Carter v. Secretary, Florida Department of Corrections et al

Filing 11

ORDER denying the Petition 1 and dismissing case with prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 9/7/2021. (JND)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ALBERT JASON CARTER,
Petitioner,
v.

Case No. 3:18-cv-888-TJC-PDB

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I.

Status
Petitioner, Albert Jason Carter, an inmate of the Florida penal system,

initiated this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody. Doc. 1. Petitioner challenges
four state court (Duval County, Florida) judgments rendered in: State v. Carter,
2009-CF-15483; 2009-CF-15529; 2009-CF-16025; and 2010-CF-1910. Id. at 1.
Petitioner is serving a cumulative twenty-year term of incarceration.
Respondents filed a Response raising one argument – that the Petition is due
to be dismissed with prejudice because it is untimely filed. See generally Doc. 8

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(Resp.).1 Petitioner replied asserting that the Petition is timely filed. See Doc.
10. This case is ripe for review.
II.

One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

amended 28 U.S.C. § 2244 by adding a one-year period of limitation, which
generally runs from “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.”
28 U.S.C. § 2244(d). The section further provides, “The time during which a
properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.” Id.
On January 27, 2010, Petitioner entered an open plea of guilty to
possession of a controlled substance (2009-CF-15483), grand theft (2009-CF15529), and burglary (2009-CF-16025). Resp. Exs. A3, B3, C3. On March 30,
2010, Petitioner entered an open plea of guilty to burglary and grand theft
(2010-CF-1910). Resp. Exs. D3-D4. And on May 16, 2011, he entered an open
plea of guilty to perjury in an official proceeding (2009-CF-16025). Resp. Exs.
C5-C6. On May 20, 2011, the trial court sentenced Petitioner to a five-year term
of incarceration in 2009-CF-15483; a five-year term in 2009-CF-15529; a fifteen-

Attached to the Response are several exhibits. The Court cites the exhibits as
“Resp. Ex.”
1

2

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year term for the burglary conviction and a consecutive five-year term for the
perjury conviction in 2009-CF-16025; and a fifteen-year term for the burglary
conviction and a five-year term for the grand theft conviction in 2010-CF-1910.
Resp. Exs. A4, B4, C6, D4. Petitioner did not seek a direct appeal of any
judgment of conviction, and thus his judgments and sentences became final
upon the expiration of the time to file a notice of appeal, Monday, June 20,
2011.2 See Fla. R. App. P. 9.140(b)(3). Petitioner’s one-year statute of limitations
for each state court judgment started the next day, June 21, 2011.
Following the June 21, 2011, one-year start date, the procedural history
of each case gets complicated, and for the sake of brevity, the Court merely
summarizes the relevant filings in each state court docket.3 On day forty-one of

The thirtieth day fell on a Sunday, June 19, 2011, so Petitioner had until the
following Monday, June 20, 2011, to file a notice of appeal.
2

The captions of Petitioner’s pro se state postconviction motions appear to list
all four of his state court cases; however, not every motion appears on each state court
docket. Also, the captions of the trial court’s orders disposing of each postconviction
motion appear to list all four of Petitioner’s state court cases, and every order appears
on each state court docket regardless of a particular motion’s presence on that docket.
These discrepancies raise questions about whether those motions not appearing on all
dockets were “properly filed” for tolling purposes. Nevertheless, because the parties do
not make such arguments, the Court need not decide that issue; and for purposes of
this Order, the Court takes judicial notice of Petitioner’s state court dockets when
discussing timeliness. See Fed. R. Evid. 201(b)(2) (a court may “judicially notice a fact
that is not subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot be reasonably questioned”); Paez v.
Sec’y, Fla. Dep’t of Corr., 947 F.3d 649 (11th Cir. 2020) (“State court records of an
inmate’s postconviction proceedings generally satisfy” the standard for judicial
notice.).
3

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Petitioner’s one-year in 2009-CF-15529, 2009-CF-15483, and 2009-CF-16025,
Petitioner’s statute of limitations was tolled on August 1, 2011, when Petitioner
filed a pro se Florida Rule of Criminal Procedure 3.850 motion. 4 See Carter,
2009-CF-15529, 2009-CF-15483, 2009-CF-16025. The trial court granted
Petitioner’s motion to dismiss his August 1, 2011, Rule 3.850 motion without
prejudice on March 12, 2012. Resp. Ex. G1 at 16-17. Thus, in 2009-CF-15529,
2009-CF-15483, 2009-CF-16025, Petitioner’s one-year resumed the next day,
March 13, 2012.
According to each state court docket, on day 106 of his one-year in 2009CF-15529 and 2009-CF-16025, Petitioner’s limitations period was tolled on May
17, 2012, when Petitioner filed another Rule 3.850 motion in those cases. 5 See
Carter, 2009-CF-15529, 2009-CF-16025. Having not been tolled by the May 17,
2012, Rule 3.850 motion, the limitations period in 2009-CF-15483 was then
tolled on day 133 when Petitioner filed another Rule 3.850 motion on June 13,
2012. See Carter, 2009-CF-15483. Petitioner also filed the June 13, 2012,
motion in 2010-CF-1910, which having been the first postconviction motion
appearing on the state court docket in that case, was day 358 of the case’s oneyear. See Carter, 2010-CF-1910.
Petitioner’s August 1, 2011, Rule 3.850 motion does not appear on the state
court docket for 2010-CF-1910.
4

Neither party mentions this May 17, 2012, motion in their briefs, and this
motion does not appear on the state court dockets for 2009-CF-15483 or 2010-CF-1910.
5

4

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Then, in each of the four cases, on May 17, 2013, Petitioner filed a generic
motion to dismiss all prior Rule 3.850 motions and simultaneously filed an
amended Rule 3.850 motion. Resp. Ex. G1 at 30-35. In the same order, the trial
court granted Petitioner’s motion to dismiss and summarily denied the May 17,
2013, amended Rule 3.850 motion. Resp. Ex. I. Petitioner appealed, and the
First District Court of Appeal issued its mandate affirming the trial court’s
summary denial on November 30, 2015. Resp. Ex. J. Petitioner’s one-year
resumed in all cases the next day, December 1, 2015. Seven days later, on
December 8, 2015, Petitioner’s one-year expired in 2010-CF-1910.
On day 297 in 2009-CF-15529 and 2009-CF-16025, and day 324 in 2009CF-15483, Petitioner tolled his one-year by filing a Florida Rule of Criminal
Procedure 3.800(a) motion on June 9, 2016. Resp. Ex. L. While his Rule 3.800(a)
proceedings were pending, Petitioner, with the trial court’s permission, filed his
second amended Rule 3.850 motion in each case. Resp. Ex. G1 at 55-83.
Petitioner’s Rule 3.800(a) proceedings concluded through the First DCA’s
November 9, 2017, mandate, Resp. Ex. M; and his second amended Rule 3.850
proceedings concluded through the First DCA’s June 4, 2018, mandate, Resp.
Ex. H. Petitioner’s one-year in 2009-CF-15529, 2009-CF-15483, and 2009-CF16025 resumed the next day, June 5, 2018. On July 17, 2018, day 366, one day
after the expiration of his one-year in 2009-CF-15483, and day 339 of his one-

5

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year in 2009-CF-15529 and 2009-CF-16025, Petitioner initiated this action. See
Doc. 1.
Respondents make a blanket argument that Petitioner initiated this
action one day after the expiration of his federal statute of limitations. See
generally Resp. In support of that assertion, Respondents appear to only outline
the docket history for 2009-CF-15483. But contrary to Respondents’ summary,
a thorough review of Petitioner’s state court dockets shows the procedural
history of Petitioner’s collateral filings in each case cannot be considered in
concert. In his Reply, Petitioner also seems to overlook the differences in his
collateral filings for each case, and simply argues the Petition is timely filed
because he is entitled to the additional ninety-day period for filing a petition for
writ of certiorari with the United States Supreme Court following the expiration
of time to seek a direct appeal with the First DCA. See Doc. 10 at 3. However,
because Petitioner failed to seek a direct appeal in any case, he is not entitled
to that ninety-day period. See Close v. United States, 336 F.3d 1283, 1285 (11th
Cir. 2003) (“According to rules of the Supreme Court, a petition for certiorari
must be filed within 90 days of the appellate court’s entry of judgment on the
appeal or, if a motion for rehearing is timely filed, within 90 days of the
appellate court’s denial of that motion.” (emphasis added)).
That said, despite the parties’ miscalculation and Respondents’ decision
to limit their Response to a timeliness argument, the Court, in its discretion,
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finds the administration of justice is better served by reaching the merits of the
Petition. See Day v. McDonough, 547 U.S. 198, 199 (2006) (noting that a statute
of limitations defense is not jurisdictional and holding “a district court has
discretion to decide whether the administration of justice is better served by
dismissing the case on statute of limitations grounds or by reaching the merits
of the petition”). While the Court could have ordered Respondents to file a
supplemental response on the merits, there is “no dispositive difference between
that route, and the one taken here.” Id. at 209; see also Fontenot v. Crow, 4
F.4th 982, 1058 (10th Cir. 2021) (holding that despite the state’s procedural
motion to dismiss, Rules 4 and 5 of the Rules Governing Section 2254 Cases
indicate that a district court is entitled to rule on the merits of a petition after
giving the state an open-ended chance for response). Further, Petitioner fully
exhausted his claims in state court, and he analyzes the deferential standard
set forth in AEDPA when presenting his claims in the Petition; therefore,
Petitioner will not be prejudiced by the Court’s deferential review. See Doc. 1.
As such, the Court addresses the claims raised in the Petition. See, e.g., Scott
v. Sec’y, Dep’t of Corr., 8:15-cv-1290-T-36MAP, 2018 WL 1519046, at *4 n.1
(M.D. Fla. Mar. 28, 2018) (addressing § 2254 habeas petition on the merits
because the respondents agreed the petition was untimely with respect to the
conviction on one of the petitioner’s state court cases but was timely with
respect to the petitioner’s conviction in a second state court case).
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III.

Governing Legal Principles
A. Standard Under AEDPA
AEDPA governs a state prisoner’s federal habeas corpus petition. See

Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642
(11th Cir. 2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA
is to ensure that federal habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not as a means of error
correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See
Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its rationale for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,
562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is
unaccompanied by an explanation,
the federal court should “look through” the unexplained
decision to the last related state-court decision that
does provide a relevant rationale. It should then
presume that the unexplained decision adopted the
same reasoning. But the 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, such as
alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the
record it reviewed.
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Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a
federal court cannot grant habeas relief unless the state court’s adjudication of
the claim was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or “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)(1),
(2). A state court’s factual findings are “presumed to be correct” unless rebutted
“by clear and convincing evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted). “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.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (internal quotation marks omitted). “It bears
repeating that even a strong case for relief does not
mean the state court’s contrary conclusion was
unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,
538 U.S. 63, 75 (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 (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 (2000) (“[A]n unreasonable
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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) (internal
citations modified).
B. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense counsel’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a
person must show that: (1) counsel’s performance was outside the wide range of
reasonable, professional assistance; and (2) counsel’s deficient performance
prejudiced the challenger in that there is a reasonable probability that the
outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
The two-part Strickland test applies to challenges to the validity of guilty
pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,
58 (1985). The petitioner must still demonstrate that counsel’s performance was
deficient. See id. at 56-59; Lynch v. Sec’y Fla. Dept. of Corr., 776 F.3d 1209,
1218 (11th Cir. 2015). To establish prejudice, however, the petitioner “must

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show that there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.”
Hill,474 U.S. at 59 (footnote omitted); Lynch, 776 F.3d at 1218.
There is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.
2010). Since both prongs of the two-part Strickland test must be satisfied to
show a Sixth Amendment violation, “a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.
(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in
Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should
be followed.” 466 U.S. at 697.
Further, “[t]he question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but whether
that determination was unreasonable - a substantially higher threshold.”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If
there is “any reasonable argument that counsel satisfied Strickland’s
deferential standard,” then a federal court may not disturb a state-court
decision denying the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting
Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,
371 (2010). “Reviewing courts apply a ‘strong presumption’ that counsel’s
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representation was ‘within the wide range of reasonable professional
assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th
Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is
combined with § 2254(d), the result is double deference to the state court ruling
on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans
v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc)
(Jordan, J., concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
2004).
IV.

The Petition
Petitioner raises five Grounds premised on allegations of ineffective

assistance of counsel, in which Petitioner challenges the voluntariness of his
pleas and the factual basis supporting his pleas. See generally Doc. 1. To begin,
the Court notes that Petitioner’s pleas waive many federal constitutional rights,
including the right to a jury trial, the right to a speedy trial, and the right to
require the state to prove the crime beyond a reasonable doubt. Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly
admitted in open court that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of the guilty
plea.”); Tiemens v. United States, 724 F.2d 928, 929 (11th Cir. 1984) (“[A] guilty
plea waives all nonjurisdictional defects occurring prior to the time of the plea,
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including violations of the defendant’s rights to a speedy trial and due
process.”).
Further, Petitioner’s solemn declarations during his plea colloquies carry
a strong presumption of truth. Blackledge v. Allison, 431 U.S. 63, 74 (1977); see
also Winthrop-Redin v. United States, 767 F.3d 1210, 1217 (11th Cir. 2014)
(stating that a defendant who makes statements under oath at a plea colloquy
bears a heavy burden to show his statements were false). Thus, Petitioner’s
representations at the plea hearings “constitute a formidable barrier in any
subsequent collateral proceedings.” Id. at 73-74; see also Stano v. Dugger, 921
F.2d 1125, 1152 (11th Cir. 1991) (recognizing that the record of the plea
proceedings may contradict any subsequent claim that counsel’s representation
was deficient). Considering the difficult barrier Petitioner must overcome, the
Court considers each of Petitioner’s Grounds in turn below. In doing so, the
Court finds that Petitioner’s “subsequent presentation of conclusory allegations
unsupported by specifics [are] subject to summary dismissal, as are contentions
that in the face of the record are wholly incredible.” Allison, 431 U.S. at 74.
A. Ground One
Petitioner argues that his trial counsel was ineffective for advising him
to enter an open plea of guilty to burglary in 2009-CF-16025. Doc. 1 at 4.
According to Petitioner, before his plea, he advised counsel that he did not enter
the store, nor was he on the property during the burglary, but was instead
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merely sitting in his vehicle serving as a “lookout” for others who were
committing the crime. Id. But despite his lack of participation, he alleges that
his trial counsel advised him to enter the open plea even though his actions did
not meet the elements of burglary. Id. at 4-5.
Petitioner raised this claim in his second amended Rule 3.850 motion.
Resp. Ex. G1 at 56-60. The trial court summarily denied the claim, finding the
following:
Defendant argues he informed counsel there was
no evidence indicating Defendant had entered the
structure or property of Pantry, Inc. nor was there
evidence showing Defendant had damaged the
structure or property as alleged in the information.
However, counsel told him that it was in his best
interest to enter a plea, because there was no available
defense. Defendant further argues counsel should have
objected when the Court found a factual basis for the
plea, because there was no evidence, testimony, proffer
of evidence, statements, or reference to the record to
sufficiently satisfy the dictates of Florida Rule of
Criminal Procedure 3.172(a).
The record reflects in case 2009-CF-16025,
Defendant admitted to police he participated in the
burglary by being a look-out while a co-defendant
actually burglarized the store. While Defendant may
not have actually entered the store, his participation in
aiding his co-defendant that did enter the store
sufficiently establishes the elements of burglary for
Defendant pursuant to the principal theory. See §
777.011, Fla. Stat. (“Whoever commits any criminal
offense against the state, whether felony or
misdemeanor, or aids, abets, counsels, hires, or
otherwise procures such offense to be committed, and
such offense is committed or is attempted to be
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committed, is a principal in the first degree and may be
charged, convicted, and punished as such, whether he
or she is or is not actually or constructively present at
the commission of such offense.”). Accordingly, as a
principal, Defendant’s proposed defense would not have
been viable.
During the plea colloquies on January 27, 2010
and March 30, 2010, Defendant acknowledged he was
waiving his right to trial by jury and all of its attached
rights. Defendant also testified that no one threatened
or coerced him into entering the plea and that he was
satisfied with his attorney. Notably, Defendant also
admitted he was guilty of the charged crimes. The
Court also notes Defendant could have received a
maximum sentence of thirty years in prison on the
burglary charges, but only received fifteen years in
prison on those charges. Accordingly, based on the lack
of [] viability of Defendant’s proposed defense, his
statements to the Court, and the reduced sentence he
received, the Court finds there is no reasonable
probability Defendant would have rejected this plea.
Grosvenor, 874 So. 2d at 1181-82.
Concerning the factual basis, “[b]efore accepting
a plea of guilty or nolo contendere, the trial judge shall
determine that the plea is voluntarily entered and that
a factual basis for the plea exists.” Fla. R. Crim. P.
3.172(a). A court may satisfy the requirements of rule
3.172(a) by, among other things, receiving the
statements and admissions made by a defendant, his or
counsel, or the prosecutor. Williams v. State, 316 So. 2d
267, 273 (Fla. 1975). Notably, failing to determine a
factual basis for the plea does not render the plea void
unless prejudice can be shown. Fla. R. Crim. P. 3.172(j).
The record reflects the State gave a factual
statement in support of the burglary charges.
Therefore, a proper factual basis was proffered in
support of the plea. Williams, 316 So. 2d at 273.
Accordingly, counsel cannot be deemed ineffective for
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failing to raise a meritless argument. Hitchcock v.
State, 991 So. 2d 337, 361 (Fla. 2008). For the above
stated reasons, Defendant is not entitled to relief on
Ground One.
Resp. Ex. G1 at 87-89 (record citations omitted). Petitioner appealed, and the
First DCA per curiam affirmed the summary denial without a written opinion.
Resp. Ex. H. The Court addresses the claim in accordance with the deferential
standard for federal court review of state court adjudications.
Petitioner is challenging his conviction in 2009-CF-16025 for burglary in
the first degree. Section 810.02(2)(c)2, Florida Statutes, provides that a person
may be guilty of burglary “if, in the course of committing the offense, the
offender . . . [e]nters an occupied or unoccupied dwelling or structure, and . . .
[c]auses damage to the dwelling or structure, or property within the dwelling .
. . in excess of $1,000.”6 Under Florida law, “[a] defendant is guilty as a principal
if he ‘aids, abets, counsels, hires, or otherwise procures such offense to be
committed, and such offense is committed or is attempted to be committed.’”
Wade v. State, 156 So. 3d 1004, 1017 (Fla. 2014) (quoting § 777.011, Fla. Stat.).
Further, “it is immaterial whether the indictment or information alleges that
the defendant committed the crime or was merely aiding or abetting in its

In 2009-CF-16025, Petitioner also pled guilty to perjury stemming from a false
statement Petitioner made under oath in an official proceeding on January 7, 2011.
Resp. Ex. C4. Petitioner does not challenge that conviction in this action.
6

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commission, so long as the proof establishes that he was guilty of one of the acts
denounced by the statute.” State v. Roby, 246 So. 2d 566 (Fla. 1971).
A review of the arrest and booking report for the 2009-CF-16025 burglary
shows that on October 5, 2009, police responded to “an active audible alarm” at
a convenience store located at 6003 Roosevelt Boulevard. Resp. Ex. C1 at 2.
Upon arrival, police observed that the front door of the store had been forced
open and the A.T.M. machine had been removed from the store. Id. The video
surveillance showed multiple individuals breaking into the store and taking the
A.T.M. while another individual waited outside and then subsequently helped
load the A.T.M. into a vehicle before fleeing. Id. According to the report, this
incident was the third burglary fitting the modus operandi of a particular
organization of individuals. Id.
Police later arrested Petitioner on an unrelated incident. Id. After
acknowledging his constitutional rights, Petitioner advised police that on
October 5, 2009, he agreed to drive up and down Roosevelt Boulevard as a
lookout while “Brian’ hit the store with his brother” and was tasked with
notifying Brian if police were in the area. Id. Petitioner stated that they used a
stolen vehicle to conduct the burglary and he helped dump the vehicle
afterwards. Id. The state then charged Petitioner with burglary under §
810.02(2)(c)2. Resp. Ex. C2. Petitioner entered a plea of guilty to the charge,
and in doing so advised the trial court that he was entering his plea because he
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was, in fact, guilty of the burglary. Resp. Ex. E at 7. In entering his plea,
Petitioner acknowledged, under oath, that he was waiving his right to require
the state to prove his guilt beyond a reasonable doubt. Id. at 6. He stated that
his attorney went over the plea form with him, answered all his questions to his
satisfaction, and that he was satisfied with her representation. Id. at 7. The
trial court then accepted a factual basis for the plea and found that Petitioner
freely and voluntarily entered his plea. Id. at 8-9.
The record evidence and Petitioner’s plea colloquy refute Petitioner’s
claim that he did not participate in the burglary and likewise refute his
allegations that his trial counsel was deficient in advising him to enter a guilty
plea. Upon thorough review of the record and the applicable law, the Court finds
that the state court’s decision to deny Petitioner’s claim was neither contrary to
nor an unreasonable application of Strickland, and it is not based on an
unreasonable determination of the facts considering the evidence presented to
the state court. See 28 U.S.C. § 2254(d). This Ground is denied.
B. Ground Two
Petitioner asserts that his trial counsel was ineffective because she failed
to advise Petitioner of the elements of the charged burglaries in 2009-CF-16025
and 2010-CF-1910; failed to advise him of the available defenses to these
charges; and failed to investigate “mitigating evidence.” Doc. 1 at 7. As alleged
in Ground One, Petitioner maintains that he was merely the “lookout” for the
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burglary in 2009-CF-16025. Id. And as to case 2010-CF-1910, Petitioner
contends he simply drove “a ‘front end loader’ into the side of the building in
order to create a hole in the structure,” so another individual could enter, and
that Petitioner never entered the structure. Id. Petitioner argues that he
advised counsel about his limited participation, and had counsel advised him
that he did not meet the elements of the burglary offenses, he would have
proceeded to trial. Id.
Petitioner raised this claim in his second amended Rule 3.850 motion.
Resp. Ex. G1 at 7-8. The trial court summarily denied the claim as follows:
Defendant contends counsel failed to inform him
about the elements of burglary. Specifically, he states
his counsel never told him Defendant would have to
actually enter the structure with the intent to commit
an offense therein. According to Defendant, he had
available defenses to the burglary charges because he
never went into the structure and had no specific intent
to commit an offense in the structure. Had counsel
properly informed him of the elements and these
defenses to the charge, Defendant claims he would have
proceeded to trial instead of entering the plea.
As noted above in the Court’s analysis of Ground
One, Defendant admitted to being an accessory to his
co-defendant’s crime in case 2009-CF-16025. Likewise,
in case 2010-CF-01910, Defendant admitted to actively
participating in the burglary. Therefore, pursuant to
the principal theory, his co-defendant’s actions of
entering the structure with the intent of taking
property are imputed on to Defendant. Defendant’s
theorized defense in Ground Two would therefore not
have been viable. The non-viability of the defense,
coupled with Defendant’s statement to the Court
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during the colloquy, including admitting his guilt, and
the sentence he received in comparison to the
maximum sentence possible, demonstrate there is no
reasonable probability Defendant would have foregone
the plea to proceed to trial. Grosvenor, 874 So. 2d at
1181-82. Accordingly, Defendant has failed to
demonstrate deficient performance or prejudice and is
therefore not entitled to relief on Ground Two.
Resp. Ex. G1 at 89 (record citations omitted). Petitioner appealed, and the First
DCA per curiam affirmed the summary denial without a written opinion. Resp.
Ex. H. The Court addresses the claim in accordance with the deferential
standard for federal court review of state court adjudications.
In Ground One above, the Court discusses the evidence and factual basis
supporting Petitioner’s plea and conviction for burglary in 2009-CF-16025, and
it relies on that discussion here. As to 2010-CF-1910, Petitioner is challenging
another conviction for burglary in the first degree. Resp. Exs. D2-D3. According
to the arrest and booking report for that case, in December 2008, police were
called to the scene of a burglary at Premier Pharmacy where they observed
severe damage to the structure. Resp. Ex. D1. Police watched the surveillance
video, which showed two hooded and gloved suspects. Id. One of the suspects
drove a front-end loader into the side of the structure, creating a large hole,
while the second suspect crawled into the hole to enter the structure. Id. The
front-end loader was left at the scene and when police conducted a walkthrough
of the surrounding area, they found clothing believed to have been used by one

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of the suspects. Id. Police submitted the clothing for DNA testing and received
a “DNA hit.” Id.
In February 2010, while Petitioner was in custody on other charges, police
questioned Petitioner about the December 2008 burglary. Id. He first denied
involvement, but when police confronted him with the DNA evidence, Petitioner
admitted to stealing the front-end loader and driving it through the pharmacy
while his accomplice went inside and stole drugs. Id. The state then charged
Petitioner with burglary, and he entered an open plea of guilty to the charge.7
Resp. Ex. F. In entering his plea, Petitioner acknowledged, under oath, that he
was waiving his right to require the state to prove his guilt beyond a reasonable
doubt. Id. at 5. Petitioner also advised the trial court that he was entering his
plea because he was, in fact, guilty of the charged offense. Id. at 6. He stated
that his attorney went over the plea form with him, answered all his questions
to his satisfaction, and that he was satisfied with her representation. Id. at 7.
The trial court then accepted a factual basis for the plea and found that
Petitioner freely and voluntarily entered his plea with full understanding of its
nature and consequences. Id. at 8.
The record and Petitioner’s plea colloquy refute Petitioner’s claims that
his trial attorney failed to advise him of the facts supporting the burglaries or

The state also charged Petitioner with grand theft for the taking of the frontend loader and Petitioner pled guilty to that charge as well.
7

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that his alleged minimal participation would have been a valid defense. Thus,
upon thorough review of the record and the applicable law, the Court finds that
the state court’s decision to deny Petitioner’s claim was neither contrary to nor
an unreasonable application of Strickland, and it is not based on an
unreasonable determination of the facts given the evidence presented to the
state court. See 28 U.S.C. § 2254(d). This Ground is denied.
C. Ground Three
Petitioner contends that his trial counsel was ineffective for advising him
to enter an open plea of guilty to grand theft in case 2009-CF-15529. Doc. 1 at
10. According to Petitioner, before his plea, he advised counsel that “he did not
have anything to do with the actual taking of the pills that had been stolen, and
did not know who was responsible for the theft.” Id. He alleges that he was
never a suspect in the theft and the only evidence that linked him to the pills
was that police found the pills in the bedroom Petitioner shared with his live-in
girlfriend. Id. at 10-11.
In ground three and ground six of his second amended Rule 3.850 motion,
Petitioner challenged the sufficiency of his grand theft conviction in 2009-CF15529. Resp. Ex. G1 at 63-67, 75-77. The trial court summarily denied the
claims, explaining as follows:
Defendant asserts counsel coerced him into
pleading guilty to the offenses of possession of
clonazepam and theft, while counsel also failed to object
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to an insufficient factual basis for these crimes.
According to Defendant, there was no evidence to
support any element of this offense, but counsel advised
Defendant it was in his best interest to plea because
there was no defense. He further argues counsel should
have objected because the factual basis presented did
not satisfy the dictates of Florida Rule of Criminal
Procedure 3.172(a).
The record reflects the grand theft charge in case
2009-CF-15529 alleged Defendant stole clonazepam
from a truck deliver[ing] medications to a pharmacy.
Police later raided Defendant’s home and found him to
be in possession of the same drugs stolen from the
pharmacy, which form the basis of his possession of a
controlled substance charge in case 2009-CF-15483.
Accordingly, the arrest and booking reports for each of
these cases, indicate Defendant had stolen goods in his
possession. While he told police he bought them off the
street from some other man, he was unable to provide
a name or even the race of this other man.
The Court notes “[p]roof of possession by an
accused of property recently stolen by means of a
burglary, unless satisfactorily explained, may justify a
conviction of burglary if the circumstances of the
burglary and of the possession of the stolen property
convince [a jury] beyond a reasonable doubt that the
defendant committed the burglary.” Fla. Std. Jury
Instr. (Crim.) 13.1. As stated above, Defendant was in
possession of the exact pills stolen from the pharmacy
and he could not satisfactorily explain his possession of
the pills to police at the time of his arrest. The Court
finds Defendant’s defense would not have been viable
based on these facts. The non-viability of the defense,
coupled with Defendant’s statement to the Court
during the colloquy, including admitting his guilt, and
the sentence he received in comparison to the
maximum sentence possible, demonstrate there is no
reasonable probability Defendant would have foregone

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the plea to proceed to trial. Grosvenor, 874 So. 2d at
1181-82.
The record reflects the State gave a factual
statement in support of these charges. Therefore, a
proper factual basis was proffered in support of the
plea. Williams, 316 So. 2d at 273. Accordingly, counsel
cannot be deemed ineffective for failing to raise a
meritless argument. Hitchcock, 991 So. 2d at 361 (Fla.
2008). For the above stated reasons, Defendant is not
entitled to relief on Ground Three.
....
Defendant contends counsel coerced him into
pleading guilty to the offenses of possession and theft
of clonazepam. According to Defendant, there was no
evidence to support any element of this offense, but
counsel advised Defendant it was in his best interest to
plea because there was no defense. Defendant further
contends counsel failed to inform him that a lack of
intent was an available defense.
To the extent Defendant realleges allegations
previously raised in Ground Three, the Court hereby
denies those arguments based on its analysis of Ground
Three above. Regarding Defendant’s argument counsel
failed to inform him specific intent was an element of
grand theft, Defendant admitted his guilt as to both the
grand theft charge and the possession charge.
Therefore, as the basis of this claim is that Defendant
lied under oath, he is not entitled to relief on this claim.
Polk, 56 So. 3d at 808; see also Rivero v. State, 121 So.
3d 1175, 1178 (Fla. 3d DCA 2013) (holding “[b]ecause
the defendant in the instant case clearly stated under
oath during his plea colloquy that he was satisfied with
the services of his attorney, he was not being pressured
or coerced to accept the State’s offered plea, and he was
pleading guilty because he was guilty and for no other
reason, he cannot now claim that his plea was the
product of coercion.”). Moreover, based on his
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statements under oath, the lenient sentence he
received, and the fact he was found in possession of
stolen property and was unable to properly explain it,
the Court finds there is no reasonable probability
Defendant would have foregone his plea agreement and
proceeded to trial. Grosvenor, 874 So. 2d at 1181-82.
For these reasons, Ground Six is without merit.
Resp. Ex. G1 at 90-91, 93-94. Petitioner appealed, and the First DCA per curiam
affirmed the summary denial without a written opinion. Resp. Ex. H. The Court
addresses the claim in accordance with the deferential standard for federal
court review of state court adjudications.
The record shows that on November 13, 2009, police responded to a grand
theft at Panama Pharmacy. Resp. Ex. B1. When they arrived, an employee of
Delivery Specialists advised police that she had pulled her delivery truck to the
back of the pharmacy and began unloading several storage bins from the truck
when an unknown individual ran up and grabbed three of the bins, some of
which contained controlled medication. Id. The individual ran back to a truck
and threw the bins in the back before jumping in the passenger seat and fleeing
the parking lot. Id. That same day, another officer was dispatched in response
to a stolen vehicle. Id. That officer recovered one of the bins from the stolen
vehicle, but the other bins containing the controlled medications were not
located at that time. Id.
On November 30, 2009, police arrived at Petitioner’s home, which he
shared with his live-in girlfriend, to investigate a burglary. Resp. Ex. A1.
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Petitioner agreed to a search of his room, during which police found, inter alia,
500 1mg Clonazepam pills and 100 2mg Clonazepam pills. Id. Police confirmed
the Clonazepam found in Petitioner’s home were the same pills taken during
the November 23, 2009, theft. Id. Petitioner was arrested and when questioned
by police, Petitioner advised that he bought the pills “from some guy a few
weeks ago.” Id. When police asked “‘from whom’ he began to stutter and got
tongue tied. He would not provide a name or race and stated ‘some dude a few
weeks ago, I don’t know him.’” Resp. Ex. B1. The state then charged Petitioner
with grand theft in the third degree under § 812.014(2)(c), Florida Statutes, in
2009-CF-15529.8 Resp. Ex. B2. The Information provided that Petitioner “did
knowingly obtain or use or endeavor to obtain or use Clonazepam pills, the
value of $300 or more but less that $20,000, the property of Delivery Specialists,
with intent to either temporarily or permanently deprive Delivery Specialists
of a right to the property or benefit therefrom.” Id.
Petitioner then entered an open plea of guilty to the grand theft charge.
Resp. Ex. E. During his colloquy, Petitioner acknowledged, under oath, that by
entering his plea, he was waiving his right to have the state prove beyond a
reasonable doubt that he committed the offense. Id. at 6. He advised the trial
court that no one threatened, coerced, or promised him anything in exchange

The state charged Petitioner with possession of the Clonazepam in 2009-CF15483. Resp. Ex. A2.
8

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for his plea, and that he was, in fact, guilty of committing the offense. Id. at 67. He attested that his attorney advised him of the nature of the offense and
that he was satisfied with her representation. Id. at 7. The trial court then
acknowledged that a factual basis existed for the plea and found that Petitioner
voluntarily and freely entered his plea with full knowledge of its consequences.
Id. at 8-9.
Petitioner’s sworn statements at his plea hearing and the circumstantial
evidence supporting his plea refute Petitioner’s claims that his guilty plea was
involuntary and that his attorney misadvised him about the factual basis
supporting his plea and the consequences of his decision. By admitting under
oath that he committed this grand theft, Petitioner waived any potential
defense for which he discussed with counsel before he entered that guilty plea.9
Thus, upon thorough review of the record and the applicable law, the Court
finds that the state court’s decision to deny Petitioner’s claim was neither
contrary to nor an unreasonable application of Strickland, and it is not based
on an unreasonable determination of the facts considering the evidence
presented to the state court. See 28 U.S.C. § 2254(d). This Ground is denied.

Petitioner’s allegation that he bought the controlled medication from an
unknown individual is also contradicted by the sworn statements Petitioner made in
ground four of his second amended Rule 3.850 motion, in which he alleged the
medication belonged to his then live-in girlfriend and he knew nothing about the
medication before police arrived to search his home. Resp. Ex. G1 at 68-70, 91-92.
9

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D. Ground Four
Petitioner argues that his trial counsel(s) were ineffective for failing to
file a motion to withdraw his guilty pleas. Doc. 1 at 14-16. According to
Petitioner, before pleading guilty, he entered an agreement with the state that
he would provide a statement about the true perpetrators of the crimes and
enter a guilty plea to the charges in exchange for his release from custody and
the state’s promise that it would request a lenient sentence. Id. He claims that
per the alleged agreement, Petitioner pled guilty on January 27, 2010, but was
not released from custody as promised. Id. He contends that police then charged
him with another crime, and “believing that the prosecutor was still willing to
uphold his end of the deal,” Petitioner plead guilty to the new charge. Id.
Petitioner asserts that after his second plea hearing, he “was then informed
that the prosecution was no longer willing to honor the deal they had entered
into.” Id. As such, Petitioner advised his counsel that he wanted to withdraw
all his guilty pleas, but “[c]ounsel simply refused to file the motion(s).” Id.
Petitioner claims that when a new attorney was assigned to his cases, Petitioner
asked that attorney to withdraw his pleas, but he also refused.
Petitioner raised this claim in his second amended Rule 3.850 motion.
Resp. Ex. G1 at 71-74. The trial court summarily denied the claim as follows:
Defendant avers counsel was ineffective for
failing to file a motion to withdraw his plea after the
State breached their agreement. According to
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Defendant, he and the prosecutor worked out an
agreement whereby Defendant would give a statement
against his co-defendant and the prosecutor would
release Defendant on his own recognizance and
recommend a lenient sentence. Based on this alleged
agreement, Defendant entered the guilty pleas.
However, Defendant was never released on his own
recognizance nor did the State recommend a lenient
sentence, at which point Defendant asked counsel to
withdraw his plea. Counsel did not move to withdraw
Defendant’s pleas though.
Defendant’s claim is refuted by the record as
Defendant, under oath, acknowledged to the Court that
no one had coerced or promised him anything in
exchange for entering his open pleas. Moreover, by
entering an open plea, Defendant did not have a
negotiated sentence. A fact the Court informed
Defendant about [] while also instructing him on the
maximum penalties he faced. Defendant is estopped
from postconviction relief, because the basis of his
claim is that he lied under oath. Polk, 56 So. 3d at 808.
Defendant is bound by his sworn statements during the
plea colloquy. Kelley, 109 So. 3d 812-13. Accordingly,
as the record refutes Defendant’s claim, he is not
entitled to relief on Ground Five.
Resp. Ex. G1 at 92-93. Petitioner appealed, and the First DCA per curiam
affirmed the summary denial without a written opinion. Resp. Ex. H. The Court
addresses the claim in accordance with the deferential standard for federal
court review of state court adjudications.
In January 2010, while being represented by then Assistant Public
Defender Andrea Fourman, Petitioner entered open pleas of guilty to burglary
in 2009-CF-16025, grand theft in 2009-CF-15529, and possession of a controlled

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substance in 2009-CF-15483. Resp. Ex. E. During that colloquy, Petitioner
acknowledged, under oath, that by entering his open pleas, he was facing a
maximum sentence of five years incarceration for the possession and grand
theft charges and a maximum sentence of thirty years for the burglary charge.
Id. at 4. He also testified that he made no agreement with the state nor his
attorney as to what his ultimate sentence would be following his open pleas. Id.
at 4-5. He recognized that the trial court would conduct a sentencing hearing
on a future date, during which it would allow the state and counsel to present
evidence for the trial court to consider before imposing its sentence. Id. at 5.
The state then advised the trial court that Petitioner also had a pending case
in Nassau County, and that “the recommendation [was] going to be whatever
happens in this case will be run concurrent with that case.” Id. at 5. Neither the
state nor Petitioner made any other representations about potential
recommendations regarding Petitioner’s sentences. Petitioner then testified
that no one threatened, coerced, or made any promises in exchange for his pleas
of guilty. Id. at 6. And he advised that he had no other questions for his attorney
or the trial court before his pleas were accepted. Id. at 7-8. Based on Petitioner’s
sworn statements, the trial court accepted his pleas, finding he entered them
freely and voluntarily with a full understanding of their nature and
consequences. Id. at 9.

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In March 2010, the state then charged Petitioner in 2010-CF-1910 with
the grand theft of a front-end loader and the burglary of Premier Pharmacy.
Resp. Ex. D2. Petitioner entered an open plea of guilty to those charges. Resp.
Ex. F. During that plea colloquy, Petitioner acknowledged that by entering open
pleas, he was facing a maximum sentence of thirty years incarceration as to the
burglary charge and a five-year maximum as to the grand theft charge but
understood there was no negotiation about what sentence he would ultimately
receive. Id. at 3-4. Petitioner also recognized that the trial court could order the
sentences for all offenses to which he pled guilty to run consecutive, and thus
Petitioner knew he was facing a total exposure of seventy-five years in prison.
Id. at 4. He stated that no one threatened him, coerced him, or made any
promises in exchange for his pleas of guilty. Id. at 6. Petitioner testified that his
attorney went over the plea forms with him in detail, answered all his
questions, and that he was satisfied with counsel’s representation. Id. at 7.
A review of Petitioner’s state court dockets shows that in June 2010,
another Assistant Public Defender, Jon Pierre Lorimier, began representing
Petitioner. See Carter, 2009-CF-15483; 2009-CF-15529; 2009-CF-16025; 2010CF-1910. Petitioner then entered his open plea of guilty to perjury on May 16,
2011. Resp. Ex. C5. The trial court sentenced Petitioner in all cases on May 20,
2011. Of import, Petitioner does not provide any details surrounding his perjury

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conviction nor does he allege that he asked counsel to file a motion to withdraw
his plea to that charge.
In any event, Petitioner’s sworn statements made during the January and
March 2010 plea hearings refute his allegation that the state made promises to
Petitioner in exchange for his guilty pleas. Had the state made such promises,
Petitioner’s failure to speak up at his plea hearings estops him from now
arguing a position contrary to the statements made under oath in open court.
And despite facing a potential seventy-five-year term of incarceration, the trial
court sentenced Petitioner to a cumulative twenty-year term.10 Given this
record, Petitioner cannot show that but for trial counsels’ alleged failure to file
a motion to withdraw his pleas, such motion would have been granted and
Petitioner would have proceeded to trial. The Court finds that the state court’s
decision to deny Petitioner’s claim was neither contrary to nor an unreasonable
application of Strickland, and it is not based on an unreasonable determination
of the facts considering the evidence presented to the state court. See 28 U.S.C.
§ 2254(d). This Ground is denied.

In 2009-CF-16025, the trial court ordered Petitioner’s five-year term of
incarceration for his perjury conviction to run consecutive to his fifteen-year term of
incarceration for his burglary conviction. Resp. Ex. C6 at 5. The court ordered all other
sentences for all other cases to run concurrent.
10

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E. Ground Five
Petitioner argues that his trial counsel was ineffective for advising him
to enter guilty pleas in 2009-CF-16025, 2009-CF-15529, and 2010-CF-1910
without investigating any exculpatory evidence. Doc. 1 at 17. Petitioner alleges
that “[d]uring pre-trial meetings [Petitioner] explained to counsel that he did
not commit the burglaries he was accused of, and he had not been the person
that committed the grand theft of the pills that he purchased at a later date.”
Id. However, according to Petitioner, counsel ignored that information and
“simply convinced [Petitioner] that it was in his best interest to cooperate with
the State. . . .” Id.
Petitioner raised this claim in his second amended Rule 3.850 motion.
Resp. Ex. G1 at 78-79. The trial court summarily denied the claim, finding the
following:
Defendant argues counsel misadvised him and
coerced him into entering the plea where counsel failed
to do any investigation on her own. According to
Defendant, had counsel investigated, she would have
learned there was no physical or circumstantial
evidence to support the charges.
The record refutes Defendant’s allegations that
there was no physical or circumstantial evidence to
support the charges, because Defendant admitted to
participating in the two burglaries and admitted to
being in possession of a controlled substance and stolen
goods. Moreover, Defendant, under oath, told the Court
he was satisfied with his counsel and that he was guilty
of each of the crimes. Accordingly, Defendant cannot
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now say his counsel was ineffective for failing to
investigate. Smith, 41 So. 3d at 1040. As the record and
Defendant’s statements to the Court refute his claim,
Defendant is not entitled to relief on Ground Seven.
Resp. Ex. G1 at 94. Petitioner appealed, and the First DCA per curiam affirmed
the summary denial without a written opinion. Resp. Ex. H. The Court
addresses the claim in accordance with the deferential standard for federal
court review of state court adjudications.
As discussed, the record evidence provides an adequate factual basis for
Petitioner’s pleas and convictions. Further, Petitioner’s sworn statements made
during his plea colloquies show that he voluntarily entered his pleas with the
full understanding of the consequences. Indeed, he testified under oath and in
open court that he was entering his pleas because he was in fact guilty of
committing the offenses. Thus, upon thorough review of the record and the
applicable law, the Court finds that the state court’s decision to deny
Petitioner’s claim was neither contrary to nor an unreasonable application of
Strickland, and it is not based on an unreasonable determination of the facts
given the evidence presented to the state court. See 28 U.S.C. § 2254(d). This
Ground is denied.

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Accordingly, it is
ORDERED AND ADJUDGED:
1.

The Petition (Doc. 1) is DENIED and this case is DISMISSED

with prejudice.
2.

The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.
3.

If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of
appealability is not warranted, the Clerk shall terminate from the pending
motions report any motion to proceed on appeal as a pauper that may be filed
in this case. Such termination shall serve as a denial of the motion.11
DONE AND ORDERED in Jacksonville, Florida, this 7th day of
September, 2021.

The Court should issue a certificate of appealability only if 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)). Here, after consideration of
the record as a whole, the Court will deny a certificate of appealability.
11

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Jax-7
C:

Albert Jason Carter, #J33444
counsel of record

36