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Case 3:10-cv-00539-MMH-MCR Document 34 Filed 07/30/13 Page 1 of 19 PageID 250

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

WILLIAM RAY,
a/k/a WILLIAM R. KING,
Petitioner,
v.
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.


Case No. 3:10-cv-539-J-34MCR

ORDER

I. Status

Petitioner William Ray, an inmate of the Florida penal system,
initiated this action by filing a pro se Petition for Writ of
Habeas Corpus (Doc. #1) under 28 U.S.C. § 2254 on May 17, 2010,
pursuant to the mailbox rule. Ray filed an Amended Petition (Doc.
#14) on October 19, 2010, in which he challenges a 2000 state court
(Putnam County, Florida) judgment of conviction for first degree
murder and robbery. Respondents have submitted a memorandum in
opposition to the Petition. See Respondents' Response to Petition
(Response) (Doc. #21) with exhibits (Resp. Ex.). On December 14,
2010, the Court entered an Order to Show Cause and Notice to
Petitioner (Doc. #18), admonishing Ray regarding his obligations
and giving Ray a time frame in which to submit a reply. Ray
submitted a brief in reply on July 25, 2011. See Petitioner's

Case 3:10-cv-00539-MMH-MCR Document 34 Filed 07/30/13 Page 2 of 19 PageID 251

Traverse to State's Response (Reply) (Doc. #31). This case is ripe
for review.

II. Procedural History

On July 1, 1999, the State of Florida charged William Ray
(a/k/a William R. King) with first degree murder and robbery.
Resp. Ex. 1 at 35, Superceding Indictment. After jury selection,
Ray proceeded to a jury trial. Resp. Ex. 2, Transcripts of the
Jury Trial (Tr.). At the conclusion of the trial, a jury found Ray
guilty of first degree murder and robbery, as charged. Resp. Ex.
1 at 433, Verdict; Tr. at 1008. On June 15, 2000, the trial court
sentenced Ray to a term of life imprisonment without eligibility
for parole (count one) and a term of fifteen years of imprisonment
(count two), such term to run concurrently to the term imposed for
count one. Resp. Ex. 1 at 726-32, Judgment; 733-35, Sentencing
Order.

On appeal, Ray, through counsel, filed an Initial Brief,
arguing that the trial court erred when it: permitted the State's
use of peremptory challenges to strike members of a minority class
from the jury where there was an insufficient determination as to
possible race-based motivation for the strikes (ground one); denied
Ray's motion for a mistrial, after the State's witness, a layman,
was allowed to offer an expert opinion as to Ray's state of mind at
the time of the charged offense (ground two); and denied Ray's
motion for change of venue, where the victim was well known within

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the community and when there was inflammatory pretrial publicity
regarding the murder (ground three). Resp. Ex. 3, Initial Brief of
Appellant. The State filed an Answer Brief. Resp. Ex. 4. On
August 7, 2001, the appellate court affirmed Ray's conviction and
sentence per curiam without issuing a written opinion, see King v.
State, 793 So.2d 969 (Fla. 5th DCA 2001); Resp. Ex. 5, and the
mandate issued on August 24, 2001.1 Ray did not seek review in the
United States Supreme Court.

On August 16, 2002, Ray filed a pro se motion for post
conviction relief pursuant to Florida Rule of Criminal Procedure
3.850. Resp. Ex. 6. The court, on September 13, 2002, dismissed
the motion without prejudice to his right to refile. Resp. Ex. 7.
On May 7, 2003, Ray filed an amended motion, see Resp. Ex. 8, and
the trial court dismissed his motion, finding that it lacked the
required signed oath, see Resp. Ex. 9. On May 29, 2003, Ray filed
another pro se motion for post conviction relief (Rule 3.850
motion). Resp. Ex. 10. In this request for post conviction
relief, Ray asserted that defense counsel was ineffective because
he failed to: conduct a voir dire of interpreter Mary Garcia
(ground one); investigate, discover and impeach the testimony of
Gilberto Gonzales and depose, call or impeach Susan Oliver, Samuel
Lee Mays, Clint White, Sylvia Glenn, and Belinda Sellers (ground

1 Online docket, William Ray King v. State of Florida, Case
No. 5D00-1904, website for the Fifth District Court of Appeal
(http://www.5dca.org).

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two); preserve for appeal the court's denial of Ray's motion for
change of venue (ground three); preserve for appeal the court's
denial of Ray's motion for a mistrial (ground four); conduct an
independent investigation relating to the State's medical expert
and obtain an expert for DNA testing (ground five); ensure Ray's
presence at the scheduled depositions and the swearing in of the
jury venire (ground six); properly argue the motion for judgment of
acquittal (ground seven); present mitigating evidence during the
sentencing phase (ground eight); determine Ray's competency to
stand trial (ground nine); develop a viable defense strategy
(ground ten); present mitigating evidence of Ray's background
(ground eleven); and preserve errors for appeal (ground twelve).
Ray also asserted that counsel was ineffective due to: cumulative
errors (ground thirteen) and abandonment after trial (ground
fourteen). Additionally, Ray claimed that the trial court
erroneously denied his motions at trial (ground fifteen).

On June 10, 2003, the court denied in part the Rule 3.850
motion as to Ray's assertions, except his claim relating to
counsel's alleged failure to depose Sylvia Glenn and Belinda
Sellers. Resp. Ex. 11. The State responded to Ray's assertion
that counsel failed to depose Glenn and Sellers. Resp. Ex. 12. On
August 25, 2003, the court denied the Rule 3.850 motion as to that
remaining claim. Resp. Ex. 13. On appeal, Ray filed a brief, see
Resp. Ex. 14, and the State notified the court that it did not

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intend to file an answer brief, see Resp. Ex. 15. The appellate
court affirmed the trial court's decision per curiam on January 6,
2004, see Ray v. State, 864 So.2d 428 (Fla. 5th DCA 2004); Resp.
Ex. 16, and later denied Ray's motion for rehearing, see Resp. Exs.
17; 18. The mandate issued on January 23, 2004.2

Over one year later, on June 2, 2005, Ray filed a pro se
motion for DNA testing pursuant to Florida Rule of Criminal
Procedure 3.853 (Rule 3.853 motion). Resp. Ex. 19. In that post
conviction request, Ray asserted that the following physical
evidence should have been tested for DNA: the victim's blood, hair
and skin, and the clothing of Gilberto Gonzales, Susan Oliver, and
Ray. The court ordered the State to respond, see Resp. Ex. 20; the
State responded, see Resp. Ex. 21; and Ray replied, see Resp. Exs.
22; 23. On September 15, 2005, the court denied the Rule 3.853
motion, see Resp. Ex. 24, and later denied Ray's motion for
rehearing, see Resp. Exs. 25; 26. On appeal, Ray filed a brief,
see Resp. Ex. 28, and the State notified the court that it did not
intend to file an answer brief, see Resp. Ex. 29. The court
directed the State to respond, see Resp. Ex. 30, and the State
responded, see Resp. Ex. 31. On May 9, 2006, the appellate court
affirmed the trial court's decision per curiam, see Ray v. State,
932 So.2d 212 (Fla. 5th DCA 2006); Resp. Ex. 32, and later denied

2 See http://www.5dca.org, online docket, William Ray v. State
of Florida, Case No. 5D03-3290.

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Ray's motion for rehearing, see Resp. Exs. 33; 34. The mandate
issued on June 30, 2006.3 Resp. Ex. 35.

More than two years later, on September 12, 2008, Ray filed a
pro se petition for writ of habeas corpus, see Resp. Ex. 36, and
the appellate court denied the petition on October 3, 2008, see
Resp. Ex. 37. A year later, on October 2, 2009, Ray filed another
pro se petition for writ of habeas corpus. Resp. Ex. 38. In that
petition, Ray asserted that his conviction was obtained through
fraud upon the court; defense counsel and the prosecutor denied him
a fair trial; and the prosecutor knowingly presented false
testimony as to Gilberto Gonzales, Sherry Reinhold, Samuel Lee
Mays, and Clint White. Additionally, Ray claimed his innocence
based on newly-discovered evidence from the September 2009 trial of
co-defendant Susan Oliver that was neither presented at his trial
nor addressed by his defense counsel.4 On October 23, 2009, the
circuit court denied the petition. Resp. Ex. 39. On appeal, the
appellate court dismissed Ray's appeal as untimely and for lack of
jurisdiction on February 25, 2010.5 Resp. Ex. 42.

3 See http://www.5dca.org, William Ray a/k/a William King v.
State of Florida, Case No. 5D05-4074.
4 According to Ray, at Oliver's 2009 trial, Dr. Steiner
testified that the victim was asleep when she was murdered. See
Resp. Ex. 38 at 7; attached Exhibit A, Transcript at 651.
5 See http://www.5dca.org, William Ray v. State of Florida,
Case No. 5D09-4534.

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III. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996
imposes a one-year statute of limitations on petitions for writ of
habeas corpus. Specifically, 28 U.S.C. § 2244 provides:

(d)(1) A 1-year period of limitation
shall apply to an application for a writ of
habeas corpus by a person in custody pursuant
to the judgment of a State court. The
limitation period shall run from the latest
of--





(A) the date on which the judgment
became final by the conclusion of
direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment
to filing an application created by
State action in violation of the
Constitution or laws of the United
States is removed, if the applicant
was prevented from filing by such
State action;
(C) the date on which the
constitutional right asserted was
initially recognized by the Supreme
Court, if the right has been newly
recognized by the Supreme Court and
made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual
predicate of the claim or claims
presented could have been discovered
through the exercise of due
diligence.

(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.

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28 U.S.C. § 2244(d). Ray asserts that the one-year limitations
period begins based on § 2244(d)(1)(D).6 Thus, for this Court's
analysis, the Court will assume that the Petition is timely filed
within the one-year period of limitations. See 28 U.S.C. §
2244(d).

IV. Evidentiary Hearing

"In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted).
"It follows that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing." Id. The
pertinent facts of this case are fully developed in the record
before the Court. Because this Court can "adequately assess
[Petitioner's] claim without further factual development," Turner
v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541
U.S. 1034 (2004), an evidentiary hearing will not be conducted.

6 Ray states that he did not become fully aware of Dr.
Steiner's testimony (that the victim was asleep when she was
murdered) from Oliver's trial until October 2009. See Reply at 7,
13, 16.

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V. Exhaustion/Procedural Default

There are prerequisites to a federal habeas review. Before
bringing a § 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for challenging
his state conviction. See 28 U.S.C. § 2254(b), (c). To exhaust
state remedies, the petitioner must "fairly present[]" every issue
raised in his federal petition to the state's highest court, either
on direct appeal or on collateral review. Castille v. Peoples, 489
U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust
a claim, "state prisoners 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 (1999).

In addressing exhaustion, the United States Supreme Court

explained:

Before seeking a federal writ of habeas
corpus, a state prisoner must exhaust
available state remedies, 28 U.S.C. §
2254(b)(1), 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) (per
curiam) (quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971))
To provide the State with the necessary
"opportunity," the prisoner must "fairly
present" his claim in each appropriate state
court (including a state supreme court with
powers of discretionary review), thereby
alerting that court to the federal nature of
the claim. Duncan, supra, at 365-366, 115
S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S.

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838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1
(1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

The United States Supreme Court discussed the doctrine of

procedural default:

Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are accorded the finality and respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman,[7] supra, at 747–748, 111 S.Ct.
2546; Sykes,[8] supra, at 84–85, 97 S.Ct. 2497.
A state court's invocation of a procedural
rule to deny a prisoner's claims precludes
federal review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. --, --, 131 S.Ct. 1120,
1127–1128, 179 L.Ed.2d 62 (2011); Beard v.
Kindler, 558 U.S. --, --, 130 S.Ct. 612,
617–618, 175 L.Ed.2d 417 (2009). The doctrine
barring procedurally defaulted claims from
being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.

7 Coleman v. Thompson, 501 U.S. 722 (1991).
8 Wainwright v. Sykes, 433 U.S. 72 (1977).

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may

be

under

excused

certain

Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). Thus, procedural
defaults
circumstances.
Notwithstanding that a claim has been procedurally defaulted, a
federal court may still consider the claim if a state habeas
petitioner can show either (1) cause for and actual prejudice from
the default; or (2) a fundamental miscarriage of justice. Maples
v. Thomas, 132 S.Ct. 912, 922 (2012) (citations omitted); In Re
Davis, 565 F.3d 810, 821 (11th Cir. 2009) (citation omitted).

In the absence of a showing of cause and prejudice, a
petitioner may receive consideration on the merits of a
procedurally defaulted claim if he can establish that a fundamental
miscarriage of justice, the continued incarceration of one who is
actually innocent, otherwise would result. The Eleventh Circuit
has explained:

[I]f a petitioner cannot show cause and
prejudice, there remains yet another avenue
for him to receive consideration on the merits
of his procedurally defaulted claim. "[I]n an
extraordinary case, where a constitutional
violation has probably resulted in the
conviction of one who is actually innocent, a
federal habeas court may grant the writ even
in the absence of a showing of cause for the
procedural default." Carrier, 477 U.S. at
496, 106 S.Ct. at 2649.[9] "This exception is
exceedingly narrow in scope," however, and
requires proof of actual innocence, not just
legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).

9 Murray v. Carrier, 477 U.S. 478 (1986).

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Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010), cert. denied,
131 S.Ct. 647 (2010). "To meet this standard, a petitioner must
'show that it is more likely than not that no reasonable juror
would have convicted him' of the underlying offense." Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)), cert. denied, 535 U.S. 926 (2002).
Additionally, "'[t]o be credible,' a claim of actual innocence must
be based on reliable evidence not presented at trial." Calderson
v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at
324). With the rarity of such evidence, in most cases, allegations
of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.

VI. Findings of Fact and Conclusions of Law

Claiming his innocence based on newly-discovered evidence from
Oliver's trial, Ray asserts that the prosecutor fraudulently
misrepresented the evidence at his trial. He explains:

[Ray] had received a part of his co-
defendant's trial transcripts. Dr. Steiner
medical examiner who stated during [Ray's] co-
defendant's jury trial that the murdered
victim was murdered while she was asleep, and
he explained his medical findings. This
information was not revealed during [Ray's]
jury trial and the State had knowledge of this
fact but mislead [Ray's] jury to believe that
the victim and [Ray] were in the hallway
fighting and that [Ray] had suffered a great
amount of scratch marks on his face. The
State had motioned the state court for video
tape from a motel and Da[y]tona National
Airport showing both [Ray] and Susan Oliver of
[sic] who was named as his co-defendant. The

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investigating police claimed they lost such
tape that would have shown that [Ray] never
had any scratches or abrasions on his face.
[Ray] had explained where he got both the
money etc. from of [sic] who was the State's
key-witness.


Amended Petition at 5. As acknowledged by Ray, see id. at 6, he
raised this claim in his state petition for writ of habeas corpus,
see Resp. Ex. 38; the circuit court denied the petition, see Resp.
Ex. 39; and the appellate court dismissed Ray's appeal as untimely
and for lack of jurisdiction, see Resp. Ex. 42.

Respondents contend that the claim was not properly exhausted,
and therefore is procedurally barred since it was raised in a
procedurally incorrect manner in state court. See Response at 6-8.
This Court agrees. Ray has not shown either cause excusing the
default or actual prejudice resulting from the bar. Moreover, he
has failed to identify any fact warranting the application of the
fundamental miscarriage of justice exception.

Even assuming that the claim is not procedurally barred, Ray,
nevertheless, is not entitled to relief on the basis of this claim
because the State presented ample evidence to support Ray's
conviction. The Due Process Clause of the Fourteenth Amendment
requires the State to prove each element of the offense charged
beyond a reasonable doubt. Thompson v. Nagle, 118 F.3d 1442, 1448
(11th Cir. 1997) (citing Jackson v. Virginia, 443 U.S. 307, 314
(1979)), cert. denied, 522 U.S. 1125 (1998). In reviewing the
sufficiency of evidence, "this court must presume that conflicting

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inferences to be drawn from the evidence were resolved by the jury
in favor of the State." Thompson, 118 F.3d at 1448 (citing Machin
v. Wainwright, 758 F.2d 1431, 1435 (11th Cir. 1985)). Jackson v.
Virginia "provides the federal due process benchmark for
evidentiary sufficiency in criminal cases." Williams v. Sec'y for
Dept. of Corr., 395 F. App'x 524, 525 (11th Cir. 2010) (per curiam)
(citing Green v. Nelson, 595 F.3d 1245, 1252-53 (11th Cir. 2010))
(not selected for publication in the Federal Reporter), cert.
denied, 131 S.Ct. 1488 (2011). In accordance with this authority,
the relevant question is whether any rational jury, after viewing
the evidence in the light most favorable to the prosecution, could
have found the essential elements of the charged offenses beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 319.

At Ray's trial,10 two women testified that they found the
deceased victim11 in her bed at approximately 8:00 a.m. on April 7,
1999. Tr. at 505-06 (Ginger Tenant's testimony); 555 (Janet Ross'
testimony). Tenant testified that she saw scratches on the victim's
neck and "blood and saliva bubbling out of her mouth . . . ." Id.
at 505-06. Dr. Steiner, the medical examiner, testified that the
victim had died by asphyxiation due to manual strangulation, or "in

10 On direct appeal, Ray, through counsel, provided a summary
of the testimony at trial. See Resp. Exs. 3 at 3-6. Therefore,
the Court will set forth only a brief summary of the testimony.
11 The victim was the Director of the Caring Center, a group
home for the needy.

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lay terms, she was choked to death." Id. at 611. Steiner
estimated that the time of death was between 11:00 p.m. on April
6th and 3:00 a.m. the next morning. Id. at 616, 620. The
investigating officers said there were no signs of a forced entry
or physical struggle. Id. at 520-21, 666. Ross and Nathaniel
Courtney (the victim's son) testified that they saw Ray at the
Caring Center on April 6th after 10:00 p.m. Id. at 527-29, 549-51.
Gilberto Gonzales, one of the residents at the Caring Center,
testified that he saw Ray leaving the victim's room later that same
evening. Id. at 581, 586-88.

Officer Alex Sharp, who investigated the homicide, testified
that there were six residents living at the Caring Center at the
time of the murder. Id. at 826. Sharp stated that all six
residents, including Gilberto Gonzales, were suspects; as part of
the investigation, Sharp was able to immediately locate all the
residents, except Ray. Id. at 826-27. Sharp and Gonzales
acknowledged that Gonzales voluntarily gave up blood and tissue
samples and relinquished his clothing to police; Sharp noted that
Gonzales had no visible injuries. Id. at 588-89, 827-28.

Sherry Reinhold testified that she saw Ray and Oliver at a
motel on April 7th at approximately 3:00 a.m. when Oliver bought
cocaine. Id. at 676. Then, at another motel several hours later,
Reinhold saw Oliver counting "piles" of money that was spread out
on the bed; Reinhold stated that Ray arranged to pay for sex with

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her. Id. at 682, 685-86. Reinhold noticed scratch marks on Ray's
face. Id. at 686-87. She testified that Ray repeatedly said "he
wanted to get out of town, he done something really bad." Id. at
691. Additionally, Raymond Harris testified that, when he
delivered cocaine to Oliver and Ray on April 7th, he saw four or
five "stacks" of money on a table. Id. at 717-18. Harris stated
that Ray told him: "I'm in trouble, I'm fixing to go . . . ." Id.
at 720. Moreover, Lorri Ann King testified that she was with
Reinhold for the delivery of cocaine to Oliver and Ray and heard
Ray say: "I think I fucked up. I fucked up. We got to leave
town." Id. at 708.

Rick Mather, an employee with Delta Airlines, testified that
Oliver and Ray purchased two one-way tickets from Daytona Beach,
Florida, to San Diego, California, for $946.00 per ticket and paid
cash. Id. at 724. Oliver flew to San Diego; however, Ray never
boarded the plane because he was unable to produce identification
prior to boarding. Id. at 725. Officer Manual Hernandez testified
that, on April 9th in San Diego, he arrested Oliver, who had
$2,454.33 in cash. Id. at 731. George Dysico, a Special Agent
with the Federal Bureau of Investigation, testified that he
arrested Ray in Washington, D.C., on May 21, 1999. Id. at 794,
799-800.

Additionally, inmate Samuel Lee May testified that Ray told
him he had done something that he regretted, that he knocked out

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Mrs. Blue, the victim, and took money. Id. at 845-47.
Additionally, inmate Clint White testified that Ray told him that
he only told May that he had knocked out Mrs. Blue and took her
money. Id. at 853. White also stated that, in referring to
Oliver, Ray said that he "should have killed that bitch too." Id.
After viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found Ray
committed the first degree murder and robbery. The State had
substantial evidence against him. Thus, viewing the evidence in
the light most favorable to the prosecution, there was sufficient
evidence to support the conviction for first degree murder and
robbery. Competent evidence of the elements of the offenses was
introduced at trial, and no due process violation occurred. The
jury was entitled to believe the State witnesses' accounts of what
transpired. Therefore, Ray is not entitled to habeas relief.

VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)

If Ray seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. §2253(c)(2). To make this
substantial showing, Ray "must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282

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(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)).

Where a district court has rejected a petitioner's
constitutional claims on the merits, the petitioner must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id.
Upon consideration of the record as a whole, this Court will deny
a certificate of appealability.

Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Amended Petition (Doc. #14) is DENIED, and this

action is DISMISSED WITH PREJUDICE.

2.

The Clerk of the Court shall enter judgment denying the

Amended Petition and dismissing this case with prejudice.

3.

If Ray appeals the denial of the Amended Petition, the
Court denies a certificate of appealability. Because this Court

18

Case 3:10-cv-00539-MMH-MCR Document 34 Filed 07/30/13 Page 19 of 19 PageID 268

has determined that a certificate of appealability is not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
filed in this case. Such termination shall serve as a denial of
the motion.

The Clerk of the Court shall close this case.

4.
DONE AND ORDERED at Jacksonville, Florida, this 30th day of


July, 2013.

sc 7/15
c:
William Ray, a/k/a William R. King
Ass't Attorney General (Golden)

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