Brown v. United States of America
Filing
16
ORDER denying 1 Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside, or Correct Sentence; denying 5 Motion for Leave to Supplement. The Clerk shall enter judgment in favor of the United States and against Petitioner, and close the file. Signed by Judge Timothy J. Corrigan on 1/4/2021. (JHC)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CEDRIC LAVAR BROWN 1,
Petitioner,
vs.
Case No.:
UNITED STATES OF AMERICA,
Respondent.
3:17-cv-529-J-32JRK
3:14-cr-101-J-32JRK
/
ORDER
This case is before the Court on Petitioner Cedric Lavar Brown’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1)
and Motion to Supplement (Civ. Doc. 5). 2 In the § 2255 Motion, Petitioner
alleges that the Court wrongly sentenced him under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e), and that appellate counsel gave
ineffective assistance. In the Motion to Supplement, Petitioner seeks to add a
claim that the Court lacked subject matter jurisdiction over the case. The
United States responded in opposition to both motions. (Civ. Docs. 4, 7).
Petitioner’s middle name is spelled “Levar” on the criminal docket but “Lavar”
on the civil docket.
1
Citations to the record in the criminal case, United States vs. Cedric Levar
Brown, No. 3:14-cr-101-J-32JRK, will be denoted “Crim. Doc. __.” Citations to the
record in the civil § 2255 case, No. 3:17-cv-529-J-32JRK, will be denoted “Civ. Doc. __.”
1
2
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The Court stayed this case pending the Supreme Court’s decision in
Shular v. United States, 140 S. Ct. 779 (2020). Afterward, the Court instructed
the parties to submit supplemental briefs, which the Court has considered. (Civ.
Doc. 14, United States’ Supp. Brief, Civ. Doc. 15, Petitioner’s Supp. Brief). Thus,
the case is ripe for a decision.
Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, the
Court has determined that an evidentiary hearing is not necessary to decide the
motion. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an
evidentiary hearing is not required when the petitioner asserts allegations that
are affirmatively contradicted by the record or patently frivolous, or if in
assuming that the facts he alleges are true, he still would not be entitled to any
relief). For the reasons below, Petitioner’s § 2255 Motion, as supplemented, is
due to be denied.
I.
Background
On May 28, 2014, a federal grand jury indicted Petitioner on one count of
possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(e). (Crim. Doc. 14, Indictment). A few months later, Petitioner pleaded
guilty to the charge without a plea agreement. (Crim. Doc. 35, Notice of
Maximum Penalty, Elements of the Offense, and Factual Basis; Crim. Doc. 73,
Change-of-Plea Transcript). Petitioner admitted that, despite being a convicted
2
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felon, in May 2014 he possessed a Jiminez Arms 9 millimeter pistol and sold it
to a confidential informant. (Crim. Doc. 73 at 23–24). Petitioner further
admitted that the gun had been “manufactured in Nevada and necessarily
traveled in interstate commerce by its presence in Duval County, Florida, on or
about May 5th, 201[4].” (Id. at 24); (see also Crim. Doc. 35 at 3). The Magistrate
Judge who presided over the plea colloquy reported that “[a]fter cautioning and
examining the Defendant under oath concerning each of the subjects mentioned
in Rule 11, I determined that the guilty plea was knowledgeable and voluntary,
and that the offense charged is supported by an independent basis in fact
containing each of the essential elements of such offense.” (Crim. Doc. 36).
Without objection, the Court accepted Petitioner’s guilty plea and adjudicated
him accordingly. (Crim. Doc. 38).
Petitioner was initially scheduled to be sentenced on August 19, 2015, but
at Petitioner’s request, the Court continued the sentencing hearing to give him
an opportunity to cooperate with state authorities regarding an unrelated
homicide investigation. (See Crim. Doc. 74, Sentencing Transcript Vol. I). The
Court and the parties reconvened on February 23, 2016. (Crim. Doc. 78,
Sentencing Transcript, Vol. II). Counsel conceded that Petitioner was going to
qualify for an enhanced 15-year mandatory minimum sentence under the
ACCA, 18 U.S.C. § 924(e), because he had three prior convictions for a serious
drug offense. (Id. at 12–13). However, at Petitioner’s request, the Court again
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continued the sentencing hearing to give Petitioner an opportunity to obtain a
substantial assistance reduction based on third-party cooperation.
Ultimately, neither Petitioner’s efforts nor third-party cooperation
resulted in the United States moving for a substantial assistance reduction. The
case eventually proceeded to sentencing on June 22, 2016. (Crim. Doc. 75,
Sentencing Transcript Vol. III). According to the Presentence Investigation
Report (PSR), Petitioner was subject to a 15-year mandatory minimum sentence
under the ACCA based on three prior convictions in Florida for the sale or
delivery of cocaine. (Crim. Doc. 62, PSR at ¶ 23). Upon review of certified records
of the prior convictions, the Court determined that Petitioner qualified for the
ACCA enhancement. (Crim. Doc. 75 at 7–12). Although the guidelines
recommended a sentence between 188 and 235 months in prison (Crim. Doc. 62
at ¶ 90), the Court varied below the guidelines range and sentenced Petitioner
to the mandatory minimum term of 180 months. (Crim. Doc. 75 at 27; Crim.
Doc. 65, Judgment).
Petitioner filed a notice of appeal from the judgment. (Crim. Doc. 67). On
appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and moved to withdraw. United States v. Brown, No. 16–14708 (11th
Cir.), Dkt. Entry of Oct. 3, 2016. In response, Petitioner filed a pro se brief in
which he argued that his prior drug convictions did not qualify as ACCA
predicates because the statute of conviction was broader than the ACCA’s
4
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definition of a serious drug offense. Id., Dkt. Entry of Dec. 12, 2016. The
Eleventh Circuit Court of Appeals affirmed Petitioner’s conviction and
sentence. United States v. Brown, 682 F. App’x 820 (11th Cir. 2017); (Crim. Doc.
82). The court explained: “Our independent review of the entire record reveals
that counsel’s assessment of the relative merit of the appeal is correct. Because
an independent examination of the entire record reveals no arguable issue of
merit, counsel’s motion to withdraw is GRANTED, and Brown’s conviction and
sentence are AFFIRMED.” Brown, 682 F. App’x at 820.
Petitioner did not seek certiorari review from the Supreme Court. This §
2255 Motion followed.
II.
Applicable Law
A. General Principles and Ineffective Assistance of Counsel
Under 28 U.S.C. § 2255, a person in federal custody may move to vacate,
set aside, or correct his sentence. Section 2255 authorizes a district court to
grant relief on four grounds: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court lacked jurisdiction to
impose the sentence; (3) the sentence exceeds the maximum authorized by law;
or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C § 2255(a).
Only jurisdictional claims, constitutional claims, and claims of error that are so
fundamental as to cause a complete miscarriage of justice will warrant relief
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through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86
(1979); Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc).
“[A] collateral attack is the preferred vehicle for an ineffective-assistance
claim.” United States v. Padgett, 917 F.3d 1312, 1318 (11th Cir. 2019).
To establish ineffective assistance of counsel, a § 2255 petitioner must
show both: (1) that his counsel’s performance was constitutionally deficient, and
(2) that counsel’s deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Martin v. United States, 949 F.3d 662,
667 (11th Cir. 2020). In determining whether counsel was deficient, “[t]he
standard for effective assistance of counsel is reasonableness, not perfection.”
Brewster v. Hetzel, 913 F.3d 1042, 1056 (11th Cir. 2019) (citing Strickland, 466
U.S. at 687). “In the light of the ‘strong presumption’ that counsel's actions [fell]
within the wide range of constitutionally adequate assistance, a movant ‘must
establish that no competent counsel would have taken the [challenged] action.’”
Khan v. United States, 928 F.3d 1264, 1272 (11th Cir.) (quoting Chandler v.
United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000) (en banc)), cert.
dismissed, 140 S. Ct. 339 (2019). To demonstrate prejudice, the petitioner must
show a reasonable likelihood that the result of the proceeding would have been
different but for counsel’s error. Martin, 949 F.3d at 667 (citing Padilla v.
Kentucky, 559 U.S. 356, 366 (2010)). The Court considers the totality of the
evidence in determining whether a petitioner has established deficient
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performance and prejudice. Strickland, 466 U.S. at 695. However, because both
prongs are necessary, “there is no reason for a court… to approach the inquiry
in the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.” Id. at 697.
B. The Armed Career Criminal Act (ACCA)
Under the ACCA, any person who violates 18 U.S.C. § 922(g) and who has
three or more prior convictions “for a violent felony or a serious drug offense, or
both, committed on occasions different from one another” is subject to a 15-year
mandatory minimum prison sentence. 18 U.S.C. § 924(e)(1). The term “serious
drug offense” means:
(i) an offense under the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import
and Export Act (21 U.S.C. 951 et seq.), or chapter 705
of title 46 for which a maximum term of imprisonment
of ten years or more is prescribed by law; or
(ii) an
offense
under
State
law,
involving
manufacturing, distributing, or possessing with intent
to manufacture or distribute, a controlled substance (as
defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), for which a maximum term of
imprisonment of ten years or more is prescribed by law.
Id., § 924(e)(2)(A).
“In determining whether a conviction qualifies as a serious drug offense,
courts generally apply a categorical approach, looking ‘only to the fact of
conviction and the statutory definition of the prior offense, instead of the actual
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facts underlying the defendant’s prior conviction.’” United States v. Simmons,
820 F. App’x 923, 925 (11th Cir. 2020) (quoting United States v. Robinson, 583
F.3d 1292, 1295 (11th Cir. 2009)). If the statute of conviction contains
alternative elements, the sentencing court may consult Shepard-approved 3
sources, such as a charging document or the judgment, to discern the nature of
the conviction. Simmons, 820 F. App’x at 925–26.
III.
Discussion
A. Grounds One, Two, and Four: The ACCA enhancement
The focus of Petitioner’s § 2255 Motion is challenging the ACCA
enhancement. Grounds One, Two, and Four present variations of the same
argument. In Ground One, he contends that the Court violated his Sixth
Amendment right to a jury trial by counting his three prior convictions for the
sale or delivery of cocaine as ACCA predicates. (Civ. Doc. 1 at 4). Petitioner
claims that the Court “refused to use the categorical approach” and instead
“used the facts of Petitioner’s (3) prior state of Florida drug convictions to
determine that Petitioner was an Armed Career Criminal.” (Id.). In Ground
Two, Petitioner alleges that, in this case, the “categorical approach” requires
the sentencing court to compare the elements of the state offense to the
elements of a generic federal drug trafficking crime. (Id. at 5–6). He alleges that
3
Shepard v. United States, 544 U.S. 13 (2005).
8
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any other approach would render the definition of a serious drug offense void
for vagueness. (Id. at 6). According to Petitioner, his prior convictions are not
ACCA predicates because their elements are broader than those of a generic
federal drug offense. In Ground Four, Petitioner asserts that Eleventh Circuit
precedent is contrary to precedent from the Supreme Court and other circuits
because the Eleventh Circuit has rejected the categorical approach urged by
Petitioner (i.e., comparing the elements of the state offense with the elements
of a generic federal drug trafficking crime). (Id. at 9).
As a preliminary matter, each of these claims are procedurally defaulted
or were resolved against Petitioner on appeal. “Under the procedural default
rule, a defendant generally must advance an available challenge to a criminal
conviction or sentence on direct appeal or else the defendant is barred from
presenting that claim in a § 2255 proceeding.” McKay v. United States, 657 F.3d
1190, 1196 (11th Cir. 2011) (internal quotation marks and citation omitted).
Likewise, it is “long settled that a prisoner is procedurally barred from raising
arguments in a motion to vacate his sentence, 28 U.S.C. § 2255, that he already
raised and that [the court of appeals] rejected in his direct appeal.” Stoufflet v.
United States, 757 F.3d 1236, 1239 (11th Cir. 2014) (citations omitted).
To the extent Petitioner claims that the Court violated his Sixth
Amendment rights by basing the ACCA enhancement on the facts of his prior
drug convictions, he could have advanced that challenge on direct appeal but
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failed to do so. Thus, this claim is procedurally defaulted. McKay, 657 F.3d at
1196. To the extent Petitioner claims that the Court failed to properly apply the
categorical approach or that his prior drug convictions do not fit the ACCA’s
definition of a serious drug offense, he did raise these claims on direct appeal in
his pro se brief. Brown, No. 16–14707, Dkt. Entry of Dec. 12, 2016. However,
the Eleventh Circuit Court of Appeals implicitly rejected these arguments when
it found no arguable issues of merit and affirmed his conviction and sentence.
Brown, 682 F. App’x at 820. Thus, these claims may not be relitigated in a §
2255 motion. Stoufflet, 757 F.3d at 1239.
Petitioner’s claims lack merit in any event. In Shular v. United States,
the Supreme Court affirmed a defendant’s ACCA sentence where, like
Petitioner, the contested predicate conviction was under Florida Statutes
Section 893.13(1)(a), which “makes it a crime to ‘sell, manufacture, or deliver,
or possess with intent to sell, manufacture, or deliver, a controlled substance.’”
140 S. Ct. 779, 784 (2020) (quoting Fla. Stat. § 893.13(1)(a)). In doing so, the
Supreme Court held that § 924(e)(2)(A)(ii)’s definition of a serious drug offense
does not call for a comparison to a generic offense. Id. at 782. Rather, the Court
held that “[t]he ‘serious drug offense’ definition requires only that the state
offense involve the conduct specified in the federal statute; it does not require
that the state offense match certain generic offenses.” Id. The Supreme Court
rejected Shular’s argument that, because Section 893.13(1)(a) did not require
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the state to prove an element of mens rea regarding the illicit nature of the
controlled substance, the conviction was not a “serious drug offense.” Id. at 787.
Moreover, the Supreme Court held that § 924(e)(2)(A)(ii) was unambiguous
because its “text and context leave no doubt that it refers to an offense involving
the conduct of ‘manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance.’” Id. (emphasis in original);
see also id. at 787–89 (Kavanaugh, J., concurring). In Shular,
[T]he Supreme Court told us two important things about the terms
in this ACCA definition: (1) “the terms in § 924(e)(2)(A)(ii) –
‘manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance’ – are unlikely
names for generic offenses” and instead “[t]hose words undoubtedly
can be used to describe conduct,” and (2) “by speaking of activities
a state-drug offense ‘involves,’ § 924(e)(2)(A)(ii) suggests the
descriptive terms immediately following that word ‘involv[es]’
identify conduct.” Id. at ––––, 140 S. Ct. at 785.
The Supreme Court also clarified that the ACCA's definition of
“serious drug offense” “requires only that the state offense involve
the conduct specified in the federal statute [the ACCA]; it does not
require that the state offense match certain generic
offenses.” Id. at ––––, 140 S. Ct. at 782. The Supreme Court
confirmed that § 924(e)(2)(A)(ii) calls for application of a categorical
approach, but one that determines whether state drug offenses
“involve,”—that is “necessarily requir[e]”—the types of conduct
identified in § 924(e)(2)(A)(ii). Id. at ––––, 140 S. Ct. at 785–86.
United States v. Conage, 976 F.3d 1244, 1252 (11th Cir. 2020).
Shular also confirmed the correctness of the Eleventh Circuit’s earlier
decision in United States v. Smith, which held that it “need not search for the
elements of ‘generic’ definitions of ‘serious drug offense’ and ‘controlled
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substance offense’ because these terms are defined by a federal statute and the
Sentencing Guidelines, respectively.” 775 F.3d 1262, 1267 (11th Cir. 2014). The
Smith court concluded that although Florida Statutes Section 893.13(1) does
not contain an element of mens rea regarding the illicit nature of a controlled
substance, it “is both a ‘serious drug offense,’ 18 U.S.C. § 924(e)(2)(A), and a
‘controlled substance offense,’ U.S.S.G. § 4B1.2(b)” because neither term
requires an element of mens rea. Id. at 1268.
The record and the foregoing case law foreclose Petitioner’s arguments.
The record refutes Petitioner’s allegation in Ground One that the Court imposed
the ACCA enhancement based on the facts of his prior drug convictions, in
violation of the Sixth Amendment. Rather, the Court received certified copies
of the charging instruments and judgments pertaining to those convictions,
which established that Petitioner committed the sale or delivery of cocaine on
three separate occasions, in violation of Florida Statutes Section 893.13(1)(a).
(Crim. Doc. 64-1; Crim. Doc. 64-2). The Court reviewed the prior convictions at
the sentencing hearing and concluded, without objection, that they qualified
Petitioner for the ACCA enhancement. (Crim. Doc. 75 at 7–12). As the Supreme
Court and the Eleventh Circuit have recognized, the Sixth Amendment permits
a district judge to find the fact of a prior conviction used to increase the
mandatory minimum sentence. United States v. Phillips, 834 F.3d 1176, 1184
(11th Cir. 2016) (citing Almendarez-Torres v. United States, 523 U.S. 224, 247
12
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(1998)). And, contrary to Petitioner’s arguments in Grounds Two and Four,
precedent from the Supreme Court and the Eleventh Circuit establish that a
conviction for the sale or delivery of cocaine under Florida law is a serious drug
offense under the ACCA. Shular, 140 S. Ct. at 786–87; Smith, 775 F.3d at 1268.
Thus, relief on Grounds One, Two, and Four is due to be denied.
B. Ground Three: Ineffective Assistance
Next, Petitioner claims that appellate counsel gave ineffective assistance
by failing to brief the issues discussed above and those raised in his pro se brief
on direct appeal. (Civ. Doc. 1 at 7). As noted before, appellate counsel filed an
Anders brief before the Eleventh Circuit Court of Appeals. Following an
independent review of the record, the Eleventh Circuit determined that
appellate counsel’s “assessment of the relative merit of the appeal is correct,”
that there was “no arguable issue of merit,” and affirmed Petitioner’s conviction
and sentence. Brown, 682 F. App’x at 820.
As the Eleventh Circuit determined in its opinion, and as this Court
explained with respect to Grounds One, Two, and Four, the arguments that
Petitioner
claims
counsel
should
have
raised
all
lack
merit.
“[A]ppellate counsel could not have been constitutionally ineffective by failing
to present a meritless claim.” Franks v. GDCP Warden, 975 F.3d 1165, 1171
(11th Cir. 2020). Accordingly, this claim is due to be denied.
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C. Motion to Supplement: Subject Matter Jurisdiction
Petitioner also moves to supplement the § 2255 Motion with a claim that
the Court lacked subject matter jurisdiction over the case. (Civ. Doc. 5).
Petitioner contends that the interstate commerce element of 18 U.S.C. § 922(g)
bears on the Court’s subject matter jurisdiction. He claims that the Court lacked
subject matter jurisdiction because the indictment did not allege, and the Court
did not find, that the firearm he possessed was an article of interstate
commerce. The United States opposes the Motion to Supplement, arguing that
the claim is both untimely and meritless. (Civ. Doc. 7).
The Court agrees with the United States that the claim is both untimely
and meritless, but it is easier to explain why the claim simply lacks merit. The
Eleventh Circuit has rejected the theory “that a failure of allegation or proof on
an interstate-commerce element deprives the district court of jurisdiction.”
Alikhani v. United States, 200 F.3d 732, 735 (11th Cir. 2000). In United States
v. Viscome, the Eleventh Circuit held that a defendant’s attack on the
sufficiency of the evidence concerning the interstate nexus element was a nonjurisdictional defect that he waived by pleading guilty. 144 F.3d 1365, 1370
(11th Cir. 1998). Likewise, Petitioner waived his challenge to the interstate
commerce element because he pleaded guilty to possession of a firearm by a
convicted felon.
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In any event, Petitioner admitted that the gun he possessed “was
manufactured in Nevada and necessarily traveled in interstate commerce by its
presence in Duval County, Florida.” (Crim. Doc. 73 at 24). “The interstate nexus
element of 18 U.S.C. § 922(g) can be established by showing that the firearm
was manufactured in a different state from the one in which it was ultimately
possessed by the defendant.” United States v. Folk, 754 F.3d 905, 917 (11th Cir.
2014) (citations omitted). Thus, the interstate commerce element was satisfied.
IV.
Conclusion
The Court has considered each of Petitioner’s claims, but finds that none
warrants relief under 28 U.S.C. § 2255. Accordingly, it is hereby ORDERED:
1. Petitioner Cedric Lavar Brown’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1) is DENIED.
2. Petitioner’s Motion to Supplement (Civ. Doc. 5) is DENIED.
3. The Clerk should enter judgment in favor of the United States and
against Petitioner, and close the file.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN
FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate
of appealability. A prisoner seeking a motion to vacate has no absolute
entitlement to appeal a district court’s denial of his motion.
15
28 U.S.C. §
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2253(c)(1). Rather, a district court must first issue a certificate of appealability
(COA). Id. “A [COA] may issue… only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such
a showing, Petitioner “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong,”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 335-36
(2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Petitioner has
not made the requisite showing in these circumstances. Because Petitioner is
not entitled to a certificate of appealability, he is not entitled to appeal in forma
pauperis.
DONE AND ORDERED at Jacksonville, Florida this 4th day of
January, 2021.
lc 19
Copies:
Counsel of record
Pro se petitioner
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