Cole v. Weizel

Filing 39

ORDER: 1 Petition for Writ of Habeas Corpus filed by Jamie Lee Cole denied. A certificate of appealability shall not issue. 34 MOTION to Withdraw Stay granted. 31 MOTION to Stay denied as moot. 30 and 38 MOTIONs to Appoint Counsel denied. Signed by Judge Linda R Reade on 9/4/2019. (NEF and order mailed to petitioner) (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

JAMIE LEE COLE,
Petitioner,

No. 17-CV-2012-LRR

vs.

ORDER

JAMES McKINNEY,
Respondent.

TABLE OF CONTENTS
I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . 2

III.

STANDARDS OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
B.

IV.

Standard of Review under 28 U.S.C. § 2254(d)(1) . . . . . . . . . . . . . . 6
Standard of Review under 28 U.S.C. § 2254(d)(2) . . . . . . . . . . . . . . 7

DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A.
B.

Right to Self-Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Sufficiency of the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

V.

CERTIFICATE OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . 12

VI.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I. INTRODUCTION
The matter before the court is Petitioner Jamie Lee Cole’s “Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus” (“Petition”) (docket no. 1).

II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The Iowa Court of Appeals provided a summary of the facts in this matter:
[Petitioner] was jailed at the Buchanan County jail facility [for
a separate conviction]. The correctional officer testified
[Petitioner] sat on his bed naked during the night cell check
and masturbated in full view of her. She characterized his
conduct as “very offensive.”
The jail administrator
acknowledged, “It’s not unusual for inmates to masturbate”
but testified they were usually “discrete about it” and, in any
event, they were always required “to have their pants on.” He
explained that even [Petitioner] generally stopped masturbating
if he saw correctional staff. This time he did not. According
to the administrator, [Petitioner] acted “different[ly]” by lying
“naked . . . on his bunk knowing that [the correctional officer]
was coming up the stairs.” He saw her, “look[ed] right at
her,” and continued to masturbate.
State v. Cole, 895 N.W.2d 486 (Table), 2016 WL 7403719, at *2 (Iowa Ct. App. 2016).
(sixth and eighth alterations in original).
On May 27, 2015, a Criminal Complaint was filed against Petitioner in the Iowa
District Court for Buchanan County, charging Petitioner with indecent exposure enhanced
as a secondary predatory offense in violation of Iowa Code section 709.9. The district
court appointed an attorney to represent Petitioner. See id. at *1. At some point,
Petitioner asked that his appointed attorney be removed and filed a motion to represent
himself. Id. The district court held a hearing on Petitioner’s motion to represent himself
and the Iowa Court of Appeals summarized the hearing as follows:
[T]he district court asked [Petitioner] if he wished to “continue
to request that [his attorney] be withdrawn as [his] attorney.”
[Petitioner] responded, “Yes, ma’am.” The court then asked,
“Let me make sure that I understand: are you wanting a new
attorney appointed to represent you, or are you intending to
represent yourself?” [Petitioner] responded, “I would have no
problem with James Peters out of Independence being
appointed.” In an effort to clarify, the court stated, “Well,
when we do court-appointed counsel, you do not necessarily
get to pick your attorney. My question is are you requesting
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the appointment of new counsel?” [Petitioner] initially
responded, “No ma’am,” but when asked if he “would agree
to the appointment of Peters” if the court “were to appoint
[him], [Petitioner] responded, “Correct.”
Id. (third, fourth and eighth alteration in original). The district court appointed Peters to
represent Petitioner. Id. Prior to trial, Petitioner, again, filed a motion requesting that he
be allowed to represent himself. Id. The district court held a hearing on the motion and
Petitioner told the district court that he wanted withdraw both the motion to remove Peters
as his attorney and the motion asking the court to allow him to represent himself. Id. at
*1-2.
A jury trial was held, and on August 20, 2015, the jury returned a verdict of guilty
on the indecent exposure charge. On direct appeal, Petitioner argued that the district court
violated his Sixth Amendment right to represent himself and that there was insufficient
evidence to support the jury’s guilty verdict. Id. at *1. The Iowa Court of Appeals
rejected both claims. Id. at *1-2. The Iowa Supreme Court denied Petitioner’s request
for further review.
On March 6, 2017, Petitioner filed the Petition in the Southern District of Iowa, and
it was transferred to the Northern District of Iowa on March 7, 2017. See docket no. 1;
Order Transferring Case (docket no. 3). In the Petition, Petitioner raises four claims: (1)
prosecutorial misconduct; (2) ineffective assistance of counsel; (3) denial of the right to
self-representation; and (4) insufficient evidence to support his conviction. See Petition
at 3-5. On June 8, 2017, Respondent filed a Motion to Dismiss (docket no. 14). On
August 25, 2017, Petitioner filed a “Response to Motion to Dismiss” (docket no. 17), in
which he requested that the court withdraw the unexhausted prosecutorial misconduct and
ineffective assistance of counsel claims. See Response to Motion to Dismiss at 1; see also
docket no. 18 at 1. On February 27, 2018, the court entered an Order (docket no. 20)
granting Petitioner’s motion to dismiss the prosecutorial misconduct and ineffective

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assistance of counsel claims and allowing Petitioner to proceed with the two remaining
claims, which had been properly exhausted. See February 27, 2018 Order at 5.
Additionally, on April 27, 2019, Petitioner filed a pro se Motion to Appoint
Counsel (docket no. 30). On May 23, 2019, Petitioner filed another po se Motion to
Appoint Counsel (docket no. 38). In habeas proceedings, a petitioner has neither a
constitutional nor statutory right to counsel. See McCall v. Benson, 114 F.3d 754, 756
(8th Cir. 1997). The appointment of counsel is at the discretion of the court. See id. As
a general rule, counsel will not be appointed unless the case is unusually complex or the
petitioner’s ability to investigate and articulate the claims is unusually impaired or an
evidentiary hearing is required. See Morris v. Dormire, 217 F.3d 556, 558-59 (8th Cir.
2000); Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). The court finds that the
assistance of counsel is not warranted, and Petitioner’s motions to appoint counsel (docket
nos. 30 & 38) are denied.
On March 15, 2019, Petitioner filed a pro se Motion to Stay the Petition (docket no.
31). On March 28, 2019, Respondent filed a Resistance (docket no. 32) to the motion to
stay. On April 16, 2019, Petitioner filed a pro se Motion to Withdraw Motion to Stay
Petition (“Motion to Withdraw”) (docket no. 34). Having reviewed Petitioner’s Motion
to Withdraw, the court finds that the motion should be granted. The Motion to Stay
Petition is withdrawn and denied as moot.
Petitioner filed the Petitioner’s Brief (docket no. 24) on May 14, 2018. On
September 20, 2018, Respondent filed the Respondent’s Brief (docket no. 26). The
Petition is fully submitted and ready for decision
III. STANDARDS OF REVIEW
“A state prisoner may seek a writ of habeas corpus in federal court if his [or her]
confinement violates the federal Constitution or federal law.” Weaver v. Bowersox, 241
F.3d 1024, 1029 (8th Cir. 2001) (citing 28 U.S.C. § 2254(a)). “Federal courts are ‘bound

4

1

by the AEDPA to exercise only limited and deferential review of underlying state court
decisions’ in habeas corpus cases.” Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004)
(quoting Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004)); see also 28 U.S.C.
§ 2254.

2

Federal habeas corpus relief may only be granted if one or both of two

conditions is satisfied. Ryan, 387 F.3d at 790. These two conditions are set forth in
28 U.S.C. § 2254(d), which provides that:
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.
Thus, “[28 U.S.C. §] 2254(d) distinguishes between two types of erroneous
decisions those of law and those of fact and treats each in separate subparagraphs.”
Weaver, 241 F.3d at 1029. Claims of legal error are governed by the first subparagraph,
and claims of factual error fall within the second subparagraph. Id. at 1029-30.

1

AEDPA is an acronym for the Antiterrorism and Effective Death Penalty Act.

2

AEDPA amended the federal habeas corpus statute, 28 U.S.C. § 2254, in 1996.
See Williams v. Taylor, 529 U.S. 362, 399 (2000). The amendment “placed a new
restriction on the power of federal courts to grant writs of habeas corpus to state
prisoners.” Id.; see also Bell v. Cone, 535 U.S. 685, 693 (2002) (“The [AEDPA] of 1996
modified a federal habeas court’s role in reviewing state prisoner applications in order to
prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect
to the extent possible under law.”).
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A. Standard of Review under 28 U.S.C. § 2254(d)(1)
“A federal court may grant a state habeas petitioner relief for a claim that was
adjudicated on the merits in state court only if that adjudication ‘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.’” Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003) (per curiam) (quoting 28 U.S.C. § 2254(d)(1)); accord Jeremiah
v. Kemna, 370 F.3d 806, 809 (8th Cir. 2004). The Supreme Court’s opinion in Williams
v. Taylor, 529 U.S. 362 (2000), explains the meaning of those statutory concepts and the
degree of deference that must be afforded to state court determinations on the merits. See
Bucklew v. Luebbers, 436 F.3d 1010, 1015-16 (8th Cir. 2006); Siers v. Weber, 259 F.3d
969, 972-73 (8th Cir. 2001).
Williams explains that a state court decision can be “contrary to” Supreme Court
precedent in one of two ways: (1) “if the state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law” or (2) “if the state court
confronts [a set of] facts that are materially indistinguishable from a [decision of the
Supreme Court] and [nevertheless] arrives at a result [different from that precedent].” 529
U.S. at 405-06; see also Bucklew, 436 F.3d at 1016 (discussing the “contrary to” prong
in Williams).

Further, “the [statutory] phrase ‘clearly established Federal law, as

determined by the Supreme Court of the United States’ . . . refers to the holdings, as
opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant
state-court decision.” Williams, 529 U.S. at 412.
An “unreasonable application” of Supreme Court precedent can also arise in one
of two ways. The Supreme Court explained:
First, a state-court decision involves an unreasonable
application of [the Supreme Court’s] precedent if the state
court identifies the correct governing legal rule from [the
Supreme Court’s] cases but unreasonably applies it to the facts
of the particular state prisoner’s case. Second, a state-court
decision also involves an unreasonable application of [the
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Supreme Court’s] precedent if the state court either
unreasonably extends a legal principle from [the Supreme
Court’s] precedent to a new context where it should not apply
or unreasonably refuses to extend that principle to a new
context where it should apply.
Id. at 407 (citation omitted). Thus, where a state court “correctly identifies the governing
legal rule but applies it unreasonably to the facts of a particular prisoner’s case,” that
decision “certainly would qualify as a decision involving an unreasonable application of
. . . clearly established federal law.” Id. at 407-08 (quotation omitted); see also Rompilla
v. Beard, 545 U.S. 374, 380 (2005) (discussing the “unreasonable application” prong of
Williams); Wiggins v. Smith, 539 U.S. 510, 520 (2003) (same); Bucklew, 436 F.3d at 1016
(same). Additionally,
[u]nder [28 U.S.C.] § 2254(d)(1)’s ‘unreasonable application’
clause, . . . a federal habeas [corpus] court may not issue the
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable.
Williams, 529 U.S. at 411 (emphasis added).
Applying these standards to the present case, the court’s inquiry must be whether
the Iowa courts reached a decision contrary to that reached by the Supreme Court on a
question of law, or alternatively, whether the Iowa courts correctly identified the
applicable principles of federal law and then unreasonably applied that law to the facts of
Petitioner’s claims. See, e.g., Rousan v. Roper, 436 F.3d 951, 955-56 (8th Cir. 2006)
(discussing the applicable standards); Bucklew, 436 F.3d at 1016 (same); Siers, 259 F.3d
at 973 (same).
B. Standard of Review under 28 U.S.C. § 2254(d)(2)
Federal habeas corpus relief “may be granted on a claim adjudicated in state court
if the state court proceeding ‘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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Beck v. Bowersox, 257 F.3d 900, 901 (8th Cir. 2001) (quoting 28 U.S.C. § 2254(d)(2)).
The state court findings of fact are presumed to be correct. Id. (citing 28 U.S.C.
3

§ 2254(e)(1)). The burden is on the applicant to rebut the presumption of correctness by
clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Accordingly, the court’s
review presumes that the Iowa courts found the facts correctly unless Petitioner rebuts that
presumption with clear and convincing evidence. See id.; see also Middleton v. Roper,
455 F.3d 838, 845 (8th Cir. 2006) (“[The court] bestow[s] a presumption of correctness
on the factual findings of the state courts, and absent procedural error, [the court] may set
such findings aside only if they are not fairly supported by the record”); Weaver, 241 F.3d
at 1030 (providing that, “on habeas review, we accord state trial courts broad latitude in
determining questions of fact by virtue of the statutory presumption in favor of state court
fact-findings”). “It bears repeating that even erroneous fact-finding by the [state] courts
will not justify granting a writ if those courts erred ‘reasonably.’” Id., 241 F.3d at 1030.
IV. DISCUSSION
In the instant action, Petitioner raises two claims: (1) the Iowa courts violated his
Sixth Amendment right to self-representation; and (2) there was insufficient evidence to
return a guilty verdict on the indecent exposure charge.
A. Right to Self-Representation
In the Petition, Petitioner claims that his right to self-representation was violated
and he was “denied [five] times to represent [himself and] forced counsel didn’t object or
help any other way.” Petition at 4. In Petitioner’s Brief, Petitioner asserts that he

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28 U.S.C. § 2254(e)(1) provides:
In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment
of a State court, a determination of a factual issue shall be
presumed correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and
convincing evidence.
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believed a court could “require you to submit to the court’s own appointed counsel.”
Petitioner’s Brief at 1. Further, Petitioner states that he “only went along with it after that
because the court illegally let [him] believe it was legal to deny [him his] right to represent
[him]self, and or present [his] own defense.” Id.
“Under the Sixth Amendment, the accused is guaranteed the right of electing to
represent himself.” Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994) (citing Faretta v.
California, 422 U.S. 806 (1975)). “A criminal defendant may proceed pro se if he
knowingly, voluntarily, and unequivocally waives his right to appointed counsel.”
Williams, 44 F.3d at 99 (quotation omitted). The right to self-representation does not
attach until it is asserted ‘clearly and unequivocally.’” Id. at 100 (quoting Faretta, 422
U.S. at 835). “Once asserted, however, the right to self-representation may be waived
through conduct indicating that one is vacillating on the issue or has abandoned one’s
request altogether.” Williams, 44 F.3d at 100; see also Brown v. Wainwright, 665 F.2d
607, 611 (5th Cir. 1982) (finding that a defendant waived his right to self-representation
where the defendant retained appointed counsel after a hearing on the defendant’s pro se
motion to remove counsel, where Defendant told the court that he and appointed counsel
had worked out their differences and where Defendant did not renew his request to
represent himself).
Here, Petitioner abandoned his requests to self-representation. In the first hearing
on Petitioner’s first pro se motion to remove counsel, Petitioner told the state district court
that he wanted his appointed counsel removed, but requested that James Peters be
appointed as new counsel to represent him. Following the hearing, Petitioner’s initial
counsel was ordered to withdraw and Peters was appointed to represent Petitioner. At the
second hearing on Petitioner’s second pro se motion to remove counsel, this time to
remove Peters as counsel, Petitioner told the court that he was withdrawing his pro se
motion to remove Peters because he and Peters had talked. Petitioner also withdrew his
pro se motion to represent himself. There is no evidence in the record that Petitioner
9

attempted to renew his request to represent himself. Based on the foregoing, the court
finds that the Iowa Court of Appeals’s determination that Petitioner “abandoned his request
to represent himself,” see Cole, 2016 WL 7403719, at *2, is supported by the record and
did not result “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.” 28 U.S.C. § 2254(d)(1). Accordingly, Petitioner is not entitled to relief on this
issue.
B. Sufficiency of the Evidence
In the Petition, Petitioner claims that there is “insufficient evidence to support
conviction.” Petition at 5. Neither in the Petition nor in Petitioner’s Brief does Petitioner
offer an argument in support of his claim that the evidence was insufficient to support his
conviction.
A sufficiency of the evidence claim is a claim of factual error. Therefore, the
applicable standard that applies is 28 U.S.C. § 2254(d)(2): whether the Iowa Courts’
decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The state court
findings of fact are presumed to be correct. Beck, 257 F.3d at 901 (citing 28 U.S.C.
§ 2254(e)(1)). The burden is on the petitioner to rebut the presumption of correctness by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1). “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Iowa Code section 709.9, Iowa’s indecent exposure statute, provides that:
A person who exposes the person’s genitals or pubes to
another not the person’s spouse, or who commits a sex act in
the presence of or view of a third person, commits a serious
misdemeanor, if:

10

1. The person does so to arouse or satisfy the sexual desires
of either party; and
2. The person knows or reasonably should know that the act
is offensive to the viewer.
Id. At the trial, the jury was instructed that the State would have to prove the following
elements of indecent exposure:
1. On or about the 21 st day of May, 2015, the defendant
exposed his genitals or pubes to [a correctional officer] who
was not then the defendant’s spouse.
2. The defendant did so with the specific intent to arouse or
satisfy the sexual desire of the defendant or [the correctional
officer].
3. [The correctional officer] was offended by the defendant’s
conduct.
4. The defendant knew or reasonably should have know that
the act was offensive to [the correctional officer].
Cole, 2016 WL 7403719, at *2 (alterations in original).
In the Petitioner’s Brief, Petitioner makes no argument to rebut the presumption that
the state court’s findings of fact are correct. See generally Petitioner’s Brief. On appeal
before the Iowa Court of Appeals, Petitioner only contested the third and fourth elements
of the indecent exposure charge. See Cole, 2016 WL 7403719, at *2. The Iowa Court
of Appeals determined that “[t]he jury reasonably could have found both elements satisfied
based on the testimony of a correctional officer and jail administrator.” Id. Specifically,
the Iowa Court of Appeals relied on the following testimony: (1) the correctional officer
testified that Petitioner “sat on his bed naked during the night cell check and masturbated
in full view of her”; (2) the correctional officer testified that she found Petitioner’s conduct
“very offensive”; (3) the jail administrator testified that Petitioner’s conduct was not
discrete like Petitioner’s prior conduct or the conduct of other inmates; (4) the jail
administrator testified that inmates were required to wear pants at all times; (5) the jail
11

administrator testified that, in the past, Petitioner would normally stop masturbating if he
saw correctional staff; and (6) the jail administrator testified that Petitioner acted
differently than normal “by lying ‘naked . . . on his bunk knowing that [the correctional
officer] was coming up the stairs.’ [Petitioner] saw [the correctional officer], ‘look[ed] at
her,’ and continued to masturbate.” Id. (first and third alteration in original). The Iowa
Court of Appeals concluded that the foregoing testimony “amounts to substantial evidence
in support of the third and fourth elements.” Id.
Applying the deferential standard of review set forth in 28 U.S.C. § 2254(d)(2), the
court finds that the Iowa Court of Appeals’s decision that the evidence was sufficient to
support the jury’s guilty verdict and Petitioner’s conviction was not an unreasonable
determination of the facts. Accordingly, Petitioner is not entitled to relief on this issue.
V. CERTIFICATE OF APPEALABILITY
In a habeas proceeding before a district judge, the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
See 28 U.S.C. § 2253(a).

Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C.
§ 2253(c)(1)(A).

A district court possesses the authority to issue certificates of

appealability under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Cox v. Norris,
133 F.3d 565, 569 (8th Cir. 1997); Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir.
1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may only issue if an
applicant has made a substantial showing of the denial of a constitutional right. See MillerEl v. Cockrell, 537 U.S. at 335-36 (2003); Williams v. United States, 452 F.3d 1009, 1014
(8th Cir. 2006); Williams v. Bruton, 299 F.3d 981, 982 (8th Cir. 2002); Garrett v. United
States, 211 F.3d 1075, 1076-77 (8th Cir. 2000). In order to make such a showing, the
issues must be debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings. See Cox, 133 F.3d at 569; see also

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Tennard v. Dretke, 542 U.S. 274, 276 (2004) (reiterating standard); Miller-El, 537 U.S.
at 335-36 (same).
Courts reject constitutional claims either on the merits or on procedural grounds.
“[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward:

the petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on
procedural grounds without reaching the underlying constitutional claim, “the [applicant
must show], at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” See Slack,
529 U.S. at 484.
Having thoroughly reviewed the record in this case, the Court finds that Petitioner
failed to make the requisite “substantial showing” with respect to the claims he raised in
his Petition pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b). Accordingly, the court declines to grant a certificate of appealability. If Petitioner
desires further review of his 28 U.S.C. § 2254 petition, he may request issuance of a
certificate of appealability by a circuit judge of the Eighth Circuit Court of Appeals in
accordance with Tiedeman, 122 F.3d at 520-22.
VI. CONCLUSION
In light of the foregoing, it is hereby ORDERED:
(1) The Petition pursuant to 28 U.S.C. § 2254 (docket no. 1) is DENIED;
(2) A certificate of appealability shall NOT ISSUE;
(3) Petitioner’s Motion to Withdraw Motion to Stay (docket no. 34) is GRANTED;
(4) Petitioner’s Motion to Stay (docket no. 31) is DENIED as moot;
(5) Petitioner’s Motions to Appoint Counsel (docket nos. 30 & 38) are DENIED.
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IT IS SO ORDERED.
DATED this 4th day of September, 2019.

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