Federal Criminal Law Opinions

K. Michael Moore, Judge. Counsel: Thomas R. Brown, III, U.S. Attorney’s Office, Miami, for Plaintiff. Patrick M. Hunt, Federal Public Defender’s Office, Fort Lauderdale, for Defendant.

ORDER DENYING DEFENDANT’S MOTION

TO DISMISS COUNTS 37-71 OF THE INDICTMENT
THIS CAUSE came before the Court upon Defendant Oneche Garcia-Cordero’s Motion to Dismiss Counts 37-71 of the Indictment (dkt # 37).1

UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. BACKGROUND

The Grand Jury’s Indictment (dkt # 17), filed on August 22, 2008, charged Defendant Oneche Garcia-Cordero with conspiracy to encourage and induce aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (Count 1); encouraging and inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) (Counts 2-36); bringing aliens to a place other than a designated port of entry, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) (Counts 37-71); and attempting to reenter as a removed alien, in violation of 8 U.S.C. § 1326(a) (Count 72).

Prior to trial, Defendant filed a Motion to Dismiss Counts 37-71 (dkt # 37). The applicable statute for those counts, § 1324(a)(2)(B)(iii) (“the statute”), provides, in relevant part:

(2) Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs —

. . .

(B) in the case of —

. . .

(iii) an offense in which the alien is not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry,

be fined under Title 18 and shall be imprisoned . . . .

Defendant argued that Counts 37 through 71 violate his Fifth Amendment privilege against self-incrimination on the following theory:

In essence, the first set of counts charge alien smuggling, and the second set of counts purport to criminalize an alleged alien smuggler’s failure to bring the aliens he has just smuggled immediately to an immigration officer and report their illegal presence in the country. This presentment requirement imposes an affirmative duty on an accused smuggler to come forward (immediately) and provide the government with evidence that will be used against him to prove the smuggling charges.

Def.’s Mot. ¶ 3. The Government filed a Response (dkt # 42), arguing that Defendant’s Motion was premature and without merit. In his Reply (dkt # 49), Defendant conceded that the Motion presented only an “as applied” challenge to the constitutionality of § 1324(a)(2)(B)(iii) and, as such, must await the development of a factual record at trial. On October 14, 2008, Magistrate Judge Simonton issued a Report and Recommendation (dkt # 56), recommending that “the motion[ ] be denied without prejudice to renew after the completion of the trial, or in the alternative, that the resolution of the motion[ ] be deferred until after the completion of the trial.” A bench trial was held on October 23, 2008 (Minute Entry, dkt # 60), during which a Joint Bench Trial Stipulation (dkt # 59) was read into the record.

In summary, the facts from the Joint Bench Trial Stipulation are as follows. On August 13, 2008, Coast Guard officers heard a vessel run aground on Loggerhead Key, in the Dry Tortugas. The officers observed numerous people jump from the boat and run ashore. The boat then departed. When one of the officers ordered everyone to surrender, thirty-five people emerged from the bushes. It was determined that the people were Cuban nationals who had traveled from Cuba that day on board a go-fast boat matching the description of the boat that ran aground. A Coast Guard vessel soon located a boat about twelve nautical miles away that also matched the description of the boat that ran aground. Defendant and his co-defendant were on board. The men stated that they were fishing. The boat had significant hull damage consistent with running aground. A search of the satellite telephone on board revealed that on that day the boat had traveled from Pinar del Rio, Cuba, to the Dry Tortugas in the Florida Keys. The onboard GPS also revealed two way points in Cuba, dated August 12, 2008. Loggerhead Key is not a designated port of entry to the United States, and the Cuban nationals were not brought and presented to an immigration officer at a designated port of entry upon arrival. See Joint Bench Tr. Stip.; Def.’s Supp. 1-2 (dkt # 63).

Following the bench trial, the Court found Defendant Garcia-Cordero guilty on all counts (Minute Entry, dkt # 60). Defendant then filed a Supplement to his Motion (dkt # 63), and the Government filed a Supplemental Response (dkt # 66). The Court now addresses Defendant’s constitutional challenge.

II. DISCUSSION

The Fifth Amendment states that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” “To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.” Hiibel v. Sixth Judicial Court of Nev., Himbold County, 542 U.S. 177, 189 (2004) (citing United States v. Hubbell, 530 U.S. 27, 34-38 (2000)). The Supreme Court, however, “has on several occasions recognized that the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State’s public purposes unrelated to the enforcement of its criminal laws.” Baltimore City Dept. of Soc. Servs. v. Bouknight, 493 U.S. 549, 556 (1990).

For the reasons that follow, this Court concludes that § 1324(a)(2)(B)(iii)’s bring and present requirement is part of a regulatory regime constructed to effect public purposes unrelated to the enforcement of criminal laws and that, as a result, Defendant Garcia-Cordero cannot invoke the Fifth Amendment privilege to resist prosecution for noncompliance. In reaching this conclusion, the Court assumes, without deciding, that the compelled conduct at issue would otherwise be sufficiently testimonial, incriminating, and compelled to qualify for the privilege.

A.

“[T]he fact that incriminating evidence may be the byproduct of obedience to a regulatory requirement, such as filing an income tax return, maintaining required records, or reporting an accident, does not clothe such required conduct with the testimonial privilege.” Hubbell, 530 U.S. at 35 (footnotes omitted). In shaping this exception for certain regulatory regimes, the Supreme Court has aimed to balance competing interests. “Tension between the State’s demand for disclosures and the protection of the right against self-incrimination is likely to give rise to serious questions. Inevitably these must be resolved in terms of balancing the public need on the one hand, and the individual claim to constitutional protections on the other.” California v. Byers, 402 U.S. 424, 427 (1971).

The development of the regulatory regime exception apparently begins with United States v. Sullivan, where the Supreme Court held that the privilege could not be invoked to avoid filing an incriminating income tax return. 274 U.S. 259, 263-64 (1927) (“It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.”).

The Court has since articulated the outline of Sullivan’s applicability in a series of cases. In Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965), Marchetti v. United States, 390 U.S. 39 (1968), and Haynes v. United States, 390 U.S. 85, 100 (1968), the Court distinguished Sullivan and held that the privilege against self-incrimination provided a valid defense for noncompliance. On the other hand, in Byers, 402 U.S. 424, and Bouknight, 493 U.S. 549, the Court concluded that the privilege yielded to the enforcement of valid regulatory regimes.

In Albertson, the Court ruled that registration requirements for Communist Party members violated the privilege. 382 U.S. at 79-81. Since admitting membership in the Communist Party could be used to prosecute the registrant under multiple criminal statutes, and registering “require[d] an admission of membership in the Communist Party,” the Court held that the “obvious” risks of registration presented a “sufficient threat of prosecution to support a claim of privilege.” Id. at 77. The Court distinguished Sullivan by pointing out that “questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities.” Id. at 79. Furthermore, the Court noted that “Petitioners’ claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form’s questions in context might involve the petitioners in the admission of a crucial element of a crime.” Id.

In Marchetti, the Court addressed federal tax and registration requirements imposed on those engaged in wagering activities. 390 U.S. at 40. In light of the “comprehensive system of federal and state prohibitions against wagering activities,” the Court concluded that compelling compliance with the tax and registration requirements violated the Fifth Amendment. Id. at 48. Furthermore, the defendant “was required, on pain of criminal sanction, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely provide a significant ‘link in the chain’ of evidence tending to establish guilt.” Id. (footnotes omitted). The Court distinguished Sullivan by noting that unlike the tax return at issue there, “every portion of these requirements had the direct and unmistakable consequence of incriminating petitioner.”2 Id. at 48-49.

In Haynes, the Court held that the privilege against self-incrimination “provides a full defense to prosecutions either for failure to register a firearm . . . or for possession of an unregistered firearm.” 390 U.S. at 100. Notably, the act at issue, while part of an “interrelated system for the taxation of. . . firearms,” only applied to certain types of firearms. Id. at 87. This limitation was “apparently intended” to target “weapons used principally by persons engaged in unlawful activities.” Id. at 87 & n.4. In addition, the act’s registration requirement applied only to certain persons in possession of a qualifying firearm. That is, “one who made the firearm, or acquired it by transfer or importation, need not register if the [act's] provisions as to transfers, makings, and importations were complied with.” Id. at 96 (internal quotation marks omitted). Given these restrictions, the Court concluded that the registration requirement was “directed principally at those persons who have obtained possession of a firearm without complying with the [act's] other requirements, and who therefore are immediately threatened by criminal prosecutions . . . . They are unmistakably persons ‘inherently suspect of criminal activities.’ ” Id. (quoting Albertson, 382 U.S. at 70). Although registration would not always indicate a violation of the act, according to the Court, “the correlation between obligations to register [and] violations can only be regarded as exceedingly high, and a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution.” Id. at 97.

Finally, the Court held that the firearm registration requirements were distinguishable from instances where information was “obtained in connection with regulatory programs of general application.” Id. at 98. This was because — in addition to being “directed at a highly selective group inherently suspect of criminal activities” — the registration requirements did not concern “an essentially noncriminal and regulatory area of inquiry,” but instead “an area permeated with criminal statutes.” Id. at 98-99 (quoting Albertson, 382 U.S. at 79). Furthermore, there was “no record or other documents . . . to which any ‘public aspects’ might reasonably be said to have attached.” Id. (citing Shapiro v. United States, 335 U.S. 1, 34 (1948)).

In Byers, the Court declined to find that the privilege shielded a defendant from prosecution for violating a California statute that required motorists involved in accidents to stop and provide their name and address to the driver of the other vehicle. 402 U.S. at 432-34. By plurality decision, the Court distinguished Albertson, Marchetti, and Haynes, noting that they all involved disclosure requirements targeting a “highly selective group inherently suspect of criminal activities” and that “the privilege was applied only in an area permeated with criminal statutes — not in an essentially noncriminal and regulatory area of inquiry.” Id. at 430. By contrast, the California statute “was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities.” Id. It was directed to all persons who drive automobiles in California. Driving is a lawful activity, and even those drivers involved in an accident may not have committed any crime. Id. at 431. Furthermore, the fact that a driver’s compulsory compliance with the motorist statute may lead to his arrest and charge did not necessitate application of the privilege. Id. at 434. Just as “the compelled disclosure of identity could have led to a charge that might not have been made had the driver fled the scene . . . a taxpayer can be charged on the basis of the contents of a tax return or failure to file an income tax form. There is no constitutional right to refuse to file an income tax return or to flee the scene of an accident in order to avoid the possibility of legal involvement.” Id.

In Bouknight, the Court held that a mother could not invoke the privilege against self-incrimination to defy a juvenile court order requiring her to turn her child over to social services. 493 U.S. at 560-61. Although the mother claimed that the act of producing the child would incriminate her, the Court determined that the requirement to produce the child was “part of a broadly directed, noncriminal regulatory regime governing children cared for pursuant to custodial orders.” Id. at 560 (“This provision fairly may be said to be directed at . . . parents, guardians, and custodians who accept placement of juveniles in custody.” (internal quotation marks omitted)).

B.

In balancing the State’s demand for disclosures with the protection of the right against self-incrimination, this Court concludes that the regulatory regime exception applies in the instant case.

Section 1324(a)(2)(B)(iii)’s bring and present requirement is part of an extensive scheme of statutes and regulations through which the government exercises its control over the nation’s borders. Furthermore, as the Government points out, the bring and present requirement applies more broadly than Defendant claims. See Gov.’s Supp. 6-8, 12-13. Notably, 8 U.S.C. § 1321(a) provides, in part:

It shall be the duty of every person, including the owners, masters, officers, and agents of vessels, aircraft, transportation lines, or international bridges or toll roads . . . bringing an alien to, or providing a means for an alien to come to, the United States . . . to prevent the landing of such alien in the United States at a port of entry other than as designated by the Attorney General or at any time or place other than as designated by the immigration officers.

Thus, pursuant to § 1321(a), the duty to deliver passengers to a designated port of entry applies to all persons transporting aliens to the United States — irrespective of whether those aliens have received prior authorization, and irrespective of the transporters’ knowledge regarding such authorization.3 Accordingly, § 1324(a)(2)(B)(iii) does not impose any additional requirements applicable only to those who are already in violation of § 1324(a)(2). As noted by the Government, the bring and present requirement is “a routine procedure universally employed . . . [and which] does not, on its face, seek admissions or manifestly incriminating information, but merely presentation to an official charged with overseeing the entry of persons into the United States.” Gov.’s Supp. 21. The statute therefore does not target a “highly selective group inherently suspect of criminal activities,” Byers, 402 U.S. at 430 (internal quotation marks omitted), and the concerns addressed by the Supreme Court in Albertson, Marchetti, and Haynes — all of which involved disclosure requirements imposed on “highly selective group[s] inherently suspect of criminal activities” — are not present here.

Instead, the instant case is more analogous to Sullivan, Byers, and Bouknight, where the disclosure requirements were part of civil regulatory regimes, the requirements applied to broad groups, and the disclosed activity was not inherently illegal. Drawing from these cases, the Second Circuit concluded that, “[n]otwithstanding the protections of the Fifth Amendment, the government may require disclosure of information where the area of inquiry is regulatory rather than criminal, where the field subject to the disclosure obligation is not permeated with criminal statutes, and where there is a substantial non-prosecutorial interest served by the reporting regime.” Rajah v. Mukasey, 544 F.3d 427, 442 (2d Cir. 2008); see also United States v. Mickens, 926 F.2d 1323, 1331 (2d Cir. 1991); United States v. Dichne, 612 F.2d 632, 639-41 (2d Cir. 1979). The Second Circuit further stated that immigration law is one such area where the government may require the disclosure of incriminating information:

Immigration law is generally regulatory rather than criminal. Indeed, deportation hearings are civil proceedings. To be sure, there are some crimes related to immigration violations. But the level of criminal regulation in immigration matters is far less, and almost of a different order from that which governs those areas where reporting requirements have been struck down.

Rajah, 544 F.3d at 442 (citation omitted). This Court concurs with these conclusions.

Furthermore, the government has a particularly strong interest in securing the nation’s borders. As a result, Fifth Amendment rights are generally diminished in the context of border crossings. See, e.g., United States v. McDowell, 250 F.3d 1354, 1362 (11th Cir. 2001) (“Because of the overriding power and responsibility of the sovereign to police national borders, the fifth amendment guarantee against self-incrimination is not offended by routine questioning of those seeking entry to the United States.” (internal quotation marks omitted)); see also United States v. Kiam, 432 F.3d 524, 530 (3d Cir. 2006) (holding that Miranda warnings are required during the immigration process only “[i]f the [border] inspector’s questions objectively cease to have a bearing on the grounds for admissibility and instead only further a potential criminal prosecution.”); United States v. Gupta, 183 F.3d 615, 617 (7th Cir. 1999) (“A person seeking entry into the United States does not have a right to remain silent.”). Thus, just as “a taxpayer’s W-2 forms are required records not subject to the Fifth Amendment because they are a mandatory part of a civil regulatory regime,” Rajah, 544 F.3d at 442, “the Fifth Amendment does not protect [persons] either from being forced to turn over their passports and I-94s or to answer questions related to their immigration status.” Id.

Addressing the Fifth Amendment’s application to a border disclosure requirement, the Second Circuit, in Dichne, held that the privilege could not be used to resist compliance with a statute requiring declarations from “persons traveling across the border with more than $5,000 in monetary instruments.” 612 F.2d at 639. In addition to noting that the disclosure requirement was not aimed at an inherently suspect group and did not involve an area permeated with criminal statutes, the Court concluded that the statute advanced the government’s substantial non-prosecutorial interest in regulating the flow of currency across the nation’s borders. Id. at 639-40. In this case, the Government’s non-prosecutorial interest in regulating the flow of people across the nation’s borders is at least equally substantial. Furthermore, the fact that those transporting passengers to the United States might not seek entry into the country themselves does not diminish the public’s interest in securing the nation’s borders.

In sum, the privilege against self-incrimination does not protect Defendant from prosecution for failing to comply with the bring and present requirement, even though his compliance might have been incriminating.

III. CONCLUSION

For the reasons stated above, it is

ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Counts 37-71 is DENIED.

__________________

1Although co-defendant Junior Arce de la Cruz similarly filed a Motion to Dismiss Counts 37-71 (dkt # 33), he subsequently absconded while under pretrial release supervision. Due to his absence, Defendant Arce de la Cruz has been unable to stand trial, and his case has been transferred to the Clerk’s Fugitive File (dkt # 62). As Defendants conceded in their Replies (dkt # 49), it would be premature to address their “as applied” challenge prior to the development of a factual record at trial. Since Defendant Arce de la Cruz’s trial has not occurred and the factual record in that matter has not been developed, the Court concludes that it would be premature to rule on his Motion. Therefore, this Order addresses only Defendant Garcia-Cordero’s Motion.

2The Court similarly concluded that the privilege was a defense for noncompliance with federal wager tax and registration requirements in Grosso v. United States, 390 U.S. 62 (1968). Also, in Leary v. United States, the Court held that privilege provided a defense to prosecution under a statute requiring persons who acquired marijuana to make disclosures and tax payments. 395 U.S. 6, 26-27 (1969) (“In short, we think the conclusion inescapable that the statute was aimed at bringing to light transgressions of the marijuana laws.”).

3Also, 8 C.F.R. § 235.1(a) provides that “[a]pplication to lawfully enter the United States shall be made in person to an immigration officer at a U.S. port-of-entry when the port is open for inspection, or as otherwise designated in this section.” In addition, 8 U.S.C. § 1221 requires that commercial vessel owners provide passenger manifests to immigration officials. It states, in part:

For each commercial vessel or aircraft transporting any person to any seaport or airport of the United States from any place outside the United States, it shall be the duty of an appropriate official specified in subsection (d) of this section to provide to any United States border officer . . . at that port manifest information about each passenger, crew member, and other occupant transported on such vessel or aircraft prior to arrival at that port.

8 U.S.C. § 1221.

* * *

Appeal from the U.S. District Court for the Middle District of Florida (No. 05-00062-CV-TJC).

(Before ANDERSON, BIRCH and PRYOR, Circuit Judges.)

(PRYOR, Circuit Judge.) Askari Abdullah Muhammad, formerly known as Thomas Knight, is a Florida inmate sentenced to death who seeks a certificate of appealability to appeal the denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. Muhammad has failed to make a substantial showing of the denial of a constitutional right. We deny his application for a certificate of appealability.

I. BACKGROUND
In 1982, Muhammad was convicted of first-degree murder after fatally stabbing a prison guard while incarcerated and awaiting the death penalty for two previous murders. Muhammad represented himself at trial, and a jury found him guilty. He waived his right to a jury for the penalty phase of trial. The trial judge found three aggravating factors: Muhammad was imprisoned when he committed the murder; he was previously convicted of a capital offense; and the murder was especially heinous, atrocious, or cruel. The judge found no mitigating factors and sentenced Muhammad to death.

Muhammad raised numerous arguments in his direct appeal, three of which are before us in his application for a certificate of appealability: competency, waiver of counsel, and evidentiary rulings related to Muhammad’s insanity defense. The Supreme Court of Florida discussed each of these issues when it affirmed Muhammad’s conviction and sentence. Muhammad v. State (Muhammad I), 494 So. 2d 969 (Fla. 1986).

The Supreme Court of Florida upheld the finding that Muhammad was competent to stand trial based on the observations by the trial court of Muhammad’s behavior and an examination of Muhammad by one expert:

Muhammad refused to cooperate on three separate occasions with [state experts,] Drs. Barnard and Carrera. Dr. Amin’s examination found Muhammad competent. . . . If the court has followed the procedures of the rules and the defendant’s own intransigence deprives the court of expert testimony, the court must still proceed to determine competency in the absence of such evidence. The record demonstrates that Judge Carlisle had an opportunity to observe Muhammad’s behavior at the competency hearing, to review a letter and various pleadings handwritten by the defendant and a part of the file, and to review the proffer of expert evidence. The proffer indicates Muhammad suffered mental problems, but one need not be mentally healthy to be competent to stand trial. Nothing in the record available to Judge Carlisle dispositively demonstrates Muhammad was incompetent.

Muhammad I, 494 So. 2d at 972-73.

The Supreme Court of Florida upheld the finding that Muhammad was competent to make the decision to waive counsel and found that Muhammad’s decision not to pursue an insanity defense was not evidence of incompetency:

Judge Chance conducted a lengthy and detailed inquiry pursuant to the requirements of Faretta before accepting Muhammad’s waiver with this finding: “I personally think you’re making a mistake, I really do, but that is your decision. And I’m convinced from talking with you and from the time we spent here today that you’re competent and capable to make a mistake.” . . . Judge Chance’s ruling sums up the dilemma of permitting a defendant to proceed pro se. It also embodies a determination of competency and compliance with the Faretta standard. . . . Muhammad’s refusal to cooperate in raising an insanity defense is not itself an indicator of incompetence. The record shows that Muhammad adamantly refused to seek any excuse for the murder based on his mental condition, apparently based on his interpretation of Moslem teachings that he should take responsibility for his actions. Society permits a defendant to seek refuge in an insanity defense; it does not require it.

Id. at 974-75.

The Supreme Court of Florida concluded that Muhammad’s hearing to waive counsel, under Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975), which occurred less than a month after his competency had been determined, was adequate:

Appellate counsel also argues that the judge should have appointed experts for a determination of competency regarding the waiver and self-representation. Counsel claims Muhammad asked for an examination on this point, but it is clear from the context of his statement that his intention was that Dr. Amin consult with him as a defense expert under Florida Rule of Criminal Procedure 3.216(a), and nothing indicates that Muhammad had changed his position regarding the other experts. Also, the Faretta hearing occurred less than a month after the prior determination of competency to stand trial and nothing in the record suggests that Muhammad’s mental condition had changed in the interim necessitating another, most likely futile, attempt at expert evaluation.

Id.

The Supreme Court of Florida also concluded that Muhammad had waived any objection to the evidentiary rulings of the state court related to his insanity defense:

[Muhammad] next asserts error in the trial court’s ruling that appointed trial counsel would be unable to present any evidence of insanity because of the defendant’s refusal to cooperate with the court experts. Subsequent to this ruling, Muhammad filed a pro se motion a month before trial to withdraw the notice of intent to raise the insanity defense. The trial court permitted the state to withdraw its motion to strike the insanity defense and granted Muhammad’s motion. Muhammad was competent to make the motion and therefore he has waived any claim of error.

Id. at 976.

In 1989, Muhammad filed for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and argued eighteen grounds for relief. Only three of the arguments raised in Muhammad’s 3.850 motion are raised in his application for a certificate of appealability: interference with his right to counsel, his waiver of counsel was equivocal, and suppression of evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). After the trial court determined that all of the claims were procedurally barred because they either had been raised or should have been raised on direct appeal and no cause had been established to excuse the default, the trial court denied the motion. Muhammad appealed, and the Supreme Court of Florida affirmed the dismissal of all but the Brady claim as procedurally barred. Muhammad v. State (Muhammad II), 603 So. 2d 488, 489 (Fla. 1992).

As to Muhammad’s allegation that the state had suppressed exculpatory evidence, the Supreme Court of Florida remanded for an evidentiary hearing. Id. at 490. On remand, the trial court vacated Muhammad’s death sentence and denied all other requested relief. Both Muhammad and the government appealed. The Supreme Court of Florida affirmed the denial of relief as to Muhammad’s conviction and reversed the decision to vacate Muhammad’s sentence of death. State v. Knight, 866 So. 2d 1195 (Fla. 2003) (per curiam).

The Supreme Court of Florida ruled that Muhammad had failed to prove that he was prejudiced by the alleged suppression of several unsigned statements because they were, at best, cumulative:

At best, the seven unattributed, unsigned, and undated statements contain limited and conflicting information regarding Muhammad’s state of mind around the time of the murder. . . . [T]he information contained in the allegedly suppressed employee statements was cumulative to information from employee depositions. The record reflects that those depositions were turned over to Muhammad, yet he did not use them to present any mental mitigation. Under these circumstances, no likelihood that Muhammad would have used the similar and cumulative information . . . to argue mental mitigation has been established. . . . [T]he nature of the documents that were presented on remand would not require either a new sentencing phase or a new trial.

Id. at 1202-03.

Muhammad also petitioned the Supreme Court of Florida for a writ of habeas corpus and asserted five claims of ineffective assistance of counsel. One of those arguments is relevant to his application for a certificate of appealability: that ineffective assistance of counsel was “cause” for his failure to raise the argument that the state court had interfered with his standby counsel on direct appeal. The Supreme Court of Florida denied Muhammad’s habeas petition. Id. at 1205-06.

The Supreme Court of Florida held that Muhammad’s argument that the court had interfered with his right to standby counsel would not have been meritorious and any failure to raise the argument on direct appeal was not prejudicial:

[I]t is clear from the record that Muhammad did not want to appear to have acquiesced to the limited role that his standby counsel was performing. Moreover, the court took seriously Muhammad’s desire not to insinuate that [standby counsel] was providing him any assistance. Muhammad’s decision to not avail himself of his designated standby counsel, even though he was aware [such counsel] was available, was his own, and not the trial judge’s decision.

Id. at 1205.

In 2005, Muhammad filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida. Muhammad alleged ten grounds for relief. The district court denied the petition. Muhammad v. McDonough, __ F.Supp. 2d __, No. 3:05-cv-62-J-32, 2008 WL 818812 (M.D. Fla. Mar. 26, 2008). The district court also denied Muhammad’s motion to alter or amend the judgment, and his application for a certificate of appealability. On September 9, 2008, Muhammad filed an application for a certificate of appealability with this Court.

II. STANDARD FOR GRANTING A

CERTIFICATE OF APPEALABILITY
This Court will issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 326, 123 S. Ct. 1029, 1034 (2003) [16 Fla. L. Weekly Fed. S77a]. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000).

III. DISCUSSION
Muhammad requests a certificate of appealability on five of the grounds he stated in the state and district courts. Muhammad argues, first, that he was not competent to stand trial; second, that his rights under Faretta were violated; third, that the trial court abused its discretion when it ruled that he could not present evidence related to insanity; fourth, that the state interfered with his right to consult with counsel; and fifth, that he was denied his right to Brady evidence. We address each issue in turn.

A. Ground One: Competence To Stand Trial
Muhammad argues he was not competent to stand trial, but the district court ruled that Muhammad had failed to satisfy his burden of rebutting the finding of competency by the state courts by clear and convincing evidence. Muhammad argues that the state court relied too heavily on Dr. Amin’s report, which failed to address Muhammad’s longstanding mental illness and refusal to consult with counsel; the state court failed to address that Muhammad was unsure whether to present an insanity defense; and the state court did not consider that Muhammad previously had been found incompetent.

We conclude that Muhammad has failed to establish that jurists of reason would debate the conclusion of the district court. “[A] person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903 (1975). Whether Muhammad was competent to stand trial is a question of fact. Dr. Amin considered Muhammad’s longstanding mental illness, but found Muhammad competent to stand trial because an “examination revealed no overt thought disorder . . . [and Muhammad] demonstrated significant insight and appreciation for his present legal predicament.” The state court had before it multiple letters and motions handwritten by Muhammad including a Motion to Proceed in Proper Person and a letter stating his desire to proceed pro se. Although Muhammad refused to speak to counsel, the state court was entitled to find that the refusal was attributable to Muhammad’s wish to proceed pro se, not an inability to communicate. It was clearly reasonable for the state court to find that Muhammad’s determination not to pursue an insanity defense was likewise not evidence of incompetency.

Although Muhammad argues that the state court failed to consider his brief stay in a mental hospital in 1971, the record reveals that Muhammad was released after a short period and was later confirmed competent by a court. Knight v. Dugger, 863 F.2d 705 app. at 748 (11th Cir. 1988) (appending the denial of habeas corpus by the district court). There was overwhelming psychiatric evidence presented in his first capital trial that Muhammad was not only competent to stand trial, but sane at the time of the murders: “The consensus of those who evaluated the defendant’s competency was that he was indeed sociopathic with paranoid personality problems but that he fully knew the difference between right and wrong and could appreciate the seriousness of the crimes with which he had been charged.” Id. Muhammad’s brief stay in a mental hospital in 1971, after which he was found competent to stand trial for another capital murder, does not create a debatable question about whether Muhammad presented clear and convincing evidence to rebut the finding that he was competent to stand trial in 1982.

Jurists of reason would not debate whether Muhammad had rebutted by clear and convincing evidence the finding by the state courts that Muhammad was competent to stand trial. The trial court had ample opportunity to observe Muhammad and review his handwritten submissions to the court, and the one expert with whom he agreed to speak determined that he was competent. Muhammad has not made a substantial showing of the denial of a constitutional right as to ground one.

B. Ground Two: Faretta Rights
Muhammad argues that the state court interfered with his right to standby counsel, his waiver of counsel was equivocal, his Faretta hearing was inadequate, and he was not competent to invoke his Faretta rights and proceed pro se. Only the two latter arguments were raised on direct appeal. The Supreme Court of Florida upheld the finding that Muhammad was competent to make the decision to waive counsel and concluded that his Faretta hearing was adequate. Muhammad argues that the state court should have appointed experts to determine competency and that his uncertainty about whether to pursue an insanity defense was proof of his incompetence to waive counsel. The Supreme Court of Florida affirmed the finding that Muhammad’s refusal to invoke a defense of insanity was not evidence of incompetence and affirmed the decision not to appoint experts because there was no evidence Muhammad had “changed his position” regarding his refusal to speak with psychiatric experts. Muhammad I, 494 So. 2d at 975. The district court ruled that these conclusions of the state court were not “contrary to” or “an unreasonable application of . . . clearly established federal law, as determined by the Supreme Court.” McDonough, __ F.Supp. 2d__, 2008 WL 818812 at *29.

We conclude that jurists of reason would not debate the denial of Muhammad’s petition. In Godinez v. Moran, the Supreme Court held that the standard for determining competency to waive the right to an attorney is the same as the standard for determining competency to stand trial. 509 U.S. 389, 396-97, 113 S. Ct. 2680, 2685-86 (1993). Muhammad appeared for both a competency hearing and a Faretta hearing, and at both, the trial judge was assured of Muhammad’s “rational understanding” of the proceedings. Jurists of reason would not debate that Muhammad failed to present clear and convincing evidence to rebut the finding that he was competent to waive his right to an attorney and failed to establish that the decision that his Faretta hearing was adequate was “an unreasonable application of . . . clearly established law.”

Muhammad argues that the trial court interfered with his right to standby counsel and that his waiver of the right to counsel was equivocal, but these claims are procedurally barred. Florida law bars claims that could have been raised on direct appeal. Smith v. State, 445 So. 2d 323, 325 (Fla. 1983). To overcome a procedural bar, Muhammad must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991).

Muhammad has never provided cause for failing to raise these issues on direct appeal, and he has not been prejudiced by any failure because the arguments would not have been meritorious. As the Supreme Court of Florida stated, Muhammad elected to proceed pro se while simultaneously insisting that he wanted “ ‘assistance of counsel’ in the sense of having a lawyer available to aid in preparation of the case.” Muhammad I, 494 So. 2d at 970. Each of the three judges who presided over Muhammad’s trial heard argument from Muhammad on his motion to proceed pro se, and each time Muhammad expressed a desire to represent himself as well as his wish to have the “assistance of counsel,” as opposed to “representation by counsel.” The record makes clear that Muhammad unequivocally expressed as follows in a letter to the trial judge an intention to proceed pro se and be aided by standby counsel:

I believe that assistance of counsel is the assistance of counsel. I believe representation by counsel is representation by counsel. I believe that when I am assisted by counsel, I am being assisted by counsel as I act and speak on my own behalf. I believe that when I am to be represented by counsel, I believe that I am consenting to counsel acting and speaking on my behalf. I believe that the laws and Constitution of the State of Florida and the Constitution of these United States gives me the right to be assisted by counsel.

Muhammad renewed his motion to proceed pro se three times, presented the court with handwritten motions confirming his election to proceed pro se, consistently distinguished being “represented by counsel” from “assisted by counsel,” and did not want standby counsel at trial to create the appearance that Muhammad was not representing himself. The record makes clear that Muhammad was unequivocal about his desire to proceed pro se. He has not made a substantial showing of the denial of a constitutional right as to ground two.

C. Ground Three: Insanity Defense
Jurists of reason also would not debate the reasonableness of the decision that Muhammad waived any objection to the evidentiary rulings about his insanity defense. Muhammad argues that the district court should have considered the reasons he withdrew his notice to pursue the insanity defense, but the reasons for Muhammad’s withdrawal are irrelevant. “[W]aiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993) (internal quotation marks omitted). After a defendant waives a right, there can be no appellate review because there is no error to correct. Id. Muhammad has presented no evidence that his waiver was not knowing or voluntary when he filed the motion to withdraw the notice of his intent to pursue an insanity defense. Muhammad has not made a substantial showing of the denial of a constitutional right as to ground three.

D. Ground Four:

Interference with Pro Se Rights
Muhammad argues that the state interfered with his“pro se rights” and refers to his right to consult with appointed counsel. Muhammad did not raise on direct appeal the argument that the state interfered with his right to consult with counsel. He first raised this issue in his Rule 3.850 motion. The state court concluded that the claim was procedurally barred, and the Supreme Court of Florida affirmed. Muhammad II, 603 So. 2d at 489. The district court held that the state court had reasonably applied a regularly applied state procedural rule. McDonough, __ F.Supp. 2d__, 2008 WL 818812 at *35.

Jurists of reason would not debate that Muhammad’s argument is procedurally barred. Muhammad argues that he has provided cause to excuse his procedural default because evidence of the interference was contained in a sealed appendix unavailable to Muhammad until after his direct appeal. We disagree. Even if Muhammad did not have access to the appendix, Muhammad necessarily knew whether the Florida State Prison had interfered with his right to consult with counsel. Because Muhammad knew whether the prison had allowed him to meet with his attorney in private, he has not established cause for his failure to raise this argument on appeal. Muhammad has failed to make a substantial showing of the denial of a constitutional right as to ground four.

E. Ground Five: Brady Evidence
Muhammad has failed to establish that jurists of reason would debate whether the Supreme Court of Florida reasonably concluded that any suppression by the state, under Brady, was not prejudicial. At oral argument before the Supreme Court of Florida, Muhammad identified the documents that he argued supported his Brady claim, which consisted of a letter from a Department of Corrections investigator with seven attached statements that were unsigned, undated, and unattributed. Knight, 866 So. 2d at 1200-02. The Supreme Court of Florida reasonably concluded that the evidence was cumulative and any alleged suppression was not prejudicial. Muhammad has failed to make a substantial showing of the denial of a constitutional right as to ground five.

IV. CONCLUSION
Muhammad’s application for a Certificate of Appealability is DENIED.

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