Winstead v. Russell

Filing 25

MEMORANDUM AND ORDER re: 1 PETITION for Writ of Habeas Corpus filed by Petitioner Nick T. Winstead. 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 8/9/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NICK WINSTEAD,

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Petitioner,
vs.
IAN WALLACE,1
Respondent.

Case No. 4:13CV887 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Nick Winstead for a Writ of Habeas
Corpus under 28 U.S.C. ' 2254.
I. Procedural History
Winstead is currently incarcerated at Southeast Correctional Center in Charleston,
Missouri, pursuant to the sentences and judgments2 of the Circuit Court of St. Louis County,
Missouri. (Respt’s Ex. A at 98-102.)
The convictions at issue in this case result from four separate cases. In Case Number
09SL-CR08218, the State charged Winstead with one count of burglary in the first degree, two
class C felonies of stealing, and one misdemeanor of stealing for events occurring on October 9,
2009. (Respt’s Ex. A at 9-10, 12-15.) In Case Number 10SL-CR00147, the State charged
Winstead with one count of attempted burglary in the second degree, three counts of burglary in
1

Winstead has been transferred and is now confined at the Southeast Correctional Center in
Charleston, Missouri; consequently, the Warden there, Ian Wallace, is substituted as the proper
Respondent. See Rule 2(a), Rules Governing Section 2254 Cases in the United States District
Courts.
2

Winstead challenges his plea and sentence in four separate cases in his Petition. Because the
state court held one plea and one sentencing hearing for all four cases, and Winstead raises the
same challenge to the validity of all sentences, this Court will consider the challenges to the
multiple convictions together in this case.
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the second degree, and three counts of the class C felony of stealing for events occurring between
September 14, 2009, and September 16, 2009. Id. at 16-18, 52-55. In Case Number
10SL-CR00184, the State charged Winstead with three counts of burglary in the second degree
and five counts of the class C felony of stealing for events occurring on September 25, 2009,
October 9, 2009, and October 13, 2009. Id. at 18-21, 73-76. In Case Number 10SL-CR03525,
the State charged Winstead with two counts of burglary in the second degree, one count of the
class C felony of stealing, and two counts of attempted burglary in the first degree for offenses
occurring on September 3, 2009, and October 8, 2009. Id. at 21-23, 92-95.
On July 12, 2010, Winstead entered a “blind” plea of guilty to each of the above counts
with no agreement about the sentence that the court might impose. Id. at 12-23. The court
ordered the State Board of Probation and Parole to submit a Pre-Sentence
Investigation/Sentencing Assessment Report (“SAR”), and deferred sentencing August 24, 2010.
Id. at 13. The plea court also granted Winstead’s request that he be screened for placement in a
long-term drug treatment program. Id. at 15. On August 24, 2010, the plea court sentenced
Winstead to concurrent terms of eighteen years for the burglary in the first degree count, fifteen
years for each of the class C felony stealing counts, fifteen years for each of the burglary in the
second degree counts, fifteen years for each of the attempted burglary in the first degree counts,
and seven years for the attempted burglary in the second degree count, for a total sentence of
eighteen years imprisonment. Id. at 27-29.
Winstead filed a Motion to Withdraw Guilty Plea on August 31, 2010. Id. at 125.
Winstead argued that he did not understand the terms of his blind plea. Id. He claimed that he
believed that, if he was approved for the long-term drug treatment program and assigned a bed
date, he would be given a chance to complete the long-term drug treatment program. Id. The

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court denied Winstead’s Motion, after holding a hearing at which Winstead and plea counsel
testified. Id. at 33-36.
On November 15, 2010, Winstead filed a pro se Motion to Vacate, Set Aside or Correct the
Judgment or Sentence pursuant to Mo.S.Ct.Rule 24.035. Id. at 107-19. On March 16, 2011,
after appointment of counsel, Winstead filed an Amended Motion to Vacate, Set Aside or Correct
Judgment and Sentence and Request for Evidentiary Hearing. Id. at 130-44. Winstead argued
that he was denied effective assistance of counsel because plea counsel advised him that if he
entered blind guilty pleas, he would receive long-term institutional drug treatment.

Id.

Winstead also argued that the plea court lacked authority to sentence him as a prior and persistent
offender because the State failed to prove his prior convictions. Id. On November 10, 2011, the
motion court denied Winstead’s motion and his request for an evidentiary hearing. Id. at 147-53.
The court held that Winstead’s allegations were refuted by the record. Id. at 151-52.
In his single point on appeal from the denial of post-conviction relief, Winstead argued that
he was denied his right to effective assistance of counsel because plea counsel induced him to
plead guilty by convincing him the court would order long-term drug treatment, provided
Winstead qualified for it, following a blind plea. (Respt’s Ex. B at 13.) On November 13, 2012,
the Missouri Court of Appeals affirmed the denial of post-conviction relief. (Respt=s Ex. D.)
On May 6, 2013, Winstead, pro se, filed the instant Petition for a Writ of Habeas Corpus.
(Doc. 1.) In his single ground for relief, Winstead argues that he received ineffective assistance
of counsel rendering his guilty pleas involuntary. Id. at 5. Winstead contends that, based on
advice from counsel, he had a mistaken belief that he was pleading guilty in return for a sentence
to the State’s long-term drug treatment program. Id.
On June 28, 2013, Respondent filed a Response to Order to Show Cause, in which he
argues that the Petition should be denied because Petitioner’s claim fails on its merits. (Doc. 8.)
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Respondent argues that Winstead’s claim is based on the assumption that the record demonstrates
that he was eligible to be placed in the long-term treatment program, yet Winstead failed to include
the SAR as part of the record on post-conviction appeal. Respondent argues that, without the
SAR, “this Court is left to infer what that report said about the Long-Term Treatment Program
from ambiguous comments in the record,” and Winstead is unable to show that the state court
acted unreasonably in finding that Winstead could not show prejudice.

(Doc. 8 at 11.)

Respondent noted that, based on the discussion at the sentencing, “it appears that the sentencing
assessment report recommended a prison sentence rather than placement in the Long-Term
Treatment Program.” Id. at 8.
In response to this argument, Winstead filed a Motion to Order Production of the SAR,
claiming that Respondent had raised the issue of the contents of the SAR and he had been unable
to obtain the SAR on his own from the state courts. The undersigned granted Winstead’s
Motion to Order Production of the Sentencing Assessment Report. (Doc. 17.) Respondent
complied with the Court’s Order and filed a copy of the SAR. (Doc. 18-1.) Respondent also
filed a Supplemental Response to Order to Show Cause (Doc. 18), to which Winstead has filed a
Reply (Doc. 19).
II. Facts
The following exchange occurred at Winstead’s plea hearing:
THE COURT: You want to give up all those rights and plead guilty here today?
[Winstead]: Yes, ma’am.
THE COURT: My understanding is that guilty plea is not pursuant to a
recommendation with the state; is that correct?
[Winstead]: Yes, ma’am.
THE COURT: Okay. So it is what we call a blind plea?
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[Winstead]: Yes, ma’am.
THE COURT: And you understand your lawyer explained that to you what that
was?
[Winstead]: Yes, ma’am.
THE COURT: You understand that you will be participating in a Presentence
Investigation or Sentencing Assessment Report?
[Winstead]: Yes, ma’am.
THE COURT: Okay. And then they will, the State Board of Probation and Parole,
will participate in that with you and will then give a recommendation to the state.
[Winstead]: Yes, ma’am.
THE COURT: I mean, recommendation to the Court.
[Winstead]: Yes, ma’am.
THE COURT: And that the state has already made a recommendation; correct?
[Winstead]: Yes, ma’am.
THE COURT: Okay. You understand that any recommendation the state makes is
not binding upon this Court?
[Winstead]: Yes, ma’am.
THE COURT: And I could impose any sentence allowable within the range of
punishment permitted by law.
[Winstead]: Yes, ma’am.
(Respt’s Ex. A at 13.)
The plea court then proceeded with the guilty pleas in each of the four cases. After
discussing the factual basis of each charge, the court asked Winstead if anyone had made any
promises to him about the sentence that would be imposed. Id. at 14, 17, 20, 22. Winstead
responded each time that no one had made any promises to him. Id. The court also asked

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Winstead if he understood that no one could promise him what his sentence would be. Id.
Winstead testified that he understood this. Id.
The court next asked Winstead if he understood that “no matter what the Sentencing
Assessment Report or Presentence Investigation comes back with you can’t withdraw your plea of
guilty at that time.” Id. at 21. Winstead testified that he understood this. Id.
After accepting Winstead’s pleas of guilty, the court directed the State Board of Probation
and Parole to submit a Presentence Investigation Report, including a screening “to determine
defendant’s fitness to enter into a long term treatment program.” Id. at 23.
At the sentencing hearing, the court indicated that it had received and shared with the State
and counsel for Winstead the Presentence Investigation or SAR. Id. at 24. At the beginning of
the hearing, Winstead’s counsel requested that the court place him in the long-term drug treatment
program. Id. Three of the victims of the burglaries to which Winstead pleaded guilty provided
testimony regarding the impact of the crimes. Id. at 25-26. Winstead’s counsel then again
requested that the court place Winstead in the long-term drug treatment program. Id. at 26.
Defense counsel acknowledged that the court “has some issues with his lengthy record and
concerns about whether he could benefit from this program after having had prior programs.” Id.
The prosecutor responded that “the Presentence Investigation says all what needs to be said about
Mr. Winstead’s past.”

Id.

He indicated that the State was “still asking for the prior

recommendation of twenty years in the Missouri Department of Corrections.” Id.
The court questioned Winstead, who testified that he had participated in drug treatment
programs “maybe three” times. Id. He stated that one of those programs was an inpatient
treatment program. Id. Winstead then provided a statement, in which he stated that he was sorry
for his crimes and indicated that he had a drug problem. Id.

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The court indicated that it had reviewed the SAR in depth, and stated as follows to
Winstead:
And of concern to me, is your history of times you have been out on probation or
parole and unable to complete that successfully; your prior drug treatment. I
reviewed the victim impact statements that they have collected; some of which
have testified and you have heard here today and some of which are not here today.
The Missouri Department of Corrections Board of Probation and Parole has
arranged and it has recommended with the mitigating factor, had you qualified for
that, of twelve years in prison; presumptively fifteen year sentence, presumptive
sentence and aggravating twenty year prison sentence.
I have heard arguments by both defense counsel and the state. And so if
there is—if no one has any legal reason why sentence should not be pronounced we
will proceed.
Id. at 27. The court sentenced Winstead to a total of eighteen years imprisonment. Id. at 27-29.
The court then questioned Winstead as follows regarding the assistance provided by
counsel and his understanding of the proceedings:
THE COURT: And did your attorney advise you as to all aspects of the case
including all of your legal rights?
[Winstead]: Yes, ma’am.
***
THE COURT: Has your attorney done everything you have asked him to do in this
case?
[Winstead]: Yes, ma’am.
THE COURT: Did he do anything you specifically told him not to do?
[Winstead]: No, ma’am.
THE COURT: Overall are you satisfied with the services he has rendered to you?
[Winstead]: Yes, ma’am.
THE COURT: Okay. And you have had no problem understanding these
proceedings as they have gone along; is that correct?
[Winstead]: No, ma’am—yes, ma’am.

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THE COURT: So that is correct you haven’t had concerns about understanding
what has happened?
[Winstead]: That is correct.
THE COURT: You haven’t had any concerns about your lawyer; is that correct?
[Winstead]: Yes, ma’am.
THE COURT: And the sentence that I imposed was not pursuant to a plea
agreement with the state; is that correct?
[Winstead]: Yes, ma’am.
THE COURT: And you heard me indicate to you what the Sentencing Assessment
Report recommended between the twelve and twenty years; is that correct?
[Winstead]: Yes, ma’am.
Id. at 29-30. The court found that no probable cause existed that Winstead received ineffective
assistance of counsel. Id. at 30.
At the hearing on Winstead’s Motion to Withdraw Guilty Plea, plea counsel testified as
follows:
While I understand that the Court went through a very detailed explanation
at Mr. Winstead’s plea of what a blind plea was, I want to indicate to the Court that
I do believe that Mr. Winstead thought at the time of his plea that the only thing he
was really taking a chance on was whether he would be approved for the long-term
drug treatment program.
I don’t think he anticipated a situation where he would be approved after
screening for the long-term drug treatment program, but then the Court would not
give it to him. So I do feel that I have some responsibility for not making sure that
Mr. Winstead clearly understood that.
Id. at 33. The prosecuting attorney responded as follows:
As I recall, Mr. Winstead entered pleas of guilty blind to the Court on all the
files and all the counts…A pre-sentence investigation was ordered, and it was
determined he would be screened for the long-term treatment program; however,
screening does not guarantee sentencing to the long-term treatment program.
Mr. Winstead was told by the Court at the time of the plea and the
sentencing that you would not be bound by the State’s recommendation.
He was still sentenced in the range of punishment to a lesser sentence than
what the State recommended, by the way. And Mr. Winstead at this time just
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doesn’t like what he was sentenced to and is trying to go back and undo or unring
the bell. That’s not a basis to withdraw his guilty plea.
Id. at 33-34.
Winstead testified that he “was under the impression that if I got screened and approved for
it, that I’d get it.” Id. at 34. The court reminded Winstead of his testimony during the plea
hearing that no one had promised him what his sentence would be. Id. The court explained that
the SAR “came back with a lot of information that I actually did not have when I accepted your
plea and prior to sentencing.” Id. at 35. The court stated: “I think I used the pre-sentence
investigation appropriately, made a determination on the sentence.” Id. The court found that
Winstead had failed to demonstrate a manifest injustice warranting the setting aside of the pleas.
Id. at 34-35.
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
(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 Section 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
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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. Winstead’s Claim
Winstead argues that he received ineffective assistance of counsel rendering his guilty
pleas involuntary. Specifically, Winstead contends that, based on advice from plea counsel, he
had a mistaken belief that he was pleading guilty in return for a sentence to the State’s long-term
drug treatment program.

This is the same claim Winstead raised in the post-conviction

proceedings.
The motion court rejected Winstead’s claim, holding that Winstead’s testimony at the plea
hearing revealed that he knew that the court could impose any sentence allowable by law within
the range of punishment permitted by law, and that any recommendation by the State or in the
SAR was not binding upon the court. (Respt’s Ex. A at 151.) The court further found that
Winstead stated under oath that no one had made any promises regarding what sentence he would
actually receive, and that he was satisfied with the services of his counsel, even after he was
sentenced. Id. at 152.
The Missouri Court of Appeals held as follows:
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At the beginning of the plea hearing, Movant assured the court that he
understood he was pleading blind and not pursuant to the State’s recommendation.
Movant also understood that he would participate in a SAR, based upon which the
Board would recommend a sentence, and the court ‘could impose any sentence
allowable within the range permitted by law.’ Additionally, Movant testified at
least four times and that no one had made him any promises to induce him to plead
guilty and he understood that no one could promise him what his sentence would
be. Finally, when the plea court reiterated that it was not bound by any
recommended or requested sentence, Movant stated that he understood. Based
on the above, we conclude that the record refutes Movant’s claim that counsel
promised him that, if he entered a blind guilty plea, the court would sentence
Movant to long-term drug treatment. See, e.g., Dorsey, 115 S.W.3d at 845.
Movant contends that the court’s ‘profuse warnings about its sentencing
discretion did not render [Movant’s] belief in his lawyer’s advice unreasonable as
a matter of law.’ We disagree. Given the court’s repeated warnings about its
sentencing discretion, coupled with Movant’s numerous statements that no one
had made him any promises to induce him to plead guilty and no one could
promise him a specific sentence, Movant’s alleged belief that he would receive
long-term drug treatment was unreasonable. Furthermore, in addition to being
reasonable, a movant’s mistaken belief must be based upon a positive
representation by counsel. Dorsey, 115 S.W.3d at 845. As previously stated, the
record refutes Movant’s claim that plea counsel promised him he would be
sentenced to long-term drug treatment.
Movant also argues that the court’s inquiries were not sufficiently specific
to refute his claim that he reasonably believed the court would sentence him to
long-term treatment. Statements made by a movant refute his ineffective
assistance of counsel claims if the questions and responses were specific enough to
refute conclusively the movant’s allegations. Stubbs v. State, 171 S.W.3d 139,
142 (Mo.App.W.D. 2005) (internal quotation omitted). The plea court repeatedly
asked Movant whether anyone had made Movant any promises to induce him to
plead guilty and whether Movant understood that no one had the authority to
promise him what his sentence would be. We conclude that the plea court’s
questions were specific enough to elicit answers that directly refuted Movant’s
claims that counsel assured him that, if approved, the court would sentence
Movant to long-term drug treatment. See, e.g. Burnett, 311 S.W.3d at 818.
(Respt’s Ex. D at 8-9.)3
As previously noted, Respondent has filed a copy of the SAR pursuant to this Court’s
Order.

Respondent, however, argues that this Court should not consider the SAR in its

evaluation of whether the Missouri Court of Appeals acted unreasonably because the SAR was
3

The appellate court noted earlier in its opinion that Winstead “has failed to provide this court
with evidence that the Board did, in fact, approve Movant for long-term drug treatment, thereby
violating his duty to prepare and file a complete record on appeal.” (Respt’s Ex. D at 6, fn. 1.)
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not part of the record before that court. Respondent contends that this Court need not reach the
actual contents of the SAR because the Missouri Court of Appeals reasonably determined that the
record refuted Winstead’s claim that he pleaded guilty in reliance upon an understanding that he
was guaranteed long-term treatment if it was recommended in the SAR. Finally, Respondent
argues that the SAR does not support Winstead’s position. Specifically, Respondent notes that,
while the availability of a bed in a long-term drug treatment program was noted in the section
titled “Offender Management Recommendations,” the ultimate recommendation contained in the
“Conclusion” section was as follows: twelve years imprisonment as the mitigating sentence,
fifteen years imprisonment as the presumptive sentence, and twenty years imprisonment as the
aggravating sentence. (Doc. 18-1 at 11-12.)
In Hill v. Lockhart, 474 U.S. 52, 58 (1985), the Supreme Court held that the two-pronged
Strickland test applies to challenges to guilty pleas on grounds of ineffective assistance of counsel
and that, to prevail, a habeas petitioner must show that his attorney’s performance “‘fell below an
objective standard of reasonableness,’” and that “there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
Hill, 474 U.S. at 58-59 (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).
Here, Winstead testified that he understood that his guilty pleas were not pursuant to a
recommendation with the State and that any recommendation from the State was not binding on
the court. Winstead was informed of the sentences he could receive under each count to which
he pleaded guilty, and testified that he understood that the court could impose any sentence
allowable within the range of punishment permitted by law. Winstead further testified that no
one had made any promises to him about the sentence that would be imposed, and that he
understood no one could promise him what his ultimate sentence would be.

Winstead’s

representations during the plea hearing carry a strong presumption of verity and pose a
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“formidable barrier to any subsequent collateral proceedings.” Nguyen v. United States, 114
F.3d 699, 703 (8th Cir. 1997) (citation omitted). Winstead testified at the sentencing hearing that
he was satisfied with the services provided by plea counsel. Significantly, Winstead did not
inform the court at that time of his belief that he was supposed to be placed in the long-term drug
treatment program.
Winstead testified at the plea hearing that he understood that he would not be able to
withdraw his pleas “no matter what the Sentencing Assessment Report or Presentence
Investigation comes back with.” (Respt’s Ex. A at 21.) The court explained to Winstead at the
sentencing hearing that, as a result of the SAR, it had concerns about Winstead’s criminal history
and his multiple failed attempts at drug-treatment programs.

The court also took into

consideration the multiple victim impact statements. The court explained to Winstead that the
Board of Probation and Parole recommended a mitigating sentence of twelve years
imprisonment, a presumptive sentence of fifteen years imprisonment, and aggravating sentence
of twenty years imprisonment. Winstead was sentenced within this range and, notably, was
sentenced below the State’s recommended sentence of twenty years.
Considering Winstead’s statements at the plea and sentencing hearings, the state courts
were reasonable in finding that Winstead received effective assistance of counsel and voluntarily,
knowingly, and intelligently pleaded guilty. See Nelson v. Hvass, 392 F.3d 320, 323–24 (8th
Cir. 2004) (holding that where habeas petitioner was informed at guilty plea hearing as to what his
sentencing exposure was, state courts’ finding that he did not base his decision to plead guilty on
his attorney’s alleged misstatements on the likely sentencing consequences if he pleaded guilty
instead of going to trial was not an unreasonable determination of the facts); Wilcox v. Hopkins,
249 F.3d 720, 724-75 (8th Cir. 2001) (rejecting claim of ineffective assistance based upon
counsel’s alleged misinformation as to likely sentencing consequences of pleading guilty where
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the state court advised petitioner of applicable minimum and maximum sentence); Dunn v.
Wyrick, 679 F.2d 731, 732–33 (8th Cir. 1982) (rejecting habeas petitioner’s claim that plea
counsel was ineffective for, among other things, misleading petitioner into believing he would
receive a certain sentence, in light of petitioner’s testimony at plea hearing that he was satisfied
with counsel’s performance).
The United States Supreme Court has made clear that, “[a]lthough state prisoners may
sometimes submit new evidence in federal court, AEDPA’s statutory scheme is designed to
strongly discourage them from doing so.” Cullen v. Pinholster, 563 U.S. 170, 186 (2011).
Provisions like §§ 2254(d)(1) and (e)(2) ensure that “[f]ederal courts sitting in habeas are not an
alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in
state proceedings.” Id. (quoting Williams v. Taylor, 529 U.S. 420, 437). The undersigned
allowed Winstead to obtain the SAR due to his representations that he had exercised due diligence
in attempting to obtain this evidence. After reviewing the record, the Court finds that the content
of the SAR is irrelevant to the disposition of the Petition. The Missouri Court of Appeals
reasonably determined that the record before it refuted Winstead’s claim that he pleaded guilty in
reliance upon an understanding that he was guaranteed long-term treatment if it was
recommended in the SAR.
Accordingly, the Petition will be denied.
V.

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
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deserve further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). In this case,
Jefferson 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.

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 9th day of August, 2016.

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