Williams v. State of Florida et al
Filing
19
ORDER denying 1 the 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 10/24/2018. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DALE L. WILLIAMS,
Petitioner,
vs.
Case No. 3:17-cv-204-J-39JBT
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,1
Respondents.
ORDER
I.
INTRODUCTION
Petitioner Dale L. Williams initiated this case by filing a
pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by
a Person in State Custody (Petition) (Doc. 1).2
several
2010
Duval
County
convictions
through
He challenges
four
grounds.3
Respondents filed an Answer in Response to Order to Show Cause
1
The Clerk shall correct the docket from Respondent, State of
Florida, to Respondent, Secretary, Florida Department of
Corrections.
2
The Court will reference the page numbers assigned by the
electronic docketing system where applicable.
3
Petitioner references convictions for two counts of
depriving an officer of means of protection or communication, two
counts of resisting an officer with violence, possession of less
than twenty grams of cannabis, and one count of loitering or
prowling.
(Response) (Doc. 15).4
Petitioner filed a Reply (Doc. 18).
See
Order (Doc. 5).
II.
CLAIMS
Four grounds for habeas relief are raised in the Petition: (1)
prosecutorial misconduct; (2) an illegal stop and search; (3)
ineffective assistance of counsel; and (4) insufficiency of the
evidence.
Petition at 5, 7, 8, 10.
III.
EVIDENTIARY HEARING
No evidentiary hearing will be conducted as this Court is not
required to hold an evidentiary hearing if the record refutes the
asserted factual allegations or otherwise precludes habeas relief.
Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Petitioner has not
met the burden to establish the need for a federal evidentiary
hearing. Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060
(11th Cir. 2011), cert. denied, 565 U.S. 1120 (2012).
In this
case, the pertinent facts are fully developed in the record or the
record otherwise precludes habeas relief; therefore, the Court is
able to "adequately assess [Petitioner's] claim[s] without further
factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th
Cir. 2003), cert. denied, 541 U.S. 1034 (2004).
4
The Court hereinafter refers to the exhibits in the Appendix
as "Ex."
Where provided, the page numbers referenced in this
opinion are the Bates stamp numbers at the bottom of each page of
the exhibit. Otherwise, the page number on the particular document
will be referenced.
- 2 -
IV.
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 (2017).
"AEDPA limits the scope of federal
habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla.
Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017), cert. denied,
No. 17-9015, 2018 WL 2322632 (Oct. 1, 2018).
This narrow scope of
review under AEDPA provides for habeas relief only if there are
extreme malfunctions, certainly not to be used as a means to
correct state court errors.
Ledford, 818 F.3d at 642 (quoting
Greene v. Fisher, 565 U.S. 34, 38 (2011)).
"Under AEDPA, error is
not enough; even clear error is not enough." Meders v. Warden, Ga.
Diagnostic Prison, 900 F.3d 1330, 1344 (11th Cir. 2018) (citation
omitted).
Indeed,
federal courts may grant habeas relief:
only when the adjudication of a federal
constitutional claim "on the merits in State
court proceedings" either "resulted in a
decision that was contrary to, or involved an
unreasonable
application
of,
clearly
established Federal law, as determined by the
Supreme Court of the United States" or
"resulted in a decision that 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). "This
narrow evaluation is highly deferential, for a
state court's determination that a claim lacks
merit precludes federal habeas relief so long
as fairminded jurists could disagree on the
correctness of the state court's decision."
- 3 -
Morrow v. Warden, 886 F.3d 1138, 1146–47 (11th
Cir. 2018) (alteration adopted) (internal
quotation marks omitted) (quoting Harrington
v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770,
178 L.Ed.2d 624 (2011)). The decision of a
state court is "contrary to" federal law only
if it "contradicts the United States Supreme
Court on a settled question of law or holds
differently than did that Court on a set of
materially indistinguishable facts." Cummings
v. Sec'y for Dep't of Corr., 588 F.3d 1331,
1355 (11th Cir. 2009) (citation and internal
quotation marks omitted). The decision of a
state
court
"involves
an
unreasonable
application of federal law if it identifies
the correct governing legal principle as
articulated by the United States Supreme
Court, but unreasonably applies that principle
to the facts of the petitioner's case,
unreasonably extends the principle to a new
context where it should not apply, or
unreasonably refuses to extend it to a new
context where it should apply." Id. (citation
and internal quotation marks omitted). "The
question ... is not whether a federal court
believes the state court's determination was
correct but whether that determination was
unreasonable—a
substantially
higher
threshold."
Id.
(citation
and
internal
quotation marks omitted).
Wilson v. Warden, Ga. Diagnostic Prison, 898 F.3d 1314, 1321 (11th
Cir. 2018).
This Court will not "flyspeck the state court order or grade
it."
Id. at 1345.
Instead, the Court is charged with reviewing
the conclusions of the state court, deferring to the state court
decisions, and granting habeas relief only if the adjudication of
the claim resulted in a decision that was contrary to, or involved
an unreasonable application of Supreme Court precedent.
"We also
must presume that 'a determination of a factual issue made by a
- 4 -
State court [is[ correct,' and the petitioner 'ha[s] the burden of
rebutting the presumption of correctness by clear and convincing
evidence.'
28 U.S.C. § 2254(e)(1)."
1138, 1147 (11th Cir. 2018).
Morrow v. Warden, 886 F.3d
Additionally, "[t]his 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, 568 U.S. 1233
(2013).
In this regard:
"Deciding
whether
a
state
court's
decision
'involved'
an
unreasonable
application of federal law or 'was based on'
an unreasonable determination of fact requires
the federal habeas court to 'train its
attention on the particular reasons—both legal
and factual—why state courts rejected a state
prisoner's
federal
claims.'"
Wilson
v.
Sellers, ––– U.S. ––––, 138 S.Ct. 1188,
1191–92, ––– L.Ed.2d –––– (2018) (quoting
Hittson v. Chatman, ––– U.S. ––––, 135 S.Ct.
2126, 2126, 192 L.Ed.2d 887 (2015) (Ginsberg,
J., concurring in denial of certiorari) ). The
Supreme Court recently held that, when the
relevant
state
court
decision
is
not
accompanied by a reasoned opinion explaining
why relief was denied, "the federal court
should 'look through' the unexplained decision
to the last related state-court decision that
does provide a relevant rationale" and
"presume that the unexplained decision adopted
the same reasoning." Id. at 1192. "[T]he State
may rebut the presumption by showing that the
unexplained affirmance relied or most likely
did rely on different grounds than the lower
state court's decision." Id.
- 5 -
Johnson v. Sec'y, Dep't of Corr., 737 F. App'x 438, 441 (11th Cir.
2018) (per curiam).
Bearing in mind this guidance from the Supreme Court, this
Court undertakes its review of Petitioner's four claims.
If the
last state court to decide a federal claim provides an explanation
for its merits-based decision in a reasoned opinion, this Court
simply reviews the specific reasons given by the state court and
defers to those reasons, if they are reasonable.
On the other
hand, if the relevant state-court decision is not accompanied by a
reasoned opinion, simply stating affirmed or denied, this Court
should "look through" the unexplained decision to the last related
state-court decision that provides relevant rationale.
This Court
presumes the unexplained decision adopted the same reasoning as the
lower court; however, the presumption is not irrebutable, as strong
evidence may refute the presumption.
S.Ct. 1603, 1606 (2016) (per curiam).
See Kernan v. Hinojosa, 136
Thus, the state may rebut
the presumption by showing the higher state court relied or most
likely relied on different grounds than the lower state court,
"such as alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the record it
reviewed."
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Although the § 2254(d) standard is difficult to meet, the
standard is meant to be difficult.
Rimmer v. Sec'y, Fla. Dep't of
Corr., 876 F.3d 1039, 1053 (11th Cir. 2017) (opining that to reach
the level of an unreasonable application of federal law, the ruling
- 6 -
must be objectively unreasonable, not merely wrong or even clear
error), cert. denied, 138 S.Ct. 2624 (2018).
When applying the
stringent AEDPA standard, state court decisions must be given the
benefit of the doubt.
Trepal v. Sec'y, Fla. Dep't of Corr., 684
F.3d 1088, 1107 (11th Cir. 2012) (quotation and citations omitted),
cert. denied, 568 U.S. 1237 (2013).
V.
INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on his Sixth Amendment claims, 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).
A counsel's performance is deficient only if counsel's "identified
acts or omissions were outside the wide range of professionally
competent assistance."
In
making
its
Id. at 690.
determination
as
to
whether
counsel
gave
adequate assistance, "counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in exercise
of reasonable professional judgment."
Id. at 690.
When analyzing
a claim of ineffective assistance of counsel, "[t]he question is
whether there is any reasonable argument that counsel satisfied
Strickland's deferential standard."
U.S.
86,
105
(2011).
And
Harrington v. Richter, 562
importantly,
- 7 -
with
regard
to
the
establishment of prejudice requirement, the reasonable probability
of
a
different
result
must
be
"a
probability
sufficient
to
undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Of note, some conceivable effect on the outcome does not constitute
a reasonable probability.
Id. at 693.
Finally, in order to prevail on a claim of ineffective
assistance of counsel, both parts of the Strickland test must be
satisfied.
Bester v. Warden, Att'y Gen. of the State of Ala., 836
F.3d 1331, 1337 (11th Cir. 2016) (citing Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000)), cert. denied, 137 S.Ct. 819
(2017).
Indeed, failure to demonstrate either prong is fatal,
making it unnecessary to consider the other.
VI.
Id.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In his first ground for relief, Petitioner raises a claim of
prosecutorial misconduct.
Petitioner, in his supporting facts for
this ground states:
(1) The prosecutor staged this vindictive
prosecution relying solely on the fraudulent
testimonies of Officer's [sic] Troy Yorton and
G. W. Simpson known to the prosecuting
authorities
to
be
fraudulent.
(2)
The
prosecutor failed to present a prima facie
case of the charges filed, no evidence of
violence[,] no evidence of the injury Officer
Troy Yorton claims he was treated eight
week[s] for[.]"
Petition at 5.
- 8 -
In this ground, Petitioner raises a claim of prosecutorial
misconduct for eliciting false statements from Officers Yorton and
Simpson.
Petitioner exhausted his claim by raising it in a post
conviction motion. The trial court addressed the claim as follows:
In his second subclaim, Defendant asserts
that the State committed a Giglio[v. United
States, 405 U.S. 150 (1972)] violation when it
knowingly presented the perjured testimonies
by Officers Yorton and Simpson.
Defendant
specifically
argues
that
the
officers
committed
perjury
when
they
testified
Defendant snatched their radios and Officer
Yorton was injured during the encounter. In
support of his argument, Defendant asserts the
testimonies must have been false or else the
State would have presented corroborative
testimony in the form of Officer Yorton's
medical
records,
workers'
compensation
documents, and police dispatch logs. Because
the State did not present such evidence,
Defendant speculates, it either does not exist
or it does not corroborate the officers'
testimonies. Thus Defendant argues that the
officer's testimony must be false, and the
State's
knowing
presentation
of
their
testimony violates Giglio.
Ex. O at 384 (footnote omitted).
The
trial
court
found
Petitioner
simply
restated
his
speculative claim upon amendment of this ground. Id. In rejecting
this claim, the court found no entitlement to post conviction
relief "based on speculation or possibility."
Id. at 384-85
(citation omitted).
The record shows the following.
Officer Simpson testified at
trial that he observed Petitioner grab Officer Yorton's hand and
pull it down when Officer Yorton attempted to complete his call for
- 9 -
help through his radio.
Ex. B at 58.
Officer Simpson further
attested that Officer Yorton was only able to reference First
Street, and was unable to provide the cross street, which would
have been Market Street.
a
result
of
this
Id.
Officer Simpson testified that, as
incomplete
communication,
the
police
car
responding to the call for assistance passed by them on First
Street.
Id. at 59.
Officer Simpson also testified that when he tried to use his
radio, Petitioner "was able to get his hand up and grab my mic
[sic] to pull it off."
Id. at 60.
Officer Simpson said, when the
this occurred, the microphone shot back behind him.
Id. at 61.
Officer Troy Yorton testified that when he attempted to call
for backup, Petitioner reached up and grabbed Yorton's hand and
pulled it away from the radio.
Id. at 124.
Officer Yorton said he
was able to get out his call sign and a request for backup to East
First Street, but was unable to announce the cross street due to
Petitioner's actions. Id. Officer Yorton testified the backup car
went by the officers' position.
Id. at 125.
He testified that
after the police car went by, Officer Simpson reached for his
radio, and Petitioner reached up and grabbed the radio and yanked
it off.
Id. at 125-26.
Officer Yorton testified the radio sprang
back and flew through the air.
Id. at 126.
With respect to his injuries, Officer Yorton testified he
suffered an injury to his left wrist.
Id. at 130.
Officer Yorton wore a brace on his left hand.
- 10 -
Id.
At trial,
He stated he
had been treated for the injury for about eight weeks.5
Id. at
136.
Petitioner, on the other hand, testified there was no struggle
and he never reached for the officers' radios.
Ex. C at 219-21.
Petitioner said he complied with the officers' directives, and they
simply grabbed him and took him face down onto the concrete.
Id.
at 219. He attested the officers simply picked him up and arrested
him.
Id.
On post conviction review, the trial court did not find the
officers' trial testimony false or misleading.
Instead, the court
found Petitioner's contention speculative, or a mere possibility.
Ex. O at 384-85. Petitioner has not established that the officers'
statements were false. Petitioner is not entitled to habeas relief
on ground one as Petitioner's claim that the prosecutor knowingly
used perjured testimony is unsubstantiated, speculative, and due to
be denied.
Upon review, 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. Ex. R. Its decision is not inconsistent with Supreme Court
precedent.
5
The Court finds that the state court's adjudication of
The trial court did not order restitution as Officer
Yorton's injury was covered by Worker's Compensation. Ex. A at
130, Order Denying Restitution.
- 11 -
this claim is not contrary to or an unreasonable application of
Supreme Court law, or based on an unreasonable determination of the
facts.
To the extent Petitioner is attempting to raise a claim that
there has been a Giglio[v. United States, 405 U.S. 150 (1972)]
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), cert.
denied, 137 S.Ct. 2160 (2017).
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
- 12 -
when reviewing a Giglio claim on habeas review; Petitioner must
satisfy the Brecht6 standard.
Therefore, if a 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)).
In this case, Petitioner has failed to establish that the
prosecutor knowingly used perjured testimony.
The trial court
found the claim to be both insufficient and speculative.
Ex. O at
384-85. The First District Court of Appeal affirmed this decision.
Ex. R. 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.
He has
failed to do so.
Deference under AEDPA should be given to the state court's
decision. Petitioner raised the issue in his Rule 3.850 motion and
the appellate court affirmed.
The state court's adjudication of
this claim is not contrary to 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 one.
6
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
- 13 -
B.
Ground Two
Petitioner's second ground for relief is a claim of an illegal
stop and search.
Petition at 5.
To the extent Petitioner raises
a Fourth Amendment claim in ground two, the Court should inquire as
to whether the Fourth Amendment claim is barred.
Importantly, if
the state affords a defendant a full and fair opportunity to
litigate the validity of a search or seizure, "a state prisoner may
not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was
introduced at his trial."
Hearn v. Florida, 326 F. App'x 519, 521
(11th Cir. 2009) (per curiam) (quoting Stone v. Powell, 428 U.S.
465,
494
(1976)).
The
courts
have
interpreted
the
phrase
"opportunity for full and fair litigation" to mean just that: an
opportunity.7
Lawhorn v. Allen, 519 F.3d 1272, 1287 (11th Cir.
2008) (citation omitted), cert. denied, 562 U.S. 907 (2010).
As
such, "if state procedures afford the defendant in a criminal case
the opportunity to litigate whether evidence obtained in violation
of the fourth amendment should be excluded, and if that opportunity
to litigate fourth amendment issues is 'full and fair' . . ., then
Stone v. Powell precludes federal habeas corpus consideration of
those issues whether or not the defendant avails himself of that
7
An opportunity in this context has been described as one
evidentiary hearing in the trial court and the availability of a
meaningful appeal. Bradley v. Nagle, 212 F.3d 559, 565 (11th Cir.
2000) (quotation and citation omitted), cert. denied, 531 U.S. 1128
(2001).
- 14 -
opportunity."
Caver v. State of Ala., 577 F.2d 1188, 1193 (5th
Cir. 1978) (emphasis added).8
The Court concludes ground two is not cognizable in a federal
habeas corpus proceeding because Petitioner had a full and fair
opportunity to litigate the Fourth Amendment issue in the state
courts but did not avail himself of that opportunity by failing to
file a motion to suppress.
Ex. B at 156.
Notably, if Petitioner
had availed himself of the opportunity, the trial court would have
had the occasion to review the motion, conduct an evidentiary
hearing, and make explicit findings on matters essential to the
Fourth Amendment claim. If filed and denied, Petitioner could have
appealed the decision to the 1st DCA.
Upon review, this claim is barred pursuant to Stone and its
progeny because Petitioner had a full and fair opportunity to
litigate the Fourth Amendment issue but failed to avail himself of
that opportunity.
Therefore, ground two, the Fourth Amendment
claim, is due to be denied.
Alternatively, to the extent that Petitioner exhausted his
claim raised in ground two, the claim is due to be denied.
are
two
prerequisites
to
a
federal
habeas
review:
(1)
There
"the
applicant must have fairly apprised the highest court of his state
with the appropriate jurisdiction of the federal rights which
8
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit adopted as binding
precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
- 15 -
allegedly
were
violated,"
and
(2)
"the
applicant
must
have
presented his claims in state court in a procedurally correct
manner."
Upshaw v. Singletary, 70 F.3d 576, 578-79 (11th Cir.
1995) (citations omitted).
Petitioner, in support of ground two, states: "(1) [t]he stop
and search of the defendant was illegal[;] there was no probable
cause[;] (2) the testimonies given by Officers Troy Yorton and G.
W. Simpson were fraudulent[;] (3) this arrest was motivated by
racial profiling[;] (4) ther[e] is no evidence presented of the
charges filed[.]" Petition at 7.
The trial court rejected Petitioner's claim as procedurally
barred:
Defendant's claim is procedurally barred
for two reasons.
First, Defendant raised
these arguments in a Motion for a New Trial.
(Ex. Q.) The trial court denied the motion on
the merits; and the First DCA affirmed on
direct appeal.
(Exs. R; B.)
Defendant is
therefore procedurally barred, under the
doctrine
of
collateral
estoppel,
from
relitigating the same issue. See McBride, 848
So. 2d at 287, 290.
Second, to the extent
Defendant
appears
to
be
attempting
to
challenge the sufficiency of the evidence
against him, a defendant may not challenge the
admissibility, validity, or sufficiency of the
evidence against him in a motion seeking
postconviction relief.
Betts v. State, 792
So. 2d 589, 590 (Fla. 1st DCA 2001); Jackson
v. State, 640 So. 2d 1173, 1174 (Fla. 2d DCA
1994). Accordingly, Defendant's second claim
is denied.
Ex. O at 381.
The First District Court of Appeal (1st DCA) per
curiam affirmed.
Ex. R.
- 16 -
The record demonstrates at trial, defense counsel moved for a
judgment of acquittal.
Ex. B at 154.
prowling and loitering.
asserted
the
officers
He argued Petitioner was not
Id. at 154-55.
did
not
have
Defense counsel also
enough
reason
to
arrest
Petitioner and were without probable cause to arrest Petitioner.
Id. at 156.
Additionally, defense counsel argued the evidence
should be suppressed and the case dismissed.
Id.
The court
inquired as to whether a motion to suppress had been filed, and
defense counsel responded in the negative.
counsel
argued
violence.
the
state
failed
to
Id.
present
Finally, defense
any
evidence
of
Id.
The prosecutor countered the defense argument by noting that
Petitioner was loitering at a closed business, he failed to dispel
the
officers'
concerns
by
his
responses
to
their
inquiries,
Petitioner resisted with violence, and the officers certainly had
probable cause to detain and arrest Petitioner once the officers
saw Petitioner urinating in public. Id. at 157-59. The prosecutor
also reminded the court that the officers' testimony included
statements concerning Petitioner's actions which prevented the
officers from means of protection or communication. Id. at 159-60.
The trial court denied the motion for judgment of acquittal and the
renewed motion for judgment of acquittal.
Id. 160, 222.
The record shows Petitioner filed a Motion for New Trial
raising four grounds: (1) the court erred in not granting the
motion for judgment of acquittal at the close of the state's case;
- 17 -
(2) the court erred in not granting the motion for judgment of
acquittal made at the close of all of the evidence; (3) the verdict
is contrary to the weight of the evidence; and (4) the verdict is
contrary to law.
Ex. A at 101.
Defense counsel renewed the
arguments made in support of the motion for judgment of acquittal,
and the court denied the motion for new trial.
Id. at 103; 150.
The 1st DCA affirmed the conviction on direct appeal.
The mandate issued on February 24, 2012.
Ex. G.
Ex. H.
To the extent the claim raised in ground two is properly
before the Court, AEDPA deference is due.
The state court's
decision is not inconsistent with Supreme Court precedent.
Its
adjudication is not contrary to or an unreasonable application of
clearly established federal law, or based on an unreasonable
determination of the facts.
Therefore, Petitioner is not entitled
to habeas relief.
The trial court denied the claim of lack of reasonable
suspicion to justify the stop raised in the Rule 3.850 motion. The
court explained:
The record shows that the State elicited the
testimony from the officers in the context of
justifying the investigatory stop, which they
executed after witnessing Defendant peeking
through the windows of the Mary Singleton
Retirement Center after hours and urinating on
the lawn. (Ex. S at 36-50, 109-115.) Whether
the criminal activity took place in a highcrime area was a factor in the totality-ofthe-circumstances
analysis
to
determine
whether reasonable suspicion to initiate a
stop,
and
the
State
properly
elicited
testimony on direct examination.
(Ex. S at
- 18 -
32-99, 101-150). Thus, Defendant's argument
is without merit.
. . . .
Moreover, the officers did testify that they
witnessed Defendant urinate in public, which
gave them probable cause for arrest (Ex. S at
40-50, 111-12.)
Ex. O at 385-86 (emphasis added).
The 1st DCA affirmed the
decision to deny post conviction relief.
Ex. R.
The trial court rejected Petitioner's claim. The record shows
the 1st DCA affirmed the decision of the trial court in denying
this ground.
Under Wilson, this Court assumes that the 1st DCA
adopted the reasoning of the trial court.
attempt to rebut this presumption.
There has been no
Wilson, 138 S.Ct. at 1192.
After due consideration, the Court finds the state court did not
unreasonably apply clearly established federal law, as determined
by the United States Supreme Court.
is
warranted.
The
Court
Consequently, AEDPA deference
concludes
that
the
state
court's
adjudication of this claim is not contrary to or an unreasonable
application
of
federal
law,
determination of the facts.
or
based
on
an
unreasonable
Ground two is due to be denied as
Petitioner is not entitled to habeas relief.
C.
Ground Three
In his third ground, Petitioner raises a claim of ineffective
assistance of trial counsel:
(1) Counsel did not know the case law
regarding the improprieties in the state's
evidence and argument[;] (2) counsel failed to
- 19 -
perform
depositions[;]
(3)
counsel
was
ineffective in failing to investigate and
present exculpatory evidence of officers[']
claims; (4) avail[a]ble evidence violated even
minimum pre-Strickland standard of evidence[.]
Petition at 8.
In their response, Respondents succinctly re-stated the claim:
"Petitioner argues that the trial court erred in denying his claim
that trial counsel was ineffective for failing to know the law
regarding the improprieties in the State's evidence, failing to
perform
depositions,
and
failing
to
investigate
exculpatory evidence of the officer's [sic] claims."
22.
Respondents
remedies.
Id.
admit
Petitioner
exhausted
his
and
present
Response at
state
court
They assert, however, that Petitioner is unable to
establish that the state court decision denying this ground was
contrary to or an unreasonable application of federal law.
Id. at
23.
With
respect
to
Petitioner's
claim
that
counsel
was
ineffective for failing to know the law regarding the improprieties
in the state's evidence, the trial court addressed the claim and
found it to be without merit:
In claim six, Defendant contends that
counsel was ineffective for failing to object
to the State's prosecutorial misconduct as
alleged in claim three.
Defendant asserts,
but for counsel's error, he would have
obtained relevant, material evidence to prove
that the officers gave false testimony, thus
creating a reasonable probability of a
different outcome at trial.
- 20 -
This Court finds all three subclaims of
claim three to be without merit. Therefore,
counsel cannot be ineffective for failing to
raise nonmeritorious issues. Lugo v. State, 2
So. 3d 1, 21 (Fla. 2008); Parker v. State, 611
So. 2d 1224, 1227 (Fla. 1992). Accordingly,
Defendant's sixth ground for relief is denied.
Ex. O at 388.
Petitioner
also
claimed
his
counsel
failing to depose the two officers.
was
ineffective
for
Petitioner contends, had
counsel taken depositions of the officers, counsel would have
unearthed relevant and material evidence needed to reveal the
falsity of the officers' testimonies, leading to its exclusion and
a reasonable probability of a different outcome at trial.
trial
court
addressed
this
ground,
finding
it
The
insufficiently
supported.
The court opined:
"When a failure to depose is alleged as
part of an ineffective assistance of counsel
claim, the appellant must specifically set
forth the harm from the alleged omission,
identifying 'a specific evidentiary matter to
which the failure to depose witnesses would
relate.'" Haq v. State, 997 So.2d 1284, 128586 (Fla. 4th DCA 2009) (citing Davis v. State,
928 So. 2d 1089, 1117 (Fla. 2005)[)]. In his
Third Amended Motion, Defendant fails to
specify what relevant and material evidence
would be discovered through depositions with
the officers.
Moreover, Defendant has not
established that the officers had information
that was unknown to defense counsel before
trial.
Furthermore, the Arrest and Booking
Report sets forth the officers' version of the
facts, and the officers' testimonies at trial
corroborate their version. (Exs. S at 33-153;
T.) Therefore, counsel did know the officers'
version of the facts prior to trial. However,
- 21 -
Defendant claims the Arrest and Booking report
and the trial testimony were false and that
deposition testimony would have proven this
falsity.
Defendant's
allegation,
that
the
officers' deposition testimony would have
contradicted both the earlier Arrest and
Booking Report and the later trial testimony
is speculative and conclusory. On the January
21, 2016, Order Granting Leave to Amend, this
Court found Defendant's claim was insufficient
because Defendant failed to specify what
relevant and material evidence would have been
discovered through such depositions. In his
Fifth
Amended
Motion,
Defendant
simply
restates his speculative and conclusory
claims. Postconviction relief cannot be based
on speculation or possibility. Valle,[9] 70
So. 3d at [sic] (citing Maharaj, 778 So. 2d at
[sic].
Furthermore, Defendant "bears the
burden of establishing a prima facie case
based upon a legally valid claim.
Mere
conclusory allegations are not sufficient to
meet this burden." Freeman,[10] 761 So. 2d at
1061. Accordingly, claim five is denied.
Ex. O at 387-88.
Petitioner also claims counsel was ineffective for failure to
investigate and present exculpatory evidence of the officers'
claims and contends the available evidence was insufficient to
support the convictions.11
The trial court found the claim that
9
Valle v. State, 70 So. 3d 530, 550 (Fla. 2011) (per curiam)
(citing Maharaj v. State, 778 So. 2d 944, 951 (Fla. 2000)), cert.
denied, 564 U.S. 1067 (2011).
10
11
Freeman v. State, 761 So. 2d 1055 (2000).
The Court will address the sufficiency of the evidence claim
when addressing ground four of the Petition.
- 22 -
counsel was ineffective for failure to obtain exculpatory evidence
non-meritorious:
In claim four, Defendant contends, but
for counsel's failure to obtain relevant
material evidence in the form of medical
records, Workers' Compensation documents, and
police
dispatch/call
logs,
there
is
a
reasonable probability that the outcome of the
trial would have been different.
Defendant
states this evidence would have proven the
falsity of the officers' testimonies for the
same reasons set forth in the first subclaim
of claim three.
On January 21, 2016, this Court issued
its Order Granting Defendant Leave to Amend,
finding Defendant's claim speculative and
insufficient, and granting Defendant sixty
days to amend his claim.
In response,
Defendant filed his Fifth Amended Motion, in
which he simply restates his speculative
claims. Postconviction relief cannot be based
on speculation or possibility.
Valle v.
State, 70 So. 3d 530, 550 (Fla. 2011) (citing
Maharaj v. State, 778 So. 2d 944, 951 (Fla.
2000). Accordingly, claim four is denied.
Ex. O at 386-87.
Before
addressing
Petitioner's
claims
of
ineffective
assistance of counsel, the trial court fully set forth the twopronged Strickland standard of review. Ex. O at 379-80. Since the
trial
court
found
no
prosecutorial
misconduct
in
the
case,
Petitioner will not prevail on a claim that counsel was ineffective
for failing to know the case law regarding the improprieties of the
state's case and for failing to object to those improprieties.
Defense counsel will not be deemed ineffective for failing to raise
a non-meritorious issue.
- 23 -
Petitioner
evidence
failed
counsel
to
could
specify
have
what
discovered
relevant
through
and
material
depositions.
Indeed, Petitioner primarily relies on his contention that the
officers provided false testimony at trial.
The Court notes,
however, Officer Yorton, the reporting officer, shortly after the
offenses were committed, provided relevant and important details of
the offenses in the Arrest and Booking Report, and he attested to
these same events at trial.
Ex. A, Arrest and Booking Report.
To the extent Petitioner is claiming counsel's performance was
deficient for failing to obtain medical, Workman's Compensation and
call log records, the Court is not convinced that such information
would have had any impact on the disposition of the case.
mattered
incident.
not
whether
an
officer
suffered
injury
during
It
the
It is not one of the elements of the crime of resisting
an officer with violence.
Also, the call logs would not have
provided the details of what was occurring at the scene of the
offense, including the officers struggle to arrest Petitioner and
Petitioner's actions with regard to attempting to prevent the
officers of means of protection or communication, all attested to
by the officers at trial.
The call logs may have included Officer
Yorton's brief radio communication, but again, the elements of the
offense were supported by the testimony of the officers.
As noted
by Respondents, "[m]edical records, workers compensation records
and dispatch logs would not have had any bearing on [the officers']
- 24 -
testimony."
Response at 29.
As such, trial counsel was not
ineffective for failing to obtain those records.
Petitioner exhausted his state court remedies by appealing the
denial of his Rule 3.850 motion. The 1st DCA affirmed the decision
of the trial court without opinion.
Ex. R.
Pursuant to Wilson, it
is assumed the 1st DCA adopted the reasoning of the trial court in
denying the Rule 3.850 motion.
rebut this presumption.
The state has not attempted to
Deference under AEDPA should be given to
the last adjudication on the merits provided by the 1st DCA.
When
considering
the
claim
of
ineffective
assistance
of
counsel, this Court must try to eliminate the distorting effects of
hindsight, as counseled to do so in Strickland, 466 U.S. at 689.
Given due consideration, the Florida court's 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, or based
on an unreasonable determination of the facts.
As such, ground
three is due to be denied.
D.
Ground Four
In his fourth ground for relief, Petitioner raises a claim of
insufficiency of the evidence.
Petition at 10.
Under supporting
facts,12 he states:
12
Of import, by the time Petitioner filed his federal
Petition, he had completed serving the sentences for the two
misdemeanor counts for possession of cannabis and loitering or
prowling; therefore, he is not in custody on those offenses and may
- 25 -
(1)
Evidence
was
constitutional[l]y
insufficient to sustain jury verdict of
guilty[;] (2) only evidence presented was
circumstantial the fraudulent testimonies of
Officer's [sic] Troy Yorton and G. W. Simpson
that were staged by the prosecution[;] (3) no
evidence of injury Officer Troy Yorton claims
to have received eight weeks of treatment for,
no
evidence
of
depriving
officer
of
communication[.]
Id.
Of import, a Petitioner may not challenge the sufficiency of
the evidence through a Rule 3.850 motion.
Betts v. State, 792 So.
2d 589, 590 (Fla. 1st DCA 2001).
Such a claim should be raised on
direct
trial
appeal.
As
procedurally barred.
decision.
such,
the
Ex. O at 381.
court
found
this
claim
The 1st DCA affirmed this
Ex. R.
The doctrine of procedural default requires the following:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
not challenge them in this proceeding. See 28 U.S.C. § 2241(c)(3)
& § 2254(a) (requiring that persons seeking habeas relief must be
in custody in violation of the Constitution or laws or treaties of
the United States). Thus, since the misdemeanor sentences were
fully expired at the time of the filing of the Petition, Petitioner
is not in custody on those offenses. Consequently, the Court will
limits its review of the claim of insufficiency of the evidence to
the two felony counts of depriving an officer of means of
protection or communication and two felony counts of resisting an
officer with violence.
- 26 -
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman, supra, at 747–748, 111 S.Ct.
2546; Sykes, supra, at 84–85, 97 S.Ct. 2497. A
state court's invocation of a procedural rule
to deny a prisoner's claims precludes federal
review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. ––––, ––––, 131 S.Ct.
1120, 1127–1128, 179 L.Ed.2d 62 (2011); Beard
v. Kindler, 558 U.S. ––––, ––––, 130 S.Ct.
612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012).
Apparently, Petitioner is contending that he exhausted this
claim by raising it in his Rule 3.850 motion.
convinced by this argument.
This Court is not
After a thorough review of the record
before the Court, the Court concludes Petitioner failed to properly
exhaust the claim of insufficiency of the evidence in the state
courts because he did not present the claim in a procedurally
correct manner by raising it on direct appeal. See Upshaw, 70 F.3d
at 578-79.
Since he did not present his claim to the state courts
in a procedurally correct manner, the ground is procedurally
barred.
the
Petitioner has failed to show cause, and he does not meet
prejudice
or
manifest
injustice
exceptions.
Although
a
petitioner may obtain review of the merits of a procedurally barred
- 27 -
claim if he satisfies the actual innocence "gateway" established in
Schlup v. Delo, 513 U.S. 298 (1995), Petitioner has not done so.
The gateway is meant to prevent a constitutional error at trial
from causing a miscarriage of justice and "'the conviction of one
who is actually innocent of the crime.'" Kuenzel v. Comm'r, Ala.
Dep't of Corr., 690 F.3d 1311, 1314 (11th Cir. 2012) (per curiam)
(quoting Schlup, 513 U.S. at 324), cert. denied, 569 U.S. 1004
(2013).
The fundamental miscarriage of justice exception is only
available in extraordinary cases upon a showing of "'actual'
innocence" rather than mere "'legal' innocence."
Johnson v. Ala.,
256 F.3d 1156, 1171 (11th Cir. 2001) (citations omitted), cert.
denied, 535 U.S. 926 (2002).
With respect to this unexhausted
ground, Petitioner has failed to identify any fact warranting the
application of the fundamental miscarriage of justice exception.
Therefore, the Court finds ground four procedurally barred.
Alternatively, to the extend Petitioner is asserting a due
process violation pursuant to Jackson v. Virginia, 443 U.S. 307
(1979), this claim has no merit.
Fourteenth
Amendment
requires
The Due Process Clause of the
the
state
to
prove
reasonable doubt each element of the offense charged.
beyond
a
Thompson v.
Nagle, 118 F.3d 1442, 1448 (11th Cir. 1997) (citing Jackson v.
Virginia, 443 U.S. 307, 314 (1979)), cert. denied, 522 U.S. 1125
(1998).
"[T]his court must presume that conflicting inferences to
be drawn from the evidence were resolved by the jury in favor of
the
State."
Thompson,
118
F.3d at
- 28 -
1448
(citing
Machin
v.
Wainwright, 758 F.2d 1431, 1435 (11th Cir. 1985)).
The relevant
question is whether any rational jury, 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.
Thompson, 118 F.3d at 1448.
In his post conviction motion, Petitioner recognizes, "[t]his
case was a credibility contest between the police officers and the
defendant[.]"
Ex. O at 247.
Petitioner testified at trial, and
the jury heard his testimony, including the fact that he is a
convicted felon.
The jury made its credibility determination, and
found the prosecution's witnesses more credible, and the state's
evidence persuasive, beyond a reasonable doubt.
Indeed, the jury
found Petitioner guilty of all of the charged offenses.
"When the record reflects facts that support conflicting
inferences, there is a presumption that the jury resolved those
conflicts in favor of the prosecution and against the defendant.
In other words, federal courts must defer to the judgment of the
jury in assigning credibility to the witnesses and in weighing the
evidence."
Johnson v. Ala., 256 F.3d at 1172 (citations omitted).
As explained by the Supreme Court,
Jackson requires a reviewing court to review
the evidence "in the light most favorable to
the prosecution." 443 U.S., at 319, 99 S.Ct.
2781. Expressed more fully, this means a
reviewing court "faced with a record of
historical facts that supports conflicting
inferences must presume—even if it does not
affirmatively appear in the record—that the
trier of fact resolved any such conflicts in
- 29 -
favor of the prosecution, and must defer to
that resolution." Id., at 326, 99 S.Ct. 2781;
see also Schlup v. Delo, 513 U.S. 298, 330,
115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ("The
Jackson standard ... looks to whether there is
sufficient evidence which, if credited, could
support the conviction").
McDaniel v. Brown, 558 U.S. 120, 133 (2010) (per curiam).
Upon review, the court charged the jury:
As to Count I, before you can find the
defendant guilty of depriving an officer of
means of protection or communication, the
State must prove the following three elements
beyond a reasonable doubt: One, Dale L.
Williams deprived G. W. Simpson of his radio,
a means to defend himself or summons
assistance; two, G. W. Simpson was a law
enforcement officer; three, Dale. L. Williams
knew G. W. Simpson was a law enforcement
officer.
Ex. C at 267.
The record demonstrates Officer Simpson testified he, a patrol
officer employed by the Jacksonville Sheriff's Office (JSO), was in
a patrol car with Officer Yorton on July 9, 2010.
Ex. B at 33-35.
The officers pulled into the parking lot of a closed business and
observed Petitioner looking into the windows of the business and
urinating in public.
Id. at 41.
Officer Simpson testified
Petitioner began to walk away when he saw the patrol car.
47.
Id. at
Officer Simpson testified he was wearing his uniform with
visible agency insignia.
Simpson
testified
that
Id. at 52.
when
he
Most importantly, Officer
attempted
to
use
his
radio,
Petitioner grabbed the microphone, pulled it off, and it flew
- 30 -
behind the officer.
Id. at 60-61.
Petitioner said, "Oh, no, you don't."
Officer Simpson testified
Id. at 61.
In this case, after viewing the evidence in the light most
favorable to the prosecution, a rational trier of fact could have
found Petitioner committed the offense of depriving an officer of
means of communication.
This Court must defer to that resolution.
The trial court also instructed the jury,
As to Count II, before you can find the
defendant guilty of depriving an officer of
means of protection or communication, the
State must prove the following three elements
beyond a reasonable doubt: One, Dale L.
Williams deprived T. D. Yorton of his radio, a
means to defend himself or summon assistance;
two, T. D. Yorton was a law enforcement
officer; three, Dale. L Williams knew T. D.
Yorton was a law enforcement officer.
Ex. C at 267-68.
The record shows Officer Yorton testified he is an officer
employed by JSO, and he was in a patrol car with Officer Simpson on
July 9, 2010.
Ex. B at 102-103.
He too testified he saw
Petitioner peering into the windows of a building. Id. at 106-107.
Officer Yorton testified he saw Petitioner urinating in the grass.
Id. at 111. Officer Yorton said Petitioner began to walk away when
he saw the patrol vehicle.
Id. at 112.
Officer Yorton testified
that the officers struggled to arrest Petitioner, and when Officer
Yorton reached for his radio, Petitioner reached up and grabbed the
officer's hand, pulling it away.
Id. at 123-24.
Officer Yorton
managed to provide his call sign and say East First Street, but was
- 31 -
unable to complete the transmission and announce the cross street.
Id. at 124.
scene.
As a result, the backup patrol officers passed by the
Id. at 124-25.
Examining this evidence in the light most favorable to the
prosecution, a rational trier of fact could have found Petitioner
committed
the
communication.
offense
of
depriving
an
officer
of
means
of
Again, the Court must defer to that resolution.
The trial court gave the jury the following instruction:
As to the Count III, to prove the crime
of resisting officer with violence, the State
must prove the following four elements beyond
a reasonable doubt: One, Dale L. Williams
knowingly and willfully resisted, obstructed,
or opposed G. W. Simpson by offering to do him
violence or doing violence to him; two, at the
time, G. W. Simpson was engaged in the lawful
execution of a legal duty; three, at the time
G. W. Simpson [w]as an officer; four, at the
time, Dale. L. Williams knew G. W. Simpson was
an officer.
Ex. C at 268.
The court also instructed:
As to Count IV, resisting officer with
violence, the State must prove the following
four elements beyond a reasonable doubt.
These are very similar to the instructions I
gave you as to Count III, and they are
reprinted in full.
However, these instructions relate to T.
D. Yorton, whereas, the first set of
instructions as to Count III relate to Officer
Simpson. I'm not going to reread them here
again at this time, but they are reprinted
here for your convenience, including the
lesser included crime of resisting an officer
without violence.
- 32 -
Id. at 269-270.
As noted previously, there was testimony the officers were
engaged in the lawful execution of their duties, they were both
officers for JSO at the time of the offenses, and by his own
testimony, Petitioner knew Officers Simpson and Yorton were police
officers.
Ex. C at 209-10.
The remaining question is whether
Petitioner knowingly and willfully resisted, obstructed, or opposed
Officers Simpson and Yorton by offering to do them violence or
doing violence to them.
of the prosecution.
The jury resolved that question in favor
Although Petitioner denied there was a
struggle, except for the officers pinning him to the ground and
hitting him, id. at 212, the officers testified there was an
extensive struggle between the officers and Petitioner.
53-55, 57-64, 117, 119-21, 123-29.
Ex. B at
Officers Simpson and Yorton
said the exhausting struggle lasted about four minutes. Id. at 6465, 129. Officer Yorton attested, they were "two officers, neither
one of us is a small person, and we were basically in a fight on
the ground with the defendant, and we were not winning.
We were
not getting control of the situation." Id. at 123. Officer Yorton
testified he suffered an injury to his left wrist during the
struggle.
Id. at 130.
Examining the evidence in the light most favorable to the
prosecution, a rational trier of fact certainly could have found
Petitioner
committed
the
offenses
- 33 -
of
resisting
officers
with
violence after considering the testimony of the officers.
In this
regard, the Court must defer to the resolutions made by the jury.
As required to do, this court presumes that conflicting
inferences to be drawn from the evidence were resolved by the jury
in favor of the state, and upon consideration of that evidence, the
Court concludes that the jury, after viewing the evidence in the
light most favorable to the prosecution, could have found the
essential elements of the felony offenses beyond a reasonable
doubt.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED.
2.
This action is DISMISSED WITH PREJUDICE.
3.
The Clerk shall enter judgment accordingly and close this
4.
If Petitioner appeals the denial of his Petition, the
case.
Court denies a certificate of appealability.13
13
Because this Court
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Upon due consideration, this Court will deny a
certificate of appealability.
- 34 -
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 24th day of
October, 2018.
sa 10/16
c:
Dale L. Williams
Counsel of Record
- 35 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?