Jennings v. Secretary, Department of Corrections et al

Filing 13

ORDER denying 1 Petition for writ of habeas corpus filed by Kevin Jennings and directing Clerk to enter judgment for Respondent, terminate any pending motions, and close the case. A COA and IFP status on appeal are denied. Signed by Judge William F. Jung on 8/10/2020. (CCB)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEVIN JENNINGS,
Petitioner,
v.

Case No. 8:18-cv-337-T-02AEP

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________________/
ORDER
On February 7, 2018, Petitioner Kevin Jennings filed his petition under 28
U.S.C. § 2554 for a writ of habeas corpus by a person in state custody. Dkt. 1. He
seeks relief from a June 26, 2012, Florida state court conviction. Id. Respondent
filed a response in opposition, Dkt. 11, and the Petitioner provided notice of intent
not to file a reply. Dkt. 12. This Court finds that a hearing is unnecessary and denies
the petition.
Background
On March 24, 2004, at age fifteen, Petitioner was arrested at his home
following an altercation in which he shot his older brother. Dkt. 11-2 at 33. On
October 15, 2004, Petitioner pled no contest to one count of attempted second
degree murder (count one) and one count of carrying a concealed firearm (count

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two); and on December 14, 2004, he was sentenced as a youth offender to
concurrent sentences of four years on each count followed by two-years’
community control on count one and one-year of community control on count two.
Dkt. 11-2 at 16–24. Petitioner did not file an appeal and was released from prison
on April 9, 2008. Dkt. 11 at 2.
Upon his release, the Petitioner began the community-control portion of his
sentence, which was served without issue for twenty-one months. On January 15,
2010, however, Petitioner was arrested after allegedly violating the conditions of
community control by committing new offenses of aggravated assault on a law
enforcement officer, aggravated fleeing to elude, driving without a valid driver’s
license, failing to remain confined to his approved residence, and by leaving the
county without permission. Dkt. 11 at 2; Dkt. 11-2 at 51–52. On April 4,, 2010, the
Petitioner admitted to violating the conditions of community control by failing to
remain confined to his approved residence and leaving the county without
permission and was subsequently sentenced to concurrent sentences of twenty-five
years in prison on count one and five years in prison on count two. Dkt. 11 at 2.
Petitioner then filed a timely notice of appeal. Dkt. 11-2 at 93.
Petitioner filed a motion to correct sentence while awaiting the result of his
appeal. Dkt. 11-2 at 100. The motion was granted and the revocation of community
control and associated sentence for count two were vacated because community
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control for count two had only been one year. Dkt. 11-2 at 110. Regarding count
one, the court found that, absent new law violations, the Petitioner should have
been sentenced as a youth offender to no more than six years in prison. Dkt. 11-2
at 110. Based on the plea negotiations that led to the twenty-five-year sentence, the
court allowed the Petitioner to withdraw or reaffirm his plea, and also allowed the
state an opportunity to rescind or reaffirm the plea agreement. Id. Petitioner
reaffirmed his plea, but the state decided to rescind the plea agreement. Dkt. 11-2
at 114, 116. In turn the court vacated the twenty-five-year sentence on count one,
and Petitioner filed a plea of denial on the alleged violations and a motion for
rehearing. Dkt. 11-2 at 118–19, 122. The motion for rehearing was granted in part
and denied in part, and the court granted a stay pending appeal. Dkt. 11-2 at 130–
32. The state appellate court affirmed without opinion on January 31, 2012. Dkt.
11-2 at 158.
The state circuit court lifted its stay on the proceedings and held a revocation
hearing on June 26, 2012. Dkt. 11-2 at 164–65. The court found the Petitioner had
violated the conditions of his community control by committing the new offenses
of fleeing and attempting to elude an officer, aggravated assault on a law
enforcement officer, and by being out of his residence and out of the county.
Petitioner was then sentenced to thirty years in prison with a twenty-five-year
minimum mandatory sentence on count one. Dkt. 11-2 at 271–78. On July 2, 2012,
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the court resentenced Petitioner to the same sentence but provided that he would
maintain his youthful offender status solely for classification purposes in the
Department of Corrections. Dkt. 11 at 3–4. Petitioner again filed a notice of appeal.
Dkt. 11-2 at 283.
The Petitioner filed a motion to correct a sentencing error while his appeal
was pending. Dkt. 11 at 4. The motion was granted, so the twenty-five-year
mandatory minimum was struck; however, the corrected sentence rendered on
April 22, 2013 maintained the thirty-year sentence. Id. The state appellate court
reaffirmed the revocation of community control and the sentence on May 27, 2014.
Id.
On September 24, 2014, the Petitioner filed a signed motion for postconviction relief. Dkt. 11-3 at 7. Petitioner raised four grounds in his motion. Id. at
9–20. Ground one alleged that Petitioner’s counsel was ineffective for failing to
call witness Kentrea Wicox at the violation of community control hearing held on
June 26, 2012. Id. at 10–13. Ground two alleged Petitioner’s due process rights
were violated by his being sentenced as a violent felony offender. Id.at 13–14.
Ground three alleged Petitioner’s due process rights were again violated, this time
by his being sentenced to thirty years of incarceration based on reclassification of
attempted second-degree murder to a first degree felony, despite the fact that he
was designated as a youthful offender during his original sentencing. Id.at 14–15.
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Finally, ground four alleged that counsel was again ineffective, this time for failing
to investigate judicial bias. Id. at 15–19.
On April 6, 2015, the state postconviction court denied the Petitioner’s
motion for postconviction relief and directed the state attorney to respond to
grounds one and four of the Petitioner’s motion. Dkt. 11-3 at 103–12. On July 30,
2015, the postconviction court granted Petitioner a limited evidentiary hearing on
grounds one and four of his motion for postconviction relief. Id. at 198–99. An
evidentiary hearing was held on June 9, 2016. Dkt. 11 at 5. The motion was denied
on July 6, 2016. Dkt. 11-3 at 275–86. Petitioner filed an appeal which was
affirmed without an opinion. Id. at 300, 49. Petitioner then filed his petition for
federal habeas corpus relief. Dkt. 1. Respondent concedes, and this Court agrees,
that the petition is timely and appropriately exhausted.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this petition. Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.
1998). AEDPA “establishes a highly deferential standard for reviewing state court
judgments.” Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 768 (11th Cir.
2003). This type of review does not allow relief of a state court conviction on a
claim:
that was adjudicated on the merits in the State court proceedings unless
the state court’s decision was ‘(1) . . . contrary to, or involved an
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unreasonable application of, clearly established Federal law as
determined by the Supreme Court of the United States; or (2) . . . based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’
Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir. 2016)
(quoting 28 U.S.C. § 2254(d)).
“Clearly established Federal law” means holdings of the U.S. Supreme
Court “as of the time of the relevant state-court decision.” Id. at 1288–89.
“Contrary to” requires a state court conclusion “opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially indistinguishable facts.” Id. at
1289 (citations omitted) (alterations in original). The “unreasonable application”
clause applies only “if the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. (citation omitted) (alterations in
original).
Moreover, a state court’s factual determination “is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the
first instance.” Id. (citation omitted). Indeed, “even if reasonable minds reviewing
the record might disagree about the [fact] finding in question, on habeas review
that does not suffice to supersede the [state] trial court's determination.” Wood v.
Allen, 558 U.S. 290, 301 (2010). Further, this standard applies even if the state
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court does not provide the reasoning behind its decision because “the summary
nature of a state court’s decision does not lessen the deference that it is due.”
Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002). If this
Court determines that the state court's adjudication of Petitioner’s claim was
unreasonable under § 2254(d), we must then undertake a de novo review of the
record. See McGahee v. Ala. Dep't of Corr., 560 F.3d 1252, 1266 (11th Cir. 2009).
Discussion
Petitioner raises three grounds for relief. Respondent argues that each of
these grounds are meritless and should be denied. This Court agrees.
1. Ineffective Assistance of Counsel: Failure to Call Witness Claim
In Ground One, Petitioner argues that his attorney was ineffective at his
violation of community control hearing for failing to call Kentrea Wicox as a
witness. Dkt. 1 at 3. Counsel is ineffective if “(1) counsel’s performance was
deficient; and (2) the deficient performance prejudiced the defense such that
petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d 1344, 1354 (11th Cir.
2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). But in the
habeas context, “[t]he question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (citation and internal quotation marks
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omitted). “If there is ‘any reasonable argument that counsel satisfied Strickland’s
deferential standard,’ then a federal court may not disturb a state-court decision
denying the claim.” Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir.
2014) (citation omitted). Petitioner fails to meet this high standard.
Simply, Petitioner argues that his conviction was based on two pieces of
evidence: Wicox’s identification of him and Deputy Lutz’s identification of him.
On the night of the arrest, Deputy Lutz noticed an SUV with a broken tail light
drive past him. Dkt. 11-2 at 184. Deputy Lutz followed the SUV for some time
before attempting to make a traffic stop when the vehicle stopped in a
neighborhood. Id. at 184–85. Once the vehicle stopped, a passenger, later found to
be Ms. Wicox, got out of the passenger side of the vehicle, and made her way into
an adjacent home. Id. at 186. Deputy Lutz then approached the vehicle, but before
he got to the driver’s side, the vehicle took off. Id. Deputy Lutz took chase. Id. at
187.
After some time being chased, the SUV turned into a gravel parking lot. Id.
at 188. Officer Lutz assumed the driver was about to get out of the SUV and run
away on foot but the SUV immediately made a U-turn in the driveway and began
to charge towards Officer Lutz. Id. At that moment, with his headlights shining and
his car temporarily stationary, Officer Lutz made eye contact with the driver of the
SUV. Id. at 189. Then to avoid being rammed by the SUV driver Officer Lutz
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quickly reversed his vehicle with the cars essentially being “nose to nose.” Id. at
188. The SUV then took off and Officer Lutz was unable to follow. Id. at 189.
At this point, Deputy Lutz and another officer, Deputy Kenney, returned to
the home that Ms. Wicox was dropped off at to interview her. Id. at 195. Ms.
Wicox told the officers “that the driver of that vehicle had called her at the house
before and was able to provide [them] a telephone number for him, and that
telephone number was also identified by a digital name printout on that phone . . .
as [Petitioner].” Id. at 196. At this point an unknown caller telephoned Ms. Wicox.
Id. at 196–97. She answered and the man on the line began to ask her questions
about whether she told the police who he was—indicating that the caller was also
the driver. Id. at 197–98. Deputy Kenney then showed Deputy Lutz a photograph
of Petitioner and Deputy Lutz claimed that he recognized Petitioner as the driver of
the SUV. Id. at 200.
The officers then relayed the information to the Bradenton Police
Department, who arrested Petitioner in his home. Id. at 199–200. The SUV was not
at the home when officers arrived and was found a few days later miles away from
the home with no physical evidence that Petitioner had been associated with it. Id.
at 208–09. Although Petitioner claimed he was at his mother’s house during the
time of the alleged incident, Deputy Lutz provided a final identification at the

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scene of arrest, and Petitioner was then arrested for fleeing Deputy Lutz and
violating the terms of his probation. Id. at 200.
Petitioner now argues that his trial counsel was ineffective for failing to call
Wicox as a witness at the violation hearing. While Petitioner alleges he had phone
calls with Wicox where she admitted lying to police and told Petitioner she would
testify, Dkt. 1 at 5, Petitioner needs more than conclusory allegations. See Tejada
v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (stating that a movant is not
entitled to habeas relief when his claims are merely “conclusory allegations
unsupported by specifics or contentions that in the face of the record are wholly
incredible.”). Petitioner would need actual testimony by Wicox or an affidavit
attesting to her new statement. United States v. Ashimi, 932 F.2d 643, 650 (7th Cir.
1991) (“[E]vidence about the testimony of a putative witness must generally be
presented in the form of actual testimony by the witness or on affidavit. A
defendant cannot simply state that the testimony would have been favorable; selfserving speculation will not sustain an ineffective assistance claim.”). Because
Petitioner has not presented Wicox’s testimony outside of Petitioner’s
uncorroborated self-serving hearsay, Petitioner’s claim cannot be granted.
But even accepting Wicox’s purported testimony, the postconviction court
found Petitioner failed to meet his burden under Strickland. The postconviction
court held:
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In his motion, he alleges that her absence resulted in prejudice
because her testimony, combined with a police identification
discrepancy [as to Petitioner’s skintone], would have changed the
outcome of the VOCC hearing. However, his allegation of prejudice is
refuted by the record. There was enough evidence presented at the
VOCC hearing that Ms. Wicox’s testimony was not dispositive of
Defendant's case. The Court was well aware of Ms. Wicox’s alleged
statements, as testified to by Defendant and his relative, Mary
Holloway. The Court still found Defendant guilty of VOCC based on
the other evidence presented.
Deputy Samuel Lutz of the Sarasota County Sheriff’s Office
testified at Defendant’s VOCC hearing and indicated that the person he
observed driving the vehicle on the night Defendant was arrested was a
“light-skinned black male.” Deputy Lutz also stated that he was able to
identify Defendant immediately as the person driving the vehicle, after
being shown a photograph of Defendant on Deputy Kenney’s
computer. He also identified him when he was being escorted out of
his residence under arrest. Finally, Deputy Lutz explained that the
description contained in the Sheriff’s case card, indicating that the
suspect driving the car was a dark-skinned black male, was likely due
to a typographical error.
While Defendant contends that there was a “discrepancy” in the
police identification during the VOCC hearing, Defendant’s assertion
mischaracterizes the testimony offered by Deputy Lutz. Deputy Lutz
did not offer any inconsistent testimony during that hearing, and he
explained that the inconsistency in the Sheriff’s case card, which was
prepared by the Sheriff’s Office dispatcher rather than Deputy Lutz,
was likely due to a typographical error. Accordingly, the Court finds
that the record clearly indicates that there was reliable, consistent
testimony offered during the VOCC hearing on which the Court could
conclude that Defendant was in fact the person driving the vehicle,
consistent with Deputy Lutz’s testimony.
As Defendant could not show prejudice, he fails to show
ineffective assistance of counsel. Therefore, further analysis on this
issue is not necessary.
Dkt. 11-3 at 280–82 (internal citations omitted). After a review of the record and
the applicable law the Court finds Petitioner is not entitled to relief based on this
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claim. The state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable determination of the
facts considering the evidence presented in the state court proceedings.
Petitioner is unable to show that the postconviction court was unreasonable
in its view of the facts. For Strickland’s deficiency prong, it is unclear what the
postconviction court held. The postconviction court discusses Petitioner’s trial
counsel’s conduct but does not make a direct finding whether his actions were
deficient. This is likely because it is unclear whether Petitioner’s counsel’s actions
were deficient. However, in order to be entitled to relief Petitioner must have
proven both Strickland prongs. See Strickland, 466 U.S. at 697 (1984) (noting that
a court may decide or analyze the prongs in any order because both are necessary
for relief). And Petitioner is unable to show that the postconviction court’s
prejudice prong finding was unreasonable.
Prejudice is established by a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. As noted, Petitioner’s conviction was essentially based
on two pieces of evidence: Wicox’s initial identification of him as the driver of the
SUV and Officer Lutz’s identification of the same. Petitioner argues that if Wicox
had testified the outcome of the proceeding would have been different. There is
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some possibility that this is true, but this Court can only provide habeas relief if
Petitioner shows that the postconviction court unreasonably found that Wicox’s
testimony would have had no effect. This Petitioner has not done.
The postconviction court found “that the record clearly indicates that there
was reliable, consistent testimony offered during the [hearing] on which the Court
could conclude that Defendant was in fact the person driving the vehicle[.]” Dkt.
11-3 at 281–82. The postconviction court noted that Officer Lutz’s identification
provided sufficient basis for the conviction. While this Court may view the facts of
this case differently, Petitioner is unable to show that this is an unreasonable view
of the facts.
Petitioner must contend with the identification by Officer Lutz. No matter if
Wicox had testified, Officer Lutz testified that he saw Petitioner driving the SUV.
Petitioner argues that the identification by Officer Lutz was suspect because it
would have been improbable for him to see the driver of the car during the car
chase and the description recorded by dispatch—and allegedly given by Officer
Lutz—described the driver as a dark-skinned black male while Petitioner is lightskinned. Yet, this Court must accept any findings of fact made by state courts
unless they are shown to be unreasonable. Plaintiff is unable to do so.
“A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as fairminded jurists could disagree on the correctness of that
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decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation
omitted). While this Court may find Officer Lutz’s identification less than perfect,
a fair-minded jurist could disagree and find the identification entirely plausible. It
may have been difficult for Officer Lutz to see who was driving the fleeing SUV
while backing up to escape, but it was surely not impossible. Officer Lutz testified
that he had his lights on while backing up and that he was initially stationary in his
vehicle before the driver of the SUV drove at him. So, for some time—albeit
brief—Officer Lutz was stationary while looking directly into the fully illuminated
cabin of the SUV. Dkt. 11-2 at 188. This may not have been a perfect identification
nor was it unimpeachable—in fact Petitioner’s trial counsel spent a great deal of
time on this point—but it is a reasonable finding for the state court to make that
Officer Lutz saw Petitioner driving the vehicle.
And, while the switch up of dark-skin and light-skin in the dispatch
description is worrisome, it is not unreasonable to believe Officer Lutz’s
identification anyway. Even assuming Officer Lutz originally identified the driver
of the SUV as dark-skinned—something that is not entirely clear from the
record—it is not unreasonable to find that Petitioner’s skin color could be mistaken
in the context of Officer Lutz’s initial identification.
While this Court may find some of the details troubling and may very well
take a different view of the facts in this case had it been the trier of fact, the
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postconviction court’s view of the facts is reasonable and based on factual
determinations that Petitioner is unable to rebut with evidence. While Petitioner’s
trial counsel could have shown more diligence about pursuing Wicox and calling
her at the hearing so she could recant her identification of Petitioner, Petitioner is
unable to show that the postconviction court’s finding that there was no prejudice
was unreasonable. In habeas cases “state court[s] must be granted a deference and
latitude that are not in operation when the case involves review under the
Strickland standard itself.” Harrington v. Richter, 562 U.S. 86, 101 (2011). There
is a reasonable argument that Officer Lutz’s identification was believable and
sufficient on its own so that Wicox’s testimony would have been futile. So
Petitioner is not entitled to relief under Ground One.
2. Due Process Violation Under Sixth and Fourteenth Amendments Claim
In Ground Two, Petitioner claims that he was illegally sentenced to 30years’ incarceration when his second-degree felony—attempted second-degree
murder—was “reclassified to a first-degree felony for use of a firearm under
§775.087(1)(b), Fla. Stat. (2004) and (2012), the 10/20/Life statute, after he was
designated a youthful offender at his original sentencing.” Dkt. 1 at 9–10.
Petitioner asserts that the state trial court, as well as the state appellate court’s
ruling on the issue, is contrary to, or involved an unreasonable application of
clearly established federal law as determined by the Sixth and Fourteenth
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Amendments to the U.S. Constitution, and resulted in a decision that was based on
an unreasonable determination of facts in light of the evidence presented in the
state court proceeding. But this Ground is not appropriate for federal habeas
review.
On October 15, 2004, Petitioner entered a plea of nolo contendere to Count
One: Attempted Second-Degree Murder with a firearm; and Count Two: Carrying
a Concealed Weapon. Dkt. 11 at 1 He was subsequently designated a youthful
offender and sentenced to 4 years’ Florida Department of Corrections (FDC)
followed by 2 years’ community control for Count One and 4 years’ FDC followed
by 1 year of community control for Count Two.Id. at 1–2. Petitioner asserts that
since he was designated as a youthful offender during his original sentencing, the
offense could not later be reclassified—as was done during his subsequent
sentencing. But this claim involves a matter of state law not fit for federal habeas
review. It follows that Petitioner is not entitled relief on Ground Two.
Only a violation of federal law subjects state custody to federal habeas
review. See 28 U.S.C. §2254 (a) (“[A] district court shall entertain an application
for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment
of a State court only on the ground that he is in custody in violation of the
Constitution or law or treaties of the United States.”) “[F]ederal habeas corpus
relief does not lie for errors of state law” Wilson v. Corcoran, 562 U.S. 1, 5 (2010)
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(internal quotation omitted). Whether an offense can be reclassified based on the
use of a firearm after a defendant is found to be a youthful offender is a question of
state law and “[a] state prisoner does not raise an issue of federal constitutional
concern my merely couching state law issues in terms of due process.” Sellers v.
Sec’y, Fla. Dep’t of Corr., No. 16-15419-G, 2017 WL 3873376, at *4 (11th Cir.
June 1, 2017) (citing Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)).
Since Petitioner in this case only raises a claim that involves a matter of state law,
he is not entitled to relief.
3. Ineffective Assistance of Counsel: Defense Counsel Failed to Investigate
Judicial Bias and Recuse Judge Claim
Petitioner asserts that defense counsel was ineffective for not adequately
investigating any judicial bias by the presiding judge, Circuit Judge Janette
Dunnigan. Petitioner points to an April 2011 email sent by the trial judge offering
to help arrange a fundraiser for the prevailing state attorney candidate in the lead
up to an election. Dkt. 1 at 12.
At the postconviction evidentiary hearing, Petitioner’s counsel testified that
he became aware of the trial judge’s April 2011 email on August 9, 2012, after
hearing that another defense attorney filed a motion to recuse the trial judge in an
unrelated case. Dkt. 11-3 at 228. The email was sent from the trial judge’s official
court email account and asked the court administrator to inform the candidate that
Ed Chiles, the son of a former Florida governor, would support the candidate’s
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campaign. Specifically, the trial judge recounted, “You can tell [the candidate] that
Ed Chiles will support him and do a fundraiser up here. I talked with him on
Saturday…Tell [the candidate] to mention my name when he calls.” Dkt. 1 at 13.
The email was then forwarded to the candidate. Dkt. 11-3 at 177.
The other defense attorney that filed a motion for the trial judge to recuse
herself in her case had her motion denied, and then appealed to the Second District
Court of Appeal claiming that the trial judge was biased towards the prosecution
because of the content of her email. Dkt. 1 at 13–14. However, the trial judge
voluntarily transferred herself from the criminal division to the civil division of the
Twelfth Judicial Circuit, making the appeal moot. Id at 14. Petitioner argues that
by voluntarily transferring herself, the trial judge had admitted the impropriety of
her actions and construed a bias towards the prosecution. Id.
However, Petitioner’s defense counsel claimed that after researching the
issue, he did not think that a motion to recuse would be well-founded. Dkt. 11-3 at
231–32. Counsel also testified that the evidentiary hearing took place months
before he was aware of the email and there was no reason to suspect that such an
email existed. Id. at 240. Petitioner claimed to have heard about the content of
Judge Dunnigan’s email from a newspaper article and accordingly he wrote his
counsel numerous letters on the issue. Id. at 250–51. Later, Petitioner asserted that

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he asked counsel to file a motion to vacate his sentence based on the content of the
email. Id. at 251.
In denying relief on the claim, the state postconviction court found counsel’s
decision not to file a motion for recusal was a reasonable one. Dkt. 11-3 at 284.
The court concluded that counsel’s decision not to file a motion was made after
consultation with colleagues and thorough analysis. Id. at 283–84. The
postconviction court gave counsel’s decision significant deference since counsel
thoroughly considered the possibility of filing such a motion, even though he
ultimately decided not to. Id. In the absence of considerable evidence showing that
such a decision was unreasonable, the postconviction court found that counsel’s
decision was not unreasonable; and this Court agrees. As noted above, “strategic
choices made [by trial counsel] after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable” Strickland, 466 U.S. at
690–91. Since Petitioner’s trial counsel conducted reasonable investigation into
this issue his trial counsel was not deficient under Strickland and he is not entitled
to relief under this claim.
Moreover, even if his counsel’s actions were deficient, the postconviction
court found that the Petitioner did not suffer any actual prejudice by trial counsel’s
decision not to file a motion to disqualify Judge Dunnigan from the case. Dkt. 11-3
at 284–85. The postconviction court supported this notion by recognizing that
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Petitioner’s sentence was ultimately affirmed on appeal. Id. Based on the factual
findings of the case, the postconviction court reasonably concluded that Petitioner
failed to establish any deficient performance of counsel or prejudice. This Court
affirms the denial of relief on this claim since it was not contrary to, nor an
unreasonable application of, Strickland. Petitioner is not entitled to relief on
Ground Three.
Certificate of Appealability
“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant,” and if a certificate is issued, “the
court must state the specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Proceedings for
the United States District Courts; see Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To merit a COA, Petitioner must show that reasonable jurists would find
debatable both the merits of the underlying claims and the procedural issues he
seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Because he fails to
show that reasonable jurists would debate either the merits of the claims or the
procedural issues, Petitioner is not entitled to either a COA or leave to appeal in
forma pauperis.

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Case 8:18-cv-00337-WFJ-AEP Document 13 Filed 08/10/20 Page 21 of 21 PageID 935

Accordingly, a certificate of appealability is denied. Leave to appeal in
forma pauperis is denied. Petitioner must obtain permission from the circuit court
to appeal in forma pauperis.
Conclusion
The Court denies the Petition with prejudice. Dkt. 1. The Clerk is directed to
enter judgment accordingly, terminate any pending motions, and close the file.
DONE AND ORDERED at Tampa, Florida, on August 10, 2020.

COPIES FURNISHED TO:
Counsel of Record
Petitioner, pro se

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