Alonso v. Ryan et al

Filing 109

ORDER (Amended) - The 87 Report and Recommendation is accepted.The 98 objections are overruled. The Clerk of the Court shall enter an amended judgment denying and dismissing the Amended Petition, with prejudice. IT IS FINALLY ORDERED that pur suant to Rule 11 of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because dismissal of portions of the petition is based on a plain procedural bar and j urists would not find this Court's procedural ruling debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not made a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2). Signed by Senior Judge James A Teilborg on 6/11/18. (MSA) Modified on 6/12/2018 (SJF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christopher Alonso,
Petitioner,

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AMENDED ORDER1

v.

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No. CV-16-02143-PHX-JAT

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner’s Amended Petition for Writ of Habeas

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Corpus. The Magistrate Judge to whom this case was assigned issued a Report and

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Recommendation (“R&R”) recommending that the Amended Petition be denied. (Doc.

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87). Petitioner filed objections to the R&R. (Doc. 98).

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I.

Review

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A.

Review of R&R

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that

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the district judge must review the magistrate judge’s findings and recommendations de

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novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263

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F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes

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This Order amends the Order issued on March 8, 2018.

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that de novo review of factual and legal issues is required if objections are made, ‘but not

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otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d

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1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the

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[Magistrate Judge=s] recommendations to which the parties object.”). District courts are

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not required to conduct “any review at all . . . of any issue that is not the subject of an

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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28

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U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of

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the [report and recommendation] to which objection is made.”).

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As indicated above, Petitioner filed objections to the R&R. Accordingly, the Court
will review the portions of the R&R to which there is an objection de novo.

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B.

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The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is

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incarcerated based on a state conviction. With respect to any claims that Petitioner

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Review of State Court Decisions

exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must
deny the Petition on those claims unless “a state court decision is contrary to, or involved
an unreasonable application of, clearly established Federal law”2 or was based on an
unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
Further, this Court must presume the correctness of the state court’s factual findings
regarding a petitioner’s claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923,
936 (9th Cir. 1998). Additionally, “[a]n application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b)(2).
II.

Factual Background
The R&R recounts the factual and procedural background of this case at pages 2–

7. Other than in the context of specific legal arguments discussed below, neither party

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Further, in applying “Federal law” the state courts only need to act in
accordance with Supreme Court case law. See Carey v. Musladin, 549 U.S. 70, 74
(2006).

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objects generally to this recounting; accordingly, the Court accepts and adopts it.

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III.

Petition for Writ of Habeas Corpus

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The Amended Petition (Doc. 5) raises thirteen grounds for relief. Each of the

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thirteen grounds for relief are premised upon a retroactive change in Arizona law (SB

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1449), which altered the burden of proof for self-defense claims. The R&R finds that

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Petitioner’s claims are technically exhausted but procedurally defaulted due to

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Petitioner’s failure to appropriately raise his SB 1449 self-defense claims on direct appeal

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or during post-conviction relief proceedings. The R&R then finds that Petitioner’s claims

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of ineffective assistance of counsel do not excuse the procedural default. Likewise, the

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R&R finds the default is not excused by a demonstration of a “fundamental miscarriage

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of justice” because Petitioner failed to demonstrate actual innocence. This Court agrees

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that Petitioner’s claims are procedurally defaulted without excuse. Finally, under a merits

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review, the R&R concludes that Petitioner’s self-defense claims fail as a matter of federal

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law and this Court agrees.

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IV.

Petitioner’s Claims are Procedurally Defaulted
A.

Exhaustion and Procedural Default

A district court must reject Petitions for Writs of Habeas Corpus if a petitioner
does not exhaust state remedies for his federal claims. Castille v. Peoples, 489 U.S. 346,
349 (1989) (citing Rose v. Lundy, 455 U.S. 509 (1982)). A petitioner satisfies this
requirement if he “fairly presents” the federal claim to the state courts. Id. at 351.
Procedural default occurs when a petitioner has never presented a federal habeas claim in
state court and is now barred from doing so by the state’s procedural rules, including
rules regarding waiver and the preclusion of claims. See Castille, 489 U.S. at 351–52;
Johnson v. Lewis, 929 F.2d 460, 462 (9th Cir. 1991). Procedural default also occurs when
a petitioner did present a claim to the state courts, but the state courts did not address the
merits of the claim because the petitioner failed to follow a state procedural rule,
including rules regarding waiver and the preclusion of claims. See, e.g., Ylst v.
Nunnemaker, 501 U.S. 797, 802 (1991); Coleman v. Thompson, 501 U.S. 722, 727–28
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(1991); Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000); Szabo v. Walls, 313 F.3d

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392, 395 (7th Cir. 2002).

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The R&R finds that Petitioner’s claims are technically exhausted but procedurally

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defaulted because of Petitioner’s failure to appropriately raise his SB 1449 self-defense

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claims on direct appeal or during his post-conviction relief proceedings. (Doc. 87 at 10–

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11). Petitioner objects to the Magistrate Judge’s conclusion that his claims are

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procedurally defaulted because Petitioner claims he properly raised the SB 1449 issues in

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his state habeas corpus petition. (Doc. 98 at 14–15). In his objection Petitioner relies on

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State v. Manning to argue that, under Arizona law, issues not raised on direct appeal or

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during Rule 32 post-conviction relief proceedings may be raised independently during a

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state habeas corpus proceeding if the “post-conviction attacks” are not specified under

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Rule 32. (Doc. 98 at 14).

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In State v. Manning, the Arizona Court of Appeals held that a “challenge to a
parole revocation is not within the scope of amended Rule 32.” 143 Ariz. 139, 140 (App.
1984). In reaching its holding, the Arizona Court of Appeals explained that Rule 32 was
amended in 1975 and the amendment removed certain language concerning probation
and parole. Id. After holding that parole revocation was not within the scope of Rule 32,
the court concluded its opinion by stating “if a person in such circumstances does not
assert a specific ground designated by Rule 32 . . . then his claim falls outside the scope
of a petition for post-conviction relief and his remedy is to file a petition for writ of
habeas corpus.” Id. at 141.
Unlike Manning, however, this case concerns the passage of SB 1449 and its
retroactive effect. A new law, like SB 1449, would arguably fall under Rule 32.1(g) as a
“significant change in the law that, if applied to the defendant’s case, would probably
overturn the defendant’s conviction or sentence[.]” Ariz. R. Crim. P. 32.1(g). Moreover,
Petitioner’s constitutional and jurisdictional claims related to the enactment of SB 1449,
likewise, fall under Rule 32.1(a) and Rule 32.1(b). See Ariz. R. Crim. P. 32.1(a), (b)
(where grounds for relief include “[t]he conviction or the sentence was in violation of the
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Constitution of the United States or of the State of Arizona” and “[t]he court was without

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jurisdiction to render judgment or to impose sentence”). Therefore, the holding in

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Manning is wholly inapplicable to this case.

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Accordingly, because Petitioner inappropriately raised his SB 1449 claims in his

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state habeas corpus proceedings, and because Petitioner was procedurally barred from

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raising the claims during his Rule 32 post-conviction relief proceedings, Petitioner’s

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claims are technically exhausted but procedurally defaulted.

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B.

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Federal habeas relief based on procedurally defaulted claims are barred unless the

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petitioner can demonstrate: (1) a fundamental miscarriage of justice will occur if the

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Court does not consider the merits of the claim, or (2) cause and actual prejudice to

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excuse the default of the claim. See House v. Bell, 547 U.S. 518 (2006). “Cause” is a

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legitimate excuse for the petitioner's procedural default of the claim and “prejudice” is

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Excusing Procedural Default

actual harm resulting from the alleged constitutional violation. See Thomas v. Lewis, 945
F.2d 1119, 1123 (9th Cir. 1991). To demonstrate cause, a petitioner must show the
existence of some external factor which impeded his efforts to comply with the state’s
procedural rules. See Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez–
Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). To establish prejudice, the
petitioner must show that the underlying alleged constitutional error worked to his actual
and substantial disadvantage, infecting his entire trial with constitutional violations. See
Vickers, 144 F.3d at 617; Correll v. Stewart, 137 F.3d 1404, 1415–16 (9th Cir. 1998).
Establishing prejudice requires a petitioner to prove that, “but for” the alleged
constitutional violations, there is a reasonable probability he would not have been
convicted of the same crimes. See Manning v. Foster, 224 F.3d 1129, 1135–36 (9th Cir.
2000); Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). Although both cause and
prejudice must be shown to excuse a procedural default, the Court need not examine the
existence of prejudice if the petitioner fails to establish cause. See Engle v. Isaac, 456
U.S. 107, 134 n. 43 (1982); Thomas, 945 F.2d at 1123 n. 10.
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i.

Ineffective Assistance of Counsel

Attorney error is an objective external factor providing cause for excusing a
procedural default only if that error amounted to a deprivation of the constitutional right
to counsel. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). An error amounting to
constitutionally ineffective assistance is “imputed to the State” and is therefore external
to the prisoner. See Murray v. Carrier, 477 U.S. 478, 488 (1986). Accordingly, “in
proceedings for which the Constitution does not guarantee the assistance of counsel at all,
attorney error cannot provide cause to excuse a default.” Davila v. Davis, 137 S. Ct.
2058, 2065 (2017).
The R&R finds that Petitioner does not have a substantial claim of ineffective
assistance of trial counsel because trial counsel followed Arizona law at the time of trial
and Petitioner cannot prove prejudice. Additionally, the R&R finds that Petitioner’s claim
of ineffective assistance of post-conviction relief (“PCR”) counsel likewise does not
excuse procedural default because Petitioner’s right to PCR counsel is not
constitutionally guaranteed. This Court agrees.
a.

Ineffective Assistance of Trial Counsel

The R&R concludes that: (1) Petitioner failed to demonstrate that any ineffective
assistance of trial counsel was substantial and (2) Petitioner failed to demonstrate
prejudice. Thus, the R&R finds that Petitioner’s default is not excused by ineffective
assistance of trial counsel. (Doc. 87 at 13–20). Petitioner objects to this finding, arguing
that because the sentencing phase of the trial was not complete until after the enactment
of SB 1449, his trial counsel’s performance was deficient for failure to move for a
mistrial prior to sentencing. (Doc. 98 at 17–19). However, contrary to Petitioner’s
objections, the R&R was careful to review trial counsel’s conduct during the actual trial,
as well as post-trial/pre-sentencing. (Doc. 87 at 13–20). The R&R finds that Petitioner’s
counsel was not ineffective during trial for failing to predict a change in law (Doc. 87 at
14–15), and this Court agrees. Additionally, the R&R, by applying a two-part test from
Wilson v. Henry, to determine whether prejudice exists under Strickland v. Washington,
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466 U.S. 668 (1984), for failure to file a motion, finds that Petitioner’s counsel was not
ineffective during the post-trial/pre-sentencing (Doc. 87 at 15–20). Wilson v. Henry, 185
F.3d 986, 990 (9th Cir. 1999) (“To show prejudice under Strickland from failure to file a
motion, [Petitioner] must show that (1) had his counsel filed the motion, it is reasonable
that the trial court would have granted it as meritorious, and (2) had the motion been
granted, it is reasonable that there would have been an outcome more favorable to him.”).
As part of its analysis under the Henry test, the R&R reviews the evidence
presented and the pertinent provisions of the jury instructions. Here, the jury was
instructed that “[e]ven though a person is justified in threatening or using physical force
or deadly physical force against another, if in doing so such person recklessly injures or
recklessly kills an innocent third person, the justification afforded is unavailable in a
prosecution for the reckless injury or reckless killing of the innocent third person.” (Doc.
65-8, Ex. UU, at 208). The R&R reviews testimony from Mark Hernandez, Phillip
Hernandez, Carlos Galindo, and Dianna Murillo, and based on that testimony concludes
that Petitioner’s conduct was sufficiently reckless that the jury concluded the justification
of self-defense was unavailable to Petitioner because of Petitioner’s reckless conduct.
(Doc. 87 at 16–20). Consequently, the R&R finds, and this Court agrees, that Petitioner
failed to demonstrate a reasonable probability of a different outcome if the burden of
proving self-defense switched to the prosecution, thus, Petitioner failed to establish
prejudice under Strickland. (Doc. 87 at 20).
b.

Ineffective Assistance of Appellate and PCR Counsel

It is not clear whether Petitioner actually objects to the R&R’s findings that
ineffective assistance of appellate counsel and ineffective assistance of post-conviction
counsel do not excuse procedural default. Nevertheless, this Court holds that the R&R
was correct in its findings.
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Failure to Argue the Effects of SB 1449

In Davila v. Davis, 137 S.Ct. 2058, 2066 (2017), the Supreme Court held that
claims of ineffective assistance of appellate counsel cannot provide cause to excuse
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procedural default. Thus, to the extent Petitioner is arguing that his appellate counsel was
ineffective for not arguing SB 1449 would have been a basis to reverse Petitioner’s
conviction, that claim of ineffective assistance of appellate counsel cannot be cause to
overcome Petitioner’s failure to exhaust the merits of his SB 1449 claim.

Petitioner’s claim regarding the merits of SB 1449 is defaulted without excuse.
Furthermore, Petitioner failed to exhaust an independent claim of ineffective assistance of
appellate counsel (in a procedurally proper manner). Thus, any ineffective assistance of
appellate counsel claim is also defaulted without excuse.

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Thus,

2.

Failure to Argue Ineffective-Assistance-of-Trial-

Counsel
The Supreme Court announced a narrow exception to the Coleman rule in
Martinez v. Ryan, holding that where post-conviction counsel fails to raise ineffectiveassistance-of-trial counsel as a claim—in states where PCR is the first opportunity to
make such a claim—a Petitioner seeking habeas relief is not procedurally barred from
review. Martinez v. Ryan, 566 U.S. 1 (2012). Under Martinez, a petitioner may establish
cause for the procedural default of an ineffective assistance of trial counsel claim “by
demonstrating two things: (1) ‘counsel in the initial review collateral proceeding, where
the claim should have been raised, was ineffective under the standards of Strickland . . .’
and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has some merit.’” Cook
v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14).
The R&R finds that, even under this exception, Petitioner failed to demonstrate
that Petitioner’s PCR counsel was ineffective because the underlying ineffectiveassistance-of-trial-counsel claim was not substantial (Doc. 87 at 13), and this Court
agrees. As discussed above, because Petitioner failed to demonstrate a reasonable
probability of a different outcome if the burden of proving self-defense switched to the
prosecution, Petitioner failed to establish prejudice under Strickland, and the ineffective-

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assistance-of-trial-counsel claim is not substantial as required by Martinez.3

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ii.

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Fundamental Miscarriage of Justice-Actual Innocence

A federal court may review the merits of a procedurally defaulted claim if the
petitioner demonstrates that failure to consider the merits of that claim will result in a
“fundamental miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 327 (1995). A
“fundamental miscarriage of justice” occurs when “‘a constitutional violation has
probably resulted in the conviction of one who is actually innocent.’” Id. (citing Murray,

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477 U.S. at 496). Petitioner does not object to the R&R’s finding that Petitioner’s
procedural default is not overcome by a showing of actual innocence (Doc. 87 at 20–21);
therefore, this Court accepts the R&R’s analysis.
V.

Merits Review
Under a merits review, the R&R concludes that Petitioner’s self-defense claims

fail as a matter of federal law. (Doc. 87 at 25). In his Amended Petition (Doc. 5),
Petitioner argues he was wrongfully convicted because the burden of proof at his jury
trial required him to prove self-defense by a preponderance of evidence, in violation of
the Fifth, Sixth, and Fourteenth Amendments. The R&R finds that because the
Constitution does not prohibit states from requiring defendants to prove self-defense,

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Petitioner’s claim that the State improperly required him to prove self-defense is not

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cognizable on habeas review. Petitioner objects by arguing that the reasoning in support

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of the finding was erroneous. (Doc. 98 at 16-17). This Court disagrees with Petitioner.

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A.

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A federal court may not grant a writ of habeas corpus to a state prisoner on a claim

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adjudicated on the merits in state court proceedings unless the state court reached a

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decision contrary to clearly established federal law, or one involving an unreasonable

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Law

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According to the Supreme Court in Davila v. Davis, the Martinez exception only
extended to ineffective assistance of post-conviction counsel for failing to argue
ineffective assistance of trial counsel, not a failure of post-conviction counsel to argue
ineffective assistance of appellate counsel. Davila, 137 S. Ct. at 2065-67. Therefore, as
discussed above, such a claim of ineffective assistance of appellate counsel would also
not excuse Petitioner’s procedural default.
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application of clearly established federal law, or unless the state court decision was based

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on an unreasonable determination of the facts in light of the evidence presented in the

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state court proceeding. See 28 U.S.C. § 2254(d); Mitchell v. Esparza, 540 U.S. 12, 14

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(2003).
A state court's decision is “contrary to” our clearly established
law if it applies a rule that contradicts the governing law set
forth in our cases or if it confronts a set of facts that are
materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from our precedent.

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Mitchell, 540 U.S. at 14 (internal citations and quotations omitted).
On collateral review, if the court determines that the decision was contrary to
federal law, the next inquiry is whether the error had substantial and injurious effect or
influence. Fry v. Pliler, 551 U.S. 112, 116 (2007).
B.

Analysis

Here, Petitioner argues that his failure to receive the benefit of a retroactive

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change in state law regarding the burden of proof for self-defense violated his rights

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under the Fifth, Sixth, and Fourteenth Amendments. Petitioner’s argument is essentially

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three-fold: (1) that Petitioner was deprived of a fair trial because the jury received

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incorrect jury instructions, (2) Petitioner was denied his right to the effective assistance of

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counsel, and (3) Petitioner was deprived of fair trial because the burden of proof under

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the former law was unconstitutional.

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i.

Jury Instructions

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The R&R concludes that the retroactive effect of SB 1449 was an issue of state

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law rather than federal law and is therefore not cognizable under habeas review; this

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Court agrees. Here, when the jury deliberated, the jury instructions reflected the correct

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law at the time. Petitioner’s claim regarding incorrect jury instructions arose only after

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SB 1449’s enactment and due to its retroactive effect. This retroactive law was solely the

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product of the Arizona legislature and the enforcement of that law falls within the

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purview of the state, not the federal courts. See La Rue v. McCarthy, 833 F.2d 140, 142

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(9th Cir. 1987) (“The retroactivity of a state change of law is a state question and the

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federal Constitution has no voice upon the subject.”)

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Additionally, even if the instructions were considered incorrect, the mere fact of a

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state law error in jury instructions is an insufficient basis for federal habeas relief. See

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Estelle v. McGuire, 502 U.S. 62, 71–72 (1991). Incorrect jury instructions may provide a

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basis for obtaining habeas relief only where “‘the ailing instruction by itself so infected

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the entire trial that the resulting conviction violates due process.’ ” Estelle, 502 U.S. at 72

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(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Thus, in order to grant habeas

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relief on the basis of incorrect jury instructions, this Court must find that: (1) the incorrect

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instructions created constitutional error and (2) the constitutional error was not harmless.

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See Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993); Estelle, 502 U.S. at 72;

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Evanchyk v. Stewart, 340 F.3d 933, 939 (9th Cir. 2003). To determine whether or not an

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error is harmless, the Court must assess whether the error resulted in “actual prejudice.”

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See Brecht, 507 U.S. at 637–38.

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The instruction at issue here did not so infect the trial as to amount to a due
process violation. On the contrary, here the jury was also instructed that “[e]ven though a
person is justified in threatening or using physical force or deadly physical force against
another, if in doing so such person recklessly injures or recklessly kills an innocent third
person, the justification afforded is unavailable in a prosecution for the reckless injury or
reckless killing of the innocent third person.” (Doc. 65-8, Ex. UU, at 208). Petitioner shot
an AK-47 into traffic and killed an innocent bystander; and as discussed above, such
conduct was sufficiently reckless that the jury reasonably concluded that the justification
of self-defense was unavailable to Petitioner. Accordingly, because the self-defense
justification was unsupported by the facts, a retroactive change in law regarding the
burden of proof of a self-defense claim would not have affected Petitioner’s conviction.
Therefore, any error that may or may not have existed did not result in actual prejudice
against Petitioner and was therefore harmless.
ii.

Ineffective Assistance of Counsel

Petitioner’s claim of ineffective assistance of trial counsel likewise fails on its
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merits. Under Strickland v. Washington, an ineffective assistance claim has two

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components: (1) a petitioner must show that counsel’s performance was deficient, and (2)

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that the deficiency prejudiced the defense. 466 U.S. at 687. In order to show prejudice,

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Petitioner “must show that there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different. A

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reasonable probability is a probability sufficient to undermine confidence in the

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outcome.” Strickland, 466 U.S. at 694. Here, Petitioner’s actions resulted in the reckless

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killing of a third-party and, as discussed above, Petitioner failed to demonstrate a

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reasonable probability of a different outcome if the burden of proving self-defense

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switched to the prosecution; thus, Petitioner failed to establish prejudice under Strickland.

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Further, as discussed above, counsel’s performance was not deficient because the jury

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instructions were correct at the time of trial.

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iii.

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Burden of Proof

The R&R concludes that Petitioner’s claims were not cognizable under habeas
review because the Supreme Court has recognized that requiring a defendant to bear the
burden of proving an affirmative defense does not violate the Constitution, and this Court
agrees. See Martin v. Ohio, 480 U.S. 228 (1987) (holding that jury instructions which
placed on the defendant the burden of proving self-defense by a preponderance of
evidence did not violate due process where jury was instructed that it must find that state
had proved all elements of crime beyond a reasonable doubt); see also Smith v. United
States, 568 U.S. 106, 113 (2013) (“The usual rule that a defendant bears the burden of
proving affirmative defenses is justified by a compelling, commonsense intuition[.]”);
Gonzalez v. Ryan, 551 F. App’x. 909, 913-14 (9th Cir. 2014) (holding that states do not
violate the Constitution if they place the burden of proof for self-defense on the
defendant). Thus, Petitioner’s challenge to the jury instructions as unconstitutional, under
the former version of the law, also fails on the merits.
VI.

Conclusion
Based on the foregoing,
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IT IS ORDERED that the Report and Recommendation (Doc. 87) is accepted.

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The objections (Doc. 98) are overruled. The Clerk of the Court shall enter an amended

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judgment (reflecting today’s date) denying and dismissing the Amended Petition, with

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prejudice.

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IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing

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Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a

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certificate of appealability because dismissal of portions of the petition is based on a plain

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procedural bar and jurists would not find this Court’s procedural ruling debatable, see

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Slack v. McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not made a substantial

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showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2).
Dated this 11th day of June, 2018.

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