Mackey v. Secretary, Department o Corrections et al
OPINION AND ORDER. Mackey's petition 1 is DENIED. The Clerk is directed to enter judgment against Mackey and to close this case. Mackey is not entitled to a certificate of appealability and is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 9/12/2017. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:14-cv-1274-T-36TBM
Thomas Mackey, a Florida inmate, filed a pro se petition for writ of habeas corpus
under 28 U.S.C. § 2254 (Dkt. 1) challenging his Hillsborough County convictions.
Respondent does not contest the timeliness of the petition in its response. (Dkt. 13.)
Mackey filed an amended reply. (Dkt. 29.) Upon consideration, the petition will be denied.
Mackey was convicted after a 2003 jury trial of robbery with a deadly weapon and
was sentenced to life in prison. (Dkt. 15, Exs. 3-5.) Mackey was sentenced as a habitual
violent felony offender. Mackey v. State, 884 So.2d 118 (Fla. 2d DCA 2004). The state
appellate court affirmed in a written opinion.
Mackey filed a 2005 motion for
postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 15, Ex. 10.)
The state court summarily denied his claims. (Dkt. 15, Exs. 12, 15.) The state appellate
court per curiam affirmed the denial of relief. (Dkt. 15, Ex. 17.)
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Mackey filed motions to correct an illegal sentence in 2008 pursuant to Florida Rule
of Criminal Procedure 3.800(a). (Dkt. 15, Exs. 24-26.) Mackey alleged that the trial court
had actually sentenced him as a violent career criminal,1 but that such a sentence was
illegal because the violent career criminal statute in effect at the time of the offense was
later found unconstitutional. See State v. Thompson, 750 So.2d 643 (Fla. 2000). His
motions were granted in part, and Mackey was resentenced in 2010 to life in prison as a
habitual violent felony offender. (Dkt. 15, Ex. 29, p. 302, Ex. 30, Ex. 34.) The state
appellate court per curiam affirmed the 2010 sentence. (Dkt. 15, Ex. 35.) Mackey’s 2012
Rule 3.850 postconviction motion was denied, and the state appellate court per curiam
affirmed. (Dkt. 15, Exs. 43, 44, 46.)
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this
proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998). Habeas
relief can only be granted if a petitioner is in custody “in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d), which sets forth
a highly deferential standard for federal court review of a state court adjudication, states:
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
The state court agreed that the sentencing court’s remarks indicated an intent to sentence him as
a violent career criminal. (Dkt. 15, Ex. 27, pp. 2-3.)
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(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.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this
Under the “contrary to” clause, a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that reached by this Court
on a question of law or if the state court decides a case differently than this
Court has on a set of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal habeas court may grant the writ
if the state court identifies the correct governing legal principle from this
Court’s decisions but unreasonably applies that principle to the facts of the
“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable . . . an unreasonable application is different from
an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state court's ruling
on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
The state appellate court affirmed the denial of postconviction relief without
discussion. The court’s decision warrants deference under § 2254(d)(1) because “the
summary nature of a state court's decision does not lessen the deference that it is due.”
Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99
(“When a federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”).
INEFFECTIVE ASSISTANCE OF COUNSEL
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Claims of ineffective assistance of counsel are analyzed under the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient
performance by counsel and resulting prejudice.
Id. at 687.
To show deficient
performance, a petitioner must demonstrate that “counsel’s representation fell below an
objective standard of reasonableness.” Id. at 687-88. However, “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. Additionally, “a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on
the facts of the particular case, viewed as of the time of counsel’s conduct.” Id.
Mackey must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Id. at 691-92. To show prejudice, Mackey 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.
Sustaining a claim of ineffective assistance of counsel on federal habeas review is
difficult because review is “doubly” deferential to counsel’s performance and the state
court’s ruling. Richter, 562 U.S. at 105. See also Cullen v. Pinholster, 563 U.S. 170, 202
(2011) (a petitioner must overcome the “‘doubly deferential’ standard of Strickland and
AEDPA.”). If a claim of ineffective assistance of counsel can be resolved through one of
the Strickland test’s two prongs, the other prong need not be considered. 466 U.S. at 697
(“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address
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both components of the inquiry if the defendant makes an insufficient showing on one.”).
Mackey was charged in the Thirteenth Judicial Circuit. However, after his motion
to recuse the Office of the State Attorney for the Thirteenth Judicial Circuit was granted, the
Office of the State Attorney for the Sixth Judicial Circuit was appointed. (See Dkt. 15, Ex.
27, p. 2.) Mackey alleges that because the authority of the Office of the State Attorney for
the Sixth Judicial Circuit to prosecute his case expired prior to the date of his conviction,
the trial court was without jurisdiction to adjudicate him guilty and sentence him in 2003.
He alleges a violation of his federal right to due process.
Mackey raised this allegation in his 2012 postconviction motion. Contrary to
Respondent’s contention, he properly exhausted a federal claim2 by arguing that he was
denied due process in violation of the Fourteenth Amendment. (Dkt. 15, Ex. 43, p. 9.)
However, the state court denied Mackey’s claim as procedurally barred:
Defendant’s March 20, 2003, judgment and sentence in case 96-CF-010693,
became final after the Second District Court of Appeal issued its mandate for
Defendant’s direct appeal on September 10, 2004. See Mackey, 884 So.2d
at 118-19; Beaty v. State, 684 So.2d 206 (Fla. 2d DCA 1996) (finding that a
judgment and sentence becomes final for purposes of Rule 3.850 at the time
the mandate is issued). Therefore, the two-year limitations period expired on
or about September 10, 2006, after the conclusion of Defendant’s direct
review proceedings. See O’Neill v. State, 6 So.3d 630, 630 (Fla. 2d DCA
2009) (citing Valdes v. State, 904 So.2d 515 (Fla. 3d DCA 2005)). Thus, the
allegations in grounds 1 and 2 of Defendant’s January 5, 2012 motion
attacking his March 20, 2003 conviction are untimely under rule 3.850(b).
A federal habeas petitioner must exhaust his claims for relief by raising them in state court before
presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A). In order to satisfy the exhaustion requirement, “the
federal claim must be fairly presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971).
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While Defendant was resentenced on April 15, 2010, the resentencing was
not a product of a direct appeal, but rather resulted from the Court granting
Defendant’s motions filed under Florida Rule of Criminal Procedure 3.800.
The resentencing did not toll [the] two-year time limit for filing a motion under
Rule 3.850 to attack Defendant’s March 20, 2003 conviction. See Gillis v.
State, 32 So. 3d 681, 682 (Fla. 2d DCA 2010); O’Neill, 6 So. 3d at 630; see
also, Joseph v. State, 835 So.2d 1221, 1222 n. 3 (Fla. 5th DCA 2003) (“The
two-year limitation is not tolled by other collateral proceedings filed in the trial
court, even if a corrected sentence is entered. An illegal sentence may be
corrected at any time, and it would make no sense to allow a judgment to be
attacked many years after the expiration of the two-year deadline simply
because a sentence was corrected pursuant to a rule 3.800(a) motion.”).
(Dkt. 15, Ex. 44, pp. 3-4.)
When the state court’s rejection of a federal constitutional claim on procedural
grounds is based on an “independent and adequate” state ground, federal review of the
claim is barred. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). A state court’s
procedural ruling constitutes an independent and adequate state rule of decision if (1) the
last state court rendering a judgment in the case clearly and expressly states that it is
relying on a state procedural rule to resolve the federal claim without reaching the merits
of the claim, (2) the state court’s decision rests solidly on state law grounds and is not
intertwined with an interpretation of federal law, and (3) the state procedural rule is not
applied in an “arbitrary or unprecedented fashion” or in a “manifestly unfair manner.” Id.
(citing Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990)). “To qualify as an ‘adequate’
procedural ground, a state rule must be ‘firmly established and regularly followed.’” Walker
v. Martin, 562 U.S. 307, 316 (2011) (citation omitted).
The rule that a sentence imposed after obtaining collateral relief has no effect on
Rule 3.850's two-year statute of limitations is firmly established and regularly followed. See
Woodberry v. State, 193 So.3d 5, 6 (Fla. 4th DCA 2016) (“The fact that [Woodberry] was
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later resentenced on a postconviction motion did not restart the time for him to raise
postconviction challenges to his conviction.”); Gillis v. State, 32 So. 3d 681, 682 (Fla. 2d
DCA 2010) (“Mr. Gillis’s resentencing, which resulted not from his direct appeal but from
his successful rule 3.800 motions, did not toll the two-year time limit for filing a rule 3.850
motion attacking his convictions.”); Joseph v. State, 835 So.2d 1221, 1222 n.3 (Fla. 5th
DCA 2003) (“The two-year limitation is not tolled by other collateral proceedings filed in the
trial court, even if a corrected sentence is entered.”). The state appellate court approved
of the postconviction court’s reliance on this rule when it per curiam affirmed the denial of
Therefore, Mackey’s claim is procedurally defaulted because the state court
addressed the federal claim through the application of an independent and adequate state
procedural ground. See Harris v. Reed, 489 U.S. 255, 262 (1989) (“[A]n adequate and
independent finding of procedural default will bar federal habeas review of the federal
claim, unless the habeas petitioner can show” the applicability of either the cause and
prejudice or fundamental miscarriage of justice exception).
Mackey has not argued or
shown that an exception applies to overcome the default. Accordingly, Ground One is
barred from federal habeas review.
As addressed in Ground One, supra, the postconviction court concluded that
Mackey’s 2010 resentencing did not re-start the two-year time limit to file a Rule 3.850
postconviction motion challenging his 2003 conviction. Mackey claims that the state court’s
decision violated his federal due process rights. However, this argument cannot provide
federal habeas relief because it fails to raise a federal constitutional challenge to Mackey’s
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conviction. See Carroll v. Sec’y, DOC, 574 F.3d 1354, 1365 (11th Cir. 2009) (“[A]
challenge to a state collateral proceeding does not undermine the legality of the detention
or imprisonment–i.e., the conviction itself–and thus habeas relief is not an appropriate
remedy.”). Accordingly, Ground Six does not raise a cognizable claim for federal habeas
Mackey alleges that trial counsel was ineffective for failing to move for a mistrial
when a juror slept during the victim’s testimony. Mackey raised this claim in his 2005
motion for postconviction relief. Assuming that this claim was exhausted,3 Mackey fails to
show entitlement to relief. The state court denied his claim:
In ground 1, Defendant claims that counsel was ineffective by failing to move
for a mistrial in response to a sleeping juror and to preserve the issue for
appeal. Defendant claims that a juror fell asleep while counsel was crossexamining the State’s key witness. Defendant claims that counsel’s “general
reticence to act and counsel’s statement ‘I didn’t want to say anything’ falls
far short of counsel’s duty to zealously defend his client.”
In its Response, the State argues that Defendant’s claim is without merit.
Specifically, the State explains that a defendant is not automatically entitled
to relief when a juror is claimed to have been sleeping, as the decision to
replace a sleeping juror or grant a mistrial is within the discretion of the trial
court. The State argues that there is no evidence that the juror slept at any
other time at trial, pointing to the fact that both counsel and the trial court
noted the jury’s attentiveness. The State argues further that, because the
situation was remedied by the court’s recess, Defendant fails to demonstrate
prejudice as a result of counsel’s alleged deficiency. The Court finds the
State’s Response to be persuasive, and finds that Defendant warrants no
relief on ground 1.
Respondent contends that the claim is not exhausted because Mackey did not raise it on
postconviction appeal. But whether the Second District Court of Appeal requires an appellant whose Rule
3.850 motion was summarily denied to brief all claims on appeal is not apparent. See, e.g., Davis v. Sec’y,
DOC, 2015 WL 3509324 at *16 (M.D. Fla. 2015).
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(Dkt. 15, Ex. 15, pp. 1-2.)
The State’s response, upon which the trial court relied, provides in part:
Defendant is not automatically entitled to relief when a juror is claimed to
have been sleeping. . . . [T]he decision on whether to grant a mistrial is . . .
within the sound discretion of the court, and a mistrial should only be granted
when it is necessary to ensure defendant receives a fair trial. A.K. v. State,
898 So.2d 1112 (Fla. 4th DCA 2005). “A mistrial is appropriate only when
the error committed was so prejudicial as to vitiate the entire trial.” A.K.,
quoting Duest v. State, 462 So.2d 446 (Fla. 1985).
The situation in defendant’s trial was promptly and sufficiently dealt with by
counsel and the Court, where upon being notified of the issue, the Court
stated its intent to take a break, and then at that time told the jury to get
coffee or something. There is no indication of how long the juror allegedly
slept, but the juror did wake up during the discussion of the issue.
Furthermore, this was only the first witness of the trial, and there is no
evidence that the juror slept during other portions of the trial. In fact, during
closing arguments, counsel stated that “throughout these proceedings, I saw
each and every one of you were attentive to what was going on.”
Furthermore, after reading instructions and sending the jury back to
deliberate, both counsel and the Court spoke of the jury’s attentiveness, no
puzzled looks on their faces, and that they were the most amenable jury in
years. Clearly there was no other incident of a juror sleeping through the
trial, as counsel and the Court made observations as to their attentive
demeanor. Accordingly, defendant fails to meet his burden under Strickland
v. Washington, 466 U.S. 668 (1984).
(Dkt. 15, Ex. 13, pp. 1-2) (State’s record citations omitted).
Whether a motion would have succeeded under Florida’s standard for granting a
mistrial is a question of state law. This Court must defer to the state court’s interpretation
of state law. See Will v. Sec’y, Dep’t of Corr., 278 Fed. App’x 902, 908 (11th Cir. 2008)
(“Although an ineffective-assistance-of-counsel claim is a federal constitutional claim, which
we consider in light of the clearly established rules of Strickland, when ‘the validity of the
claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to
the state’s construction of its own law.’”) (quoting Alvord v. Wainwright, 725 F.2d 1282,
Page 9 of 14
1291 (11th Cir. 1984)); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (“[T]he
Alabama Court of Criminal Appeals has already answered the question of what would have
happened had [counsel] objected to the introduction of Callahan’s statements . . .
Therefore, [counsel] was not ineffective for failing to make that objection.”); Herring v.
Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (“The Florida Supreme Court
already has told us how the issues would have been resolved under Florida state law had
[petitioner’s counsel] done what [petitioner] argues he should have done . . . It is a
‘fundamental principle that state courts are the final arbiters of state law, and federal
habeas courts should not second-guess them on such matters.”) (quoting Agan v. Vaughn,
119 F.3d 1538, 1549 (11th Cir. 1997)).
Furthermore, the record does not reveal whether the juror merely appeared to be
sleeping, or, if he was in fact asleep, or, how long he slept.4 As the state court’s order
noted, other portions of the trial transcript reflect that all jurors were attentive during the
trial. (Dkt. 15, Ex. 2, Vol. II, pp. 405, 455-56.) Accordingly, Mackey has not shown that the
state court unreasonably applied Strickland or unreasonably determined the facts in
rejecting this claim. He is not entitled to relief on Ground Two.
The following discussion took place at a bench conference during the victim’s testimony:
[COUNSEL]: [The juror] has been asleep. I don’t want to say anything. I don’t know if you
want to take a break or - - we don’t want a juror sleeping through the trial.
[STATE]: I haven’t noticed it, Judge.
THE COURT: I didn’t notice it either. I was going to take a break after this witness,
[COUNSEL]: That’s fine. I didn’t want to say anything. I think he’s awake now. Okay.
(Dkt. 15, Ex. 2, Vol. II, p. 213.)
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Mackey argues that trial counsel was ineffective for failing to raise a voluntary
intoxication defense. Respondent asserts that this claim is procedurally defaulted and
consequently barred from federal habeas review. In his amended reply, Mackey states that
he “concedes to Respondent[’]s argument.” (Dkt. 29, p. 5.) The Court therefore finds
Ground Three barred from review.
Grounds Four And Five
Mackey argues that the trial court erred when it resentenced him in 2010 as a
habitual violent felony offender (HVFO) without eligibility for parole. He also asserts that
trial counsel was ineffective for failing to object to the sentence. The state court rejected
In ground 3 of his motion, Defendant contends that his HVFO sentence of life
imprisonment without the possibility of parole is illegal because in 1996, the
time of the commission of the offense, those sentenced to life for noncapital
felonies were eligible for parole. Defendant also asserts that his counsel was
ineffective at resentencing for failing to object to the illegal sentence upon its
imposition, and but for this deficiency, the outcome of his resentencing would
have been different.
First, with respect to the legality of Defendant’s sentence, the Court finds that
Defendant’s sentence of life imprisonment as an HVFO is a legal sentence.
The Florida Legislature abolished parole in 1983 for noncapital felonies. See
Fla. Stat. § 921.001(4), (8) (1985); see also Fla. Stat. §§ 775.082,
921.002(1)(a)(5) (1997) (stating chapter 947, which relates to parole, shall
not apply to those sentenced under the Criminal Punishment Code).
Robbery with a deadly weapon is a felony of the first degree and, if a
defendant is sentenced as an HVFO, punishable by life imprisonment.
See Fla. Stat. §§ 812.13(2)(a), 775.084(4)(b)(1) (1996). Neither Defendant’s
written sentence, nor the oral pronouncement of sentence makes any
mention of parole, ineligibility therefor or otherwise. Because the Court
lawfully resentenced Defendant with no mention on ineligibility for parole, he
is not entitled to relief.
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Defendant is also not entitled to relief on his claim of ineffective assistance
of counsel. “In order to prevail on a claim of ineffective assistance of
counsel, a defendant must show that trial counsel’s performance was
deficient and that the deficient performance prejudiced the defendant so as
to deprive the defendant of a fair trial.” State v. Larzelere, 979 So.2d 195,
202 (Fla. 2008); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L.Ed.2d 674 (1984). Here, as discussed above, the Court imposed a lawful
sentence on April 15, 2010, and defense counsel cannot be deemed
ineffective at sentencing for failing to make a meritless objection. See
Hitchcock v. State, 991 So. 2d 337 (Fla. 2008).
(Dkt. 15, Ex. 44, pp. 4-5) (court’s record citation omitted).
First, the propriety of Mackey’s sentence under Florida law is a determination to be
made by the state court. Thus, Mackey’s allegation that his sentence was illegal does not
state a sufficient claim for federal habeas relief:
[A] habeas petition grounded on issues of state law provides no basis for
habeas relief. Carrizales v. Wainwright, 699 F.2d 1053, 1054-55 (11th Cir.
1983). In the area of state sentencing guidelines in particular, we
consistently have held that federal courts can not review a state’s alleged
failure to adhere to its own sentencing procedures. Jones v. Estelle, 622
F.2d 124, 126 (5th Cir.), cert. denied, 449 U.S. 966, 101 S.Ct. 537, 66
L.Ed.2d 295 (1980); Nicholas v. Estelle, 556 F.2d 1330, 1331 (5th Cir. 1977),
cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 767 (1978); Willeford
v. Estelle, 538 F.2d 1194, 1196-98 (5th Cir. 1976). This limitation on federal
habeas review is of equal force when a petition, which actually involves state
law issues, is “couched in terms of equal protection and due process.”
Willeford, 538 F.2d at 1198.
Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988).
Furthermore, in assessing counsel’s performance, this Court must defer to the state
court’s determination that the sentence was lawful under the Florida Statutes. See Will,
278 Fed. App’x at 908; Callahan, 427 F.3d at 932; Herring, 397 F.3d at 1354-55.
Accordingly, Mackey has not shown that his counsel performed deficiently in failing to
object to the legality of the HVFO sentence. See Brownlee v. Haley, 306 F.3d 1043, 1066
(11th Cir. 2002) (“Counsel was not ineffective for failing to raise these issues because they
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clearly lack merit.”). Mackey has not demonstrated that the state court unreasonably
applied Strickland or unreasonably determined the facts in ruling on his ineffective
assistance of counsel claim. Mackey is not entitled to relief on Grounds Four and Five.
Any claim not specifically addressed herein has been determined to be without merit.
Accordingly, it is
1. Mackey’s petition (Dkt. 1) is DENIED. The Clerk is directed to enter judgment
against Mackey and to close this case.
2. Mackey is not entitled to a certificate of appealability (COA). A petitioner does not
have absolute entitlement to appeal a district court’s denial of his habeas petition. 28
U.S.C. § 2253(c)(1). A district court must first issue a COA. Id. “A [COA] may issue ...
only if the applicant has made a substantial showing of the denial of a constitutional right.”
Id. at § 2253(c)(2). To make such a showing, Mackey “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)). Mackey has not made this showing. Finally,
because Mackey is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 12, 2017.
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Counsel of Record
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