Damion Anthony Delapena v. Florida Department of Corrections

Damion Delapena claimed in his federal habeas corpus petition that he received ineffective assistance of counsel when his attorney failed to file a motion to suppress. His petition identified precedent that would have all but compelled the trial court to suppress incriminating evidence. But his attorney failed to move for its suppression, and so Delapena pled guilty to five armed robberies. Delapena also claimed he received ineffective assistance of counsel when his trial attorney told him cellular phone records produced during discovery were “not particularly helpful,” even though the records showed (1) he was over two hours away from the scene of one of the robberies he pled guilty to; and

1. his brother was far from the scene of any of those robberies, which undercut the State’s theory that his car served as the getaway vehicle. In his final ineffective assistance of counsel claim, Petitioner established his attorney mistakenly advised him that he was eligible for a downward departure if he entered a guilty plea, even though every ground for departure counsel raised at sentencing was invalid. Both the district court and the Eleventh Circuit denied Delapena a certificate of appealability. This petition presents the following question:

2. Does federal habeas petitioner make a “substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2) where his trial attorney failed to assert valid grounds for the