Darling v. Secretary, DOC et al, No. 2:2012cv00298 - Document 17 (M.D. Fla. 2015)
Court Description: OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; denying 1 Petition for writ of habeas corpus. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 9/25/2015. (RKR)
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Darling v. Secretary, DOC et al Doc. 17 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION KENNETH DARLING, Petitioner, v. Case No: 2:12-cv-298-FtM-29MRM SECRETARY, DOC and FLORIDA ATTORNEY GENERAL, 1 Respondents. OPINION AND ORDER Petitioner Kenneth Darling (Petitioner), filed a pro se Petition for Writ of Habeas Corpus (Doc. #1) pursuant to 28 U.S.C. § 2254 on May 23, 2012. 2 Petitioner challenges his state court judgment of conviction for robbery with a firearm while wearing a mask arising in the Twentieth Judicial Circuit Court, Desoto County, Florida (case number 00-0431-CF). Petitioner raises four claims of ineffective assistance of trial counsel. 1When a petitioner is incarcerated and challenges his present physical confinement, “the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004) (citations omitted). In Florida, the proper respondent in this action is the Secretary of the Florida Department of Corrections. Therefore, the Florida Attorney General will be dismissed from this action. 2The Petition was docketed and filed in this Court on May 29, 2012; however, the Court “applies the mailbox rule and refer[s] to the date [petitioner] signed his motions or petitions and submitted them to prison authorities.” Cramer v. Secretary Dep’t of Corr., 461 F.3d 1380, 1381 n.1 (11th Cir. 2006). Dockets.Justia.com In accordance with the Court’s Order to Show Cause (Doc. #6), on October 31, 2012, Respondent filed a Response to the Petition (Doc. #9) and supporting exhibits (Exs. 1-29). The Court ordered Petitioner to file a reply to Respondent’s response to the Petition within twenty-one days after its filing (Doc. #6), as of the date of this Order, Petitioner has not done so. 3 This matter is ripe for review. I. On October 4, 2000, Petitioner was charged by Information with robbery with a firearm while wearing a mask. November 15, 2002, a motion to consolidate (Ex. 1.) the trials On of Petitioner, Stacey Hammond (Hammond), and Johnie Smith (Smith) was filed by the State. (Ex. 2.) On the same day, the co-defendants filed a motion to sever the trials. heard on November 15, 2002. (Ex. 3.) (Ex. 4.) Both motions were The prosecutor explained that co-defendants Hammond and Smith wanted to sever the trials because Petitioner made statements during his interview. 15.) (Id. at The State did not object to Petitioner’s case being severed and proposed two juries at the same trial. (Id. at 16-17.) Defense counsel for the three co-defendants argued they wanted 3On August 8, 2014, Petitioner filed a letter response stating that he filed a Reply on June 28, 2012. (Doc. #14) There is nothing on the docket reflecting Petitioner filed a reply. See docket. The Court notes that Petitioner alleges his Reply was sent for mailing approximately four months before the Respondent’s Response was filed. - 2 - separate trials and separate juries for each defendant. 19-25.) (Id. at Petitioner’s counsel argued that the evidence against Smith included DNA, fingerprints, mask, and a gun that juries may unjustly connect to Petitioner. (Id. at 24-25.) The State argued that the evidence would be entered even if the trials were severed. (Id. at 26-27.) The trial court severed Petitioner’s case and held one trial with two juries. (Id. at 28.) The jury was selected on December 6, 2002, and opening statements commenced on December 9, 2002. (Ex. 29.) of robbery On December 13, 2002, the jury found Petitioner guilty with a firearm while wearing Petitioner was sentenced to life in prison. a mask. (Ex. 5.) (Ex. 6; Ex. 7.) A notice of appeal was filed on April 30, 2003. (Ex. 8.) On February 4, 2005, the state district court affirmed per curiam without a written opinion (case number 2D03-1740). mandate was issued on March 3, 2005. (Ex. 11.) The (Id.) On August 11, 2005, Petitioner filed a pro se motion for postconviction relief raising four claims of ineffective assistance of trial counsel. Specifically, Petitioner raised the following claims: 1) ineffectiveness for failure to allow Petitioner to inspect juror lists to discover the “all white” prospective jury; 2) ineffectiveness for failure to object to the presentation of physical evidence during opening statements; 3) ineffectiveness for failure to object and preserve for appellate review the motion - 3 - to sever trial; and 4) ineffectiveness for failure to object to the robbery with a firearm instruction. denied the motion on its merits. (Ex. 12.) The Court (Ex. 13.) Petitioner filed a notice of appeal from that denial on April 25, 2007. (Ex. 14.) The state district court of appeals affirmed claims two through five without discussion. affirmed (Id.) claim one without prejudice as (Ex. 16.) The court insufficiently The mandate was issued on March 13, 2008. pled. (Id.) Petitioner filed a second motion for post-conviction relief on July 31, 2008, raising his first claim again. Court ordered the State to respond. (Ex. (Ex. 17.) 18.) The The State responded that there was no reasonable probability of a different outcome and there was no evidence of prejudice or racial biases among the jurors. (Ex. 19.) Petitioner filed a reply. (Ex. 20.) On July 15, 2011, the court denied Petitioner’s second motion. (Ex. 21.) Petitioner appealed. (Ex. 22.) While his second post- conviction motion was still pending, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. (Ex. 24.) Petitioner moved to stay his Petition until he could exhaust his state court remedies. (Ex. 26.) The Court denied Petition’s motion to stay and dismissed his case. (Ex. 28.) On April 18, 2012, the state district court affirmed per curiam without a written opinion. (Ex. 23.) The mandate issued on May 17, 2012. - 4 - (Id.) Petitioner filed the instant Petition for Writ of Habeas Corpus (Doc. #1) pursuant to 28 U.S.C. § 2254 on May 23, 2012, raising the same four grounds of ineffective assistance of counsel which were raised in his post-conviction motions. Petition. See generally Respondent acknowledges the Petition is timely, and the Court agrees. II. Petitioner filed his Petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Consequently, post-AEDPA law governs this action. Penry v. Johnson, 532 U.S. 782, 792 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th Cir. 2007). Neither party disputes the applicability of the AEDPA or the timeliness of the Petition. A. Standard of Review Under the Antiterrorism Effective Death Penalty Act (“AEDPA”) Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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. - 5 - 28 U.S.C. § 2254(d). to meet. This standard is both mandatory and difficult White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s summary rejection of a claim, even without explanation, qualifies deference. as an adjudication on the merits which warrants Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). “Clearly established federal law” consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is “contrary to” clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A state court decision involves an “unreasonable application” of the Supreme Court’s precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner’s case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court - 6 - either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply”, Bottoson, Williams, 529 U.S. at 406). 234 F.3d at 531 (quoting The unreasonable application inquiry “requires the state court decision to be more than incorrect or erroneous,” rather, it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted); Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155. must show that justification the that state there court's was an ruling error was well Petitioner “so lacking understood in and comprehended in existing law beyond any possibility for fairminded disagreement.” White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786–787 (2011)). Finally, the Supreme Court has stated that “a decision adjudicated on the merits in a state court and 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[.]” 340 (2003) (dictum). Miller–El v. Cockrell, 537 U.S. 322, When reviewing a claim under § 2254(d), a federal court must bear in mind that any “determination of a factual issue made by a State court shall be presumed to be correct[,]” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” - 7 - 28 U.S.C. § 2254(e)(1); see, e.g., Burt v. Titlow, 134 S. Ct. 10, 1516 (2013); 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”). B. Standard for Ineffective Assistance of Counsel In Strickland v. Washington, the Supreme Court established a two-part test entitled to ineffective for determining relief on the assistance. whether ground 466 a that U.S. convicted his 668, counsel 687-88 person is rendered (1984). A petitioner must establish that counsel’s performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a “doubly deferential” standard of review that gives both the state court and the petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)). The focus of inquiry under Strickland's performance prong is “reasonableness Strickland, 466 under U.S. prevailing at 688-89. professional In reviewing norms.” counsel's performance, a court must adhere to a strong presumption that “counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. - 8 - Indeed, the petitioner bears the heavy burden to “prove, by a preponderance of the evidence, that counsel’s performance was unreasonable[.]” v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). Jones A court must “judge the reasonableness of counsel’s conduct on the facts of the particular case, viewed as of the time of counsel’s conduct,” applying a “highly deferential” level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690). As to the prejudice prong of the Strickland Petitioner’s burden to demonstrate prejudice is high. v. Moore, 314 F.3d 1256, 1260 (11th Cir. standard, Wellington 2002). Prejudice “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That is, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, proceeding would have been different.” Id. the result At 694. of the A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. III. For the reasons stated below, the Court finds after de novo review that the state court’s determination that counsel did not provide ineffective unreasonable assistance application of, is clearly not - 9 - contrary established to, nor federal an law. This Court has carefully reviewed the record and, for the reasons set forth below, concludes no evidentiary proceedings are required in this Court. (2007). Schriro v. Landrigan, 127 S. Ct. 1933, 1939-40 Petitioner does not proffer any evidence that would require an evidentiary hearing, Chandler v. McDonough, 471 F.3d 1360 (11th Cir. 2006), and the Court finds that the pertinent facts of the case are fully developed in the record before the Court. Schriro, 127 S. Ct. at 1940; Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004). The Court addresses each of Petitioner’s arguments in turn. A. Failure to Statements Object to Evidence Presented During Opening In ground one, Petitioner alleges he was denied the effective assistance of counsel when counsel failed to object to the State presenting physical evidence during opening arguments. p. 4.) (Doc. #1, Petitioner asserts that the State improperly presented photos, slides, and videotapes of the evidence expected to be introduced during presentation of trial. these (Id.) items during Petitioner contends opening statements that was prejudicial, and counsel was ineffective for failing to object. (Id.) Respondent asserts there is no reasonable probability that the presentation of the evidence during opening arguments affected the outcome of the trial. (Doc. #9, pp. 15-16.) - 10 - Respondent argues the State’s use of photographs and slides helped outline the facts, and the State did not use the evidence to discuss legal arguments. (Id.) Respondent further asserts the state trial court was within its discretion to allow the presentation of evidence to outline the facts of the case. (Id.) Respondent also argues that given the compelling evidence of guilt, the alleged error did not have a substantial and injurious effect or influence in determining the jury’s verdict. (Id.) The post-conviction court found that there is neither a general rule of court or statute touching opening statements but the “prosecuting attorney may outline the facts that he or she, in good faith, expects to prove.” (Ex. 13, p. 5.) Citing Florida law, the post-conviction court stated that the “purpose and scope of a legitimate opening statement is to state what evidence will be presented to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence to the whole.” (Id.) The court concluded that “[b]ecause the photographs were not used to present arguments or discuss the law of the case, it was not necessary that trial counsel object.” (Id.) The appellate court affirmed the post-conviction court’s findings without written opinion. (Ex. #16.) Opening remarks are not evidence, and the purpose of opening argument is to outline what an attorney expects to be established by the evidence. Whitted v. State, 362 So. 2d 668 (Fla. 1978). - 11 - The control of comments is within the trial court's discretion. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882 (1982). The state court determined that the State’s opening statement complied with state law and it was not necessary for counsel to object. Review of this finding of state law is not cognizable in a federal habeas proceeding. Engle v. Isaac, 456 U.S. 107, 119-20 (1982); Davis v. Jones, 506 F.3d 1325, 1332 (11th Cir. 2007) (“A state’s interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved.” Davis, 506 F.3d at 1332 (quoting Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983)). Nevertheless, the record shows the jury was properly advised that counsel's evidence. remarks during (Ex. 29, p. 17.) opening statements were not Therefore, there was no need for trial counsel to object and his failure to do so did not result in a reasonable probability that the proceeding would have been different. The Court finds that the state court’s determination is not contrary to Strickland determination of the facts. or based upon an unreasonable Accordingly, ground one is denied pursuant to 28 U.S.C. § 2254(d). - 12 - B. Failure to Object to Testimony of DNA Evidence in Order to Preserve Motion to Sever for Appeal In ground two, Petitioner alleges he was denied the effective assistance of counsel when counsel failed to object to the presentation of DNA evidence implicating a co-defendant in order to preserve for appeal the defendants motion to sever trial. 1, p. 6.) jury could (Doc. Petitioner argues severance was necessary because the infer that the DNA evidence which implicated defendant Smith, was also evidence of Petitioner’s guilt. co- (Id.) Petitioner asserts that if counsel would have properly objected, the issue would have been preserved for appellate review and the appellate court may have reversed Petitioner’s conviction finding that the Court erred in not severing the trials. Respondent asserts that Petitioner’s counsel addressed the motion to sever under Florida law. 17-18.) by (Id.) properly (Doc. #9, pp. Respondent argues that the DNA and testimony evidence was relevant to Petitioner’s charge and would be admissible in a severed trial. (Id.) Respondent also asserts that even if counsel had objected to the evidence and testimony, there is no probability of a different outcome. (Id.) The post-conviction court noted that counsel had properly moved to sever the trials which the trial court granted. p. 6.) (Ex. 13, The post-conviction court found that because the trials were severed, “there was no need for trial counsel to object.” - 13 - (Id.) The appellate court affirmed the post-conviction court’s findings without written opinion. The underlying assistance of issue counsel of claim (Ex. #16.) Petitioner’s is state-law second based. ineffective The post- conviction court, and in turn, the state appellate court by its affirmance, have answered the question of whether Petitioner was entitled to severance of the trials. The record shows the trial court did in fact sever Petitioner’s trial from the other codefendants’ trial in that Petitioner had his own jury. Consequently, Petitioner’s claim that counsel’s failure to object to the introduction of DNA evidence somehow prejudiced his ability to appeal the court’s motion to sever, is without merit. Petitioner cannot establish prejudice arising from counsel’s failure to object. Petitioner has failed to show that the state court’s adjudication of this claim was contrary to either prong of Strickland or was based upon an unreasonable determination of the facts. Accordingly, ground two is denied pursuant to 28 U.S.C. § 2254(d). C. Failure to Allow Petitioner to Inspect Juror Lists or Voir Dire Procedures In ground three, Petitioner asserts he was denied the effective assistance of counsel when counsel failed to move the court to allow him to inspect the juror lists and procedures. (Doc. #1, pp. 9-10.) Petitioner alleges that counsel had concerns - 14 - about an all-white jury and racial bias. contends that counsel should have moved (Id.) the Petitioner court to allow inspection of juror lists and selection procedures to determine if minority groups were systematically excluded. Respondent objectively prong. asserts reasonable the state application (Id.) decisions of resulted Strickland’s in an deficiency Respondent alleges that counsel’s actions during voir dire are presumed to be matter of trial strategy. Respondent further asserts that Petitioner has failed to show racial bias was present which would have required formal objections or challenges. The post-conviction court rejected Petitioner’s claim of ineffectiveness of counsel relating to the jury bias allegations finding Petitioner failed to object to the jury composition at the time of trial. factual (Ex. 13, pp. 3-4.) support for On appeal, the court found no Petitioner’s claims and affirmed without prejudice to Petitioner filling a second motion on the claim. (Ex. 16.) The post-conviction court reviewed the merits of Petitioner’s claim again in his second motion for post-conviction relief. (Exs. Petitioner’s 17-21.) claim The finding post-conviction that court Petitioner’s denied conclusory allegations failed to establish a legally sufficient claim. 21.) The decision was per curiam affirmed on appeal. (Ex. (Ex. 23.) The Court finds that Petitioner is not entitled to relief on this claim. Petitioner has failed to offer any evidence showing - 15 - that had he been able to inspect the juror lists and procedures, there is a reasonable probability that the outcome of the trial would have been different. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (explaining that a petitioner is not entitled to an evidentiary hearing or federal habeas relief in ineffective assistance of counsel claims were claims are merely conclusory allegations). The state court’s determination that Petitioner’s allegations did not support a claim for ineffective assistance of counsel are not contrary to Strickland unreasonable determination of the facts. or based upon an Consequently, ground three is denied pursuant to 28 U.S.C. § 2254(d). D. Failure to Instruction Object to the Robbery with a Firearm Jury In ground four, Petitioner alleges he was denied the effective assistance of counsel when counsel failed to object to the jury instruction on robbery with a firearm. Petitioner asserts the instruction failed to instruct the jury that they had to find the gun was a firearm beyond a reasonable doubt. 12.) (Doc. #1, pp. 11- Petitioner argues that he was prejudiced because had counsel objected properly, the court may have granted a judgment of acquittal because there was no evidence to prove the firearm element. (Id.) Petitioner also alleges a lesser included offence would have been submitted to the jury for consideration resulting in a lesser sentence. (Id.) - 16 - Respondent asserts that this is an issue of a state law jury charge and thus, the Court is limited to determining whether any error or omission in the jury charge was so prejudicial as to amount to violation of due process. (Doc. #9, pp. 20-23.) Respondent argues that Petitioner has not overcome the presumption of correctness of the convincing evidence. Petitioner does deficient or not that state (Id.) he findings Respondent establish the court’s by further post-conviction argues that counsel’s incurred prejudice as and that performance a counsel’s failure to object to the jury instruction. The clear court rejected result was of (Id.) Petitioner’s claim of ineffectiveness of counsel regarding the jury instruction finding the jury instructions satisfied Florida law, the Due Process Clause of the Fifth Amendment, and the notice and jury trial guarantees of the Sixth Amendment. (Ex. 13, pp. 7-8.) The post-conviction court applied Florida law and found that the Amended Information specifically stated the firearm was a handgun definition satisfies the statutory criteria. court affirmed written opinion. the post-conviction (Id.) court’s and that the The appellate findings without (Ex. #16.) A jury charge is adequate if, when viewed as a whole, it fairly and correctly states the issues and law. Russell, 717 F.2d 518, 521 (11th Cir. 1983). United States v. In Florida, trial courts are generally required to adhere to the standard jury - 17 - instructions after determining whether the standard instructions accurately and adequately state the relevant law. See Moody v. State, 359 So. 2d 557 (Fla. 4th DCA 1978). The record shows that the Court defined the term “hand gun” and the jury was instructed that they had to find the gun was a firearm beyond a reasonable doubt. (Ex. 29, Vol VI, pp. 167 171.) Petitioner fails to demonstrate that the state trial court's instructions, viewed in light of the entire trial record, so infected the trial that his conviction violates federal due process standards. Therefore, counsel had no grounds on which to object. Upon thorough review of the record and the findings by the state court, this Court finds Petitioner has not established that there was any error in the jury instruction. Counsel cannot be deemed frivolous ineffective for failing to raise a issue. Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel was not ineffective for failing to raise issues clearly lacking in merit). Petitioner has failed to demonstrate that the State’s rejection of this claim was contrary to Strickland or was based upon an unreasonable determination of the facts. Consequently, ground four is denied pursuant to 28 U.S.C. § 2254(d). Based upon the foregoing, the Court will deny the instant Petition. Any other claim not specifically addressed is found to be without merit under the legal principles set forth above. ACCORDINGLY, it is hereby - 18 - ORDERED: 1. The Florida Attorney General is DISMISSED as a named Respondent. 2. The Petition (Doc. #1) is DENIED. 3. The Clerk of Court shall terminate any pending motions, enter judgment accordingly, and close this case. CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability on either petition. A prisoner seeking to appeal a district court's final order denying his petition for writ of habeas corpus has no absolute entitlement to appeal but must obtain a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 184 (2009). “A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” U.S.C. § 2253(c)(2). demonstrate court’s that To make such a showing, Petitioner “must reasonable assessment of 28 the jurists would constitutional find claims the district debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) or, that “the issues presented were adequate to deserve encouragement to proceed further,” Miller-El v. (2003)(citations omitted). Cockrell, 537 U.S. 322, 335-36 Petitioner has not made the requisite - 19 - showing in these circumstances. Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. DONE and ORDERED in Fort Myers, Florida on this of September, 2015. SA: ftmp-2 Copies: All Parties of Record - 20 - 25th day
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