Clark v. Florida Attorney General et al

Filing 16

ORDER denying 5 Amended Petition and dismissing case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 7/19/2021. (ACT)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RENARDO CLARK,
Petitioner,
v.

Case No. 3:18-cv-994-MMH-JRK

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Renardo Clark, an inmate of the Florida penal system,
initiated this action with the assistance of counsel on August 15, 2018, by filing
a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Petition; Doc. 1).
Clark is proceeding on an amended petition (Amended Petition; Doc. 5), with
exhibits (Pet. Ex.). In the Amended Petition, Clark challenges a 2009 state
court (Duval County) conviction for armed robbery, aggravated fleeing, and
possession of a firearm by a convicted felon. Clark raises one ground for relief.
See Amended Petition at 7-9.1 Respondents submitted an answer in which they

For purposes of reference, the Court will cite the page number assigned
by the Court’s electronic docketing system.
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moved the Court to dismiss the Amended Petition as untimely but also
addressed the merits of the Amended Petition in the alternative. See Answer
in Response (Response; Doc. 12) with exhibits (Resp. Ex.). Clark initially filed
a brief in reply only as to Respondents’ statute of limitations argument. See
Clark’s Reply to the State’s Response (Doc. 13). On April 19, 2021, the Court
denied Respondents’ request to dismiss the Amended Petition as untimely and
directed Clark to file a reply to Respondents’ merits analysis. See Doc. 14.
Thereafter, Clark filed his supplemental reply. See Petitioner Clark’s Reply to
State’s Response (Reply; Doc. 15). The Amended Petition is ripe for review.
II. Relevant Procedural History
On March 12, 2007, the State of Florida (State) charged Clark by way of
Information with armed robbery (count one), aggravated fleeing or attempting
to elude a law enforcement officer (count two), and possession of a firearm by
a convicted felon (count three). Resp. Ex. 1 at 15. Following a trial, a jury found
Clark guilty as charged in the Information on all three counts. Id. at 65-67. On
November 8, 2007, the trial court adjudicated Clark to be a habitual violent
felony offender (HVFO) as to counts one, two, and three and a prison releasee
reoffender as to count one. Id. at 70-77. The trial court sentenced Clark to a
life term of incarceration as to count one and a term of incarceration of fifteen
years in prison as to counts two and three. Id. As an HVFO, the trial court
imposed a ten-year minimum mandatory sentence as to counts one, two, and
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three. Resp. Ex. 1 at 76. It also imposed a ten-year minimum mandatory
sentence as to count one and a three-year minimum mandatory sentence as to
count three because of Clark’s actual possession of a firearm during the
commission of these offenses. Id. The trial court ordered counts two and three
to run concurrently with the sentence imposed on count one. Id. On December
24, 2008, the First District Court of Appeal (First DCA) affirmed Clark’s
convictions and sentences and issued the mandate on January 9, 2009. Resp.
Ex. 7.
On February 9, 2009,2 Clark filed a pro se motion to correct an illegal
sentence under Florida Rule of Criminal Procedure 3.800(a) (Rule 3.800(a)
Motion), in which he moved to strike the ten-year HVFO term imposed as to
count one. Resp. Ex. 8. The postconviction court denied the Rule 3.800(a)
Motion. Resp. Ex. 8. On October 20, 2009, the First DCA reversed the denial
of the Rule 3.800(a) Motion and remanded the matter for the postconviction
court to strike the HVFO sentence. Resp. Ex. 11. The First DCA issued the
mandate on November 17, 2009. Id.
The postconviction court entered an order on remand vacating and
setting aside the portions of the judgment that adjudicated Clark as an HVFO

Although filed pro se, the Court cannot use the mailbox rule to calculate
the date because there is no prison time stamp and Clark did not date his
motion. Accordingly, the Court relies on the date the Clerk stamped on the
motion.
2

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and imposed the ten-year minimum mandatory term of imprisonment. Resp.
Ex. 12. All other provisions of the judgment remained the same. Id.
On January 10, 2011, Clark, with the assistance of counsel, filed a
motion for postconviction relief pursuant to Florida Rule of Criminal Procedure
3.850 (Rule 3.850 Motion). Resp. Ex. 14 at 1-15. Clark alleged in the Rule 3.850
Motion that his trial counsel was ineffective for failing to object to and crossexamine testimony from the State’s DNA expert and call an independent DNA
expert. Id. On July 19, 2017, the postconviction court denied relief. Resp. Ex.
17. On August 7, 2018, the First DCA per curiam affirmed the denial of relief,
without a written opinion, and issued the mandate on October 3, 2018. Resp.
Ex. 20.
III. One-Year Limitations Period
This action was timely filed within the one-year limitations period. See
28 U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.
Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a
hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v.
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Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017). “It
follows that if the record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary
hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully
developed in the record before the Court. Because the Court can “adequately
assess [Clark’s] claim[s] without further factual development,” Turner v.
Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not
be conducted.
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal petition for habeas corpus. 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) (quotation marks
omitted)). As such, federal habeas review of final state court decisions is
“‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v.
Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
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The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the claim 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 a written opinion explaining its rationale in order 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 United States Supreme Court has
instructed:
[T]he 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.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be
rebutted by showing that the higher state court’s adjudication most likely
relied on different grounds than the lower state court’s reasoned decision, such
as persuasive alternative grounds that were briefed or argued to the higher
court or obvious in the record it reviewed. Id. at 1192, 1196.
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars
relitigation of the claim unless the state court’s decision (1) “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;” or (2) “was based on
an unreasonable determination of the facts in light of the evidence presented
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in the State court proceeding.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.
The Eleventh Circuit describes the limited scope of federal review pursuant to
§ 2254 as follows:
First, § 2254(d)(1) provides for federal review for
claims of state courts’ erroneous legal conclusions. As
explained by the Supreme Court in Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),
§ 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable application”
clause. The “contrary to” clause allows for relief only
“if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523
(plurality opinion). The “unreasonable application”
clause allows for relief only “if the state court identifies
the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Id.
Second, § 2254(d)(2) provides for federal review for
claims
of
state
courts’
erroneous
factual
determinations. Section 2254(d)(2) allows federal
courts to grant relief only if the state court’s denial of
the petitioner’s claim “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)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the
state court’s factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.
Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192
L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual
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determination is not unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.’”[3] Titlow, 571 U.S. at
---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.
290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S.
Ct. 2298 (2017). Also, deferential review under § 2254(d) generally is limited
to the record that was before the state court that adjudicated the claim on the
merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating the language
in § 2254(d)(1) “requires an examination of the state-court decision at the time
it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,
134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a
state court blundered in a manner so ‘well understood and comprehended in
existing law’ and ‘was so lacking in justification’ that ‘there is no possibility
fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.
Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

The Eleventh Circuit has described the interaction between §
2254(d)(2) and § 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821
F.3d 1270, 1286 n.3 (11th Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).
3

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adjudicated on the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
B. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective
assistance of counsel. That right is denied when a defense attorney’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 deficient performance, a person
challenging a conviction must show that “counsel’s
representation fell below an objective standard of
reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.
Ct. 2052. A court considering a claim of ineffective
assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range”
of reasonable professional assistance. Id., at 689, 104
S. Ct. 2052. The challenger’s burden is to show “that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must
demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.
It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.”
Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be
“so serious as to deprive the defendant of a fair trial, a
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trial whose result is reliable.” Id., at 687, 104 S. Ct.
2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of
any iron-clad rule requiring a court to tackle one prong of the Strickland test
before the other.” Ward, 592 F.3d at 1163. 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.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, - U.S. at -, 131 S. Ct.
at 788. But “[e]stablishing that a state court’s
application of Strickland was unreasonable under §
2254(d) is all the more difficult. The standards created
by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review
is doubly so.” Id. (citations and quotation marks
omitted). “The 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, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)
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(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, - U.S. at -, 131 S. Ct. at 788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the
deference to counsel’s performance mandated by Strickland, the AEDPA adds
another layer of deference--this one to a state court’s decision--when we are
considering whether to grant federal habeas relief from a state court’s
decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,
“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
VI. Findings of Fact and Conclusions of Law
Clark contends that his trial counsel was ineffective for failing to object
to testimony from the State’s DNA expert, Greg Brock, concerning DNA found
on the handle of a gun and failing to adequately cross-examine Brock on this
testimony. Amended Petition at 7-9. Additionally, Clark asserts that his
counsel should have retained a DNA expert to rebut Brock’s conclusions
concerning this evidence. Id. At trial, Brock testified that Clark was a possible
contributor to a mixture of DNA found on the handle of a gun the State alleged
Clark used during the commission of the offenses. Id. at 7-8. According to
Clark, “[u]nder Florida law it was improper to introduce this testimony without
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explaining its significance.” Id. at 8. Clark maintains that an independent
DNA expert “could have explained to the jury that there was no evidentiary
significance to the State DNA expert’s DNA finding about the DNA on the
handle of the gun.” Id. Following the trial, Clark’s mother retained a DNA
expert, Dr. Charlotte Word, who concluded that the trial court should not have
permitted Brock’s testimony concerning Clark as a possible contributor to the
DNA mixture or should have required the testimony be accompanied with an
explanation of “their scientific significance[.]” Id. at 8-9. Clark attached Word’s
reports as exhibits to the Amended Petition.
Clark raised a substantially similar claim in his Rule 3.850 Motion.
Resp. Ex. 14 at 1-15. The postconviction court denied relief, explaining in
pertinent part:
Specifically, Defendant claims Mr. Brock should not
have been permitted to testify that Defendant was
“included as a possible contributor” to the DNA
recovered from the handle of the gun without
additional testimony explaining population frequency
statistics. Defendant cites Brim v. State, 695 So. 2d,
269-70 (Fla. 1997), which holds that both steps of DNA
testing must satisfy the Frye[4] test, but also notes:
This first step of the DNA testing process
relies upon principles of molecular biology
and chemistry. In oversimplified terms,
the results obtained through this first step
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (superseded by rule
as stated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993)).
4

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in the DNA testing process simply indicate
that two DNA samples look the same. A
second statistical step is needed to give
significance to a match. The need for this
second step is explained as follows by the
National Research Council (NRC)2: “The
insistence on quantitative estimation has
been fueled by the observation in the 1992
report that ‘[t]o say that two patterns
match,
without
providing
any
scientifically valid estimate (or, at least,
an upper bound) of the frequency with
which such matches might occur by
chance, is meaningless.’[”] Certainly, a
judge’s or juror’s untutored impression of
how unusual a DNA profile is could be
very wrong. This possibility militates in
favor of going beyond a simple statement
of a match, to give the trier of fact some
expert guidance about its probative value.
Defendant has also provided letters from Dr.
Charlotte Word wherein she opines that the DNA from
the handle of the gun could have been a “match” to as
many as 1 in 2 DNA profiles. In other words, half the
world could have been “included as a possible
contributor.” Defendant argues that Mr. Brock’s
testimony was highly misleading without the context
of the population frequency statistics.
Concededly, in hindsight, it would have been
better for the jury to hear such testimony to
understand the significance of the DNA evidence from
the handle of the gun. However, even if counsel was
deficient for failing to object, failing to cross-examine
Mr. Brock on this subject or call another expert to
clarify the population frequency statistics, Defendant
cannot prove prejudice.
The charges in this case arose from an incident,
followed by a high-speed car chase, which ended when
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Defendant crashed and fled on foot into an apartment
complex. Although Sgt. Nemeth testified that during
the foot chase, he lost sight of Defendant briefly as
Defendant ran around a corner, Officer Knecht
testified that he was in “parallel pursuit,” and saw
Defendant run up a stairwell. Police then found
Defendant sitting on the stairwell, in the same clothes
as the suspect they were chasing, breathing heavily
and sweating profusely on a February evening. The
victim positively identified Defendant as the person
who robbed him.
Defendant [sic] counsel cross-examined Mr.
Brock at length, highlighting that Defendant was
excluded as a contributor to the DNA on the trigger of
the gun. However, the critical piece of DNA evidence
was from the steering wheel of the stolen car.
Defendant was found to be a match, and Mr. Brock
testified that the frequency of the occurrence of that
DNA was 1 in 400 trillion Caucasians; 1 in 11 trillion
African-Americans, and 1 in 82 trillion Southeastern
Hispanics. The gun was found in the car where
Defendant’s DNA was found on the steering wheel.
The victim identified the gun as the one Defendant
used in the robbery. Therefore, evidence beyond DNA
linked Defendant to the gun.
In sum, objecting, cross-examining or hiring
another expert could have all resulted in testimony
providing population frequency statistics, which
would have apparently diminished the significance of
the DNA evidence from the handle of the gun.
Nevertheless, even if the jury had heard the
population frequency statistics, the outcome of the
trial would not have been different. Hence, Defendant
has not proven that he was prejudiced by counsel’s
inaction and he is not entitled to relief.
Resp. Ex. 17 2-4 (record citations omitted). The First DCA per curiam affirmed
the denial of relief, without issuing a written opinion. Resp. Ex. 20.
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To the extent that the First DCA decided the claim on the merits,5 the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Clark is not entitled to relief
on the basis of this claim.
This Court agrees with the state court that Clark cannot demonstrate
prejudice. At trial, the victim testified that Clark approached him in the
parking lot of an apartment complex, told him the victim to give him his money,
and showed half of a silver revolver that was inside the pocket of Clark’s grey
sweatshirt. Resp. Ex. 2 at 25-26. Although the hood of the jacket was covering
Clark’s head, the victim was still able to observe Clark’s face. Id. at 26-27.
While at gunpoint, the victim gave Clark six dollars in one-dollar bills and the
keys to his car. Id. at 28-29. Clark then drove off in the victim’s car. Id. at 29.
With the assistance of a bystander and his car, the victim drove after Clark

In looking through the appellate court’s per curiam affirmance to the
circuit court’s “relevant rationale,” the Court presumes that the appellate court
“adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.
5

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while calling 911. Id. at 29-31, 45-46. Clark drove too fast for the victim to
follow but by that time police had taken over the chase. Id. at 30-31.
Clark led police on a high-speed chase that started on the interstate and
ended at an apartment complex where Clark crashed the victim’s vehicle into
a fence and fled on foot. Id. at 54-67. Sergeant Matt Nemeth observed Clark,
wearing the same gray sweatshirt the victim had told the 911 operator the
suspect was wearing, run from the vehicle, at which point Nemeth ran after
him. Id. at 67-68. Nemeth lost sight of Clark for ten to twenty seconds as he
ran up the exterior stairwell of an apartment building. Id. at 69-71. However,
another officer on foot had also seen Clark run up the stairwell and pursued,
ultimately arresting Clark, who by that time was sweating profusely and
breathing heavily. Id. at 69-71, 96-100. Officers searched Clark and found fivedollars-worth of dollar bills in his pocket. Id. at 100-01, 121.
At the scene of the crash, the vehicle was still running, and the stereo
was playing loudly. Id. at 74-75, 126, 130, 159-60. Officers found a fully loaded
and operable silver revolver on the floorboard. Id. Police brought the victim to
the scene of the crash, where the victim identified his vehicle and positively
identified Clark as the assailant. Id. at 32-35, 113-15. According to the victim,
there was no doubt in his mind that Clark was the robber. Id. at 42.
No fingerprints of value were found in the vehicle or on the gun. Id. at
150, 153. However, several areas tested positive for DNA. The handle of the
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gun had a mixture of profiles on it, and Brock testified, without giving
statistical data, that Clark was a possible contributor to that mixture. Id. at
186. Notably, during cross-examination, trial counsel elicited testimony from
Clark that it was only a possibility that Clark was a contributor to that mixture
and that Brock could not say for certain that Clark was a contributor. Id. at
213. This was not the only DNA evidence linking Clark to the crime, though.
Brock concluded that Clark’s DNA profile matched that of the major
contributor to a DNA mixture found on the steering wheel of the stolen vehicle.
Id. at 188-96. Clark’s own expert agrees with Brock’s conclusion that Clark’s
DNA was on the steering wheel. Resp. Ex. 4 at 2.
Given the existence of Clark’s DNA on the steering wheel of the victim’s
vehicle, the victim’s unequivocal in-court and out-of-court identification of
Clark, and the pursuing officers’ identification of Clark, there is no reasonable
probability the outcome of the trial would have been different. Indeed, Clark’s
own expert would have provided testimony linking Clark to the crimes. In light
of the overwhelming evidence identifying Clark as the assailant, Clark has
failed to demonstrate prejudice and relief on the claim in the Amended Petition
is due to be denied.

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VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Clark seeks issuance of a certificate of appealability, the undersigned
opines that a certificate of appealability is not warranted. The Court should
issue a certificate of appealability only if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
this substantial showing, Clark “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)).
Where a district court has rejected a petitioner’s constitutional claims on
the merits, the petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.
See Slack, 529 U.S. at 484. However, when the district court has rejected a
claim on procedural grounds, the petitioner must show that “jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Upon
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consideration of the record as a whole, the Court will deny a certificate of
appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Amended Petition (Doc. 5) is DENIED, and this action is

DISMISSED WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the Amended

Petition and dismissing this case with prejudice.
3.

If Clark appeals the denial of the Amended Petition, 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.
4.

The Clerk of the Court is directed to close this case and terminate

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 19th day of July,
2021.

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Jax-8
C:

Counsel of record
Renardo Clark #126790

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