Braddy v. Secretary, Department of Corrections et al

Filing 17

ORDER denying 1 petition; dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 6/15/2017. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ARTHUR L. BRADDY,
Petitioner,
v.

Case No. 3:15-cv-152-J-39JRK

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

STATUS

Petitioner Arthur L. Braddy challenges a 2007 (Duval County)
conviction for possession of a firearm by a convicted felon.
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 February 3, 2015, pursuant to the mailbox rule.1

In

the Petition, he raises six grounds for habeas relief. Respondents
filed an Answer in Response to Order to Show Cause and Petition for
Writ of Habeas Corpus (Response) (Doc. 14).

1

Exhibits are appended

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 and stamped on February 3, 2015.
Petition at 1. 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).

to the Response (Doc. 14).2
(Doc. 15).

Petitioner submitted a Reply Brief

See Order (Doc. 5).

The Court provides a brief procedural history for historical
context.

Petitioner was charged by information with multiple

offenses, including possession of a firearm by a convicted felon.
Ex. A at 11-12.

After a jury trial on the possession of a firearm

charge, the jury returned a verdict of guilty as charged.
57.

Id. at

On December 10, 2007, the trial court sentenced Petitioner to

twenty-five years in prison as an habitual violent felony offender.
Id. at 65-67.
Petitioner appealed.

Id. at 72; Ex. B; Ex. C; Ex. D.

On

April 8, 2009, the First District Court of Appeal (1st DCA)
affirmed per curiam.

Ex. E.

The mandate issued on April 24, 2009.

Ex. F.
On December 4, 2009, pursuant to the mailbox rule, Petitioner
filed a Motion for Post Conviction Relief 3.850.
amended his motion (Rule 3.850 Motion).
Id.

Id.

Ex. G.

He

The state responded.

The trial court conducted an evidentiary hearing on three of

the grounds.
court

entered

Ex. H at 325-77.
an

Order

On January 6, 2014, the circuit

Denying

2

Defendant's

Motion

for

Post

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 particular exhibit.
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 -

Conviction Relief.

Id. at 157-319.

Petitioner appealed.

Id. at

320; Ex. I; Ex. J;; Ex. K.

On November 17, 2014, the 1st DCA

affirmed per curiam.

The mandate issued on December 15,

2014.

Ex. L.

Ex. M.
On March 21, 2011, Petitioner filed a Petition for Writ of

Habeas Corpus in the 1st DCA.

Ex. N.

The 1st DCA denied the

petition alleging ineffective assistance of appellate counsel. Ex.
O.
II.

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, 137 S.Ct. 1432 (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
- 3 -

are presumed correct unless rebutted by clear
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 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
- 4 -

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

overturn Eleventh Circuit precedent as pronounced in Wilson v.
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.
- 5 -

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 raises a claim of ineffective
assistance of trial counsel for failure to raise an objection to
"three false statements" made by Officer Richard C. Santoro, Jr.,
or for failure to make some attempt to impeach Officer Santoro with
his deposition testimony.

Petition at 6.

The first statement at

issue is:
A
Ah, as I got him in a headlock, my
door –- my patrol car was actually open, the
doors. As I got him in the headlock, I could
just like see his arm go back behind his back
area and he brings out a weapon, a pistol, and
then brings it up.
Q
At the point where you see a pistol
in the defendant's hand from reaching from his
back area, what do you do in response at that
point?
A
I immediately like –- basically,
like I said, my door was open, and I then
throw him into my car, and myself and the
defendant actually go into the car, and the
guy ended up –- just took the gun out of his
hand.
Ex. H at 199.
The second statement at issue is:
Q
Okay. And so the gun that was on
the ground, did you –- you said that he was in
custody, so those people there were still
- 6 -

there on the ground, they were still sitting
there; correct?
A
I told them to move away from the
gun as I saw the gun fall to the ground.
. . . .
Q
So you are telling us that this gun
that you found on the street –- but you're not
sure if it's the same gun that fell from his
hands; are you? Because you don't know if the
people that were sitting there switched it
out, or you don't know if Mr. Lugo switched it
out? Because you didn't know Mr. Lugo; did
you?
A
When the gun fell from his hand, I
told Deas and Henderson to move away from the
gun. They moved clear away from the gun, more
towards the corner of the place. They never
went back towards that area.
Id. at 210, 213.
The third statement at issue is:
Q
When –- did that gun, from the point
where it left Mr. Braddy's hand onto the
ground, did it ever leave your control or out
of your vision before it was stored in the
Jacksonville Sheriff's property room?
A

No.

Id. at 201.
In order to prevail on this Sixth Amendment claim, 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

- 7 -

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. G.

The trial court denied relief, Ex. H, and

the 1st DCA per curiam affirmed.

Ex. L.

Upon review of the circuit court's order, it set forth the
applicable

two-pronged

Strickland

standard

as

a

preface

addressing the claims of ineffective assistance of counsel.
at 158-59.

to

Ex. H

The court provided this explanation for denying the

claim of ineffective assistance of counsel with respect to the
first statement:
As to the first set of statements,
Defendant contends Officer Santoro's response
implies that the officer took the gun out of
Defendant's hand and, therefore, contradicts
both the officer's deposition testimony,
wherein he stated he "threw the Defendant into
the side of his car door and the slam of
hitting the car door dislodged the gun from
his hand," (Def.'s Am. Mot. 7), and the
officer's later trial testimony that he did
not actually take the gun out of Mr. Braddy's
hand but that it fell to the ground while he
was physically struggling with Defendant.
(Def.'s Am. Mot. 7.) A careful review of the
record,
however,
reveals
that
Officer
Santoro's deposition and trial testimonies
were not inconsistent. During his deposition,
Officer Santoro actually stated, "So I guess
by the time I slammed him into the car
door . . . basically, I dislodged the gun from
his hands."
(Ex. E at 16.)
Later in the
deposition, Officer Santoro indicated that the
gun fell to the floor as a result of Defendant
slamming into the car door. (Ex. E at 17.)
Both statements were consistent with Officer
Santoro's trial testimony; indeed, Officer
Santoro never testified that he physically
- 8 -

took the gun out of Defendant's hand, instead
he testified that during a physical struggle,
he threw Defendant against the open door of
his patrol car, thereby dislodging the gun
from Defendant's hand. (Exs. D at 27, 48; E
at
16-17.)
Because
Officer
Santoro's
statements were not inconsistent and did not
amount to perjury, counsel was not deficient
for failing to object to them or to impeach
the officer based on his responses.
Ex. H at 162 (citations omitted).
Although Santoro's response that the struggle just took the
gun out of Petitioner's hand was not a model of clarity, on cross
examination

Santoro

Petitioner's hands.

stated

that

Id. at 209.

he

saw

the

gun

fall

out

of

Through his questioning, defense

counsel brought forth a more precise response:
Q
Okay. And so at some point did he and that's when you took the gun out of his
hand?
A
That's when I threw him against my
patrol car, and that's when the gun actually
fell out.
Q
So you never took the gun out of his
hands; did you?
A

I guess you can say my patrol car

did.
Id. at 212.
As noted by the circuit court, Officer Santoro's statement did
not constitute perjury.

At most, it was a poorly-worded response.

To remedy any confusion caused by his initial response, defense
counsel effectively cross examined Santoro, with Officer Santoro's
response dispelling any mis-impression that he actually took the
- 9 -

gun out of Petitioner's hand rather than dislodging it from his
hand. Since Officer Santoro clarified his response by stating that
the gun "fell out" when he threw Petitioner against the patrol car,
there was no real need for defense counsel to impeach Officer
Santoro with deposition testimony.

As such, defense counsel's

performance was not deficient.
In denying the claim of ineffective assistance of counsel with
respect to the second statement, the circuit court said:
As to the second set of statements,
Defendant argues they constitute perjury
because they contradict Officer Santoro's
deposition testimony, wherein he stated that
Deas and Henderson actually stayed at the
scene the entire time. (Def.'s Am. Mot. 9.)
However, a careful review of Officer Santoro's
trial statements reveal that he never stated
Deas and Henderson left the crime scene;
rather, he merely stated he told them to move
away from the gun and they did so. (Ex. D at
46, 49.)
This is consistent with Officer
Santoro's deposition testimony. (Ex. E at 2930.) Accordingly, counsel was not ineffective
for failing to object to Officer Santoro's
statements or to impeach the officer on the
basis of prior inconsistent statements.
Ex. H at 163 (citations omitted).
Upon review of the second statement at issue, it did not so
differ from deposition testimony to require effective defense
counsel to either object or seek to impeach the testimony.

During

the deposition, Officer Santoro said that Deas and Henderson were
still sitting down behind him as the fight ensued between him and
Petitioner, and they stayed there the whole time.

Id. at 289.

As

noted by the circuit court, Officer Santoro's testimony that he
- 10 -

asked Deas and Henderson to move away from the gun after Petitioner
was on the ground was not inconsistent with Officer Santoro's
deposition testimony.
ground,

and

at

The struggle was over, the gun was on the

that

point,

Officer

Santoro

asked

the

two

individuals to move away from the gun and requested that Mr. Lugo
pick up the gun and place it in the patrol car.
With

regard

to

the

third

statement,

Id. at 213.

the

circuit

court

succinctly described Petitioner's claim:
As to the third set of statements,
Defendant argues Officer Santoro's response
amounted to perjury because it contradicts his
earlier trial and deposition testimonies that
he had asked Mr. Lugo, a nearby citizen, to
collect the firearm off the ground for him and
put it in his patrol car.
Therefore,
Defendant contends the officer did not
actually have control over the firearm as his
trial
statement
appears
to
indicate.
Defendant also contends Officer Santoro's
deposition testimony that Mr. Lugo picked up
the firearm from the ground in front of Deas
was patently false in that Officer Santoro
clearly
stated
at
trial,
and
in
his
deposition, that Deas and Henderson moved away
from the gun to the corner area, "mean[ing]
that this alleged firearm had to be at the
corner of the place where Deas and Henderson
went and not where Officer Santoro said he
dislodged it from the Defendant's hand."
(Def's Am. Mot. 12.)
Ex. H at 163.
The court again found that Officer Santoro's trial response
was not false or constituted perjury. Indeed, the court found that
the statements made during deposition were not inconsistent with
the trial testimony.

Id. at 164.

Also of significance, the court

- 11 -

noted that defense counsel objected to the introduction of the
firearm, challenging the basis for chain of custody. Ex. H at 203205.

However, the trial court overruled the objection.

Id. at

205. In this regard, defense counsel's performance was not outside
the wide range of professionally competent assistance demanded of
attorneys in a criminal case.
The

circuit

court

rejected

assistance of trial counsel.

this

claim

of

ineffective

The First District Court of Appeal

(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 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

Supreme

Court

Its decision

precedent,

including

The state court's adjudication of this

to

or

an

unreasonable

application

of

Strickland, or based on an unreasonable determination of the facts.
Ground one is due to be denied.
B.

Ground Two
- 12 -

In

his

second

prosecutorial

ground

misconduct

for

Petitioner
eliciting

raises
false

a

claim

statements

of
from

Officer Santoro.

Petitioner references the question from the

prosecutor,

the

"[a]t

point

where

you

see

a

pistol

in

the

defendant's hand from reaching from his back area, what do you do
in response at that point?"

Ex. H at 199.

Officer Santoro

responded: "I immediately like –- basically, like I said, my door
was open, and I then throw him into my car, and myself and the
defendant actually go into the car, and the guy ended up –- just
took the gun out of his hand."

Id.

Petitioner also references to

the prosecutor's question: "What do you recognize it to be?"
at 201.

Id.

Officer's Santoro responded: "[t]o be the weapon that was

taken off of the defendant."

Id.

In his Petition, Petitioner asserts that by suggesting through
the questions and responses that the gun was taken from him,
"[t]his deliberate deception" deprived him of due process of law
because the gun was actually collected from the ground by Mr. Lugo.
Petition

at

14.

The

circuit

court

succinctly

describes

Petitioner's claim: "Defendant contends the officer committed
perjury

and

the

prosecutor

knowingly

failed

to

correct

the

inconsistencies resulting in Defendant's unlawful conviction." Ex.
H at 164-65.
In addressing this claim, the court found that the statements
were not false, misleading or inflammatory, and certainly did not
prejudice the jury.

Id. at 165-66.
- 13 -

The court analyzed the

deposition testimony compared to the trial testimony, and concluded
that they were not inconsistent because Officer Santoro testified
there was a physical struggle in which he threw Petitioner against
his patrol car, thereby dislodging the gun.

Id. at 166.

Rather

than denying that the gun fell from Petitioner's hand after he was
thrown against the vehicle, Officer Santoro clarified his response
on cross examination, explaining "[t]hat's when I threw him against
my patrol car, and that's when the gun actually fell out."
212.

Id. at

When asked again if he took the gun out of Petitioner's

hands, he said, "I guess you can say my patrol car did."

Id.

The circuit court further found that the response that it was
the weapon taken off of the defendant was also not false or
misleading.

Id. at 166.

The court said:

Again, the Court finds that Officer
Santoro's response, which was made as part of
the State's foundation for introducing the
firearm into evidence, (Ex. D at 28-31), was
neither false nor misleading. Officer Santoro
testified at trial that he saw Defendant
holding a gun and that when it fell from
Defendant's hand during the struggle, he asked
Mr. Lugo, a nearby citizen, to collect it off
the ground for him. (Exs. D at 27, 29, 32-33,
44-46, 48-49, 55; F at 3, 4.) Such statements
were
consistent
with
Officer
Santoro's
deposition testimony.
(Ex. E at 14-18, 3032.)
Moreover, defense counsel actually
objected to the introduction of the firearm on
the basis of chain of custody, specifically
arguing that Mr. Lugo collected the gun
instead of Officer Santoro. (Ex. D at 31-33.)
Consequently, the prosecutor did not err in
allowing Officer Santoro to testify as he did.
Nor has Defendant established that the
officer's statements were false, misleading,
- 14 -

or inflammatory to the
Ground Three is denied.

jury.

Therefore,

Ex. H at 166-67.
In this instance, there is a reasonable basis for the court to
deny relief; therefore, the denial must be given deference.

AEDPA

deference will be given to the last adjudication on the merits
provided by the 1st DCA in affirming the decision of the circuit
court.

Its decision is not inconsistent with Supreme Court

precedent.

The Court finds that the state court's adjudication of

this claim is not contrary to or an unreasonable application of
Supreme Court law, or based on an unreasonable determination of the
facts.

Petitioner is not entitled to habeas relief on ground two.

The record itself refutes the claim that the prosecutor's
questions deprived Petitioner of a fair and impartial trial.
jury was not improperly misled.
prosecutor's

questions

and

The

Any misimpression left by the

Officer

Santoro's

responses

was

corrected through effective cross examination by defense counsel.
To the extent Petitioner is claiming jury confusion, his claim
lacks factual support or substance. Officer Santoro testified that
his struggle with Petitioner lasted approximately six to eight
minutes.

Ex. H at 217.

When asked if "this is the same gun that

you saw that you said fell out of Mr. Braddy's hands[,]" Officer
Santoro responded affirmatively.

Id. at 215.

Officer Santoro

provided a detailed description of his struggle with Petitioner and
his decision to ask Mr. Lugo to pick up the gun.
- 15 -

Id. at 216-20.

Petitioner's claim that the prosecutor knowingly used perjured
testimony is without merit and is due to be denied.
To the extent Petitioner is attempting to raise a claim that
there has been a Giglio5 violation, he is not entitled to relief.
There is a Giglio violation "when the prosecution solicits or fails
to correct false or perjured testimony" and this testimony could
"in any reasonable likelihood have affected the judgment of the
jury."

Rodriguez v. Sec'y, Fla. Dep't of Corr., 756 F.3d 1277,

1302 (2014) (citing

Giglio, 405 U.S. at 153-54 (quoting Napue v.

Illinois, 360 U.S. 246, 271 (1959))), cert. denied, 135 S.Ct. 1707
(2015).

The state commits a violation of Giglio if it uses

perjured testimony and the prosecutor knew or should have known of
the perjury.

Id. (citation omitted).

Thus, "[i]t is by now almost axiomatic that, '[i]n order to
prevail on a Giglio claim, a petitioner must establish [1] that the
prosecutor knowingly used perjured testimony, or failed to correct
what he subsequently learned was false testimony, and [2] that the
falsehood was material.'"

Raleigh v. Sec'y, Fla. Dep't of Corr.,

827 F.3d 938, 949 (11th Cir. 2016) (citations omitted).

False

testimony is material if there is any reasonable likelihood that
the falsehood could have affected the result.

Id.

(citation

omitted). But, there is an additional factor which this Court must
take into consideration when reviewing a Giglio claim on habeas

5

Giglio v. United States, 405 U.S. 150 (1972).
- 16 -

review; Petitioner must satisfy the Brecht standard.6

Therefore,

if Petitioner fails to demonstrate the error had a substantial and
injurious effect on the outcome of the trial, he would not be
entitled to habeas relief.

Rodriguez, 756 F.3d at 1302 (citing

Guzman v. Sec'y, Dep't of Corr., 663 F.3d 1336, 1355-56 (11th Cir.
2011)).
Respondents argue that the testimony at issue "was hardly
material," and there was no Giglio violation, since as a factual
matter, the testimony did not constitute perjury.

Response at 18.

In essence, Respondents contend that Petitioner has failed to
establish that the prosecutor knowingly used perjured testimony and
the testimony was material and could have affected the judgment.
Id. at 16.
It follows that pursuant to 28 U.S.C. § 2254(d), Petitioner is
not entitled to habeas relief based on his Giglio claim unless he
demonstrates that the state court's adjudication of the claim was
contrary to, or an unreasonable application of Giglio, or was based
on an unreasonable determination of the facts, and he demonstrates
that the Giglio error was not harmless under Brecht.
Apparently, Petitioner is attempting to challenge the state
court's conclusion that Officer Santoro did not provide false
testimony.

To the extent Petitioner is asserting that the state

court made an unreasonable factual finding when it found Santoro's

6

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
- 17 -

testimony

was

not

false,

Petitioner

has

not

shown

that

no

reasonable jurist would agree with the state court's factual
determination. See 28 U.S.C. § 2254(d)(2). Indeed, this Court, in
considering this claim,
may not characterize these state-court factual
determinations as unreasonable "merely because
[we] would have reached a different conclusion
in the first instance." Wood v. Allen, 558
U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738
(2010). Instead, § 2254(d)(2) requires that we
accord the state trial court substantial
deference. If "'[r]easonable minds reviewing
the record might disagree' about the finding
in question, 'on habeas review that does not
suffice to supersede the trial court's ...
determination.'" Ibid. (quoting Rice v.
Collins, 546 U.S. 333, 341–342, 126 S.Ct. 969,
163 L.Ed.2d 824 (2006)).
Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015).
Here, the state court factual finding was not "unreasonable"
under 2254(d)(2).

The circuit court did not apply an incorrect

legal standard, as the court concluded that although Petitioner
claimed Santoro perjured himself at trial, the record showed that
his

testimony

testimony.

was

not

directly

inconsistent

with

previous

By its ruling, in line with Supreme Court precedent,

the circuit court determined there was no "deliberate deception of
a court and jurors by the presentation of known false evidence[.]"
Giglio, 405 U.S. at 153.

The First District Court of Appeal

affirmed this decision.
Deference under AEDPA should be given to the state court's
decision. Petitioner raised the issue in his Rule 3.850 motion and
- 18 -

on appeal of the denial of the Rule 3.850 motion, and the appellate
court affirmed.
not

contrary

to

The state court's adjudication of this claim is
or

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, Petitioner is not entitled to

habeas relief on ground two.
C.

Ground Three

Petitioner claims prosecutorial misconduct in his third ground
for

habeas

relief.

Petitioner

alleges

that

the

prosecutor

committed a discovery violation by failing to disclose C.S.O.
Officer Rowe, the C.A.D. Report containing the examination of the
firearm at the crime scene, and the Florida Department of Law
Enforcement's

(FDLE)

firearm

test

results.

Petition

at

20.

Petitioner suggests that his trial counsel, Henry Quinn Johnson,
could

not

have

learned

of

Officer

Rowe

because

Petitioner's

previous attorney, Jennifer Love, was defense counsel during the
deposition of Officer Santoro when Officer Rowe's name came up.
Id. at 21.
This claim is completely without merit.

The state, in its

Discovery Exhibit and Demand for Reciprocal Discovery, listed the
FDLE analyst as a witness.

Ex. A at 16.

references "FDLE results and reports."

This document also

Id. at 17.

The state's

First Supplemental Discovery Exhibit listed David Warniment as a
witness and listed his FDLE report as an exhibit.
- 19 -

Id. at 21.

Petitioner's

defense

counsel,

deposition of Officer Santoro.

Jennifer

Love,

Ex. H at 261.

attended

the

Officer Santoro

attested that he thought CSO Rowe was the officer who emptied the
weapon.

Id. at 294.

When asked for the name of the other officer,

Santoro stated that the officer's name would be on the CAD report.
Id.

The prosecutor said he might list Rowe as a witness at some

point, but he did not currently have him listed.

Id. at 296.

Petitioner raised this ground in his Rule 3.850 motion, and
the circuit court rejected it holding:
[H]is claim fails because he has not
established that the State committed a
discovery violation and that, even if they
had, that he suffered prejudice as a result.
Indeed, the record here indicates that all
Florida Department of Law Enforcement results
and reports were tendered to the Defense
during discovery. (Ex. G.) Thus, if Officer
Rowe had produced a written report, the record
suggests it was turned over to the Defense.
Furthermore, defense counsel learned of
Officer Rowe's involvement in the collection
of
evidence
during
Officer
Santoro's
deposition on September 7, 2007, some two
months
before
trial,
and
immediately
complained that the State had not listed him
as a witness.
(Ex. E at 35-37.)
And at
trial, David Warniment, the Florida Department
of
Law
Enforcement's
firearm
examiner,
testified that he preformed [sic] several
tests on the gun, which revealed that the gun
was
in
perfect
working
order;
thereby
rendering any potential testimony by Officer
Rowe merely cumulative in nature. (Ex. D at
93-94.) Aside from Mr. Warniment's testimony,
Officer Santoro, as stated supra in Ground
Two, authenticated the firearm as being the
same that he saw in Defendant's possession.
(Ex.
D
at
28-33,
45-46,
49,
51).
Consequently,
Defendant
has
failed
to
- 20 -

establish that a discovery violation occurred
and that if it had, that he was prejudiced
thereby. As such, Ground Four is denied.
Ex. H at 168-69.
As noted by the circuit court, Petitioner's defense counsel
was well-informed of the witnesses and the reports.

Indeed, the

record shows that the FDLE reports were tendered to the defense
during discovery.

The defense was made aware of witness Rowe.

There is absolutely no evidentiary support for Petitioner's claim
that the prosecutor failed to disclose either witnesses or reports.
In this instance, there is a reasonable basis for the court to
deny relief.

Petitioner has not shown otherwise.

denial must be given deference.
ground is entitled to deference.

Therefore, the

The 1st DCA's rejection of this
The 1st DCA's affirmance was

neither contrary to nor an unreasonable application of Supreme
Court law, and it did not rely on an unreasonable determination of
fact.

Thus, ground three is due to be denied.
D.

Ground Four

In his fourth ground, Petitioner raises a claim of ineffective
assistance of counsel for failure to file a motion in limine to
prevent the state from mentioning the existence of Mr. Lugo, a nontestifying witness.

Petition at 25-26.

Petitioner complains that

Officer Santoro testified to "inadmissible testimonial hearsay
evidence."

Id. at 27.

Petitioner asserts that the prosecutor's

presentation of this evidence, without the ability to cross examine
Mr. Lugo, violated Petitioner's rights under the Confrontation
- 21 -

Clause.

Id.

Petitioner concedes that the record shows that no

statements attributable to Mr. Lugo were actually admitted at
trial, but Petitioner still contends that it was "impermissible for
the state to have the benefit of the firearm" without Petitioner's
ability to cross examine Mr. Lugo.

Id.

In order to prevail on this Sixth Amendment claim, Petitioner
must satisfy both prongs of the test set forth in Strickland.

The

circuit court recognized the applicable two-pronged Strickland
standard prior to addressing the claims of ineffective assistance
of counsel.

Ex. H at 158-59.

The court noted that Petitioner

claimed that failure to produce Mr. Lugo resulted in a violation of
Petitioner's due process and confrontation clause rights since he
did not have the opportunity to use Lugo's testimony to challenge
the authenticity of the firearm or to refute or contradict Officer
Santoro's testimony concerning the firearm. Id. at 171. The court
concluded that the state was not required to present additional
witnesses to corroborate Mr. Santoro's testimony. Id. at 172. The
court further found that "any objection by counsel, whether based
on a confrontation clause violation or some other legal reason,
would have been futile."

Id.

In addressing this claim for habeas relief, the circuit court
re-stated Petitioner's claim:
In Ground Ten, Defendant alleges counsel
was ineffective for failing to file a motion
in limine to exclude the testimony of Mr.
Lugo, a non-testifying witness in his trial.
The Court construes Defendant's claim as an
- 22 -

allegation that counsel should have filed a
motion in limine to prohibit the State from
mentioning or commenting upon the existence of
Mr. Lugo without producing him as a witness.
Defendant asserts prejudice in that Officer
Santoro testified he told Mr. Lugo to pick up
the firearm which Defendant was alleged to
have possessed, and place it in his patrol
car; this firearm was subsequently introduced
into evidence against Defendant at trial.
Ex. H at 173.
After conducting an evidentiary hearing, id. at 325-77, the
circuit court rejected this ground, stating:
Initially, as noted supra, it was
actually defense counsel, not the State, who
brought up the existence of Mr. Lugo by
objecting to the introduction of he firearm on
the basis of chain of custody. (Ex. D at 3133.)
Additionally, at the evidentiary
hearing, both Defendant and Mr. Johnson
testified that no statements attributable to
Mr. Lugo were admitted at trial. Rather, the
record indicates Officer Santoro testified
that he saw Defendant holding a gun and when
it fell onto the ground during the struggle,
he asked Mr. Lugo to collect it for him and
put it in his patrol car. (Ex. D at 27, 29,
32-33, 44-46, 48-49, 55.) The fact that Mr.
Lugo retrieved the firearm at the request of
Officer Santoro did not provide a legal basis
for objection. Cf. Pierre-Charles v. State,
67 So. 3d 301, 305 (Fla. 2nd DCA 2011)
(explaining that a head nod in response to a
question may be considered hearsay). Because
any objection by counsel would have been
futile, counsel was not ineffective and Ground
Ten is denied. See Willacy, 967 So.2d at 140.
Ex. H at 173-74.
The record shows that defense counsel did not stand idly by,
without objecting to the introduction of the gun into evidence.
Id. at 203.

He objected, expressing concern about "the collection
- 23 -

of the gun[.]"

Id.

Upon voir dire examination, Officer Santoro

testified that the gun was in his sight, but he was not the one who
picked the gun up off of the ground.

Id. at 204.

Upon further

inquiry, he stated that someone else picked up the gun.

Id.

The

court overruled defense counsel's objection. Id. at 205. Once the
trial court overruled the objection, defense counsel proceeded to
cross examine Officer Santoro about Mr. Lugo's actions.

In

response, Officer Santoro testified that Mr. Lugo picked up the
gun. Id. at 209.
The

circuit

court

rejected

this

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
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.

With regard to this claim of ineffective assistance of

counsel, he has not accomplished that task.
Since there is a 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
- 24 -

application

of

Strickland, or based on an unreasonable determination of the facts.
Petitioner is not entitled to habeas relief based on his claim of
ineffective assistance of counsel.
In this case, defense counsel was not ineffective for failure
to file a motion in limine.

Of note, there were no statements of

Mr. Lugo brought out at trial.

Ex. H at 339.

Furthermore, it was

counsel's strategic decision to try and show a flawed chain of
custody, and the only way to do that was to bring out Mr. Lugo's
existence.
Under

See id. at 373.
these

circumstances,

cannot be deemed deficient.

defense

counsel's

performance

On this record, Petitioner has failed

to carry his burden of showing that his counsel's representation
fell outside that wide range of reasonably professional assistance
for failing to file a motion in limine.

Even assuming deficient

performance by his counsel, Petitioner has not shown prejudice.
Petitioner has not shown that a reasonable probability exists that
the outcome of the proceeding would have been different if his
lawyer

had

filed

such

a

motion

in

limine.

Petitioner's

ineffectiveness claim is without merit since he has shown neither
deficient performance nor resulting prejudice.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.

Thus,

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

is

not

Given due consideration, its

inconsistent with
- 25 -

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 four is due to be

denied.
E.

Ground Five

In his fifth ground, Petitioner claims his appellate counsel
was ineffective for failing to argue that the lower court erred in
determining the Petitioner's encounter with law enforcement was
initially consensual.

Petition at 32.

Petitioner raised this

claim in his Petition for Writ of Habeas Corpus.
DCA

denied

the

petition

alleging

appellate counsel on its merits.

Ex. N.

ineffective
Ex. O.

The 1st

assistance

of

Thus, there is a

qualifying state court opinion for AEDPA purposes.

Based on the

1st DCA's denial of the claim on its merits, this Court must
"review it using the deferential standard set out in § 2254(d)(1)."
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1330 (11th Cir.),
cert. denied, 137 S.Ct. 505 (2016).
When addressing a claim of ineffective assistance of appellate
counsel, the two-part Strickland standard is applicable:
To prevail on a claim of ineffective
assistance of appellate counsel, a habeas
petitioner must establish that his counsel's
performance was deficient and that the
deficient performance prejudiced his defense.
See Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984); Brooks v. Comm'r, Ala. Dep't of Corr.,
719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims
- 26 -

of ineffective assistance of appellate counsel
are governed by the same standards applied to
trial counsel under Strickland.") (quotation
marks
omitted).
Under
the
deficient
performance prong, the petitioner "must show
that counsel's representation fell below an
objective
standard
of
reasonableness."
Strickland, 466 U.S. at 688, 104 S.Ct. at
2064. "The standards created by Strickland and
§ 2254(d) are both highly deferential, and
when the two apply in tandem, review is doubly
so." Harrington, 562 U.S. at 105, 131 S.Ct. at
788 (quotation marks and citations omitted);
see also Gissendaner v. Seaboldt, 735 F.3d
1311, 1323 (11th Cir. 2013) ("This double
deference is doubly difficult for a petitioner
to overcome, and it will be a rare case in
which an ineffective assistance of counsel
claim that was denied on the merits in state
court is found to merit relief in a federal
habeas proceeding.") (quotation marks and
alteration omitted). "If this standard is
difficult to meet, that is because it was
meant to be." Harrington, 562 U.S. at 102, 131
S.Ct. at 786.
Rambaran v. Sec., Dep't of Corr., 821 F.3d at 1331.
Upon review of the entire record, appellate counsel did not
perform deficiently.

She raised the issue that the trial court

erred in denying Petitioner's motion to suppress, claiming Officer
Santoro lacked reasonable suspicion of illegal activity to justify
the stop.

Ex. B; Ex. D.

The 1st DCA per curiam affirmed.

Ex. E.

In her brief, appellate counsel argued that "[t]his was
clearly a seizure and not merely a citizen encounter."
12.

Ex. B at

Although she stated that the contact "may have started as a

citizen encounter," as found by the trial court, it certainly
should be considered to be a seizure once the officer grabbed
Petitioner's arm.

Id. at 15.
- 27 -

Contending

the

stop

was

unjustified,

appellate

counsel

presented a strong argument that the trial court's conclusion was
in error.

Id.

Counsel urged the 1st DCA to find that none of the

facts of the encounter "translated into a well-founded suspicion
that appellant had committed, was committing or was about to commit
a crime" to justify the seizure.

Id. at 18.

Counsel submitted

that the appellate court should find that the stop was illegal, and
therefore, Petitioner had a constitutional right to be free of
seizure.

Id. at 19.

In conclusion, counsel argued that the trial

court should have suppressed the seized evidence.

Id.

In this ground for relief, Petitioner urges the Court to find
that appellate counsel was ineffective because she was too quick to
concede to the lower court's factual conclusion that the initial
interaction was consensual.

Petition at 32.

Petitioner maintains

that appellate counsel should have relied upon the argument that
the

stop

was

investigatory

initiated
stop

from

due

to

a

inception,

tip,
and

it

the

constituted
Fourth

an

Amendment

prohibited the investigatory stop because there was not a wellfounded, articuable suspicion of criminal activity.

Id. at 33-34.

See Ex. A at 29.
Upon review, the circuit court conducted a hearing on the
motion to suppress.

Ex. A at 79-98.

Initially, the court

acknowledged that it had read the relevant depositions. Id. at 83.
Thereafter, Petitioner testified as to his encounter with the

- 28 -

police.
90-98.

Id. at 84-90.

Finally, the court heard argument.

Id. at

It made this finding:
I'm going to find that at the time that
Officer
Santorio
[sic]
approached
the
defendant and asked for his name it was
Officer
clearly a consensual encounter.7
Santorio did testify that after he put his
hand on the defendant's arm he was not free to
go, but by then he knew that the defendant was
in a high crime area with two known criminals,
that he had refused to give his name, that he
said he didn't have any identification, yet
was reaching into his back pocket for no other
reason than officer safety. He had the right
to have the defendant stand up and, of course,
it was at that point that the defendant
engaged in criminal conduct which gave him
probable cause to arrest. I can't begin to
see anything unlawful that Officer Santorio
did here and I will deny the motion to
suppress.

Id. at 98.
In the appeal brief, appellate counsel elected to focus on the
denial of the motion to suppress. The trial court's determinations
on the factual issues would, in all likelihood, be given deference,
but the constitutional issue would be reviewed de novo, allowing
for the appellate court to employ its decision-making power with
regard to the question of law.

See Seibert v. State, 923 So. 2d

460, 468 (Fla. 2006) (citing Fitzpatrick v. State, 900 So. 2d 495,
510 (Fla. 2005)) (recognizing that the ruling on a motion to

7

Petitioner was sitting on the curb with two known criminals.
Ex. A at 86. The officer did not recognize Petitioner and asked
for his name. Id. at 87. When Petitioner did not respond to the
officer's question, the officer asked Petitioner if he had
identification. Ex. A at 87. Petitioner said no. Id.
- 29 -

suppress is a mixed question of law and fact), cert. denied, 549
U.S. 893 (2006); Wheeler v. State, 956 So. 2d 517, 520 (Fla. 2nd
DCA 2007) (finding the brunt of the findings of fact supported by
competent,

substantial

evidence,

requiring

affirmance

of

the

factual findings).
In these circumstances, involving a mixed question of law and
fact,

appellate

certainly

rested

counsel's
on

the

constitutional issue anew.

real

hope

appellate

of

prevailing

court

on

appeal

considering

the

The trial court had the ability to

evaluate and weigh the testimony and evidence presented at the
suppression hearing.

On appellate review, the trial court's

factual findings would be given deference, if supported.

It was

certainly within the objective standard of reasonableness for
appellate counsel to state that the initial contact may have been
consensual, as found by the trial court, but passionately argue
that this contact quickly transformed into an investigatory stop
culminating in an unjustified seizure.
There is a reasonable basis for the state court to deny relief
on the claim of ineffective assistance of appellate counsel;
therefore, the denial must be given deference.

Ex. O.

On this

record, the Court finds that the 1st DCA could have reasonably
determined that appellate counsel was not ineffective for not
arguing that the trial court erred in determining the encounter
with

law

enforcement

was

initially

consensual.

"Claims

of

ineffective assistance of appellate counsel are governed by the
- 30 -

same

standards

applied

to

trial

counsel

under

Strickland."

Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (per
curiam) (citing Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir.
1991)), cert. denied, 559 U.S. 1010 (2010).
has

explained

that

"[i]n

assessing

an

The Eleventh Circuit
appellate

attorney's

performance, we are mindful that 'the Sixth Amendment does not
require appellate advocates to raise every non-frivolous issue.'
[...]

Rather,

an

effective

attorney

will

arguments, even though they may have merit."

weed

out

weaker

Id. (citing Heath,

941 F.2d at 1130-31).
The 1st DCA's decision is not inconsistent with Supreme Court
precedent, including Stickland and its progeny.

Thus, the state

court's adjudication of this claim is not contrary to or an
unreasonable application of Strickland, or based on an unreasonable
determination of the facts.

Accordingly, ground five is due to be

denied.
F.

Ground Six

In his sixth and final ground, Petitioner raises another claim
of ineffective assistance of appellate counsel.

Petition at 40.

He claims appellate counsel performed deficiently when she did not
argue that the trial court erred in admitting the firearm into
evidence without the establishment of a proper chain of custody.
Id. Petitioner exhausted this ground in his state habeas petition.
Ex. N.

The 1st DCA denied relief.

Ex. O.

Thus, there is a

qualifying state court decision pursuant to AEDPA. Deference under
- 31 -

AEDPA is due.

Its decision is not inconsistent with Strickland.

The adjudication is not contrary to or an unreasonable application
of Strickland, or based on an unreasonable determination of the
facts.

Ground six is due to be denied.

The record shows that defense counsel did make an objection as
to chain of custody, but the trial court overruled his objection.
Ex. H at 203-205.

Officer Santoro said that the gun was in his

sight the entire time.

Id. at 204.

In response to the question,

"did it ever leave your control or out of your vision before it was
stored in the Jacksonville Sheriff's property room[,]" Santoro said
no.

Id. at 201.

Santoro testified that he watched Mr. Lugo pick
Id. at 213.

up the gun and place it into the patrol car.
"In

order

attempting
probability

to

to
bar

that

demonstrate

probable

tampering,

evidence

must

show

that

evidence

was

tampered

the
the

possibility is insufficient."

the

there
with—the

party
was

a

mere

Armstrong v. State, 73 So. 3d 155,

171 (Fla. 2011) (citing Murray v. State , 838 So. 2d 1073, 1082–83
(Fla. 2002)), cert. denied, 132 S.Ct. 2741 (2012).

In this case,

Petitioner makes a vague and conclusory allegation that Officer
Santoro "allowed the firearm to be tampered with." Petition at 42.
Petitioner

states

that

the

gun

was

"tampered,

contaiminated [sic] and altered[.]" Id. at 43.

tainted,

He does not,

however, present any evidence whatsoever showing a probability of
tampering, altering, or contamination of the evidence.

- 32 -

As noted by Respondents, Petitioner's complaint is "largely
that a citizen was allowed to touch evidence under an officer's
orders and observation."

Response at 26.

Although Petitioner

surmises that the evidence could have been tampered with at some
point, this suggestion of a mere possibility of tampering does not
remotely satisfy the requirement that he demonstrate probable
tampering.

In fact, there is no real evidence of tampering taking

place as no fingerprints were found on the gun, tests results which
were considered to be quite favorable to the defense.

Ex. H at

236; 340.
A mere allegation of possible tampering is insufficient.
Therefore, appellate counsel's failure to raise this issue was not
outside "the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689.

This Court finds that "[u]nder the

doubly deferential judicial review that applies to a Strickland
claim evaluated under the § 2254(d)(1) standard, see Yarborough v.
Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per
curiam),

[Petitioner's]

ineffective-assistance

claim

fails."

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Upon review of the entire record, appellate counsel did not
perform deficiently.
court

to

deny

There is a reasonable basis for the state

relief;

therefore,

the

denial

must

be

given

deference. The 1st DCA's decision is not inconsistent with Supreme
Court precedent, including Stickland and its progeny.

Thus, the

state court's adjudication of this claim is not contrary to or an
- 33 -

unreasonable application of Strickland, or based on an unreasonable
determination of the facts.

Petitioner is not entitled to habeas

relief on ground six.
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.8
has

determined

that

a

certificate

of

Because this Court

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.

8

This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
- 34 -

DONE AND ORDERED at Jacksonville, Florida, this 15th day of
June, 2017.

sa 6/8
c:
Arthur L. Braddy
Counsel of Record

- 35 -