Covell v. Ryan et al
Filing
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ORDER ACCEPTING REPORT AND RECOMMENDATIONS 51 . Petitioner Frederick W. Covell's second amended petition for writ of habeas corpus (Doc. 36 ) is denied. A certificate of appealability is denied because Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). The Clerk of Court shall terminate this action. Signed by Judge David G Campbell on 2/15/13. (LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Frederick W. Covell,
No. CV11-992 PHX DGC
Petitioner,
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ORDER
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v.
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Charles Ryan, et al.,
Respondents.
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Pending before the Court are the second amended petition for writ of habeas
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corpus filed by pro se Petitioner Frederick W. Covell (Doc. 36) and the Report and
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Recommendation (“R&R”) issued by United States Magistrate Judge Bridget S. Bade
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(Doc. 51). The R&R recommends that the petition be denied because it is procedurally
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barred. Doc. 51 at 14. Petitioner filed a written objection to the R&R requesting the
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appointment of counsel and additional time to submit a detailed objection. Doc. 52.
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The Court granted Petitioner’s request for additional time on December 21, 2012
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(Doc. 53), and granted Petitioner’s second request for additional time on January 8,
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2013 (Doc. 55). Petitioner filed his second objection to the R&R on February 1, 2013.
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Doc. 56. Petitioner has not requested oral argument. For the reasons that follow, the
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Court will accept the R&R and deny the petition.
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I.
Background.
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Petitioner does not object to the R&R’s recitation of facts, and therefore the
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Court will adopt it summarily. Petitioner was convicted by a jury in Arizona state
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court of (1) knowing possession of a handgun while being a prohibited possessor, (2)
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knowing possession of a shotgun while being a prohibited possessor, and (3)
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possession of a pipe bomb.
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consolidated appeal arguing that there was insufficient evidence to support his
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convictions for prohibited possession of a handgun and shotgun (id.), and the appellate
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court reversed Petitioner’s convictions and sentences on those counts (id. at 3). The
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appellate court clarified that its ruling did not affect Petitioner’s conviction for
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possession of a pipe bomb. Id. Petitioner then filed two notices for post-conviction
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relief, but both proceedings were dismissed after Petitioner failed to file a petition for
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post-conviction relief. Id. Petitioner’s second amended petition for writ of habeas
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Doc. 51 at 2.
After sentencing, Petitioner filed a
corpus raises 27 grounds for relief. Doc. 36.
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The R&R concludes that the portion of ground 22 that challenges Petitioner’s
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prohibited possession of a handgun and shotgun convictions is moot because those
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convictions were reversed by the Arizona Court of Appeals on direct review. Doc. 51
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at 5, 14.
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procedurally barred and that Petitioner has failed to establish a basis to overcome the
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procedural bar. Doc. 51 at 1, 14.
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II.
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As to the remaining grounds, the R&R concludes that the claims are
Discussion.
The Court may accept, reject, or modify, in whole or in part, the findings or
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recommendations made by a magistrate judge in a habeas case.
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§ 636(b)(1). The Court must undertake a de novo review of those portions of the
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R&R to which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United
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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
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Petitioner makes the following specific objections: (1)
See 28 U.S.C.
the claims are not
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procedurally barred because Petitioner presented the claims in four special actions to
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the Arizona Court of Appeals (Doc. 56 at ¶¶ 1, 3); (2) the Maricopa County Superior
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Court refused to rule on Petitioner’s motions for transcripts, and this resulted in a
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fundamental miscarriage of justice because Petitioner was prevented from raising
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certain issues in his petition for post-conviction relief (id. at ¶ 2); (3) Petitioner would
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succeed in overturning his conviction and is more likely to succeed than any other
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habeas petitioner (id. at ¶ 4); (4) ineffective assistance of counsel prevented Petitioner
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from asserting his claims on appeal in the Arizona state courts (id. at ¶¶ 6, 8, 9, 12);
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(5) Judge Bade erred in relying on Kajander v. Shroeder, No. CV-08-1172-PHX-
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GMS (GEE), 2009 WL 775395 (D. Ariz. Mar. 20, 2009) because it “is not controlling
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nor is it in the proper jurisdiction” (id. at ¶ 10); and (6) Judge Bade erred in finding
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that Petitioner filed only 2 special actions (id. at ¶ 11). The Court has not considered
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Petitioner’s general objections concerning claims like “Judge Bade did not even read
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petition” (Id. at 5), or that the state court’s “no-ruling” decisions do not support a
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finding that Petitioner’s claims are procedurally barred (id. at ¶ 5). The Court has
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reviewed Petitioner’s specific objections de novo.
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A.
Procedurally Barred.
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The R&R finds that Petitioner failed to present his claims to the Arizona Court
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of Appeals on direct or collateral review and, because Petitioner cannot return to state
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court to present those claims, they are now procedurally defaulted and technically
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exhausted. Doc. 51 at 9. The R&R concludes that Petitioner’s special action petitions
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do not satisfy the exhaustion requirement because review of those actions is
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discretionary. Id. (citing Kajander, 2009 WL 775395 at *3; Baldwin v. Reese, 541
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U.S. 27, 29 (2004)). Petitioner argues that he preserved issues by presenting claims in
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special actions to the Arizona Court of Appeals. Doc. 56 at ¶ 1.
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Petitioner objects to the R&R’s finding that he submitted only two special
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action petitions, and appears to argue that he satisfied the exhaustion requirement by
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submitting four special action petitions to the Arizona Court of Appeals. Doc. 56 at
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¶ 11. Petitioner does in fact appear to have presented four special action petitions. See
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Doc. 52-1 at 9; Doc. 36 at 4-5. The Court agrees with the R&R, however, that special
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action petitions are not a proper vehicle to present claims to the Arizona Court of
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Appeals for federal habeas exhaustion purposes – and this conclusion is not affected
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by how many special petition actions Petitioner filed. See Kajander, 2009 WL 775395
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at *2-3. Petitioner objects to the R&R’s reliance on Kajander and submits that it “is
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not controlling nor is it in the proper jurisdiction.” Doc. 56 at ¶ 10. Kajander was a
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decision of this Court finding that a special action in Arizona state courts is not a
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mechanism to fairly present claims for exhaustion purposes. 2009 WL 775395 at *3.
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This Court has repeatedly adopted this position. See Little v. Schriro, No. CV-06-
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2591-PHX-FJM, 2008 WL 2115230, at *12 (D.Ariz. May 19, 2008); Craig v. Schriro,
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CV-06-0626-PHX-PGR, 2006 WL 2872219, at *10 (D.Ariz. Oct.5, 2006); Rodriquez
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v. Klein, No. CV-05-3852-PHX-NVW, 2006 WL 1806020, at *4 (D.Ariz. June 28,
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2006). The Court denies Petitioner’s objection to the R&R’s reliance on Kajander.
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The Court will adopt the R&R with respect to its finding that Petitioner’s claims are
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procedurally barred.
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B.
Cause and Prejudice.
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A procedurally defaulted claim will not be barred from federal review if the
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petitioner can demonstrate cause and prejudice. Dretke v. Haley, 541 U.S. 386, 393-94
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(2004); Coleman v. Thompson, 501 U.S. 722, 750 (1991). “[T]he existence of cause
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for a procedural default must ordinarily turn on whether the prisoner can show that
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some objective factor external to the defense impeded counsel’s efforts to comply with
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the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also
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Moorman v. Schriro, 426 F.3d 1301, 1305 (9th Cir. 1996). The Supreme Court has
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identified three instances where a petitioner might demonstrate cause for failure to
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comply with a state procedural rule: (1) the factual or legal basis for a claim was not
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reasonably available to petitioner; (2) some interference by officials made compliance
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impracticable; or (3) the default was the result of ineffective assistance of counsel.
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Carrier, 477 U.S. at 488. Although both cause and prejudice must be shown to excuse
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a procedural default, the Court need not examine the existence of prejudice if the
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petitioner fails to establish cause. See Smith v. Murray, 477 U.S. 527, 533 (1986).
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The R&R finds that Petitioner failed to show cause. Doc. 51 at 10-13. Petitioner
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objects and argues that he established cause because he was denied transcripts and
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evidence necessary to identify his appealable claims, and because of ineffective
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assistance of counsel. Doc. 56 at ¶¶ 2, 6, 8, 9, 12.
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Petitioner argues that his motions requesting transcripts and evidence were
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rejected and unanswered by the Maricopa County Superior Court. Doc. 56 at ¶ 2. The
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R&R correctly finds, however, that the failure to provide Petitioner with transcripts
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does not establish cause because he does not explain how the absence of transcripts
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prevented him from presenting his claims to the state courts.
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While ineffective counsel may establish cause, attorney ignorance, inadvertence
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or error short of that which is constitutionally ineffective under the Sixth Amendment
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is not generally cause for a procedural default. See Carrier, 477 U.S. at 484. If
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counsel makes a tactical decision to forego a claim, counsel’s error cannot constitute
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cause for a procedural default. See Amadeo v. Zant, 486 U.S. 214, 221-22 (1988); see
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also Coleman, 501 U.S. at 753 (“Attorney ignorance or inadvertence is not cause
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because the attorney is the petitioner’s agent when acting, or failing to act, in
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furtherance of the litigation, and the petitioner must bear the risk of attorney error.”
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(internal quotation marks and citations omitted)). Additionally, the petitioner must
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first exhaust state remedies on the independent claim of ineffective assistance of
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counsel for that claim to constitute cause. See Carrier, 477 U.S. at 488-89; see also
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Edwards v. Carpenter, 529 U.S. 446, 453-54 (2000).
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exhausted his claim of ineffective assistance of counsel because he raised the claim on
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a motion for new counsel and a motion to reconsider before the Arizona Court of
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Appeals. Doc. 56 at ¶ 9. These types of motions do not satisfy the exhaustion
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requirement because they do not “fairly present” the claim to the Arizona Court of
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Appeals in a procedurally correct manner – either on direct appeal or in a petition for
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post-conviction relief. See, e.g., Kajander, 2009 WL 775395 at *3 (citations omitted)
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(“[C]laims are not fairly presented if they are raised in a procedural context in which
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the merits will not be considered absent special circumstances.”). Accordingly, the
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Court agrees with the R&R that Petitioner failed to exhaust his ineffective assistance
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Petitioner argues that he
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of counsel claim. Moreover, Petitioner’s objection fails to demonstrate how his claim
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of ineffective assistance of appellate counsel is sufficient to establish constitutional
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ineffectiveness under the Sixth Amendment. The Court therefore adopts the R&R’s
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finding of no cause.
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C.
Fundamental Miscarriage of Justice.
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A “fundamental miscarriage of justice” occurs when “a constitutional violation
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has probably resulted in the conviction of one who is actually innocent.” Schlup v.
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Delo, 513 U.S. 298, 327 (1995) (internal quotation marks and citations omitted). The
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exception applies only where a petitioner makes the extraordinary showing that an
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innocent person was probably convicted due to a constitutional violation. Id. “To
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establish the requisite probability,” the petitioner must prove with new reliable
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evidence that “it is more likely than not that no reasonable juror would have found
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petitioner guilty beyond a reasonable doubt.” Id. Petitioner raises 27 grounds for
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relief (Doc. 36), none of which presents newly established evidence of his actual
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innocence. The Court agrees with the R&R that Petitioner has failed to establish that a
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fundamental miscarriage of justice would result if the Court denies his claims. Doc. 51
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at 13.
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IT IS ORDERED:
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1.
Magistrate Judge Bridget S. Bade’s R&R (Doc. 51) is accepted.
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2.
Petitioner Frederick W. Covell’s second amended petition for writ of
habeas corpus (Doc. 36) is denied.
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3.
A certificate of appealability is denied because Petitioner has not made a
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substantial showing of the denial of a constitutional right as required by
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28 U.S.C. § 2253(c)(2).
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4.
The Clerk of Court shall terminate this action.
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Dated this 15th day of February, 2013.
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