Leppert v. Secretary, Department of Corrections, et al(Putnam County)

Filing 19

ORDER denying 1 the Petition and dismissing the action with prejudice; denying a certificate of appealability; directions to the Clerk. Signed by Judge Marcia Morales Howard on 3/27/2024. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MORGAN AMANDA LEPPERT,
Petitioner,
v.

Case No. 3:21-cv-292-MMH-LLL

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Morgan Amanda Leppert, an inmate of the Florida penal
system, is proceeding through counsel on a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 (Petition; Doc. 1) with a supporting memorandum (Pet.
Memo.; Doc. 3). Leppert initiated this action in the Ocala Division, but because
she challenges a Putnam County, Florida judgment of conviction, the assigned
judge transferred the case to this Court. See Order (Doc. 10). Respondents
submitted a response to the Petition (Response; Doc. 12) with exhibits (Exs.;

Docs. 13-1, 18-1, 18-2). 1 Leppert filed a reply (Reply; Doc. 14). This action is
ripe for review.
II. Relevant Procedural History
On May 22, 2008, a Florida grand jury returned an indictment against
Leppert, who was then only 15 years old, charging three felony offenses: firstdegree murder; burglary with assault or battery; and robbery with a deadly
weapon. Ex. A at 1-2. Specifically, the State of Florida charged Leppert with
the murder of James Thomas Stewart, who Leppert allegedly “beat[], stabb[ed]
. . . with a knife, and suffocat[ed]” on April 25, 2008, while perpetrating or
attempting to perpetrate a burglary or robbery. Id. at 1.
On August 7, 2009, Leppert proceeded to a jury trial in Putnam County
Case No. 08-1171-CF-53. Ex. K. According to trial testimony, which included
two recorded statements by Leppert, she wanted to run away with her 22-yearold boyfriend, Toby Lowry, but they did not have a vehicle or money, so they
planned to steal both from a random person. Id. at 737. With that intention,
they snuck into Stewart’s home, and ultimately Lowry, with Leppert’s
assistance, beat, stabbed, and suffocated Stewart. Id. at 720-22. Leppert and

Per the Court’s Order (Doc. 17), Respondents re-filed exhibits H, I, K, and O
on March 11, 2024 (Doc. 18), because the original copies were incomplete. Citations
to exhibits H, I, K, and O will be to those docketed on March 11, 2024 (Docs. 18-1, 182).
1

2

Lowry were taken into custody on May 3, 2008, in Texas, where they had
driven in Stewart’s truck after the murder. Id. at 530-31, 731. Initially, Leppert
was held in a juvenile detention center as a victim/witness because Leppert’s
mother had reported to authorities that she had been missing since April 22,
2018, and an Amber Alert eventually had been issued. Id. at 537-38, 542, 560,
568, 647. The scope of the investigation changed after investigators
interviewed Lowry, who implicated Leppert in the crimes, including Stewart’s
murder. Id. at 718-19. 2
The jury found Leppert guilty on all charges. Id. at 985; Ex. M. The trial
court sentenced her in open court on September 29, 2009, to life without the
possibility of parole for first-degree murder and to concurrent life sentences for
burglary and robbery, Ex. O at 14, and entered a written judgment that same
day, Ex. P. Leppert appealed, and during the pendency of her appeal, filed a
counseled motion to correct a sentencing error under Florida Rule of Criminal
Procedure 3.800(b)(2). Ex. Q. In doing so, she argued that the sentences for the
nonhomicide convictions violated Graham v. Florida, 560 U.S. 48 (2010). 3 See
generally id. The trial court granted the motion and resentenced Leppert to
Leppert told authorities that she willingly ran away from home to be with
Lowry. Ex. K at 601.
2

In Graham, the Supreme Court held that “the Eighth Amendment prohibits
a State from imposing a life without parole sentence on a juvenile nonhomicide
offender.” 560 U.S. at 75.
3

3

concurrent 50-year terms on the nonhomicide convictions, Ex. S at 12, and
entered an amended judgment on July 30, 2010, nunc pro tunc to the date of
the original judgment, Ex. T. The court left the sentence on the homicide
conviction unchanged. See id.
On direct appeal, the Fifth District Court of Appeal per curiam affirmed
Leppert’s convictions and sentences without a written opinion. Ex. X (case
number 5D09-3462). After denying Leppert’s motion for rehearing, the Fifth
DCA issued the mandate. Ex. Z; Ex. AA. Thereafter, Leppert filed a pro se
petition for writ of habeas corpus in the Fifth DCA alleging the ineffective
assistance of appellate counsel, Ex. BB, which the Fifth DCA denied, Ex. CC
(case number 5D13-3628).
Proceeding

through

counsel,

Leppert

next filed

a

motion

for

postconviction relief under Rule 3.850, Ex. FF, 4 and a motion to correct illegal
sentence under Rule 3.800(a), Ex. VV (Amended Rule 3.800(a) Motion). As
grounds for resentencing, Leppert cited Supreme Court precedent and
Florida’s recently enacted juvenile sentencing legislation. Id. at 2 (citing Miller
v. Alabama, 567 U.S. 460 (2012); 5 Fla. Stat. §§ 775.082, 921.1401, 921.1402).

4

Leppert originally filed her Rule 3.850 Motion pro se. Ex. EE.

In Miller, the Supreme Court held that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without the possibility of parole for
juvenile offenders.” 567 U.S. at 479. “Responding to Miller and . . . Graham . . . the
Florida Legislature unanimously enacted legislation in 2014 designed to bring
5

4

See also Ex. DDD at 3-4 (brief on appeal in case number 5D16-2238, detailing
the procedural history of Leppert’s sentencing).
Also in accordance with Florida’s new juvenile sentencing legislation,
specifically section 775.082(1)(b), Leppert filed a motion seeking a jury
determination of whether she “killed, intended to kill, or attempted to kill the
victim.” Ex. TT at 1. 6 Leppert’s counsel explained in the motion that an
affirmative factual finding on this issue would result in a minimum mandatory
sentence of 40 years with a review after 25 years per subdivision (b)1., while a
negative finding would dictate no minimum mandatory sentence with a review
after 15 years per subdivision (b)2. See generally id. (citing Apprendi v. New
Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 90 (2013)).
The trial court denied Leppert’s request for a jury determination, Ex.
UU, but conducted three hearings on the postconviction motions, including an
evidentiary hearing, Ex. HH, Ex. SS at 4; Ex. ZZ at 4-6. The postconviction
court ultimately denied Leppert’s Rule 3.850 Motion following an evidentiary

Florida’s juvenile sentencing statutes into compliance with the United States
Supreme Court’s . . . Eighth Amendment juvenile sentencing jurisprudence.” Horsley
v. State, 160 So. 3d 393, 394, 401 (Fla. 2015) (providing a thorough accounting of the
enactment of chapter 2014-220, Laws of Florida, codified in sections 775.082,
921.1401, and 921.1402, Florida Statutes). “Section 921.1402 was enacted in 2014,
while section 775.082 was simultaneously amended in 2014 to add subsection (1)(b).”
Williams v. State, 278 So. 3d 262, 263 n.1 (Fla. 5th DCA 2019).
6

The verdict form did not require the jury to make such a finding. Ex. M.

5

hearing. Ex. HH; Ex. II. The Fifth DCA per curiam affirmed without a written
opinion, Ex. NN (case number 5D16-2795), and issued the mandate after
denying Leppert’s motion for rehearing, Ex. OO; Ex. PP; Ex. QQ.
The postconviction court, on the other hand, granted Leppert’s Amended
Rule 3.800(a) Motion (announced in open court and in a written order), finding
that she was entitled to resentencing “according to the procedures set forth in
Sections 921.1401, 921.1402, [and] 775.082.” Ex. ZZ at 6-7; Ex. AAA at 2. The
postconviction court also ruled both orally and in writing that the evidence
“clear[ly]” established Leppert “intended to kill the victim, attempted to kill
the victim, and in acting [sic] concert with Toby Lowry, did in fact kill the
victim.” Ex. ZZ at 9-10; Ex. BBB. The postconviction court resentenced Leppert
to the same term of years as previously imposed on each conviction (life on the
homicide conviction and concurrent terms of 50 years on the nonhomicide
convictions) but with a “possibility of release after a review hearing after 25
years.” Ex. ZZ at 10-11; Ex. CCC. 7
Through counsel, Leppert appealed her resentencing. Ex. DDD (case
number 5D16-2238). In a per curiam written opinion, the Fifth DCA reversed

The postconviction court orally pronounced that Leppert would have a review
hearing after 20 years on the robbery conviction, Ex. ZZ at 11, but the written
judgment provided all three convictions would be subject to review after 25 years, Ex.
CCC.
7

6

and remanded only so that the trial court could enter an amended sentencing
order reflecting that Leppert was entitled to “a review of her robbery and
burglary convictions after twenty years,” not twenty-five years, per Florida
Statutes section 921.1402(2)(d). Ex. HHH at 1-2. With respect to the sentence
on the homicide conviction, the Fifth DCA concluded its decision in “a
strikingly similar case” dictated affirmance but, as it did in that similar case
(Williams v. State, 211 So. 3d 1070 (Fla. 5th DCA 2017)), 8 certified the
following question of great public importance to the Florida Supreme Court:
Does Alleyne v. United States[ 9] . . . require the jury
and not the trial court to make the factual finding
under section 775.082(1)(b), Florida Statutes (2016),
as to whether a juvenile offender actually killed,
intended to kill, or attempted to kill the victim?
Id. at 2-3. The Fifth DCA issued the mandate on May 11, 2017. Ex. III.
The Florida Supreme Court granted Leppert’s petition for review,
quashed the Fifth DCA’s decision, and remanded the matter to the Fifth DCA
for reconsideration in light of its recent decision answering the Fifth DCA’s

In the “strikingly similar” Williams case, the Fifth DCA held that a factual
determination under section 775.082(b) could be made either by the trial judge or the
jury. 211 So. 3d at 1073 (affirming the trial court’s denial of the appellant’s motion to
empanel a jury).
8

In Alleyne, the Supreme Court held, “Facts that increase the mandatory
minimum sentence are . . . elements [of the crime] and must be submitted to the jury
and found beyond a reasonable doubt.” 570 U.S. at 108.
9

7

certified question in the affirmative. Ex. JJJ (citing Williams v. State, 242 So.
3d 280 (Fla. 2018)). In Williams, the Florida Supreme Court held:
Because a finding of actual killing, intent to kill, or
attempt to kill ‘aggravates the legally prescribed range
of allowable sentences,’ Alleyne, 570 U.S. [at 115], by
increasing the sentencing floor from zero to forty years
and lengthening the time before which a juvenile
offender is entitled to a sentence review from fifteen to
twenty-five years, this finding is an ‘element’ of the
offense, which Alleyne requires be submitted to a jury
and found beyond a reasonable doubt.
242 So. 3d at 288.
The Fifth DCA subsequently withdrew its original opinion and mandate
and issued a new opinion. Ex. KKK; Ex. LLL. The Fifth DCA affirmed on the
claims not affected by the Florida Supreme Court’s Williams decision (those on
the nonhomicide sentences) but reversed the sentence imposed on the homicide
conviction because the jury had not made a finding under Florida Statutes
section 775.082(1)(b) whether Leppert “actually killed, intended to kill, or
attempted to kill the victim,” an error the Fifth DCA held was not harmless.
Ex. LLL at 2-3. Accordingly, the court remanded the conviction on that charge
for resentencing. Id. at 3. The court issued the mandate on August 6, 2018. Ex.
MMM.
On remand in the trial court, Leppert filed a motion to declare Florida
Statutes sections 921.1402(2)(b) and 775.082(1)(b)2. to be unconstitutional. Ex.
8

NNN. The trial court denied that motion. Ex. QQQ. However, in accordance
with the Fifth DCA’s remand order, the trial court resentenced Leppert on the
homicide conviction pursuant to section 775.082(1)(b)2. Ex. OOO. The court
again sentenced Leppert to a life term of imprisonment but with an
opportunity for review after 15 years, per the statute. Id. The court entered a
resentencing judgment on the homicide conviction (Count I) on January 14,
2019, nunc pro tunc to November 6, 2018. Ex. RRR. 10
Proceeding through counsel, Leppert appealed. Ex. SSS (case number
5D19-274). The Fifth DCA per curiam affirmed, Ex. VVV, and on December 6,
2019, issued the mandate, Ex. WWW. Leppert sought review in the Florida
Supreme Court. The court declined to accept jurisdiction and denied Leppert’s
petition for review. Ex. AAAA.
III. One-Year Limitation Period
This action was timely filed within the one-year limitation period. See
28 U.S.C. § 2244(d).

The January 14, 2019 resentencing judgment did not address the
nonhomicide convictions, Counts II and III. See Ex. RRR. However, the trial court
held a sentencing hearing on November 6, 2018, Ex. OOO, at which it appears
Leppert was resentenced on those convictions with respect to the timing of her review
hearings. See Ex. QQQ at 1 (January 14, 2019 trial court order denying Leppert’s
motion to declare the juvenile sentencing statutory provisions unconstitutional and
noting Leppert’s nonhomicide sentences were subject to review in 20 years).
Respondents note in their Response that the November 6, 2018 resentencing hearing
was never transcribed. See Response at 20.
10

9

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.
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). “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 [Leppert’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.
10

2016), abrogation recognized on other grounds by Smith v. Comm’r, Ala. Dep’t
of Corr., 67 F.4th 1335, 1348 (11th Cir. 2023). “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)). As such,
federal habeas review of final state court decisions is “greatly circumscribed
and highly deferential.” Id. (quotation marks omitted) (quoting Hill v.
Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).
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.

11

Wilson v. Sellers, 584 U.S. 122, 125 (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 125-26, 132.
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
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
12

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
determination is not unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.’”[ 11] 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). Also, deferential
review under § 2254(d) generally is limited to the record before the state court
that adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S.

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).
11

13

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.” Titlow, 571 U.S.
at 19. “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 adjudicated
on the merits in the state courts, they must be evaluated under 28 U.S.C. §
2254(d).
B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before bringing a §
2254 habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly
present[]” every issue raised in his federal petition to the state’s highest court,
either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,
351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state
14

prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28
U.S.C. § 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and correct” alleged
violations of its prisoners’ federal rights.’” Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d
865 (1995) (per curiam) (quoting Picard v. Connor, 404
U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To
provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, supra, at 365–366, 115 S. Ct. 887; O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default which raises a potential bar to federal habeas
review. The United States Supreme Court has explained the doctrine of
procedural default as follows:
Federal habeas courts reviewing the constitutionality
of a state prisoner’s conviction and sentence are guided
by rules designed to ensure that state-court judgments
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
15

system of federalism. These rules include the doctrine
of procedural default, under which a federal court will
not review the merits of claims, including
constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman,[ 12] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[ 13] supra, at 84–85, 97 S.
Ct. 2497. A state court’s invocation of a procedural
rule to deny a prisoner’s claims precludes federal
review of the claims if, among other requisites, the
state procedural rule is a nonfederal ground adequate
to support the judgment and the rule is firmly
established and consistently followed. See, e.g.,
Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–
1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558
U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417
(2009). The doctrine barring procedurally defaulted
claims from being heard is not without exceptions. A
prisoner may obtain federal review of a defaulted
claim by showing cause for the default and prejudice
from a violation of federal law. See Coleman, 501 U.S.,
at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be
excused under certain circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider the claim if a state
habeas petitioner can show either (1) cause for and actual prejudice from the
default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

12

Coleman v. Thompson, 501 U.S. 722 (1991).

13

Wainwright v. Sykes, 433 U.S. 72 (1977).
16

the procedural default “must result from some
objective factor external to the defense that prevented
[him] from raising the claim and which cannot be
fairly attributable to his own conduct.” McCoy v.
Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)
(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[ 14]
Under the prejudice prong, [a petitioner] must show
that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied
fundamental fairness.” Id. at 1261 (quoting Carrier,
477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would
result. Ward, 592 F.3d at 1157. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice,
there remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal
habeas court may grant the writ even in the absence
of a showing of cause for the procedural default.”
Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This
exception is exceedingly narrow in scope,” however,
and requires proof of actual innocence, not just legal
innocence. Johnson v. Alabama, 256 F.3d 1156, 1171
(11th Cir. 2001).

14

Murray v. Carrier, 477 U.S. 478 (1986).
17

Id. “To meet this standard, a petitioner must ‘show that it is more likely than
not that no reasonable juror would have convicted him’ of the underlying
offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a
claim of actual innocence must be based on reliable evidence not presented at
trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513
U.S. at 324). With the rarity of such evidence, in most cases, allegations of
actual innocence are ultimately summarily rejected. Schlup, 513 U.S. at 324.
C. 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) (first citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); and then
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
18

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
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.
19

“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, 562 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)
(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 ---, 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 [courts]
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).

20

VI. Findings of Fact and Conclusions of Law
A. Ground One
As Ground One, Leppert alleges “the timing of the review hearings
contained in Sections 775.082(1)(b)[2.] and 921.1402(2)(d), Florida Statutes,
are unconstitutional [because] the statutes fail to graduate and proportionate
the punishment to the offense and fail to offer a meaningful opportunity for
release” in violation of Graham. Pet. Memo. at 1, 3. Respondents counter that
this claim is unexhausted and procedurally defaulted because Leppert did not
raise the claim in the state court in a procedurally correct manner. Response
at 29-30. In doing so, they acknowledge Leppert raised the claim in the trial
court through her motion to declare statutory provisions unconstitutional, but
only after the Florida Supreme Court granted her petition for review and
remanded the case for reconsideration in Fifth DCA case number 5D16-2238.
Id. at 27.
Leppert argues in her Reply that she properly exhausted her state
remedies because she raised this claim in the trial court, which addressed it on
the merits. Reply at 1. She further suggests her claim was not ripe when her
case was before the Florida Supreme Court because it was not until the Fifth
DCA reconsidered her homicide sentence on remand that she became “eligible

21

for punishment under Section 775.082(1)(b)[2.]” 15 Id. at 2-4. Finally, she
asserts that to the extent the Fifth DCA denied her appeal as procedurally
barred, the procedural bar “was applied in an arbitrary or unprecedented
fashion, and/or was applied in a manifestly unfair manner.” Id.
Upon review, it appears this claim is unexhausted for the reasons
Respondents advance. The Florida Supreme Court instructed the Fifth DCA in
case number 5D16-2238 to reconsider its ruling regarding Leppert’s homicide
sentence and, in accordance with that instruction, the Fifth DCA in turn
remanded the case to the trial court for resentencing. Ex. JJJ; Ex. LLL. In its
opinion, the Fifth DCA stated in pertinent part:
In the case at hand, the jury was instructed on
first-degree premeditated murder and first-degree
felony murder with burglary or robbery as the
underlying felony. The verdict form did not require the
jury to specify under which theory it found Leppert
guilty. Based upon a similar fact pattern, the Florida
Supreme Court determined in Williams that there was
no clear jury finding that the defendant actually
killed, intended to kill, or attempted to kill the victim
and that the error was not harmless. 242 So. 3d at 289,
291. The court further held that “[w]here the error
cannot be deemed harmless, the proper remedy is to
resentence the juvenile offender pursuant to section
775.082(1)(b)2., Florida Statutes (2016).” Id. at 282.
Section 775.082(1)(b)2. addresses sentencing for those who “did not actually
kill, intend to kill, or attempt to kill the victim,” whereas subdivision (1)(b)1. of that
section—under which Leppert had been resentenced before remand—is the provision
that addresses sentencing for those who “actually killed, intended to kill, or
attempted to kill the victim.” See Fla. Stat. § 775.082(1)(b)1., 2. (emphasis added).
15

22

Because we conclude that the error was not harmless,
we reverse the sentence imposed for the murder
conviction and remand for Leppert to be resentenced
on that charge pursuant to section 775.082(1)(b)2.
Ex. LLL at 2-3.
Leppert raised a constitutional challenge for the first time on remand
from Fifth DCA case number 5D16-2238, even though she argued to the Fifth
DCA in that appeal that resentencing under subdivision (1)(b)2. of section
775.082 was the preferred or appropriate course of action. Ex. DDD at 34
(arguing the trial court “reversibly erred by making the factual determination
that [Leppert] actually killed or intended to kill the victim, rather than either
(a) empaneling a jury . . . or (b) . . . sentencing [Leppert] under Section
775.082(1)(b)[2.]”). She did not assert a constitutional challenge to the timing
of the review periods to which she would have been entitled if she were to be
resentenced in accordance with her request: under section 775.082(1)(b)2. on
the homicide conviction, with a review after 25 years; and under section
921.1402(2)(d) on the nonhomicide convictions, with a review after 20 years.
See id. 16

Notably, after Florida’s juvenile sentencing scheme was enacted, Leppert
consistently requested in the trial court to be resentenced on the homicide conviction
under section 775.082(1)(b)2. because the jury had not made a finding that she
“actually killed, intended to kill, or attempted to kill the victim.” Ex. TT (motion to
empanel a jury and for resentencing); Ex. VV (Amended Rule 3.800(a) Motion).
16

23

In its answer brief on appeal from the denial of Leppert’s motion to
declare statutory provisions unconstitutional (case number 5D19-0274), the
state argued Leppert’s Eighth Amendment claim was both “unpreserved and
meritless.” Ex. TTT at 5. According to the state, the claim was unpreserved
because Leppert did not raise a constitutional challenge to the juvenile
sentencing scheme in the Florida Supreme Court. Id. at 6, 9. As such, the state
argued, the Fifth DCA lacked the authority to “modify, nullify, or evade [the
Supreme Court’s] mandate,” which directed that the Fifth DCA reconsider its
opinion on Leppert’s sentence in light of its Williams decision. Id. at 8. The
state contended, “[I]t is not this Court’s or the trial court’s place to depart from
the sentencing framework explicitly ordered by the Florida Supreme Court, or
to declare its remand order unconstitutional.” Id. at 9.
In affirming the postconviction court’s ruling, the Fifth DCA appears to
have accepted the state’s procedural bar argument, citing two district court of
appeal opinions: Williams v. State, 278 So. 3d 262 (Fla. 5th DCA 2019); and
Copeland v. State, 240 So. 3d 58 (Fla. 1st DCA 2018). Ex. VVV. In each opinion,
the respective appellate court found the appellant’s failure to challenge the
constitutionality of the juvenile sentencing statutes in the Florida Supreme
Court meant that neither the district court of appeal nor the trial court could
deviate from or exceed the bounds of the Supreme Court’s instruction. See
24

Copeland, 240 So. 3d at 60; Williams, 278 So. 3d at 267. Indeed, in Copeland,
the First DCA rejected the appellant’s argument that section 921.1402(2)(a)
was unconstitutional because “the Florida Supreme Court issued explicit
instructions to the trial court that it resentence [the appellant] ‘in conformance
with the framework established in . . . sections 775.082, 921.1401, and
921.1402 of the Florida Statutes.’” 240 So. 3d at 60. The court reasoned as
follows:
If [the appellant] had a constitutional problem with
being resentenced under this framework with its
sentence-review prohibition, he should have argued
that point to the Florida Supreme Court before it
remanded his case. Now, on remand, it is hardly this
court’s or the trial court’s place to depart from the
sentencing framework explicitly ordered by the
Florida Supreme Court, or to declare its remand order
unconstitutional.
Id. And, in Williams, relying on the reasoning in Copeland, the Fifth DCA
“declined to pass on the constitutionality of [the juvenile sentencing] statutes”
because the Florida Supreme Court had already mandated the appellant “was
entitled to resentencing under section 775.082(1)(b)2.,” and the appellant did
not raise “constitutional concerns with being resentenced under [the] statute”
in the Florida Supreme Court. 278 So. 3d at 267. As such, the court affirmed
the appellant’s sentences because the appellant “[was] essentially requesting

25

that the [DCA] determine the Florida Supreme Court’s earlier remand order
to be unconstitutional, which [the DCA had] no authority to do.” Id. at 268.
Here, in affirming the trial court’s order, the Fifth DCA relied upon a
procedural bar that was firmly established and regularly followed: that lower
courts “lack authority to deviate from an appellate court’s mandate.” See
Copeland, 240 So. 3d at 60; Williams, 278 So. 3d at 268 (both citing Blackhawk
Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So. 2d 825, 827 (Fla.
1975)). Because the Fifth DCA affirmed the trial court’s order on a procedural
bar that was firmly established and regularly followed, Ground One is
unexhausted and procedurally defaulted. Leppert has failed to demonstrate
either cause or prejudice to excuse her failure to exhaust and also has failed to
demonstrate that a fundamental miscarriage of justice has occurred.
However, assuming arguendo Leppert properly exhausted this claim, it
is without merit for the reasons stated by the trial court and in the state’s
answer brief on appeal in Fifth DCA case number 5D19-0274. In denying
Leppert’s motion challenging the constitutionality of the juvenile sentencing
scheme under which she was resentenced, the trial court determined the
relevant statutory provisions comply with the Supreme Court’s dictates. Ex.
QQQ at 2. The court concluded in pertinent part:
After review, the Court agrees that neither
Graham [n]or Miller requires review hearings after 15,
26

20, or 25 years. They only require the State to afford
juveniles some meaningful opportunity to obtain
release based on demonstrated maturity and
rehabilitation. Graham, 560 U.S. [at 75]. They also do
not require that States afford opportunities for release
at the same time for different crimes. Based on
Defendant’s current sentence, she will be eligible for a
review hearing on her First Degree Murder conviction
at 31 years of age and for her Burglary and Robbery
convictions at 36 years of age. Defendant will be
afforded a meaningful opportunity during her lifetime
for an early release, which satisfies the Eighth
Amendment. To the extent that the juvenile
resentencing statute provides for different periods of
time for review hearings, those are rationally related
to the varying levels of crimes for which a defendant
has been convicted.
Id.
In its answer brief on appeal, the state argued in pertinent part as
follows:
As recognized in Graham v. Florida, 560 U.S. 48
(2010), and Miller v. Alabama, 567 U.S. 460 (2012), the
prohibition against cruel and unusual punishment
should be graduated and proportioned to the offender
and the offense, and in the context of juvenile
offenders, that means that juvenile offenders must be
provided a meaningful opportunity for review and
courts must consider mitigating evidence of youth and
immaturity when sentencing juvenile offenders. The
statutes Appellant is challenging do just that.
Despite the confusion in the motion, juvenile
non-homicide offenders are eligible for judicial review
after 20 years, and for a second opportunity ten years
after that if they are denied release the first time
around. See § 921.1402(2)(d), Fla. Stat. Juvenile
27

homicide offenders who did not actually kill, intend to
kill, or attempt to kill the murder victim are eligible
for a single opportunity for judicial review after 15
years. See § 921.1402(2)(c), Fla. Stat. Finally, juvenile
homicide offenders who actually killed, intended to
kill, or attempted to kill the murder victim are eligible
for a single chance at judicial review after 25 years.
See § 921.1402(2)(b), Fla. Stat. Upon consideration of
the “gravity of the offense and the harshness of the
penalty,” Wiley v. State, 125 So. 3d 235, 240 (Fla. 4th
DCA 2013) (quoting Andrews v. State, 82 So. 3d 979,
984 (Fla. 1st DCA 2011)), the trial court correctly
denied the motion as the judicial review provisions are
not grossly disproportionate to the crime or so
excessive as to shock the judicial conscience. Cf.
Booker v. State, 514 So. 2d 1079, 1085 (Fla. 1987)
(explaining that it would be an abuse of discretion to
impose an upward departure sentence under the 1987
sentencing guidelines if the sentence was “so excessive
as to shock the judicial conscience”). See also
Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016)
(“A State may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole,
rather than by resentencing them. Allowing those
offenders to be considered for parole ensures that
juveniles whose crimes reflected only transient
immaturity—and who have since matured—will not
be forced to serve a disproportionate sentence in
violation of the Eighth Amendment.”); Landrum v.
State, 192 So. 3d 459, 460-61 (Fla. 2016) (Landrum’s
non-mandatory life sentence without the possibility of
parole reversed and remanded for resentencing under
the 2014 juvenile sentencing legislation where
supreme court explained “that Landrum’s sentence is
unconstitutional is also compelled by the ‘precept of
justice that punishment for crime should be graduated
and proportioned to [the] offense.’ Upholding
Landrum’s sentence would violate this precept, as a
juvenile convicted of the lesser offense of second28

degree murder would receive a harsher sentence than
a juvenile convicted of first-degree murder.”).
Ex. TTT at 11-13. For the reasons stated, relief on the claim in Ground One is
due to be denied.
B. Ground Two
As Ground Two, Leppert alleges her 50-year sentences for the
nonhomicide convictions are unconstitutional under Graham as de facto life
sentences given her life expectancy and “taking into account the harshness of
prison life.” Petition at 7; Pet. Memo. at 5-9; Reply at 7. Leppert raised this
claim on appeal after she was resentenced in 2016. Ex. AAA; Ex. CCC; Ex.
DDD. In its answer brief on appeal, the state argued Leppert’s sentences were
constitutional under Graham in that they complied with Florida’s juvenile
sentencing scheme. Ex. EEE at 24-25. The state explained:
Here, of course, Appellant has been resentenced
pursuant to the new juvenile sentencing legislation.
Counts II and III [burglary and robbery], both first
degree felonies punishable by life, qualify as
convictions for “an offense that is not included in s.
782.04 but that is an offense that is a life felony or by
a term of years not exceeding life imprisonment[.]” §
775.082(3)(c). Under that provision, a juvenile who is
sentenced upon a conviction for a first degree felony
punishable by life and is sentenced to a term of more
than 20 years is entitled to a review in 20 years in
accordance with section 921.1402(2)(d). See §
775.082(3)(c), Fla. Stat. (2014). And, under section
921.1402(2)(d), Florida Statutes, (2014), a juvenile
whose sentence is not modified at the initial review
29

hearing is eligible for a second review hearing 10 years
after the first. Thus, Appellant will get a review of all
three sentences (not just counts II and III) where she
will have a meaningful opportunity to demonstrate
maturity and rehabilitation. As the Supreme Court
explained in Graham, 130 S. Ct. at 2034, “a State need
not guarantee eventual freedom” for a juvenile, so long
as it provides a “meaningful opportunity to
demonstrate
maturity
and
rehabilitation[;]”
Appellant’s sentences in counts II and III imposed
under the new legislation are constitutional sentences.
See Peterson [v. State, 193 So. 3d 1034 (Fla. 5th DCA
2016)], supra. Appellant is entitled to no relief.
Id. at 25-26.
The Fifth DCA per curiam affirmed Leppert’s 50-year sentences without
a written opinion. Ex. HHH at 2. To the extent the Fifth DCA decided the claim
on the merits, 17 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, Leppert
is not entitled to relief on the claim in Ground Two.

Throughout this Order, 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, 584 U.S. at 125.
17

30

Even if the state court’s adjudication of the claim was not entitled to
deference, Leppert’s claim is without merit. Leppert suggests her 50-year
sentences are unconstitutional under Graham. See Pet. Memo. at 8-9. In
Graham, the Supreme Court held a life without parole sentence for a
nonhomicide conviction is unconstitutional because it deprives the offender of
a future “chance to demonstrate growth and maturity.” 560 U.S. at 73, 75. But
the Court did not hold a life sentence or a de facto life sentence on a
nonhomicide conviction is categorically barred. Id. Rather, such a sentence is
constitutional so long as the defendant is afforded “some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.” See id. at 75. Indeed, the Court emphasized that “the Eighth
Amendment . . . does not require [a] [s]tate to release [a juvenile] offender
during [her] natural life,” nor is a state “required to guarantee eventual
freedom to a juvenile offender convicted of a nonhomicide crime.” Id. The Court
left it to the individual states “to explore the means and mechanisms for
compliance” with its holding. Id.
Florida’s mechanism for complying with Graham’s holding is set forth in
the juvenile sentencing scheme under which Leppert was resentenced. See
Horsley, 160 So. 3d at 398 (explaining the Florida Legislature, in enacting the
juvenile sentencing scheme, was responding directly to the Supreme Court’s
31

recognition that “youth matters in determining the appropriateness of a
lifetime of incarceration without the possibility of parole,” as acknowledged
first in Graham and later in Miller). In 2016, the resentencing court applied
Florida Statutes section 921.1401 by holding an individualized sentencing
hearing to determine whether a sentence of life in prison or a term of years
equal to life imprisonment was an appropriate sentence for Leppert, an
offender who was only 15 years old when she committed the crimes. Ex. ZZ at
4, 9-10, 12. The court made findings relevant to Leppert’s age and the
attendant circumstances in accordance with section 921.1401(2)(a)-(j) after
hearing relevant evidence. Id. at 13-14. See also Ex. AAA. That evidence
included testimony from Dr. Stephen Bloomfield, a licensed psychologist, who
testified that in 2008, the Centers for Disease Control predicted a 66.5-year life
expectancy for a 15-year-old Caucasian female, and he did not predict Leppert
would live beyond that age if imprisoned the entire time. Ex. HH at 34, 65-66.
In short, Leppert’s sentences on the burglary and robbery convictions do
not violate the Eighth Amendment as interpreted in Graham. She was
sentenced under Florida’s juvenile sentencing scheme, and her sentences will
be reviewed at the statutorily prescribed times. As Graham requires, the state
sentenced Leppert in a manner that affords her a “meaningful opportunity to
obtain [early] release based on demonstrated maturity and rehabilitation.” See
32

560 U.S. at 75. Accordingly, she is not entitled to relief on the claim in Ground
Two.
C. Ground Three
As Ground Three, Leppert alleges her pretrial counsel deprived her of
due process under the Fifth Amendment and the effective assistance of counsel
under the Sixth Amendment by permitting authorities to question her when
she was detained in Texas without a parent or an attorney present even though
she was only 15 years old. Petition at 8; Pet. Memo. at 9. Leppert raised this
claim in her counseled Rule 3.850 Motion. Ex. FF at 4. The postconviction court
held an evidentiary hearing at which Leppert’s pretrial counsel, Teresa Sopp,
testified, as did Leppert’s mother. Ex. HH at 3.
In denying Leppert relief on this claim, the postconviction court
accurately set forth the Strickland standard and found as follows:
Collateral Counsel for Defendant argues that
objectively, it was clear that Defendant would be a
suspect in the investigation of the victim’s death
because she was found in possession of the victim’s
vehicle; and subjectively, Sopp should have
understood that detectives were holding Defendant
there (in El Paso) or that she was in custody there on
probable cause for a criminal offense. Collateral
Counsel for Defendant argues that Sopp made no
effort to travel to Texas to accompany Defendant
during the interview, did not advise Defendant’s
Mother to retain local Counsel in El Paso, and did not
seek to have a Public Defender appointed in Texas.
Further [sic] Sopp made no effort to engage in any plea
33

bargain negotiations with prosecutors in exchange for
Sopp granting investigators access to Defendant.
However, the testimony showed that after
Defendant’s mother retained Teresa Sopp in Florida,
Sopp spoke to Defendant before allowing her to speak
to detectives. Defendant told Ms. Sopp that she was
unknowing of the murder, that Toby Lowry had picked
her up in the victim’s truck, and that she did not know
where he had gotten it. Based on that version of the
facts, which the Defendant later admitted was a lie,
Sopp gave consent for an interview. Sopp testified that
she signed an authorization form provided by the
juvenile authorities in El Paso, consenting to an
interview by a Putnam County Detective regarding
“only her [Morgan’s] role as a victim of crime. No
statements will be used in any prosecution against
Morgan.” Unknown to Sopp, Defendant twice waived
Sopp’s further involvement after being advised of her
Miranda
[sic]
rights.
Defendant
specifically
acknowledged to the Putnam County Detective that
she had spoken with Ms. Sopp who “let me know not
to tell you anything.” As the State points out: to waive
the presence and advice of an attorney is the right of
any criminal defendant. An attorney cannot exercise
those particular rights for a client. The waiver was
found to be valid by the trial judge after testimony and
arguments on Defendant’s Motions to Suppress and
Motion to Enforce Immunity Agreement.
Under the circumstances, and noting Sopp’s
brief involvement, neither prong of Strickland has
been met.
Ex. II at 2-4 (internal record citations omitted). The Fifth DCA per curiam
affirmed the denial of relief without a written opinion. Ex. NN.

34

To the extent the Fifth DCA decided the claim on the merits, 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, Leppert is not entitled to relief
on the basis of this ineffectiveness claim.
Even if the appellate court’s adjudication of the claim was not entitled to
deference, Leppert’s ineffectiveness claim fails. At the evidentiary hearing on
Leppert’s postconviction motions, Ms. Sopp explained that Leppert’s mother,
Geraldine (Gerry) Leppert, contacted her on Sunday May 4, 2008, explaining
that her daughter had been reported missing and was found in Texas but was
being held there by authorities. Ex. HH at 116-18. According to Ms. Sopp,
Gerry Leppert wanted Ms. Sopp’s assistance “to find out what the status was
and why [authorities] were holding her daughter.” Id. at 117. Ms. Sopp
contacted local authorities and learned that Leppert “was taken into custody
with a person who was suspected of a homicide . . . .” Id. She refused to permit

35

authorities to speak with Leppert until she herself had spoken with her client.
Id. at 126.
Ms. Sopp called the juvenile detention center where Leppert was being
held and eventually was able to speak with Leppert, who denied any
involvement in the homicide, saying she had not been with Lowry at the time.
Id. at 117. Thereafter, believing Leppert was a “missing person or a victim or
a witness,” not a suspect in a homicide investigation, Ms. Sopp permitted
authorities to speak with Leppert. Id. at 117-18. 18 However, before granting
detectives access to Leppert, staff at the detention center asked Ms. Sopp to
execute a “Legal Consent Form,” which she did. Id. at 118. See also Ex. G. On
the form, Ms. Sopp wrote that she was giving consent for law enforcement
officials to “meet with [her] client, Morgan Lep[p]ert . . . only [in] her role as a
victim of [a] crime [and that] [n]o statements [made by Leppert would] be used
in any prosecution against [her].” Ex. G. See also Ex. HH at 119.

An investigator with the Putnam County State Attorney’s Office had already
interviewed Leppert once, on May 3, 2008, the day Leppert initially was detained and
before Ms. Sopp was retained. Ex. K at 537-38. During that first interview, Leppert
told the investigator essentially what she told Ms. Sopp—that Lowry picked her up
in the victim’s truck when what would have been after the murder, and she did not
know where Lowry got the truck. Id. at 561, 567. The investigator who interviewed
Leppert on May 3, 2008, believed she was a runaway, not a murder suspect. Id. at
537. That same investigator participated in the May 5, 2008 interview, conducted
primarily by a detective with the Putnam County Sheriff’s Office, and observed by a
detective with the El Paso Police Department. Id. at 515-16, 666-67, 678.
18

36

Ms. Sopp testified that she believed the detectives who interviewed
Leppert were apprised of the consent form, which she faxed to the detention
center, because it was her understanding the detectives were “inside the
detention center” waiting for clearance from her to gain access to Leppert. Ex.
HH at 120. Ms. Sopp conceded that, in hindsight, she “probably should have
waited and found out that there was a public defender . . . already appointed
[for Leppert in Texas],” but she believed she had reached a verbal “immunity
agreement” with the Putnam County State Attorney’s Office that Leppert was
to be questioned solely as a victim or witness, not a suspect. Id. at 120-21,
128. 19
Although Ms. Sopp expressed at the evidentiary hearing that perhaps,
in retrospect, she should have made a different decision in the moment, the
reasonableness of her advice and decision-making must be assessed without
“the distorting effects of hindsight.” See Strickland, 466 U.S. at 689. Instead,
they must be assessed from her “perspective at the time.” Id. As Strickland
instructs, in assessing whether an attorney’s performance was reasonable, a
court must consider all the circumstances, including the information the
attorney received from the client. Id. at 688-90.

The trial court denied Leppert’s pretrial motions to suppress and to enforce
an immunity agreement. Ex. J.
19

37

The reasonableness of counsel’s actions may be
determined or substantially influenced by the
defendant’s own statements or actions. Counsel’s
actions are usually based, quite properly, on informed
strategic choices made by the defendant and on
information supplied by the defendant. In particular,
what investigation decisions are reasonable depends
critically on such information.
Id. at 691. See also Newland v. Hall, 527 F.3d 1162, 1202 (11th Cir. 2008) (“In
evaluating the reasonableness of a defense attorney’s [strategy], we weigh
heavily the information provided by the defendant.”).
Leppert told Ms. Sopp information that led Ms. Sopp to believe Leppert
had nothing to do with the murder but rather was a witness or a victim of
Lowry’s. Sopp made decisions based on that important information. Given
what Ms. Sopp was told by her client, by Gerry Leppert, and by
prosecuting/investigating officials, she cannot be said to have been deficient
under the Strickland standard for permitting Leppert to be interviewed
without an attorney or a parent present on May 5, 2008. Accordingly, Leppert
is not entitled to relief on the claim in Ground Three.
D. Ground Four
As Ground Four, Leppert alleges trial counsel was ineffective when he
failed to introduce evidence supporting her sole defense theory: infancy.
Petition at 10; Pet. Memo. at 16. According to Leppert, both Dr. Bloomfield and
Leppert’s mother “would have testified [to] her infancy,” but counsel chose not
38

to call them at trial, which resulted in the trial court denying counsel’s request
for a special jury instruction proposed as follows in pertinent part:
[I]f you determine that the defendant because of her
age or maturity lacked the mental ability to form the
specific intent to commit [the] crimes [with which she
is charged], you must find the defendant not guilty of
any offense containing the specific intent element.
Pet. Memo. at 16-18 (capitalization omitted). See also Ex. K at 842. Leppert
raised this claim in her counseled Rule 3.850 Motion. Ex. FF at 9. In denying
relief on the claim, the postconviction court found neither prong of Strickland
established:
At the [evidentiary] hearing, Trial Counsel
testified that he consulted with Dr. Bloomfield on the
infancy matter about a month before trial and made
the determination that Dr. Bloomfield’s testimony
simply would not be helpful. Trial Counsel elicited all
available testimony from other sources throughout the
trial in an attempt to get that instruction, to no avail.
Trial Counsel was able to emphasize to the jury
Defendant’s lack of maturity, through the cross
examination of witnesses and by playing at least two
hours of videotapes of Defendant. The Court finds it
unlikely that a jury instruction on infancy would have
altered the outcome of the trial. A review of the record
shows that neither prong of Strickland has been met
here.
Ex. II at 4. The Fifth DCA per curiam affirmed the denial of relief without a
written opinion. Ex. NN.

39

To the extent the Fifth DCA decided the claim on the merits, 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, Leppert is not entitled to relief
on the basis of this ineffectiveness claim.
Even if the appellate court’s adjudication of the claim was not entitled to
deference, Leppert’s ineffectiveness claim is without merit. At the evidentiary
hearing on Leppert’s postconviction motions, her trial counsel, Christopher
Smith, testified that he arranged for Dr. Bloomfield to evaluate Leppert before
trial. Ex. HH at 139. According to Mr. Smith, he himself perceived that
Leppert’s recorded interviews showed she “was not sophisticated and old
enough to appreciate what was going on.” Id. In his mind, he explained,
Leppert “was not as sophisticated as most 15 years olds [in that she] was very
emotionally and physically immature.” Id. at 140. However, Mr. Smith
ultimately decided not to call Dr. Bloomfield as a witness, concluding after
speaking with the doctor that his expert testimony would not be helpful. Id. at
40

140-42. Mr. Smith also decided not to call Gerry Leppert as a witness because
he “didn’t want to put her through it.” Id. at 142.
Mr. Smith’s informed decisions on matters of trial strategy, including
whether to call particular witnesses, are entitled to deference. See Strickland,
466 U.S. at 690 (“[A] court should recognize that counsel is strongly presumed
to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”). Even if a different trial
attorney would have made different decisions, considering the record, the
Court cannot conclude that Mr. Smith’s performance “fell below an objective
standard of reasonableness.” Id. at 688, 690.
Assuming arguendo that Mr. Smith was deficient for failing to introduce
evidence supporting the infancy instruction, any such deficiency did not
prejudice Leppert’s defense. Neither Gerry Leppert nor Dr. Bloomfield would
have testified that Leppert “lacked the mental ability to form the specific intent
to commit [the] crimes [charged]” simply because of her age. See Ex. K at 842.
According to the testimony offered at Leppert’s postconviction hearing, Gerry
Leppert would have testified that her daughter was a “social butterfly” who
had a learning disability and was “very immature,” lacking in “common sense.”

41

Ex. HH at 17, 21. 20 However, Gerry Leppert also said that, with her
permission, her daughter started taking birth control at age 13 and had a livein 17-year-old boyfriend when she was only 14 years old. Id. at 16-18. 21 Gerry
Leppert, as a lay witness, would not have been able to tell the jury that Leppert
was so immature that she lacked the mental ability to form intent under the
law. See id.
Dr. Bloomfield also could not have offered an expert opinion along those
lines. Dr. Bloomfield evaluated Leppert before her trial, in 2008 and 2009. Id.
at 39. 22 At that time, according to Dr. Bloomfield, Leppert “obviously . . .
presented as a child”: she was immature, dependent, submissive, suggestible,
and unsophisticated. Id. at 39, 46. Dr. Bloomfield categorized Leppert as “an
immature conformist,” meaning “she’s ripe to conform to antisocial behaviors.”
Id. at 78. But he did not find her intellectually disabled, and did not conclude,

Gerry Leppert said that she pulled Leppert out of public school shortly before
the murder (when she was in ninth grade) but had enrolled her in Florida Virtual
School. Ex. HH at 16, 24.
20

Leppert’s 17-year-old live-in boyfriend was Lowry, who initially lied to both
Leppert and her mother about his age. Id. at 18-19.
21

Dr. Bloomfield first met Leppert on August 11, 2008. Id. at 39. It appears he
met with Leppert more than once to complete his February 3, 2009 report. Id. Dr.
Bloomfield evaluated Leppert again in 2015, when she was about 22 years old. Id. at
49.
22

42

as Mr. Smith had been hoping, that she was not as intellectually or emotionally
sophisticated as most 15-year-olds. Id. at 39, 141.
Dr. Bloomfield explained that a person’s brain does not fully form until
her twenties. Id. at 44-45. As such, “people of [Leppert’s] age are more
impulsive, less likely to weigh consequences and more likely to be
adventuresome and take chances because of a lack of ability to discern . . .
negative and positive consequences.” Id. at 45. He found that true of Leppert,
concluding that, at 15 years old, she was “making bad choices and was acting .
. . impulsively because of her personality structure and because of her brain
development.” Id. at 78.
When asked what his testimony would have been had he been called as
a witness at Leppert’s trial, Dr. Bloomfield responded:
[L]ikely if I would have been called to testify, I would
have spoken about all the issues that I spoke about [at
this hearing] and suggest the Court might consider
that her ability to make those decisions is impaired by
a combination of brain development, early personality
development and the personality that emerges on her
testing, so she’s not fully cap -- she doesn’t have full
capacity to make those kinds of decisions; although,
she is not irrational and she’s bright. So I would have
basically testified similar to how I testified today,
trying to show a picture of this child and her state of
mind and her -- the way her personality functions and
way she functions and how that might be interpreted
while at the same time saying that she is rational,
lucid, coherent and not impaired cognitively.
43

Id. at 48-49.
Given both Gerry Leppert and Dr. Bloomfield essentially would have
testified that Leppert was an intellectually and emotionally average (if on the
low end of average) 15-year-old with respect to decision-making and maturity,
it is unlikely the trial judge would have granted a request for the infancy
instruction had Mr. Smith called them to testify. The trial judge noted at the
charge conference that there was no legal authority supporting the proposition
that a 15-year-old, based purely on age, “suffers from infancy” such that a 15year-old cannot form intent to commit a crime: “I don’t think we could . . . say
that the defendant’s age is such a commonly understood age or condition that
automatically renders her or could possibly render her incapable of forming
intent.” Ex. K at 843. Indeed, the judge noted that if such a proposition were
true, then a 15-year-old could never be tried as an adult. Id. Additionally, the
judge expressed that the standard jury instructions sufficiently apprise the
jury of its obligation to determine whether a defendant had the requisite
intent, and he was “reluctant to deviate from the standard jury instruction[s].”
Id. at 844-45.
Moreover, had Mr. Smith called Gerry Leppert and Dr. Bloomfield as
witnesses and had the trial court permitted the infancy instruction, the
outcome in all probability would have been the same. Contrary to Leppert’s
44

contention, the jury indeed was “[]able to consider [her] immaturity and
[alleged] lack of culpability.” See Pet. Memo. at 22. Although the trial judge
denied Mr. Smith’s request for the special infancy instruction, the judge
permitted Mr. Smith to argue in closing that Leppert was immature and
unsophisticated and, therefore, unable to form the requisite intent. Ex. K at
845-47.
In his closing argument, Mr. Smith urged the jurors to find that Leppert,
an immature and unsophisticated 15-year-old, merely followed the orders of
22-year-old Lowry, with whom she was in love and who controlled her every
move. Id. at 938-39, 941-43, 945, 951-54, 957-58. He argued that Leppert, who
was isolated and controlled by Lowry, was too immature and unsophisticated
to have formed the conscious intent to kill a man. Id. at 935-36, 957-58. In
finding Leppert guilty of first-degree murder, the jury must have disagreed.
Therefore, no reasonable probability exists that the outcome of the case would
have been different had Mr. Smith called the witnesses and had the trial court
given the infancy instruction. See Richter, 562 U.S. at 112 (“The likelihood of
a different result must be substantial, not just conceivable.”). For the reasons
stated, relief on the claim in Ground Four is due to be denied.

45

E. Ground Five
As Ground Five, Leppert alleges her trial counsel was ineffective for
failing to request the independent act jury instruction. Petition at 12; Pet.
Memo. at 23. Leppert argues the evidence supported such a jury instruction
because, in her recorded statement, she told authorities that her intention was
to participate only in stealing Stewart’s truck and money, and she refused to
place the plastic bag over Stewart’s head when Lowry told her to do so. Pet.
Memo. at 23-24. In other words, she contends, the evidence showed that Lowry
“departed from the original plan.” Id. at 25.
Leppert raised this claim in her counseled Rule 3.850 Motion. Ex. FF at
14. In denying the claim, the postconviction court found as follows:
Trial Counsel testified at hearing [sic] that the
independent act instruction has never worked and
based upon his experience, he made the apparent
strategic decision not to request it.
Under the circumstances, after a review of the
record, the Court agrees that this was a proper
strategy. Defendant actively participated in torturing
and killing the victim. She stabbed him with a knife
and hit him with a metal pipe. While the Medical
Examiner testified that asphyxiation was the
immediate cause of death, it was Defendant who
searched for and found the plastic bag which she then
handed to Toby Lowry to suffocate the victim.
Defendant acted in concert with Toby Lowry to cause
the victim’s death. Even in her interview with the
Putnam County Detective that was published to the
46

jury, she explained “the reason why we killed him ...”
Neither prong of Strickland has been met.
Ex. II at 4-5 (internal record citations omitted).
To the extent the Fifth DCA decided the claim on the merits, 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, Leppert is not entitled to relief
on the basis of this ineffectiveness claim.
Even if the appellate court’s adjudication of the claim was not entitled to
deference, Leppert’s ineffectiveness claim fails. Based on the evidence, Mr.
Smith was not deficient for not pursuing an independent act defense or request
that instruction. Regardless, Leppert has not demonstrated “the result of the
proceeding would have been different” had he done so. See Richter, 562 U.S. at
104.
The “independent act” doctrine arises when one
cofelon, who previously participated in a common plan,
does not participate in acts committed by his cofelon,
“which fall outside of, and are foreign to, the common
design of the original collaboration.” Dell v. State, 661
47

So. 2d 1305, 1306 (Fla. 3d DCA 1995) (quoting Ward
v. State, 568 So. 2d 452 (Fla. 3d DCA 1990)). Under
these limited circumstances, a defendant whose
cofelon exceeds the scope of the original plan is
exonerated from any punishment imposed as a result
of the independent act. Id. See also Parker v. State,
458 So. 2d 750 (Fla. 1984). Where, however, the
defendant was a willing participant in the underlying
felony and the murder resulted from forces which they
set in motion, no independent act instruction is
appropriate. See Lovette v. State, 636 So. 2d 1304 (Fla.
1994); Perez v. State, 711 So. 2d 1215 (Fla. 3d DCA),
review denied, 728 So. 2d 204 (Fla. 1998), cert. denied,
526 U.S. 1120, 119 S. Ct. 1772, 143 L. Ed. 2d 801
(1999); State v. Amaro, 436 So. 2d 1056 (Fla. 2d DCA
1983).
Ray v. State, 755 So. 2d 604, 609 (Fla. 2000) (citations cleaned up).
The jury heard from Leppert’s own mouth (through her second recorded
interview) that she actively participated in the events leading to Stewart’s
death, even if the initial plan was to commit only burglary and robbery. This
evidence contradicts Leppert’s claim in her Petition Memorandum that, when
she refused Lowry’s instruction to place the bag over Stewart’s head, she
“refused to participate any further and withdrew from the offense.” See Pet.
Memo. at 23-24. On the contrary, Leppert admitted that she willfully
participated in all events from start to finish: she went to Stewart’s house
ahead of time under the ruse of needing to call her mother but really to “scope
everything out”; she “poked” Stewart with a knife and hit him with aluminum
poles which she had picked up on the side of the road and brought to the house
48

with her; she provided Lowry the plastic bag he used to suffocate Stewart and
remained present while Lowry did so, knowing Stewart was still alive at that
point because she could hear him breathing; she waited for Lowry while he
showered the blood off his body afterward; she closed the blinds and locked the
doors when they left Stewart’s house; and she fled with Lowry in Stewart’s
truck. Ex. K at 722-25, 730-31, 737, 740-42.
Leppert readily acknowledged that she could have left Lowry when it
became clear that Lowry was intent on killing Stewart, but instead she “helped
kill [Stewart]” because she “love[d] [Lowry] so much” and she did not want to
leave him. Id. at 738-39, 744, 748-49, 749. On that point, the jury heard the
following exchange between Leppert and the detective:
[Q] Morgan, would we agree that at any point
in time you wanted to you could have turned away and
walked out of the house if you wanted to?
[A]

If I wanted to, I could.

[Q]

Why didn’t you?

[A]

Because I wasn’t going to leave [Lowry].

[Q] You would commit murder because you
didn’t want to leave [Lowry]?
[A] I guess so, and I wanted to get out of
Florida . . . .
Id. at 744. Leppert also made other statements during this interview—which
the jury heard—suggesting her willing participation in all acts, including the
one that led to Stewart’s death: she said Stewart got what he “deserved”
49

because she thought he was “a pervert”; and she told the detective, “[T]he
reason why we killed [Stewart was] because [Lowry] didn’t want [Stewart] . . .
to call . . . the cops . . . to report the truck stolen and we’d get caught . . . .” Id.
at 726, 730, 745 (emphasis added). According to Leppert herself, the murder
“lessened the immediate detection of the [underlying felonies] and
apprehension of [Leppert and Lowry] and, thus, furthered [those crimes].” See
Lovette v. State, 636 So. 2d 1304, 1307 (Fla. 1994).
Leppert’s trial counsel cannot have been deficient when he failed to
request a jury instruction or pursue a particular defense flatly contradicted by
the evidence. Murder may not have been part of Lowry’s and Leppert’s initial
plan, but the death of a robbery or burglary victim certainly is a foreseeable
consequence of those crimes. Indeed, Leppert’s jury was instructed on both
felony murder and the “principal” theory of culpability:
To prove the crime of first-degree felony murder,
the State must prove the following three elements
beyond a reasonable doubt:
1. James Thomas Stewart is dead.
2. a. The death occurred as a consequence of
and while Morgan Amanda Leppert was engaged in
the commission of burglary or robbery, or
b. The death occurred as a consequence of
and while Morgan Amanda Leppert was attempting to
commit a burglary or robbery.
3. James Stewart was killed by a person other
than Morgan Amanda Leppert; but both Morgan
50

Amanda Leppert and the person who killed James
Thomas Stewart were principals in the commission of
burglary or robbery.
In order to convict of first-degree felony murder,
it is not necessary for the State to prove that the
defendant had a premeditated design or intent to kill.
....
If the defendant helped another person or
persons commit or attempt to commit a crime, the
defendant is a principal and must be treated as if she
had done all the things the other person or persons did
if:
1. The defendant had a conscious intent that the
criminal act be done, and
2. The defendant did some act or said some word
which was intended to and which did incite, cause,
encourage, assist, or advise the other person or
persons to actually commit or attempt to commit the
crime.
Ex. K at 883-84, 887, 898-99, 902-03. See also Lovette, 636 So. 2d at 1306 (“As
perpetrators of an underlying felony, [cofelons] are principals in any homicide
committed to further or prosecute the initial common criminal design.”); Ray,
755 So. 2d at 609 (finding the independent act instruction was not warranted
because the evidence showed the cofelons were joint “participants in the
robbery and the murder resulted from forces they set in motion”).
Leppert and Lowry jointly participated in “the initial common criminal
design” to commit burglary and robbery, and through “forces they set in
motion,” Stewart was killed. See Lovette, 636 So. 2d at 1306; Ray, 755 So. 2d
51

at 609. As such, the independent act instruction was not warranted and, if read
to the jury, would not have altered the outcome. For these reasons, Leppert is
not entitled to federal habeas relief on the claim in Ground Five.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Leppert 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, Leppert “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
52

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
consideration of the record as a whole, the Court will deny a certificate of
appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

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

WITH PREJUDICE.
2.

The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.
3.

If Leppert appeals the denial of the 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.

53

4.

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

any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 27th day of
March, 2024.

Jax-6
c:
Counsel of Record

54