order obtained
by fraudulent misrepresentations may be
recalled and set aside in either a civil or
criminal case. In Burton, it was clear from
the record that the individual who testified
admitted that he had lied under oath and that
certain portions of his affidavit were
incorrect, not his words, or not true. Id. The
present case is distinguished from Burton
because there is no evidence that Deputy Brush
provided false statements in his affidavit.
Additionally, as discussed in Claims One,
Four, and Five, the discrepancies in facts
that Defendant highlights, such as the
direction
Defendant
was
traveling,
are
immaterial and do not affect the outcome of
the case. Therefore, Defendant's claim that
Deputy Brush committed fraud practiced upon
the court is denied.
Resp. Ex. O at 10-11. The appellate court affirmed the court's
denial of post-conviction relief per curiam, see Resp. Ex. R, and
later denied Milling's motion for rehearing.
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the Court will address the
claim in accordance with the deferential standard for federal court
review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court's
adjudication of the claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
20
the state court proceedings. Thus, Milling is not entitled to
relief on the basis of the claim. Moreover, even assuming the state
appellate court's adjudication of the claim is not entitled to
deference, Milling's claim is still without merit. Therefore,
Milling is not entitled to federal habeas relief on ground two.
C. Grounds Three and Eight
Milling asserts that he is actually innocent of the crime
(ground three), and there was insufficient evidence to convict him
(ground eight). See Petition at 11-13, 25-27; Reply at 12-15, 3033. Petitioner raised the claims in his Rule 3.850 motion in state
court.
See
Resp.
Ex.
L
at
19-23.
The
post-conviction
court
ultimately denied the Rule 3.850 motion with respect to these
claims, stating in pertinent part:
Defendant
claims
that
there
is
insufficient evidence to show that a crime was
committed. A claim of insufficiency of the
evidence is not allowed under Rule 3.850, as
it should have been raised on appeal. Rule
3.850 does not authorize relief based on
grounds that could have been or should have
been raised at trial or on direct appeal of
the judgment and sentence. Fla. R. Crim. P.
3.850(c). "[I]t is frivolous . . . to attack
the sufficiency of the evidence of his
conviction in a rule 3.850 motion." Smith v.
State, 41 So. 3d 1037, 1040 (Fla. 1st DCA
2010). "To the extent that the allegations
challenged the factual basis and sufficiency
of the evidence, such claims cannot be raised
in a Rule 3.850 motion . . ," Betts v. State,
792 So. 2d 589, 590 (Fla. 1st DCA
2001).
Therefore, Defendant's insufficiency of the
evidence claim is denied.
. . . .
21
Defendant claims "actual innocence" from
the charged crime. To prevail on an actual
innocence claim, a defendant must produce "new
reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence-that
was
not
presented
at
trial,"
which
demonstrates that, more likely than not, "no
reasonable
juror
would
have
found
the
defendant guilty beyond a reasonable doubt" in
light of all the available evidence. Tompkins
v. State, 994 So.2d 1072, 1089 (Fla. 2008)
(quoting Schlup v. Delo, 513 U.S. 298, 324,
327 (1995)). In the present case, Defendant
relies on the video that was introduced as
evidence at the trial to argue his actual
innocence claim. Defendant does not present
any "new" evidence establishing his innocence.
Therefore, Defendant's actual innocence claim
is denied.
Resp. Ex. O at 9-10. The appellate court affirmed the court's
denial of post-conviction relief per curiam, and later denied
Milling's motion for rehearing.
The
State
presented
ample
evidence
to
support
Milling's
conviction for sale of cocaine. The Due Process Clause of the
Fourteenth Amendment requires the State to prove each element of
the offense charged beyond a reasonable doubt. Thompson v. Nagle,
118 F.3d 1442, 1448 (11th Cir. 1997) (citing Jackson v. Virginia,
443 U.S. 307, 314 (1979)). In reviewing the sufficiency of the
evidence, "this court must presume that conflicting inferences to
be drawn from the evidence were resolved by the [trier of fact] in
favor of the State." Thompson, 118 F.3d at 1448 (citing Machin v.
Wainwright, 758 F.2d 1431, 1435 (11th Cir. 1985)). Jackson v.
22
Virginia
"provides
the
federal
due
process
benchmark
for
evidentiary sufficiency in criminal cases." Williams v. Sec'y for
Dep't of Corr., 395 F. App'x 524, 525 (11th Cir. 2010) (per curiam)
(citing Green v. Nelson, 595 F.3d 1245, 1252-53 (11th Cir. 2010)).
In accordance with this authority, the relevant question is whether
any rational [trier of fact], after viewing the evidence in the
light most favorable to the prosecution, could have found the
essential elements of the charged offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319.
The Information charging Milling with sale of cocaine states,
in pertinent part:
R.J. Larizza, State Attorney for the Seventh
Judicial Circuit of the State of Florida and
as such prosecuting attorney for this Court,
in the name of and by the authority of the
State of Florida charges that:
COUNT 1: IN THAT WILLIE JAMES MILLING, on or
about February 25, 2010, in the County of ST.
JOHNS and State of Florida, did unlawfully and
knowingly sell, manufacture, deliver or
possess with intent to sell, manufacture, or
deliver cocaine or ecgonine, including any
stereoisomer, salt, compound, derivative or
preparation
of
cocaine
or
ecgonine,
a
controlled substance, contrary to Florida
Statutes 893.13(1)(a). (2 DEG FEL)
Resp. Ex. A at 12. At the close of the evidence and after hearing
closing arguments, the trial judge stated:
And clearly the State has proven [its] case
beyond a reasonable doubt, way beyond a
reasonable doubt.
23
So I'll find that you are guilty of sale
of cocaine.
Tr. at 109.
After viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found Milling
committed sale of cocaine, and as such, the essential elements of
the charged offense to support the conviction for sale of cocaine.
Competent evidence of the elements of the offense was introduced at
trial, and no due process violation occurred. The trier of fact was
entitled
to
believe
the
State
witnesses,
and
make
his
own
determination as to the elements of the charged offense. The
State's evidence at trial amply supported the elements required for
a conviction. Therefore, Milling is not entitled to federal habeas
relief as to ground three.
Moreover, actual innocence is not itself a constitutional
claim justifying federal habeas relief, but instead is a gateway
through which a habeas petitioner must pass to have his otherwise
procedurally barred constitutional claim considered on the merits.
Herrera v. Collins, 506 U.S. 390, 404 (1993). Insofar as Milling
intends
for
his
actual
innocence
to
serve
as
a
gateway
for
consideration of constitutional claims procedurally defaulted in
state court, he has failed to identify any fact warranting the
application of the fundamental miscarriage of justice exception.
Therefore, Milling is not entitled to federal habeas relief on
ground eight.
24
D. Ground Four
As ground four, Milling asserts that counsel (Craig Atack) was
ineffective because he failed to file a motion to dismiss the
invalid
Information.
See
Petition
at
13-15;
Reply
at
15-17.
Petitioner raised the claim in his Rule 3.850 motion in state
court. See Resp. Ex. L at 6-8. The post-conviction court ultimately
denied the Rule 3.850 motion with respect to the claim, stating in
pertinent part:
Defendant claims that his two attorneys
were prejudicially ineffective under Fla. R.
Crim. P. 3.850 by failing to file a motion to
dismiss an invalid information.[10] As outlined
in Strickland v. Washington, 466 U.S. 668, 687
(1984), to warrant an evidentiary hearing for
ineffective assistance of counsel, a defendant
must:
(l)
identify
particular
acts
or
omissions by counsel that show deficient
performance under prevailing professional
standards and (2) demonstrate prejudice. As
discussed in Claim One, the information is not
invalid,
so
counsel
did
not
perform
deficiently in not moving to dismiss the
information. Therefore, Claims Two and Three
of Defendant's motion for postconviction
relief for ineffective assistance of counsel
are denied.
Resp. Ex. O at 3-4. The appellate court affirmed the court's denial
of post-conviction relief per curiam, and later denied Milling's
motion for rehearing.
10
In his Rule 3.850 motion, Milling asserted that Craig Atack
and Tyler Williams were ineffective. See Resp. Ex. L at 5-6, 6-8.
25
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the Court will address the
claim in accordance with the deferential standard for federal court
review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court's
adjudication of the claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. Thus, Milling is not entitled to
relief on the basis of the claim.
Moreover,
even
assuming
the
state
appellate
court's
adjudication of the claim is not entitled to deference, Milling's
claim is nevertheless without merit. In evaluating the performance
prong of the Strickland ineffectiveness inquiry, there is a strong
presumption in favor of competence. See Anderson v. Sec'y, Fla.
Dep't of Corr., 752 F.3d 881, 904 (11th Cir. 2014). The inquiry is
"whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent
assistance."
Strickland,
466
U.S.
at
690.
"[H]indsight
is
discounted by pegging adequacy to 'counsel's perspective at the
time' . . . and by giving a 'heavy measure of deference to
counsel's judgments.'" Rompilla v. Beard, 545 U.S. 374, 381 (2005).
26
Thus, Milling must establish that no competent attorney would have
taken the action that counsel, here, chose.
Notably, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that "perfection is not the standard of
effective assistance") (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward, 592 F.3d at 1164 (quotations and
citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d
1092,
1099
(11th
Cir.
2007)
("The
question
is
whether
some
reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).
On this record, Milling has failed to carry his burden of
showing that his counsel's representation fell outside that range
of reasonably professional assistance. Even assuming arguendo
deficient performance by defense counsel, Milling has not shown any
resulting prejudice. He has not shown that a reasonable probability
exists that the outcome of the case would have been different if
counsel had filed a motion to dismiss the Information or made
arguments in the manner he suggests. His ineffectiveness claim is
without merit since he has shown neither deficient performance nor
27
resulting
prejudice.
Accordingly,
Milling
is
not
entitled
to
federal habeas relief on ground four.
E. Ground Five
As ground five, Milling asserts that the trial court erred
when it failed to: renew the offer of assistance of counsel at the
suppression hearing/trial, and conduct a Faretta hearing. See
Petition at 15-18; Reply at 17-23. Milling argued this issue on
direct appeal, see Resp. Ex. E at 4-6, and the State filed a notice
that
it
did
not
intend
to
file
an
answer
brief.
See
http://www.5dca.org, Milling v. State, case number 5D11-2831. The
appellate court affirmed Milling's conviction per curiam, see Resp.
Ex. F, and later denied Milling's motion for rehearing, see Resp.
Exs. G; H.
Milling also raised the claim in his Rule 3.850 motion in
state court. See Resp. Ex. L at 11-13. The post-conviction court
ultimately denied the Rule 3.850 motion with respect to the claim,
stating in pertinent part:
Defendant claims that the Court erred by
failing to renew the offer of assistance of
counsel and by failing to conduct a Faretta
hearing to determine if Defendant understood
his
waiver
of
counsel.
Prior
to
the
commencement of the trial, the undersigned
explained to Defendant that he had the right
to counsel, which Defendant acknowledged. (T.
at 6.) The undersigned asked Defendant why he
no longer had counsel, and Defendant explained
that he disagreed with his previous counsel,
dismissed
his
counsel,
and
decided
to
represent himself. (T. at 6.) Defendant also
explained that he chose to represent himself
28
because he suffered from a conflict of
interest when the Public Defender's Office
represented a co-defendant; however, there is
no co-defendant in this case to sustain a
conflict of interest claim. Additionally, the
undersigned asked Defendant if he wished to
represent
himself,
to
which
Defendant
responded yes, and ensured Defendant realized
that the rules of evidence and procedure did
not change because of his self representation.
(T. at 14.) The undersigned enlightened
Defendant of the dangers and disadvantages of
self-representation and ensured that Defendant
was knowingly and intelligently waiving his
right to counsel as required by Faretta v.
California, 422 U.S. 806 (1975). Defendant's
claim that the trial court failed to renew the
offer of assistance of counsel and failed to
conduct a Faretta hearing is denied.
Resp. Ex. O at 5-6. The appellate court affirmed the court's denial
of post-conviction relief per curiam, and later denied Milling's
motion for rehearing.
During
the
pendency
of
the
post-conviction
proceedings,
Milling raised the claim in a petition for writ of habeas corpus
and amended petition, see Resp. Exs. V; W; the State responded, see
Resp. Ex. Y; and Milling replied, see Resp. Ex. Z. The appellate
court denied the petition and amended petition, see Resp. Ex. AA,
and later denied Milling's motion for rehearing, see Resp. Exs. BB;
CC.
If the appellate court addressed the merits, the state court's
adjudication of this claim is entitled to deference under AEDPA.
After a review of the record and the applicable law, the Court
concludes that the state court's adjudication of this claim was not
29
contrary to clearly established federal law and did not involve an
unreasonable application of clearly established federal law. Nor
was
the
state
court's
adjudication
based
on
an
unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. Accordingly, Milling is not entitled
to relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, Milling's claim is without
merit. On May 27, 2010, the court appointed the Public Defender to
represent Milling. See Resp. Ex. A at 7, First Appearance Form. In
November 2010, Milling filed motions to discharge counsel. See id.
at 29-30, 32-33. In the motions, he asserted that counsel was
biased and incompetent because he had not filed a motion to
suppress evidence. Counsel filed a motion to suppress on December
2nd, and a motion in limine on December 13th. See id. at 35-36, 37.
On December 14, 2010, the court conducted a Faretta hearing,
granted Milling's request to represent himself, and appointed the
Public Defender's Office as stand-by counsel.11 See id. at 40,
Hearing Notes. That same day, Milling signed a waiver of counsel
that provided the court had fully informed him of his right to
counsel and the consequences of waiving counsel. See id. at 41,
Waiver of Counsel by Defendant. On March 14, 2011, Milling signed
11
According to Respondents,
transcribed." Response at 17.
30
the
hearing
"was
never
an acknowledgment that stated he had requested a continuance and
that he still wished to represent himself. From December 14, 2010,
until his suppression hearing/trial on June 14, 2011, Milling filed
numerous pro se motions, in which he neither requested conflictfree counsel nor complained of a conflict of interest with the
public defender's office. See id. at 42, 45-46, 47, 51-53, 54, 5558, 59-65, 67-71, 72-76, 77-81, 82-84, 85-86, 89-90, 92-93, 94-96.
On June 14, 2011, Milling appeared for a bench trial, at which the
court also addressed his motion to suppress. See id. at 98, Hearing
Notes; Tr. at 15. The trial judge advised Milling that he had a
right to an attorney, but he again chose to represent himself. See
Tr. at 6, 14. Milling explained that he did not want representation
by the Public Defender's Office due to a conflict of interest. Id.
at 7. As such, the trial judge made an appropriate inquiry into
Milling's assertion that there was a conflict of interest with the
Public Defender's Office. See id. at 7-14. In denying Milling's
Rule 3.850 motion, the post-conviction court ruled that "there is
no co-defendant in this case to sustain a conflict of interest
claim." Resp. Ex. O at 6. On this record, Milling is not entitled
to federal habeas relief on ground five.
F. Ground Six
As ground six, Milling asserts that his conviction is illegal
because the Information was invalid since it was based on perjured
testimony. See Petition at 19-21; Reply at 23-25. Petitioner raised
31
the claim in his Rule 3.850 motion in state court. See Resp. Ex. L
at 10-11. The post-conviction court ultimately denied the Rule
3.850 motion with respect to this claim, stating in pertinent part:
Defendant also claims that the charging
information had false statements and facts
that invalidated it and led to Defendant's
conviction of an uncharged crime. While Deputy
Brush did not personally witness or view on
video the transaction of $40 from Detective
Dean to Defendant, Deputy Brush confirmed the
occurrence by discussing the event with
Detective Dean in the undercover officer
debriefing
after
the
operation
and
by
listening to the audio of the audio/visual
recording. (T. at 41.) Additionally, Deputy
Brush detected from the audio/video that
Defendant handed something to Detective Dean,
who informed Deputy Brush that Defendant
handed Detective Dean the brown bag with
cocaine at that moment. (T. at 44.) Finally,
the expert testimony of Catherine Bible
refutes Defendant's allegation that Detective
Dean falsely stated that the brown paper bag
contained cocaine. Catherine Bible testified
that she performed chemical analyses on the
substance from the brown paper bag and
concluded that the substance was cocaine. (T.
at 90-91.) Thus, Deputy Brush's affidavit was
sufficient for the information and the charged
crime against Defendant.
Defendant also claims that there is a
conflict of evidence in the offense report
and the sworn statement by Deputy Brush, which
renders the information invalid. First, there
is no discrepancy between the evidence
provided by Deputy Brush and Detective Dean
about whether Defendant handed the brown bag
to Detective Dean. When Deputy Brush stated
Defendant handed the bag to Detective Dean,
Deputy Brush meant Defendant relinquished
possession of the paper bag to Detective Dean,
not that Defendant physically put the paper
bag into Detective Dean's hands. (T. at 100.)
This statement comports with Detective Dean's
32
statement that Defendant handed the bag to him
by setting it on a ledge or beam because
Defendant did not directly transfer the bag
from his hand to Detective Dean's hand. (Id.)
Additionally, while Deputy Brush admitted that
he was incorrect in stating Defendant traveled
eastbound
in
the
affidavit
instead
of
westbound
(T.
at
53),
this
trivial
misinformation did not cause Defendant to be
arrested for a different crime than the one
for which he was charged. Similar to Kormondy
v. State, 983 So.2d 418, 432 (Fla. 2007), in
which the inconsistency of whether the
location of a sexual assault occurred on the
carpet or on the bed in a bedroom was
irrelevant to the crime, the inconsistency in
the direction the Defendant traveled along the
street is irrelevant to the sale of cocaine.
Based on the foregoing, Defendant's claim
that there was fundamental error based on an
invalid information and conviction of an
uncharged crime is denied.
Resp. Ex. O at 4-5. The appellate court affirmed the court's denial
of post-conviction relief per curiam, and later denied Milling's
motion for rehearing.
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the Court will address the
claim in accordance with the deferential standard for federal court
review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court's
adjudication of the claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
33
the state court proceedings. Thus, Milling is not entitled to
relief on the basis of the claim. Moreover, even assuming the state
appellate court's adjudication of the claim is not entitled to
deference, Milling's claim is still without merit. Therefore,
Milling is not entitled to federal habeas relief on ground six.
VIII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Milling seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Milling "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)).
Where
a
constitutional
district
claims
court
on
the
has
rejected
merits,
the
a petitioner's
petitioner
must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
34
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
3.
If Milling appeals the denial of the Petition, the Court
denies a certificate of appealability. Because this Court 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.
35
4.
The Clerk of the Court is directed to close this case and
terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 4th day of
October, 2017.
sc 10/4
c:
Willie James Milling, FDOC #104229
Counsel of Record
36
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