Mitchell v. Secretary, Department of Corrections et al

Filing 5

ORDER denying 1 --petition; denying a cetificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to ENTER JUDGMENT against Mitchell and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/20/2014. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEMETRICES MITCHELL,
Petitioner,
v.

CASE NO. 8:13-cv-3051-T-23AEP

SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Mitchell applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1)
and challenges the validity of his state conviction for fraudulent use of personal
identification, for which he is serving three years. In response to an earlier order
(Doc. 4), Mitchell paid the required filing fee. Rule 4, Rules Governing Section 2254
Cases, requires both a preliminary review of the application for the writ of habeas
corpus and a summary dismissal “[i]f it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not entitled to relief in the district
court . . . .”
Based on the facts presented in the application and the attached exhibits,
Mitchell’s application presents no claim reviewable under Section 2254. The
application’s only ground for relief asserts the denial of Mitchell’s Fourth
Amendment rights and challenges the state trial court’s pre-trial denial of Mitchell’s

motion to suppress the fruits of a search. Mitchell cannot pursue a Fourth
Amendment claim in a federal court if he had an opportunity for a full and fair
review in the state court. “[W]e conclude that where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner
may not be granted federal habeas corpus relief on the ground that evidence obtained
in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell,
428 U.S. 465, 494 (1976). For the preclusion under Stone to apply the state court
must issue findings of fact, as Hern v. Florida, 326 Fed. App’x 519, 522 (11th Cir.
2009),* explains:
A state does not afford a defendant a full and fair opportunity to
litigate the validity of a search under the Fourth Amendment
when the state courts fail to make essential findings of fact. In
Tukes v. Dugger, we addressed whether Stone foreclosed review
of the validity of a search when the defendant presented his
argument but the state courts failed to make findings of fact to
resolve that argument. 911 F.2d 508, 513-14 (11th Cir. 1990).
We concluded that the state courts had failed to afford the
defendant a full and fair opportunity to litigate the validity of
the search when they did not make findings of fact about
whether the defendant had invoked his right to counsel or was
in custody when he consented to the search of his home. We
stated, “The trial court’s failure to make explicit findings on
matters essential to the fourth amendment issue, combined with
the fact that the state appellate court issued only a summary
affirmance, precludes a conclusion in this case that the state
provided the meaningful appellate review necessary to erect a
Stone v. Powell bar to our review of the claim.” Id. at 514.

*

“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
-2-

Mitchell attached to his application both a transcript of the evidentiary hearing
on the pre-trial motion to suppress and the state trial court’s order, which denies the
motion to suppress and which contains clear findings of fact. (Doc. 1-3) Mitchell
admits that the state trial court’s ruling was affirmed on appeal.
Mitchell fails to show denial of his opportunity for a full and fair review of this
claim during the state trial and subsequent appellate proceedings. Consequently, the
Fourth Amendment claim is barred from federal review.
Accordingly, the application for the writ of habeas corpus (Doc. 1) is
DENIED. The clerk must enter a judgment against Mitchell and close this case.

DENIAL OF BOTH
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Mitchell is not entitled to a certificate of appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s
denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first
issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” To merit a COA,
Mitchell must show that reasonable jurists would find debatable both (1) the merits of
the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d
926, 935 (11th Cir 2001). Because Mitchell fails to show that reasonable jurists
-3-

would debate the applicability of Stone v. Powell, Mitchell cannot meet Slack’s
prejudice requirement. 529 U.S. at 484. Finally, Mitchell is not entitled to appeal in
forma pauperis because he is not entitled to a COA.
Accordingly, a certificate of appealability is DENIED. Leave to proceed in
forma pauperis on appeal is DENIED. Mitchell must obtain permission from the
circuit court to proceed in forma pauperis.
ORDERED in Tampa, Florida, on March 20, 2014.

-4-