Martin v. Secretary, Department of Corrections et al
Filing
36
OPINION AND ORDER. 1. The petition for the writ of habeas corpus 1 is DENIED. 2. The Clerk is directed to enter judgment against Martin and close this case. 3. Martin neither makes a substantial showing of the denial of a constitutional r ight nor demonstrates that reasonable jurists would find debatable both the merits of the underlying claims and the procedural issues. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000). Consequently, a certificate of appealability and leave to appeal in forma pauperis are DENIED. Signed by Judge Charlene Edwards Honeywell on 3/8/2021. (BGS)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANTHONY MARTIN,
Petitioner,
-v-
Case No. 8:18-cv-379-T-36JSS
FLORIDA, DEPARTMENT
OF CORRECTIONS,
Respondent.
________________________________/
ORDER
Martin petitions for the writ of habeas corpus under 28 U.S.C. § 2254
challenging his state court conviction for robbery. (Doc. 1) The respondent filed a
response and an appendix with the state court record (Docs. 11, 13, and 20), and
Martin replied. (Docs. 21-5 and 31) In his petition, Martin raises five grounds. (Doc.
1 at 4–12) In his reply, he abandons some of those grounds by stating: “Petitioner
abandons claims one through three — and claim five — of his habeas corpus petition
and replies only to ground four.” (Doc. 31 at 1) Consequently, the district court
addresses ground four. 1 The respondent concedes the timeliness of the petition (Doc.
11 at 5) and the exhaustion of ground four. (Doc. 11 at 27–29)
In grounds one, two, and three, Martin asserted that trial counsel was ineffective for not
impeaching a police officer with a photograph at a suppression hearing, for not challenging the trial
court’s finding based on that officer’s testimony, and for not arguing that the prosecution failed to
meet its burden at that hearing. (Doc. 1 at 4–8) The post-conviction court denied the claims as refuted
by the record. (Doc. 13, Ex. 12 at 14–20) In ground five, Martin asserted that trial counsel was
ineffective for not asking the trial court for a second competency hearing before withdrawing as
1
1
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FACTS 2
On January 13, 2007, Martin went to a Bank of America, walked up to a teller,
demanded “all of the money,” said that he had a “Magnum” handgun, and threatened
to shoot the teller and then himself. The teller gave him $7,246.00. Surveillance
cameras at the bank recorded the robbery. The teller identified Martin as the robber
in the surveillance video and in court.
Several weeks later, a police officer responded to a call for a domestic dispute.
The officer spoke with a boyfriend and girlfriend who were fighting. The girlfriend
went to a neighbor’s home, and the boyfriend stayed with the officer. The boyfriend
asked the officer to get his keys from his girlfriend. The officer walked to the neighbor’s
home, saw that the door was partially opened, knocked on the frame of the door, and
said that he needed to get some keys. Someone inside said, “Come on in.”
The officer walked inside and observed Martin sitting on the couch. The officer
recognized Martin because earlier that day the officer had looked at photographs of
another robbery at a Wachovia Bank. 3 The officer arrested Martin and turned him
over to a detective investigating both robberies. After Martin’s wife gave police
consent to search the home, another police officer seized a sweater that the teller
counsel. (Doc. 1 at 11–12) The post-conviction court denied the claim as refuted by the record as well.
(Doc. 13, Ex. 12 at 29)
2
The facts derive from the briefs on direct appeal and the state court record.
3
Martin represented himself at trial and opened the door to the admission of testimony and
evidence relevant to this second robbery.
2
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identified as the sweater that Martin wore during the Bank of America robbery. Also,
the teller identified Martin in a photographic lineup prepared by the detective.
A jury found Martin guilty, and the trial court sentenced him to 15 years of
prison which runs consecutively to a sentence in another case. (Doc. 13, Ex. 30 at
430–35) The state appellate court affirmed his conviction and sentence. (Doc. 13, Ex.
4) The post-conviction court denied his Rule 3.850 motion for post-conviction relief
(Doc. 13, Exs. 8, 9, 12, and 14) and the state appellate court affirmed the denial of the
motion. (Doc. 13, Ex. 19) Martin’s timely federal petition follows.
GOVERNING LEGAL PRINCIPLES
AEDPA
Because Martin filed his federal petition after the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996, AEDPA governs the review
of his claims. Lindh v. Murphy, 521 U.S. 320, 336–37 (1997). AEDPA amended 28
U.S.C. § 2254(d) to require:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim —
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
3
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Williams v. Taylor, 529 U.S. 362, 412–13 (2000) interprets this constraint on the
power of the federal habeas court to grant a state prisoner’s petition:
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.
Clearly established federal law refers to the holding of a U.S. Supreme Court’s opinion
at the time of the relevant state court decision. Williams, 529 U.S. at 412.
“[A]n unreasonable application of federal law is different from an incorrect or
erroneous application of federal law.” Williams, 529 U.S. at 412 (italics in original).
Even clear error is not enough. Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017).
A federal petitioner must show that the state court’s ruling was “so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S.
86, 103 (2011).
“This is ‘meant to be’ a difficult standard to meet.”
LeBlanc,
137 S. Ct. at 1728 (quoting Richter, 562 U.S. at 102).
A factual determination by the state court is not unreasonable “merely because
the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). A federal habeas court may grant
relief only if “in light of the evidence presented in the state court proceedings, no
reasonable jurist would agree with the factual determinations upon which the state
4
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court decision is based.” Raleigh v. Sec’y, Fla. Dep’t Corrs., 827 F.3d 938, 948–49
(11th Cir. 2016). A state court’s factual determinations are presumed correct, and a
petitioner has the burden of rebutting that presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 694 (2002). Consequently, “review under Section 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the merits.” Cullen
v. Pinholster, 563 U.S. 170, 181–82 (2011). Accord Landers v. Warden, Att’y Gen. of Ala.,
776 F.3d 1288, 1294–95 (11th Cir. 2015) (applying Pinholster to Section 2254(d)(2)).
If the last state court to decide a federal claim explains its decision in a reasoned
opinion, a federal habeas court reviews the specific reasons in the opinion and defers
to those reasons if reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). If the
last state court decision is without reasons, 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.” Id. at 1192.
Ineffective Assistance of Counsel
Martin asserts ineffective assistance of counsel — a difficult claim to sustain.
Strickland v. Washington, 466 U.S. 668, 687 (1984) explains:
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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.
“There is no reason for a court deciding an ineffective assistance of counsel claim . . .
to address both components of the inquiry if the defendant makes an insufficient
showing on one.” 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.”
Strickland, 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. “An 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.” 466
U.S. at 691. To demonstrate prejudice the defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” 466 U.S. at 691. A reasonable probability is a “probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable.” Strickland,
466 U.S. at 690–91. Because the standards under Strickland and AEDPA are both
6
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highly deferential, “when the two apply in tandem, review is ‘doubly’ so.” Richter,
562 U.S. at 105. “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.’” Nance v. Warden, Ga. Diag.
Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (quoting Johnson v. Sec’y, Dep’t Corrs., 643
F.3d 907, 911 (11th Cir. 2011)).
ANALYSIS
Ground Four
Martin asserts that trial counsel was ineffective for not calling Jason Vernador
and Nancy Shaver as witnesses at a suppression hearing. (Doc. 1 at 9–10) He alleges
that both witnesses were on his front yard when the police officer walked into his home
and arrested him without a warrant. (Doc. 1 at 9) He contends that both witnesses
would have testified that the police officer did not knock or announce his presence
before entering his home, and no one else was inside the home to give the police officer
consent to enter. (Doc. 1 at 9) He asserts that, if both witnesses had testified at the
suppression hearing, the trial court would have granted his motion to suppress and
dismissed the robbery charge. (Doc. 1 at 9–10)
The post-conviction court both denied the claim as facially insufficient because
Martin did not allege that the witnesses were available to testify at the hearing and
granted him an opportunity to amend the claim. (Doc. 13, Ex. 8 at 11–12) Martin
filed an amended motion but the claim in the amended motion is identical to the claim
in the initial motion. (Docs. 13, Ex. 6 at 46–48 and 20-2 at 47–49) Consequently, the
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post-conviction court denied the claim in the amended motion with prejudice as
facially insufficient. (Doc. 13, Ex. 9 at 10–12)
Martin moved for rehearing and contended that he did allege that the witnesses
were available to testify on pages 47 and 48 of his amended motion. (Doc. 13, Ex. 12
at 22) The post-conviction court denied rehearing as follows (Doc. 13, Ex. 12 at 22)
(state court record citations omitted):
In his motion for rehearing, Defendant seeks rehearing on [the
claim] because he alleged in pages 47 and 48 of his September 6,
2011 “amended 3.850 motion for post-conviction relief including
defense exhibit appendix and memorandum of law” that they
were available to testify. However, after reviewing pages 47, 48,
and 49 of the September 6, 2011 amended motion, the January
6, 2012 order, the court file, and the record, the Court finds
nowhere on pages 47, 48, or 49 of Defendant’s September 16,
2011 amended motion does Defendant state that the witnesses
were available to testify. Therefore, the Court finds it properly
denied [the claim] with prejudice based on Defendant’s failure to
cure the facial deficiency in [the claim].
Martin moved for rehearing again and contended that either the clerk or court
staff docketed an incorrect amended motion. (Doc. 13, Ex. 15 at 12–13) He again
argued that he alleged that the witnesses were available to testify on pages 47 and 48
of his amended motion. (Doc. 13, Ex. 15 at 12) He explained that he presented the
same amended claim in a second amended motion as well and asked the postconviction court to reconsider the claim. (Doc. 13, Ex. 15 at 12–13) 4
In the second amended motion, Martin alleged that the witnesses were available to testify.
(Doc. 13, Ex. 10 at 46–49) He filed the second amended motion after the post-conviction court denied
the claim with prejudice.
4
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The post-conviction court denied the second motion for rehearing as follows
(Doc. 13, Ex. 16 at 3) (state court record citations omitted):
In his motion for rehearing, Defendant alleges that the Court
overlooked or misapprehended certain points in its orders
denying relief. In his reply, Defendant contests the assertions and
the attachments in the State’s response. After reviewing the
motion, the reply, the court file, and the record, the Court finds
the August 30, 2011, January 6, 2012, July 30, 2012, and August
15, 2012 orders adequately refuted the allegations in Defendant’s
Rule 3.850 pleadings. As such, no rehearing is warranted.
Martin appealed (Doc. 13, Ex. 17) and argued that the post-conviction court
erred by relying on an incorrectly docketed amended motion to deny the claim. (Doc.
13, Ex. 18 at 8–11) The state appellate court affirmed without a written opinion. (Doc.
13, Ex. 19)
In this federal action, Martin moved for an evidentiary hearing. (Doc. 27) He
argued that the respondent provided the incorrect amended post-conviction motion in
the appendix. (Doc. 27 at 2–3) He submitted a copy of the amended motion which
contains the allegation that the witnesses were available to testify. (Doc. 27-3 at
50–53) He also submitted an unsworn handwritten letter from a woman named
“Grandma Jean,” who spoke with Vernador. (Doc. 27-5) Vernador told “Grandma
Jean” what he observed just before police arrested Martin and said that the other
witness Shaver — his wife — had died. (Doc. 27-5 at 1) The letter was dated August
6, 2016 — several years after the state post-conviction proceedings concluded. (Doc.
27-5 at 1)
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Magistrate Judge Julie Sneed denied the motion for an evidentiary hearing as
follows (Doc. 30 at 2–3):
Upon consideration of this matter, Petitioner’s request for an
evidentiary hearing will be denied. Even if Petitioner was able to
establish at an evidentiary hearing that the copy of the September
9, 2011 amended Rule 3.850 he provided to this Court (Doc.
27-3) is the motion that was actually received and docketed by
the state court in September 2011, Ground Four of his petition
still would not warrant habeas corpus relief. In Ground Four,
Petitioner contends that his defense counsel was ineffective in
failing to call Jason Vernador and Nancy Shaver to testify during
the hearing on his motion to suppress (Doc. 1, p. 9).
“[C]omplaints of uncalled witnesses are not favored, because the
presentation of testimonial evidence is a matter of trial strategy
and because allegations of what a witness would have testified
are largely speculative.” Buckelew v. United States, 575 F.2d 515,
521 (5th Cir. 1978) (citations omitted). Moreover, “evidence
about the testimony of a putative witness must generally be
presented in the form of actual testimony by the witness or an
affidavit. A defendant cannot simply state that the testimony
would have been favorable; self-serving speculation will not
sustain an ineffective assistance claim.” United States v. Ashimi,
932 F.2d 643, 650 (7th Cir. 1991) (footnotes omitted). Hence, the
“petitioner must first make a sufficient factual showing,
substantiating the proposed witness testimony.” Percival v.
Marshall, 1996 WL 107279 at *3 (N.D. Cal. March 7, 1996),
affirmed, 106 F.3d 408 (9th Cir.1997). “Such evidence might be
sworn affidavits or depositions from the potential witnesses
stating to what they would have testified.” Id.
Petitioner has failed to present any evidence of actual testimony
or an affidavit from either Jason Vernador or Nancy Shaver.
Therefore, he only speculates on their proposed testimony and
presents no evidence showing that they would have testified as
Petitioner hypothesizes.
The state appellate court’s unexplained decision (Doc. 13, Ex. 19) affirming the
denial of the claim receives deference under Section 2254(d). Wright v. Sec’y, Dep’t
Corrs., 278 F.3d 1245, 1254–56 (11th Cir. 2002). Martin has the burden to show no
reasonable basis for the affirmance. Richter, 562 U.S. at 98. Because the unsworn
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handwritten letter by “Grandma Jean” is dated after the state post-conviction
proceedings concluded and was not part of the state court record, Martin cannot
support his claim with the letter. Pinholster, 563 U.S. at 181–82; Landers, 776 F.3d at
1294–95.
Even if Martin sufficiently alleged the claim in state court, he did not support
the claim with either an affidavit or deposition testimony to show that Vernador and
Shaver would have testified in the manner that he contended. (Doc. 13, Exs. 6 at
46–48 and 10 at 46–49 and Doc. 27-3 at 46–49) Because the claim was speculative,
the state court did not unreasonably deny the claim. Buckelew v. United States, 575 F.2d
515, 521 (5th Cir. 1978); United States v. Ashimi, 932 F.2d 643, 650
(7th Cir. 1991).
Even if Vernador and Shaver would have testified in the manner that Martin
contended, the outcome at trial would not have changed. In his motion to suppress,
Martin alleged that a police officer entered his home without a warrant and unlawfully
arrested him. (Doc. 13, Ex. 30 at 55–56) He asked the state court to suppress all fruits
of the arrest including clothing, tennis shoes, photographs of Martin and a burn mark
on his leg, currency, and statements that he made during an interview at the police
station. (Doc. 13, Ex. 30 at 55–56, 73–74)
“An illegal arrest, without more, has never been viewed as a bar to subsequent
prosecution, nor as a defense to a valid conviction.” United States v. Crews, 445 U.S.
463, 474 (1980). A defendant is “not himself a suppressible ‘fruit,’ and the illegality of
his detention cannot deprive the Government of the opportunity to prove his guilt
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through the introduction of evidence wholly untainted by the police misconduct.”
Crews, 445 U.S. at 474. “The question to be resolved when it is claimed that evidence
subsequently obtained is ‘tainted’ or is ‘fruit’ of a prior illegality is whether the
challenged evidence was ‘come at by exploitation of [the initial] illegality or instead by
means sufficiently distinguishable to be purged of the primary taint.’” Segura v. United
States, 468 U.S. 796, 804–05 (1984) (quoting Wong Sun v. United States, 371 U.S. 471,
488 (1963)).
At trial, overwhelming evidence not derived from Martin’s arrest proved his
guilt. Martin robbed the bank on January 13, 2007, and police arrested him on
February 1. (Doc. 13, Ex. 30, Trial Transcripts at 68, 97–102) The bank teller testified
that Martin demanded money from her, told her that he had a gun, and threatened to
shoot her. (Doc. 13, Ex. 30, Trial Transcripts at 70–71) Martin’s face was about two
feet away from the teller, and the teller saw his face for five to seven minutes. (Doc.
13, Ex. 30, Trial Transcripts at 72–73) Based on that observation, the teller identified
Martin as the robber in front of the jury. (Doc. 13, Ex. 30, Trial Transcripts at 76–79,
126–27) Surveillance cameras were installed behind the line at the teller, so that the
cameras could record the face of each customer. (Doc. 13, Ex. 30, Trial Transcripts
at 80) The prosecution showed the jury surveillance video and photographs of the
robbery. (Doc. 13, Ex. 30, Trial Transcripts at 81–87) The teller identified Martin in
the video and photographs. (Doc. 13, Ex. 30, Trial Transcripts at 84–87)
Instead of introducing currency at trial, the prosecutor presented testimony by
a custodian of records at the bank who accounted for $7,246.00 that the bank lost from
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the robbery. (Doc. 13, Ex. 30, Trial Transcripts at 95–96) A detective interrogated
Martin and took photographs of the burn on his leg at the police station. (Doc. 13,
Ex. 30 at 503–08) The trial court would not have suppressed this evidence obtained
outside of his home, even if the police illegally arrested Martin inside his home. New
York v. Harris, 495 U.S. 14, 21 (1990) (“We hold that, where the police have probable
cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a
statement made by the defendant outside of his home, even though the statement is
taken after an arrest made in the home in violation of Payton 5.”). Even so, the
prosecution did not introduce any of Martin’s statements during the interrogation
because he blamed his brother for the robbery. (Doc. 13, Ex. 30 at 285)
The prosecutor did introduce a sweater seized from Martin’s home after his
arrest. (Doc. 13, Ex. 30, Trial Transcripts at 115–16) The teller testified that Martin
wore the sweater during the robbery. (Doc. 13, Ex. 30, Trial Transcripts at 74–75, 87)
Also, the prosecutor introduced a photographic lineup with Martin’s photograph taken
just after his arrest. 6 (Doc. 13, Ex. 30, Trial Transcripts at 126–30) The teller identified
Martin in that lineup as the robber. (Doc. 13, Ex. 30, Trial Transcripts at 75–79) Yet,
other overwhelming evidence, including the teller’s unobstructed, five-minute
Payton v. New York, 445 U.S. 573, 576 (1980) (holding that “the Fourth Amendment to the
United States Constitution, made applicable to the States by the Fourteenth Amendment prohibits the
police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a
routine felony arrest.”) (citations omitted).
6
The record does not clearly show if the detective took the photograph of Martin for the
photographic lineup inside his home or at the police station. (Doc. 13, Ex. 30 at 503–08) In a sworn
post-judgment motion, Martin — who represented himself at trial — states that the photographic
lineup contained his booking photograph from jail. (Doc. 13, Ex. 30 at 441–42, 447)
5
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observation of Martin’s face and the surveillance video and photographs, proved
Martin’s identity as the robber. (Doc. 13, Ex. 30, Trial Transcripts at 76–79, 84–87,
126–27) Crews, 445 U.S. at 471–72 (“[T]his is not a case in which the witness’ identity
was discovered or her cooperation secured only as a result of an unlawful search or
arrest of the accused. Here the victim’s identity was known long before there was any
official misconduct, and her presence in court is thus not traceable to any Fourth
Amendment violation.”).
Even if the trial court had suppressed the sweater and the photographic lineup,
Martin could not show that the outcome of the trial would have changed. Strickland,
466 U.S. at 694. Consequently, the state court did not unreasonably deny the claim.
In his reply, Martin argues that the post-conviction court unreasonably
determined that his claim was facially insufficient. (Doc. 31 at 1–4) However, Martin
moved for rehearing in state court and argued that the post-conviction court relied on
an incorrectly docketed amended motion to deny his claim (Doc. 13, Ex. 15 at 12–13)
and raised the same argument in his brief on appeal. (Doc. 13, Ex. 18 at 8–11) The
state appellate court reviewed and rejected the claim in an unexplained decision. (Doc.
13, Ex. 19) Because the claim was meritless even if Martin had adequately alleged the
claim, the state court did not unreasonably deny the claim. Ground Four is denied.
Richter, 562 U.S. at 98.
It is therefore ORDERED:
1.
The petition for the writ of habeas corpus (Doc. 1) is DENIED.
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2.
The Clerk is directed to enter judgment against Martin and close this
3.
Martin neither makes a substantial showing of the denial of a
case.
constitutional right nor demonstrates that reasonable jurists would find debatable both
the merits of the underlying claims and the procedural issues. 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 478 (2000).
Consequently, a certificate of
appealability and leave to appeal in forma pauperis are DENIED.
DONE AND ORDERED in Tampa, Florida on March 8, 2021.
Copies furnished to:
All parties of record including unrepresented parties if any
15
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