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Case 3:10-cv-00561-MMH-TEM Document 18 Filed 07/30/13 Page 1 of 18 PageID 138

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DONALD CRAIG GORE,
Petitioner,
v.
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.


Case No. 3:10-cv-561-J-34TEM

ORDER

I. Status

Petitioner Donald Craig Gore initiated this action by filing
a pro se Petition for Writ of Habeas Corpus (Petition) (Doc. #1)
under 28 U.S.C. § 2254 on June 28, 2010, pursuant to the mailbox
rule.1 In the Petition, Gore challenges a 1998 state court
(Columbia County, Florida) judgment of conviction for forgery and
a lewd act upon a child under sixteen years old. Respondents have
submitted a memorandum in opposition to the Petition. See
Respondents' Motion to Dismiss Petition, and Alternatively Answer
in Response to Order to Show Cause and Petition for Writ of Habeas

1 While incarcerated at Lake Correctional Institution, see
Petition at 1, Gore filed the Petition (Doc. #1) in this Court on
June 30, 2010; however, giving Gore the benefit of the mailbox
rule, this Court finds that the Petition was filed on the date Gore
handed it to the prison authorities for mailing to this Court (June
28, 2010). See Rule 3(d), Rules Governing Section 2254 Cases in
the United States District Courts. The Court will also give Gore
the benefit of the mailbox rule with respect to his inmate state
court filings when calculating the one-year limitations period
under 28 U.S.C. § 2244(d).

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Corpus (Response) (Doc. #11) with exhibits (Resp. Ex.). On
September 28, 2010, the Court entered an Order to Show Cause and
Notice to Petitioner (Doc. #6), admonishing Gore regarding his
obligations and giving Gore a time frame in which to submit a
reply. On July 22, 2011, Gore notified the Court that he does not
intend to file a reply, but will rely on the allegations and claims
asserted in the Petition. See Petitioner's Traverse (Doc. #15).
This case is ripe for review.

II. One-Year Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) 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

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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.

28 U.S.C. § 2244(d). Since this is "a multiple trigger date case,"
the Eleventh Circuit's recent decision in Zack v. Tucker, 704 F.3d
917 (11th Cir. 2013),2 is applicable to Gore's case. See Response
at 15-16.

2 In Zack, the petitioner attempted to resurrect eight
untimely claims by raising one meritless claim of mental
retardation based on a constitutional right newly recognized by the
United States Supreme Court and made retroactively applicable to
cases on collateral review. Zack argued that his habeas petition
was timely, under § 2244(d)(1)(C), because he filed it within one
year after the United States Supreme Court decided Atkins v.
Virginia, 536 U.S. 304 (2002) (holding that the execution of a
mentally retarded person is cruel and unusual punishment in
violation of the Eighth Amendment). The Eleventh Circuit held that
AEDPA's statute of limitations "applies on a claim-by-claim basis
in a multiple trigger date case." Zack, 704 F.3d at 926. ("We see
no reason why a habeas petitioner who allows his judgment to become
final should be permitted, by the happenstance of an intervening
decision or the discovery of new evidence, to reopen claims that he
could have raised earlier but did not."). Additionally, the Court
overruled Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003), to the
extent that it held that § 2244(d)(1) provided a single statute of
limitations for the petition as a whole and that individual claims
in the petition could not be reviewed separately for timeliness.
Id.

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Respondents contend that, as to both claims, Gore has not
complied with the one-year period of limitations set forth in 28
U.S.C. § 2244(d). The following procedural history is relevant to
the one-year limitations issue. On August 29, 1991, in Case No.
1991-CF-453, the State of Florida charged Gore with four counts of
forgery, four counts of uttering forgery and one count of petit
theft. Resp. Ex. C at 20-24, Second Amended Information. On
September 12, 1991, Gore plead guilty to four counts (counts one,
three, five, and seven) of forgery. Id. at 31, Offer of Plea. The
State agreed to dismiss the remaining charges. Id. at 31, 43. On
September 12, 1991, the trial court sentenced Gore to a term of
imprisonment of five years for count one, a term of two years of
imprisonment for count three, with such term to run consecutively
to the sentence imposed for count one, and eighteen months of
probation for counts five and seven, such probationary terms to
follow the prison terms. Id. at 30, 31, 32-37.

On April 12, 1995, in Case No. 1995-CF-241, the State of
Florida charged Gore with a lewd act upon a child under sixteen
years old. Id. at 120-21. On August 17, 1995, pursuant to an
offer of plea, Gore plead guilty, as charged, see id. at 136-38,
and the trial court sentenced him, as a habitual felony offender,
to a term of imprisonment of thirty years. Id. at 185-91. The
court suspended the thirty-year prison sentence to two years of
community control followed by eight years of drug offender

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probation. When Gore subsequently violated the terms and
conditions of his probation, the court, on July 11, 1996, revoked
his probation and sentenced him to the thirty-year term of
incarceration (that had been previously suspended), such term to
run consecutively to the sentence imposed in Case No. 1991-CF-453.
Id. at 198-99, 208-13.

As to Case No. 1991-CF-453, the trial court, on August 17,
1995, revoked Gore's probation, see id. at 78, and sentenced him
to a term of twenty years of incarceration for counts five and
seven, suspended to two years of community control followed by
eight years of drug offender probation, see id. at 79-83. Later,
the trial court, on July 11, 1996, revoked Gore's community control
and ordered him to serve the twenty-year term of incarceration (for
counts five and seven) previously suspended. Id. at 103-07.

On appeal, Gore, through counsel, filed an Initial Brief,
arguing that the trial court erred by: revoking community control
because the evidence did not prove that Gore willfully and
substantially violated community control (ground one), and refusing
to allow Gore to present evidence in mitigation of his sentence
(ground three). Additionally, Gore argued that the twenty-year
sentences on the two third-degree felonies were illegal (ground
two). Resp. Ex. F. The State filed an Answer Brief, see Resp. Ex.
G, and Gore filed a Reply Brief, see Resp. Ex. H. On December 8,

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1997, the appellate court affirmed in part and reversed in part, stating:

We find no error in the trial court's
finding that appellant wil[l]fully and
substantially violated his community control.
We are obliged to reverse the sentence,
however, and remand for a new sentencing
hearing, as the trial court imposed a 20-year
sentence for two third-degree felonies, which
carry a maximum sentence of five years each.
Upon remand, the parties may raise any issues
regarding how much, if any, credit for time
served appellant is entitled to receive, and
appellant may, if he chooses, make arguments
toward mitigation of his sentence.

Gore v. State, 702 So.2d 276 (Fla. 1st DCA 1997) (per curiam);
Resp. Ex. I. The mandate issued on December 24, 1997.3 Resp. Ex.
J. Gore did not seek review in the United States Supreme Court.

Following remand, on February 27, 1998, the trial court
resentenced Gore to a term of five years of imprisonment on each
forgery count (counts five and seven), such terms to run
consecutively to each other and consecutively to his sentence in
1995-CF-241. Resp. Ex. L at 168-73. At resentencing, the court
stated:

It's the judgment and sentence of the
Court that the defendant was correctly
sentenced as a habitual felony offender, for
which he qualifies, and he is now resentenced
in accordance with the law on Case 95-241 to
30 years followed by 10 consecutive years on
Case 91-453, that being the intent of the
Court to sentence to 40 years. And the Court
further, wanting to adopt the agreement of the

3 See Donald Craig Gore v. State of Florida, Case No. 1D96-
2938, website for the First District Court of Appeal
(http://www.1dca.org), online docket.

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defendant, which the defendant initiated, that
he be given credit for nine years, the Court
does, in fact, give the defendant credit for
nine years. And the Court now modifies the
Court's sentence and sentences the defendant
to 31 years, that being the intended sentence
of 40 years but the Court is going to lessen
that sentence to 31 years, so the defendant is
absolutely granted the nine years that all
parties anticipated that he would receive.

So again, the sentence is 31 years with

no other credit for any gain time.

Id. at 364.

On appeal, Gore, through counsel, filed an Initial Brief,
arguing that the trial court erred in failing to hold a Nelson4
inquiry when Gore moved to discharge counsel. Resp. Ex. M. The
State filed an Answer Brief, see Resp. Ex. N, and Gore filed a
Reply Brief, see Resp. Ex. O. On April 22, 1999, the appellate
court affirmed Gore's conviction and sentence per curiam without
issuing a written opinion, see Gore v. State, 731 So.2d 1275 (Fla.
1st DCA 1999); Resp. Ex. P, and the mandate issued on May 10, 1999,
see Resp. Ex. R. The court also denied Gore's motion for rehearing
on June 7, 1999. Resp. Ex. S.

After resentencing, but while Gore's case was on direct
appeal, Gore, on July 21, 1998, filed his first pro se motion for
post conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. In his request for post conviction relief, Gore
asserted that he was denied a fair and impartial resentencing

4 Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

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hearing due to Judge Douglas' prejudice and bias against him.
Resp. Ex. U at 1-23. On August 17, 1998, the court denied Gore's
motion, finding that "the defendant raises no grounds demonstrating
an entitlement to the requested relief" and concluding that the
"issues could have and should have been raised on direct appeal"
and that "no facts raised demonstrate instances of impartiality by
the Court." Id. at 24. The court also denied Gore's motion for
rehearing on September 25, 1998. Id. at 48-54, 55. On October 22,
1999, the appellate court affirmed the trial court's decision per
curiam, see Gore v. State, 744 So.2d 992 (Fla. 1st DCA 1999); Resp.
Ex. V, and the mandate issued on November 17, 1999, see Resp. Ex.
W. The appellate court, on December 1, 1999, denied Gore's
petition for belated appeal. See Gore v. State, 745 So.2d 525
(Fla. 1st DCA 1999). When Gore sought review in the Florida
Supreme Court, the court dismissed the appeal for lack of
jurisdiction on February 18, 2000. See Gore v. State, 753 So.2d
564 (Fla. 2000); Resp. Ex. FFF.

During the pendency of Gore's first Rule 3.850 motion, Gore
filed a pro se motion to withdraw guilty plea on June 4 1999.
Resp. Ex. AA at 1-23. Additionally, on December 15, 1999, Gore
filed a second pro se motion for post conviction relief pursuant to
Florida Rule of Criminal Procedure 3.850. Resp. Ex. AA at 27-62.
In that request for post conviction relief, he asserted that
counsel was ineffective because he failed to: research the

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applicable law relating to the illegal sentence (ground C); object
to a presiding successor judge for Gore's revocation and
resentencing hearings when there was no showing that the original
judge was unavailable (ground D); inform Gore of his proper
guidelines scoresheet total (ground E); inform Gore of the
consequences of habitualization (ground F); object to Gore's
illegal sentence (ground G); ensure that Gore received a Faretta5
hearing when he learned that Gore was corresponding with the
Assistant State Attorney (ground H); object to the imposition of
fines, costs, and charges in excess of what Gore had contemplated
at the time he entered his plea (ground I); object to the alleged
bias of the judge presiding over the resentencing hearing (ground
J); object and argue that Gore had a fundamental right to be heard
at his revocation hearing (ground K); object to the probation
officer setting the amount and rate of the payment schedule for
restitution and costs (ground L); ensure Gore would get credit for
time served (ground M); and object to the State's admission into
evidence of Gore's Department of Corrections file at his revocation
hearing (ground N). Gore also asserted that his plea was
involuntary because neither his counsel nor the trial court
informed him that he could withdraw the plea once the State could
not comply with a condition (ground A), and that the trial court
failed to inform him of the consequences of habitualization (ground

5 Faretta v. California, 422 U.S. 806 (1975).

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B). On April 2, 2001, the court denied the Rule 3.850 motion.
Resp. Ex. Y at 24-31. Then, on July 24, 2001, the court denied
Gore's other motions that the court had consolidated for review.
Resp. Ex. Z at 135-37. On October 30, 2002, the appellate court
reversed the trial court's denial as to grounds A, B, and F, and
affirmed as to the remaining grounds. Gore v. State, 828 So.2d
1087 (Fla. 1st DCA 2002) (per curiam). In doing so, the court
stated:

In claim A, Gore alleges that his plea
was involuntary because neither his counsel
nor the trial court informed him that he could
withdraw the plea once the state could not
comply with a condition. In claims B and F,
Gore contends that neither the trial court nor
his counsel informed him of the consequences
of habitualization. These claims are facially
sufficient and were not conclusively refuted
by the trial court's order, which did not
contain any record attachments. Therefore, we
reverse and remand this case either for
attachment of records that conclusively refute
these claims or an evidentiary hearing.

Id.

During the pendency of the second Rule 3.850 motion, Gore
filed a pro se petition for writ of habeas corpus in the Florida
Supreme Court. Resp. Ex. CC. Construing the petition as one
seeking a writ of mandamus, the court denied the petition on March
8, 2001, see Resp. Ex. DD, and later denied Gore's motion for
rehearing on May 14, 2001, see Resp. Exs. EE; FF.

Later, on remand from the appellate court's October 30, 2002
reversal, the trial court denied Gore's second Rule 3.850 motion

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(as to grounds A, B, and F) on January 31, 2003. Resp. Ex. HH at
30-141. The appellate court affirmed the trial court's decision on
July 25, 2003, see Gore v. State, 854 So.2d 196 (Fla. 1st DCA
2003); Resp. Ex. KK, and the mandate issued on September 26, 2003,
see Resp. Ex. LL.

On June 21, 2004, Gore filed a pro se motion to correct
illegal sentence pursuant to Florida Rule of Criminal Procedure
3.800(a). Resp. Ex. NN at 1-5. The court, on August 19, 2004,
denied the motion, stating:

The Defendant raises two issues that
allege his sentence is illegal. The first
issue raised by the Defendant is that he has
not been awarded the proper amount of jail and
prison credit. The Defendant was resentenced
on May 6, 1998, on the instant cases, and was
awarded no prior prison or jail credit. The
Defendant appealed the sentence, and in
particular, the lack of prior credits, and the
sentence was affirmed by the First District
Court of Appeal dated April 22, 1999.

The second issue raised by the Defendant
is that the sentence is illegal as this Court
had lost jurisdiction on his cases. The
Defendant alleged this issue in a prior Rule
3.850 motion. The Defendant appealed the
denial of that motion and the denial was
affirmed [by] the First District Court of
Appeal in an Opinion dated October 30, 2002.

Id. at 6. The court denied Gore's motion for rehearing on
September 24, 2004. Id. at 21-23, 24. On June 9, 2005, the
appellate court affirmed the trial court's decision per curiam, see
Gore v. State, 903 So.2d 939 (Fla. 1st DCA 2005); Resp. Ex. OO, and
the mandate issued on July 6, 2005, see Resp. Ex. PP.

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On September 15, 2005, Gore filed a third pro se motion for
post conviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. Resp. Ex. AAA at 1-19. In that request for post
conviction relief, Gore asserted that the trial court erred when it
failed to rule on: the addendum to his motion to withdraw plea,
filed in June of 1999 (ground A), and the addendum to his motion
for post conviction relief, filed in December of 1999 (ground B).
Gore also asserted that the trial court erred by encroaching on
executive authority when it ordered that he be placed in a state
sponsored residential drug treatment facility (ground C).
Additionally, he asserted that counsel (Herbert Ellis) was
ineffective due to a substantial conflict of interest (ground D),
and his sentence violates the Double Jeopardy Clause because the
trial court failed to award all pre-sentence jail credit (ground
E).

Judge Douglas denied the motion as untimely on November 10,
2005. Unbeknown to Judge Douglas at that time, Gore had filed a
contemporaneous motion to disqualify Judge Douglas from the case.
Apparently, neither Gore nor the Clerk of Court forwarded a copy of
the motion to Judge Douglas. When Judge Douglas did not rule on
the motion for disqualification, Gore filed a petition for writ of
prohibition in the appellate court. Since Judge Douglas failed to
rule on Gore's motion for disqualification with the thirty-day
period established by Florida Rule of Judicial Administration

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2.160(j), the appellate court, on October 18, 2006, granted Gore's
petition for writ of prohibition, vacated the November 10, 2005
order denying Gore's Rule 3.850 motion, and remanded the case for
assignment to a new judge and for consideration of Gore's Rule
3.850 motion. See Gore v. State, 939 So.2d 261 (Fla. 1st DCA
2006). On September 25, 2007, the court denied Gore's Rule 3.850
motion as untimely. The appellate court affirmed the trial court's
decision on May 4, 2009, see Gore v. State, 10 So.3d 635 (Fla. 1st
DCA 2009); Resp. Ex. BBB, and mandate issued on June 29, 2009, see
Resp. Ex. CCC.

Gore's conviction became final on September 6, 1999 (90 days
after June 7, 1999). See Close v. United States, 336 F.3d 1283,
1285 (11th Cir. 2003) ("According to rules of the Supreme Court, a
petition for certiorari must be filed within 90 days of the
appellate court's entry of judgment on the appeal or, if a motion
for rehearing is timely filed, within 90 days of the appellate
court's denial of that motion."). Because Gore's conviction was
after April 24, 1996, the effective date of the AEDPA, Gore had one
year from the date his conviction became final to file his federal
petition (September 6, 2000). The Petition, filed on June 28,
2010, is due to be dismissed as untimely unless he can avail
himself of one of the statutory provisions which extends or tolls
the limitations period.

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When Gore's conviction and sentence became final, his June 4,
1999 motion to withdraw guilty plea was pending, and then he filed
a second Rule 3.850 motion on December 15, 1999. Those motions
tolled the one-year limitations period until the appellate court
issued mandate on September 26, 2003. The one-year limitations
period began on September 27, 2003, and ran for two hundred and
sixty-eight (268) days until Gore filed his Rule 3.800 motion on
June 21, 2004. That motion tolled the running of the limitations
period until July 6, 2005. Respondents assert, see Response at 11-
15, and this Court agrees, that Gore's third Rule 3.850 motion was
not "properly filed" because the court denied the motion as
untimely. Thus, the one-year limitations period ran for almost
five (5) years until Gore filed his Petition on June 28, 2010.6
Given the record, Gore's June 28, 2010 Petition (as to both
claims)7 is untimely filed and due to be dismissed unless Gore can

6 Respondents assert that, even if the third Rule 3.850 motion
was a tolling event, the Petition would still be untimely. See
Response at 15 n.3.
7 In the June 28, 2010 Petition before the Court, Gore asserts
that his counsel was ineffective due to a conflict of interest that
Gore discovered through a phone call with his ex-wife in 2005
(claim one), and that his sentence is illegal and violates the
Double Jeopardy Clause (claim two). As to claim one, in his
September 15, 2005 Rule 3.850 motion, Gore stated that he "learned"
about the facts underlying the conflict of interest claim two
months before the filing of his motion. Resp. Ex. AAA at 15.
Accordingly, by Gore's own admission, he knew the facts underlying
the claim as early as July 15, 2005. Thus, even assuming Gore's
entitlement to § 2244(d)(1)(D) for determining the start of the
limitations period as to the first claim, his Petition is still
untimely with respect to that claim. See Response at 16. As to

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establish that equitable tolling of the statute of limitations is
warranted. The United States Supreme Court has established a two-
prong test for equitable tolling, stating that a petitioner "must
show '(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstances stood in his way' and
prevented timely filing." Lawrence v. Florida, 549 U.S. 327, 336
(2007); see Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)
(stating that equitable tolling "is a remedy that must be used
sparingly"); see also Brown v. Barrow, 512 F.3d 1304, 1307 (11th
Cir. 2008) (noting that the Eleventh Circuit "has held that an
inmate bears a strong burden to show specific facts to support his
claim of extraordinary circumstances and due diligence.") (citation
omitted). The burden is on Gore to make a showing of extraordinary
circumstances that are both beyond his control and unavoidable with
diligence, and this high hurdle will not be easily surmounted.
Howell v. Crosby, 415 F.3d 1250 (11th Cir. 2005), cert. denied, 546
U.S. 1108 (2006); Wade v. Battle, 379 F.3d 1254, 1265 (11th Cir.
2004) (citations omitted). Here, Gore simply has not met the
burden of showing that equitable tolling is warranted.

Gore has not presented any reason why the dictates of the one-
year limitations period should not be imposed upon him. For this

the first claim, the limitations period began on July 7, 2005, and
ran for seventy (70) days until he filed his third Rule 3.850
motion on September 15, 2005, and then began to run again on June
30, 2009, and ran for three hundred and sixty-three (363) days
until he filed his Petition in this Court on June 28, 2010.

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reason, this Court will dismiss this case with prejudice pursuant
to 28 U.S.C. § 2244(d).

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

If Gore 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, Gore "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
(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

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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.

Respondents' request to dismiss this case with prejudice

(Doc. #11) is GRANTED.

2.
3.

This case is DISMISSED with prejudice.
The Clerk of the Court shall enter judgment dismissing

this case with prejudice and shall close this case.

4.

If Gore appeals the dismissal of the Petition, the Court
denies a certificate of appealability. Because this Court 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.
DONE AND ENTERED at Jacksonville, Florida this 30th day of

July, 2013.

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sc 7/18
c:
Donald Craig Gore
Counsel of Record

18