IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ALFONZA L. WARD, 

Petitioner, 

vs. Case No. 4:11cv75-MP/CAS

KENNETH S. TUCKER, as Secretary of 

Florida Department of Corrections, 

Respondent. 

_________________________________/

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

Petitioner Alfonza L. Ward, proceeding pro se, filed a petition for writ of habeas

corpus under 28 U.S.C. § 2254. The matter was referred to the undersigned United

States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636 and Northern

District of Florida Local Rule 72.2(B). After careful consideration of all issues raised, the

undersigned has determined that no evidentiary hearing is required for disposition of

this matter. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons

stated herein, the instant § 2254 petition should be denied on the merits. See 28 U.S.C.

§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the

courts of the State.”).

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Procedural History

On February 18, 2011, Petitioner filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Doc. 1. Petitioner challenges his 2006 conviction and

sentence for robbery, following a jury trial in case number 2005-CF-3451, in the Second

Judicial Circuit, Leon County, Florida. Docs. 1 and 8. 

This Court directed Petitioner to amend his petition. Doc. 6. On July 26, 2011,

Petitioner filed an amended § 2254 petition. Doc. 8. This Court directed service of the

amended § 2254 petition on Respondent, and required Respondent to file an answer,

motion, or other response. Doc. 9. 

Thereafter, Respondent filed a motion to dismiss the amended petition, attaching

exhibits containing portions of the record. Doc. 12. Petitioner has not filed a reply

thereto, although given time to do so. Doc. 9.

This Court now considers Petitioner’s amended § 2254 petition (Doc. 8), which

raises four grounds, together with Respondent’s motion to dismiss amended petition

and exhibits thereto (Doc. 16). As explained below, because Petitioner’s claims are

either unexhausted or lack merit, the § 2254 petition should be denied.

State Court Proceedings

As referenced above, in 2006, Petitioner was convicted of robbery and

sentenced to 30 years in prison as a violent career criminal (VCC). Doc. 16, Ex. G. 

Petitioner appealed his judgment and sentence to the First District Court of Appeal

(DCA). On September 5, 2008, the First DCA issued a per curiam affirmance without

opinion for the direct appeal; the mandate issued September 23, 2008. See Ward v.

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State, 989 So. 2d 643 (Fla. 1st DCA 2008) (table); Doc. 16, Ex. L; online docket for

case number 1D06-6357 at www.1dca.org. 

On August 21, 2009, Petitioner filed a pro se motion for post-conviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. Doc. 16, Ex. M. Petitioner raised

two similar grounds in his Rule 3.850 motion, asserting he was illegally sentenced to an

enhanced sentence as a VCC, pursuant to section 775.084(1)(d), Florida Statutes,

because the convictions used to enhance his sentence did not satisfy the sequential

sentencing requirement of section 775.084(5), Florida Statutes, as a matter of law, and

the resulting error violated his state and federal constitutional rights to a “full and fair”

hearing, due process of law, and equal protection under the law. Id. at 3-4, 7. The first

claim focused on a prior conviction for aggravated battery in case number 98-3038, and

the second claim focused on a prior conviction for possession of a firearm by a

convicted felon in case number 97-2485. Id. at 4, 7. 

By order dated September 13, 2010, the state trial court denied Petitioner’s Rule

3.850 motion. Doc. 16, Ex. N. The trial court made the following findings: 

Defendant asserts that his VCC designation is illegal because his

prior felonies do not satisfy Florida Statute section 775.084(5). Defendant

asserts that he was sentenced in the same proceeding for Leon County

case numbers 1996-CF-4569, 1997-CF-2485 and 1998-CF-3038. 

Defendant concludes that those 3 prior felonies were, therefore, not

sentenced separately.

The 3 prior felonies that the State relied on for Defendant’s VCC

designation are case numbers [1] 1990-CF-3610, [2] 1998-CF-3038, and

either [3a] 1996-CF-4569 or [3b] 1997-CF-2485.[1

] Exh. 1-12/06/05

1

Hereafter, this Report and Recommendation uses the bolded and bracketed

numbers – [1], [2], [3a], and [3b] – to represent the corresponding case numbers, for

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Motion; Exh. 2-11/28/06 Sentencing Transcript, pp. 1-2, 4, 9-13.

Defendant was sentenced in case number [1] on 09/24/90. Exh. 2 at pg.

11; Exh. 3- 09-24/90 Judgment and Sentence, 1990-CF-3610; Exh. 4-

Docket Report, 1990–3610. Defendant’s attachments to his motion show

that he was sentenced in [3a] and [3b] on 09/16/07. Exh. 5- 09/16/07

Judgment and Sentence, 1996-4569; Exh. 6- 09/16/07 Judgment and

Sentence, 1997-2485; see also Exh. 7-Docket Report, pp. 2-5, 1996-4569;

Exh. 8- Docket Report, pp. 2-6, 1997-2458. The Court correctly counted

only 1 of those 2 cases as a prior felony. Defendant’s attachments further

show that he was sentenced in [2] on 10/22/99. Exh. 9- 10/22/99

Judgment and Sentence, 1998-3038; see also Exh. 10- Docket Report,

1998-3038. The fact that he may have been sentenced in [2] during the

same proceeding as his VOP sentencings in [3a] and [3b] does not

preclude the Court from counting [2] as a third prior felony. State v.

Richardson, 915 So. 2d 86 (Fla. 2005); Nesbitt v. State, 946 So. 2d 609

(Fla. 4th DCA 2007). Notably, the Court properly did not count either of

the 10/22/99 VOPs (in [3a] or [3b]) as an additional prior felony.

In summary, Defendant’s first prior felony for purposes of

775.084(5) is case number [1], for which he was sentenced on 09/24/90. 

His second prior felony is either case number [3a] or [3b] [

2

], for which he

was sentenced on 09/16/07. His third prior felony is case number [2], for

which he was sentenced on 10/22/99. Defendant’s VCC designation is

not illegal.

Id.

Petitioner appealed the order denying his Rule 3.850 motion to the First DCA, but

did not file an initial brief. On December 30, 2010, the First DCA per curiam affirmed

the appeal without opinion, and the mandate issued January 25, 2011. See Ward v.

State, 50 So. 3d 1140 (Fla. 1st DCA 2010) (table); Doc. 16, Ex. P; online docket for

1D10-5449 at www.1dca.org. 

ease of reading and explanation.

2

In the trial court’s order, the case number here indicated is 1997-2458, rather

than 1997-2485, as previously indicated; thus, it appears the trial court’s order simply

reversed the last two numbers by mistake.

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On February 18, 2011, Petitioner filed in this Court a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Doc. 1. As indicated above, this Court directed

Petitioner to amend his petition (Doc. 6), and he filed his amended § 2254 petition on

July 26, 2011 (Doc. 8).

Analysis

In the amended § 2254 petition, Petitioner asserts four grounds: (1) the predicate

offense in 1996-CF-4569 ([3a] above) used to enhance his sentence to VCC does not

meet the sequential sentencing requirement; (2) the predicate offense in 1997-CF-2485

([3b] above) used to enhance his sentence to VCC does not meet the sequential

sentencing requirement; (3) the prosecutor impermissibly pointed to Petitioner during

the questioning of a witness about identification; and (4) the show-up conducted by the

Tallahassee Police Department was improper. Doc. 8 at 4-5. 

In the motion to dismiss, the Respondent argues Grounds 1 is raised for the first

time in the amended § 2254 petition and should be dismissed because it is untimely and

does not relate back. Doc. 16 at 4. Respondent acknowledges, however, that “it may

be arguable that the claim presented in Ground One . . . relates back to the timely

original petition,” and then argues that claim is unexhausted because it is not the same

claim presented to and on which the state court ruled. Id. at 7. It should be noted here,

as indicated above, that Petitioner filed the amended petition in response to this Court’s

order. In addition, a review of the post-conviction court’s order indicates that court did

address [3a] in finding the VCC designation not illegal. 

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Respondent argues Ground 2 was presented in the original timely § 2254 petition

and was also presented to the state court in the second claim of the Rule 3.850 motion. 

Id. at 10. Respondent asserts this ground raises a pure issue of state law, however,

and is not cognizable in a federal habeas proceeding. Id. at 11-12. 

Respondent argues that Grounds 3 and 4 were not exhausted in state court,

cannot now be raised, and are thus procedurally defaulted. Id. at 12, 26-28. This

argument thus challenges the sufficiency with which those grounds were presented in

the appellate brief filed in the direct appeal. Id. at 15, 26-28. As Respondent

acknowledges, the arguments presented in Grounds 3 and 4 were presented in the

Initial Brief; however, the brief presents them in the context of sub-arguments under the

main point asserting cumulative error. Id. at 15, 26. Respondent further argues that

Petitioner does not assert a violation of his federal constitutional rights and, even if he

did present a federal claim, it is unexhausted and procedurally defaulted. Id. at 13, 17,

19, 24.

Because, as explained below, a review of the record attached to Respondent’s

motion, as well as pertinent law, reveals that none of Petitioner’s claims warrant federal

habeas relief, the amended § 2254 petition should be denied on the merits. This

renders moot Respondent’s motion to dismiss.

Grounds 1 and 2: Predicate Offenses Used to Enhance Sentence

In Grounds 1 and 2, Petitioner argues, as he did in his Rule 3.850 motion, that

the State impermissibly used offenses [3a] and [3b] to enhance his sentence as a VCC. 

As indicated above, the state post-conviction court addressed these claims on the

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merits and denied them in a written order. Doc. 16, Ex. N. As that court found, and as

documents in the record indicate, Petitioner was sentenced for these offenses on

September 16, 2007. Id. at 1; see Doc. 16, Ex. F at 12, 32-33 (transcript of sentencing

hearing). The post-conviction court further found that, in applying the VCC

enhancement, the sentencing court counted only one of these two offenses as a prior

felony. Doc. 16, Ex. N at 2; see Doc. 16, Ex. F at 10-22, 33-34 (transcript of sentencing

hearing). The state post-conviction trial court thus concluded Petitioner’s VCC

designation was not illegal. The First DCA affirmed this order on appeal. 

A federal court may not grant a state prisoner’s habeas petition “unless the

relevant state court decision ‘was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United

States.’” Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) (emphasis added); see 28

U.S.C. § 2254(d)(1). Petitioner here does not assert an unreasonable application of

clearly established federal law, and it was not unreasonable for the state court to

conclude Petitioner’s VCC designation was not illegal under Florida law. Indeed, that

court properly found the designation was not illegal. See Fla. Stat. § 775.084(1)(d)

(2005); Zink v. State, 951 So. 2d 34, 34-35 (Fla. 2d DCA 2007) (explaining that although

two prior judgments of conviction for robbery and escape entered on same day could

not be counted separately as predicate convictions for VCC sentencing, prior

convictions for robbery and burglary in addition to those for robbery and escape

supported VCC sentencing). Accordingly, Grounds 1 and 2 should be denied. 

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Ground 3: Prosecutor Pointing at Petitioner

In Ground 3, Petitioner asserts that, during his trial, the prosecutor pointed at him

while questioning a witness about identification of the perpetrator. Doc. 8 at 5. 

Petitioner references Exhibit E, attached to the amended § 2254 petition, which consists

of a portion of the trial transcript. This portion of the transcript reflects that a witness on

the stand was describing the perpetrator as “wearing . . . like a tan shirt, like a collared

shirt, short sleeves and tan pants” and sunglasses, with his hair short “almost like a

buzz cut.” Id. The witness is asked whether that person is in the courtroom and the

witness replies, “Yes, sir.” Id.; Doc. 16, Ex. D at 33. The following then transpired:

Q Could you please point to him and identify him by what he’s wearing?

[Defense Counsel]: Objection. Can we approach?

THE COURT: Sidebar.

 (SIDEBAR CONFERENCE AS FOLLOWS:)

[Defense Counsel]: Judge, I’m going to move for a mistrial. I object to the

fact that the prosecutor pointed to my client when he asked her to identify

him. I don’t think that’s proper. I’m going to ask for a mistrial based on

that; he points to the person. That’s not proper to point to the person and

then ask to identify who it is. Then he’s identifying the person and not the

witness.

[Prosecutor]: I think that’s a bit of a stretch. I mean, I don’t see how it

would possibly be a mistrial. She either can identify him or can’t identify

him.

THE COURT: I’m going to deny the motion for mistrial. My observation is

that he, the Assistant State Attorney, gestured in the general direction, but

did not point directly at the defendant. Plus, I would also note that she has

clearly identified the defendant in her testimony. And based upon – the

representation is it will come into evidence at a later time, the defendant’s

confession, I think that is not sufficient conduct that would merit granting a

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mistrial.

Now, is there any curative instruction that you would like me to give

to the jury? I figure that a curative instruction could – 

[DEFENSE COUNSEL]: No, sir.

THE COURT: – would not necessarily assist in any way.

[DEFENSE COUNSEL]: No, sir.

THE COURT: Okay.

Thank you.

(SIDEBAR CONCLUDED)

THE COURT: You may proceed.

BY [THE PROSECUTOR]:

Q Again, do you see the person who passed that note to you in the

courtroom today?

A Yes, sir.

Q Could you please point to him and identify him by what he’s wearing?

A It’s that man right there in the blue striped collared shirt.

BY [THE PROSECUTOR]: Your Honor, may the record reflect

the witness has identified the defendant?

THE COURT: Noted.

Doc. 16, Ex. D at 33-36. Thus, Petitioner essentially asserts the trial court erred in

denying his motion for mistrial.

“A ruling on a motion for a mistrial is within the sound discretion of the trial court

and should be ‘granted only when it is necessary to ensure that the defendant receives

a fair trial.’” Gore v. State, 784 So. 2d 418, 427 (Fla. 2001) (quoting Goodwin v. State,

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751 So. 2d 537, 547 (Fla. 1999)). Here, from a review of the relevant portion of the

transcript, quoted above, it appears the trial judge in effect sustained defense counsel’s

objection, given the judge’s offer to give a curative instruction, although the trial judge

did also indicate that the prosecutor only gestured in Petitioner’s direction and did not

point directly at him. The judge declined to grant a mistrial, explaining that the

prosecutor did not point directly at Petitioner and the witness clearly identified Petitioner

in her testimony, and further that Petitioner’s confession would be coming into evidence. 

The record supports this determination and reflects that Petitioner’s videotaped

confession did come into evidence. See Doc. 16, Ex. D at 33-36 (quoted supra), 109-

16 (portions of investigator’s testimony and playing of Petitioner’s videotaped

confession during which Petitioner states, “They thought they was giving me a ride. . . .

To cash a check . . . or something . . . Inside that the truck . . . And I went in. And I

wasn’t armed or anything. . . . And I just passed the note” that demanded 100s and

50s); see also Doc. 16, Ex. D at 61-63 (testimony of arresting officer that Petitioner, at

time of arrest approximately 20 minutes after robbery, was wearing “a tan and brown

printed type shirt” and “a goldish brown color pants” and that Petitioner voluntarily stated

“he was the only one that went in the bank” and the other people in the vehicle with him

at the time of arrest “had nothing to do with that, that it was all him”). Given this, the trial

court did not abuse its discretion in denying Petitioner’s motion for mistrial. 

Even assuming Petitioner has exhausted a federal constitutional claim with

respect to this issue, Petitioner is not entitled to relief. Petitioner does not attempt to

show this ruling was based on an unreasonable determination of the facts and

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Petitioner does not assert it is contrary to, or an unreasonable application of, clearly

established federal law. See 28 U.S.C. § 2254(d). Petitioner is not entitled to relief and

Ground 3 should be denied.

Ground 4: Show-up Identification

In Ground 4, Petitioner challenges the show-up conducted by the Tallahassee

Police Department. Doc. 8 at 5. Petitioner asserts that, while sitting in the back of a

police vehicle, he was instructed to step out and then some unknown person

“supposedly identif[ied] [him] while [he] was hand-cuffed.” Id. Petitioner later learned it

was a witness who testified at his trial. Id. In support of this claim, Petitioner references

Exhibit F, attached to the amended § 2254 petition, which consists of a portion of the

trial transcript. This portion of the transcript reflects that defense counsel moved for a

judgment of acquittal after the State rested its case. Id. In this motion, defense counsel

argued the show-up identification of Petitioner was improper and without a proper

identification, the State failed to meet its burden. Id. Petitioner's claim thus references

the earlier denial by the trial court of a motion for mistrial concerning the show-up

method of identification. 

In particular, the following transpired during the presentation of the State’s case

and questioning of the bank teller/victim:

Q At Lake Bradford and Gaines Street, the person that was – that was

shown to you, did you pick him out because he was the person who had

passed you that note, or did you pick him out because the police told you

that he was the person who had robbed you?

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A I picked him out because that was the man that had robbed me. That

was the man that had come up to my window, my teller station.

Q The person at the bank who passed you the note, that was the same

person at the show-up?

A Yes, sir.

Q Are you positive of that?

A I am absolutely sure, without a doubt.

. . . .

[DEFENSE COUNSEL]: Yes, sir, Your Honor. Judge I move for a mistrial.

The identification that was given was clearly tainted by the conduct of law

enforcement telling the primary witness in this case, that is the bank teller .

. . prior to the show-up being conducted, which is already a questionable

method of identifying someone. But to couple that with telling her ahead of

time that, we caught the robber, come and see if you can identify him. I

mean, that’s tantamount to saying, this is your guy, we got him. Just go

through the motions and come tell us, you know, verify what we already

think that is, to say this is the robber. And, ordinarily, it might be curable.

The problem is, this was all mentioned in opening statement, and which

puts me in a position of having to move for a mistrial based on the ID.

It’s clearly mistrial material when the police tell the primary witness against

my client that they caught the robber, and then she is taken out to identify

an African-American male, who in her mind already, and I think she

testified to that, they got the guy. I mean it’s already a forgone conclusion;

this is the guy. And it’s not necessarily the prosecution’s fault, but whoever

it was that made that statement, which obviously it was made, because

[the bank teller] says it was made, clearly taints the identification, clearly

taints opening statement, clearly taints the entire trial, and I would move

for mistrial.

THE COURT: Mr. [Prosecutor]?

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[PROSECUTOR]: Judge, I think the witness cleared it up, in that she said

she was taken to a show-up to point out somebody that matched a similar

description. I mean, it’s inherent that if she’s going to a show-up, she is

obviously going to possibly assume that that’s the person. But again, on

the witness stand she said that, I didn’t pick him out because the police

brought him out.

She said, the reason I picked him out was because he was a person who

passed the note; he was the person who had robbed me. I think the

defense is making a bit of a stretch. Again, we’re talking about verbiage.

Now, I plan on calling Investigator Troop to the stand and he can clear

everything up.

THE COURT: Anything else, Mr. [Defense Counsel], on that point?

[DEFENSE COUNSEL]: Just that if clearing everything up means officer

Troop is going to say he didn’t make that statement, which under these

circumstances is usually what happens, the witness says one thing and

the officer says something else, it’s still not going to cure what is already

out there.

THE COURT: Are there any cases that anyone can cite me that have

dealt with this express issue?

[DEFENSE COUNSEL]: Off the top if my head, no, Your Honor. I wasn’t

expecting it to happen.

THE COURT: I’m going to deny the motion for mistrial. The show-up

method of identification, which as I understood it has been accepted by

appellate courts, itself – lends itself to that issue, that credibility issue that

can be made by defense counsel on either cross or closing, that, you

know, one is taken out, and at the scene someplace, not necessarily at

the scene, but at a place or place to say, is that the person. So, that is a

matter, you know, that is not significantly different from the testimony that

was heard. And I think it’s more a matter of material to be used for

purposes of credibility argument and weight argument with regard to that

witness. And again, I don’t see where the opening statement itself in any

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way was misleading based upon the testimony I’ve heard so far, because

the opening statement clearly identified it as a show-up and distinguished

between a show-up and a photo line-up. And it’s clear to the jury. The

circumstances at least at this pont is to what the evidence shows with

regard to the show-up. I think it’s more a matter of discussing with the jury

the issue of validity or weight or credibility of the witness’s testimony. So

I’m going to deny the motion for mistrial.

Doc. 16, Ex. D at 42-47. Thus, again, Petitioner essentially asserts the trial court erred

in denying his motion for mistrial.

Even assuming Petitioner has exhausted a federal constitutional claim with

respect to this issue, Petitioner is not entitled to relief. “To violate due process, an

identification procedure used by the police must be unnecessarily suggestive and create

a substantial risk of misidentification.” Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir.

1987) (citing Neil v. Biggers, 409 U.S. 188 (1972)). “Factors considered in determining

reliability include ‘the opportunity to view the witness at the time of the crime, the

witness’ degree of attention, the accuracy of the witness’ prior description of the

criminal, the level of certainty demonstrated by the witness at the confrontation, and the

length of time between the crime and the confrontation.’” Id. (quoting Neil, 409 U.S. at

199). “[S]how-ups are not unnecessarily suggestive unless the police aggravate the

suggestiveness of the confrontation.” Id.

In this case, the bank teller/victim testified she had a clear view of Petitioner’s

face during the robbery. Doc. 16, Ex. D at 32. She described Petitioner and what he

was wearing during the robbery, and this was consistent with the arresting officer’s

description of what Petitioner was wearing when he was arrested 20 minutes after the

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robbery. Id. at 34-35 (testimony of victim/bank teller), 61-63 (testimony of arresting

officer). She testified that Petitioner was the man who passed her the note. Id. at 35. 

After the robbery, the police said they had “caught the robber” in the vehicle the bank

employees had described; the police took the victim/bank teller in an unmarked car to

another location where she identified Petitioner, as they brought him out of a police car. 

Id. at 39-40. The police told her they were going on a car ride to see if she could

identify the robber. Id. at 41. She testified that she “picked him out because he was the

man that had robbed me” and “was the man that had come up to my window, my teller

station.” Id. at 43. She testified she was “absolutely sure, without a doubt.” Id. 

Under these circumstances, the trial court did not err in declining to grant a

mistrial because of the show-up identification. See Johnson, 817 F.2d at 729 (finding

identification reliable where “Jordan had a good opportunity to observe the men in broad

daylight, both before and after they entered and left the bank, he thoroughly described

them to the police, he was certain of the identification at the time, and he identified the

suspects only minutes after the crime while his memory was still fresh” and “[u]nder

these circumstances, Jordan’s out-of-court identification was not unreliable eve if it had

been impermissibly suggestive, and Johnson’s trial was not rendered fundamentally

unfair by the trial court’s admission of Jordan’s testimony”). See also United States v.

Walker, 201 F. App’x 737 (11th Cir. 2006) (“Walker argues that the identification was

unduly suggestive because Walker was presented for identification singly, in handcuffs,

and surrounded by police officers. . . . Walker cites no authority for his position that

identification of a single individual is intrinsically suggestive, and our precedent suggests

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that it is not.”). Petitioner does not attempt to show this ruling was based on an

unreasonable determination of the facts and Petitioner does not assert it is contrary to,

or an unreasonable application of, clearly established federal law. See 28 U.S.C.

§ 2254(d). Petitioner is not entitled to relief and Ground 4 should be denied. 

Conclusion

 Based on the foregoing, Petitioner is not entitled to federal habeas relief. The

amended § 2254 petition (Doc. 8) should be denied on the merits. Given this

recommendation, Respondent’s motion to dismiss may be denied as moot.

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts provides that "[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant," and 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)." Rule 11(b) provides that a timely notice of appeal

must still be filed, even if the court issues a certificate of appealability. 

Petitioner 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 (2000)

(explaining substantial showing) (citation omitted). Therefore, 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

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issue." The parties shall make any argument as to whether a certificate should issue by

objections to this report and recommendation.

Leave to appeal in forma pauperis should also be denied. See Fed. R. App. P.

24(a)(3)(A) (providing that before or after notice of appeal is filed, the court may certify

appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis).

Recommendation

It is therefore respectfully RECOMMENDED that the Court DENY Petitioner's

second amended § 2254 petition on the merits (Doc. 10). Given this recommendation,

the Court should also DENY Respondent’s motion to dismiss (Doc. 16). It is further

RECOMMENDED that a certificate of appealability be DENIED and that leave to appeal

in forma pauperis be DENIED.

IN CHAMBERS at Tallahassee, Florida on June 18, 2012.

 S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Within 14 days after being served with a copy of this report and

recommendation, a party may serve and file specific, written objections to the

proposed findings and recommendations. A party may respond to another

party's objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings

and recommendations.

Case No. 4:11cv75-MP/CAS

Case 4:11-cv-00075-MP-CAS Document 18 Filed 06/18/12 Page 17 of 17