MAYE v. MCNEIL

Filing 64

ORDER re 58 Motion for Certificate of Appealability is DENIED. Signed by SENIOR JUDGE STEPHAN P MICKLE on 2/14/2012. (jws) (Forwarded to USCA via email, Appeal#12-10520-E.)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
EDMUND MAYE,
Petitioner,
v.

CASE NO.: 4:08-CV-577-SPM/GRJ

KENNETH S. TUCKER,
Respondent.
______________________________/
ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY
This cause comes before the Court on Petitioner’s Motion for Issuance of
Certificate of Appealability Pursuant to 28 U.S.C.A. § 2253(c) (doc. 58). For the
following reasons, a certificate of appealability will be denied.
A defendant seeking a certificate of appealability must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The
standard is met if the defendant can show that reasonable jurists could differ as
to the resolution of the case either on the merits or as to any plain procedural
bar. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Magistrate Judge’s Report and Recommendation (doc. 51), adopted
by this Court (doc. 55), addresses Petitioner’s claims and properly concludes the

following:
1.

Petitioner’s adequacy of the plea agreement and colloquoy claim
was not properly exhausted. It is also procedurally defaulted and
Petitioner made no claim that he can show cause and prejudice for
the default, and there is nothing in the record to suggest that a
fundamental miscarriage of justice would result if the Court does
not consider the claim.

2.

Petitioner’s ineffective assistance of counsel claim for failure to
investigate DNA evidence fails. Upon belatedly receiving discovery
indicating that Petitioner’s DNA was a match for DNA found on
clothing left in one of the victim’s homes, counsel requested the
evidence be excluded, a continuance, or that a mistrial be granted.
Furthermore, even if the DNA evidence were excluded, in light of
other evidence presented at trial, there was not a reasonable
probability that the jury would have found Petitioner not guilty.

3.

Petitioner’s ineffective assistance of counsel claim for failure to
move to suppress a burglary victim’s out-of-court identification of
Petitioner also fails. The motion to suppress would have been
denied and counsel cannot be deemed ineffective for failing to raise
a non-meritorious argument. Even if the evidence had been
suppressed, considering all of the other evidence, there is not a
reasonable probability that the outcome of the trial would have
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been different.
4.

Petitioner’s claim that the trial court failed to adequately investigate
his claims requesting dismissal of his public defender is without
merit. This claim challenges the application of state law; it does not
raise a federal constitutional claim and is therefore not cognizable
in federal habeas review. This claim is also procedurally defaulted
because it was not raised on appeal. Petitioner makes no claim
that he can show cause and prejudice for the default, and there is
nothing in the record to suggest that a fundamental miscarriage of
justice would result if the Court does not consider the claim.

5.

Petitioner’s ineffective assistance of counsel claim for failure to
move to suppress items founds in the woods also fails. Counsel
cannot be deemed ineffective for filing a motion to suppress where
there were no grounds for the motion. Even if the evidence had
been suppressed, considering all of the other evidence, there is not
a reasonable probability that the outcome of the trial would have
been different.

The issues Petitioner raises have been thoroughly reviewed and do not deserve
encouragement to appeal. Accordingly, it is
ORDERED AND ADJUDGED that the Motion for Issuance of Certificate of
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Appealability Pursuant to 28 U.S.C.A. § 2253(c) (doc. 58) is denied.
DONE AND ORDERED this 14th day of February, 2012.

S/ Stephan P. Mickle
Stephan P. Mickle
Senior United States District Judge

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