REPORT AND RECOMMENDATION

CHARLES J. KAHN, Jr., Magistrate Judge.

Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 1). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 19). Petitioner replied. (Doc. 24). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to federal habeas relief, and that the petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

By amended information filed in Escambia County, Florida Circuit Court Case No. 09-1710, petitioner was charged with two counts of grand theft — over $100,000 (Counts 1 and 2), three counts of grand theft — over $20,000 but less than $100,000 (Counts 3, 4, and 5), two counts of money laundering — financial transactions totaling $20,000 but less than $100,000 (Counts 6 and 10), and three counts of money laundering — financial transactions totaling or exceeding $100,000 in any twelve-month period (Counts 7, 8, and 9). (Doc. 19, Ex. F).1 The State declined to prosecute Count 6. (Ex. G). On February 16, 2010, petitioner entered a written plea and sentence recommendation ("plea agreement"), pursuant to which she agreed to the factual basis to the charges as set forth in the plea agreement, and agreed to plead no contest to the charges with no agreement as to a recommended sentence. (Ex. H). The court conducted a plea colloquy and accepted petitioner's plea. (Ex. I). By judgment rendered March 15, 2010, petitioner was adjudicated guilty and sentenced to a term of thirty years in prison on Count 1, a term of thirty years of probation on each of Counts 2, 7, 8, and 9, to run concurrently with each other and consecutively to the sentence on Count 1, and a term of fifteen years of probation on each of Counts 3, 4, 5, and 10, to run concurrently with each other and with the sentence on Count 2. (Exs. J, L). The Florida First District Court of Appeal ("First DCA") per curiam affirmed the judgment of conviction without a written opinion, on November 16, 2010. Mitchell v. State, 49 So.3d 238 (Fla. 1st DCA 2010) (Table) (copy at Ex. P). The mandate issued December 14, 2010. (Id.).

Petitioner filed various applications for postconviction relief, but relevant here are the motions identified following. On December 8, 2010, petitioner filed a motion to reduce sentence under Florida Rule of Criminal Procedure 3.800(c). (Ex. Q). The state circuit court granted the motion and reduced petitioner's sentence on Count 1 to twenty years in prison followed by ten years of probation. (Ex. R). An amended judgment was rendered on March 15, 2010. (Ex. S).

On May 18, 2011, petitioner filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). (Ex. T). The circuit court summarily denied relief in an order rendered on June 13, 2011. (Ex. U).

On June 1, 2011, petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. V). The state circuit court struck the motion as facially insufficient on August 8, 2011, with leave to file a facially sufficient motion "within a reasonable time." (Ex. W). On November 8, 2011, petitioner filed an amended motion for postconviction relief. (Ex. X). The circuit court summarily denied the motion in an order rendered on December 20, 2011. (Ex. Y). The First DCA per curiam affirmed on May 14, 2012, without a written opinion. Mitchell v. State, 88 So.3d 154 (Fla. 1st DCA 2012) (Table) (copy at Ex. CC). The mandate issued June 11, 2012. (Id.).

Petitioner filed her federal habeas petition in this court on July 16, 2012. (Doc. 1, p. 9). The petition raises six grounds for relief. (Doc. 1). Respondent filed an answer asserting that petitioner is not entitled to relief on Grounds One, Two, Four, Five, and Six, because the state court's adjudication of those claims was not contrary to, or an unreasonable application of, clearly established federal law. (Doc. 19, pp. 13-20, 31-51). Respondent asserts that Ground Three is procedurally defaulted and, alternatively, without merit. (Id., pp. 20-31).

SECTION 2254 STANDARD OF REVIEW

Federal courts may issue habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. Section 2254(d) provides, in relevant part:

28 U.S.C. § 2254(d) (2011).

The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L. Ed. 2d 389 (2000).2 The appropriate test was described by Justice O'Connor as follows:

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

Employing the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a state court proceeding, the federal court must first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is "clearly established" only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec'y for Dep't of Corr., 608 F.3d 1313, 1315 (11th Cir. 2010).

After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is "contrary" only if either the reasoning or the result contradicts the relevant Supreme Court cases. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L. Ed. 2d 263 (2002) ("Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954, 127 S.Ct. 2842, 168 L. Ed. 2d 662 (2007).

If the state court decision is not contrary to clearly established federal law, the federal habeas court next determines whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was "objectively unreasonable" in light of the record before the state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4, 122 S.Ct. 1843, 152 L. Ed. 2d 914 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law). An objectively unreasonable application of federal law occurs when the state court "identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case" or "unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). A state court, however, may "decline to apply a specific legal rule that has not been squarely established by [the Supreme Court]" without running afoul of the "unreasonable application" clause. Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L. Ed. 2d 251 (2009).

When faced with a state appellate court's summary affirmance of a trial court's decision, the "unreasonable application" standard focuses on the state court's ultimate conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011) (citing Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L. Ed. 2d 624 (2011)). The federal court must determine what arguments or theories supported or could have supported the state court's decision, and then ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior Supreme Court decision. See Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that the federal district court may rely on grounds other than those articulated by the state court in determining that habeas relief was not warranted, so long as the district court did not err in concluding that the state court's rejection of the petitioner's claims was neither an unreasonable application of a Supreme Court holding nor an unreasonable determination of the facts). In sum, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87.

Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where that adjudication "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." 28 U.S.C. § 2254(d)(2). As with the "unreasonable application" clause, the federal court applies an objective test. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state court decision based on a factual determination "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding."). The "unreasonable determination of the facts" standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill, 633 F.3d at 1292.

When performing review under § 2254(d), the federal court presumes that all factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). The petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that a federal court can disagree with a state court's factual finding and, when guided by AEDPA, "conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence"). Neither the Supreme Court nor the Eleventh Circuit has interpreted how § 2254(d)(2) and §2254(e)(1) interact in the context of fact-based challenges to state court adjudications. Cave v. Sec'y for Dep't of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate court's summary affirmance, where it found that the validity of the state court decision was not premised on the trial court's unreasonable fact finding, and that the petitioner failed to demonstrate "by clear and convincing evidence that the record reflect[ed] an insufficient factual basis for affirming the state court's decision." Gill, 633 F.3d at 1292.

Only if the federal habeas court finds that the petitioner satisfied AEDPA and § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 551 U.S. at 954. Even then, the writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2254(a). "If this standard is difficult to meet, that is because it was meant to be." Richter, 131 S. Ct. at 786.

DISCUSSION

Ground One "Dual convictions for Grand Theft and Fraud/Money Laundering violate the constitutional prohibition against double jeopardy." (Doc. 1, p. 5).

Petitioner alleges the following in support of her claim:

(Doc. 1, p. 5). Petitioner asserts she raised this claim in her amended Rule 3.850 motion and on appeal from the circuit court's order denying the motion. (Id., pp. 5-6).

Respondent concedes that petitioner presented this claim to the state courts in her amended Rule 3.850 motion and related appeal, and that the state courts adjudicated the claim on the merits. (Doc. 19, pp. 13-16). Respondent argues that petitioner is not entitled to federal habeas relief because the state courts correctly identified and reasonably applied the clearly established federal standard in rejecting the claim. (Id., pp. 16-18).

A. Clearly Established Federal Law

"The Double Jeopardy Clause of the Fifth Amendment provides that no person shall `be subject for the same offence to be twice put in jeopardy of life or limb.'" Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306, 104 S.Ct. 1805, 80 L. Ed. 2d 311 (1984). This guarantee is applicable to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L. Ed. 2d 707 (1969). The Double Jeopardy Clause embodies three separate guarantees: "It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Justices, 466 U.S. at 307-08 (citation and footnote omitted). "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L. Ed. 2d 535 (1983); Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L. Ed. 2d 715 (1980) ("The Double Jeopardy Clause at the very least precludes . . . courts from imposing consecutive sentences unless authorized by [the legislature] to do so."); Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L. Ed. 2d 275 (1980) (stating, "the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed. Where [the legislature] intended . . . to impose multiple punishments, imposition of such sentence does not violate the Constitution."); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L. Ed. 2d 187 (1977) (noting, "[w]here consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.").

"Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature . . . intended that each violation be a separate offense." Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L. Ed. 2d 764 (1985). Although the Double Jeopardy Clause does not flatly prohibit the legislature from punishing the same conduct under two different statutes, federal courts assume that the legislature ordinarily does not intend to do so "`in the absence of a clear indication of contrary legislative intent.'" Hunter, 459 U.S. at 366 (quoting Whalen, 445 U.S. at 691-92); see also Garrett, 471 U.S. at 779, (holding that multiple punishments are permissible "when the legislative intent is clear from the face of the statute or the legislative history"); Ohio v. Johnson, 467 U.S. 493, 499 n. 8, 104 S.Ct. 2536, 81 L. Ed. 2d 425 (1984) ("[I]f it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end."). If no clear intention is evident, the provisions are analyzed under the "same elements" test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L. Ed. 306 (1932), which "inquires whether each offense contains an element not contained in the other; if not, they are the `same offence' and double jeopardy bars additional punishment and successive prosecution." United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L. Ed. 2d 556 (1993). Although the court will decide under federal law whether a double jeopardy violation has occurred, it must accept the Florida courts' interpretation of the state's own statutes. Hunter, 459 U.S. at 368.

The Eleventh Circuit summarized its interpretation of Supreme Court law regarding double jeopardy as follows:

Williams v. Singletary, 78 F.3d 1510, 1513 (11th Cir. 1996).

B. Federal Review of State Court Decision

Petitioner raised this double jeopardy claim as Ground One in her amended Rule 3.850 motion. (Ex. X, pp. 37-40). The state circuit court denied relief as follows:

The statutory elements of theft are as follows:

Section 896.101(3)(a), Florida Statutes (2006).

(Ex. Y, pp. 67-68). Petitioner appealed, raising this issue as Issue 2 of her initial brief. (Ex. AA, pp. 4-5). The First DCA affirmed the lower court's decision without opinion. (Ex. CC).

The legal standard applied by the state court, namely, Florida Statutes § 775.021, was not contrary to clearly established federal law, as the statute essentially adopts the Blockburger test.3 See State v. Weller, 590 So.2d 923, 925 (Fla. 1991). In evaluating whether the state courts reasonably applied the Blockburger standard in adjudicating petitioner's claim, this court must defer to the state circuit court's interpretation of Florida law, including the court's interpretation of the elements of Grand Theft and Money Laundering, whether the offenses are degrees of the same offense, and whether the elements of either offense are necessarily subsumed by the other. See Hunter, 459 U.S. at 368; Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L. Ed. 2d 407 (2005) ("A state court's interpretation of state law . . . binds a federal court sitting in habeas corpus."); see also Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L. Ed. 2d 508 (1975) ("State courts are the ultimate expositors of state law," and federal courts must therefore abide by their rulings on matters of state law) (citations and footnote omitted);Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983).

Accepting the state court's determination that Grand Theft and Money Laundering each requires proof of an element that the other does not, as well as the state court's determination that none of the exceptions set forth in Florida Statutes § 775.021(4)(b) apply (i.e., the offenses do not require identical elements of proof; the offenses are not degrees of the same offense as provided by statute, and neither offense is a necessarily lesser included offense of the other), petitioner failed to demonstrate a double jeopardy violation with regard to her convictions for Grand Theft and Money Laundering.

Because petitioner failed to demonstrate that the state courts' adjudication of her double jeopardy claim was "contrary to, or involved an unreasonable application of," Blockburger, she is not entitled to federal habeas relief on Ground One.

Ground Two "Trial Counsel was ineffective because he failed to explain the double jeopardy defense to Petitioner before she rendered her plea." (Doc. 1, p. 6).

Petitioner alleges the following in support of her claim:

(Doc. 1, p. 6). Petitioner asserts she raised this claim in her amended Rule 3.850 motion and on appeal of the circuit court's order denying the motion. (Id.).

Respondent concedes that petitioner presented this claim to the state courts in her amended Rule 3.850 motion and related appeal, and that the state courts adjudicated the claim on the merits. (Doc. 19, pp. 19-20). Respondent argues that petitioner is not entitled to federal habeas relief because the state courts correctly identified and reasonably applied the clearly established federal standard in rejecting the claim. (Id., pp. 206-21).

A. Clearly Established Federal Law

"Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process." Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1384, 182 L. Ed. 2d 398 (2012) (citing Missouri v. Frye, ___ U.S. ___ 132 S.Ct. 1399, 1404, ___ L. Ed. 2d ___ (2012), and McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L. Ed. 2d 763 (1970)). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler, 132 S. Ct. at 1387. The two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), applies to claims that counsel was ineffective during plea negotiations. Lafler, 132 S. Ct. at 1384 (applying Strickland's two-part test to federal habeas petitioner's claim that counsel was ineffective for advising him to reject a plea offer); Frye, 132 S. Ct. at 1404, 1409-10 (applying Strickland's two-part test to federal habeas petitioner's claim that counsel was ineffective for failing to communicate a prosecution plea offer before it lapsed); Hill v. Lockhart, 474 U.S. 52, 48, 106 S.Ct. 366, 88 L. Ed. 2d 203 (1985) (applying Strickland's two-part test to defendant's challenge to his guilty plea based on ineffective assistance of counsel).

Strickland's first prong requires a defendant to show "`that counsel's representation fell below an objective standard of reasonableness.'" Hill, 474 U.S. at 57 (quoting Strickland, 466 U.S. at 688). The focus of inquiry under the performance prong of the Strickland standard is whether counsel's assistance was "reasonable considering all the circumstances." Strickland, 466 U.S. at 691. "Judicial scrutiny of counsel's performance must be highly deferential," and courts should make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. The Supreme Court has expressly warned about second-guessing professional judgments made by counsel:

McMann, 397 U.S. at 769-70, 90 S. Ct. at 1448.

In a plea situation, counsel must provide advice "within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56-57 (quoting McMann, 397 U.S. at 771). Under this standard, representation is ineffective only if counsel commits "serious derelictions" of his duty when advising the accused. Stano v. Dugger, 921 F.2d 1125, 1150-51 (11th Cir. 1991). Absent such blatant errors, however, the court should "indulge a strong presumption that counsel's conduct fell within the wide range of reasonably professional assistance." Yordan v. Dugger, 909 F.2d 474, 477 (11th Cir. 1990). The Eleventh Circuit has commented that "[t]he right to competent plea bargain advice is at best a privilege that confers no certain benefit," because a defendant "may make a wise decision" without assistance of counsel or a "bad one despite superior advice from his lawyer." Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (per curiam). "[C]ounsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between [entering a plea] and going to trial." Id. This requires counsel to "offer his informed opinion as to the best course to be followed" and impart "a general knowledge of the possible legal consequences of facing trial" to the defendant. Id. Therefore, a defendant's failure to "correctly assess every relevant factor entering into his decision" does not undermine a validly entered guilty plea. Id. at 1509.

Strickland's second prong requires a defendant to show "that there is 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. In the context of pleas, "[t]he . . . `prejudice' requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59.

When a district court considers a habeas petition, the state court's findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. Strickland, 466 U.S. at 698; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L. Ed. 2d 284 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Richter, 131 S. Ct. at 788. As the Richter Court explained:

Id. (citations omitted).

B. Federal Review of State Court Decision

Petitioner raised this claim as Ground Two of her amended Rule 3.850 motion. (Ex. X, pp. 41-43). The state circuit court cited the Strickland standard as the applicable legal standard. (Ex. Y, pp. 69-70). The court denied relief on the merits as follows:

(Ex. Y, p. 70). Petitioner appealed, raising the issue as Issue 3 of her initial brief. (Ex. AA, p. 5). The First DCA affirmed without opinion. (Ex. CC).

As previously discussed, in analyzing petitioner's double jeopardy claim raised in Ground One, the state court determined that the exceptions set forth in Florida Statutes § 775.021(4)(b) did not apply, meaning, the offenses of Grand Theft and Money Laundering did not require identical elements of proof, they were not degrees of the same offense as provided by statute, and neither offense was a necessarily lesser included offense of the other. Deferring to the state court's interpretation of state law, counsel's failure to advise petitioner she had a viable double jeopardy defense was not deficient, and petitioner cannot show she was prejudiced by counsel's conduct. The state court did not unreasonably apply Strickland in denying petitioner's ineffective assistance of counsel claim.

Ground Three "Trial Counsel was ineffective because he failed to investigate Petitioner's mental health history." (Doc. 1, p. 6).

Petitioner alleges the following in support of her claim:

(Doc. 1, p. 6). Petitioner asserts she raised this claim in her amended Rule 3.850 motion and on appeal from the circuit court's order denying the motion. (Id.).

Respondent asserts this claim is procedurally defaulted. (Doc. 19, pp. 25-29). Respondent concedes that petitioner presented this claim — a claim that counsel failed to prepare a defense of mental illness or diminished capacity — to the state circuit court in her amended Rule 3.850 motion, and that the state court adjudicated the claim on the merits. (Doc. 19, pp. 21-22). Respondent contends that petitioner presented a fundamentally different argument on appeal to the First DCA by arguing for the first time that investigation by defense counsel into her mental health history would have produced evidence supporting an insanity defense, specifically, that she was incapable of distinguishing right from wrong at the time of the offenses. (Id.). Respondent contends petitioner's having presented a very different argument on appeal renders the claim she presents in Ground Three of her federal habeas petition unexhausted and procedurally defaulted. (Id.). Notwithstanding the failure to exhaust, respondent argues petitioner's claim is without merit. (Id., pp. 30-31).

A. Exhaustion and Procedural Default

Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1),4 thereby giving the state the "`opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L. Ed. 2d 1 (1999); Picard, 404 U.S. at 277-78. A claim that was not fully exhausted in state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. O'Sullivan, 526 U.S. at 839-40, 848, 119 S.Ct. 1728; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998) (holding that federal habeas courts should enforce applicable state procedural bars even as to claims that were never presented to the state courts).

A petitioner seeking to overcome a procedural default must show cause and prejudice, or a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993). "For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L. Ed. 2d 517 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L. Ed. 2d 397 (1986)). The miscarriage of justice exception requires the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 85, 130 L. Ed. 2d 808 (1995). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him." Schlup, 513 U.S. at 327. Further:

Id.

In "Ground Three" of petitioner's amended Rule 3.850 motion, she presented the same claim she makes here — that investigation into her mental health history would have revealed she had been diagnosed with Bipolar Disorder and was suffering a "manic state" when she committed the offenses. (Ex. X, pp. 44-50). Petitioner contended that this evidence would have supported a "viable defense" of "mental illness;" that the evidence would have been a mitigating factor in sentencing; and that if counsel had advised her of this defense she would not have pleaded no contest and would have gone to trial. (Id.). Petitioner did not argue in the state circuit court, and does not argue here, that investigation into her mental health history would have produced evidence that she was insane, or incapable of distinguishing right from wrong, at the time she committed the offenses. (Id.). The state circuit court denied relief on the claim as follows:

(Ex. Y, p. 71).

When petitioner appealed the circuit court's order to the First DCA, she argued as "Issue 4" of her initial brief that the circuit court erred when it denied relief on her claim concerning counsel's failure to investigate and prepare a defense based on her Bipolar Disorder. (Ex. AA, pp. 6-7). Petitioner's substantive argument, however, was based entirely on a new assertion that defense counsel's investigation into her mental health history would have produced evidence that at the time she committed the crimes she was in "the manic phase of Bi-Polar Disorder" which prevented her from determining right from wrong and supported an insanity defense (as well as favoring a more lenient sentence). (Ex. AA, pp. 6-7). Petitioner apparently varied her argument in an attempt to overcome the deficiencies identified by the circuit court in its summary denial of relief. The First DCA summarily affirmed the lower court's decision without a written opinion. (Ex. CC).

The factual basis for Ground Three of petitioner's federal petition reiterates the claim petitioner presented in her amended Rule 3.850 motion before the state circuit court, and does not fault counsel for failing to investigate and prepare an insanity defense based on petitioner's Bipolar Disorder having prevented her from distinguishing right from wrong at the time of her crimes. (See Doc. 1, p. 6; Doc. 24, p. 5). The question this court must decide is whether petitioner waived or abandoned this claim in her postconviction appeal, as respondent contends. (Doc. 19, p. 26).

At the time of petitioner's postconviction appeal, the First DCA required an appellant who files a brief when appealing a summarily denied postconviction motion, to address all arguments in her brief that she wishes to preserve for appellate review. See Watson v. State, 975 So.2d 572, 573 (Fla. 1st DCA 2008); see also Cook v. State, 638 So.2d 134, 135 (Fla. 1st DCA 1994).5 If an appellant does not file a brief when appealing, the appellate court is required to investigate all possible means of relief. Id. n.1; see also Fla. R. App. P. 9.141(b)(2).

Petitioner's initial brief in her postconviction appeal was filed on January 24, 2012, well after Watson was decided and after the law of the Fifth DCA changed. (See supra note 5). Therefore, to obtain appellate review of the federal claims raised in her summarily denied Rule 3.850 motion, petitioner was required to raise and fully address the merits of those issues in her appellate brief. See Watson, 975 So. 2d at 573. Cf. Daniels v. Sec'y, Dep't of Corr., No. 6:10cv200-ACC-KRS, 2010 WL 5297167, at *7 (M.D. Fla. Dec. 20, 2010) (recognizing that Webb was receded from in Ward, but holding that Webb was applicable to federal petitioner's claim, because his state postconviction appeal pre-dated Ward). In petitioner's appellate brief, she did not raise a substantive argument as to the circuit court's rejection of Claim Three. (Ex. AA). Having thus chosen to argue a different factual basis for her claim on appeal and not the same claim she advanced in Ground Three of both her amended postconviction motion and federal habeas petition, petitioner failed to invoke the state court's established appellate review process as to her claim. See, e.g., Coleson v. Crews, No. 3:12cv96/ MCR/EMT, 2013 WL 1197729, at *35-36 (N.D. Fla. Feb. 4, 2013), Report and Recommendation adopted, 2013 WL 1197764 (N.D. Fla. Mar. 25, 2013); Solis v. Tucker, No. 4:10cv3/SPM/CAS, 2012 WL 4478301, at *5 (N.D. Fla. Aug. 29, 2012), Report and Recommendation adopted, 2012 WL 4478782 (N.D. Fla. Sept. 28, 2012); Wood v. Tucker, No. 5:10cv200/RS/EMT, 2012 WL 2511428, at *7-8 (N.D. Fla. May 31, 2012), Report and Recommendation adopted, 2012 WL 2511323 (N.D. Fla. June 29, 2012); Green v. McNeil, No. 1:09cv204/MMP/GRJ, 2011 WL 2790167, at *7 (N.D. Fla. June 22, 2011), Report and Recommendation adopted, 2011 WL 2790180 (N.D. Fla. July 15, 2011).

Any future attempt to exhaust state remedies would be futile under the state's procedural default doctrine, because a second appeal is unavailable and any further attempt to raise the claims in another Rule 3.850 motion would be subject to dismissal as successive. See Fla. R. Crim. P. 3.850(f). Thus, Ground Three is procedurally defaulted. Petitioner makes none of the requisite showings to excuse her procedural default. Petitioner's procedural default bars federal habeas review of Ground Three.

Even if this court deemed petitioner to have properly exhausted Ground Three, petitioner still is not entitled to federal habeas relief, because the state circuit court's rejection of her claim, a decision that was affirmed by the First DCA, was consistent with clearly established federal law.

B. Clearly Established Federal Law

The clearly established federal law governing claims of ineffective assistance of counsel is the Strickland standard, set forth above.

C. Federal Review of State Court Decision

The state circuit court's decision, which is the last reasoned state judgment rejecting the claim petitioner presents here, rested upon the determination that under Florida law, petitioner's allegation of mental illness (Bipolar Disorder), standing alone, did not establish a valid defense in a criminal prosecution and therefore petitioner failed to show that further investigation by defense counsel into her mental health history would have produced evidence supporting a viable affirmative defense to the charges.6 Although an ineffective assistance of counsel claim is a federal constitutional claim which the court considers in light of the clearly established law of Strickland, when "the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law." Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (explaining, in the context of an ineffective assistance of appellate counsel claim, that "[o]n the one hand, the issue of ineffective assistance — even when based on the failure of counsel to raise a state law claim — is one of constitutional dimension," but, "[o]n the other hand, the validity of the claim [counsel] failed to assert is clearly a question of state law, and we must defer to the state's construction of its own law.") (citations omitted);7 see also Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (holding that defense counsel cannot be deemed ineffective for failing to make a state-law-based objection when the state court has already concluded that the objection would have been overruled under state law; to conclude otherwise would require the federal habeas court to make a determination that the state court misinterpreted state law, which would violate the fundamental principle that federal habeas courts should not second-guess state courts on matters of state law); Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (denying federal habeas relief on ineffective assistance claim based on counsel's failure to make state-law-based objection; holding that the Florida Supreme Court's conclusion that the proposed objection would have been overruled was binding and precluded federal habeas relief on the ineffective assistance claim: "The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done. . . . It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'") (alterations in original) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir.1997)).

Here, as in Alvord, Callahan, and Herring, the state court has already answered the question of whether petitioner's Bipolar Disorder would have provided a viable defense to the charges — it would not have. This court must defer to the state court's determination of state law. Counsel's failure to investigate and prepare a defense based on petitioner's Bipolar Disorder cannot be deemed deficient performance, and petitioner cannot show she was prejudiced by counsel's failure to pursue this defense which had no arguable basis for success.

Further, defense counsel presented mitigating evidence of petitioner's mental health history and diagnosis at petitioner's sentencing hearing, in the form of a letter to the court from her treating mental health professionals, Dr. Mary Salid and Amelia Kazakos, Licensed Clinical Social Worker ("LCSW") (Ex. J, pp. 510-15, 536-38, Ex. K, p. 699). The letter, dated March 12, 2010, stated that petitioner had been engaged in psychotherapy with LCSW Amelia Kazakos since March 25, 2009, and that she had been a patient of Dr. Mary Salib for management of her medication since July 24, 2009. (Ex. K, p. 699). The letter stated that petitioner was being treated for a diagnosis of Bipolar I Disorder, Most Recent Episode Mixed, Severe Without Psychotic Features. (Id.). The letter stated that an essential feature of this disorder includes both Major Depressive Episodes and Manic Episodes. (Id.). The letter explained that during a manic period, there are "abnormal and persistent elevated expansive moods," which "can certainly contribute to a distorted thought process, unclear perceptions, and the inability to make rational decisions." (Id.). Defense counsel's presentation of this letter refutes petitioner's allegation that defense counsel failed to present evidence of her mental health condition for purposes of mitigation at sentencing.8

The state court's rejection of petitioner's ineffective assistance claim did not result in a decision that was "contrary to, or involved an unreasonable application of" Strickland. Ground Three does not entitle petitioner to federal habeas corpus relief.

Ground Four "Trial Counsel was ineffective because he failed to investigate Petitioner's mental health history or to request a psychological evaluation before urging her to tender a no contest plea." (Doc. 1, p. 7).

Petitioner alleges the following in support of this claim:

(Doc. 1, p. 7). Petitioner asserts she raised this claim in her amended Rule 3.850 motion and on appeal of the circuit court's denial of the motion. (Id.).

Respondent concedes that petitioner presented this claim to the state courts in her amended Rule 3.850 motion and related appeal, and that the state courts adjudicated the claim on the merits. (Doc. 19, pp. 31-33). Respondent argues that petitioner is not entitled to federal habeas relief because the state courts correctly identified and reasonably applied the clearly established federal standard in rejecting the claim. (Id., pp. 33-40).

A. Clearly Established Federal Law

The applicable legal standard is the Strickland standard, set forth supra.

B. Federal Review of State Court Decision

Petitioner presented this claim as Ground Four in her amended Rule 3.850 motion. (Ex. X, pp. 50-55). The state circuit court adjudicated the claim as follows:

(Ex. X, p. 72). Petitioner appealed to the First DCA, where she argued as Issue 5 that the circuit court erred in denying her claim that counsel was ineffective for failing to determine her competency to enter her pleas. (Ex. AA, p. 8).9 The First DCA affirmed without written opinion. (Ex. CC).

Although petitioner's claim is one of ineffective assistance and not a substantive competency claim, the following principles governing a defendant's competency to proceed in a criminal prosecution provide contextual guidance. The Due Process Clause of the Fourteenth Amendment prohibits the State from trying or convicting a defendant who is mentally incompetent. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L. Ed. 2d 815 (1966). The Supreme Court set the standard to be used in determining mental competency as whether a defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L. Ed 2d 824 (1960) (per curiam); Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L. Ed. 2d 103 (1975); see also Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L. Ed. 2d 345 (2008). Florida courts follow this standard. See Hernandez-Alberto v. State, 126 So.3d 193, 209 (Fla. 2013) (citing Dusky, 362 U.S. at 402, and Drope, 420 U.S. at 171).

In Drope, the Court elaborated as follows:

Drope, 420 U.S. at 180.

The Eleventh Circuit Court of Appeals has applied and expounded upon these standards. "[N]either low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial." Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995) (citation omitted). A petitioner who makes a substantive competency claim, contending she was convicted while mentally incompetent, "is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence." James v. Singletary, 957 F.2d 1562, 1571 (11th Cir. 1992). A petitioner who presents "clear and convincing evidence" which creates a "real, substantial and legitimate doubt" as to her competence is entitled to an evidentiary hearing on her substantive competency claim. Medina, 59 F.3d at 1106 (quoting James, 957 F.2d at 1573). However, the standard of proof is high, and "the facts must positively, unequivocally, and clearly generate the legitimate doubt." Card v. Singletary, 981 F.2d 481, 484 (11th Cir. 1992) (quotations omitted). Relevant information may include evidence of a defendant's irrational behavior, demeanor at trial, or prior medical opinion. See Watts v. Singletary, 87 F.3d 1282, 1287 (11th Cir. 1996).

A lifelong history of mental illness and emotional problems does not demonstrate incompetency without a specific showing of how these difficulties generated a substantial doubt as to the defendant's competency at the time in question. See Medina, 59 F.3d at 1106; Card, 981 F.2d at 484. Similarly, the fact that the accused is undergoing treatment with psychiatric drugs, while relevant, does not alone prove incompetence. See Sheley v. Singletary, 955 F.2d 1434, 1438-39 (11th Cir. 1992). In order to establish incompetence, evidence must establish that the drugs affected the accused to the point that she could not effectively consult with her attorney and could not understand the proceedings. See id. at 1439.

As the state court reasonably determined, petitioner did not allege, nor did she identify anything in the record suggesting, that a psychological evaluation would have shown either that she was insane at the time she committed the offenses, or that she was incompetent to stand trial or enter a plea. Petitioner's assertions that she did not understand the nature of the charges or the consequences of her no contest plea, and that she was not competent to enter a plea, are conclusively refuted by declarations petitioner made in her written plea agreement and by sworn statements she made during her plea colloquy. Petitioner acknowledged in her written plea agreement that she had never been declared legally incompetent or insane, and that she was entering her plea fully and voluntarily of her own accord and with full understanding of all matters set forth in the charging information and the plea agreement. (Ex. H, p. 758). The written plea agreement set forth each offense and the factual basis and maximum sentence for each. (Id., p. 756). The written plea agreement contains a section titled "Certificate of Defendant's Attorney," whereby petitioner's counsel stated: "I believe he or she fully understands this [plea agreement], the consequences of entering it, and that Defendant does so of his/her own free will. In my opinion the defendant is mentally competent." (Id., p. 760).

Further, the transcript of the plea colloquy gives no indication that petitioner lacked the ability to consult with defense counsel with a reasonable degree of rational understanding, or that she lacked a rational and factual understanding of the proceedings against her. (Ex. I). To the contrary, petitioner swore under oath that she understood she could be sentenced to 30 years in prison on each of the five first degree felony counts, and 15 years in prison on each of the four second degree felony counts, and that the recommended minimum prison sentence according to her Criminal Punishment Code scoresheet was 229.2 months in prison. (Ex. I, p. 321-23). Petitioner acknowledged her understanding that the court would sentence her from 229.2 months to 210 years in prison, unless she presented persuasive mitigation evidence at sentencing. (Id., pp. 323-24). Petitioner stated under oath that no one told her she would get less than the recommended minimum sentence. (Id., p. 324). The court reviewed the factual basis for each charge and asked petitioner whether she agreed that she engaged in the conduct underlying each charge. (Id., pp. 324-28). Petitioner agreed that she committed the underlying offense conduct, but qualified her admission by stating she was "in a manic situation" when she committed the offenses and had since been diagnosed with Bipolar Disorder and was receiving treatment. (Id., p. 326). The trial court then engaged petitioner in a specific inquiry to ascertain her understanding of her culpability. (Id., pp. 326-28). Only upon petitioner admitting to the offense conduct and demonstrating a full understanding of the significance of her plea did the trial court accept petitioner's plea as being knowingly and intelligently entered. (Id.). After the trial court accepted petitioner's plea, defense counsel represented to the court: "We're also working with her psychologist and psychiatrist as far as mitigation to present to the Court at sentencing." (Id., p. 330).

At petitioner's sentencing hearing, not only did petitioner expressly admit to committing the charged crimes and profess remorse for her actions (Ex. J, pp. 501-516), but in seeking lenience from the court, petitioner testified under oath:

(Id., p. 515).

As stated by the Supreme Court in Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L. Ed. 2d 136 (1977):

Id., 431 U.S. at 73-74; see also United States v. McCord, 618 F.2d 389, 393 (5th Cir. 1980) ("[A] defendant ordinarily will not be permitted to refute testimony given under oath at a plea or sentencing hearing."). The record establishes that at the time petitioner entered her plea, she had a rational and factual understanding of the proceedings and was able to consult with her lawyer about her plea and sentencing with a reasonable degree of rational understanding.10

The state court's rejection of petitioner's ineffective assistance claim was not contrary to Strickland, did not involve on an unreasonable application of Strickland, and was not based on an unreasonable determination of the facts. Petitioner is not entitled to federal habeas relief on Ground Four.

Ground Five "Trial Counsel was ineffective because he failed to object to witness testimony concerning Petitioner's mental condition." (Doc. 1, p. 7).

Petitioner alleges the following in support of this claim:

(Doc. 1, p. 7). Petitioner asserts she raised this claim in her amended Rule 3.850 motion and on appeal of the circuit court's denial of the motion. (Id.).

Respondent concedes that petitioner presented this claim to the state courts in her amended Rule 3.850 motion and related appeal, and that the state courts adjudicated the claim on the merits. (Doc. 19, pp. 41-43). Respondent argues that petitioner is not entitled to federal habeas relief because the state courts correctly identified and reasonably applied the clearly established federal standard in rejecting the claim. (Id., pp. 43-47).

A. Clearly Established Federal Law

The applicable legal standard is the Strickland standard, set forth supra.

B. Federal Review of State Court Decision

Petitioner presented this claim as Ground Five in her amended Rule 3.850 motion. (Ex. X, pp. 56-61). The state circuit court adjudicated the claim as follows:

(Ex. X, pp. 72-73) (footnotes omitted). Petitioner appealed, raising this issue as Issue 6 of her initial brief. (Ex. AA, p. 9). The First DCA affirmed without written opinion. (Ex. CC).

Deferring to the state court's determination that admission of the testimony at the sentencing hearing was proper under Florida law, petitioner failed to show that defense counsel's failure to object was deficient, or that there was a reasonable probability the sentencing court would have sustained an objection or pronounced a different sentence if counsel had objected to the testimony. See Callahan, 427 F.3d at 932; Herring, 397 F.3d at 1354-55. The state court's adjudication of this claim was not contrary to, or an unreasonable application of, Strickland. Petitioner is not entitled to federal habeas relief on Ground Five.

Ground Six "The cumulative errors of Petitioner's attorney abrogated her constitutional right to effective assistance of counsel." (Doc. 1, p. 7).

Petitioner alleges the following in support of this claim:

(Doc. 1, pp. 7-8). Petitioner asserts she raised this claim in her amended Rule 3.850 motion and on appeal from the lower court's denial of the motion. (Id., p.8).

Respondent concedes petitioner presented this claim to the state courts, and the courts adjudicated the claim on the merits. (Doc. 19, pp. 48-49). Respondent argues the Supreme Court has not recognized a claim of cumulative error by a state habeas petitioner; therefore, there is no "clearly established federal law" for purposes of § 2254(d). (Doc. 19, pp. 48-51).

This court need not determine whether, under the current state of Supreme Court precedent, cumulative error claims reviewed through the lens of AEDPA can ever succeed in showing that the state court's adjudication on the merits was contrary to or an unreasonable application of clearly established federal law. It is enough to say that petitioner has not shown an error of constitutional dimension with respect to any of her federal habeas claims. Therefore, she cannot show that the cumulative effect of the alleged errors deprived her of fundamental fairness in the state criminal proceedings. See Morris v. Sec'y, Dep't of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (refusing to decide whether post-AEDPA claims of cumulative error may ever succeed in showing that the state court's decision on the merits was contrary to or an unreasonable application of clearly established law, but holding that petitioner's claim of cumulative error was without merit because none of his individual claims of error or prejudice had any merit); see also, e.g., Forrest v. Fla. Dep't of Corr., 342 F. App'x 560, 565 (11th Cir. Aug. 21, 2009) (noting absence of Supreme Court precedent applying cumulative error doctrine to claims of ineffective assistance of counsel, but holding that petitioner's cumulative error argument lacked merit because he did not establish prejudice or the collective effect of counsel's error on the trial).11

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." 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)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.

The petitioner in this case fails to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (explaining the meaning of this term) (citation omitted). Accordingly, the court should deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

1. That the petition for writ of habeas corpus (doc. 1), challenging the judgment of conviction and sentence in State of Florida v. Tina Dianne Mitchell, Escambia County, Florida Circuit Court Case Number 09-1710, be DENIED, and the clerk be directed to close the file.

2. That a certificate of appealability be DENIED.