JAMES D. WHITTEMORE, District Judge.
Petitioner, a State of Florida inmate proceeding pro se, petitions for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 and challenges the validity of his convictions for (1) armed grand theft of a motor vehicle, (2) armed grand theft of a boat, (3) armed aggravated fleeing and eluding, (4) armed aggravated battery on a law enforcement officer, (5) armed attempted second-degree murder of a law enforcement officer, and (6) felonious possession of a firearm. Respondent argues that Petitioner's claims should be dismissed for procedural reasons or for failure to meet the threshold requirements of 28 U.S.C. § 2254(d) and (e).
Petitioner stole a Tampa Electric Company ("TECO") truck, a twenty-five foot boat, and the boat's trailer. The boat owner's father observed his son's boat being pulled behind the TECO truck and called the police. Pinellas County Sheriff's Deputy Chris Taylor responded and pursued the truck and trailer. The driver, later identified as Petitioner, eventually pulled over to the side of the road and Deputy Taylor pulled in behind him. Petitioner put the truck in reverse and rammed Deputy Taylor's vehicle causing it to stall. Petitioner fled the scene and Deputy Chris Nawrocki continued the pursuit. Deputy Nawrocki attempted to pull alongside Petitioner to force him to pull over. Petitioner began to deliberately fishtail the boat and trailer into Deputy Nawrocki's vehicle causing the fenders to lock together. Petitioner then pulled Deputy Nawrocki's police cruiser into oncoming traffic but eventually had to pull off the road to avoid a collision.
Deputy Nawrocki began to shoot at Petitioner's vehicle. Deputy Taylor arrived at the scene and also began shooting at Petitioner to try to free Deputy Nawrocki. Petitioner was struck in his side by a bullet and swerved off the road into a tree. Petitioner was observed in the stolen truck wearing a shoulder holster and a cocked and loaded gun was found on the floor of the stolen truck. Petitioner was arrested and charged with (1) armed grand theft of a motor vehicle, (2) armed grand theft of a boat, (3) armed aggravated fleeing and eluding, (4) armed aggravated battery on a law enforcement officer, (5) armed attempted second-degree murder of a law enforcement officer, and (6) felonious possession of a firearm.
Petitioner pleaded guilty to all six charges with an agreement for a fifty-year sentencing cap for each conviction. Petitioner was sentenced as a habitual felony offender to concurrent terms of thirty years imprisonment for each of the armed grand theft convictions and the felonious firearm possession conviction, and to concurrent terms of fifty years imprisonment for the armed aggravated fleeing and eluding conviction, the armed aggravated battery on a law enforcement officer conviction, and the armed attempted second-degree murder of a law enforcement officer conviction. Petitioner appealed. The state district court of appeal affirmed Petitioner's convictions and sentences in a per curiam decision without a written opinion. (Doc. 21, Ex. 7).
Petitioner filed a pro se motion for post-conviction relief pursuant to Fla. R. Crim. P. 3.850. (Doc. 21, Ex. 9A). The state post-conviction court rejected the motion after an evidentiary hearing and Petitioner appealed. (Doc. 21, Exs. 9J, 11). The state district court of appeal affirmed the denial of the Rule 3.850 motion in a per curiam decision without a written opinion. (Doc. 21, Ex. 16).
Petitioner filed his Section 2254 petition on February 24, 2011. Respondent concedes that the petition is timely. Petitioner presents five grounds for relief:
Upon review, the petition must be DENIED.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of state court adjudications, states in pertinent part:
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:
"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). See Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme court "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.
The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell, 535 U.S. at 693. Federal courts must afford due deference to a state court's decision. "AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S.766, 779 (2010).
In a per curiam decision without written opinion the state district court of appeal affirmed the denial of Petitioner's Rule 3.850 motion. The per curiam affirmance warrants deference under Section 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.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003).
Petitioner bears the burden of overcoming a state court factual determination by clear and convincing evidence. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact, but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state courts' rejection of Petitioner's post-conviction claims warrants deference in this action.
Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent prejudice. 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims v. Singletary, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.
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," Petitioner must demonstrate that counsel's error prejudiced the defense. Strickland v. Washington, 466 U.S. at 691-92. To meet this burden, Petitioner must show a reasonable probability that, but for counsel's unprofessional errors, he would not have pleaded guilty and would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 59 (1985). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-91. Petitioner cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
In Ground One Petitioner contends that his conviction for felonious possession of a firearm violates the "well established double jeopardy clause"
Federal habeas relief for a person in custody pursuant to the judgment of a state court is available only on the ground that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). See also Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859, 861, 178 L. Ed. 2d 732 (2011) ("The habeas statute unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.") (internal quotations and citations omitted); Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions."); Krasnow v. Navarro, 909 F.2d 451, 452 (11th Cir.1990) ("A writ of habeas corpus is available in federal court only in cases of constitutional error."). Petitioner's state law double jeopardy claim and his state law challenge to the degree of felony assigned to the aggravated battery charge are not cognizable bases for federal habeas relief.
Notwithstanding cognizability, to the extent Petitioner asserts in his petition a federal double jeopardy violation (Ground One) or a federal due process violation (Ground Two), neither claim is exhausted. Before a federal court may grant habeas relief, a federal habeas petitioner must exhaust every available state court remedy for challenging his conviction, either on direct appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1)(A), (C). "[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted)). To exhaust a claim, a petitioner must present the state court with the particular legal basis for relief in addition to the facts supporting the claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement that a federal habeas corpus petitioner exhaust available state court remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court, alerting that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A petitioner must "do more than scatter some makeshift needles in the haystack of the state court record." McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (quotations and citations omitted). A petitioner may raise a federal claim in state court "by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such claim on federal grounds, or by simply labeling the claim `federal.'" Baldwin v. Reese, 541 U.S. 27, 32 (2004).
Petitioner, relying upon only state law, argued in his pro se direct appeal brief
Under the procedural default doctrine, "[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 applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982). In other words, he must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
A petitioner may obtain federal habeas review of a procedurally defaulted claim, without a showing of cause or prejudice, if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). This exception requires a petitioner's "actual" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
Petitioner fails to demonstrate cause and prejudice excusing the default of his federal claims. Carpenter, 529 U.S. at 451; Carrier, 477 U.S. at 495-96. He neither alleges nor shows that the fundamental miscarriage of justice exception applies. Henderson, 353 F.3d at 892. Because Petitioner fails to proffer specific facts showing an exception to procedural default, Grounds One and Two are procedurally barred from federal review.
Petitioner presented to the state post-conviction court in his Rule 3.850 motion two claims of ineffective assistance of trial counsel. (Doc. 21, Ex. 9A). The state post-conviction court granted Petitioner an evidentiary hearing on both grounds. (Doc. 21, Ex. 9E). Petitioner moved for appointment of counsel to represent him at the hearing. The state post-conviction court denied the motion and Petitioner proceeded pro se at the evidentiary hearing. (Doc. 21, Exs. 9F, 9G). Petitioner contends that the state trial court abused its discretion by denying him the appointment of counsel, resulting in a violation of the Sixth Amendment.
"There is no constitutional right to an attorney in state post-conviction proceedings." Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted). A prisoner has no due process right to appointed counsel in a post-conviction proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987). The state post-conviction court's denial of Petitioner's motion to appoint post-conviction counsel is neither contrary to, or an unreasonable application, of clearly established law. See 28 U.S.C. § 2254(d)(1), (2). Ground Three warrants no relief.
Petitioner alleges he was denied due process, equal protection, and effective assistance of counsel when counsel "unfoundedly assured and misadvised [P]etitioner he would be sentenced to the bottom of the guidelines (32 years) if Petitioner pled guilty in exchange for a (50) year cap, rendering Petitioner's plea involuntary in violation of his 6th and 14th Amendment rights to the U.S. Constitution."
The state post-conviction court afforded Petitioner an evidentiary hearing on this ground at which Petitioner testified that counsel made the aforementioned statements. (Doc. 21, Ex. 9G, pp. 6-8, 12-13). Trial counsel testified that he explained to Petitioner the implications of the fifty-year sentencing cap and did not advise Petitioner that he would receive a thirty-two year sentence rather than a fifty-year sentence.
Following the evidentiary hearing the state post-conviction court rejected Petitioner's ground on ineffective assistance of counsel:
(Doc. 21, Ex. 9J, p. 2).
In denying relief on this ineffective assistance claim, the state post-conviction court found counsel more credible than Petitioner. The state post-conviction court's credibility determination is presumed correct. See Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) ("We must accept the state court's credibility determination and thus credit [the attorney's] testimony over" the petitioner's.), cert. denied, 526 U.S. 1047 (1999); Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993) ("Findings by the state court concerning historical facts and assessments of witness credibility are . . . entitled to the same presumption accorded findings of fact under 28 U.S.C. § 2254(d)."), cert. denied, 513 U.S. 1161 (1995). Relying only upon his unsupported contention, Petitioner fails to overcome the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Moreover, even if counsel promised Petitioner a particular sentence or misadvised Petitioner about his sentence, Petitioner cannot establish his ineffective assistance of counsel claim. The law is clear that an inaccurate prediction about sentencing alone will not generally be sufficient to sustain a claim of ineffective assistance of counsel. See United States v. Himick, 139 Fed. App'x 227, 228-29 (11th Cir. 2005) ("[A] defendant's reliance on an attorney's mistaken impression about the length of his sentence is insufficient to render a plea involuntary as long as the court informed the defendant of his maximum possible sentence."); United States v. Pease, 240 F.3d 938, 940-41 (11th Cir. 2001) (rejecting argument by defendant sentenced as a career offender that his plea was not knowing and voluntary because he had relied on counsel's prediction that his potential sentence under the plea agreement would be anywhere from five to ten years when, in fact, he faced a ten-year minimum mandatory sentence). Here, Petitioner does not establish deficient performance by counsel. Under Strickland, "counsel 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 accepting the prosecution's offer and going to trial." Walker v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). The record shows that counsel met that obligation in Petitioner's case.
Notwithstanding, even assuming deficient performance, Petitioner fails to establish resulting prejudice necessary to obtain federal relief. See Hill, 474 U.S. 59. One of the benefits of Petitioner's plea was the fifty-year sentencing cap which precluded his receiving a possible life sentence.
To the extent that Petitioner challenges the validity of his guilty plea based upon the alleged misadvice of counsel about sentencing, Petitioner cannot obtain relief.
Petitioner presents no challenge to the plea colloquy. Aside from his own self-serving allegations, Petitioner produces no evidence to substantiate his claim that he involuntarily entered his guilty plea. His sworn statements at the colloquy demonstrate that he understood both the charges against him and the consequences of pleading guilty. (Doc. 21, Ex. 1G, transcript of Aug. 29, 2005, change of plea hearing, pp. 9-11). See Stano, 921 F.2d at 1141. Petitioner presents no evidence establishing that he (1) did not want to proceed with his plea, (2) that his sworn testimony during the plea colloquy was false, or (3) that he was coerced into entering his plea. The plea colloquy also shows that Petitioner understood that he faced a possible fifty-year sentence. (Doc. 21, Ex. 1G, transcript of Aug. 29, 2005, change of plea hearing, p. 11). Petitioner's unsubstantiated allegations fail to overcome the strong presumption of verity afforded his sworn statements at the plea colloquy. Blackledge, 431 U.S. at 73-74. Petitioner fails to establish that he involuntarily entered his plea.
Before Petitioner entered his plea, counsel requested that Dr. Valerie McClain, a licensed psychologist, conduct a psychological evaluation of Petitioner to assess potential mitigating factors for sentencing. Dr. McClain opined that, at the time she evaluated Petitioner, he was affected by several mental health issues.
(Doc. 1, p. 20). In his reply Petitioner further argues that counsel failed to advise him of a "viable" insanity defense. (Doc. 24, p. 1). Petitioner claims that, "[a]lthough Dr. McClain's determinations did not specifically address [his] mental state at the time of the crimes, as is required under the M'Naghten Rule, counsel should have recognized that [Petitioner was unable to understand the nature and quality of his acts or their consequences] and requested further examination." (Id. at p. 2). Petitioner alleges that Dr. McClain's diagnoses should have caused counsel to doubt Petitioner's competence to enter a plea and that, "had other experts evaluated him, they would have found him incompetent." (Id. at p. 3). Petitioner claims that "an insanity defense was available to him pursuant to the M'Naghten Rule
Petitioner acknowledged on direct examination at the Rule 3.850 evidentiary hearing that counsel initiated Dr. McClain's examination and that she did not find him incompetent. (Doc. 21, Ex. 9G, p. 10). Petitioner admitted on cross-examination that he understands the difference between right and wrong but, due to his mental health issues and brain damage, he cannot refrain from wrongdoing. (Id. at p. 15). Petitioner further testified that, if counsel had properly investigated his competency, he would have pursued an insanity defense.
Counsel testified at the evidentiary hearing that he requested the psychological evaluation for sentencing purposes only, not because he questioned Petitioner's sanity at the time of the offenses or Petitioner's competence to enter a plea. (Doc. 21, Ex. 9G, pp. 24-25, 32-33). Counsel testified that nothing in Dr. McClain's report suggested Petitioner was insane when he committed his crimes or that Petitioner was incompetent to enter a plea.
(Doc. 21, Ex. 9J, p. 3).
The federal standard for competency to stand trial
Petitioner does not allege, much less demonstrate, that any mental infirmity rendered him unable to understand the plea proceedings or consult with counsel. Petitioner at the plea colloquy exhibited no difficulty answering the court's questions. He coherently expressed (1) his understanding of the rights he was giving up by entering a plea, (2) his understanding of the sentence he faced and the significance of the fifty-year sentencing cap, and (3) his satisfaction with trial counsel's representation. (Doc. 21, Ex. 1E, pp. 9-11). Petitioner averred that he had never been treated for mental illness and was not under the influence of any medication on the day he entered his plea. (Id. at pp. 10-11). The record does not support, and Petitioner does not demonstrate, that he lacked "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding," or that he did not have a "rational as well as factual understanding of the proceedings against him" due to a mental infirmity or a lack of psychiatric medication. See Dusky, 362 U.S. at 402.
In the context of an ineffective assistance of counsel claim in which a petitioner faults trial counsel for failing to investigate or act upon a petitioner's alleged incompetence, the petitioner must do more than raise a bare allegation of incompetence. Rather, he must allege facts suggesting either that counsel was aware of signs indicating petitioner's incompetence and unreasonably failed to act upon them, or that counsel unreasonably failed to investigate the petitioner's competence. See Strickland, 466 U.S. at 691 ("[C]ounsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigation unnecessary. . . . [A] particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel's judgments.").
Petitioner, relying only upon Dr. McClain's report and his own unsubstantiated allegations, fails to set forth a basis upon which to conclude that his trial counsel ignored facts, viewed objectively, that raised a bona fide doubt about Petitioner's competency to enter a guilty plea. Petitioner does not account for his demonstrated rational behavior and coherent responses at the plea hearing which support the objectively reasonable conclusion that there was no genuine issue of his competency to enter his plea. Petitioner fails to point to evidence creating a substantially legitimate doubt about his competence to enter his plea and fails to show there was a reasonable probability of a different outcome at the plea hearing if his counsel had further investigated Petitioner's competency.
As to counsel's failure to pursue an insanity defense, Petitioner cannot obtain relief. Petitioner does not allege that he was insane when he committed the crimes nor does he present any evidence to substantiate his allegation that he had a "viable" insanity defense. Petitioner signed a sworn change of plea form that includes an acknowledgment that he waived "the right to employ any defenses" that he may have had. (Doc. 21, Ex. 9C, change of plea form, p. 1). Petitioner likewise acknowledged during the plea colloquy that, by pleading guilty, counsel would "not be asserting defenses." (Doc. 21, Ex. 1G, transcript of Aug. 29, 2005, change of plea hearing, p. 9).
Even assuming that counsel performed deficiently by failing to present an insanity defense, Petitioner cannot demonstrate that this defense likely would have succeeded at trial. Section 775.027(1), Florida Statutes,
Petitioner presents no evidence substantiating a viable insanity defense. See Presnell v. Zant, 959 F.2d 1524, 1533 (11th Cir. 1992) (rejecting defendant's ineffective assistance of counsel claim based upon attorney's failure to raise insanity defense because defendant failed to come forward with evidence supporting insanity defense). Petitioner's admission at the Rule 3.850 evidentiary hearing that he understands the difference between right and wrong precludes the viability of an insanity defense. See Reaves v. State, 826 So. 932, 938 (Fla. 2002) ("Insanity is a complete defense if, at the time of the crime, the defendant was incapable of distinguishing between right and wrong as a result of a mental disease or defect.") (footnote omitted). Petitioner fails to meet his burden of establishing that the state post-conviction court unreasonably applied controlling Supreme Court precedent or unreasonably determined the facts in rejecting this ground. See 28 U.S.C. § 2254(d)(1), (2).
Accordingly, it is
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(l). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at§ 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment ofthe constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances. Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
(Doc. 21, Ex. 9J, pp. 23-24).
Counsel testified on cross-examination by Petitioner:
(Doc. 21, Ex, 9G, pp. 33-34).
Doc. 21, Ex. 9A, attach. A, p. 5).
(Doc. 21, Ex. 9G, pp. 20-21). Petitioner acknowledged upon questioning by the state post-conviction judge that he faced a maximum penalty of life imprisonment if convicted at trial.
(Doc. 21, Ex. 1D, p. 15).
(Doc. 21, Ex. 9G, p. 25).
(Doc. 21, Ex. 9G, p. 15).