King v. Wallace

Filing 27

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. ' 2254 be denied and be dismissed with prejudice by separate judgment entered this date. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal. Signed by Magistrate Judge Abbie Crites-Leoni on 3/3/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHAUN D. KING,

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Petitioner,
vs.
IAN WALLACE,
Respondent.

Case No. 4:13CV0199 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Shaun D. King for a Writ of Habeas
Corpus under 28 U.S.C. ' 2254.
I. Procedural History
King is currently incarcerated at Southeast Correctional Center in Charleston, Missouri,
pursuant to the Sentence and Judgment of the Circuit Court of the City of St. Louis, Missouri.
(Respt’s Ex. I/Doc. 23 at 68-70.)
On February 11, 2009, a jury found King guilty of statutory sodomy in the first degree.
(Respt’s Ex. D/Doc. 13-4 at 293.) The court sentenced King as a prior and persistent offender to
twenty-five years imprisonment. Id. at 302; Respt’s Ex. I/Doc. 23 at 69.
King raised a single point on direct appeal of his conviction. (Respt’s Ex. A/Doc. 13-1.)
King argued that the trial court improperly sentenced him, in that it took into consideration matters
improper for sentencing. Id. at 2. The Missouri Court of Appeals affirmed the judgment of the
trial court. (Respt’s Ex. C/Doc. 13-3.)
King filed a pro se motion for post-conviction relief under Rule 29.15. (Respt’s Ex.
J/Doc. 23-1 at 3-18.) After appointment of counsel, King filed an amended post-conviction relief
motion under Rule 29.15 and request for an evidentiary hearing, in which he raised two claims.
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Id. at 24-32. First, King argued that he received ineffective assistance of counsel when trial
counsel failed to conduct an adequate pretrial investigation and to call witnesses who could have
supported his defense. Id. at 25. Second, King argued that he was improperly sentenced as a
Level Four offender. Id. at 26. On May 12, 2011, the motion court denied King’s amended
motion and request for an evidentiary hearing. Id. at 35-38.
King raised a single point on appeal from the denial of post-conviction relief. (Respt’s
Ex. E/Doc. 13-5 at 8.) King argued that the motion court clearly erred in denying his claim that
the sentence imposed by the trial court violated his rights to due process and freedom from cruel
and unusual punishment. Id. The Missouri Court of Appeals affirmed the decision of the motion
court. (Respt’s Ex. H/Doc. 13-8.)
King filed a Petition in the instant habeas action on January 30, 2013, raising the following
grounds for relief: (1) the trial court erred in sentencing King by considering improper factors; (2)
he received ineffective assistance of counsel when trial counsel failed to properly investigate
King’s theory of defense; (3) the trial court erred in sentencing King as a Level Four offender; and
(4) he is actually innocent because the victim allegedly recanted her trial testimony. (Doc. 1.)
On January 21, 2014, Respondent filed a Response to Order to Show Cause, in which he
argues that Grounds Two and Four are procedurally defaulted, and all of King’s claims fail on their
merits. (Doc. 13.)
II. Facts
The Court’s summary of the facts below is taken directly from the decision of the Missouri
Court of Appeals affirming the denial of post-conviction relief. (Respt’s Ex. H/Doc. 13-8 at 2-4.)
On or about June 29, 2007, P.J. (Victim), then thirteen years of age, went to the home of her
friend Kelsey to help Kelsey clean her room. King, then twenty-nine years of age and a friend of
Kelsey’s mother, was at the house. When Victim went downstairs to retrieve a broom, King
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blocked her on the stairs and said, “You look good. I want to wait, but then again I don’t.”
Victim ran up the stairs to Kelsey’s room, and the girls locked the door. As Victim was
preparing to tell Kelsey what had transpired, they heard a knock on the door. Shortly thereafter,
King opened the door with a key. King asked Kelsey to go downstairs and get him a glass of ice
water, leaving King and Victim alone in the bedroom. King then placed his mouth and tongue on
Victim’s vagina.
When Kelsey returned with the water for King, she saw King with his head between
Victim’s legs. King stood up and left the room, warning the girls, “I don’t care who you tell, I’m
SK, I kill everybody around the corner.” As Victim lived with her mother around the corner from
Kelsey’s house, she understood King’s comment to be a threat to kill Victim and her family.
At trial, the court found that King was a prior and persistent offender because he had
previously pleaded guilty to the following felonies: possession of a controlled substance on
September 1, 2004; felony stealing and two counts of forgery on January 11, 1999; and possession
of a controlled substance on January 11, 1999. At the sentencing hearing, after the court
announced it had read King’s sentencing assessment report (“SAR”), defense counsel stated:
First, on the sentencing assessment report, they label him as a level four
offender. I believe that is—I believe that’s incorrect. I believe him to be a three
level offender. The way that that would change matters basically is in their
assessment of the mitigating, his presumptive and aggravating as a level four
offender, they list it as 20, 25, and 30.
As a level three offender it would be 10, 15, and 20. We believe 10 being a
mitigating, 15 being presumptive, and 20 being the aggravating…
The prosecutor announced that the State was recommending King serve twenty-five years in the
Department of Corrections. In support of this recommendation, the prosecutor explained that:
King was “29 years old and his fourth felony offense”; “has not followed the rules of
incarceration”; kept “the police at bay” at the time of his arrest by leading them to believe he was
holding people hostage; and did not accept responsibility but rather told the SAR writer that
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“people were angry” because he “checked out another woman.”
Defense counsel responded: “My understanding [is that the] State’s pretrial
recommendation was 15 years and I still stand by the fact that I believe [King] to be a level three
and I think that label of level four puts the sentencing range in excess of what, you know, based on
[King]’s background what is the proper sentence in this case.” The prosecutor stated that “this
victim was horribly terrified to come in and testify against this man and sometimes the State is
willing to cut a deal to prevent that.” He argued that the state should not be held to its pre-trial
recommendation.
The trial court acknowledged the dispute as to King’s prior criminal history level, stating:
I understand that, I mean, it’s an assessment with a lot of factors put into it. The
State is advocating what it is, defense is advocating what it is. The Court heard the
case. The Court is conversant with the defendant’s record. I have to say on this
conclusion I have never seen the ranges in a non homicide case in this range, but, as
defense attorney alleges that he’s not level four, he’s level three, I’m not going to
go off on a tangent on that.
This is a very serious charge. Absent a homicide, it’s hard to think of a
more serious charge. But long wind bagging here is not going to make it better or
worse. I have a legal obligation to be fair to both sides and the victim and sentence
appropriately.
The court sentenced King to twenty-five years’ imprisonment.

III. Standard of Review
A federal court=s power to grant a writ of habeas corpus is governed by 28 U.S.C. '
2254(d), which provides:
(d) 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
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(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).
The Supreme Court construed § 2254(d) in Williams v. Taylor, 529 U.S. 362 (2000).
With respect to the Acontrary to@ language, a majority of the Court held that a state court decision
is contrary to clearly established federal law Aif the state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law@ or if the state court Adecides a case
differently than [the] Court has on a set of materially indistinguishable facts.@ Id. at 405.
Under the Aunreasonable application@ prong of ' 2254(d)(1), a writ may issue if Athe state court
identifies the correct governing legal rule from [the Supreme Court=s] cases but unreasonably
applies [the principle] to the facts of the particular state prisoner=s case.@ Id. Thus, Aa federal
habeas court making the >unreasonable application= inquiry should ask whether the state court=s
application of clearly established federal law was objectively unreasonable.@

Id. at 410.

Although the Court failed to specifically define Aobjectively unreasonable,@ it observed that Aan
unreasonable application of federal law is different from an incorrect application of federal law.@
Id. at 410.
IV. Procedural Default
Respondent argues that Grounds Two and Four are procedurally defaulted, because King
did not raise Ground Two in his post-conviction appeal, and he did not raise Ground Four at all in
the state proceedings.
To avoid defaulting on a claim, a petitioner seeking federal habeas review must have
fairly presented the substance of the claim to the state courts, thereby affording the state courts a
fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark
v. Iowa, 322 F.3d 1018, 1020B21 (8th Cir. 2003) (internal quotation marks and citations omitted)
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(quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) and Anderson v. Groose, 106
F.3d 242, 245 (8th Cir. 1997)). Specifically, a state prisoner must fairly present each of his
claims in each appropriate state court before seeking federal habeas review of the claim.
Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim has been fairly presented when a petitioner
has properly raised the same factual grounds and legal theories in the state courts that he is
attempting to raise in his federal petition. Wemark, 322 F.3d at 1021 (internal quotation marks
omitted) (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). Claims that are not
fairly presented to the state courts are procedurally defaulted. See id. at 1022.
King raised Ground Two in his post-conviction motion, but failed to raise this claim in his
appeal from the denial of post-conviction relief. When appellate review of a post-conviction
motion is available, failure to include a claim made to the motion court operates as a procedural
bar to consideration of such a claim by the federal courts. Flieger v. Delo, 16 F.3d 878, 885 (8th
Cir. 1994); Boyd v. Groose, 4 F.3d 669, 671 (8th Cir. 1993). As a result, Ground Two is
procedurally defaulted.
In Ground Four, King raises a free-standing actual innocence claim. King claims that he
is actually innocent because the victim recanted her trial testimony in an Affidavit that is attached
to his Petition. Respondent contends that King procedurally defaulted this claim by failing to
raise it in the post-conviction proceedings. King argues that he did raise this claim in his pro se
post-conviction motion, and that his appointed counsel failed to include the claim in his amended
motion. The record reveals that King did raise this claim in his pro se motion, and that he
attached the Affidavit of the alleged victim to his pro se motion.
Under Missouri case law, however, the amended post-conviction motion supersedes the
pro se post-conviction motion, and any claims in the pro se motion for post-conviction relief were
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no longer before the motion court, except to the extent they were included in the amended motion.
See Tinsley v. State, 258 S.W.3d 920, 927 (Mo. Ct. App. 2008) (“the only claim which the motion
court could have considered and determined was that raised in the amended ... motion for
postconviction relief [because t]he filing of an amended motion superseded [the] pro se motion
and rendered it a nullity” (citations omitted)); Day v. State, 143 S.W.3d 690, 693–94 (Mo. Ct.
App. 2004) (“The amended motion supersedes [the] pro se motion and renders it a nullity”
(citations omitted)). Because King’s actual innocence claim was not raised in his amended
post-conviction relief motion, it is procedurally defaulted.
Claims that have not been fairly presented to the state courts are procedurally defaulted
and may not give rise to federal habeas relief unless the petitioner establishes “cause for not
presenting the claim on post-conviction appeal and prejudice from the failure, or a fundamental
miscarriage of justice-meaning that he is actually innocent.” Storey v. Roper, 603 F.3d 507,
523-24 (8th Cir. 2010), citing Schlup v. Delo, 513 U.S. 298, 324 (1995).
In Schlup, the Supreme Court recognized that a habeas petitioner could present a claim of
actual innocence as a “gateway” to resurrecting procedurally defaulted claims of constitutional
error which occurred in the underlying trial, but “such a claim requires petitioner to support his
allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at
trial.” Schlup, 513 U.S. at 324. Petitioners asserting innocence as a gateway to defaulted claims
must establish that in light of new evidence, “it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt.” Id. at 327.
The Supreme Court explained in House v. Bell, 547 U.S. 518 (2006), that the Schlup
standard “is demanding and permits review only in the ‘extraordinary’ case. At the same time,
though, the Schlup standard does not require absolute certainty about the petitioner’s guilt or
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innocence.” House, 547 U.S. at 538 (citations omitted). And more recently in McQuiggin v.
Perkins, 133 S.Ct. 1924 (2013), the Supreme Court reaffirmed that “a credible showing of actual
innocence may allow a prisoner to pursue his constitutional claims (here, ineffective assistance of
counsel) on the merits notwithstanding the existence of a procedural bar to relief.” McQuiggin,
133 S.Ct. at 1931. The Court further stated that it had “not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual innocence.” Id.
Here, the undersigned concludes that King has not made a showing of actual innocence,
either as a freestanding claim or as a gateway to excuse his procedural default of grounds Two and
Four. King claims that the Affidavit attached to his Petition, allegedly from Victim, establishes
his innocence. In the Affidavit, Victim states that her friend had a dispute with King and asked
Victim to help her “get back at [King] by making the false accusations.” (Respt’s Ex. J at 17.)
Victim states that she made the accusations because she was young at the time, and was “afraid of
the consequences that I would suffer from my mother about a rumor that [I] had been sexually
involved with [King].” Id. She states that she recants “any and all false statements and
accusations that I made against Mr. Shaun King.” Id.
The Court views the Affidavit with considerable suspicion because “[t]he stability and
finality of verdicts would be greatly disturbed if courts were too ready to entertain testimony from
witnesses who have changed their minds, or who claim to have lied at the trial.” See United
States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005) (quoting United States v. Grey Bear, 116
F.3d 349, 350 (8th Cir. 1997)). Skepticism about the truthfulness of such testimony is
particularly warranted in child sexual abuse cases. United States v. Provost, 969 F.2d 617, 621
(8th Cir. 1992) (noting the “recurring phenomenon” of recantations in cases of child sexual
abuse).

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The Affidavit upon which King relies is not reliable evidence of his innocence. At trial,
not only did Victim testify, but Victim’s friend and eyewitness, Kelsey, testified at trial and
corroborated Victim’s testimony. In addition, Detective Jacqueline Brooks testified regarding
statements that Victim and Kelsey made to her when she interviewed them less than two weeks
after the crime. The statements provided to Detective Brooks regarding the crime are consistent
with the testimony of these witnesses at trial. The Affidavit provided by King is not “new
reliable evidence” that would support a finding that his case is “extraordinary,” thereby
permitting review under Schlup. Thus, King’s grounds for relief cannot be resurrected from
procedural default, because there is no new evidence or a credible claim of actual innocence.
V. King’s Claims
As previously noted, King raises four grounds for relief. The undersigned will discuss
King’s claims in turn.
1.

Ground One
In Ground One, King argues that the trial court considered improper matters in sentencing

him, thereby violating his rights to Due Process and a fair trial. Specifically, King claimed it was
improper for the court to consider the State’s assertion that the victim was “horribly terrified” to
testify at the trial.
King raised this claim in his direct appeal. He argued that the court, in sentencing him,
essentially punished him for exercising his right to take his case to trial. The Missouri Court of
Appeals summarily denied King’s claim. (Respt’s Ex. C/Doc. 13-3.) The appellate court
reviewed the sentencing transcript in detail and concluded:
It is clear from the record that the trial court considered a number of appropriate
factors in determining the defendant’s sentence, namely the seriousness of the
nature of the crime against a child, the evidence adduced at trial, including threats
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to the victim, and the defendant’s extensive criminal history. Given the record
and the context in which the trial court made its comment, we do not read the
single sentence identified by the defendant as evidence that the trial court
improperly punished the defendant for exercising his right to a jury trial.
(Respt’s Ex. K/Doc. 26-1.)
The Sixth Amendment guarantees the right to a trial by jury, and a court may not penalize
a person for exercising a right guaranteed under the Constitution. See Bordenkircher v. Hayes,
434 U.S. 357, 363 (1978) (“To punish a person because he has done what the law plainly allows
him to do is a due process violation of the most basic sort.”). However, plea bargains, which
often require a defendant to choose between going to trial and pleading guilty in order to receive a
reduced sentence, are an important and constitutional part of the criminal justice system. See
Corbitt v. New Jersey, 439 U.S. 212, 218–19 (1978) (“[T]here is no per se rule against
encouraging guilty pleas.”).
“A sentence is unconstitutionally vindictive if it imposes greater punishment because the
defendant exercised a constitutional right, such as the right to jury trial or the right to appeal.”
Waring v. Delo, 7 F.3d 753, 758 (8th Cir. 1993). A habeas petitioner bears the burden of proving
that actual judicial vindictiveness motivated the sentence he received after trial. See Wasman v.
United States, 468 U.S. 559, 567–68 (1984). During a trial, “the judge may gather a fuller
appreciation for the nature and extent of the crimes charged” and gain “insights into [the
defendant's] moral character and suitability for rehabilitation.” Alabama v. Smith, 490 U.S. 794,
801 (1989). In addition, “after trial, the factors that may have indicated leniency as
consideration for the guilty plea are no longer present.” Id.
The decision of the State court was not contrary to or an unreasonable application of
clearly established law. King has failed to demonstrate that actual judicial vindictiveness
motivated his sentence. Rather, the sentencing judge stated that he had “a legal obligation to be
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fair to both sides and the victim and sentence appropriately.” (Respt’s Ex. D/Doc. 13-4 at 302.)
The sentencing hearing transcript reveals that the court considered factors such as the serious
nature of the crime, King’s criminal history, and information contained in the SAR when
determining King’s sentence. There is no evidence that the court considered any improper
factors. Thus, Ground One will be denied.
2.

Ground Two
In Ground Two, King argues that he received ineffective assistance of counsel due to trial

counsel’s failure to properly investigate King’s theory of defense, including reviewing possible
witnesses and calling these witnesses at trial. In making this claim, King failed to identify
specific witnesses as well as what said witnesses’ testimony would have been. The Court has
already found that King procedurally defaulted this claim by abandoning it on appeal from the
denial of post-conviction relief. This claim fails on its merits as well.
The motion court held as follows:
In order to be entitled to relief on the ground that counsel failed to call
witnesses [King] must identify who the witnesses were and prove that counsel
knew or should have known of their existence, establish that the witnesses could
have been located through reasonable investigation, the witnesses would have
testified if called and their testimony would have provided a viable defense.
[Citations omitted].
The Court finds this claim is without merit because it amounts to mere
speculation. [King] has not named the witness or witnesses who could have been
called and has not alleged the facts to which they would have testified and how
such facts would have established a defense. The Court further notes that the
victim, PJ, knew [King] and identified him as the perpetrator, and that another
witness for the State, Kelsey Miller, who observed the conduct, corroborated the
victim’s testimony as to what occurred.
(Respt’s Ex. G/Doc. 13-7 at 36-37.)
In order to state a claim of ineffective assistance of trial counsel, a petitioner must meet
the Strickland standard: King must demonstrate that his counsel’s performance was deficient and
that he was prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 687
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(1984). Deficient representation means counsel’s conduct fell below the conduct of a reasonably
competent attorney. Strickland, 466 U.S. at 687. To establish prejudice, a petitioner must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Federal habeas review of a Strickland claim is highly
deferential, because “[t]he question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether the determination was
unreasonable - a substantially higher threshold.” Knowles v. Mirzayance, 129 S.Ct. 1411, 1420
(2009) (internal quotations and citations omitted).
The determination of the motion court does not contravene or unreasonably apply clearly
established federal law. King has not specified the witnesses that his counsel failed to call, or
what their testimony would be. He has not, therefore, demonstrated that defense counsel’s
actions were unreasonable, nor has he shown that the result of his trial would have been different
had counsel called the alleged witnesses. Thus, Ground Two will be denied.
3.

Ground Three
In Ground Three, King argues that the trial court erred in sentencing him as a Level Four

offender based on the SAR. King contends that the sentence violated his rights to Due Process
and freedom from Cruel and Unusual Punishment.
King raised this claim in his post-conviction motion, and in his appeal from the denial of
post-conviction relief. The Missouri Court of Appeals noted that King’s sentence of twenty-five
years’ imprisonment was within the statutory range of punishment for the crime he committed.
(Respt’s Ex. H/Doc. 13-8 at 6.) The court stated that the authorized term of imprisonment for
first-degree statutory sodomy pursuant to Section 566.062 is life imprisonment or a term of
imprisonment not less than five years. Id. The court found that King’s sentence was not based
upon misinformation about King’s criminal history. Id. The court held:
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[King] did not challenge the trial court’s finding that he was a prior and persistent
offender. Nor does he now allege that the information before the sentencing
court relating to his prior criminal convictions was incorrect. Instead, [King]
challenges his classification as a Level IV offender—a classification provided by
the Missouri Sentencing Advisor Commission to facilitate the trial courts’
exercise of informed discretion in sentencing decisions. Our review of the record
reveals that the trial court based [King]’s sentence on the serious nature of the
crime and his criminal record, and not on his designation as a Level IV offender.
Point denied.
Id. at 6-7.
The Cruel and Unusual Punishments Clause prohibits the imposition of inherently
barbaric punishments under all circumstances, but also punishments that are disproportionate to
the crime. Id. “The concept of proportionality is central to the Eighth Amendment. Embodied
in the Constitution's ban on cruel and unusual punishments is the ‘precept of justice that
punishment for crime should be graduated and proportioned to [the] offense.’” Graham v.
Florida, 130 S.Ct. 2011, 2021 (2010) (quoting Weems v. United States, 217 U.S. 349, 367
(1910)). “To determine whether a sentence is grossly disproportionate, [the Court should]
examine the gravity of the offense compared to the harshness of the penalty.” United States v.
Lee, 625 F.3d 1030, 1037 (8th Cir. 2010) (internal quotations omitted). “A sentence within the
statutory limits is generally not subject to Eighth Amendment review.” United States v.
Atterberry, 447 F.3d 562, 565 (8th Cir. 2006).
In this case, King was sentenced to a term of imprisonment within the authorized statutory
range. In fact, King’s sentence was less than the maximum sentence permitted under the statute.
King was convicted of first degree statutory sodomy of a thirteen-year-old child, which is a
serious crime. Thus, King’s sentence is not disproportionate to the crime committed, and the
state court’s decision is not contrary to, nor does it involve an unreasonable application of clearly
established federal law. Ground Three will be denied.

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4.

Ground Four
In Ground Four, King claims that he is actually innocent due to the alleged recantation of

Victim. As previously discussed, King’s claim is procedurally defaulted. The Court found that
the Affidavit upon which King relies is not reliable evidence of his innocence. Further, “claims
of actual innocence based on newly discovered evidence have never been held to state a ground
for federal habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding.” Burton v. Dormire, 295 F.3d 839, 848 (8th Cir. 2002)
(quoting Meadows v. Delo, 99 F.3d 280, 283 (8th Cir. 1996) and Herrera v. Collins, 506 U.S.
390, 400 (1993)). Accordingly, Ground Four will be denied.

VI.

Certificate of Appealability

To grant a certificate of appealability, a federal habeas court must find a substantial
showing of the denial of a federal constitutional right. See 28 U.S.C. ' 2253(c)(2); Hunter v.
Bowersox, 172 F.3d 1016, 1020 (8th Cir. 1999). A substantial showing is established if the
issues are debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
In this case, King has failed to make a substantial showing of the denial of a constitutional
right. The undersigned is not persuaded that the issues raised in his Petition are debatable
among reasonable jurists, that a court could resolve the issues differently, or that the issues
deserve further proceedings.
Accordingly, no Certificate of Appealability shall be issued.

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ORDER
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for
a Writ of Habeas Corpus under 28 U.S.C. ' 2254 be denied and be dismissed with prejudice by
separate judgment entered this date.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be
denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal.

s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 3rd day of March, 2016.

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