Mueller v. Secretary, Department of Corrections et al
Filing
32
ORDER denying 1--application for the writ of habeas corpus; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against Mueller and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/7/2024. (MWC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROBERT MUELLER,
Applicant,
v.
CASE NO. 8:17-cv-823-SDM-UAM
SECRETARY, Department of Corrections,
Respondent.
____________________________________/
ORDER
Mueller applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges his convictions for attempted second-degree murder, aggravated
battery, and discharging a firearm in public, for which he was sentenced to forty
years’ imprisonment. Numerous exhibits (“Respondent’s Exhibit __”) support the
response. (Doc. 9) The respondent concedes that the application is timely but
argues that some grounds are unexhausted and procedurally defaulted. (Doc. 8)
I. BACKGROUND 1
On the evening of February 5, 2007, Mueller was driving around Tarpon
Springs, Florida, with a female companion. Mueller pulled over and attempted to
purchase $40 worth of crack cocaine from two men, John Murray and John Hayes.
Mueller said he “wanted to taste the product” first. (Respondent’s Exhibit 19 at 419)
1
This summary of the facts derives from the trial transcript. (Respondent’s Exhibit 19)
Murray responded, “No, I need to see the money.” (Respondent’s Exhibit 19 at 419)
The two argued for some time, and Murray began to walk away from the car.
Mueller shouted, “F***ing n****r,” shot Murray in the back with a revolver, and
fled. 2 (Respondent’s Exhibit 19 at 369) Murray survived his gunshot wound.
Later that evening, Mueller drove to the house of Brian Barnes, a friend for
whom he had done some construction work. At the time, the two were quarreling
over money. Twenty minutes before Mueller arrived at the house, he had called
Barnes and threatened to kill him. As he approached the residence, Mueller fired his
revolver in the direction of the house. One bullet struck a car parked in the
driveway. Barnes was elsewhere at the time of the shooting, but his wife and
children were inside the house. They were unharmed.
Mueller left Barnes’s house and returned to the house where he was staying.
The owner of the house, Thomas Muessig, was a convicted felon. Muessig was
upset that Mueller had brought a gun to the residence, and the two began to argue.
Mueller ended the argument by striking Muessig in the face with the gun.
Following a jury trial, Mueller was convicted of attempted second-degree
murder, aggravated battery, and discharging a firearm in public. The state appellate
court vacated the conviction for attempted second-degree murder based on an error
in the jury instructions. Mueller v. State, 100 So. 3d 47, 50 (Fla. 2d DCA 2011). The
court affirmed the other convictions. Although counsel represented him during the
2
Mueller is white; Murray and Hayes are African American.
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first trial, Mueller proceeded pro se at the re-trial. The jury found him guilty of
attempted second-degree murder, and the state appellate court affirmed without a
written opinion.
II. EXHAUSTION AND PROCEDURAL BAR
Ground one of the application contains six sub-claims. (Doc. 1 at 5–6) The
respondent argues that each sub-claim is barred from federal review because Mueller
failed to exhaust his state court remedies. (Doc. 8 at 6, 14) “[E]xhaustion of state
remedies requires that petitioners ‘fairly presen[t]’ federal claims to the state courts in
order to give the State the ‘opportunity to pass upon and correct’ alleged violations of
its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting
Picard v. Connor, 404 U.S. 270, 275 (1971)); accord Rose v. Lundy, 455 U.S. 509, 518–
19 (1982) (“A rigorously enforced total exhaustion rule will encourage state prisoners
to seek full relief first from the state courts, thus giving those courts the first
opportunity to review all claims of constitutional error.”). An applicant must present
to the federal court the same claim presented to the state court. See Picard, 404 U.S.
at 275 (“[W]e have required a state prisoner to present the state courts with the same
claim he urges upon the federal courts.”). “Mere similarity of claims is insufficient to
exhaust.” Henry, 513 U.S. at 366.
As Baldwin v. Reese, 541 U.S. 27, 32 (2004), explains, an applicant must alert
the state court that he is raising a federal claim and not just a state law claim:
A litigant wishing to raise a federal issue can easily
indicate the federal law basis for his claim in a state court
petition or brief, for example, by citing in conjunction with
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the claim the federal source of law on which he relies or a
case deciding such a claim on federal grounds, or by
simply labeling the claim “federal.”
“It is not enough that all the facts necessary to support the federal claim were before
the state courts, or that a somewhat similar state law claim was made.” Anderson v.
Harless, 459 U.S. 4, 6 (1982). Consequently, “a petitioner with a claim that could
arise under state or federal law must clearly indicate to the state courts that he
intends to bring a federal claim.” Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 458
(11th Cir. 2015).
Ground One, Sub-Claim A:
Mueller asserts that the trial court violated the Sixth Amendment by
conducting an inadequate Faretta 3 inquiry. (Doc. 1 at 5) According to Mueller, the
court failed to establish that he understood “the offer of counsel,” that his waiver of
the right to counsel was “knowing and intelligent,” and that he did not “suffer[] from
severe mental illness.” (Doc. 1 at 5) Mueller raised the same claim on direct appeal.
He argued that “[r]eversal was required” based on the court’s “insufficient Faretta
inquiry,” which allegedly failed to establish his “comprehension of the offer of
counsel,” failed to establish his “capacity to make a knowing and intelligent waiver,”
and failed to establish whether he “suffer[ed] from severe mental illness.”
(Respondent’s Exhibit 24 at 25–26) Consequently, ground one, sub-claim A is
exhausted.
3
Faretta v. California, 422 U.S. 806 (1975).
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Ground One, Sub-Claim B:
Mueller claims that the trial court violated his Sixth Amendment right of
confrontation (1) by restricting his cross-examination of witnesses and (2) by denying
his request to call state investigator Gary Gibson as a witness at trial. (Doc. 1 at 5;
Doc. 18 at 5–6) Mueller raised this claim on direct appeal. He contended that the
trial court erred in “refus[ing] to allow [him] to complete his cross-examination of
witnesses” and “further erred in refusing to allow [him] to call [i]nvestigator Gibson
as a witness at trial.” (Respondent’s Exhibit 24 at 9–12, 29) In support, Mueller
cited Holley v. State, 48 So. 3d 916 (Fla. 4th DCA 2010). (Respondent’s Exhibit 24 at
31) Holley held that “the defendant’s Sixth Amendment right to confront” witnesses
was “violated” by the trial court’s restriction on cross-examination of a witness. 48
So. 3d at 920–21. Because Holley rested in part on federal constitutional grounds,
Mueller’s citation of that decision sufficed to alert the state court to the federal nature
of his claim. See Wells v. Sec’y Dep’t of Corr., 343 F. App’x 581, 584 (11th Cir. 2009)
(holding that petitioner fairly presented federal claim where he “cited and discussed
only one case,” a “Florida appellate [decision]” that resolved claim on federal
constitutional grounds). 4 As a consequence, ground one, sub-claim B is exhausted.
Ground One, Sub-Claims C, D, E, and F:
In the remainder of ground one, Mueller asserts that his federal constitutional
rights were violated because (1) the trial court prohibited his arguing to the jury that
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. Rule 36-2.
4
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“his arrest was illegal” (sub-claim C); (2) the trial court “repeatedly treated [him]
with disdain, disrespect, and disparagement in front of the jury and allowed the State
to do the same” (sub-claim D); (3) the trial court refused to “allow [him] to impeach
three . . . witnesses with prior inconsistent statements” (sub-claim E); and (4) the
“cumulative effect” of the alleged “evidentiary errors” denied him a “[f]air and
[i]mpartial [t]rial” (sub-claim F). (Doc. 1 at 5–6)
Mueller raised similar claims on direct appeal, but he failed to make the state
court aware that they “present[ed] federal constitutional issues.” Lucas v. Sec’y, Dep’t
of Corr., 682 F.3d 1342, 1352 (11th Cir. 2012). Mueller did not argue that the trial
court’s alleged errors violated any federal right. Nor did he cite any provision of the
federal constitution. Instead, he relied entirely on Florida law in challenging the trial
court’s rulings. (Respondent’s Exhibit 24 at 32–43) Accordingly, Mueller did not
“fairly present” these federal claims to the state court. See Baldwin, 541 U.S. at 27.
Because sub-claims C, D, E, and F are unexhausted, they are barred from
federal review absent a showing of “actual cause and prejudice” or “manifest
injustice.” Coleman v. Thompson, 501 U.S. 72, 29–30 (1991); Murray v. Carrier, 477
U.S. 478, 496 (1986). The basis for “cause” must ordinarily reside in something
external to the defense. Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995). To
show “prejudice,” the applicant must establish “not merely that the errors . . . created
the possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.”
Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (quoting United States v. Frady,
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456 U.S. 152, 170 (1982)). A fundamental miscarriage of justice occurs only if a
constitutional violation has probably resulted in the conviction of someone who is
actually innocent. House v. Bell, 547 U.S. 518, 536–37 (2006). A petitioner “must
establish that, in light of new evidence, ‘it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable doubt.’” House, 547
U.S. at 536–37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Mueller fails to establish either cause and prejudice or a fundamental
miscarriage of justice. Therefore, sub-claims C, D, E, and F of ground one are
procedurally barred from federal review. Sub-claims A and B are, however, entitled
to a review on the merits.
III. STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this proceeding. Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.
1998). Section 2254(d), which creates a highly deferential standard for federal court
review of a state court adjudication, states in pertinent part:
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
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light of the evidence presented in the State
court proceeding.
Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power
of a federal habeas court to grant a state prisoner’s
application for a writ of habeas corpus with respect to
claims adjudicated on the merits in state court. Under §
2254(d)(1), the writ may issue only if one of the following
two conditions is satisfied — the state court adjudication
resulted in a decision that (1) “was contrary to . . . clearly
established Federal law, as determined by the Supreme
Court of the United States” or (2) “involved an
unreasonable application of . . . clearly established Federal
law, as determined by the Supreme Court of the United
States.” 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 prisoner’s case.
“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, 693 (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). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical
point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,
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and only if, it is so obvious that a clearly established rule applies to a given set of
facts that there could be no fairminded disagreement on the question . . . .”); Woods v.
Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable application of’ those
holdings must be objectively unreasonable, not merely wrong; even clear error will
not suffice.”) (citing Woodall, 572 U.S. at 419). Accord Brown v. Head, 272 F.3d 1308,
1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of
the state court decision that we are to decide.”). The phrase “clearly established
Federal law” encompasses only the holdings of the United States Supreme Court “as
of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.
The purpose of federal review is not to re-try the state case. “[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, 535 U.S. at 694. A federal court
must afford due deference to a state court’s decision. “AEDPA prevents defendants
— and federal courts — from using federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766,
779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult
to meet,’ . . . and ‘highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt’ . . . .”)
(citations omitted).
When the last state court to decide a federal claim explains its decision in a
reasoned opinion, a federal habeas court reviews the specific reasons as stated in the
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opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.
1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons
given by the state court and defers to those reasons if they are reasonable.”). When
the relevant state-court decision is not accompanied with reasons for the decision,
the federal court “should ‘look through’ the unexplained decision to the last related
state-court decision that does provide a relevant rationale [and] presume that the
unexplained decision adopted the same reasoning.” Wilson, 138 S. Ct. at 1192.
In a per curiam decision without a written opinion, the state appellate court on
direct appeal affirmed Mueller’s conviction and sentence for attempted seconddegree murder. (Respondent’s Exhibit 26) Similarly, in another per curiam decision
without a written opinion, the state appellate court denied Mueller’s petition alleging
ineffective assistance of appellate counsel. (Respondent’s Exhibit 35) The state
appellate court’s per curiam decisions warrant deference under Section 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 100 (“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.”), and Bishop v. Warden, 726 F.3d 1243, 1255–
56 (11th Cir. 2013) (describing the difference between an “opinion” or “analysis”
and a “decision” or “ruling” and explaining that deference is accorded the state
court’s “decision” or “ruling” even absent an “opinion” or “analysis”).
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As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is
limited to the record that was before the state court:
We now hold that review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated
the claim on the merits. Section 2254(d)(1) refers, in the
past tense, to a state-court adjudication that “resulted in” a
decision that was contrary to, or “involved” an
unreasonable application of, established law. This
backward-looking language requires an examination of the
state-court decision at the time it was made. It follows
that the record under review is limited to the record in
existence at that same time, i.e., the record before the state
court.
Mueller bears the burden of overcoming by clear and convincing evidence a
state court’s fact determination. “[A] determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but
not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th
Cir. 2001).
IV. ISSUES ON DIRECT APPEAL
Ground One, Sub-Claim A:
Mueller asserts that the trial court violated the Sixth Amendment by failing to
“conduct a proper Faretta inquiry.” (Doc. 1 at 5) According to Mueller, the Faretta
inquiry was inadequate because the court failed to establish that (1) he understood
“the offer of counsel,” (2) his waiver of the right to counsel was “knowing and
intelligent,” and (3) he did not “suffer[] from severe mental illness.” (Doc. 1 at 5)
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The state appellate court rejected this claim in a per curiam decision without a written
opinion. (Respondent’s Exhibit 26) Consequently, Mueller must show that the state
court’s decision possessed “no reasonable basis.” Richter, 562 U.S. at 98. He cannot
meet his burden.
“The Sixth Amendment safeguards to an accused who faces incarceration the
right to counsel at all critical stages of the criminal process.” Iowa v. Tovar, 541 U.S.
77, 80–81 (2004). But a defendant also “has a constitutional right to proceed without
counsel when he voluntarily and intelligently elects to do so.” Faretta, 422 U.S. at
807. “Faretta provides that when a defendant requests to discharge counsel and to
proceed pro se, a trial court should conduct an inquiry and make the defendant
‘aware of the dangers and disadvantages of self-representation, so that the record . . .
establish[es] that [the defendant] knows what he is doing and his choice is made with
eyes open.’” Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 798 (11th Cir. 2020)
(quoting Faretta, 422 U.S. at 835).
“The ideal method of assuring a voluntary waiver is for the trial judge to
conduct a pre-trial hearing at which the defendant would be informed of the charges,
basic trial procedures, and the hazards of self-representation.” United States v. Stanley,
739 F.3d 633, 645 (11th Cir. 2014). The Supreme Court has not, however,
“prescribed any formula or script to be read to a defendant who states that he elects
to proceed without counsel.” Tovar, 541 U.S. at 88. “The core inquiry is whether
the defendant understood the choices before him and the potential dangers of
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proceeding pro se.” Jones v. Walker, 540 F.3d 1277, 1293 (11th Cir. 2008). “If so, his
waiver is valid.” Id.
The trial court conducted a proper Faretta inquiry, after which Mueller
knowingly and voluntarily waived his right to counsel. Four months before the
retrial on the attempted murder charge, Mueller told the court during a pretrial
hearing that he “want[ed] to represent” himself. (Respondent’s Exhibit 9 at 7) The
court responded that self-representation would be “silly” and “ridiculous” and “put[]
you[] at a tremendous disadvantage.” (Respondent’s Exhibit 9 at 8) The court
proceeded to “conduct a Faretta hearing” because Mueller had “indicated he wanted
to represent himself.” (Respondent’s Exhibit 9 at 10) In response to the court’s
questions, Mueller disclosed that he was a high school dropout with no formal legal
training, but that he could “read and write.” (Respondent’s Exhibit 9 at 10–11) The
court explained to Mueller that if he represented himself, he would be “responsible
for . . . following the rules.” (Respondent’s Exhibit 9 at 12) To emphasize the point,
the court noted that “on one side” “you ha[ve] [the prosecutor],” who “knows the
rules, knows the law, knows the Evidence Code, and you have you on the other
side.” (Respondent’s Exhibit 9 at 13) Also, the court reminded Mueller that he had
“already [gone] to trial once and lost.” (Respondent’s Exhibit 9 at 12)
The court explained that Mueller faced a mandatory minimum sentence of
twenty-five years’ imprisonment, and the prosecutor noted that the statutory
maximum was life in prison. The court reiterated that “[a]ny of the things [] a
lawyer would be able to do, you’re realistically not going to be able to do.”
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(Respondent’s Exhibit 9 at 13) This included “setting up depos,” which would
require Mueller to “go through the whole jail bureaucracy.” (Respondent’s Exhibit 9
at 13) Also, the court informed Mueller that he did not “have to maintain [his] selfrepresentation throughout this process,” and that he could “decide at some future
time that [he] want[ed] [his] lawyer back.” (Respondent’s Exhibit 9 at 15)
Following this colloquy, the court asked Mueller whether, “even
understanding the disadvantages that we’ve discussed and the possible penalties,” he
still wished to represent himself. (Respondent’s Exhibit 9 at 16) Mueller answered
yes. (Respondent’s Exhibit 9 at 16) The court allowed Mueller to proceed pro se and
appointed his public defender as standby counsel. At subsequent pretrial hearings,
the court asked Mueller at least six times whether he would continue representing
himself. Each time, Mueller answered in the affirmative. (Respondent’s Exhibit 10
at 3; Exhibit 11 at 5, 122; Exhibit 12 at 3; Exhibit 13 at 8; Exhibit 15 at 49)
The record establishes that Mueller chose to represent himself “with eyes
open.” Tovar, 541 U.S. at 88. During the Faretta inquiry, the court (1) reminded
Mueller of the dangers of proceeding pro se, (2) warned Mueller that selfrepresentation created a “tremendous disadvantage,” (3) described the potential
penalties Mueller faced if convicted, and (4) reminded Mueller that the jury had
found him guilty of attempted second-degree murder at the first trial. Despite these
warnings, Mueller elected to represent himself. Because Mueller “understood the
choices before him and the potential dangers of proceeding pro se,” he knowingly and
voluntarily waived his right to counsel. Jones, 540 F.3d at 1293; see also Tuomi, 980
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F.3d at 799 (holding that “Faretta-based challenge to the validity of [petitioner’s]
waiver of his right to counsel did not have a reasonable probability of success”
because trial court “made [petitioner] aware of the dangers and disadvantages of pro
se representation as well as the charges against him and the potential sentence he
faced”). Therefore, the state court reasonably rejected Mueller’s Faretta claim.
Mueller resists this conclusion and contends that the trial court erroneously
failed to “make on the record determinations” that his “waiver [was] free and
voluntary.” (Doc. 18 at 4) This argument lacks merit. The court did not expressly
state that Mueller’s waiver was knowing and voluntary, but it does not follow that
the court violated Faretta. A trial court “ideally . . . should . . . make an explicit
finding that [the defendant] has chosen to represent himself with adequate
knowledge of the possible consequences.” Nelson v. Alabama, 292 F.3d 1291, 1295
(11th Cir. 2002). “The failure to do so, however, is not error as a matter of law.” Id.
If the “trial record shows that a defendant knowingly and voluntarily elected to
represent himself, the Faretta standard will be satisfied.” Id. As determined above,
the record establishes that Mueller elected to proceed pro se “with eyes open.” Tovar,
541 U.S. at 88. Thus, the court complied with Faretta.
Also, Mueller faults the trial court for failing to ask whether he “suffered from
severe mental illness.” (Doc. 1 at 5) But Mueller “did not show, and has not shown,
that he suffered from a significant mental illness to such an extent that his choice
must not be considered intelligent.” United States v. Posadas-Aguilera, 336 F. App’x
970, 976 (11th Cir. 2009); see also United States v. Jackson, 859 F. App’x 389, 390 (11th
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Cir. 2021) (rejecting Faretta-based argument that “the district court needed to make a
more specific inquiry into [defendant’s] mental health” because defendant “hasn’t
contended here that he was or is severely mentally ill”).
Because the Faretta claim is meritless, ground one, sub-claim A is denied. 5
Ground One, Sub-Claim B:
Mueller asserts that the trial court violated his Sixth Amendment right of
confrontation by (1) restricting his cross-examination of Officer Barry Wireman and
Detective Scott Brockew and (2) denying his request to call state investigator Gary
Gibson as a witness at trial. (Doc. 1 at 5; Doc. 18 at 5–6; Respondent’s Exhibit 24 at
9–12, 29) The state appellate court rejected this claim in a per curiam decision
without a written opinion. (Respondent’s Exhibit 26) As a consequence, Mueller
bears the burden of showing “no reasonable basis for the state court to deny relief.”
Richter, 562 U.S. at 98.
The Confrontation Clause requires “a full and fair opportunity to probe and
expose . . . infirmities through cross-examination, thereby calling to the attention of
the factfinder the reasons for giving scant weight to the witness’ testimony.”
Delaware v. Fensterer, 474 U.S. 15, 22 (1985). But the Clause guarantees only “an
Mueller faults the trial court for “fail[ing] to renew the offer of assistance of counsel . . . at
each critical stage of the prosecution.” (Doc. 1 at 5) But “[t]here is no clearly established Supreme
Court law on when the Sixth Amendment requires an additional waiver of counsel.” McClain v.
Sec’y, Dep’t of Corr., 855 F. App’x 610, 613 (11th Cir. 2021); accord Duncan v. Sec’y, Fla. Dep’t of Corr.,
No. 3:18-cv-2099-MCR-GRJ, 2021 WL 4464431, at *12 (N.D. Fla. Aug. 20, 2021) (“Petitioner does
not have a constitutional right to a renewed offer of counsel at all pretrial proceedings and during the
evidentiary portion of trial.”), adopted by 2021 WL 4465996 (N.D. Fla. Sept. 29, 2021). Regardless,
the trial court repeatedly offered Mueller the assistance of counsel after his initial waiver, and each
time he declined the offer.
5
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opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Fensterer, 474 U.S.
at 20. “[T]rial judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on [] cross-examination based on concerns
about . . . harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986). “The test for the Confrontation Clause is whether a
reasonable jury would have received a significantly different impression of the
witness’s credibility had counsel pursued the proposed line of cross-examination.”
United States v. Williams, 526 F.3d 1312, 1319 (11th Cir. 2008); see also Van Arsdall,
475 U.S. at 680 (“[A] criminal defendant states a violation of the Confrontation
Clause by showing that he was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of the
witness, and thereby to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.”).
Mueller fails to show that the trial court improperly limited his right to
confront witnesses. He complains that during a pretrial suppression hearing, the
court “cut off” his cross-examination of Officer Wireman, one of the officers who
detained him outside his house. (Respondent’s Exhibit 24 at 9, 29) Mueller’s crossexamination of this witness spanned twenty transcript pages. (Respondent’s Exhibit
11 at 56–76) The questions focused on whether Officer Wireman had reasonable
suspicion to believe that Mueller had fired a gun at his friend’s house. Also, Mueller
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attempted to impeach Officer Wireman with statements from his police report. The
court ended the cross-examination after Mueller accused the witness of perjury.
(Respondent’s Exhibit 11 at 76) Mueller’s application fails to identify any questions
he was prevented from asking that would have significantly altered the court’s
“impression of [Officer Wireman’s] credibility.” Williams, 526 F.3d at 1319.
Consequently, he has not shown that the court improperly limited his crossexamination of this witness.
Mueller likewise fails to show that the court violated the Confrontation Clause
by restricting his cross-examination at trial of Detective Brockew, the lead
investigator on the case. Mueller’s initial cross-examination of this witness spanned
thirty-six transcript pages and covered several topics, including (1) whether law
enforcement had probable cause to arrest Mueller, (2) the owner of the vehicle
Mueller was driving during his crime spree, and (3) Detective Brockew’s background
and investigative practices. (Respondent’s Exhibit 19 at 313–49) In addition,
Mueller asked several improper questions during his examination. For example,
Mueller asked Detective Brockew whether he was “aware that if you file an affidavit
or you make an arrest for any offense that occurs outside your presence, it’s illegal.”
(Respondent’s Exhibit 19 at 342) Also, he posed the following hypothetical: “If I
tell you right now that — can I use you? Mr. Koskinas [the prosecutor] [] just shot
this typing lady here, stenograph lady. Say I just tell you that he shot her. Can you
arrest him and charge him with attempted murder?” (Respondent’s Exhibit 19 at
336) After sustaining several objections to Mueller’s inappropriate questions, the
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court ended the cross-examination and told him to “[h]ave a seat.” (Respondent’s
Exhibit 19 at 350)
The prosecution recalled Detective Brockew toward the end of its case. This
time, Mueller’s cross-examination covered (1) the ballistics evidence recovered from
the crime scenes, (2) the date of Hayes’s identification of Mueller as the man who
shot Murray, and (3) whether Detective Brockew arrested Mueller or merely
detained him. (Respondent’s Exhibit 19 at 636–51) The court ended the crossexamination after Mueller asked for the second time whether Detective Brockew had
“arrest[ed] [him] before [] transport[ing] him [] to the police station.” (Respondent’s
Exhibit 19 at 650–51)
The record shows that Mueller had ample “opportunity for effective crossexamination” of Detective Brockew. Fensterer, 474 U.S. at 20 (emphasis omitted).
The court sustained several objections to Mueller’s questions, but in each instance
the court acted within its discretion to impose “reasonable limits” on crossexamination based on “confusion of the issues” or “interrogation that [was]
repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679. Moreover,
Mueller fails to identify any unasked questions that would have created “a
significantly different impression of [Detective Brockew’s] credibility.” Williams, 526
F.3d at 1319. Therefore, Mueller has not shown that the court improperly restricted
his cross-examination of this witness.
Lastly, Mueller contends that the court violated his right of confrontation by
denying his request to call state investigator Gary Gibson as a witness at the second
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trial. During the first trial, the jury heard testimony from (1) Torrey Ritchie, the
woman who was in the car when Mueller shot Murray, and (2) Thomas Muessig, the
man Mueller pistol-whipped after the shootings. Shortly before the second trial, the
prosecution moved to admit Ritchie and Muessig’s testimony from the first trial on
the ground that these witnesses were now unavailable. See Essex v. State, 958 So. 2d
431, 432 (Fla. 4th DCA 2007) (“Under the Florida Evidence Code, former testimony
is admissible ‘provided that the declarant is unavailable as a witness.’”) (quoting Fla.
Stat. § 90.804(2)(a)).
The court held an evidentiary hearing on the motion. Gibson, the state
investigator, testified that Muessig had passed away in 2012, and he described
several unsuccessful attempts to locate Ritchie. (Respondent’s Exhibit 15 at 7)
Gibson had spoken with Ritchie’s mother and sister, who told him that she “doesn’t
have a phone” or address. (Respondent’s Exhibit 15 at 8) Also, Gibson represented
that Ritchie “doesn’t use her name . . . or [S]ocial [S]ecurity number on anything that
can be traced.” (Respondent’s Exhibit 15 at 9) Gibson determined that Ritchie lived
“in the Maitland, Florida area,” but he could not locate an address. (Respondent’s
Exhibit 15 at 8) Mueller cross-examined Gibson about the steps he took to verify
Muessig’s passing and whether he had obtained “any address” for Ritchie.
(Respondent’s Exhibit 15 at 10–15) The court granted the prosecution’s motion to
admit the former testimony, reasoning that Muessig was “deceased” and Ritchie
“can’t be found despite diligent effort to do so.” (Respondent’s Exhibit 15 at 27–28)
- 20 -
Shortly before the jury was sworn, Mueller asked the court for permission to
“talk to [] [i]nvestigator Gibson” again because he did not “feel [Gibson] did an
adequate investigation on [Ritchie].” (Respondent’s Exhibit 19 at 208) The court
denied the request and explained that Mueller’s “opportunity to cross-examine
[Gibson] [h]as already gone and passed.” (Doc. 24-2 at 209) When the prosecutor
announced his intention to read Ritchie’s former testimony into evidence, Mueller
renewed his request to call Gibson. The court again denied the request and repeated
that Mueller already “had opportunities . . . to ask questions” of Gibson.
(Respondent’s Exhibit 19 at 505) Later in the trial, the court rejected Mueller’s
request to read into the record “the questions that [he] want[ed] to ask” Gibson.
(Respondent’s Exhibit 19 at 609)
The court did not violate the Sixth Amendment by denying Mueller’s request
to call Gibson at trial. The Confrontation Clause does not guarantee “crossexamination that is effective in whatever way, and to whatever extent, the defense
might wish.” Fensterer, 474 U.S. at 20. Mueller had an “opportunity for effective
cross-examination” of Gibson during the pretrial hearing on the prosecution’s
motion to admit former testimony. Fensterer, 474 U.S. at 20 (emphasis omitted).
Moreover, Mueller’s application fails to identify any questions he would have asked
Gibson if permitted to call him at trial. Consequently, Mueller fails to show that
additional cross-examination would have led to “a significantly different impression
of [Gibson’s] credibility.” Williams, 526 F.3d at 1319.
- 21 -
Because Mueller’s Confrontation Clause challenges lack merit, ground one,
sub-claim B is denied. 6
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Mueller claims ineffective assistance of appellate counsel, a difficult claim to
sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground
of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46
F.3d 1506, 1511 (11th Cir. 1995) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.
1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that
Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of
counsel claim:
The law regarding ineffective assistance of counsel claims
is well settled and well documented. In Strickland v.
Washington, 466 U.S. 668 (1984), the Supreme Court set
forth a two-part test for analyzing ineffective assistance of
counsel claims. According to Strickland,
First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a
trial whose result is reliable.
Mueller alleges that the restrictions on his cross-examination of witnesses violated his right
to “Equal Protection of the Law.” (Doc. 1 at 5) Nothing in the application or the record suggests
that the trial court violated Mueller’s right to equal protection.
6
- 22 -
“There is no reason for a court deciding an ineffective assistance claim . . . to
address both components of the inquiry if the defendant makes an insufficient
showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” 466 U.S. at 690. “[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.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances,
the identified acts or omissions were outside the wide range of professionally
competent assistance.” 466 U.S. at 690.
Mueller 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.” Strickland, 466 U.S. at 691. To meet this burden, Mueller must show “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.” 466 U.S. at 694.
Mueller cannot meet his burden by showing that the avenue chosen by
counsel proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir.
1992). Strickland cautions that “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely
- 23 -
to the extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690–91.
The Strickland standard of review applies to a claim of ineffective assistance of
appellate counsel. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To establish
such a claim, Mueller must show both that appellate counsel performed deficiently
and that the deficient performance resulted in prejudice. To demonstrate deficient
performance, Mueller must show that appellate counsel’s failure to discover a nonfrivolous issue and file a merits brief raising that issue fell outside the range of
professionally acceptable performance. Smith v. Robbins, 528 U.S. 259, 285–86
(2000). To demonstrate prejudice, Mueller must show that a reasonable probability
exists that, but for appellate counsel’s unreasonable failure to file a merits brief on a
particular issue, Mueller would have prevailed on appeal. Smith, 528 U.S. at 285–86.
Sustaining a claim of ineffective assistance of counsel under Section 2254(d) is
very difficult because “[t]he standards created by Strickland and § 2254(d) are both
‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
Richter, 562 U.S. at 105. See Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303
(11th Cir. 2019) (“Given the double deference due, it is a ‘rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court is
found to merit relief in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t
Corrs., 643 F.3d 907, 911 (11th Cir. 2011)).
In determining “reasonableness,” Section 2254(d) authorizes determining only
“whether the state habeas court was objectively reasonable in its Strickland inquiry”
- 24 -
and not independently assessing whether counsel’s actions were reasonable. Putman
v. Head, 268 F.3d 1223, 1244 n.17 (11th Cir. 2001). The presumption of correctness
and the highly deferential standard of review require that the analysis of each ground
begin with the state court’s analysis.
Ground Two:
Mueller asserts that appellate counsel provided ineffective assistance by failing
to challenge on direct appeal the trial court’s denial of two motions to suppress.
(Doc. 1 at 7–8) In the first motion to suppress, Mueller argued that all post-arrest
identifications of him were “illegally obtained” because law enforcement lacked
probable cause to transport him to the police station. (Respondent’s Exhibit 17) The
court held a lengthy suppression hearing and took testimony from Detective
Brockew and Officer Wireman. (Respondent’s Exhibit 11) Detective Brockew
testified that he responded to the scene of a shooting “in the 500 block of Lime
Street.” (Respondent’s Exhibit 11 at 11) Eyewitnesses told law enforcement that
they had seen a “gold-colored four-door car” with “a distinctive muffler” and
“significant rear end damage” leaving the scene of the shooting. (Respondent’s
Exhibit 11 at 12–13) Soon after Detective Brockew left the scene, he heard a radio
dispatch about a “drive-by shooting” at Brian Barnes’s house. (Respondent’s Exhibit
11 at 13–14) Law enforcement spoke to Barnes, who explained that “just prior” to
the shooting Mueller had called and “threatened to kill him.” (Respondent’s Exhibit
11 at 55–56) Barnes told police that although he was not home when the shooting
took place, he “knew” Mueller “did this.” (Respondent’s Exhibit 11 at 14)
- 25 -
Barnes directed police to the house where Mueller stayed. Police found a
vehicle that matched the description of the car from the first shooting. A man was
getting out of the car when police arrived, and Barnes identified him as Mueller.
Law enforcement detained Mueller in a police vehicle. Aaron Saunders, a witness to
the first shooting, arrived on the scene and identified Mueller “as the person he saw
in the car.” (Respondent’s Exhibit 11 at 18–19) Before transporting Mueller to the
police station, Detective Brockew told Mueller that “the vehicle he was driving was
reportedly seen at the [location of the first] shooting.” (Respondent’s Exhibit 11 at
106) Mueller “indignantly [] asked where” the shooting had occurred.
(Respondent’s Exhibit 11 at 106) Detective Brockew “offered the location of Lime
Street”; Mueller responded, “I didn’t do anything to those n****rs.” (Respondent’s
Exhibit 11 at 106)
After the presentation of testimony, the court orally denied the motion to
suppress (Respondent’s Exhibit 11 at 115–18):
THE COURT: Okay. Your mistake in this process is to
assume that there has to be, in your mind, something
definitive. Probable cause is everything they knew that
goes into the decision at that particular time. And what
they knew were the threats to Barnes, which were recent,
which were specific, which you made, which he knew you
made, which were made because of the specific difficulties
that you had with Barnes, so when Barnes came home to
find his house shot up, even though he didn’t see you
firing it, he knew in his mind that you were the only
person that realistically probably would have done that, so
that’s part of it.
The other part of it is the description of the vehicle, which
was fairly specific even though you disagree whether it
was gray versus gold, but they testified they believed it was
- 26 -
gold. It was a unique vehicle that was specifically
described. It was found in an area close to where the
original first shooting scene was, on Lime, and of course it
was found a couple blocks away, two and two, from the
second crime scene which would have been at Barnes’
house.
So you had the description, they had yourself getting out
of the vehicle right — being in the street right near the
vehicle. You have Saunders identifying you as the driver
of that particular vehicle at the time when the shooting
occurred, and that’s circumstantial, but the vehicle is near
the person that got shot, the shots rang out, he identifies
you as the driver of the vehicle. A logical inference from
that is [] that the person driving was the person shooting.
And then you have the statement that you made, still at
the scene, before they transported you to the officer. And I
quote, because I’m not otherwise saying that, “I didn’t do
anything to those n****rs,” referring to the two black
gentlemen, apparently one of which was shot being
approached in a drug deal.
So when you put all of those things together, there’s
certainly probable cause. That’s not proof beyond a
reasonable doubt. Probable cause is the standard to make
an arrest. And the fact that nobody said at the time that’s
the guy that fired the shots, you somehow mistake that
there has to be that particular statement before that can
reach the level of probable cause.
Mr. Nohlgren [Mueller’s former attorney] was smart
enough to realize that all of those things together would be
sufficient for the officers to take that action, and that’s why
he didn’t presumably file the motion to suppress.
But when you put all of that together, the prior threats to
Barnes, the two shooting scenes, the description of the
vehicle, the closeness of where the vehicle is found, your
ties to the vehicle, Saunders ID’ing you as the driver, and
the statement you made showing knowledge of what
probably occurred over there, or showing knowledge of
what happened, to at least who the victims were and
referring to them in that way, that’s certainly, when you
- 27 -
put all of that together, is probable cause for a police
officer to believe that you were the person that was
involved in those crimes.
And when they bolster that probable cause by getting
subsequent identifications, positive identifications, of you
as the shooter, then you wind up potentially with proof
beyond a reasonable doubt, which in this case at least one
jury has already found, so that’s the basis of the ruling.
You think that it has to be somebody saying I was the guy
that fired the shots over on Lime Street before they had
PC. My finding is no, they do not. Based on all of the
facts and circumstances that I’ve put together, I think there
was sufficient probable cause.
Because the trial court correctly denied Mueller’s motion to suppress,
appellate counsel did not perform deficiently by failing to challenge the ruling on
direct appeal. See United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000)
(“Appellate counsel is not ineffective for failing to raise claims reasonably considered
to be without merit.”). “[I]nvoluntary transport to a police station for questioning is
sufficiently like arrest to invoke the traditional rule that arrests may constitutionally
be made only on probable cause.” Kaupp v. Texas, 538 U.S. 626, 630 (2003).
“Probable cause exists where the facts within the collective knowledge of law
enforcement officials, derived from reasonably trustworthy information, are
sufficient to cause a person of reasonable caution to believe that a criminal offense
has been or is being committed.” Gates v. Khokhar, 884 F.3d 1290, 1298 (11th Cir.
2018). Probable cause requires only “a probability or substantial chance of criminal
activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 243
n.13 (1983).
- 28 -
Law enforcement had probable cause to arrest Mueller. By the time Mueller
was taken to the police station, police (1) knew that an eyewitness had identified
Mueller as the driver of a vehicle seen leaving the location of the first shooting, (2)
knew that an officer had found Mueller exiting a vehicle that matched the description
of the car from the first shooting, (3) knew that Barnes had identified Mueller as the
person who shot at his house shortly after threatening to kill him, and (4) knew that
Mueller independently knew the race of the first shooting victim. These facts were
cumulatively “sufficient to cause a person of reasonable caution to believe that a
criminal offense ha[d] been . . . committed.” Gates, 884 F.3d at 1298. Therefore, the
trial court correctly denied Mueller’s first motion to suppress, and appellate counsel
did not perform deficiently by failing to raise the issue on direct appeal.
In his second motion to suppress, Mueller argued that all post-arrest
identifications were inadmissible because Officer Wireman’s police report included
two false statements. (Respondent’s Exhibit 18 at 1) First, Officer Wireman asserted
that Barnes had identified Mueller as “the subject who shot at his house.”
(Respondent’s Exhibit 18 at 1) Second, Officer Wireman stated that Sgt. Mackenzie
had “placed [Mueller] in the back seat of a marked patrol car.” (Respondent’s
Exhibit 18 at 1) Mueller contended that these allegedly false statements were
“necessary to the finding of probable cause for initial arrest.” (Respondent’s Exhibit
18 at 1) Based on these allegations, Mueller requested a Franks 7 hearing. The trial
7
Franks v. Delaware, 438 U.S. 154 (1978).
- 29 -
court denied the motion because it “raised the same grounds that we’ve already gone
over in the original motion to suppress.” (Respondent’s Exhibit 12 at 9)
The second motion to suppress lacked merit. Therefore, appellate counsel did
not perform deficiently by failing to challenge the denial of the motion on direct
appeal. See Nyhuis, 211 F.3d at 1344 (“Appellate counsel is not ineffective for failing
to raise claims reasonably considered to be without merit.”). To justify a Franks
hearing, a defendant must “make[] a substantial preliminary showing” that an officer
made intentionally false or recklessly misleading statements necessary to a probablecause finding. Franks, 438 U.S. at 155–56. Mueller did not make the required
showing.
The first statement — that Barnes identified Mueller as the man who shot at
his house — was not false. Barnes was away from home during the shooting, but he
told police that he “knew” Mueller “did this” because during a phone call “just
prior” to the shooting, Mueller had “threatened to kill him.” (Respondent’s Exhibit
11 at 14, 55–56) Consequently, the first statement was accurate, and its inclusion in
the police report did not entitle Mueller to a Franks hearing.
Mueller argued that the second statement was false because Officer Wireman,
not Sgt. Mackenzie, “placed him in the back of the police car.” (Respondent’s
Exhibit 18 at 1–2) Even assuming this statement was false, Mueller cannot show it
was “necessary to the finding of probable cause.” Franks, 438 U.S. at 156.
- 30 -
The trial court correctly denied Mueller’s two motions to suppress. As a
consequence, appellate counsel did not perform deficiently by failing to challenge the
rulings on direct appeal. Ground two is denied.
VI. CONCLUSION
Mueller’s application for the writ of habeas corpus (Doc. 1) is DENIED. The
clerk must enter a judgment against Mueller and CLOSE this case.
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Because Mueller fails to demonstrate either a substantial showing of the denial
of a constitutional right or that reasonable jurists would debate both the merits of the
grounds and the procedural issues, a certificate of appealability and leave to appeal in
forma pauperis are DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
478 (2000). Mueller must obtain permission from the court of appeals to appeal in
forma pauperis.
ORDERED in Tampa, Florida, on March 7, 2024.
- 31 -
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