Black v. Superintendent

Filing 24

OPINION AND ORDER: The Court DENIES the petition 1 ; and DENIES the petitioner a certificate of appealability. Signed by Judge Rudy Lozano on 5/17/2016. (lhc)(cc: Black)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CAYLIN PATRICK BLACK,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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)
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Case No. 2:14-CV-423

OPINION AND ORDER
Caylin Patrick Black, a pro se prisoner, filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his
conviction and 40 year sentence by the Grant Superior Court on
September 1, 2009, under cause number 27D02-0802-FA-14. (DE 1.)

BACKGROUND
In deciding this habeas petition, the Court must presume the
facts set forth by the state courts are correct. 28 U.S.C. §
2254(e)(1). It is Black’s burden to rebut this presumption with
clear and convincing evidence. Id. On direct appeal, the Indiana
Court of Appeals set forth the facts surrounding Black’s offense as
follows:
On September 25, 2007, the Grant County JEAN team
drug task force conducted a controlled buy of cocaine
from Black. Marion Police Department Detective Ross Allen
was the lead detective, while Marion Police Department
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Detective Sergeant Mark Stefanatos and Grant County
Sheriff’s Department Lieutenant Michael Andru also
participated in the operation. They used a confidential
informant, Maurice Rogers, to select the dealer. Rogers
was working with the police in exchange for the dismissal
of three class B felony cocaine delivery charges. The
officers equipped Rogers with a camera and a listening
device, searched him prior to the buy, provided him with
five hundred dollars of buy money, and dropped Rogers off
in Black’s neighborhood. Rogers had telephoned Black in
advance to arrange the buy. Once there, Rogers met with
Black, went inside Black’s home, gave him the buy money,
and Black gave Rogers the cocaine. The cocaine weighed
6.94 grams. The transaction was recorded.
The State charged Black with one count of dealing in
cocaine as a class A felony and filed an habitual
offender enhancement. A jury found Black guilty of
dealing in cocaine as a class A felony and the State
dismissed the habitual offender enhancement. The trial
court sentenced Black to a term of forty years executed.
Black v. State, Cause No. 27A04-0909-CR-501 (Ind. Ct. App. June 10,
2008); DE 8-5.
After his conviction, Black appealed, arguing: (1) his right
to a speedy trial was violated; (2) the trial court improperly
limited cross-examination of the confidential informant; (3) the
prosecutor improperly withheld impeachment evidence violating due
process; and (4) trial counsel was ineffective for failing to
object to the admission of the cocaine. (DE 8-3.) The Indiana Court
of Appeals affirmed Black’s conviction and sentence. (DE 8-5.)
Black then sought transfer from the Indiana Supreme Court, arguing:
(1) the State violated Indiana Criminal Rule 4; (2) the trial court
improperly limited cross-examination of the confidential informant;
(3) the court of appeals erred when it found Black’s claim under

-2-

Brady

v.

Maryland

to

be

waived;

and

(5)

trial

counsel

was

ineffective for failing to object to the admission of the cocaine.
(DE 8-6.) The Indiana Supreme Court denied transfer.
On March 23, 2012, Black filed an amended petition for postconviction relief in State court. (DE 8-7; 8-8.) After a hearing,
the

post-conviction

court

denied

Black’s

request

for

post-

conviction relief. (DE 6-1; DE 8-8.) Black appealed, arguing that:
(1) the State failed to disclose the confidential informant’s prior
theft

conviction;

(2)

newly

discovered

evidence

that

the

confidential informant had a mental illness warrants a new trial;
(3) the trial court improperly limited cross examination of the
confidential informant. (DE 8-9; 8-10.) The Indiana Court of
Appeals

denied

Black’s

appeal.

(DE

8-9;

8-12.)

Black

sought

transfer to the Indiana Supreme Court, claiming: (1) the trial
court improperly limited cross examination of the confidential
informant; and (2) the State failed to disclose a prior theft
conviction of the confidential informant in violation of Brady v.
Maryland. (DE 8-13.) The Indiana Supreme Court denied transfer. (DE
8-9.)
On November 17, 2014, Black filed this federal habeas petition
challenging his conviction and sentence, arguing that: (1) the
trial

court

improperly

limited

cross-examination

of

the

confidential informant; (2) the trial court violated his speedy
trial right under Indiana Criminal Rule 4(A); (3) the State

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improperly delayed disclosure of the confidential informant’s
criminal history; (4) the State failed to disclose the confidential
informant’s

past

theft

conviction;

(5)

trial

counsel

was

ineffective for failing to object to the admission of the cocaine;
(6) trial counsel was ineffective for failing to investigate the
confidential informant’s mental health history; and (7) trial
counsel was ineffective for conceding Black’s guilt during closing
argument. (DE 1.)

DISCUSSION
Black’s

petition

is

governed

by

the

provisions

of the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA allows a
district court to issue a writ of habeas corpus on behalf of a
person in custody pursuant to a state court judgment “only on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a). The
court can grant an application for habeas relief if it meets the
requirements of 28 U.S.C. § 2254(d), which provides:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
(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; or
(2) resulted in a decision that was based on an
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unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
[This] standard is intentionally difficult to meet. We
have explained that clearly established Federal law for
purposes of §2254(d)(1) includes only the holdings, as
opposed to the dicta, of this Court’s decisions. And an
unreasonable application of those holdings must be
objectively unreasonable, not merely wrong; even clear
error will not suffice. To satisfy this high bar, a
habeas petitioner is required to show that the state
court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.
Woods v. Donald, 575 U.S. __, __; 135 S.Ct. 1372, 1376 (2015).
(quotation marks and citations omitted).

Ground One
Black claims that he was denied his Sixth Amendment right to
confront

witnesses

when

the

trial

court

limited

his

cross

examination of the confidential informant, Maurice Rogers. He
argues that the trial court should have allowed him to ask Rogers
about the possible penalties Rogers would have faced - including
with his habitual offender status - had he not entered into an
agreement with the State to act as a confidential informant. Black
claims the jury could have had a different impression of Rogers’
credibility had they been told about these potential penalties.
The

Sixth

Amendment

to

the

United

States

Constitution

guarantees the right of an accused in a criminal prosecution to be

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confronted by the witnesses against him. Davis v. Alaska, 415 U.S.
308, 315 (1974) (citing U.S. Const. amend VI). The right to
confront includes the opportunity of cross-examination. Delaware v.
Van Arsdall, 475 U.S. 673, 678-79 (1986). Exposing a witness’
motivation in testifying is an “important function” of cross
examination. Id. Yet, “trial judges retain wide latitude insofar as
the confrontation clause is concerned to impose reasonable limits
on . . . cross-examination based on concerns about, among other
things,

harassment,

prejudice,

confusion

of

the

issues,

the

witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Id. at 679.
The Indiana Court of Appeals determined that Black’s challenge
to the limits the trial court placed on his cross-examination of
Rogers had no merit.
Further, the trial court did not abuse its discretion by
limiting Black’s ability to introduce evidence of
Rogers’s potential sentencing exposure had he not chosen
to work for the State as a confidential informant. The
sentence Rogers potentially faced could have been
anything ranging between six and sixty years without
consideration of an habitual offender enhancement. Black
had already established Rogers’s bias and his desire to
help the State in order to avoid a prison sentence. Even
if we were to conclude that the trial court abused its
discretion by so limiting Black’s cross-examination of
Rogers, a conclusion we do not reach here, any error
would be harmless given the strength of the State’s case
against Black.
(DE 8-5 at 8).
The Indiana Court of Appeals’ decision was neither contrary
to,

nor

involved

an

unreasonable
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application

of,

clearly

established federal law. As the court of appeals noted, and
consistent with Supreme Court precedent, the trial court has wide
latitude to impose reasonable limits on cross-examination. The
court of appeals analyzed the decision of the trial court and
determined that the trial court allowed cross examination in a
manner

that

exposed

Rogers’

bias

and

comported

with

Black’s

confrontation rights. The court of appeals noted that the trial
court decided to limit the cross examination because it was
speculative and because bias had already been established. The
reasons given were all consisted with established federal law.
Moreover,

the

trial

court’s

decision

to

limit

cross

examination is supported by the facts of the case. At trial,
defense counsel questioned Rogers regarding the potential penalties
he faced before agreeing to be a confidential informant. The jury
heard that Rogers faced three felony drug charges and that he was
required to assist the police in Black’s arrest in exchange for
dismissal of those charges. (Tr. 318-19; 366-383). It is unclear
what further probative value would be achieved in providing the
jury with additional information regarding maximum penalties faced
for being a habitual offender. As a result, the court cannot say
the that limitation on cross examination was improper or a basis
for habeas relief.

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Ground Two
Black claims that his Sixth Amendment right to a speedy trial
was violated when the court took over seventeen months after his
arrest to be tried.1 A Sixth Amendment Speedy trial claim is
evaluated by applying a balancing test:
That four-part test considers: whether delay before trial
was uncommonly long, whether the government or the
criminal defendant is more to blame for that delay,
whether, in due course, the defendant asserted his right
to a speedy trial, and whether he suffered prejudice as
the delay's result.
Ashburn v. Korte, 761 F.3d 741, 751-752 (7th Cir. Ill. 2014)
(citations and quotations omitted). A delay of more than one year
is presumptively prejudicial, Doggett v. United States, 505 U.S.
647, 651 (1992), but depending on the circumstances, delays of more
than five years may not be a denial of a defendant’s constitutional
right to a speedy trial. Barker v. Wingo, 407 U.S. 530 (1972).
The Indiana Court of Appeals, citing to above the four-part
test, determined that no speedy trial violation occurred:
Our review of the record before us leads to the
conclusion that Black’s constitutional right to a speedy
trial was not violated. The delay between the time of
Black’s arrest and his trial is attributable to
congestion of the court’s calendar and Black’s own
request for a continuance. The prosecution had no reason
for delay. Black did not object to the August 10, 2009
trial date until July 6, 2009. Further, Black has failed

1

To the extent Black argues that his speedy trial rights under Rule
4(A) were violated, that is not cognizable. Federal habeas relief is only
available to a person in custody in violation of federal law. 28 U.S.C. §
2254(a). Federal habeas relief is unavailable to remedy errors of state law.
Dellinger v. Brown, 301 F.3d 758, 764 (7th Cir. 2002).

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to establish prejudice. We conclude that Black has failed
to show that his constitutional right to a speedy trial
was violated.
(DE 8-5 at 6.)
The Indiana Court of Appeals’ decision was neither contrary
to,

nor

involved

an

unreasonable

application

of,

clearly

established federal law. As the court of appeals noted, and
consistent with Supreme Court precedent, the speedy trial analysis
is a fluid test. In analyzing this test, the court of appeals
considered the length of the delay, the defendant’s late assertion
of his right to a speedy trial, the fact that the government was
not to blame for the delay and the absence of any prejudice
suffered by the defendant. The reasons given were all consisted
with established federal law. Black has provided nothing to refute
the court of appeals decision. Therefore, there is no basis to
grant habeas relief.

Ground Three
Black argues that the State violated his due process rights
when it did not provide him with Rogers’ criminal history until ten
days before trial. Such a delay, Black contends, is violative of
the constitution.
“When the government deliberately or inadvertently withholds
evidence that is material and favorable to the defense, it violates
the defendant’s right to a fair trial, which is guaranteed by due

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process.” Ben-Yisrayl v. Buss, 540 F.3d 542, 552 (7th Cir. 2008)
(citing Brady v. Maryland, 373 U.S. 83 (1963).) The government has
a

duty

to

regardless

disclose
of

whether

impeaching
it

is

or

exculpatory

specifically

information,

requested

by

the

defendant. Id. This includes information about an agreement, either
express or tacit, between the prosecution and a state witness.
Wisehart v. Davis, 408 F.3d 321, 324 (7th Cir. 2008).
The Indiana Court of Appeals found that Black waived this
claim. Nevertheless, it went on and properly identified these
governing

principles

in

resolving

Black’s

Brady

claim

and

determined no Brady violation existed. (DE 8-5 at 9-10.)
The defense not only knew about the existence of Rogers’s
prior criminal history before trial, but attempted to
have Rogers’s entire criminal history introduced as
Defendant Exhibit E.
The record presented to us on appeal fails to establish
that the State suppressed or failed to disclose Rogers’s
criminal record. The record shows that the State filed
discovery notices and turned over discovery, although
what items were included in that discovery is not clear.
Nonetheless, assuming without deciding that the State
possessed the criminal records, but did not disclose
them, Black has failed to establish a Brady violation. If
favorable evidence becomes known to the defendant before
or during the course of a trial, Brady is not implicated.
(DE 8-5 at 10.) (citations omitted.) The Indiana Court of Appeals’
decision was neither contrary to, nor involved an unreasonable
application of, clearly established federal law. Indeed, here,
Black’s Brady claim - premised on not receiving the confidential
informant’s criminal history until ten days before trial - is not
a Brady violation at all. See e.g. United States v. Kelly, 14 F.3d
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1169, 1176 (7th Cir. 1994) (finding that the prosecutor disclosing
Brady material before the conclusion of the government’s case-inchief does not violate due process). Therefore, this claim is not
a basis for habeas relief.

Fourth Claim
Black raises a second Brady claim based on the State’s failure
to disclose Rogers’ 1999 conviction for theft. To prevail on a
Brady claim, a defendant must establish: (1)that the evidence was
suppressed by the prosecution; (2) that the evidence was favorable
to the defense; and (3) that the evidence was material to an issue
at trial. United States v. Grintjes, 237 F.3d 876, 880 (7th Cir.
2001) To be material to an issue, “there must be a reasonable
probability that, had the evidence been disclosed, the result of
the proceeding would have been different.” United States v. Bagley,
473 U.S. 667, 682 (1985).
The Indiana Court of Appeals correctly set out the applicable
legal standards. (DE 8-5 at 9). In doing so, the court determined
that:
Black has also failed to show that the 1999 theft
conviction was material to an issue at trial.
It
reasoned that Black was allowed to cross-examine Rogers,
within reasonable limits, about his criminal history and
that he was facing three class B felony charges when he
decided to work as a confidential informant for the
State. . .. There was no Brady violation here.
(DE 8-5 at 10.) Thus, the court concluded that even if defense

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counsel could have questioned Rogers on a ten year old theft
conviction, the outcome would not have been different.
The Indiana Court of Appeals’ decision was neither contrary
to,

nor

involved

an

unreasonable

application

of,

clearly

established federal law. Although Black claims that attacking
Rogers’ credibility with the theft conviction was necessary, the
jury

was

presented

with

significant

information

challenging

Rogers’s credibility. As the Respondent correctly notes, at trial
the defense pointed out:
(1) that the informant faced “serious” charges before
working as a confidential informant (Tr. 383); (2) that
the informant was doing what he had to do to avoid prison
time, in that he “desperately” did not want to go to
prison (Tr. 383); (3) that the informant is a heroin user
and / or heroin addict (Tr. 336); (4) that the informant
was required to assist in the arrest of Petitioner in
exchange for a reduction or dismissal of the charges he
faced (Tr. 337); (5) that the informant, and not the
police, selected the dealers he would buy from as a
confidential informant (Tr. 340); (6) that charges
against the confidential informant were indeed dismissed
(Tr. 340); and (7) that the confidential informant had
worked another time as a confidential informant, thus
establishing the inference of a lengthier criminal
history than the one established by the latter plea
agreement alone (Tr. 358, 362, 363).
(DE 8 at 19). Even without the 1999 theft conviction, Rogers’
credibility was sufficiently challenged. Thus, the court can not
say that further attacking Rogers’ credibility with the 1999 theft
conviction would have altered the outcome.
Moreover, while Black argues that his conviction rises and
falls on Rogers’ credibility, there is more evidence of Black’s

-12-

guilt in this case than just Rogers’ testimony. Law enforcement
equipped Rogers with a camera and a listening device to record a
drug purchase from Caylin Black. (Tr. 281-286). Officers also strip
searched him prior to the buy and provided Rogers with five hundred
dollars

($500)

of

buy

money

and

dropped

him

off

in

Black’s

neighborhood. (Tr. 318-327, 385-389, 392-402). After the police
dropped Rogers off near the site of the delivery, Rogers met with
Black outside of Black’s home, they then went inside the home. (Ex.
1) Rogers gave Black the $500 and Black gave Rogers cocaine. (Ex.
1; Tr. 324). Officers then picked Rogers up before he interacted
with anyone else. Even though the drug transaction itself was not
caught on camera, it is obvious that it took place. Rogers went
into Black’s home with $500 and no cocaine. He came out of Black’s
home

with

cocaine

and

no

money.

Because

of

this

additional

evidence, Black’s conviction did not hinge on Rogers’ credibility
alone. Thus, the admission of Rogers’ 1999 theft conviction would
not have altered the outcome of the trial and this ground is not a
basis for habeas relief.

Ground Five
Black contends that he received ineffective assistance of
counsel because trial counsel failed to challenge the weight of the
cocaine.

Under the Sixth Amendment, a criminal defendant is

entitled

to

“effective

assistance

-13-

of

counsel—that

is,

representation that does not fall below an objective standard of
reasonableness in light of prevailing professional norms.” Bobby v.
Van Hook, 558 U.S. 4, 16 (2009). To prevail on such a claim, the
petitioner must show that counsel’s performance was deficient and
that

the

deficient

performance

prejudiced

him.

Strickland

v.

Washington, 466 U.S. 668 (1984).
The Indiana Court of Appeals cited this standard and, upon
examining the record, found that
[D]uring the testimony of Detective Ross Allen, the State
moved to admit State’s Exhibit 3, the cocaine, and
Exhibit 5, the evidence sheet. Black’s trial counsel
objected to their admission on chain of custody grounds,
a discrepancy regarding the weight of the cocaine, and
the lack of evidence that the laboratory scales used to
weight the cocaine were certified. Black’s counsel made
the very argument that Black claims his counsel failed to
make. Trial counsel simply made the argument during the
State’s attempt to admit the evidence, and not earlier.
We conclude that Black has failed to establish that he
received ineffective assistance of counsel.
(DE 8-5 at 12.)
The Indiana Court of Appeals’ decision was correct. Black’s
counsel did object to the admission of cocaine based upon a
discrepancy of its weight. (Tr. 407-409). Because his counsel did
precisely what Black claims he did not do, this claim fails.

Grounds Six and Seven
In his final two grounds, Black alleges his trial counsel was
ineffective in two ways: (1) for failing to investigate Rogers’
mental health records; and (2) for admitting Black’s guilty during
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closing arguments. The respondent argues that both of these claims
are procedurally defaulted.
Before considering the merits of a habeas petition, a federal
court must ensure that the petitioner has exhausted all available
remedies in state court. 28 U.S.C. § 2254(b)(1)(A); Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). The exhaustion
requirement is premised on concerns of comity; the state courts
must

be

given

violations

of

the
their

first

opportunity

prisoner’s

to

federal

address

rights.

and

correct

O’Sullivan

v.

Boerckel, 526 U.S. 838, 845 (1999); Perruquet v. Briley, 390 F.3d
505, 514 (7th Cir. 2004). For that opportunity to be meaningful,
the petitioner must fairly present his constitutional claims in one
complete round of state review. Baldwin v. Reese, 541 U.S. 27,
30-31 (2004); Boerckel, 526 U.S. at 845.
The companion procedural default doctrine, also rooted in
comity concerns, precludes a federal court from reaching the merits
of a habeas petition when either: (1) the claim was presented to
the state courts and was denied on the basis of an adequate and
independent state procedural ground; or (2) the claim was not
presented to the state courts and it is clear those courts would
now find the claim procedurally barred under state law. Coleman v.
Thompson, 501 U.S. 722, 735 (1991); Perruquet, 390 F.3d at 514.
When a habeas petitioner fails to fairly present his claim to the
state courts and the opportunity to raise that claim has now

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passed, the claim is procedurally defaulted. Boerckel, 526 U.S. at
853-54.
The respondent claims that Black has not presented either of
these

claims

traverse,

in

Black

one

complete

admits

that

round
these

of

state

claims

review.

are

In

his

procedurally

defaulted. (DE 15-1 at 39). Black filed a 52-page traverse in
support of his petition, but he does not assert any basis for this
court to excuse his procedural default concerning his ineffective
assistance claim against his attorney for conceding his guilt
during closing arguments. (See DE 15-1.) He does, however, seek to
be excused from not raising his ineffective assistance claim for
failing to investigate Rogers’ mental health records. (Id. at 3951.) Black claims that he did not have enough information to raise
this issue on direct appeal. (Id. at 41). This does not explain,
however, why Black did not raise and exhaust the issue during his
post conviction proceedings. Indeed, he had these materials during
his post-conviction proceeding. Thus, he seemingly could have
raised the issue there. That is typically when such claims arise
anyway.
Assuming arguendo that Black could overcome the procedural
default of his claim pertaining to counsel’s ineffectiveness for
failing to investigate Rogers’ mental health history, the claim
would fail on the merits. Black must show there is a reasonable
probability that “but for counsel’s unprofessional errors, the

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result of the proceeding would have been different.” Strickland,
466

U.S.

at

694.

A

reasonable

probability

is

a

probability

“sufficient to undermine confidence in the outcome,” and it is not
enough “to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693. Instead, counsel’s errors
must be “so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id. at 687. Where it is expedient
to do so, the Court may resolve an ineffective assistance claim
solely on the prejudice prong, because if the petitioner cannot
establish

prejudice,

there

is

no

need

to

“grade”

counsel’s

performance. Id. at 697.
Here, Black claims that his counsel failed to investigate and
discover Rogers’ mental health records, which could have been used
to

impeach

Rogers’

testimony

and

establish

that

he

was

not

credible. To the extent Rogers had shortcomings as a witness, the
jury was made aware of many of them. Rogers acknowledged during
cross-examination that he was a former heroin addict. (Tr. 336.) He
also admitted to having been working as a confidential informant in
exchange for having his drug charges dismissed. (Tr. 337.) Rogers
also

admit

that

he

had

made

prior

inconsistent

statements

throughout this case. (Tr. 346-349.) And, defense counsel also
established that Rogers had some memory issues. (Tr. 347.) Despite
the evidence negatively impacting Rogers’ credibility, the jurors,
who had the opportunity to see and hear her testimony first-hand,

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chose to believe him.
Black believes if the jury would have heard about Rogers’
mental health history, which included drug and alcohol dependency
and a diagnosis of being mildly mentally retarded, the jury would
not have believed his testimony and Black would not have been
convicted. This Court disagrees.

To the extent the mental health

records would further diminish Rogers’ credibility as a witness,
the jury was already fully aware of many issues impacting his
credibility.

The

jury

nevertheless

chose

to

credit

Rogers’

testimony. This is likely in large part due to corroborating
testimony from officers and the electronic surveillance.
This Court cannot make a probabilistic determination that a
reasonable jury would reach a different result if it heard about
Rogers’ mental health history. See Whitlock v. Godinez, 51 F.3d 59,
64 (7th Cir. 1995) (petitioner did not establish actual innocence
based on new evidence that “add[ed] to the baggage” of the state’s
two principal witnesses, since the jury had been “well aware of
serious attacks upon the credibility” of these witness at trial).
While this type of circumstantial evidence might be “somewhat
probative,” it is not “direct evidence” of Black’s innocence like
eyewitness testimony or reliable physical evidence. See Whitlock,
51 F.3d at 64; Holmes v. Hardy, 608 F.3d 963, 968 (7th Cir. 2010)
(“troubling” new evidence impugning the credibility of state’s
witness did not establish actual innocence, since at best it

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established a “mere possibility” that a jury presented with the
evidence would have exonerated the petitioner, “not a probability,
as is required.”). Thus, this is not a ground for habeas relief.

Certificate of Appealability
As a final matter, pursuant to RULE 11 of the RULES GOVERNING
SECTION 2254 CASES, the Court must either issue or deny a certificate
of appealability in all cases where it enters a final order adverse
to the petitioner. To obtain a certificate of appealability, the
petitioner must make a substantial showing of the denial of a
constitutional right by establishing “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented

were

adequate

to

deserve

encouragement

to

proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks and citation omitted). For the reasons fully
explained above, some of Black’s claims are procedurally defaulted,
and he has not provided any meritorious basis for excusing his
default. As to his non-defaulted claims, Black has not made a
substantial showing of the denial of a constitutional right, nor
could jurists of reason debate the outcome of the petition or find
a reason to encourage him to proceed further. Accordingly, the
Court declines to issue Black a certificate of appealability.

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CONCLUSION
For the reasons set forth above, the Court:
(1) DENIES the petition (DE 1); and
(2) DENIES the petitioner a certificate of appealability.

DATED: May 17, 2016

/s/RUDY LOZANO, Judge
United States District Court

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