Bird v. Klee

Filing 20

Opinion and Order Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENNIS PATRICK BIRD, JR.,
Case Number: 2:16-CV-12973
HONORABLE VICTORIA A. ROBERTS

Petitioner,
v.
PAUL KLEE,
Respondent.
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OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Dennis Patrick Byrd, Jr., a prisoner in the custody of the Michigan
Department of Corrections, filed a petition for a writ of habeas corpus under 28 U.S.C. §
2254. Petitioner challenges his convictions for four counts of first-degree criminal sexual
conduct and one count of second-degree criminal sexual conduct. Respondent argues that
the petition should be denied because several claims are procedurally defaulted, and all of
the claims are without merit.
The Court denies the petition.
I.

Background
Petitioner was charged in three separate cases filed in Kent County Circuit Court

with sexually assaulting his two daughters and a niece. The cases were joined for one
trial. The Michigan Court of Appeals summarized the testimony presented at trial:
In LC No. 11-007338-FC, the victim [Petitioner’s niece, T.P.] testified that

when she was 14 years old, defendant rubbed her legs, pulled her pants
down, and rubbed his penis up and down the outer lips of her vagina. In LC
No. 11-007445-FC, the victim [Petitioner’s daughter, D.B.] testified that
when she was 12 years old, defendant put his penis into her vagina. She
testified that when she turned 13, defendant put his mouth on her vagina. In
LC No. 11–010105–FC, the victim [Petitioner’s daughter, V.B.] testified
that when she was less than 13 years old, defendant attempted to put his
penis in her vagina and managed to put his penis “beyond the lips” and “in
the crevice,” but she told defendant to stop because it hurt. The victim
further testified that defendant put his mouth and tongue on the outer lips of
her vagina.
People v. Bird, No. 312874, 2013 WL 6480928, *1 (Mich. Ct. App. Dec. 10, 2013).
Petitioner was convicted by a Kent County Circuit Court of second-degree
criminal sexual conduct (CSC), Mich. Comp. Laws § 750.520c(1)(b)(ii), as to victim
T.P.; two counts of first-degree CSC, Mich. Comp. Laws § 750.520b(1)(a) and Mich.
Comp. Laws § 750.520b(1)(b)(ii), as to victim D.B.; and two counts of first-degree CSC,
Mich. Comp. Laws § 750.520b(1)(a), as to victim V.B. The trial court sentenced
defendant to 5 to 15 years for second-degree CSC, consecutive terms of 25 to 75 years
and 20 to 60 years for two counts of first-degree CSC in the case involving D.B., and to
15 to 60 years for each first-degree CSC conviction in the case involving V.B.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these
claims: (i) insufficient evidence supported Petitioner’s convictions; (ii) Brady violation;
and (iii) ineffective assistance of counsel. The Michigan Court of Appeals affirmed
Petitioner’s convictions. People v. Bird, No. 312874, 2013 WL 6480928, *1 (Mich. Ct.
App. Dec. 10, 2013). The Michigan Supreme Court denied leave to appeal. People v.
Bird, 496 Mich. 860 (2014).
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Petitioner filed a motion for relief from judgment in the trial court, raising these
claims: (i) Brady violation; (ii) prosecutor knowingly elicited false testimony; and (iii)
cause and prejudice established. The trial court denied the motion. See 4/21/2015 Order,
ECF No. 14-12. The Michigan Court of Appeals denied Petitioner’s application for leave
to appeal, People v. Bird, No. 327432 (Mich. Ct. App. Aug. 27, 2015), as did the
Michigan Supreme Court, People v. Bird, 499 Mich. 983 (Mich. 2016).
Petitioner later filed a petition for a writ of habeas corpus in the trial court. He
argued that the trial court lacked jurisdiction over him because the warrant and complaint
were issued without probable cause. The trial court denied the petition. See Bird v. Gus
Harrison Correctional Facility, No. 335468, 2017 WL 4518752 (Mich. Ct. App. Oct. 10,
2017). Petitioner filed a motion for relief from judgment which the trial court treated as a
motion for reconsideration of its denial of his petition and denied the motion. See id. The
Michigan Court of Appeals affirmed the trial court’s decision. Id.
Petitioner then filed this habeas corpus petition. He raises these claims:
I.

Was there sufficient evidence proven by the prosecution beyond a
reasonable doubt that the [petitioner] was guilty of two counts of criminal
sexual conduct first degree as to [D.B.] and [V.B.], and one count of
criminal sexual conduct second degree as to [T.P.]?

II.

Did the prosecutor violate Petitioner’s due process rights by failing to
disclose exculpatory information favorable to the defendant that would have
created a reasonable probability of a different outcome?

III.

Defense trial counsel was constitutionally ineffective for failing to object to
the detective in charge of the case improperly giving opinion testimony on
Petitioner’s guilt and for failing to cross examine witness.
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IV.

The prosecutor violated Petitioner’s state and federal constitutional rights to
due process by failing to disclose exculpatory or impeachment evidence
which could have been favorable to his defense.

V.

Petitioner was denied his state and federal constitutional right to a fair trial
and due process where the prosecution knowingly elicited and used false
testimony in order to secure the conviction.

VI.

Petitioner satisfies the cause and prejudice standard set forth in 6.508(D) in
each of the above arguments by showing constitutionally ineffective
assistance of both trial and appellate counsel, in violation of the sixth
amendment right to effective assistance of counsel and fourteenth
amendment due process clause.
II. Standard

28 U.S.C. § 2254(d) 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 proceedings.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ ... clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (per curiam) (quoting Williams v. Taylor, 529
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U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute permits a
federal habeas court to ‘grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably applies that principle to the
facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413).
For a state court’s application of Supreme Court precedent to be “‘unreasonable,’
the state court’s decision must have been more than incorrect or erroneous. The state
court’s application must have been ‘objectively unreasonable.’” Id. at 520-21 (citations
omitted). “A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme Court]
cases – indeed, it does not even require awareness of [Supreme Court] cases, so long as
neither the reasoning nor the result of the state-court decision contradicts them.” Early v.
Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established law” are to
be determined solely by resort to Supreme Court rulings, the decisions of lower federal
courts may be instructive in assessing the reasonableness of a state court’s resolution of
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an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v.
Bowersox, 340 F.3d 667, 671 (8th Cir.2003).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
III. Discussion
A. Sufficiency of the Evidence
Petitioner seeks habeas relief on the ground that the prosecution presented
insufficient evidence to sustain his convictions. He argues the evidence was insufficient
because no physical evidence supported the allegations of sexual assault and because
D.B. and V.B. initially denied the assaults occurred.
“[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). On habeas review, “[t]wo
layers of deference apply to ... claims challenging evidentiary sufficiency.” McGuire v.
Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05
(6th Cir. 2009)). First, the Court “must determine whether, viewing the trial testimony
and exhibits 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.” Brown, 567
F.3d at 205 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Second, if the Court
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were “to conclude that a rational trier of fact could not have found a petitioner guilty
beyond a reasonable doubt, on habeas review, [the Court] must still defer to the state
appellate court’s sufficiency determination as long as it is not unreasonable.” Id.
A person is guilty of first-degree criminal sexual conduct under Michigan law,
when the person “engages in sexual penetration with another person,” and the “other
person is under 13 years of age.” Bird, 2013 WL 6480928 at *2 A person is also guilty
of first-degree CSC when the “other person is at least 13 but less than 16 years of age,”
and “the actor is related to the victim by blood or affinity to the fourth degree.” Id. (citing
Mich. Comp. Laws § 750.520b(1)(b)(ii)). Sexual penetration includes “sexual
intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight,
of any part of a person's body or of any object into the genital or anal openings of another
person’s body ...” Id. (citing Mich. Comp. Laws § 720.520a®).
Under Mich. Comp. Laws § 750.520c(1)(b)(ii) a person is guilty of second-degree
criminal sexual conduct when he “engages in sexual contact” with a person, “[t]hat other
person is at least 13 but less than 16 years of age,” and “[t]he actor is related by blood or
affinity to the fourth degree to the victim.” Bird, 2013 WL 6480928 at *1. Sexual
conduct is defined as “the intentional touching of the victim's or actor’s intimate parts ...
if that intentional touching can reasonably be construed as being for the purpose of sexual
arousal or gratification, done for a sexual purpose, or in a sexual manner.” Id. (citing
Mich. Comp. Laws § 720.520a(q)).
The Michigan Court of Appeals held the prosecutor presented sufficient evidence
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for a jury to find Petitioner guilty beyond a reasonable doubt with respect to all three
victims. The Michigan Court of Appeals relied on the testimony of each of the victims
which, if believed, established each of the elements of the charged crimes.
Petitioner argues that the Michigan Court of Appeals’ decision is unreasonable
because a doctor who examined the victims found no physical evidence of sexual assault
and because two of the victims initially denied the assaults. First, the absence of physical
evidence does not render the convictions invalid. The Court will not “re-evaluate the
credibility of witnesses” on habeas review. Brown, 567 F.3d at 205. The jury obviously
found the victims credible and the victims’ testimony, by itself, is constitutionally
sufficient to sustain a conviction. Tucker v. Prelesnik, 541 F.3d 652, 658-59 (6th Cir.
2008). In addition, although Dr. Cheryl Tamburello (testifying as an expert in the
physical manifestations of child sexual abuse) did not find any physical manifestations of
child sexual abuse in T.P. or D.B., she also explained that physical manifestations are
usually not evident. Finally, D.B. and V.B. each explained initially denying any abuse
occurred because they feared their father.
The evidence relied upon by the Michigan Court of Appeals supports its decision
on the sufficiency of the evidence. According the state court’s findings of fact a
presumption of correctness and reviewing the trial testimony as a whole, this Court
concludes that the Michigan Court of Appeals’ decision that sufficient evidence was
presented to sustain the convictions did not “result[] in a decision that . . . involved an
unreasonable application of, clearly established Federal law, as determined by the
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Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Habeas corpus relief is
denied.
B. Alleged Brady Violations (Claims II and IV)
Petitioner next claims that the prosecutor failed to disclose letters he wrote to his
daughters from jail, two police reports, and videotaped interviews of two witnesses in
violation of Brady v. Maryland, 373 U.S. 83 (1963).1
In Brady v. Maryland, 373 U.S. 83, 87 (1967) the Supreme Court held that
“suppression by the prosecution of evidence favorable to an accused ... violates due
process where the evidence is material, either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” To demonstrate a Brady violation, (1) “[t]he
evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching;” (2) “that evidence must have been suppressed by the State,
either willfully or inadvertently;” and (3) “prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999).
First, Petitioner alleges that the prosecution failed to disclose several letters he

Respondent argues that portions of this claim and several other claims are
procedurally defaulted. “[F]ederal courts are not required to address a procedural-default
issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d
212, 215 (6th Cir. 2003), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
“Judicial economy might counsel giving the [other] question priority, for example, if it
were easily resolvable against the habeas petitioner, whereas the procedural-bar issue
involved complicated issues of state law.” Lambrix, 520 U.S. at 525. In this case, the
Court finds that the interests of judicial economy are best served by addressing the merits
of Petitioner’s claims.
1

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wrote to his daughters from jail. Two letters written to his daughters were admitted a
trial. Petitioner argues that the additional letters could have been used to undercut the
prosecution’s theory that he tried to cover up the abuse and to impeach the victims’
testimony. The Michigan Court of Appeals held that Petitioner failed to provide a factual
basis for his claim. The court of appeals held: “Nothing in the record establishes that the
evidence was favorable to defendant, that defendant did not possess the letters ..., that
defendant could not have obtained the evidence himself with any reasonable diligence, or
that the prosecution suppressed the ... letters.” Bird, 2013 WL 6480928 at *2.
Petitioner’s first Brady claim fails. Petitioner does not show that the letters were
favorable to the defense. The letters were not part of the record before the Michigan
Court of Appeals, but Petitioner attaches them to his petition. See Pet. Exs. XX & VV,
ECF No. 1, Pg. ID 22-33.
The Court need not decide whether these letters may be considered on habeas
review because even if they are properly before the Court, Petitioner fails to state a Brady
claim. The letters are not exculpatory. In the letters, Petitioner admits to mental health
difficulties over four to five years, apologizes for “doing bad things”, and asks his
daughters to change their stories. (See ECF No. 1, Pg. ID 26) The letters are not
markedly different in substance or tone from the letters admitted at trial. In addition,
there is no evidence that the prosecution suppressed the letters or that Petitioner could not
have obtained them. The Michigan Court of Appeals did not unreasonably apply Brady
in denying this claim.
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Petitioner’s claim regarding the police reports and videotaped interviews is
similarly meritless. His argument is vague and confusing. Petitioner fails to specify what
the reports and interviews may have contained or how the information was material or
exculpatory. Before trial commenced, the trial court discussed videotaped interviews and
noted that the tapes were in the courtroom and available for the defense to review. There
is no indication on the record that the tapes omitted any requested, relevant interviews or
that the defense was not provided an opportunity to review them. Without more, the
Court cannot conclude that the state courts unreasonably applied Brady in denying this
claim.
C.

Ineffective Assistance of Trial Counsel (Claim III)

In his third claim, Petitioner argues that trial counsel was ineffective in failing to:
(i) object to the prosecutor’s comments regarding sexual abuse of Petitioner’s son, (ii)
object to improper opinion testimony, and (iii) cross-examine a witness.
An ineffective assistance of counsel claim has two components. Strickland v.
Washington, 466 U.S. 668 (1984). A petitioner must show that counsel’s performance
was deficient and that the deficiency prejudiced the defense. Id. at 687. To establish
deficient representation, a petitioner must demonstrate that counsel’s representation “fell
below an objective standard of reasonableness.” Id. at 688. In order to establish
prejudice, a petitioner must show that, but for the constitutionally deficient representation,
there is a “reasonable probability” that the outcome of the proceeding would have been
different. Id. at 694.
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First, Petitioner argues that counsel should have objected to the prosecutor’s
statement that Petitioner’s ex-wife knew the allegations against Petitioner were true
because she already pleaded guilty to abusing their son, Z.B. The prosecutor made this
statement outside the presence of the jury. (See 8/29/2012 Tr. at 48-49) Defense counsel
was not ineffective in failing to object to a statement made outside the jury’s presence.
Next, Petitioner argues that counsel was ineffective in failing to object when
Detective David Schmuker gave an opinion on Petitioner’s guilt. Detective Schmuker
testified that he had a “strong suspicion” that Petitioner’s daughter “could be being
abused.” 8/29/2012 Tr. at 104. The Michigan Court of Appeals held that counsel was not
ineffective in failing to object to this testimony because the detective was testifying
“regarding the events that led to defendant’s arrest and did not express an opinion
regarding the guilt of defendant.” Bird, 2013 WL 6480928 at *3. This was a reasonable
application of Strickland. Detective Schmuker’s testimony, considered in context,
explained the course and development of the police investigation. A suspicion of illegal
activity is an impetus for police investigation. Detective Schmuker’s testimony that the
suspicion in this case led to further investigation was not improper. Counsel, therefore,
was not ineffective for failing to object.
Finally, Petitioner argues that counsel was ineffective in failing to cross-examine
Detective Schmuker. The Michigan Court of Appeals held that counsel’s decision not to
cross-examine Detective Schmuker was reasonable trial strategy because Petitioner failed
to show any benefit from prolonging the damaging testimony. Bird, 2013 WL 6480928 at
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*3. Petitioner fails to identify a specific line of cross-examination defense counsel should
have pursued. Instead, he makes a conclusory claim that counsel should have done more.
This claim is insufficient to show that the state court’s conclusion was contrary to or an
unreasonable application of Strickland. Habeas review is denied on this claim.
D.

Prosecutorial Misconduct (Claim V)

Next, Petitioner claims that the prosecutor committed misconduct by knowingly
presenting perjured testimony. He argues that Detective Schmuker falsified a police
report and that D.B., V.B., and Michelle Rae (Petitioner’s ex-wife) perjured themselves at
trial by implicating Petitioner.
The “deliberate deception of a court and jurors by the presentation of known false
evidence is incompatible with rudimentary demands of justice.” Giglio v. United States,
405 U.S. 150, 153 (1972) (citations and internal quotations omitted). This rule applies to
both the solicitation of false testimony and the knowing acquiescence in false testimony.
Napue v. Illinois, 360 U.S. 264, 269 (1959). In order to prove this claim, a defendant
must show that (1) the evidence the prosecution presented was false; (2) the prosecution
knew it was false; and (3) the false evidence was material. United States v. Hawkins, 969
F.2d 169, 175 (6th Cir.1992). Petitioner fails to satisfy any of these requirements.
Petitioner fails to substantiate his claim that Detective Schmuker falsified a police
report with any evidence other than Petitioner’s own allegations. Petitioner rests his
argument on inconsistencies in D.B., V.B., and Michelle Rae’s testimony.
Petitioner highlights certain inconsistencies in prosecution witnesses’ testimony,
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but fails to demonstrate that any of the testimony was false. For example, D.B. testified
that she originally told police that Petitioner was not assaulting her. At trial, she
explained that she denied the assault because she feared Petitioner. It was up to the jury
to determine D.B.’s credibility (and the credibility of all witnesses). A prosecutor is not
required to ensure that prosecution witnesses’ testimony be free from all confusion,
inconsistency, and uncertainty. The Michigan Court of Appeals’ decision denying this
claim was not an unreasonable application of Supreme Court precedent.
E.

Ineffective Assistance of Appellate Counsel (Claim VI)

Petitioner claims that his appellate attorney was ineffective in failing to raise on
direct appeal the claims raised in this habeas petition. A petitioner does not have a
constitutional right to have appellate counsel raise every non-frivolous issue on appeal.
Jones v. Barnes, 463 U.S. 745, 754 (1983). Strategic and tactical choices regarding
which issues to pursue on appeal are “properly left to the sound professional judgment of
counsel.” United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
The claims raised in this petition and on collateral review in state court are
meritless. Appellate counsel need not raise non-meritorious claims on appeal.
Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (citing Greer v. Mitchell, 264
F.3d 663, 676 (6th Cir. 2001)). Accordingly, the Court will deny habeas corpus relief on
this claim.
F.

Petitioner’s Motion to Amend

Also pending before the Court is Petitioner’s motion to amend the petition, filed
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over two years after he filed the original petition. Petitioner seeks to amend the petition
to raise the following claims: (i) right to due process violated when Petitioner was not
present at the preliminary hearing or circuit court arraignment; (ii) the trial court abused
its discretion in imposing consecutive sentences; (iii) counsel was ineffective in failing to
investigate and file pre-trial motions to quash and to dismiss; and (iv) counsel was
ineffective for failing to establish Petitioner’s actual innocence.
Federal Rule of Civil Procedure 15 allows amendments with leave of court at any
time during a proceeding. See Mayle v. Felix, 545 U.S. 644, 654–55 (2005). In
determining whether to grant leave to amend, a court should consider “‘[u]ndue delay in
filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure
to cure deficiencies by previous amendments, undue prejudice to the opposing party, and
futility of amendment.’” Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (quoting Brooks
v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). Under this liberal standard, a party’s delay
in seeking amendment is not a sufficient reason standing alone to deny a motion to
amend. Coe, 161 F.3d at 341-42.
The claims Petitioner seeks to add by amendment are unexhausted. No state court
remedy is available to Petitioner to exhaust these claims because he already filed a motion
for relief from judgment in the state trial court and does not argue that the claims fall
within the narrow exception to the prohibition against filing successive motions for relief
from judgment in state court. Petitioner may, therefore, present these claims on federal
habeas review only if he shows cause to excuse the default and actual prejudice or actual
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innocence. Hannah v. Conley, 49 F.3d 1193, 1195-96 (6th Cir. 1995).
To the extent Petitioner asserts ineffective assistance of appellate counsel as cause
to excuse the procedural default of these claims, the Court denies this claim. Ineffective
assistance of appellate counsel does not excuse the failure to present a claim on collateral
review in state court. Id. at 1196. Petitioner fails to offer any new evidence to show his actual
innocence.
Because these claims are procedurally defaulted, it would be futile to allow Petitioner to
amend his petition to add these defaulted claims and the motion will be denied. See Wiedbrauk
v. Lavigne, 174 Fed. App’x 993, 1001 (6th Cir.2006).
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a
certificate of appealability (“COA”) is issued under 28 U.S.C. § 2253. A COA may be issued
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U .S.C. § 2253(c)(2). A petitioner must show “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) (citation omitted).
The Court concludes that reasonable jurists would not debate the conclusion that the
petition fails to state a claim upon which habeas corpus relief should be granted. Therefore, the
Court denies a certificate of appealability.
V. Conclusion
The petition for a writ of habeas corpus and a certificate of appealability are DENIED
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and the matter is DISMISSED WITH PREJUDICE.
Petitioner’s motion to amend (ECF No. 16) is DENIED.
SO ORDERED.
s/ Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
DATE: 9/16/19

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