Rabette v. Secretary, Department of Corrections et al

Filing 14

MEMORANDUM AND ORDER DISMISSING the Petition for Writ of Habeas Corpus (Docket No. 1) WITH PREJUDICE. A Certificate of Appealability will NOT issue. The Clerk shall enter judgment accordingly, terminate all remaining deadlines as moot, and close the file. Signed by Judge Paul A. Magnuson on 11/2/2015. (CLF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

Charles W. Rabette,

Case No. 5:14-cv-101
Petitioner,

v.

MEMORANDUM AND ORDER

Secretary, Department of Corrections, et al.
Respondents.

This matter is before the Court on a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254. For the reasons that follow, the Petition is dismissed with prejudice.
BACKGROUND
In January 2001, a jury in Lake County found Petitioner Charles W. Rabette guilty
of attempted kidnapping while armed and possession of a weapon by a convicted felon.
(See Pet. Ex. 1 (Docket No. 1–1) at 1.) He was sentenced to 30 years in prison as a
prison release reoffender. (Id.) Rabette appealed his convictions, but the Fifth District
Court of Appeal per curiam affirmed his convictions and sentence. See Rabette v. State,
804 So. 2d 1263 (Table) (Fla. Dist. Ct. App. 2002).
This is not Rabette’s first attempt at securing postconviction relief. A summary of
Rabette’s seven previous state postconviction and federal habeas petitions can be found
in the order dismissing his January 27, 2010, federal habeas petition.
Ex. 1 at 2-4.)
1

(See Pet.

For the second time, Rabette now petitions for federal habeas relief under 28
U.S.C. § 2254, conceding that the previous court was “totally justified” in ruling that
Rabette had failed to explain how his alleged mental incompetence prevented him from
seeking timely federal relief. (Pet’r’s Mem. (Docket No. 2) at 3.) Rabette asserts four
grounds for relief 1 and requests (1) that the Court grant equitable tolling and (2) that the
Court issue a stay and abeyance so he can exhaust his state-court remedies and be
examined by court-appointed doctors. (Pet. (Docket No. 1) at 15.)
Respondent argues that Rabette’s equitable tolling claim has already been rejected.
(Ans. (Docket No. 6) at 2.) The State reiterates that Rabette has not demonstrated that he
is entitled to equitable tolling due to his mental incompetence, requesting that the Court
dismiss the Petition with prejudice and grant summary judgment in the State’s favor. (Id.
at 2-3.)
Rabette filed a reply brief, listing ten points to more fully explain the causal
connection between his alleged mental retardation and his failure to file his Petition on
time. (Reply Mem. (Docket No. 7) at 4-5.) He then restates his request for equitable
tolling and for a stay and abeyance but adds an alternative request for relief—that the
Court allow further factfinding and appointment of counsel to develop the record, as was
afforded in Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009). (Id. at 5-7.)

1

Rabette raises the following claims: 1) that the trial court failed to hold a competency hearing, even though it was
aware of Rabette’s mental retardation; 2) ineffective assistance of trial counsel for failure to investigate, depose, and
present for testimony at trial the three doctors who examined Rabette for a guardianship appointment in 1994;
3) that the trial court denied Rabette his state-created right to be examined by a court-appointed expert for capacity
to stand trial; and 4) ineffective assistance of trial counsel for failure to present Rabette’s mental retardation as a
mitigating circumstance. (Pet. at 5, 7, 8, 10; Pet’r’s Mem. at 6-14.)
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DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2241 et seq., a federal court’s “review is greatly circumscribed and is highly
deferential to the state courts.” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002).
Indeed, AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002) (citation omitted). 28 U.S.C. § 2254, which applies to persons in
custody pursuant to a state-court judgment, provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Further, § 2254 states that “a determination of a factual issue made
by a State court shall be presumed to be correct.” Id. § 2254(e)(1). The petitioner must
“rebut[] the presumption of correctness by clear and convincing evidence.” Id.
A.

Dismissal with Prejudice
A claim presented in a second or successive habeas corpus application under

section 2254 that was presented in a prior application shall be dismissed. 28 U.S.C.

3

§ 2244(b)(1). In his previous federal habeas petition, Rabette claimed, as he does here,
that he should be entitled to equitable tolling due to his mental incompetence. That
petition was dismissed with prejudice, foreclosing Rabette’s current Petition.
B.

Equitable Tolling
Even if Rabette’s previous petition had not been dismissed with prejudice, this

Court must first determine whether to grant equitable tolling before reaching the merits of
his claims.
AEDPA states that “[a] 1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”
28 U.S.C. § 2244(d)(1). “The time during which a properly filed application for State
post-conviction . . . review” is “pending shall not be counted” against the 1-year period.
28 U.S.C. § 2244(d)(2). Both Rabette and the State agree that, unless equitably tolled,
the statutory limitations period applicable to Rabette’s Petition has expired.
The Supreme Court has held that Ҥ 2244(d) is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled
to equitable tolling only if he shows (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely
filing. Id. at 649.
Here, Rabette asserts that his mental retardation prevented him from timely filing
for postconviction relief. The Eleventh Circuit has held that an allegation of mental
incompetency, without a showing of a causal connection between the incompetence and
the failure to file a timely application, does not justify equitable tolling. Lawrence v.
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Florida, 421 F.3d 1221, 1226-27 (11th Cir. 2005). In other words, “mental impairment is
not a per se reason to toll a statute of limitations.” Hunter v. Ferrell, 587 F.3d 1304, 1308
(11th Cir. 2009) (citation omitted). “Rather . . . the alleged mental impairment must have
affected the petitioner’s ability to file a timely habeas petition.” Id. Furthermore, “mere
conclusory allegations are not sufficient to raise the issue.” San Martin v. McNeil, 633
F.3d 1257, 1267-68 (11th Cir. 2011).
In Hunter, the Eleventh Circuit determined that the inmate petitioner had
submitted evidence sufficient to raise a factual issue as to whether a causal connection
existed between his mental impairment and his ability to file a timely § 2254 petition.
587 F.3d at 1308. Specifically, the petitioner submitted a medical competency report
showing that:
(1) [he] was diagnosed with chronic, irreversible mental retardation; (2) he
has a full scale IQ score of 59, which is at the low-end of the mildly
retarded range; (3) his IQ is lower than ninety-nine percent of the
population; (4) his mental retardation moderately to severely impairs his
judgment, insight and problem-solving skills, which makes him unable to
function independently; (5) he is illiterate; and (6) he suffers from severe
expressive speech aphasia which makes it difficult for him to communicate
intelligibly. In addition, although [the doctor] ultimately concluded . . . that
Hunter was “borderline” competent to stand trial, [the doctor]’s opinion
hinged on Hunter’s prior experience with the criminal justice process and
the fact that Hunter would have access to an attorney who could adequately
represent and educate him. Indeed, [the doctor] noted that ordinarily
someone with Hunter’s mental condition would not have sufficient
understanding to be considered competent and that he only found Hunter
competent because he was “court wise” and would have access to adequate
legal counsel.
Id. at 1308-09 (emphases in original).

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When filing his habeas petition, “Hunter did not have the benefit of the two factors
that led [the doctor] to conclude Hunter was ‘borderline’ competent to go to trial despite
a significant intellectual handicap that [the doctor] said ‘[n]ormally’ would indicate an
individual does not have sufficient understanding to be competent.”

Id. at 1309.

“Hunter’s well-documented, irreversible mental retardation is severe enough that Hunter,
by himself, is not able to understand and comply with the AEDPA’s filing requirements
and deadlines. Further, [the doctor’s] report suggests Hunter would have a very difficult
time even assisting others in preparing his § 2244 habeas petition.” Id.
Thus, although the evidence did not definitively establish the causal connection,
the evidence was sufficient to preclude summary judgment, and the Eleventh Circuit
remanded the matter to the district court for appointment of counsel, further investigation
and factual development, and proceedings on the merits of the equitable tolling claim. Id.
This Court denied Rabette’s previous federal habeas petition for failure to explain
the causal connection between his alleged mental impairment and his inability to comply
with the habeas filing requirements. Rabette attempts to address the causal connection in
his reply brief here. (Reply Mem. at 4-5.) Of the ten points Rabette lists, few have
evidentiary support other than Rabette’s own assertions. Furthermore, Rabette’s first six
points follow the same order and use the same language as the competency report in
Hunter:
(1) Rabette was diagnosed . . . with chronic irreversible mental
retardation and appointed a guardian for life . . . (2) [he] has a full scale IQ
score of 49 . . . (3) [his] IQ score is lower than 99 percent of the U.S.
population; (4) [his] mental retardation severely impairs his judgment,
insight and problem solving skills which has been shown to make him
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unable to function independently; (5) [he] is totally illiterate . . . (6) [he]
suffers from severe expressive speech aphasia which makes it difficult for
him to communicate his needs intelligibly.
(Id. at 4.) Whether copied from the Hunter report or not, Rabette’s claims are misleading
and lack evidentiary support. According to Rabette’s medical report, his diagnosis is
“Organic Mental Disorder,” not chronic irreversible mental retardation. (Pet. Ex. 2 at 8.)
Rabette provides no evidence to support his assertions that he is “totally illiterate” and
that he suffers from severe expressive speech aphasia.
Rabette further asserts that his past filings have been “totally managed by jail
house lawyers (uncertified), who were basically preying on [Rabette] to gain canteen
items.” (Reply Mem. at 4.) Both this Court and the Eleventh Circuit have rejected this
argument to justify equitable tolling. “Attorney negligence, however gross or egregious,
does not qualify as an ‘extraordinary circumstance’ for the purposes of equitable tolling;
abandonment of the attorney-client relationship . . . is required.” Cadet v. Fla. Dep’t. of
Corr., 742 F.3d 473, 481-82 (11th Cir. 2004). “Likewise, a prison law clerk’s improper
advice does not warrant equitable tolling.” Hunter v. Sec’y, Fla. Dep’t of Corr., No.
5:12-cv-369, 2015 WL 248754, *3 (M.D. Fl. Jan. 20, 2015); see also Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000) (inadequacy of services of inmate law clerk who
assisted drafting the habeas petition did not entitle petitioner to equitable tolling).
Next, Rabette asserts that because his IQ is ten points lower than Hunter’s, he
should receive the same favorable ruling. (Reply Mem. at 5-6.) The Eleventh Circuit
rejected a similar low-IQ argument in Doe v. U.S., holding that the petitioner’s allegation
of a low IQ, without explaining how his low IQ prevented him from exercising due
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diligence, did not satisfy the equitable tolling burden. 469 F.Appx. 798, 800-01 (11th
Cir. 2012). As in Doe, Rabette does not explain how his low IQ prevented him from
filing his habeas petition on time. Furthermore, Rabette provides no evidence to support
his asserted IQ score. Therefore, his argument fails.
Next, Rabette claims that his mental retardation “severely impairs his judgment,
insight and problem solving skills which has been shown to make him unable to function
independently,” borrowing the language from the doctor’s report in Hunter. (Reply
Mem. at 4.) As evidence of his impaired judgment, Rabette includes a copy of his 1994
medical examination, performed to evaluate whether he should be appointed a legal
guardian. (Pet. Ex. 2 at 7-11.) The doctors identified numerous areas in which Rabette
did and did not have the capacity to make an informed decision, concluding that a legal
guardian should be appointed to assist Rabette in the designated areas of incapacity. (Id.)
But nowhere in Rabette’s attached doctor’s report does the quoted Hunter language
appear. (Id.)
Finally, Rabette asserts that he “is totally unable to manage any type of written
legal affairs or understand legal rights and act upon them.” (Reply Mem. at 4.) While
Rabette’s doctor’s report offers some support for this claim, Rabette’s interpretation of
the report is not entirely accurate. Rabette’s doctor’s report indicates that he does not
have the capacity to “make informed decisions regarding his or her right to sue, or assist
in the defense of suits of any nature against him or her.” (Pet. Ex. 2 at 9.) The report
further specifies that Rabette lacks the capacity to initiate, defend, or settle lawsuits. (Id.
at 10-11.) However, the report also indicates that Rabette has the capacity to make
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informed decisions regarding “execution of a will or waiving the provisions of an
existing will,” as well as “admission to a Florida State Hospital or any other public
treatment facility on a voluntary basis under the provisions of applicable state law,”
among others. (Id. at 8-10.) While Rabette’s report identifies areas in which he lacks
capacity, it does not support his contention that he is totally unable to understand his legal
rights and act on them. Despite concluding that his case warrants the same treatment as
given Hunter, Rabette does little work to compare his doctor’s examination with Hunter’s
and instead lifts language from the Hunter examination and uses it as his own.
This Court is sympathetic to the difficulties inmates with cognitive impairments
face in the legal system, but the record indicates that Rabette has successfully filed
numerous pro se state postconviction, state habeas, and federal habeas petitions, among
other correspondence with the courts. See Lake County Court Records for Case No. 352000-CF-115, Docket Nos. 137, 140, 143, 149, 151, 154, 156-57, 160-63, 172, 174, 17678, 185, 187, 190-91, 195, 198, 200-03.

Recently, this Court denied a petitioner’s

equitable tolling claim because, despite the petitioner’s sixth-grade educational level, he
was able to timely file and litigate a state post-conviction action. Hunter, 2015 WL
248754 at *3. Rabette’s current assertion that his mental condition prevents him from
ever understanding the requirements of filing a timely petition is unpersuasive.
It appears that Rabette has attempted, with little evidentiary support, to shoehorn
the facts of his case into the facts in Hunter. In doing so, Rabette does little more than
restate the facts of his mental incapacity and conclude that he can never fully understand
filing requirements. This is insufficient to establish a causal connection and thus warrant
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equitable tolling under Lawrence. Although the State, as in Hunter, has not offered any
evidence in response to Rabette’s claim that he is unable to understand the filing
requirements, the record speaks for itself. Therefore, Rabette’s Petition is untimely.
C.

Exhaustion of Remedies
Even if Rabette’s current Petition were timely, Section 2254 requires a person in

state custody to exhaust his remedies in state court before seeking relief in federal court.
28 U.S.C. § 2254(b)(1)(A); see also Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)
(“A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim
in federal court unless he first properly raised the issue in the state courts.”) (citing
Wainwright v. Sykes, 433 U.S. 72, 87 (1977)). “The exhaustion requirement is satisfied
when the petitioner properly raised the issue in state court, even if the court did not rule
on it.” Martin v. Sec’y, Dep’t of Corr., 262 F. App’x 990, 992 (11th Cir. 2008) (citation
omitted). “The teeth of the exhaustion requirement comes from its handmaiden, the
procedural default doctrine. If the petitioner has failed to exhaust state remedies that are
no longer available, that failure is a procedural default [that] will bar federal habeas
relief.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
The exhaustion requirement requires “a state prisoner to present the state courts
with the same claim he urges upon the federal courts.” Picard v. Connor, 404 U.S. 270,
276 (1971). Thus, “for purposes of exhausting state remedies, a claim for relief in habeas
corpus must include reference to a specific federal constitutional guarantee . . . .” Gray v.
Netherland, 518 U.S. 152, 162-63 (1996). “[T]he same claim must be brought before
both the state and federal courts and presented in such a way ‘that a reasonable reader
10

would understand [the] claim’s particular legal basis and specific factual foundation.’”
Ramos v. Sec’y, Fla. Dep’t of Corr., 441 F. App’x 689, 696 (11th Cir. 2011) (quoting
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005)). To fairly present the
federal issue to the state courts, the habeas petitioner must have cited a federal source of
law in conjunction with his state claim, or cited a case deciding a similar claim on federal
grounds, or labeled his claim as a federal claim. Id. (citing Baldwin v. Reese, 541 U.S.
27, 32 (2004)).
Rabette concedes that he has not exhausted his state-court remedies regarding his
claims. Review of the record indicates that Rabette has previously raised his first claim
in state postconviction and habeas petitions, but not his remaining claims. Accordingly,
Rabette’s second, third, and fourth claims must be dismissed.
D.

Rabette’s Claims
Even if this Court granted Rabette’s request for equitable tolling and he

appropriately exhausted his state-court remedies, Rabette’s claims fail on their merits.
1.

“Mental Retardation” and Denial of a State-Created Right

Rabette’s first and third claims both assert that the trial court failed to follow the
Florida Rules of Criminal Procedure and Florida Statutes regarding mentally retarded
defendants. (Pet. at 4, 8; Pet’r’s Mem. at 6-7, 10-12); see Fla. R. Crim. P. 3.210(b), Fla.
Stat. §§ 916.11(1)(d) 2, 393.063. Rabette claims that the Florida court was aware of his
mental condition but elected not to sua sponte order a pretrial competency examination,

2

The current section, and the section in use at the time of Rabette’s trial, is Fla. Stat § 916.301(2).
11

violating Rabette’s rights. Id. Because these claims are rooted in a mistaken application
of Florida, not federal, law, they are not cognizable under AEDPA.
Rabette’s claims also fail in light of the fact that on May 1, 2000, Rabette’s
attorney moved to appoint a confidential expert for a psychiatric and psychological
examination. See Lake County Court Records for Case No. 35-2000-CF-115, Docket
No. 90. Two days later, the trial court granted the motion and appointed a confidential
expert. Id. at Docket No. 91.
Therefore, Rabette’s first and third claims are meritless and must be denied.
2.

Ineffective Assistance of Counsel

“Ineffective assistance of counsel can be grounds for challenging a conviction if
counsel’s performance was so egregious that it rendered the trial fundamentally unfair.”
Damron v. Florida, No. 8:07-cv-2287, 2009 WL 1514269, at *2 (M.D. Fla. May 29,
2009) (citing Strickland v. Washington, 466 U.S. 668, 701 (1984)). Rabette bears the
burden to prove “that his counsel’s performance was objectively unreasonable by
professional standards and that he was prejudiced as a result of the poor performance.”
Id. (citing Strickland, 466 U.S. at 687-88). To show prejudice, Rabette “must establish a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Woodford v. Visciotti, 537 U.S. 19, 22 (2002)
(quotations omitted).

Moreover, “[t]here is a strong presumption that an attorney’s

conduct fell within the ‘wide range of professional norms,’ and anything that ‘might be
considered sound trial strategy’ will generally not prove counsel ineffective.” Damron,
2009 WL 1514269, at *2 (quoting Strickland, 466 U.S. at 689).
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a.

Failure to Investigate, Prepare, and Call Doctors to Testify

Rabette first claims that his counsel was ineffective by failing to call as witnesses
the three doctors who performed Rabette’s 1994 guardianship examination. Had his
attorney called the three doctors to testify, according to Rabette, “no conviction would
have resulted.” (Pet. at 7.) Rabette asserts that the doctors’ testimony would serve as
evidence that he was incapable of understanding the charges against him. (Pet’r’s Mem.
at 9.)
Rabette’s arguments on this point are less than clear. If Rabette’s argument is that
his mental retardation prevented him from forming the requisite intent to commit the
crime, Florida does not recognize diminished capacity as a defense. See Chestnut v.
State, 538 So. 2d 820 (Fla. 1989) (disallowing diminished capacity as a defense and
holding that evidence of an abnormal mental condition not constituting legal insanity is
inadmissible to prove that a defendant could not have formed the specific intent needed to
be held responsible for committing a crime). If Rabette’s argument is that his mental
retardation prevented him from understanding the charges against him and made him
incapable of standing trial, the 1994 report makes no mention of Rabette’s ability to
understand criminal charges, and testimony from three doctors whose examinations were
done in 1994 would be of little value, if any, to prove Rabette’s capacity to stand trial in
2001.
Additionally, the record indicates that Rabette’s attorney moved for and received
appointment of a confidential expert to perform a psychological examination pursuant to
Fla. R. Crim. P. 3.216(a). The trial court ordered the expert to report his findings “only
13

to the attorney for [Rabette], and all matters related to this expert are deemed to fall under
the lawyer-client privilege.”

Rabette’s attorney was informed by an expert about

Rabette’s present psychological state, making the 1994 doctors’ testimony even less
relevant.
As the doctors’ testimony would likely serve no purpose in Rabette’s trial, it was
reasonable for his attorney not to call them as witnesses. Therefore, Rabette’s first claim
of ineffective assistance fails.
b.

Failure to Use Mental Retardation as a Mitigating Circumstance

Second, Rabette claims that he would have been sentenced to civil commitment
instead of 30 years in prison, had his attorney given notice of intent to present mental
issues before trial. (Pet. at 10.) According to Rabette, because his attorney did not give
notice before trial that he intended to present evidence of Rabette’s mental health, Fla. R.
Crim. P. 3.216(b) prevented the trial court from considering any such evidence at
sentencing.

(Id.)

Specifically, Rabette asserts that the court was prevented from

considering a letter to the court from his step-father that detailed Rabette’s mental history
and included the 1994 examination report. (Pet’r’s Mem. at 12-13.) Rabette cites no
authority for his conclusions about the impact his attorney’s alleged failures would have
had on his sentence.
“The Supreme Court and [the Eleventh Circuit] in a number of cases have held
counsel’s performance to be constitutionally sufficient when no mitigating circumstance
evidence at all was introduced, even though such evidence, including some relating to the
defendant’s mental illness or impairment, was available.” Waters v. Thomas, 46 F.3d
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1506, 1511 (11th Cir. 1995) (citing cases). “[The Eleventh Circuit]’s decisions are
inconsistent with any notion that counsel must present all available mitigating
circumstance evidence, or all available mental illness or impairment evidence, in order to
render effective assistance of counsel at the sentence stage.” Id.; see also Stevens v.
Zant, 968 F.2d 1076, 1082 (11th Cir. 1992) (“Trial counsel’s failure to present mitigating
evidence is not per se ineffective assistance of counsel.”).
Rabette’s claim fails to satisfy either of the Strickland prongs. First, his attorney
moved for and the court appointed a confidential expert pursuant to Fla. R. Crim. P.
3.216(a), not 3.216(b).

Rabette misunderstands the reach of Rule 3.216(b).

Rule

3.216(b) applies only when a criminal defendant intends to present an insanity defense,
and prevents that defendant from presenting any evidence related to establishing that
insanity defense unless proper notice is given. Because Rabette was not relying on an
insanity defense, his attorney did not have to give any notice about presenting mental
health evidence. Thus, Rabette’s attorney’s performance was not deficient.
Second, regardless of any procedural failure on the part of Rabette’s attorney, the
trial judge received and reviewed Rabette’s step-father’s letter before sentencing. The
record indicates that the letter from Rabette’s step-father was sent to the judge and filed
with the court. See Lake County Court Records for Case No. 35-2000-CF-115, Docket
No. 93. At sentencing, the trial judge acknowledged that he had read the letter. Even if
Rabette had shown that his attorney’s performance was deficient in any way, there was
no resulting prejudice.

Therefore, Rabette’s second ineffective assistance claim is

without merit and must be denied.
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E.

Certificate of Appealability
Rabette is required to secure a Certificate of Appealability before appealing the

dismissal of his habeas corpus action. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P.
22(b)(1). This Court cannot grant a Certificate of Appealability unless the prisoner “has
made a substantial showing of the denial of a constitutional right.”

28 U.S.C.

§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The prisoner must
establish that the resolution of his constitutional claims “was debatable among jurists of
reason.” Lott v. Att’y Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010).
Rabette has not demonstrated that his claims are debatable or that they “deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327. The Court will therefore
not grant a Certificate of Appealability on any of Rabette’s claims.

16

CONCLUSION
Rabette’s previous federal petition was dismissed with prejudice on the equitable
tolling issue. Rabette has not established that his mental condition has prevented him
from timely filing his current Petition. Thus, he is not entitled to equitable tolling, and
his Petition is untimely. Furthermore, Rabette concedes that he has not exhausted his
state-court remedies for most of his claims. As such, this Court is without jurisdiction to
consider them. And regardless, Rabette’s asserted violations of Florida law are not
cognizable under AEDPA, and his ineffective assistance claims are meritless.
Accordingly, IT IS HEREBY ORDERED that:
1.

The Petition for Writ of Habeas Corpus (Docket No. 1) is DISMISSED
WITH PREJUDICE;

2.

A Certificate of Appealability will NOT issue; and

3.

The Clerk shall enter judgment accordingly, terminate all remaining
deadlines as moot, and close the file.

Dated: November 2, 2015

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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