Davis v. Litteral
Filing
29
MEMORANDUM OPINION AND ORDER by Chief Judge Greg N. Stivers on 4/27/2022. The objection is overruled, the Report and Recommendation is adopted, and the Petition is denied. The issuance of a Certificate of Appealability is denied.cc:counsel; Petitioner, pro se (JWM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:18-CV-00337-GNS-RSE
FREDRICK DAVIS
PETITIONER
v.
KATHY LITTERAL, Warden
RESPONDENT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner’s Objection (DN 28) to Magistrate Judge’s
Findings of Fact, Conclusions of Law, and Recommendation (“R. & R.”) (DN 20) recommending
that his Petition for Writ of Habeas Corpus be denied. For the reasons provided below, the
objection is OVERRULED, the R. & R. is ADOPTED, and the petition is DENIED.
I.
BACKGROUND
In 2011, Petitioner Frederick Davis (“Davis”) was convicted by a jury in Jefferson County,
Kentucky of murder, two counts of wanton endangerment in the first degree, and tampering with
physical evidence. (Pet. 1, DN 1). Pursuant to 28 U.S.C. § 2254, Davis petitioned this Court for
habeas relief. (Pet. 1).
The Magistrate Judge incorporated the Kentucky Supreme Court’s factual summary in the
R. & R., and this Court will do the same, as Davis does not contest the pertinent facts. As the
Court stated:
Latosha Owens [(“Owens”)] and James Allen [(“Allen”)] had an on-and-off
romantic relationship for several months in late 2008. She had a similar
relationship with Appellant, Frederick W. Davis, during this same period. Davis
was bothered by Owens’ relationship with Allen. Even after Owens had ended the
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relationship with Allen and resumed her relationship with Davis, Davis was still
angry that she had apparently dated both men simultaneously for a short time.
Tensions between the two men heightened when Allen went to Owens’ apartment
on February 2, 2009, and broke a window. Owens’ young son was in the house at
the time. Davis considered the boy to be his own, though he was not his biological
father. Because of his affection for the child, Davis was made especially angry by
the vandalism. In his own words, Davis felt that Allen had disrespected him by
endangering the boy. In a text message, he asked Owens for Allen’s phone number
in order to scare him. Davis wrote to Owens that he wanted to “nock (sic) him off.”
The next day, Davis bought a gun from a friend. The following day, February 4,
Davis spoke with Owens several times on the phone and made arrangements to take
her to the grocery store that evening. Later, Owens sent Davis a text message
asking where he was. Via another text message, Owens told Davis that Allen was
at her apartment and asked him to “come on” and “hurry up now.” Davis believed
that Owens was afraid and wanted him to come to her apartment right away.
When Davis arrived at Owens’ apartment building, he saw Allen standing near a
window. Davis asked Allen if he was looking for Owens, who was inside the
apartment. Allen responded “yeah,” but turned and slipped on some ice. As he lay
on the ground, Davis shot Allen seven times. Allen bled to death as a result of the
multiple gunshot wounds. One of the shots fired went through the window of a
neighboring apartment belonging to Charlotte Moore. Davis fled the scene and
threw the gun into a sewer.
Davis was taken into custody several hours later. Detective Kristin Downs
[(“Downs”)] interviewed Davis, during which he explained that he went to Owens'
apartment at her request because she was afraid of Allen. Davis also revealed his
anger about Owens’ relationship with Allen and his feeling that Allen had
disrespected Owens’ child by breaking her window. Davis was subsequently
arrested and charged with murder, tampering with physical evidence, and two
counts of wanton endangerment in the first degree. At trial, Owens testified on
Davis’ behalf.
She claimed that she was afraid of Allen following the incident on February 2.
When he arrived on the night of the murder, Allen was banging on her door, which
frightened her, so she texted Davis for help. However, on cross-examination,
Owens acknowledged that she had spent time with Allen earlier that morning and
that Allen later sent her a text message saying he “had fun.” When she departed
from Allen on the morning of the murder, Owens admitted that they hugged and
kissed goodbye. She also conceded that she did not call the police when Allen
started banging on her door, though she did call 911 two nights earlier when he
broke her window.
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Davis was found guilty on all counts. The jury recommended a combined sentence
of thirty-seven (37) years, which the trial court adopted.
Davis v. Commonwealth, No. 2011-SC-000255-MR, 2012 WL 5289407, at *1-2 (Ky. Oct. 25,
2012) (Davis I). The Kentucky Supreme Court affirmed Davis’ conviction and sentence. Id.
Davis then filed a pro se motion in Jefferson Circuit Court pursuant to Kentucky Rule of Criminal
Procedure 11.42, which denied his ineffective assistance of counsel claim.
See Davis v.
Commonwealth, No. 2015-CA-000450-MR, 2017 WL 4217354, at *1 (Ky. App. Sept. 22, 2017)
(Davis II).
II.
JURISDICTION
This Court has jurisdiction to entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court pursuant to 28 U.S.C. § 2254.
III.
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214
(1996) (“AEDPA”), applies to all habeas corpus petitions filed after April 24, 1996, and requires
“heightened respect” for legal and factual determinations made by state courts. See Herbert v.
Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). Section 2254(d), as amended by AEDPA, 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.
28 U.S.C. § 2254(d). This is a “difficult to meet and highly deferential standard . . . .” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks omitted) (internal citation omitted)
(citation omitted). Legal conclusions made by state courts are also given substantial deference
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under the AEDPA; the Supreme Court has concluded that “a federal habeas court may overturn a
state court’s application of federal law only if it is so erroneous that there is no possibility fair
minded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.”
Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (per curiam) (internal quotation marks omitted)
(quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)).
When reviewing the Magistrate Judge’s report and recommendation regarding a prisoner’s
petition for a writ of habeas corpus, “[a] judge . . . shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). A reexamination of the same argument that was presented to the
Magistrate Judge without specific objections “wastes judicial resources rather than saving them,
and runs contrary to the purpose of the Magistrates Act.” Howard v. Sec’y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991); see also Manigaulte v. C.W. Post of Long Island Univ.,
659 F. Supp. 2d 367, 372 (E.D.N.Y. 2009) (“[W]hen a party makes only conclusory or general
objections, or simply reiterates his original arguments, the Court reviews the Report and
Recommendation only for clear error.” (internal quotation marks omitted) (citation omitted)).
New arguments raised for the first time in a petitioner’s objection to a Magistrate Judge’s report
and recommendation are considered waived. See Murr v. United States, 200 F.3d 895, 902 n.1
(6th Cir. 2000). Courts have applied this general rule in the habeas corpus context. See Brewer v.
Bottom, No. 10-26-KSF, 2012 WL 404878, at *8 (E.D. Ky. Feb. 8, 2012) (rejecting the petitioner’s
claim in habeas petition raised for the first time in objections to the report and recommendation
and noting that “[t]hese reasons alone are sufficient grounds to reject [the petitioner’s] objection.”).
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II.
A.
DISCUSSION
Ground I: Improper Limitation of Voir Dire
Davis argues that the trial court’s limitation of defense counsel’s questions regarding selfdefense during voir dire was improper. (Pet’r’s Obj. 2, DN 24).
As the Magistrate Judge points out, the Kentucky Supreme Court upheld the trial court’s
voir dire limitation because defense counsel was permitted to ask the jury questions related to selfdefense but was precluded from asking the jury about a specific hypothetical. (R. & R. 7). Defense
counsel “posed a hypothetical question, asking whether it would constitute self-defense if she
walked out of the courtroom and stabbed someone in the lobby area.” Davis I, 2012 WL 5289407,
at *2. As the Kentucky Supreme Court summarized:
The trial court warned defense counsel that she was delving into a difficult area of
the law and cautioned her against asking the jurors to speculate as to what an
“initial aggressor” might be. The court specifically told her, however, that she
could explore the jury's feelings towards self-defense in general. Defense counsel
then continued with her questioning and asked jurors if they could consider selfdefense if the trial court instructed on it.
Finally, she asked the panel: “If you find that Mr. Davis . . . was defending himself,
or defending others, what must your verdict be?” The trial court sustained the
Commonwealth's objection to the phrasing of this question and reminded defense
counsel that she could ask if the jurors could follow the court’s instructions.
Defense counsel rephrased the question as suggested and asked no further
questions. Davis now argues that he should have been permitted to question jurors
more extensively about the right of self-defense and defense of others in order to
expose any prejudice or bias.
Id.
In support of his Petition, Davis asserts that the Kentucky Supreme Court erred by not
finding that the trial court improperly limited voir dire regarding the jurors’ beliefs on self-defense
and the defense of others. (Pet’r’s Mem. Supp. Pet. 8-9, DN 14). In his objection to the R. & R.,
Davis contends that the questions asked by defense counsel to the jury were proper and should not
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have been limited. (Pet’r’s Obj. 5-8). “The holdings of the Supreme Court governing questions a
defendant’s counsel is constitutionally entitled to ask of potentially biased jurors are
narrow . . . .” Jackson v. Houk, 687 F.3d 723, 737 (6th Cir. 2012). Regarding voir dire, “the trial
court’s failure to ask these questions must render the defendant's trial fundamentally unfair.”
Mu’Min v. Virginia, 500 U.S. 415, 425-26 (1991) (citation omitted). The trial court limited
counsel’s questions that asked the jury to commit to a certain verdict in advance. Davis I, 2012
WL 5289407, at *3. “[T]he trial court retains great latitude in deciding what questions should be
asked on voir dire.” Mu’Min, 500 U.S. at 424. A federal habeas court is limited “to enforcing the
commands of the United States Constitution.” Id. at 422 (citations omitted). “A proffered voir
dire question is not constitutionally required simply because it ‘might be helpful in assessing
whether a juror is impartial’; instead a question is constitutionally compelled only where the
‘failure to ask [that] question[] . . . render[s] the defendant’s trial fundamentally unfair.’” Beuke
v. Houk, 537 F.3d 618, 637 (6th Cir. 2008) (alterations in original) (citing Mu’Min, 500 U.S. at
425-26). In United States v. Cramer, 491 F. App’x 520 (6th Cir. 2012), the court found that
questions which desired to expound upon the jurors’ opinions of self-defense were not
constitutionally compelled when they were “tailored to elicit jurors’ receptiveness to Defendant’s
theory of the case, more than the jurors' ability to be fair and impartial.” Id. at 524.
The Magistrate Judge cites United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), for the
proposition that a trial court does not abuse its discretion when it excludes questions relating to
specific mitigating factors on voir dire. See Tipton, 90 F.3d at 879. Further, “[t]he undoubted fact
that such detailed questioning might have been somehow helpful to appellants in exercising
peremptory challenges does not suffice to show abuse of the district court’s broad discretion in
conducting the requisite inquiry.” Tipton, 90 F.3d at 879. Specific questions that asked jurors to
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commit to a verdict in advance are not appropriate on voir dire. Ward v. Com., 695 S.W.2d 404,
407 (Ky. 1985). The trial court was within its discretion to restrict the portions of defense
counsel’s questions which attempted to prompt the jury to commit to a self-defense based verdict
or speculate as to what constitutes an initial aggressor before the presentation of any proof.
Davis specifically objects to the Magistrate Judge’s exclusion of the portion of the
Kentucky Supreme Court’s opinion, which stated:
On appeal, Davis argues that he would have asked additional questions to determine
if the panel members had a particular bias concerning the right to defend one’s self
or others. However, it is unclear exactly what additional questions defense counsel
would have asked the panel. For this reason, we are left to speculate as to what the
trial court’s ruling would have been regarding these additional questions.
Davis I, 2012 WL 5289407, at *2. The Supreme Court further addressed Davis’ failure to preserve
the issue properly pursuant to Lawson v. Commonwealth, 53 S.W.3d 534, 540 (Ky. 2001), “[a]t
the outset, we note that this issue is not adequately preserved for appellate review. In order to seek
review of a limitation placed on voir dire questioning, the aggrieved party must propose the
specific question to the trial court and seek a ruling.” Davis I, 2012 WL 5289407, at *2. As the
Magistrate Judge noted, “because the trial court allowed defense counsel to explore the jury panel’s
general feelings towards self-defense, whether they could consider a theory of self-defense, and
whether they could follow the court’s instructions, the Kentucky Supreme Court found that there
was no error.” (R. & R. 7 (citing Davis I, 2012 WL 5289407, at *3)).
The Kentucky Supreme Court ruled that the trial court did not abuse its discretion when
it limited questions asking potential jurors to commit to an idea or verdict before trial. Davis I,
2012 WL 5289407, at *3. This was neither contrary to, nor involved an unreasonable application
of, clearly established federal law; likewise the court’s determination was not based on an
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unreasonable application of the facts. 28 U.S.C. § 2254(d). Therefore, Davis will not be afforded
relief on his first ground for improper limitation of voir dire.
B.
Extreme Emotional Disturbance
Davis argues that the absence of a jury instruction on extreme emotional disturbance
(“EED”) prejudiced his trial and rendered it patently unfair. Davis believes this instruction was
warranted because Allen had broken a window at Owens’ residence and the messages Owens had
sent Davis telling him to hurry over to her house. Davis I, 2012 WL 5289407, at *3. The
Magistrate Judge noted that the EED instruction is only proper if there is evidence supporting the
instruction sufficient to determine that Davis was acting under extreme emotional disturbance. (R.
& R. 11 (citing Wellman v. Commonwealth, 694 S.W.2d 696, 697 (Ky. 1985))). Davis needed to
present evidence to show that he was under a “temporary state of mind so enraged, inflamed, or
disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from the impelling
force of the extreme emotional disturbance rather than from evil or malicious purposes.”
McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986). To determine whether a jury
instruction violated federal law, the court determines “whether the instruction was erroneous and,
if so, whether the instruction ‘so infected the entire trial that the resulting conviction violates due
process.’” Clarke v. Warren, 556 F. App’x 396, 409 (6th. Cir. 2014) (citation omitted). As Davis
admits, it is his responsibility to introduce evidence establishing the affirmative defense of EED.
(Pet’r’s Obj. 10 (citing Buchanan v. Kentucky, 483 U.S. 402, 408 (1987))). As the Kentucky
Supreme Court noted:
While these cumulative events may have supported a finding that Davis acted in
protection of Owens, as the defense argued at trial, it does not support the
conclusion that Davis was so enraged or inflamed as to overcome his judgment. No
evidence of a triggering event was introduced, nor was there any evidence
indicating that Davis was acting uncontrollably. In both the interview with
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Detective Downs and the text messages to Owens, Davis expresses his anger at
Allen, his intent to confront Allen, and his feeling that Allen had disrespected him.
Davis I, 2012 WL 5289407, at *3. The Magistrate Judge referred to the deferential standard
afforded the Kentucky Supreme Court on this issue, wherein it is not enough to find error if this
court “would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S.
290, 301 (2010). “Evidence of mere ‘hurt’ or ‘anger’ is insufficient to prove extreme emotional
disturbance.” Talbott v. Commonwealth, 968 S.W.2d 76, 85 (Ky. 1998) (citation omitted). Davis
did not present evidence that he was temporarily rendered so upset that he was unable to control
his emotions, leading to Allen’s death. Davis I, 2012 WL 5289407, at *3. Davis offered the fact
that a window had been broken in Owens’ apartment, that Owens was afraid of Allen, and text
messages from Owens to Davis asking him to come to her residence because of Allen. Id. These
factors, taken cumulatively, do not rise beyond anger or hurt to meet the requirements of EED.
“[B]ecause the evidence presented at trial did not support a jury instruction on . . . extreme
emotional disturbance under state law, the failure to so instruct did not rise to the level of a
constitutional error.” Shelton v. Seabold, 198 F.3d 247, 1999 WL 1021750, at *2 (6th Cir. 1999)
(citation omitted). Therefore, the Magistrate Judge correctly found that the trial court’s holding
that the evidence was insufficient, as affirmed by the Kentucky Supreme Court, was not
unreasonable in light of the evidence produced at trial and was consistent with clearly established
law.
C.
Downs’ Testimony
Davis claims that the Magistrate Judge should have found Detective Downs’ testimony
fundamentally unfair. (Pet’r’s Obj. 11). He states:
Detective Kristen Downs of the LMPD’s Homicide Unit specifically testified to the
jury during Davis’ case that she was allowed to conduct a practice of lying to
arrested defendants during interrogation which consists of violation of Davis’s U.S.
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Fifth & Fourteenth Due Process rights. The magistrate judge should have deemed
Downs’ testimony as fundamentally unfair and the Kentucky Supreme Court’s
decision also as egregious resulting in fundamental unfairness to warrant habeas
relief. There are documented cases which demonstrate a criminal Defendant having
his rights violated when a police or detective lie or give false, misleading
statements. Although Davis argued improper opinion evidence the following cases
deals with detectives and police officials lying, giving false, misleading statements
to obtain a confession.
(Pet’r’s Obj. 11) (citation omitted).
Davis had previously argued that Downs’ testimony constituted improper opinion
testimony, but not this particular point. (Pet’r’s Mem. Supp. Pet. 15). Arguments raised for the
first time in a petitioner’s objection to a Magistrate Judge’s report and recommendation are
considered waived. See Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000). Courts have
applied this general rule in the habeas corpus context. See Brewer v. Bottom, No. 10-26-KSF,
2012 U.S. Dist. LEXIS 15478, 2012 WL 404878, at *8 (E.D. Ky. Feb. 8, 2012) (rejecting the
petitioner’s claim in habeas petition raised for the first time in objections to the report and
recommendation and noting that “[t]hese reasons alone are sufficient grounds to reject [the
petitioner’s] objection.”). Davis must show both cause and actual prejudice in order for the court
to hear a new argument on collateral attack. United States v. Frady, 456 U.S. 152, 164-65 (1982).
Davis does neither. As Davis argues a different theory of relief related to Downs’ testimony than
what he argued to the Magistrate Judge, the Court will not afford relief based on this argument.
D.
Ineffective Assistance of Counsel
Davis claims ineffective assistance of counsel (“IATC”) on the grounds that his trial
counsel failed to seek instructions on EED (Claim 5) and evidence tampering (Claim 7). (Pet’r’s
Obj. 12). Specifically, Davis’ objection is:
[I]ssues presented to the magistrate of this issues were, in fact, valid and his habeas
corpus petition should have been ruled on in a more favorably manner being that it
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was apparent that counsel failed raise a defense on EED and request instructions
and failed to make a defense whatsoever on the evidence tampering charge.
(Pet’r’s Obj. 12). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
articulated the following standard applicable to IATC claims:
A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction or death sentence has two components. First, the
defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.
Id. at 687. As noted in the R. & R., “[w]here a jury instruction on an inferior offense is not
warranted by the evidence, counsel’s failure to request such an instruction does not constitute
ineffective assistance.” (R. & R. 20 (citing Harrop v. Sheets, 430 F. App’x 500, 505 (6th Cir.
2011))). On the failure to seek an EED instruction, the Magistrate Judge stated:
Whether the undersigned might have come to a different conclusion regarding the
evidence is of no moment because it is not within the “province of a federal habeas
court to reexamine state-court determinations on state-law questions[;]” rather, the
Court is limited to determining whether the Constitution or laws of the United
States were violated and is therefore obligated to accept as valid the Kentucky Court
of Appeals’ interpretation of Kentucky law.
(R. & R. 20 (alteration in original) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991))). The
Kentucky Court of Appeals determined that the evidence was not sufficient to warrant an
instruction to the jury on the EED claim. Davis II, 2017 WL 4217354, at *3. As the U.S. Supreme
Court has stated, “[w]e have repeatedly held that a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal court sitting
in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citations omitted).
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Regarding Davis’ claim that his counsel was ineffective for failing to present a defense to
the charge of evidence tampering, the Magistrate Judge noted:
The Warden argues that Davis’ confession to disposing of the weapon he used to
murder Allen rendered any defense to the tampering charge meritless. . . .
. . . Davis does not prove the Kentucky Court of Appeals’ decision was contrary to
or an unreasonable application of Strickland. In fact, Davis’ Petition fails to
specifically address an argument for either the performance or prejudice prong of
Strickland. Rather, the bulk of what the Court shall construe as Davis’ argument is
nothing more than a recitation of Davis’ violation of the charge of tampering with
physical evidence.
(R. & R. 24). Davis has not provided a more detailed objection to the Magistrate Judge’s report
and recommendation on his IATC evidence tampering claim, nor does he explain how either prong
of Strickland is met when Davis admitted to the elements of evidence tampering. Under the
circumstances, this court is in no position to disturb the Kentucky Court of Appeals ruling on this
issue. Davis will not be granted relief based on alleged ineffective assistance of counsel. The
claim will therefore be denied.
E.
Certificate of Appealability
Magistrate Judge Edwards recommended that this Court deny Davis a Certificate
Appealability with respect to each of his claims, to which he did not object. For this reason, the
court will deny a certificate of appealability.
III.
CONCLUSION
For the reasons provided above, IT IS HEREBY ORDERED as follows:
1.
Petitioner’s Objection (DN 28) is OVERRULED, and the Magistrate Judge’s
Findings of Fact, Conclusions of Law, and Recommendation (DN 20) is ADOPTED.
2.
Petitioner’s Petition for Writ of Habeas Corpus (DN 1) is DISMISSED.
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3.
The issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and
Fed. R. App. P. 22(b) is DENIED.
4.
The Clerk shall strike this matter from the active docket.
April 27, 2022
cc:
counsel of record
Petitioner, pro se
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