Wagle #232438 v. Sherry

Filing 114

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 110 ; denying petition for writ of habeas; granting certificate of appealability as to the three issues petitioner raised in the trial courts during his second motion for relief from judgment ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

EDDIE WAGLE,
Petitioner,
Case No. 2:06-cv-57
v.
HON. ROBERT HOLMES BELL
JERI-ANN SHERRY,
Respondent.
/
MEMORANDUM OPINION AND ORDER
United States Magistrate Judge Timothy P. Greeley issued a Report and
Recommendation (“R&R”) in this matter, recommending that Petitioner Eddie Wagle’s
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied, but that a
certificate of appealability be granted. (ECF No. 110.) The matter is before the Court on
Petitioner’s objections to the R&R (ECF No. 113). For the reasons that follow, the R&R will
be adopted as the opinion of this Court.
I. Background
On June 24, 1998, Petitioner and David Hudson, the victim, were at a bar with Chris
Davis, Jerry Davis, and Danny Troncone. (3/25/2013 Order, ECF No. 97-13, PageID.786.)
After leaving the bar, Petitioner and Chris Davis wound up in a car together, while Hudson
was walking down the side of the road. (Id.) At trial, Troncone testified that Petitioner told

him that Petitioner shot Hudson in the head. (Id.) Jerry Davis testified that he saw Petitioner
fire two shots. (Id.)
Following a jury trial on December 10, 1998, Petitioner was found guilty of firstdegree murder, Mich. Comp. Laws § 750.316(c); possession of a firearm during the
commission of a felony, Mich. Comp. Laws § 750.227b; and possession of a firearm by a
felon, Mich. Comp. Laws § 750.224f. People v. Wagle, No. 217299, 2000 WL 33418996,
at *1 (Mich. Ct. App. June 6, 2000). Petitioner was sentenced to concurrent terms of life
imprisonment for the first-degree murder conviction, ten to twenty years’ imprisonment for
the felon in possession of a firearm conviction, and a consecutive two-year term for the
felony-firearm conviction. Id. The Michigan Court of Appeals upheld his conviction, id., and
the Michigan Supreme Court denied leave to appeal, People v. Wagle, 631 N.W.2d 342
(Mich. 2001) (memorandum opinion).
On February 23, 2006, Petitioner filed a petition for writ of habeas corpus in this
Court raising eleven grounds for relief. (Pet., ECF No. 1.) The petition was denied on March
31, 2009. (Op. & Order, ECF No. 39.) On July 21, 2010, the Court of Appeals for the Sixth
Circuit issued a certificate of appealability as to four of the grounds for relief. (Order, ECF
No. 51.) On February 2, 2011, the Sixth Circuit, in recognition of Petitioner’s appellate
counsel’s determination that “certain documents are missing from the district court record”
and counsel’s discovery of “additional documentary evidence that may be relevant to
Wagle’s case,” the Court of Appeals remanded the petition to this Court for consideration

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of the new evidence. This Court then held proceedings in abeyance until Petitioner had the
opportunity to present and exhaust his claims supported by the newly discovered evidence
in the state courts. (Order, ECF No. 83.)
Petitioner did so, and on March 25, 2013, the Berrien County Trial Court denied
Petitioner’s second motion for relief from judgment, which considered his newly-discovered
evidence. (Order 5, ECF No. 97-13.) The motion was denied because Defendant could not
show that he was actually prejudiced by the alleged late disclosure of information. (Id.) On
March 14, 2014, the Michigan Court of Appeals denied Petitioner leave to appeal for failure
to meet the burden of establishing entitlement to relief under Michigan Court Rule 6.508(D).
On September 5, 2014, the Michigan Supreme Court also denied leave to appeal. (Order,
ECF No. 97-16.) After the Michigan Supreme Court denied leave to appeal, Petitioner filed
a brief in support of his petition for writ of habeas corpus in this Court on February 9, 2015.
(ECF No. 102.)
II. Standard of Review
The Court’s analysis of the petition is guided by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). A petition for writ of habeas corpus on behalf of a person
who is incarcerated pursuant to a state conviction cannot be granted by a federal court with
respect to any claim that was adjudicated on the merits in state court unless the adjudication:
“(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

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(2) resulted in a decision that was based upon an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This
standard is “intentionally difficult to meet.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).
The purpose of the AEDPA is to “guard against extreme malfunctions in the state criminal
justice systems,” Harrington v. Richter, 562 U.S. 86, 102 (2011), and “not as a means of
error correction.” Greene v. Fisher, 132 S. Ct. 38, 43 (2011).
Under the AEDPA, the Court may consider only the “clearly established” holdings of
the United States Supreme Court. 28 U.S.C. § 2254(d). “Circuit precedent cannot ‘refine or
sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the
Supreme Court] has not announced.’” Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (quoting
Marshall v. Rodgers, 133 S. Ct. 1446, 1451 (2013)). Moreover, law is not considered “clearly
established” if the Supreme Court announces the law after the petitioner’s last adjudication
of the merits in state court. Greene, 132 S. Ct. at 44 (2011). A state court’s decision is
“contrary to” clearly established federal law if “the state court applies a rule different from
the governing law set forth in [Supreme Court] cases, or if it decides a case differently than
[the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone,
535 U.S. 685, 694 (2002). A state court’s decision involves an “unreasonable application of”
clearly established federal law “if the state court correctly identifies the governing legal
principle” from a Supreme Court decision, but makes an objectively unreasonable application
of that principle to the facts. Id.

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The Court applies the above standard to “the last state court decision on the merits.”
Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006).
III. Analysis
A. The Claims the Court May Consider
The four claims Petitioner raises in his § 2254 motion for relief are: (1) Petitioner
suffered a violation of his constitutional rights when the state prosecutor elicited testimony
regarding Petitioner’s pre-arrest, post-Miranda silence, as Petitioner had a Fifth Amendment
right to remain silent; (2) Petitioner’s trial counsel was ineffective when counsel failed to
object to testimony regarding Petitioner’s refusal to give the police a statement and
Petitioner’s stated intent to retain an attorney; (3) Petitioner was denied his Sixth Amendment
right to effective assistance of counsel because his state trial counsel failed to properly
investigate statements made by a witness to police that could have supported Petitioner’s
assertion that he was being framed; and (4) Petitioner was denied his Sixth Amendment right
to effective assistance of counsel when his state appellate counsel failed to consult with him
and failed to raise meritorious issues on appeal. (Br. in Support of Pet., ECF No. 102.)
The R&R concluded that “the four claims Petitioner has raised in this Court are
procedurally defaulted because he did not raise these claims before the state trial court in his
second motion for relief from judgment after obtaining the newly discovered evidence.”
(R&R 5, ECF No. 110.) Accordingly, the R&R limited its analysis to the three constitutional
claims that were raised in Petitioner’s second motion for relief from judgment: (1)

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Petitioner’s Fifth Amendment right to due process was violated by the prosecutor’s failure
to turn over evidence at trial; (2) Petitioner’s Sixth Amendment right to effective assistance
of counsel was violated by his counsel’s failure to investigate and discover the evidence; and
(3) the cumulative effect of the suppression of evidence denied Petitioner a fair trial. (See Br.
in Support of Def.’s Mot. for Relief from J., ECF No. 97-8.) Petitioner objects to the R&R’s
determination that his claims were procedurally defaulted.
1. Exhaustion of State Court Remedies
Prior to seeking a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254,
a petitioner “must exhaust his state-court remedies by fairly presenting all of his
constitutional claims to the highest state court and all appropriate prior state courts.” Woods
v. Booker, 450 F. App’x 480, 488 (6th Cir. 2011) (citing 28 U.S.C. §§ 2254(b), (c); Anderson
v. Harless, 459 U.S. 4, 6 (1982)); see also Picard v. Connor, 404 U.S. 270, 275 (1971)
(“Only if the state courts have had the first opportunity to hear the claim sought to be
vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of
state remedies. Accordingly, we have required a state prisoner to present the state courts with
the same claim he urges upon the federal courts.”). When a petitioner has not “fully and fairly
presented a federal claim to the state’s highest court,” federal courts “ordinarily will not
consider the merits of that claim unless the petitioner can show cause to excuse his failure
to present the claims appropriately in state court, and actual prejudice as a result.” Stanford
v. Parker, 266 F.3d 442, 451 (6th Cir. 2001).

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The doctrine of exhaustion “requires that a claim be presented to the state courts under
the same theory in which it is later presented in federal court.” Wong v. Money, 142 F.3d 313,
322 (6th Cir. 1998); see also Woods, 450 F. App’x at 488 (“Exhaustion requires more than
notice—a petitioner must present enough information to allow the state courts to apply
controlling legal principles to the facts bearing upon his constitutional claim.”).To determine
whether a “petitioner raised the same issue in state court that is now presented in the habeas
proceeding,” federal courts examine state-court records. Id.
In this case, after Petitioner discovered the new evidence that he bases his claims on,
he filed a motion for relief from judgment in state court. The Michigan Court Rules require
motions for relief from judgment to“specify all of the grounds for relief which are available
to the defendant and of which the defendant has, or by the exercise of due diligence, should
have knowledge.” M.C.R. 6.502(A). The motion “must be substantially in the form approved
by the State Court Administrative Office[.]” M.C.R. 6.502(C). The approved form that
Petitioner filled out specifically states: “What are the legal grounds for the relief you want?
You must raise all the issues you know about. You may not be allowed to raise additional
issues in the future. Use extra sheets of paper, if necessary.” (Mot. for Relief from J., ECF
No. 97-8, PageID.549) (emphasis in original). The legal grounds Petitioner raised in his
motion for relief from judgment stated only: “Whether Defendant is entitled to relief of his
judgment of conviction by reason of newly discovered evidence.” (Id.) Petitioner’s brief in
support of his motion for relief from judgment clearly articulated three federal grounds for

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relief in the argument section: (1) Wagle’s Fifth Amendment right to due process was
violated by the prosecutor’s failure to turn over the aforesaid evidence prior to trial; (2)
Wagle’s Sixth Amendment right to effective assistance of counsel was violated by his
counsel’s failure to investigate and discover this evidence; and (3) the cumulative effect of
the suppression of this evidence denied Wagle a fair trial. (Br. in Support of Mot. for Relief
from J. 25-29, ECF No. 97-8.) Accordingly, those are the claims that the state court
addressed.
Petitioner argues that he did raise arguments that: his constitutional rights were
violated when the prosecutor referenced his pre-arrest, post-Miranda silence at trial; he
received ineffective assistance of counsel when trial counsel failed to object to the
introduction of testimony regarding his pre-arrest, post-Miranda silence; he received
ineffective assistance of counsel when trial counsel failed to properly investigate statements
made by a witness to police that could have supported Petitioner’s assertion that he was being
framed; and he received ineffective assistance of counsel when appellate counsel failed to
consult with him and to raise meritorious issues on appeal. The Court will address each
argument in turn.
a. Introduction of Pre-Arrest, Post-Miranda Silence
The Court is not persuaded that Petitioner has fully and fairly presented a claim that
the introduction of his pre-arrest, post-Miranda silence violated his constitutional rights.
Petitioner’s brief in support of his motion for relief from judgment references the fact that,

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on direct appeal, he argued that his refusal to give a statement to police officers on June 26,
1998, was a violation of his right to remain silent. (Br. in Support of Mot. for Relief from J.
14.) Petitioner noted that the Michigan Court of Appeals found no error because the
testimony occurred “before any custodial interrogation and before Miranda warnings were
given.” (Id.) And Petitioner noted that new evidence indicated that he had in fact been given
Miranda warnings. (Id.)
But the context in which Petitioner discussed this evidence is important. This
discussion occurred in the facts section of Petitioner’s brief, where Petitioner was
summarizing all of the new information and evidence that had been discovered since
Petitioner’s last motion for relief from judgment. The argument section of Petitioner’s brief,
beginning on page 20, makes no reference to a Fifth Amendment claim that Petitioner’s
rights were violated when his silence was mentioned at trial. And, in contravention of the
Michigan Court Rules, Petitioner’s motion itself does not raise such a claim in the “legal
grounds for relief” section. Moreover, Petitioner’s motion for leave to appeal does not
contend that the circuit court overlooked the claim, nor does it raise a claim in the first
instance.1 It was not the state court’s job to sift through the facts section of Petitioner’s brief
and examine any possible claim that could exist.

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The statement of questions involved provides: “(1) Whether the Circuit Court properly denied Wagle’s Motion for
Reconsideration. (2) Whether the Circuit Court properly ruled that Wagle was not prejudiced because he did not have
the benefit of the after acquired evidence in forming his defense to the criminal action. (3) Whether the Circuit Court
properly ruled that the assistance received from his council was effective, and could not have affected the outcome of
his trial. (4) Whether the Circuit Court properly ruled that the cumulative effect of the suppressed evidence could not
have affected the outcome of his trial.” (Appl. for Leave to Appeal, ECF No. 97-15, PageID.837.)

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“The fair presentation requirement is not satisfied when a claim is presented in state
court in a procedurally inappropriate manner that renders consideration of the merits
unlikely.” Woods, 450 F. App’x at 489. That is what occurred here. Accordingly, this claim
was not exhausted in state court.
b. Ineffective Assistance of Counsel—Failure to Object
Petitioner next argues that his motion for relief from judgment also raised an argument
that his counsel provided constitutionally ineffective assistance by failing to object to the
prosecution’s references to Petitioner’s silence. While Petitioner’s argument in state court
briefly notes that “Wagle’s counsel failed to object to this testimony,” again, this statement
was made in the facts section of the brief. The argument section of Petitioner’s brief
explicitly made an ineffective assistance of counsel argument, but it was not premised on this
ground; rather Petitioner clearly argued that “Wagle’s Sixth Amendment right to effective
assistance of counsel was violated by his counsel’s failure to investigate and discover . . .
evidence.” (Br. in Support of Mot. for Relief from J. 28.) Thus, as the magistrate judge noted,
Petitioner has procedurally defaulted this claim. See Wong, 142 F.3d at 322 (“Petitioner’s
second ineffective assistance claim rests on a theory which is separate and distinct from the
one previously considered and rejected in state court. Petitioner does not even argue that she
can show cause and prejudice, and we find that she procedurally defaulted this claim.”).

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c. Ineffective Assistance of Counsel—Failure to Investigate
Next, Petitioner argues that he raised his claim that he was denied his Sixth
Amendment right to effective assistance of counsel when his trial counsel “failed to
investigate properly statements made by a witness to police that could have supported Mr.
Wagle’s assertion that he was being framed.” The Court agrees. (See Br. in Support of Mot.
for Relief from J. 29.) The Court will address the merits of this claim below.
d. Ineffective Assistance of Appellate Counsel
Petitioner also argues that his “counsel for direct appeal performed deficiently in
various ways, including misstating facts, failing to raise meritorious arguments, and failing
to communicate with Mr. Wagle; the state grievance commission even found deficient
performance.” (Pet. 32.) But again, Petitioner failed to raise this argument before the state
court when he had the chance to do so in his second motion for relief from judgment and,
thus, the claim was not exhausted in state court.
2. Procedural Default
“If the claims presented in the federal court were never actually presented in the state
courts, but a state procedural rule now prohibits the state court from considering them, the
claims are considered exhausted, but are procedurally barred.” Cone v. Bell, 243 F.3d 961,
967 (6th Cir. 2001). Under Michigan law, a second or subsequent motion for relief from
judgment may only be filed if there has been a “retroactive change in law that occurred after
the first motion for relief from judgment or a claim of new evidence that was not discovered

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before the first such motion.” M.C.R. 6.502(G)(2). “A defendant may not appeal the denial
or rejection of a successive motion.” M.C.R. 6.502(G)(1). Accordingly, there is no state-court
remedy available to Petitioner in Michigan courts. He has already filed a second or
successive motion after the new evidence was discovered, and has no grounds for filing yet
another motion for relief from judgment. Moreover, he may not appeal the denial or rejection
of the successive motion. Woods, 450 F. App’x at 491 (finding claims were procedurally
defaulted “despite the fact that the Michigan courts have not actually invoked the procedural
bar because the Michigan courts could not apply a procedural rule to claims not brought
before them.”). Accordingly, the claims are procedurally defaulted.
Petitioner has not shown cause to excuse his failure to present the claims appropriately
in state court. Stanford, 266 F.3d at 451 (6th Cir. 2001). Moreover, given that two eye
witnesses testified that Petitioner killed Hudson, Petitioner has not shown “that it is more
likely than not that no reasonable juror would have convicted him in light of the new
evidence” and, thus, he has not met the “narrow exception to the exhaustion requirement”
that is met when one is actually innocent. See Woods, 450 F. App’x at 491 (citing Schlup v.
Delo, 513 U.S. 298, 324 (1995)).
B. Claims Subject to § 2254 Review
The R&R reviewed the claims that were presented to the state court under the § 2254
standard. Petitioner has also filed objections to the R&R’s analysis of those claims. The
Court will address each objection.

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1. Brady Violation
Petitioner contends that he is entitled to relief under § 2254 due to the prosecution’s
failure to disclose exculpatory evidence, including: a Miranda card; two reports from police
interviews with Gerhad Binder; two reports from police interviews with Frank Pipkins; a
report of a police interview with Tracy Harlan; a report of a police interview with Dave
Ellis; a report of a police interview with Ernest Alsup; a report of a police interview with
Chris Davis; a report of a police interview with Ted Saffell; a report of a police interview
with Patrick Wilson; a DNA test; and a report of a police interview with Rachel Christian.
“There are three components of a true Brady violation: The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). As the
magistrate judge noted, the state court “used an analogous standard when denying
Petitioner’s due process claim for failure to disclose the missing evidence before trial.” (R&R
7.) The state court ultimately concluded that “Defendant cannot show that he was actually
prejudiced by the alleged late disclosure of information.” (3/25/2013 Order 5, ECF No. 9713.) This Court reviews the state court’s decision under the deferential standards of the
AEDPA. See Bell v. Howes, 703 F.3d 848, 854 (6th Cir. 2012).
The state court noted that “the evidence at trial showing Defendant’s guilt was
substantial, and Defendant cannot show that but for the alleged error, he would have had a

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reasonably likely chance of acquittal.” (3/25/2013 Order 7.) The state court also concluded
that “the ‘cumulative effect’ of the newly discovered evidence did not actually prejudice
Defendant when considering the substantial amount of evidence supporting his guilty
conviction.” (Id. at 14.) Before granting a petition, “there must be ‘no reasonable basis for
the state court to deny relief’ . . . And ‘even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.’” Bell, 703 F.3d at 854 (quoting Harrington,
131 S. Ct. at 784, 786); see also 28 U.S.C. § 2254(d) (noting that, to obtain relief, the state
court’s opinion must have “resulted in a decision that was based upon an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.”).
At trial, Troncone testified that Petitioner told him the victim must be dead, because
“I shot him in the head.” (Jury Trial Tr. II at 349.) Jerry Davis testified that he was in the car
behind Petitioner’s and saw Petitioner “reach out and fire two shots.” (Id. at 515.) The
Michigan Court of Appeals has previously summarized the evidence as follows:
The evidence indicated that defendant drove past the victim, who was walking
along the road. Defendant subsequently stopped his car in a parking lot,
changed places with the passenger, and then had the driver drive back towards
the victim. The car slowed as it approached the victim and two eye witnesses
testified that defendant was in the passenger seat when the fatal shots were
fired from the passenger window of the automobile that defendant was in. One
eyewitness specifically identified defendant as the shooter and testified that
defendant’s arm reached outside the passenger’s window before defendant
fired the shots. Another witness testified that he heard defendant say, “I shot
him in the head,” and, when he asked defendant why he did it, defendant
blamed alcohol and also stated that some money he owed for drugs would be
reduced. Viewed in a light most favorable to the prosecution, the evidence was
sufficient to enable a rationale trier of fact to find beyond a reasonable doubt
that defendant shot the victim with premeditation and deliberation.
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People v. Wagle, No. 217299, 2000 WL 33418996, at *2 (Mich. Ct. App. June 6, 2000).
Given this evidence, the Court is satisfied that there was a reasonable basis for the state
court’s determination that Petitioner was not prejudiced by the alleged late disclosure of
information.
2. Ineffective Assistance of Counsel—Failure to Investigate
Petitioner’s next claim is that his trial counsel provided constitutionally deficient
performance when he failed to investigate the new evidence that was discovered after trial.
To prevail on an ineffective assistance of counsel claim, Petitioner must show that counsel’s
representation fell below an objective standard of reasonableness, and that counsel’s
deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88
(1984). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Id. at 686. To establish prejudice, Petitioner
must show a reasonable probability that counsel’s errors affected the outcome of the
proceeding. Id. at 696.
The state court found that Petitioner failed to show that his trial counsel’s performance
was constitutionally deficient for failing to investigate the new evidence that was discovered
after trial. The state court used a standard similar to the Strickland analysis, and held that “the
evidence produced to Defendant after his trial is not sufficiently exculpatory to overcome the
substantial evidence presented against him at trial. Thus, Defendant cannot show that, even

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if trial counsel should have discovered the evidence, the result of his trial would have been
different. Therefore, Defendant cannot show he received ineffective assistance of counsel.”
(3/25/2013 Order 14.) Again, given the evidence described above, the Court cannot say that
there was no reasonable basis for the state court to deny relief. Bell, 703 F.3d at 854 (citation
omitted). Accordingly, Petitioner’s claim of ineffective assistance of counsel fails.
3. Cumulative Effect of Evidence
Lastly, Petitioner argues that the cumulative effect of the evidence denied him a fair
trial. The state court found that “the ‘cumulative effect of the newly discovered evidence did
not actually prejudice Defendant when considering the substantial amount of evidence
supporting his guilty conviction.” (3/25/2013 Order 14.) The Court finds that, given the
evidence presented at trial that implicated Defendant, this determination was reasonable.
Accordingly, Petitioner’s claim is meritless.
IV. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy
this standard, the petitioner must show that “reasonable jurists could debate whether . . . 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,
483 (2000) (internal quotation marks omitted). The Sixth Circuit has disapproved the

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issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466
(6th Cir. 2001). Rather, the district court must “engage in a reasoned assessment of each
claim” to determine whether a certificate is warranted. Id. at 467.
The magistrate judge recommended that a certificate of appealability be granted as to
the three issues Petitioner raised in the trial courts during his second motion for relief from
judgment. (R&R 17.) The Court agrees. Accordingly,
IT IS HEREBY ORDERED that the July 14, 2015 Report and Recommendation
(ECF No. 110) is APPROVED and ADOPTED as the Opinion of this Court. Petitioner’s
objections to the R&R are OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s petition for writ of habeas pursuant
to 28 U.S.C. § 2254 (ECF No. 1) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED as to
the three issues Petitioner raised in the trial courts during his second motion for relief from
judgment.
Judgment will enter in accordance with this Opinion.

Dated: May 10, 2016

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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