Hagins v. Secretary, DOC et al (Sarasota County)

Filing 25

ORDER: Hagins's amended application is DENIED. The CLERK is directed to enter judgment against Hagins and to CLOSE this case. A certificate of appealability and leave to appeal in forma pauperis are DENIED. Signed by Judge Thomas P. Barber on 11/17/2022. (MLH)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LERON C. HAGINS, JR.,
Applicant,
v.

Case No. 8:19-cv-3145-TPB-AAS

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_______________________________/
ORDER
Leron C. Hagins, Jr., a Florida prisoner, timely filed a pro se amended
application for the writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 22.)
Having considered the amended application, Respondent’s response in
opposition (Doc. 23), and Hagins’s reply (Doc. 24), the Court denies the
amended application.
Procedural History
A state court jury convicted Hagins of two counts of attempted seconddegree murder of a law enforcement officer with a firearm. (Doc. 8-3, Ex. 22.)
The state trial court sentenced Hagins to consecutive terms of 20 years in
prison. (Id., Ex. 28.) The state appellate court per curiam affirmed the
convictions and sentences. (Id., Ex. 35.) Hagins sought postconviction relief
under Florida Rule of Criminal Procedure 3.850. (Id., Ex. 41.) The state court
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denied his motion and the state appellate court per curiam affirmed the denial
of relief. (Doc. 8-4, Ex. 42, pp. 68-103; Doc. 8-6, Ex. 48, pp. 57-66; Doc. 8-7, Ex.
52.)
Facts 1
At around 3:30 a.m. on October 23, 2011, Officer Rick Urbina and
Sergeant Eric Stender responded to a call of shots fired at a house party in
North Port, Florida. As the officers spoke to residents, they noticed Hagins
walking towards them. Sergeant Stender saw that Hagins had something in
his right hand. The officers yelled at Hagins to show his hands. Hagins asked
if they were talking to him, said, “Fuck you,” and fired in the officers’ direction.
Sergeant Stender returned fire. Officer Urbina ducked down. He later saw a
bullet hole in the window of an SUV parked behind him. The bullet hole was
at the level of Officer Urbina’s head and neck. Hagins fled towards a nearby
parking lot.
Before the shooting between Hagins and Officer Urbina and Sergeant
Stender, other officers were conducting a traffic stop of a vehicle leaving the
area. Those other officers then saw and detained Hagins. Hagins was placed
in the back of a police car, where his statements were recorded. Officer Urbina
and Sergeant Stender observed Hagins in the police car and identified him as
the shooter. At the scene of the shooting, police found Winchester brand 91

The factual summary is based on the trial transcript and appellate briefs.
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millimeter casings. A 9-millimeter handgun recovered near the location where
police apprehended Hagins contained unfired Winchester brand 9-millimeter
rounds.
The driver of the vehicle that police stopped was Cameron Premdass.
Premdass went to the party with Wilgen Phillipe. Phillipe had a small, black
handgun. Premdass saw Hagins shoot a larger gun outside the party, before
police arrived. Hagins then came across Premdass and Phillipe and demanded
Phillipe’s gun. Phillipe complied and gave Hagins the gun.
Inga McGowan, a resident, testified on direct examination that she saw
the SUV with bullet holes leave after the shooting involving Hagins and the
officers. But she stated on cross-examination that the SUV left the scene before
any police arrived.
Standards Of Review
The AEDPA
The Antiterrorism and Effective Death Penalty Act governs this
proceeding. Carroll v. Sec’y, DOC, 1354 F.3d 1354, 1364 (11th Cir. 2009).
Habeas relief can be granted only if an applicant is in custody “in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Section 2254(d) provides that federal habeas relief cannot be granted on a
claim adjudicated on the merits in state court unless the state court’s
adjudication:
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(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.
A decision is “contrary to” clearly established federal law “if the state
court arrives at a 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.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). A decision involves an “unreasonable
application” of clearly established federal law “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.
The AEDPA was meant “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, 693 (2002). Accordingly, “[t]he focus . . . is on
whether the state court’s application of clearly established federal law is
objectively unreasonable, and . . . an unreasonable application is different from
an incorrect one.” Id. at 694; see also Harrington v. Richter, 562 U.S. 86, 103
(2011) (“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
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understood and comprehended in existing law beyond any possibility for
fairminded disagreement.”).
The state appellate court affirmed the denial of postconviction relief
without discussion. This decision warrants deference under § 2254(d)(1)
because “the summary nature of a state court’s decision does not lessen the
deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002).
Ineffective Assistance Of Counsel
Hagins alleges ineffective assistance of trial counsel. Ineffective
assistance of counsel claims are analyzed under the test established in
Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing
of deficient performance by counsel and resulting prejudice. Id. at 687.
Deficient performance is established if, “in light of all the circumstances, the
identified acts or omissions [of counsel] were outside the wide range of
professionally competent assistance.” Id. at 690. However, “counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id.
Hagins must show that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had
no effect on the judgment.” Id. at 691. To demonstrate prejudice, Hagins must
show “a reasonable probability that, but for counsel’s unprofessional errors,
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the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694.
Obtaining relief on a claim of ineffective assistance of counsel is difficult
on federal habeas review 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 (internal quotation and citations
omitted); see also Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir.
2012) (“Because we must view Pooler’s ineffective counsel claim—which is
governed by the deferential Strickland test—through the lens of AEDPA
deference, the resulting standard of review is doubly deferential.”) (internal
quotation and citation omitted). “The question [on federal habeas review of an
ineffective assistance claim] ‘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) (quoting Schriro
v. Landrigan, 550 U.S. 465, 473 (2007)).
Exhaustion Of State Remedies; Procedural Default
A federal habeas applicant must exhaust his claims by raising them in
state court before presenting them in his application. 28 U.S.C. § 2254(b)(1)(A);
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must
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give the state courts an opportunity to act on his claims before he presents
those claims to a federal court in a habeas petition.”). The exhaustion
requirement is satisfied if the applicant fairly presents his claim in each
appropriate state court and alerts that court to the federal nature of the claim.
Picard v. Connor, 404 U.S. 270, 275-76 (1971).
The doctrine of procedural default provides that “[i]f the petitioner has
failed to exhaust state remedies that are no longer available, that failure is a
procedural default which will bar federal habeas relief, unless either the cause
and prejudice or the fundamental miscarriage of justice exception is
established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001); see also
Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (stating that
unexhausted claims that “would now be procedurally barred in state court due
to a state-law procedural default” provide no basis for federal habeas relief).
An applicant shows cause for a procedural default when he demonstrates
“that some objective factor external to the defense impeded the effort to raise
the claim properly in the state court.” Wright v. Hopper, 169 F.3d 695, 703
(11th Cir. 1999). An applicant demonstrates prejudice by showing that “there
is at least a reasonable probability that the result of the proceeding would have
been different” absent the constitutional violation. Henderson v. Campbell, 353
F.3d 880, 892 (11th Cir. 2003). “A ‘fundamental miscarriage of justice’ occurs

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in an extraordinary case, where a constitutional violation has resulted in the
conviction of someone who is actually innocent.” Id.
Discussion
Ground One
Hagins asserts that trial counsel was ineffective for failing to object when
Officer Urbina testified that he was “100% sure that Mr. Hagins was the
shooter and supported that testimony with allusions to a[ ] sport utility vehicle
purportedly having bullet hole(s) in its window at the height of Urbina’s head
and neck Urbina said came from the shot Mr. Hagins took at him.” (Doc. 22, p.
6.) Hagins states that Inga McGowan’s testimony that an SUV with bullet
holes left the scene before officers arrived contradicted Officer Urbina’s
testimony. Hagins contends that an objection to Officer Urbina’s testimony
would have resulted in “reasonable doubt as to what actually happened.” (Id.,
p. 9.)
The state court denied Hagins’s claim. The state court found that counsel
was not ineffective because Officer Urbina’s testimony was relevant and
admissible and any objection to it would have been overruled:
In order to prove that Defendant committed Attempted Second
Degree Murder as to Officer Urbina . . . , the State had to
demonstrate that Defendant intentionally committed an act that
could have resulted in his death, and that was imminently
dangerous and demonstrated a depraved mind without regard for
human life. Officer[ ] Stender’s [sic] testimony that he observed a
bullet hole at his neck/head level in the window of an SUV parked
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behind him at the time Defendant fired his weapon was directly
relevant to proving that Defendant committed just such an act.
Urbina’s observation was made shortly after the shooting incident,
before the SUV apparently later left the scene. The clear
implication was that Defendant likely made that bullet hole when
discharging his weapon.
While Defendant disputes that there was sufficient evidence to
prove that he was the originator of that bullet hole because Inga
McGowan gave conflicting testimony, this did not make Urbina’s
testimony the type of confusing or misleading testimony that
[Florida’s] courts have identified as unduly prejudicial. . . .
Resolving the credibility of the witnesses and assigning weight to
their testimonies is a function that resides within the province of
the jury. . . . It is also notable that McGowan’s testimony was,
itself, internally conflicting, and part of it supported Urbina’s
version of events. The jury was free to reject part or all of this
testimony, and to form its own conclusions as to whether there was
sufficient evidence to show that Defendant[’s] actions met the
elements of the offense.
For similar reasons, Urbina’s statement that he was “100 percent
sure” Defendant was the shooter was an admissible statement
subject to the jury’s evaluation of Urbina’s credibility. Defendant’s
argument that Urbina should not have been permitted to testify
with such certainty because he did not actually witness Defendant
pulling the trigger is a question that was properly put to the jury.
Counsel did just this, as he challenged Urbina’s observation on
cross-examination, elicited the fact that Urbina did not see the
muzzle blast or hear a metal projectile strike nearby, and argued
in summation against making any of the State’s proffered
inference on this question.
For these reasons, counsel’s failure to object to this relevant and
admissible evidence was not deficient performance, since any
objection would have been overruled.
(Doc. 8-4, Ex. 42, pp. 81-83) (state court’s footnotes omitted).

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Hagins does not show that the state court’s decision was unreasonable.
The decision rests on underlying questions of state evidentiary law. This Court
must defer to the state court’s finding that the evidence was relevant and
admissible under Florida law. See Pinkney v. Secretary, DOC, 876 F.3d 1290,
1295 (11th Cir. 2017) (“[A]lthough ‘the issue of ineffective assistance—even
when based on the failure of counsel to raise a state law claim—is one of
constitutional dimension,’ [a federal court] ‘must defer to the state’s
construction of its own law’ when the validity of the claim that . . . counsel
failed to raise turns on state law.” (quoting Alvord v. Wainwright, 725 F.2d
1282, 1291 (11th Cir. 1984))). “[I]t is axiomatic that the failure to raise
nonmeritorious issues does not constitute ineffective assistance.” Bolender v.
Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994).
Hagins appears to argue that the state court’s decision was based on an
unreasonable factual determination because the order once identified Sergeant
Stender instead of Officer Urbina. This reference is a simple typographical
error and does not reflect an unreasonable determination of fact. Hagins
further argues that the state court’s decision was unreasonable because
McGowan’s testimony that the SUV left before any police arrived was
exculpatory. But the state court addressed Hagins’s arguments about
McGowan’s testimony, and Hagins does not show that the state court’s
consideration of McGowan’s testimony resulted in an unreasonable decision.
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Finally, Hagins appears to argue that the state court’s decision was
unreasonable because Urbina’s testimony about the SUV violated Florida’s
best evidence rule since neither the SUV’s “bullet ridden window” nor a
photograph of it was introduced into evidence. (Doc. 22, pp. 6-8.) However, the
SUV left the scene and there is no indication that either the window or a
photograph of the window were available. Hagins does not show that Officer
Urbina improperly testified to his personal observations about the SUV.
Additionally, the best evidence rule does not apply to all evidence. See G.E.G.
v. State, 417 So.2d 975, 977 (Fla. 1982) (stating that “[i]n Florida the ‘best
evidence rule’ only applies to writings, recordings, and photographs”). Finally,
as addressed, this Court must defer to the state court’s determination that an
objection to Officer Urbina’s testimony would have lacked merit under
Florida’s evidentiary law.
Hagins does not show that the state court’s decision involved an
unreasonable application of Strickland or was based on an unreasonable
factual determination. He is not entitled to relief on Ground One.
Ground Two
Hagins contends that trial counsel was ineffective for failing to move to
suppress Sergeant Stender’s and Officer Urbina’s in-court and out-of-court
identifications of him based on an impermissibly suggestive out-of-court
identification.
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Respondent correctly contends that Hagins’s claim is unexhausted
because he did not raise this claim in his postconviction motion. (Doc. 8-3, Ex.
41.) Because Hagins cannot return to state court to present the ineffective
assistance claim in an untimely postconviction motion, see Fla. R. Crim. P.
3.850(b), the claim is procedurally defaulted. See Smith, 256 F.3d at 1138.
Hagins argues that he has established cause for the default under
Martinez v. Ryan, 566 U.S. 1 (2012). In recognizing a narrow exception to the
rule that ineffective assistance of postconviction counsel does not constitute
cause to overcome a procedural default, Martinez holds:
Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing
a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective.
566 U.S. at 17.
To establish cause under Martinez, an applicant must demonstrate that
the defaulted ineffective assistance of trial counsel claim “is a substantial one,
which is to say that [he] must demonstrate that the claim has some merit.” Id.
at 14. A claim that does not have any merit or that is wholly without factual
support is not substantial. See id. at 15-16. An applicant shows that his
defaulted claim is substantial under Martinez by demonstrating that
“reasonable jurists ‘would find it debatable whether the petition states a valid
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claim of the denial of a constitutional right.’” Clark v. Comm’r, Ala. Dep’t of
Corr., 988 F.3d 1326, 1331 (11th Cir. 2021) (quoting Hittson v. GDCP Warden,
759 F.3d 1210, 1269-70 (11th Cir. 2014)).
Hagins does not establish that his defaulted claim of ineffective
assistance is substantial. Hagins was identified through a “show up” procedure
when Officer Urbina and Sergeant Stender identified him near the scene as he
sat in the back of a police car. Police may use a show up as a method of
identification in criminal investigations. See Johnson v. Dugger, 817 F.2d 726,
729 (11th Cir. 1987) (stating that “immediate confrontations allow
identification before the suspect has altered his appearance and while the
witness’ memory is still fresh, and permit the quick release of innocent
persons”).
“[D]ue process concerns arise only when law enforcement officers use an
identification procedure that is both suggestive and unnecessary.” Perry v. New
Hampshire, 565 U.S. 228, 238-39 (2012). Thus, an out-of-court identification
will be excluded only when law enforcement has acted improperly to obtain it.
See id. at 233 (holding that “[w]hen no improper law enforcement activity is
involved” in obtaining an identification, the reliability of the identification will
be tested through means such as cross-examination, jury instructions, and the
rules of evidence); see also Masse v. Sec’y, Fla. Dep’t of Corr., 700 F. App’x 890,
894 (11th Cir. 2017) (stating that while show ups have some inherent
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suggestiveness, they “are not unnecessarily suggestive unless the police
aggravate the suggestiveness of the confrontation in some way” (quoting
Johnson, 817 F.2d at 729)).
Hagins does not establish that any improper police action rendered the
show-up unnecessarily suggestive. Hagins was apprehended a short time after
the shooting, and the officers went to his location and identified him. There is
no indication that police aggravated the suggestiveness of the show up
procedure. Since the identification procedure was not unnecessarily
suggestive, “that ends the inquiry.” Williams v. Weldon, 826 F.2d 1018, 1021
(11th Cir. 1987). And because Hagins fails to establish a meritorious basis for
suppression of the identifications, he cannot show that counsel was ineffective
for not filing a motion to suppress.
Hagins does not show that his defaulted ineffective assistance claim is
substantial. He therefore does not overcome the procedural default under
Martinez. Hagins does not establish that he can overcome the default through
the fundamental miscarriage of justice exception. Accordingly, Ground Two is
procedurally defaulted and barred from federal habeas review.
Ground Three
Hagins argues that trial counsel was ineffective for failing to move for a
mistrial because the State withheld evidence. Hagins contends that the
defense did not learn until three days into the August 2013 trial that the State
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recovered a Glock .45 caliber pistol in December 2011, two months after the
offenses occurred in October 2011.
The state court denied Hagins’s claim, finding that he failed to establish
prejudice. Importantly, the state court explained that the State asserted
Hagins used a 9-millimeter firearm to commit the offenses:
Even assuming that the weapon found on December 11, 2011, was
the .45 caliber gun used in this case, Defendant cannot
demonstrate prejudice. The State’s theory was that Defendant
used the 9-millimeter handgun to shoot at the officers, since spent
and unspent Winchester brand 9-millimeter Luger cartridges were
found at the location of the shooting, and those cartridges matched
the CPX-1 9-millimeter handgun retrieved near to where
Defendant was apprehended.
The testimony of Cameron Premdass provided the link to how
Defendant obtained the 9-millimeter gun from Wilgren Phillipe,
who handed it to Defendant at Defendant’s request after
Defendant had fired the larger gun multiple times. The State
argued to the jury that Defendant likely tossed the .45 caliber gun
into one of the vehicles that left the scene before law enforcement
arrived. That the .45 was found months later at some other
location would, consequently, have provided no help to the defense.
(Doc. 8-6, Ex. 48, pp. 63-64) (state court’s footnote omitted).
Therefore, the state court found “no reasonable likelihood that the trial
court would have found a discovery violation or granted a mistrial” and found
that Hagins was not prejudiced by counsel’s failure to object. (Id., p. 64.)
Whether to grant a mistrial based on an alleged discovery violation is a
matter of state law. In Florida, a mistrial “is warranted only when the error is
so prejudicial that it vitiates the entire trial.” Somers v. State, 162 So.3d 1077,
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1079 (Fla. 5th DCA 2015). This Court must defer to the state court’s
determination that a motion for mistrial would have been denied. See Pinkney,
876 F.3d at 1295. Hagins fails to show that the state court unreasonably
determined that he was not prejudiced by counsel’s failure to make a meritless
motion. See Bolender, 16 F.3d at 1573.
Hagins does not establish that the state court unreasonably applied
Strickland or unreasonably determined the facts in denying this claim. He is
not entitled to relief on Ground Three.
Ground Four
Hagins argues that trial counsel was ineffective for failing to object when
the State played a recording from the back of the police car where Hagins was
detained. It appears that portions of the recording were redacted. However, the
recording played for the jury included Hagins’s statement, “I hate white
people.” 2 Hagins asserts that this statement was supposed to have been
redacted from the recording and that counsel was supposed to have been
engaged in the redaction process. He asserts that the statement’s inclusion in
the recording impaired his ability to prepare a defense because he believed the
jury would not hear it.

Hagins stated, apparently to police officers, “Hey, man. Hey, man. (Inaudible) dumbass cracker. I hate white people you dumb-ass cracker.” (Doc. 8-3, Ex. 20, p. 426.)

2

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This claim is unexhausted because Hagins did not raise it in his
postconviction motion. (Doc. 8-3, Ex. 41.) Hagins asserts that he overcomes the
resulting procedural default through the cause and prejudice exception under
Martinez. Hagins has not shown that his defaulted claim is substantial.
Before trial, counsel moved to exclude the entire recording on grounds of
relevance and undue prejudice. (Doc. 8-2, Ex. 5; Ex. 12, pp. 8, 10; Ex. 16, pp.
64-67.) The State asserted that the recording was relevant to show Hagins’s
state of mind at the time of the offenses. At the time of the first pretrial hearing
on this matter, the State was still in the process of redacting the recording, and
the state court made no ruling on admissibility.
At the second pretrial hearing, counsel specifically objected to the
inclusion of the statement “I hate white people,” and argued that it was
irrelevant and highly prejudicial. (Id., Ex. 16, pp, 64, 66.) In response, the State
argued that it was required to prove that Hagins acted with ill will, hatred, or
spite to prove attempted second-degree murder. (Id., p. 65.) 3 The trial court did
not rule on admissibility at that time. (Id., pp. 66-67.) As Respondent notes,
the record does not appear to contain the trial court’s ruling; however, when

To prove attempted second-degree murder, the State had to show that Hagins
committed an act “imminently dangerous to another and evincing a depraved mind
regardless of human life . . . ” § 782.04(2), Fla. Stat. The Florida Standard Jury
Instructions define this term in relevant part as an act or series of acts “done from ill
will, hatred, spite, or an evil intent.” Fla. Std. Jury Instr. (Crim.) 6.4.
3

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the recording was played at trial, the prosecutor conveyed that the defense’s
motion to suppress had been denied. (Doc. 8-2, Ex. 20, p. 415.)
At trial, just before the recording was played, counsel again objected to
the recording as irrelevant and unfairly prejudicial. (Id.) The trial court
overruled the objection, stating that “the content of the recording . . . does
address or go to the ill will, hatred, spite, which is an element of . . . attempted
second degree murder.” (Id.)
Hagins has not shown that counsel was ineffective for not lodging yet
another objection when the recording was played. Hagins does not identify a
different basis for an objection other than the one counsel had repeatedly
argued. Moreover, Hagins does not meet Strickland’s prejudice prong. He does
not show a reasonable probability that the trial court would have sustained
another objection when the recording was played. The trial court had already
decided that the recording’s content was relevant to establishing the “ill will,
hatred, spite, or evil intent” element of attempted second degree murder.
Even if a further objection had succeeded, Hagins does not show a
reasonable probability of a different outcome at trial given Officer Urbina’s and
Sergeant Stender’s positive identifications of Hagins as the shooter. And while
Hagins claims that his ability to develop a defense was hindered, he does not
elaborate on this cursory allegation. See Tejada v. Dugger, 941 F.2d 1551, 1559
(11th Cir. 1991) (stating that an applicant’s “unsupported allegations” that are
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“conclusory in nature and lacking factual substantiation” cannot sustain an
ineffective assistance claim). Therefore, Hagins does not establish cause and
prejudice to overcome the default under Martinez. Nor does he show that the
default may be excused under the fundamental miscarriage of justice
exception.
Hagins seeks an evidentiary hearing regarding the redaction of the
recording. The Court concludes that an evidentiary hearing is not warranted
because Hagins has not shown ineffective assistance of trial counsel for the
reasons stated in this order. See Schriro, 550 U.S. at 474 (stating that “if the
record refutes the applicant’s factual allegations or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary hearing”).
Additionally, the Court’s ability to receive new evidence to resolve a defaulted
ineffective assistance of trial counsel claim is limited. See Shinn v. Ramirez,
142 S.Ct. 1718, 1734 (2022) (holding that “a federal habeas court may not
conduct an evidentiary hearing or otherwise consider evidence beyond the
state-court record” in the context of a Martinez claim that was defaulted to due
postconviction counsel’s alleged ineffective assistance). Ground Four is
procedurally defaulted and barred from federal habeas review.
Accordingly, it is ORDERED that Hagins’s amended application (Doc.
22) is DENIED. The CLERK is directed to enter judgment against Hagins and
to CLOSE this case.
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It is further ORDERED that Hagins is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court’s denial of his application. 28 U.S.C.
§ 2253(c)(1). Rather, a court must first issue a certificate of appealability. To
obtain a certificate of appealability, Hagins must show that reasonable jurists
would find debatable both (1) the merits of the underlying claims and (2) the
procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Hagins has not made the requisite
showing. Accordingly, a certificate of appealability is DENIED. Leave to
appeal in forma pauperis is DENIED. Hagins must obtain permission from
the circuit court to appeal in forma pauperis.
DONE and ORDERED in Chambers, in Tampa, Florida, this 17th day
of November, 2022.
_________________________________
TOM BARBER
UNITED STATES DISTRICT JUDGE

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