Jefferson v. Superintendent

Filing 18

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus by Petitioner Conway Jefferson; DENYING AS MOOT 14 MOTION for Extension of Time to File a Traverse by Petitioner Conway Jefferson; and DENYING Petitioner a certificate of appealability. Signed by Judge William C Lee on 3/4/2016. (cc: Petitioner) (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CONWAY JEFFERSON,
Petitioner,
v.
SUPERINTENDENT,
Respondent.

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CAUSE NO. 3:14-CV-1729 WL

OPINION AND ORDER
Conway Jefferson, a pro se prisoner, is serving a 50-year sentence for being convicted of
dealing cocaine in Marion County Superior Court. State v. Jefferson, 49G20-0402-FA-18942. He
filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Jefferson’s
claims are all either procedurally defaulted or fail on the merits, the petition is denied.

I.

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 Jefferson’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 Jefferson’s offenses as follows:
Indianapolis Police Officer Jeffrey McPherson received information from a
confidential informant and a DEA document from one of the detectives in his
office advising that [Petitioner] was selling cocaine in Indianapolis.
On February 2, 2004, Officer McPherson performed a trash pull at [Petitioner’s]
residence. Specifically, Officer McPherson pulled the trash from directly behind
[Petitioner’s] residence in an area “consistent with a trash collection agency
picking it up” on a collection day when trash cans placed out by other residents in
the neighborhood “were lined up all down the alley” for trash collection. Officer
McPherson searched the trash and found “a whole bunch of baggies with the

corners tore out of them” and marijuana, specifically “a couple of roaches, which
is the end of a marijuana cigarette that had been smoked.”
Based upon this information, Officer McPherson filled out a probable cause
affidavit. On February 3, 2004, Officer McPherson sought and received a search
warrant for [Petitioner’s] residence. That same day, the police executed the search
warrant and recovered marijuana, sixty-six grams of crack cocaine, a “weight
scale box,” sandwich bags, and handguns. During a patdown search of
[Petitioner], the police recovered multiple baggies of cocaine.
On February 6, 2004, the State charged [Petitioner] with dealing in cocaine as a
class A felony and possession of cocaine as a class C felony. On February 18,
2004, the search warrant and probable cause affidavit were filed with the trial
court clerk. On April 15, 2005, [Petitioner] filed a motion to suppress evidence
seized pursuant to the search warrant alleging that the affidavit was unreliable and
failed to establish probable cause. After a hearing, the trial court denied the
motion. On July 28, 2006, [Petitioner] filed another motion to suppress evidence
seized pursuant to the search warrant. On September 26, 2006, [Petitioner] filed
an addendum to his motion and argued that Officer McPherson did not have an
articulable, individualized suspicion to support a search of the trash and that the
results of the trash search could not be used to provide probable cause for the
search warrant. After a hearing, the trial court denied the motion.
At trial, Jefferson represented himself pro se and did not testify. During closing
argument, Jefferson stated that he had been a drug user but had changed his life
and admitted that the police had found drugs on him. The prosecutor objected on
the basis that Jefferson was testifying, and the trial court sustained the objections.
After the jury trial, the jury found Jefferson guilty as charged. The trial court
entered judgment of conviction only on the offense of dealing cocaine as a class
A felony due to double jeopardy concerns. The trial court sentenced Jefferson to
fifty years in the Department of Correction.
Jefferson v. State, 891 N.E.2d 77, 79-80 (Ind. Ct. App. 2008).
Jefferson appealed his conviction, arguing that the trial court erred in admitting the
evidence discovered pursuant to the search because the trash pull was unconstitutional and also
because the affidavit was not timely filed with the court. (DE 6-3.) In addition, Jefferson argued
that the trial court had improperly limited his ability to present a defense. (Id.) The appellate
court affirmed Jefferson’s conviction and sentence. (DE 6-5.) Jefferson sought review by the
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Indiana Supreme Court, raising only one claim; whether the trash pull during the execution of
the search warrant violated Indiana law. (DE 6-6.) The Indiana Supreme Court denied transfer.
(DE 6-2.)
On August 24, 2009, Jefferson filed a petition for post-conviction relief. Jefferson v.
State, No. 49G20-0402-PC-18942. (DE 6-7; DE 6-11.) Following an evidentiary hearing, the
trial court denied the petition. (DE 6-7.) Jefferson appealed, claiming: (1) trial counsel was
ineffective for failing to challenge the probable cause affidavit because it did not contain an oath
or affirmation and was untimely filed; (2) appellate counsel was ineffective for failing to raise a
speedy trial violation under Indiana Criminal Rule 4(C) and for not sufficiently challenging the
probable cause affidavit as it failed to contain an oath or affidavit; (3) Jefferson’s speedy trial
rights under Indiana Criminal Rule 4(C) were violated; and (4) the post-conviction court abused
its discretion in failing to grant Jefferson’s motion for a change of venue. (DE 6-8; DE 6-9.) The
Indiana Court of Appeals denied Jefferson’s appeal and affirmed the denial of post-conviction
relief. (DE 6-11.) Jefferson sought transfer with the Indiana Supreme Court raising two claims:
(1) appellate counsel was ineffective for failing to raise a speedy trial violation; and (2) appellate
counsel was ineffective for failing to challenge the probable cause affidavit for missing an
affidavit or oath and for being untimely filed. (DE 6-12.) The Indiana Supreme Court denied
transfer. (DE 6-8.)
On July 14, 2014, Jefferson filed this federal habeas petition raising claims that his trial
counsel was ineffective for: (1) failing to conduct an appropriate investigation into the facts and
circumstances of the case; (2) failing to challenge the untimely filed probable cause affidavit and
search warrant for Jefferson’s residence; (3) failing to request that the State disclose identifying

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information of State and Federal officials investigating Jefferson, the confidential informant, or
the D.E.A. document that identified Jefferson as a dealer of illegal drugs; and (4) failing to
establish the reliability of the information, credibility of the sources, and the factual basis for
information furnished by the police. He also alleges that his appellate counsel was ineffective
for: (1) failing to contact an attorney that represented Jefferson before trial; (2) failing to present
a cogent argument regarding the timing of the filing of the probable cause affidavit; (3) failing to
raise a speedy trial violation; and (4) failing to challenge the probable cause affidavit because it
did not contain an oath or affirmation. (DE 1.)

II.

ANALYSIS
This petition is governed by the provisions of the Anti-Terrorism and 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 unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.

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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 the first opportunity to address and correct
violations of their prisoner’s federal rights. 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 passed, the
claim is procedurally defaulted. Boerckel, 526 U.S. at 853-54.

A.

Procedurally Defaulted Claims
The respondent argues that all of Jefferson’s claims of trial counsel’s ineffectiveness as

well as Jefferson’s claim that appellate counsel was ineffective for not contacting his prior
attorney are procedurally defaulted because they were not presented in one complete round of
state review. It is undisputed that Jefferson did not raise any of these claims to the Indiana

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Supreme Court. (DE 6 at 9.) However, relying on Hogan v. McBride, 74 F.3d 144 (7th Cir.
1996), Jefferson claims that he was not required to do so because the court of appeals
adjudicated them on the merits. The law has changed since Hogan was decided. In 1998, the
United States Supreme Court issued its opinion in Boerckel, which held that a prisoner who fails
to present his claims in a petition for discretionary review to a state court of last resort has not
properly presented his claims to the state courts. 526 U.S. at 848. As a result, Jefferson was
required to present all of his claims to the Indiana Supreme Court before pursuing them here.
Because he did not raise these claims in one complete round of state review, they are
procedurally defaulted. Id. (a prisoner who fails to present his claims in a petition for
discretionary review to a state court of last resort has not properly presented his claims to the
state courts); Hough v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001) (petitioner who failed to
raise his claims in a petition to transfer with the Indiana Supreme Court procedurally defaulted
those claims).
In addition, Jefferson’s claim that appellate counsel was ineffective for failing to
challenge the probable cause affidavit on the basis that it was not timely filed was raised for the
first time before the Indiana Supreme Court in his petition to transfer. Indiana law forbids parties
from raising new claims in a petition to transfer, in a petition for rehearing, or in a reply brief.
See Donnegan v. State, 889 N.E.2d 886, 893 (Ind. Ct. App. 2008) (citing Bunch v. State, 778
N.E.2d 1285, 1290 n. 3 (Ind. 2002) (affirming that an issue not raised in the appellant’s principal
brief is waived); Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990) (finding that the
defendants waived an issue raised for the first time in their brief in support of petition to
transfer). Thus, this claim, too, is procedurally defaulted.

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A habeas petitioner can overcome a procedural default by showing both cause for failing
to abide by state procedural rules and a resulting prejudice from that failure. Wainwright v.
Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008), cert. denied,
129 S. Ct. 2382 (2009). Cause sufficient to excuse procedural default is defined as “some
objective factor external to the defense” which prevented a petitioner from pursuing his
constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). Jefferson filed a
55-page traverse1 in support of his petition, but he does not assert any basis for this court to
excuse his procedural default, and instead focuses on the merits of his claims. (See DE 15, 15-1.)
Because the claims are procedurally defaulted, the court is precluded from reaching them on the
merits in this proceeding.
A habeas petitioner may also overcome a procedural default by establishing that the
court’s refusal to consider a defaulted claim on the merits would result in a fundamental
miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006); Coleman, 501 U.S. at 750.
Under this narrow exception, the petitioner must establish that “a constitutional violation has
resulted in the conviction of one who is actually innocent of the crime.” Schlup v. Delo, 513 U.S.
298, 324 (1995). A petitioner who asserts actual innocence “must demonstrate innocence; the
burden is his, not the state’s . . . .” Buie v. McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003)
(emphasis in original). Jefferson does not demonstrate any such fundamental miscarriage of
justice would occur.
Because Jefferson does not show cause and prejudice for his failure to present these
claims in one complete round of state review or that any fundamental miscarriage of justice
1

On April 10, 2015, Jefferson filed a motion for an extension of time to file his traverse. (DE 14) However,
because he filed his traverse two weeks later, before the motion was ruled on, the motion is moot.

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would occur if the claims are not addressed, these claims are procedurally defaulted and cannot
be reviewed on their merits.

B.

Preserved Claims of Ineffective Assistance of Appellate Counsel
Jefferson has preserved two ineffective assistance of appellate counsel claims. He argues

that appellate counsel was ineffective for: (1) failing to raise a speedy trial violation; and (2)
failing to challenge the probable cause affidavit because it did not contain an oath or affirmation.
Under the Sixth Amendment, a criminal defendant is entitled to “effective assistance 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). A claim
of ineffective assistance of appellate counsel is also subject to the Strickland analysis. Howard v.
Gramley, 225 F.3d 784, 789-90 (7th Cir. 2000). On the deficiency prong, “[w]hen a claim of
ineffective assistance of counsel is based on failure to raise viable issues, the district court must
examine the trial court record to determine whether appellate counsel failed to present significant
and obvious issues on appeal.” Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). Appellate
counsel, however, is not required to argue every nonfrivolous issue; rather, counsel is entitled to,
and should, select for argument the strongest issues while omitting the rest. Jones v. Barnes, 463
U.S. 745, 751-52 (1983). “The failure of appellate counsel to raise an issue on appeal requires
the court to compare the issue not raised in relation to the issues that were raised; if the issue that
was not raised is ‘both obvious and clearly stronger’ than the issues raised, the appellate

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counsel’s failure to raise the neglected issue is objectively deficient.” Sanders v. Cotton, 398
F.3d 572, 585 (7th Cir. 2005) (citing Lee v. Davis, 328 F.3d 896, 900-01 (7th Cir. 2003)). On the
prejudice prong, the petitioner must demonstrate that if the argument had been raised, there is “a
reasonable probability that his case would have been remanded for a new trial or that the
decision of the state trial court would have been otherwise modified on appeal.” Howard, 225
F.3d at 790. Where the underlying argument has no merit, an ineffective assistance claim cannot
succeed, because “[f]ailure to raise a losing argument, whether at trial or on appeal, does not
constitute ineffective assistance of counsel.” Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).
This court’s review of the state court’s application of Strickland is not de novo. Because
Jefferson’s ineffective assistance of counsel claims were rejected in state court, the question is
not whether this court “‘believes the state court’s determination’ under the Strickland standard
‘was incorrect but whether the determination was unreasonable, a substantially higher
threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan,
550 U.S. 465, 478 (2007)). In addition, “because the Strickland standard is a general standard, a
state court has even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Id. (citing Youngblood v. Alvarado, 541 U.S. 652, 664 (2004)). This creates a “doubly
deferential” standard of review here. Id. With these principles in mind, each of Jefferson’s claims
will be examined.

1.

Appellate counsel’s failure to a raise speedy trial violation.2

2

In his petition, Jefferson attempts to argue that his appellate counsel was ineffective for not raising both his
federal and state speedy trial rights. However, he is limited to the arguments he raised in state court. In the state courts,
Jefferson argued only that his appellate counsel was ineffective for failing to raise a speedy trial violation under state
law, not federal law. (See DE 6-9 at 20-22.) Notably, for a federal claim to have been fairly presented, both the operative

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In his petition, Jefferson argues that his appellate counsel was ineffective for failing to
raise a speedy trial violation on appeal. (DE 1 at 4.) Specifically, Jefferson claims his right to
effective assistance of counsel was violated when his appellate counsel failed to raise a speedy
trial claim under Indiana Criminal Rule 4(C).
Under Indiana Criminal Rule 4(C):
No person shall be held on recognizance or otherwise to answer a criminal charge
for a period in aggregate embracing more than one year from the date the criminal
charge against such defendant is filed, or from the date of his arrest on such
charge, whichever is later except where a continuance was had on his motion, or
the delay was caused by his act, or where there was not sufficient time to try him
during such period because of congestion of the court calendar. . . . [A] trial court
may take note of congestion or an emergency without the necessity of a motion,
and upon so finding may order a continuance.
Ind. Crim.R. 4(C).
In analyzing the merits of Jefferson’s claim, the Indiana Court of Appeals found:
Jefferson has not demonstrated that the Criminal Rule 4 issue was “clearly stronger”
than the issues raised by his appellate counsel. As the State points out, “[a]lthough
this case pended for several years, less than 365 days of that time is delay that was
not caused or acquiesced in by Petitioner.” Jefferson maintains that 310 days of delay

facts and controlling law must have been placed before the state court so that it is “sufficiently alerted to the federal
constitutional nature of the issue to permit it to resolve that issue on a federal basis.” McDowell v. Lemke, 737 F.3d 476,
482 (7th Cir. 2013) (citation omitted). A review of Jefferson’s post-conviction appellate brief, and the law and arguments
contained within, show that Jefferson did not invoke any ineffective claims based on counsel failing to raise his federal
speedy trial rights, did not rely on federal cases that applied such a constitutional analysis, nor did Jefferson otherwise
call to mind such a federal claim. Not surprisingly, the court of appeals addressed only whether his appellate counsel
was ineffective for failing to raise a state law speedy trial claim under Indiana Criminal Rule 4(C). (DE 6-11 at 8-10.)
Because Jefferson did not present the claim that his appellate attorney failed to raise a federal speedy right claim to the
Indiana courts, he can not pursue that argument here.
This is not consequential, however. Sixth Amendment speedy trial issues are analyzed under the test enunciated in
Barker v. Wingo, in which the U.S. Supreme Court identified the following factors to be reviewed: (1) length of delay;
(2) reason for delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the defendant. 407 U.S. 514, 530
(1972). To start, the reason for delay largely rested with Jefferson and his co-defendant’s requests. In addition, there is
nothing in the record to show that Jefferson objected to any of his co-defendant’s continuances until the eve of trial. Nor
does the court find any resulting prejudice. Thus, there can be no federal speedy trial violation. And, appellate counsel
cannot be deemed ineffective for failing to raise it.

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due to a codefendant’s motions to continue should not be attributable to him for
purposes of Criminal Rule 4.
***
Here, Jefferson did not request a separation of trials, and he did not object to his
codefendant’s multiple motions for continuance. Accordingly, he has not shown that,
had his appellate counsel raised this issue on appeal, this court would have reversed
his conviction on that ground.
(DE 6-11 at 9-10.)
The court of appeals found that, in light of Jefferson’s failure to object to any delays by
his co-defendant, failure to object to the consolidation of the cases, and failure to request
separate trials in light of the delays, there was no underlying Indiana Criminal Rule 4(C) speedy
trial violation. As such, it concluded that Jefferson failed to show that “had his appellate counsel
raised [the speedy trial] issue on appeal, this court would have reversed his conviction.” (DE 611 at 10.) Therefore, the court of appeals found that appellate counsel was not ineffective for
failing to choose not to raise the claim.
Because the court determined this claim to have no merit, it was correct and reasonable to
find that appellate counsel was not required to raise that issue on appeal. Stone v. Farley, 86 F.3d
712, 717 (7th Cir. 1996) (“Failure to raise a losing argument, whether at trial or on appeal, does
not constitute ineffective assistance of counsel.”). Jefferson cannot demonstrate any reasonable
probability that the result of his appeal would have been different had this meritless state law
claim been raised. McNary v. Lemke, 708 F.3d 905, 921 (7th Cir. 2013). Jefferson did not in his
PCR - and likely could not - explain how this issue not raised by appellate counsel is “both
obvious and clearly stronger” than the issues actually raised by his appellate counsel. This court
concludes that the Indiana Court of Appeals correctly applied the standards of Strickland to the
facts of this case and that Jefferson has not met his burden of establishing either that his

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appellate counsel’s performance was deficient, or that had his appellate counsel performed
differently there existed a reasonable probability of a different outcome. (Ex. J at 9-10.)
Jefferson spends a significant amount of time attempting to explain why the court of
appeals misapplied Indiana Criminal Rule 4(C). However, to the extent Jefferson is claiming an
error in the application of Indiana Criminal Rule 4(C), a state law, this does not provide a
cognizable basis for granting federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (federal habeas relief is only available for a violation of the U.S. Constitution or other
federal laws).
As a final note, Jefferson argues that the state appellate court’s decision rested on an
unreasonable determination of facts. However, upon review, Jefferson is not actually challenging
any determination of the facts; instead, he challenges the court of appeals’ legal determination of
the amount of time that was deemed excludable in the speedy trial analysis. But, as explained
above, this court’s job is not to second guess the state court’s legal determinations of Indiana
law. Nevertheless, the court of appeals found that in light of Jefferson’s failure to object to any
delays by his co-defendant, objection to the consolidation of the cases, and failure to request
separate trials in light of the delays, Jefferson could not show a speedy trial violation. In
evaluating this finding, the court inquires whether the state court’s decision “rests upon factfinding that ignores the clear and convincing weight of the evidence.” Goudy v. Basinger, 604
F.3d 394, 399-400 (7th Cir. 2010). To find in Jefferson’s favor, the decision must be “so
inadequately supported by the record” as to be “arbitrary and therefore objectively
unreasonable.” Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003). This evaluation must be
conducted “in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d)(2).
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Here, Jefferson did not provide any evidence to that state courts establishing that his
speedy trial rights were violated. While the trial court’s chronological case summary shows that
there were numerous hearings where continuances were granted, (DE 6-1), those hearings were
not transcribed and Jefferson did not have them transcribed or submitted as evidence. Thus, the
record before the state court on appeal reasonably supports that court’s conclusion that Jefferson
did not object, and thus constructively agreed, to the delay under Indiana Criminal Rule 4(C).
Jefferson has not shown the court’s determination was against the clear and convincing weight of
the evidence, and therefore did not show that its ruling rested on an unreasonable determination
of fact. Thus, habeas relief is not warranted on this claim.

2.

Appellate counsel’s failure to raise the faulty probable cause affidavit.

Jefferson contends his appellate counsel was ineffective for failing to challenge the
allegedly faulty probable cause affidavit on that basis that it was not made under oath. However,
on direct appeal, the Indiana Court of Appeals found that claim to be waived. (DE 6-11 at 11.)
And, during post conviction proceedings, the Indiana Court of Appeals determined that Jefferson
failed to establish that the alleged error should have been raised by counsel on direct appeal
since it was meritless. (DE 6-11.) Though Jefferson takes issue with the application of Indiana
law on this point, such an argument, this does not provide a cognizable basis for granting federal
habeas relief. Estelle, 502 U.S. at 67-68.
Since the Indiana Court of Appeals determined this claim to have no merit, it found that
appellate counsel was not required to raise that issue on appeal. Such a determination was a
correct and reasonable application of Strickland. Stone, 86 F.3d at 717. Clearly, Jefferson cannot

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demonstrate any reasonable probability that the result of his appeal would have been different
had this meritless3 state law claim been raised. McNary, 708 F.3d at 921. Nor could he show that
his appellate counsel should have raised this meritless claim instead of the other claims raised.
As a result, this claim does not warrant habeas relief.

III.

CERTIFICATE OF APPEALABILITY
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, all but two of Jefferson’s claims are
procedurally defaulted, and he has not provided any meritorious basis for excusing his default.
And, as to his preserved claims, Jefferson 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

3

At trial, Jefferson objected to Officer McPherson’s probable cause affidavit because it was not “sworn under
the penalties of perjury according to IC 35-44-2-1. (Trial Tr. 237.) However the objection was for naught as the affidavit
in this case was made under oath. (Trial Exhibits; States’s Ex. 2, at 4.) Thus, this claim was without merit.
Moreover, during his post-conviction appeal, Jefferson did not explain or provide any evidence or case law
establishing that the affidavit was faulty. He simply asserted that appellate counsel was ineffective for failing to raise
this “meritorious issue.”

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to encourage Jefferson to proceed further. Accordingly, the court declines to issue Jefferson a
certificate of appealability.

IV.

CONCLUSION
For the reasons set forth above, the court:
(1) DENIES the petition (DE 1);
(2) DENIES AS MOOT the motion for an extension of time to file a traverse (DE 14);

and
(3) DENIES the petitioner a certificate of appealability.
SO ORDERED.
ENTERED: March 4, 2016
s/William C. Lee
William C. Lee, Judge
United States District Court

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