SERCEY v. STATE OF FLORIDA

Filing 19

ORDER denying 1 the petition, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 5/31/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DWAYNE SERCEY,
Petitioner,
v.

Case No. 3:14-cv-1480-J-39PDB

SECRETARY, DOC, et al.,
Respondents.
ORDER
I.

STATUS

Petitioner challenges 2011 (Columbia County) convictions for
grand theft auto and burglary of a structure (state case no. 02540), and escape and grand theft auto (state case no. 03-203).
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Petition) (Doc. 1) at 1. He filed the
Petition on December 7, 2014, pursuant to the mailbox rule.1

He

raises two grounds in the Petition. Respondents filed an Answer to
Petition for Writ of Habeas Corpus (Response) (Doc. 14), and they
calculate that the Petition is timely filed.

1

Id. at 9.

In support

The Court gives pro se inmate petitioners the benefit of the
mailbox rule. Houston v. Lack, 487 U.S. 266, 276 (1988). See 28
U.S.C. § 2244(d). In this instance, the Petition was provided to
the prison authorities for mailing on December 7, 2014. Petition
at 15. See 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 state
court filings when calculating the one-year limitation period under
28 U.S.C. § 2244(d).

of the Response, they rely on Exhibits to Answer to Petition for
Writ of Habeas Corpus (Doc. 14).2

Petitioner filed a Notice that

Petitioner Will Not File a Reply (Doc. 17).
II.

See Order (Doc. 8).

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus. See
28

U.S.C.

§

2254;

Ledford

v.

Warden,

Ga.

Diagnostic

&

Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert.
denied, 2017 WL 1199485 (U.S. Apr. 3, 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, 132 S.Ct. 38, 43 (2011)).
Under
AEDPA,
when
a
state
court
has
adjudicated the petitioner's claim on the
merits, a federal court may not grant habeas
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding," id. §
2254(d)(2). A state court's factual findings
are presumed correct unless rebutted by clear

2

The Court hereinafter refers to the Exhibits as "Ex." Where
provided, the page numbers referenced in this opinion are the Bates
stamp numbers at the bottom of each page of the Appendix.
Otherwise, the page number on the particular document will be
referenced. The Court will reference the page numbers assigned by
the electronic docketing system where applicable.
- 2 -

and convincing evidence.[3] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th
Cir. 2011).
..."It bears repeating that even a strong case
for relief does not mean the state court's
contrary
conclusion
was
unreasonable."
[Harrington v. Richter, 562 U.S. 86, 101
(2011)] (citing Lockyer v. Andrade, 538 U.S.
63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144
(2003)). The Supreme Court has repeatedly
instructed lower federal courts that an
unreasonable application of law requires more
than mere error or even clear error. See,
e.g., Mitchell v. Esparza, 540 U.S. 12, 18,
124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer,
538 U.S. at 75 ("The gloss of clear error
fails to give proper deference to state courts
by conflating error (even clear error) with
unreasonableness."); Williams v. Taylor, 529
U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000) ("[A]n unreasonable application of
federal law is different from an incorrect
application of federal law.").
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253–54 (11th Cir. 2013),
cert. denied, 135 S.Ct. 67 (2014).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th
Cir. 2016).4

Regardless of whether the last state court provided

3

"This presumption of correctness applies equally to factual
determinations made by the state trial and appellate courts." Pope
v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)
(quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)), cert.
denied, 133 S.Ct. 1625 (2013).
4

As recently suggested by the Eleventh Circuit in Butts v.
GDCP Warden, 850 F.3d 1201, 1204 (11th Cir. 2017), in order to
avoid any complications if the United States Supreme Court decides
to overturn Eleventh Circuit precedent as pronounced in Wilson v.
- 3 -

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); see also Johnson v.
Williams, 133 S.Ct. 1088, 1096 (2013).

"The presumption 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 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the last adjudication on the merits is unaccompanied by
an explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
"[A]

habeas

court

must

determine

what

arguments

Id. at 98.
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; Marshall, 828 F.3d at 1285.
Although the § 2254(d) standard is difficult to meet, it was
meant to be difficult.

Indeed, in order to obtain habeas relief,

"a state prisoner must show that the state court's ruling on the
claim being presented . . . was so lacking in justification that

Warden, Ga. Diagnostic Prison, 834 F.3d 1227 (11th Cir. 2016) (en
banc), cert. granted, 137 S.Ct. 1203 (2017), this Court, will
employ "the more state-trial-court focused approach in applying §
2254(d)[,]" where applicable.
- 4 -

there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."

Richter, 562

U.S. at 103.
III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Ground One

In his first ground, Petitioner claims his counsel gave him
erroneous advice, promising Petitioner that he would receive no
longer that 36 months if Petitioner proceeded to his violation of
probation hearing.

Petition at 5.

Petitioner asserts that he

would have accepted the state's offer of five years but for the
erroneous advice of counsel.
In

order

to

prevail

Id.
on

this

Sixth

Amendment

claim

of

ineffective assistance of trial counsel, Petitioner must satisfy
the two-pronged test set forth in Strickland v. Washington, 466
U.S. 668, 688 (1984), requiring that he show both deficient
performance (counsel's representation fell below an objective
standard of reasonableness) and prejudice (there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different).
Petitioner exhausted this ground by raising it in his Rule
3.850 motion.

Ex. 13.

The trial court denied relief, Ex. 14, and

the First District Court of Appeal (1st DCA) per curiam affirmed.
Ex. 18.

See Response at 20.

- 5 -

In the state court, Petitioner not only claimed that his
counsel gave him erroneous advice, Petitioner also claimed that his
counsel failed to convey the actual plea offer.

Ex. 13 at 3-4.

Petitioner said that his counsel withheld the plea offer and
guaranteed a 36-month sentence from the violation of probation
proceeding.

Id. at 4.

Upon review, the circuit court first set forth the applicable
two-pronged Strickland standard as a preface to addressing the
claims of ineffective assistance of counsel.

Ex. 14 at 10.

In

addressing the claim of ineffective assistance of counsel, the
circuit court found Petitioner's post conviction claim refuted by
the

record,

referencing

the

transcript

of

the

probation hearing conducted on September 21, 2011.

violation

of

Id.

The transcript of the hearing shows the following.

At the

beginning of the proceeding, defense counsel, Travis Koon, asked
the prosecutor, Jonah Farr, to state the maximum sentence that
Petitioner "could possibly receive today[.]" Ex. 3 at 3. Mr. Farr
responded by stating that the maximum "is 40 years in DOC because
he has HFO on each case, 30 on the escape and 10 on the grand
theft."

Id.

Mr. Farr also provided the scoresheet and referenced

the plea offer.

Id.

Mr. Koon explained that he not only had gone

over the allegations of violation, he went over the maximum
sentence with Petitioner, which had just been repeated by the
prosecutor.

Id. at 5.

After Petitioner was duly sworn, Mr. Koon asked questions:
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And, your Honor, just for the record, I
went over the criminal punishment code
scoresheet pursuant to 3.992(a). Mr. Sercey's
total sentencing points are 72.2. His lowest
permissible prison sentence is 33.15.
His
maximum sentence is 40 years.
Mr. Sercey, do you understand that if you
proceed with this violation of probation
hearing today, Judge Fina could sentence you
up to the max of 40 years because you are a
habitual violent felony –- habitual felony
offender, I apologize, HFO, and he could
sentence you to the minimum of 33.15 months.
The State has made an offer of five years to
close out all of your cases, including your
new law violation. Do you understand that?
THE DEFENDANT: Yes, sir.
Id. at 6 (emphasis added).
Mr. Koon asked Petitioner what he wanted to do today, and he
responded that he wanted to go through with his violation hearing.
Id.

After the state presented several witnesses, Mr. Koon asked

for a pause in the proceedings, and then notified the court that
the state had made a new offer.

Id. at 35.

The court immediately

said: "I'm not accepting any negotiated plea." Id. Mr. Koon asked
if the court would entertain a possible open plea offer, and the
court responded that Petitioner could admit "any time he wishes."
Id.

Petitioner said he would like to do an open plea, id., and

admitted to two violations.

Id. at 35, 39.

He denied the rest.

Id. at 39.
The defense called Petitioner. Id. at 53. He took the stand.
Id. The state dismissed two asserted violations because Petitioner
was in jail at the time of the violations.
- 7 -

Id. at 57.

Petitioner

said he was guilty of not using his better judgment, and then
stated, "I stand before you today –- 40 years in prison.
a bad person."

I'm not

Id. at 60.

Mr. Koon asked the court to sentence Petitioner "to something
more closer to the minimum guidelines[,]" even though Petitioner is
an habitual felony offender.

Id. at 71.

The state reminded the

court that the escape sentence, by statute, must be consecutive to
any other sentences Petitioner is serving.

Id. at 71-72.

Petitioner addressed the court before being sentenced:
As I stand before you today, all I ask
for is leniency and mercy from the Court. I'm
not trying to catch that much time. I'm not a
violent offender or nothing. The least I can
get is 33 months, the most I can get is 40.
10, 15 years, that's a lot of time.
Just ask for mercy, sir, and leniency.
Id. at 76.
The court sentenced Petitioner to fifteen years on the escape
charge, followed by five years for grand theft in case 03-203, and
then added two concurrent five-year terms for the two counts of
grand theft in case 02-540, but consecutive to any sentence being
served and the 03 case, for a total sentence of twenty-five years
as an habitual felony offender.

Id. at 77-79.

The circuit court rejected Petitioner's claim of ineffective
assistance of trial counsel. The 1st DCA affirmed. Thus, there is
a qualifying state court decision under AEDPA. This Court presumes
that the 1st DCA adjudicated the claim on its merits, as there is
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an absence of any indication or state-law procedural principles to
the contrary. Also of note, the last adjudication on the merits is
unaccompanied by an explanation.

Thus, it is Petitioner's burden

to show there was no reasonable basis for the state court to deny
relief.

He has not accomplished that task.

Indeed, if there is any reasonable basis for the court to deny
relief, the denial must be given deference.

Here, deference under

AEDPA should be given to the 1st DCA's adjudication.
is

not

inconsistent

with

Stickland and its progeny.
claim

is

not

contrary

to

Supreme

Court

Its decision

precedent,

including

The state court's adjudication of this
or

an

unreasonable

application

of

Strickland, or based on an unreasonable determination of the facts.
Ground one is due to be denied.
Of import, this Court explained,
In Missouri v. Frye, ––– U.S. ––––, 132
S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler
v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182
L.Ed.2d 398 (2012), the United States Supreme
Court clarified that the Sixth Amendment right
to effective assistance of counsel under
Strickland extends to the negotiations and
consideration of plea offers that lapse or are
rejected. See Frye, 132 S. Ct at 1404–08;
Lafler, 132 S.Ct. at 1384. The Supreme Court
specifically held that counsel has a duty to
communicate formal offers from the prosecution
to accept a plea, and that, in general, where
such an offer is not communicated to the
defendant, counsel "[does] not render the
effective
assistance
the
Constitution
requires." Frye, 132 S.Ct. at 1408. The Court
also held that, in order to show prejudice
under Strickland's two-part test, a defendant
must demonstrate a reasonable probability
that: (1) he would have accepted a plea offer
- 9 -

but for counsel's ineffective assistance; and
(2) the plea would have resulted in a lesser
charge or a lower sentence. Frye, 132 S.Ct. at
1409.
Johnson v. Sec'y, DOC, No. 2:12-CV-469-FTM-29CM, 2015 WL 179299, at
*4 (M.D. Fla. Jan. 14, 2015) (Not Reported in F.Supp. 3d).

See

Hill v. Lockhart, 474 U.S. 52 (1985) (establishing that the twopronged Strickland

standard governs ineffective assistance of

counsel claims with regard to plea bargains); Missouri v. Frye, 132
S.Ct. 1399, 1409 (2012) (setting forth the prejudice that must be
shown under Strickland in these circumstances: (1) a reasonable
probability that the defendant would have accepted the earlier plea
offer had he been afforded effective assistance of counsel; and (2)
a reasonable probability the plea would have been entered without
the prosecution canceling it or the trial court refusing to accept
it, if they had the authority to exercise that discretion under
state law), cert. denied, 132 S.Ct. 1789 (2012).
It is noteworthy that the circuit court, after reviewing the
transcript

of

the

violation

of

probation

hearing,

denied

Petitioner's claim of ineffective assistance of counsel in a wellreasoned, written decision.

Also, the court, in its opinion,

referenced the applicable two-pronged standard as set forth in
Strickland

as

a

preface

to

addressing

ineffective assistance of counsel.

Petitioner's

claim

of

With respect to Petitioner's

claim that counsel withheld the state's offer, the court concluded
that the record shows that Petitioner would not have accepted the
- 10 -

state's offer of five years in prison, as he rejected the offer on
the record.

Ex. 14 at 10.

With respect to Petitioner's claim that

his counsel was ineffective because he guaranteed Petitioner he
would not receive a sentence over 36 months, the court found
Petitioner failed to satisfy the prejudice prong of Strickland.
Id. at 11.

The court referenced the prosecutor's statement

concerning the maximum sentence Petitioner was facing and the
relevant scoresheet; defense counsel's statement that he went over
the maximum sentence with Petitioner before the hearing; and
counsel's question to Petitioner, inquiring whether Petitioner
understood that if he proceeded with the violation of probation
hearing today, the judge could sentence him up to the maximum of 40
years due to Petitioner being an habitual felony offender.

Id.

In denying this ground, the circuit court recognized that
after being advised at least three times about the potential for
receiving up to 40 years in prison, Petitioner elected to go
forward with the hearing.

Id.

The court concluded that "no

prejudice could have resulted from Counsel's alleged error, even if
true, in advising the Defendant that he would not receive more than
thirty-six months in prison." Id. Even if counsel had erred prior
to the hearing, any misinformation was corrected or clarified at
the outset of the hearing, and Petitioner still rejected the fiveyear offer.

Petitioner was repeatedly and correctly advised that

he was facing a maximum of 40 years in prison, and the court could

- 11 -

sentence him to up to 40 years in prison if he elected to proceed
with the hearing.5
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.

In this

instance, deference under AEDPA should be given to the last
adjudication on the merits provided by the 1st DCA.

Given due

consideration, its decision is not inconsistent with Supreme Court
precedent, including Stickland and its progeny.

The state court's

adjudication of this claim is not contrary to or an unreasonable
application

of

Strickland,

determination of the facts.

or

based

on

an

unreasonable

As such, ground one is due to be

denied.
B.

Ground Two

In ground two, Petitioner raises a claim of ineffective
assistance of trial counsel for failure to inform the court of
Petitioner's mental state and seek a competency determination.
Petition at 7.

Id.

Petitioner raised this issue in ground three

of his Rule 3.850 motion.

Ex. 13 at 6.

Respondents first claim that Petitioner did not adequately
exhaust this ground in the state court system.

Response at 34-35.

They contend that on appeal of the denial of the post conviction
motion, Petitioner fundamentally altered the legal claim that was
presented to the state circuit court because he introduced evidence
5

Also of importance, the court refused to consider a new plea
offer during the course of the hearing.
- 12 -

on appeal which was not introduced for consideration by the lower
court,

and

he

submitted

an

appellate

brief

referencing

the

supplemental evidence and relying on it to support his claim for
relief.

Id. at 34; Ex. 16.

The record shows that as extra-record

material, Petitioner attached the January 4, 2011 psychological
evaluation by Harry Krop, Ph.D., in Alachua County case number
2010-CF-4189, and referenced it in his brief.

Ex. 16.

Based on the alteration of the claim in the state court
system, Respondents urge this Court to find that this ground is
procedurally defaulted.

In addressing the question of exhaustion,

this Court must ask whether Petitioner's claim was properly raised
in the state court proceedings:
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging
his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
- 13 -

"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
courts
with
"the
opportunity
to
apply
controlling legal principles to the facts
bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 133 S.Ct. 875 (2013).
Upon due consideration, Petitioner did not fairly present the
constitutional issue to the state circuit court.
33-35.

See Response at

Petitioner presented evidentiary material and related

argument on appeal that was different from that which he presented
to the circuit court below.

"In order to be preserved for further

review by a higher court, an issue must be presented to the lower
court and the specific legal argument or ground to be argued on
appeal or review must be part of that presentation if it is to be
considered preserved."

Tillman v. State, 471 So.2d 32, 35 (Fla.

1985).
Thus, although Petitioner's current claim was raised in a
brief on appeal of the denial of the Rule 3.850 motion, it was not
properly and fairly presented to the circuit court.

Indeed,

Petitioner did not give the circuit court the opportunity to apply
controlling legal principles to the particular facts bearing upon
his constitutional claim.

As a result, the state courts were not

given one full opportunity, through the state's established review
process, to address the issue raised in ground two of the Petition.

- 14 -

Petitioner fundamentally altered his claim.

As a result, he

failed to adequately exhaust the constitutional claim raised in
ground two.

The Court concludes ground two is procedurally

defaulted and barred from review.
Alternatively, Respondents address the merits of ground two.
Response at 35-39.

Petitioner, in the third ground of his Rule

3.850 motion claimed his counsel was ineffective for failure to
seek a competency determination.

Ex. 13 at 6.

The circuit court,

presuming Petitioner to have been competent, found Petitioner
failed

to

meet

his

burden

to

show

otherwise

in

failing

to

demonstrate entitlement to an evidentiary hearing on the issue of
competency.

Ex. 14 at 12.

In denying this ground, the court noted that former defense
counsel has already moved for a mental examination by a defense
expert.

Id. at 12.

The trial court granted the motion and

appointed defense expert Umesh Mhatre, M.D., to examine Petitioner.
Id. at 37-42.

The doctor examined Petitioner.

Id. at 43.

The

court concluded that there was no apparent reason for defense
counsel to delve further into competency.
Additionally,

the

court

found

Id. at 12.

that

Petitioner

documentation to support his claim of incompetency."

"has

no

Id. at 13.

Perhaps most telling, is the "focused, relevant, detailed and
clearly articulated" testimony presented by Petitioner at the
violation of probation hearing.

Id.

Petitioner provided a

detailed explanation for his actions at the Wal-Mart, including the
- 15 -

circumstances of his violation, the reasons behind it, and the
nature of the setting and persons involved.

Id.

Not only that,

the court also recognized Petitioner's demonstrated ability "to
consult with his lawyer, speak rationally, and understand the
charges." Id. Finally, the court relied on Petitioner's admission
that he is medicated for mental health, but concluding that his
admission undermines his claim that it affected his decision-making
skills at the hearing.

Id.

In particular, the court noted that

although Petitioner may manifest mental illness, the record did not
show "a present inability to assist counsel or understand the
charges."

Id.

Not only has Petitioner failed to show deficient performance,
Petitioner has not met the prejudice prong of Strickland.

To do

so, he would have to show "that there was a reasonable probability
that he would have received a competency hearing and been found
incompetent had counsel requested the hearing." Lawrence v. Sec'y,
Fla. Dep't of Corr., 700 F.3d 464, 479 (11th Cir. 2012), cert.
denied, 133 S.Ct. 1807 (2013).
Upon review of the transcript of the September 21, 2011
Columbia County evidentiary proceeding, there is nothing in the
record which supports Petitioner's claim that his counsel should
have recognized that Petitioner was operating under a mental state
which should have triggered a response by counsel to bring the
matter

to

the

determination.

court's
Ex. 3.

attention

and

request

a

competency

Of note, Dr. Krop opined, on January 4,
- 16 -

2011, that Petitioner was competent to proceed in an Alachua County
case and was sane at the time of his alleged offense.
attachment Exhibit A.
found

incompetent

had

Ex. 16,

Petitioner's claim that he would have been
counsel

requested

a

competency

hearing

remains unsupported.
Petitioner is not entitled to habeas relief.
circuit

court

affirmed.

denied

Ex. 18.

relief.

Ex.

14.

The

The state

appellate

court

The state court's adjudication of this 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 the light of the evidence presented in state court
proceedings.
Accordingly, it is now
ORDERED:
1.

The Petition (Doc. 1) is DENIED, and this action is

DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment accordingly

and close this case.
3.

If Petitioner appeals the denial of his Petition, the

Court denies a certificate of appealability.6

6

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
- 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 31st day of
May, 2017.

sa 5/22
c:
Dwayne Sercey
Counsel of Record

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
certificate of appealability.
- 18 -