Nichols v. Katavich
Filing
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ORDER Denying Petition For Writ Of Habeas Corpus, signed by Magistrate Judge Sandra M. Snyder on 3/23/2016. CASE CLOSED.(Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ERIC LAVELLE NICHOLS,
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Petitioner,
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ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS
v.
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CASE NO. 1:14-CV-1880 SMS
JOHN KATAVICH, WARDEN,
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Respondent.
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Petitioner Eric Lavelle Nichols is a state prisoner proceeding pro se and in forma pauperis
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with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. This matter was
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stayed for a period of time to allow Petitioner to exhaust his state remedies. Docs. 9, 11. In
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February 2015, the stay was lifted pursuant to Petitioner’s notice to proceed and Petitioner filed an
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amended petition. Docs. 12-13, 15-17. This Court screened the amended petition and, without
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addressing the merits, concluded that it was not plain from the allegations that Petitioner is not
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entitled to relief and directed Respondent to file a response. Doc. 18. Respondent filed a motion to
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dismiss, which was granted with leave to amend. Docs. 23-24. Petitioner filed an amended
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petition. Doc. 25. Respondent filed an answer. Doc. 26. Petitioner did not file a reply. The parties
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have consented to magistrate judge jurisdiction. Docs. 6, 21. The Court now addresses the merits
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of the petition.
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I.
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BACKGROUND
Petitioner was convicted by a jury of evading a police officer in violation of California
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Vehicle Code § 2800.2.1 The trial court sentenced Petitioner to a term of ten years. The
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This brief factual background is summarized from the California Court of Appeals opinion.
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prosecution presented evidence that a California Highway Patrol (“CHP”) officer observed a black
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SUV with a single occupant speeding down a city street. The officer turned on the patrol vehicle’s
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lights and siren. The SUV went through a parking lot, back onto the street, ran a stop sign and a
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red traffic light, and turned a corner. The officer turned the same corner and saw the SUV crashed
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into a curb with the wheel buckled under and the driver’s door open. The SUV was unoccupied,
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but the officer found a cell phone displaying Petitioner’s first name and a digital camera
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containing pictures of Petitioner and the SUV. Residents in the area called the police and told
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them that Petitioner came from the side of the house and seated himself on a chair on the porch.
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On the trial date in August 2010, Petitioner indicated his intent to call a Lajena Bolton as a
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witness who was to testify that she was driving the vehicle. She was appointed counsel and chose
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to invoke her Fifth Amendment right against self-incrimination. The trial court granted a
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continuance due to a dispute about production of recorded phone calls between Petitioner and Ms.
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Bolton. In September 2010, the trial court granted Petitioner’s motion for appointment of a new
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attorney. The trial was continued twice, and trailed to March 2011.
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On the March 21, 2011 trial date, the trial court denied defense counsel’s motion to
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withdraw as counsel based on a conflict of interest. On March 23, 2011, the trial court denied
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Petitioner’s second motion for appointment of a new attorney. On March 24, 2011, defense
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counsel withdrew a motion in limine to present Ms. Bolton’s statements because Ms. Bolton was
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unavailable as a witness. Petitioner made a motion to represent himself at trial and assured the trial
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court that he was ready to proceed with trial that day. The trial court explained the risks of self-
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representation and advised Petitioner that he could not change his mind and obtain a continuance
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to obtain an attorney in the middle of trial. The trial court explained that Petitioner’s witnesses
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need to be present when the prosecution rested. Petitioner stated that he “just got this case today,”
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but the trial court advised him that he would not be grated a continuance because he was
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unprepared. The prosecution played recorded phone calls between Petitioner and Bolton in which
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Petitioner seemed to be coaching Bolton to tell a fabricated story. Petitioner presented no defense
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evidence and was convicted.
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Petitioner appealed his conviction and brings the instant petition for writ of habeas corpus
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on the ground that the trial court violated due process by its improper denial of a continuance. The
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California Supreme Court denied review. Petitioner now argues that he was denied a fair trial
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because did not have an opportunity to review all the evidence in his former attorney’s possession
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or to contact or locate a witness.
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II.
STANDARD OF REVIEW
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of
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the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5
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(1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only “extreme
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malfunctions” in state criminal justice proceedings. Id. Under the Antiterrorism and Effective
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Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus
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filed after its enactment, a petitioner can prevail only if he can show that the state court’s
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adjudication of his claim:
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(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;
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(2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
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28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S.
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362, 413 (2000). “By its terms, § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’
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in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2).” Harrington v.
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Richter, 562 U.S. 86, 98 (2011).
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The AEDPA standard is difficult to satisfy since even a strong case for relief does not
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demonstrate that the state court’s determination was unreasonable. Harrington, 562 U.S. at 102.
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“A federal habeas court may not issue the writ simply because the court concludes in its
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independent judgment that the relevant state-court decision applied clearly established federal law
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erroneously or incorrectly.” Lockyer, 538 U.S. at 75-76. “A state court’s determination that a
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claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on
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the correctness of the state court’s decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v.
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Alvarado, 541 U.S. 652, 664 (2004)). Put another way, a federal court may grant habeas relief
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only when the state court’s application of Supreme Court precedent was objectively unreasonable
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and no fair-minded jurist could disagree that the state court’s decision conflicted with Supreme
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Court’s precedent. Williams, 529 U.S. at 411.
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III.
DISCUSSION
Petitioner argues that his right to due process was violated when the trial court denied his
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request for continuance in the middle of trial, shortly before the prosecution’s conclusion. The
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California Court of Appeal affirmed, finding that the trial court did not abuse its discretion in
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granting Petitioner’s motion for self-representation on condition that he proceed without delay, or
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in requiring Petitioner to proceed without a continuance. The Court of Appeal found that, under
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the circumstances, proceeding without a continuance was not a violation of due process. The Court
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now considers whether fairminded jurists could agree that the Court of Appeal’s arguments are
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consistent with clearly established law as determined by the Supreme Court.
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A. Applicable Law
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The due process clause of the Fourteenth Amendments requires that “one charged with
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contempt of court be advised of the charges against him, have a reasonable opportunity to meet
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them by way of defense or explanation, have the right to be represented by counsel, and have a
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chance to testify and call other witnesses in his behalf.” In re Oliver, 333 U.S. 257, 275 (1948).
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Regarding a criminal defendant’s right to self-representation, Faretta v. California, 422
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U.S. 806 (1975), found: “The Sixth Amendment as made applicable to the States by the
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Fourteenth guarantees that a defendant in a state criminal trial has an independent constitutional
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right of self-representation and that he may proceed to defend himself without counsel when he
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voluntarily and intelligently elects to do so.” Faretta, 422 U.S. at 806. “[A defendant] should be
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made aware of the dangers and disadvantages of self-representation, so that the record will
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establish that he knows what he is doing and his choice is made with eyes open.” Id. at 835
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(internal quotations and citations omitted).
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“Where a defendant untimely invokes his right to self-representation, no clearly established
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decision of the Supreme Court forbids a state court from requiring him to elect between
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grudgingly proceeding with counsel or proceeding pro se without additional time to prepare.”
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Pritchett v. Franke, 621 Fed. Appx. 489, 490-91 (9th Cir. 2015). Trial courts have discretion to
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deny a request for a continuance even if the defendant “fails to offer evidence or is compelled to
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defend without counsel.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964). “There are no mechanical
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tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The
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answer must be found in the circumstances present in every case, particularly in the reasons
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presented to the trial judge at the time the request is denied. Id. at 590.
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B. Analysis
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Here, Petitioner has not demonstrated that the denial of the continuance prevented him
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from having a reasonable opportunity to defend himself against the charges against him or
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otherwise violated of due process. Petitioner invoked his right to self-representation several days
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into trial and shortly before the prosecution rested. His election to self-represent was voluntarily
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and intelligently made. The trial court advised Petitioner of the hazards of self-representation,
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including that he would not be able to obtain a continuance to obtain a new trial. Petitioner assured
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the trial court that he was ready to proceed with trial that day. On the same day, Petitioner
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protested, indicating that he wanted more time. As discussed above, there is no established
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Supreme Court law that forbids a state court from requiring a defendant who untimely invoked his
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right to self-representation to proceed without additional time. In its sound discretion, the trial
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court required Petitioner to proceed with trial. The trial had already been continued from August
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2010 to September 2010 and then to March 2011. Petitioner had been made aware of his prior
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attorney’s arguments and evidence, including the unavailability of Ms. Bolton as a witness to
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testify that she was driving the vehicle, and the evidence against him. Hence, under the
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circumstances of this case, the trial court’s denial of a continuance was not arbitrary and did not
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violate due process.
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Further, Petitioner fails to demonstrate that the denial of the continuance had any effect on
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the outcome of his trial. Trial errors are subject to a harmless error test, which assesses the
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likelihood that the error “materially affected the deliberations of the jury.” Holloway v. Arkansas,
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435 U.S. 475, 490 (1978). On habeas review, relief may be granted if the trial error “had
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substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.
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Abrahamson, 507 U.S. 619, 623 (1993)(internal citations and quotations omitted). Here,
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Petitioner’s witness had invoked her right against self-incrimination and would not testify at trial
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that she had been driving the vehicle. Moreover, the prosecution played recorded phone
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conversations between Petitioner and his witness in which he coached her to tell a fabricated story
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about who was driving the vehicle. After the prosecution rested, Petitioner did not present any
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defense evidence. These facts indicate that a continuance to review his former attorney’s evidence
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and contact witnesses after the prosecution had rested would not likely have affected the outcome
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of the trial.
In sum, the Court of Appeals decision that the trial court’s denial of a continuance did not
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violate Petitioner’s due process or Sixth Amendment rights was not contrary to, and did not
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involve an unreasonable application of, clearly established federal law, nor was it based on an
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unreasonable determination of the facts in light of the evidence presented in the state court
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proceeding.
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IV.
APPEALABILITY
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For the reasons set forth above, Petitioner has not shown “that jurists of reason would find
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it debatable whether the petition states a valid claim of the denial of a constitutional right [or] that
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jurists of reason would find it debatable whether the district court was correct in its procedural
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ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Hence, the Court declines to issue a
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certificate of appealability.
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V.
ORDER
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Based on the foregoing, it is ORDERED that:
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1. The petition for writ of habeas corpus be DENIED;
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2. Judgment be ENTERED for Respondent; and
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3. The Court DECLINE to issue a certificate of appealability.
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IT IS SO ORDERED.
Dated:
March 23, 2016
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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