Carey v. Department of Corrections

Filing 34

ORDER of Limited Remand from the United States Court of Appeals for the Eleventh Circuit. No Certificate of Appealability shall issue. Signed by Judge Darrin P. Gayles See attached document for full details. (mcy)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 0:17-cv-62458-GAYLES
DEMETRIUS CAREY,
Petitioner,
v.
MARK S. INCH,
SEC’Y, FLA. DEP’T OF CORR.,
Respondent.
______________________________________/
ORDER
THIS CAUSE comes before the Court on an Order of Limited Remand from the United
States Court of Appeals for the Eleventh Circuit (“Order”), [ECF No. 33], to determine whether
Petitioner, Demetrius Carey, is entitled to a certificate of appealability (“COA”) to appeal the
Court’s denial of his Motion for Reconsideration. See Perez v. Sec’y, Fla., Dep’t of Corr., 711
F.3d 1263, 1264 (11th Cir. 2013) (“Because the denial of a Rule 59(e) motion constitutes a ‘final
order’ in a state habeas proceeding, we conclude that a COA is required before this appeal may
proceed.”). On December 13, 2017, Petitioner filed a pro se petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, attacking his Florida state convictions for second degree murder
without a firearm and robbery without a firearm (“Petition”). [ECF No. 1]. On March 19, 2020,
Magistrate Judge Lisette M. Reid issued a Report and Recommendation (“Report”) which
recommended that the Petition be denied on the merits and that a certificate of appealability should
not issue. [ECF No. 19]. Following a de novo review, this Court adopted Judge Reid’s Report in
full. [ECF No. 23].

On July 17, 2020, Petitioner filed a Motion for Reconsideration pursuant to Fed. R. Civ. P.
59(e). [ECF No. 25]. Petitioner argued that manifest errors of law occurred when: (1) the Court
failed to recognize Petitioner’s challenge to his conviction for second degree murder in its Order
adopting the Report; (2) the Court adopted Judge Reid’s finding that Petitioner failed to satisfy
Strickland’s prejudice requirement because counsel’s request for the inapplicable jury instruction
was presumptively prejudicial; and (3) the Court adopted Judge Reid’s finding that the jury’s
verdict was not truly or legally inconsistent. Id.
On November 5, 2020, the Court denied Petitioner’s Motion for Reconsideration on the
merits but did not address whether he was entitled to a COA. [ECF No. 26]. As to Petitioner’s first
argument, the Court found that the “unintentional omission of the reference to Petitioner’s second
degree murder conviction in the Court’s Order” where the Report “specifically addressed
Petitioner’s conviction for second degree murder and Petitioner’s claims related to that conviction”
were “harmless.” Id. at 4. The Court determined that Petitioner’s second and third arguments reraised the same issues litigated in Petitioner’s Objections, [ECF No. 22]. Id. (citing Michael Linet,
Inc. v. Vill. Of Wellington, Fla., 403 F.3d 757, 763 (11th Cir. 2005) (finding that a Petitioner cannot
use Rule 59(e) to “relitigate old matters, raise argument, or present evidence that could have been
raised prior to the entry of judgment.”). The Court also found no manifest error of law or fact
because Petitioner was not prejudiced by his lawyer’s request for the jury instruction for second
degree murder without a firearm because there was sufficient evidence at trial to convict Petitioner
of second degree murder with a firearm. See id. at 5. Lastly, the Court found no error in the Report’s
finding that Petitioner’s convictions were not truly inconsistent as a matter of law. Id.
For a COA to issue, Petitioner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, Petitioner must show either that

2

“reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong,” or that the issues presented were “adequate to deserve encouragement to proceed
further.” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000) and Miller-El v. Cockrell, 537 U.S. 322 (2003)). Because Petitioner’s Motion for
Reconsideration did not present any new arguments or any basis for this Court to grant relief, no
reasonable jurist would disagree with the Court’s assessment and the issues are not adequate to
proceed further. The Court finds that Petitioner has not “made a substantial showing of the denial
of a constitutional right.” Slack, 529 U.S. at 481 (quoting 28 U.S.C. § 2253(c)). Thus, Petitioner is
not entitled to a certificate of appealability to appeal this Court’s Order denying his Motion for
Reconsideration.
Accordingly, it is ORDERED AND ADJUDGED that NO CERTIFICATE OF
APPEALABILITY SHALL ISSUE for Petitioner Demetrius Carey to appeal the denial of his
Motion for Reconsideration, [ECF No. 25].
DONE AND ORDERED in Chambers at Miami, Florida, this 10th day of June, 2021.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

cc:

Demetrius Carey
#L76798
Desoto Annex
Inmate Mail/Parcels
13617 SE Highway 70
Arcadia, FL 34266
PRO SE
Noticing 2254 Broward and North
Email: [e-mail]
3