McCormack v. Florida Department of Corrections

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 21-cv-60555-BLOOM ORLAND McCORMACK, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent. / ORDER ON REMAND THIS CAUSE is before the Court upon the Eleventh Circuit’s Limited Remand, ECF No. [25]. Therein, the Eleventh Circuit remanded Petitioner Orland McCormack’s case for the limited purpose of this Court entering a Certificate of Appealability (“COA”) that complies with Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014 (en banc) and 28 U.S.C. § 2253(c)(2).

Initially, the Court denied McCormack’s 28 U.S.C. § 2254 Petition as untimely. See ECF No. [19]. Finding the correctness of that procedural determination undebatable, the Court denied McCormack a COA. Id. at 6-7. McCormack filed a Motion to Reconsider, Alter, or Amend Judgment, ECF No. [20], in which he set forth a compelling argument that the Court’s timeliness determination was erroneous. In its Order on Motion for Reconsideration, ECF No. [21], the Court again rejected McCormack’s timeliness argument, but due to “uncertainty regarding timeliness,” id. at 6, the Court determined that McCormack was entitled to a COA on that procedural issue. See id. at 27. However, the Court’s COA failed to “specify what constitutional issue jurists of reason would find debatable.” Spencer, 773 F.3d at 1138.

Upon review, the Court determines that McCormack has “made a substantial showing of Case No. 21-cv-60555-BLOOM the denial of a constitutional nght” in Ground One of his Petition. 28 U.S.C. § 2253(c)(2). In that claim, McCormack argues that the trial court erred in denying his motion for mistrial due to a prosecutorial comment on McCormack’s right to remain silent. See ECF No. [21] at 13. The Court determined that the prosecutor’s statement was permissible, and, even if it were not, any impropriety was immediately cured by the trial court. /d. at 15-16. However, it is noteworthy that the trial court, which “is in the best position” to evaluate the prosecutor’s statement, United States v. Hernandez, 490 F. App’x 250, 253 (11th Cir. 2012), expressed concern that the prosecutor was “trying to discredit [McCormack] because he remained silent” and appears to have seriously considered declaring a mistrial. ECF No. [17-1] at 664. The Court concludes that “jurists of reason would find debatable” whether Ground One states a valid claim for a denial of a constitutional right. Spencer, 773 F.3d at 1138. By contrast, for the reasons discussed in the Court’s Order, the Court finds no room for debate regarding McCormack’s remaining eight claims. ECF No. [21].

The Court concludes that jurists of reason would find it debatable whether McCormack’s Petition was timely and whether Ground One states a valid claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, it is ORDERED AND ADJDUGED that a Certificate of Appealability is GRANTED as to Ground One of McCormack’s Petition only.

DONE AND ORDERED in Chambers at Miami, Florida, on February 9, 2023.

BETH BLOOM UNITED STATES DISTRICT JUDGE Copies to: Clerk of Court, United States Court of Appeals for the Eleventh Circuit Counsel of Record Orland McCormack, Pro Se #147407 Madison Correctional Institution Inmate Mail/Parcels SW MCI Way Madison, FL 32340 Noticing 2254 SAG Broward and North Email: [email protected]