Reynolds v. Russell

Filing 11

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the petition of Demetrius Reynolds for writ of habeas corpus pursuant to 28 U.S.C. Section 2254 is denied. IT IS FURTHER ORDERED that the petitioner has not made a substantial showing of a denial of a constitutional right and this Court will not grant a Certificate of Appealability. A separate judgment in accord with this order is entered today. Signed by District Judge Catherine D. Perry on November 18, 2015. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEMETRIUS REYNOLDS,
Petitioner,
vs.
TERRY RUSSELL,
Respondent.

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) Case No. 4:14 CV 1060 CDP
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MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow I will deny the
petition.
Procedural History
Petitioner Demetrius Reynolds is currently incarcerated at the Eastern
Regional Diagnostic and Correctional Center in Bonne Terre, Missouri, pursuant to
a judgment and sentence of the Circuit Court of St. Louis City, Missouri. On
November 18, 2009, following a jury trial, Reynolds was found guilty of robbery
in the first degree. The Circuit Court sentenced him to twenty-five years
imprisonment.

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Reynolds appealed his conviction to the Missouri Court of Appeals, arguing
that: (1) there was insufficient evidence to support a conviction for first-degree
robbery; (2) the trial court erred when it failed to declare a mistrial over prejudicial
testimony; and (3) the trial court erred when it failed to strike an impartial juror.
See Resp’t Ex. D. The Missouri Court of Appeals affirmed Reynolds’ conviction.
Resp’t Ex. F.
On June 10, 2011, Reynolds filed a pro se motion in the trial court for postconviction relief under Missouri Rule 29.15. See Resp’t Ex. H. Counsel was
appointed to represent him, and an amended motion for post-conviction relief was
filed on November 27, 2012. Resp’t Ex. H. In his amended petition, Reynolds
alleged that trial counsel was ineffective for: (1) failing to conduct enough
discovery and to investigate the case sufficiently; (2) failing to object to the
prosecutor’s introduction of out of court evidence to the jury; (3) failing to
suppress various State exhibits; (4) failing to obtain from the victim an in-court
identification of Reynolds; (5) allowing other public defenders to speak with and
attempt to convince Reynolds to accept a guilty plea; (6) failing to suppress State’s
Exhibit 10, a photograph used to identify Reynolds; and (7) failing to call an expert
witness to show that State’s Exhibit 10 was not an authentic photograph. Resp’t
Ex. H. Reynolds also alleged that appellate counsel was ineffective for: (1) failing
to raise on direct appeal the issue of the trial court’s error in submitting the jury
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instruction for first degree robbery; and (2) failing to raise on direct appeal the trial
court’s error in not appointing substitute counsel after Reynolds expressed good
cause or justifiable satisfaction with his appointed attorney. Resp’t Ex. H. Finally,
Reynolds alleged several forms of prosecutorial misconduct, and that the trial court
abused its discretion by: (1) denying his motion for change of attorney; (2)
allowing hearsay testimony into evidence; and (3) denying his motion to excuse a
juror. Resp’t Ex. H. The motion court held an evidentiary hearing and denied
Reynolds’ post-conviction motion on July 13, 2012. Resp’t Ex. I.
Reynolds appealed the motion court’s decision, arguing that the motion
court erred in denying his motion because: (1) his trial counsel had an actual
conflict of interest; and (2) his appellate counsel failed to assert trial court error
surrounding that court not appointing substitute counsel. The Missouri Court of
Appeals affirmed the motion court’s denial of post-conviction relief. Resp’t Ex. M.
Reynolds then filed this petition for a writ of habeas corpus.
Factual Background
The evidence presented at trial showed that on the morning of August 24,
2008, victim Flam Ross was driving home when he was flagged down by a woman
who said she was out of gas. Ross exited his truck, retrieved a gas can that he kept
in the back, and began filling the woman’s truck. Ross testified that two men were
standing nearby, one of whom said to Ross “Hey, Unc.” Ross testified that he was
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commonly called “Unc.” After Ross finished putting gas in the truck, the other
man, who Ross later identified as Reynolds, approached Ross from behind and said
“[T]his your Unc?” Reynolds then pressed an object against Ross’s neck and said
he was going to “blow [Ross] away.” Reynolds then took Ross’s wallet, which
contained a one-hundred dollar bill folded in a particular way. Ross testified that
the three individuals left together in a car, and that he told police this when he
called them immediately after.
When police pulled the car over soon thereafter they found Ross’s empty
wallet five feet from the car. Reynolds was in the backseat of the car, and Ross’s
gas can was also found in the car. At the jail, police found a one-hundred dollar
bill folded into a small rectangle inside Reynolds’ left sock. Ross later identified
the bill as the one that had been in his wallet.
Before trial, Reynolds informed the trial court of issues he had with trial
counsel to that point, including that Reynolds had filed a motion for change of
counsel. The trial court found no issue and proceeded to trial. During the trial, a
juror revealed to the court that she had recognized the victim when he testified.
The court ultimately determined not to excuse her. The jury found Reynolds guilty
of first degree robbery.

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Grounds Raised
Reynolds now seeks federal habeas corpus relief, pursuant to a petition for a
writ of habeas corpus, filed July 24, 2014. In his petition, Reynolds asserts the
following grounds:
(1) He was denied the right to a fair trial in that the state failed to prove the
requisite elements of the crime when the State did not offer any evidence of
the use of a weapon or what appeared to be a weapon;
(2) He was denied the right to a fair trial by an impartial jury when
prejudicial testimony was introduced before the jury regarding a knife and
the trial court refused to declare a mistrial;
(3) He was denied the right to a fair trial by an impartial jury when the trial
court permitted a juror who knew the victim to serve on the jury;
(4) Reynolds’ trial counsel was ineffective because his counsel had a
conflict;
(5) Reynolds’ appellate counsel was ineffective for failing to bring on direct
appeal his trial counsel’s conflict and the trial court’s refusal to provide
substitute counsel;
(6) Reynolds’ trial counsel was ineffective for assuming Reynolds was
guilty as charged, making no effort to execute a viable defense, and seeking
only to obtain a guilty plea from him;
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(7) Reynolds’ appellate counsel was ineffective for failing to raise on appeal
the issues of the verdict director and other claims of prosecutorial
misconduct and trial error.
Legal Standard
A federal court has the power to grant a writ of habeas corpus under 28
U.S.C. § 2254(d). Under that section of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), when a claim has been adjudicated on its merits
in state court, the federal court may not grant a writ of habeas corpus unless the
state court’s 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
(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)(1)-(2).
Under subsection (1), the Supreme Court has stated that “[a] state-court
decision is contrary to this Court’s clearly established precedents if it applies a rule
that contradicts the governing law set forth in our cases, or if it confronts a set of
facts that is materially indistinguishable from a decision of this Court but reaches a
different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). Further, the
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Supreme Court has construed § 2254(d)(1)’s ‘unreasonable application’ clause to
mean that “a federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.” Williams v. Taylor, 529
U.S. 362, 411 (2002). “Rather, that application must also be unreasonable.” Id.
Under subsection (2), factual determinations of a state court “shall be
presumed correct” and a petitioner must rebut such determinations by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). The Eighth Circuit has stated that
“a state court decision involves an ‘unreasonable determination of the facts in light
of the evidence presented in state court proceedings,’ only if it is shown by clear
and convincing evidence that the state court’s presumptively correct factual
findings do not enjoy support in the record.” Lomholt v. Iowa, 327 F.3d 748, 752
(8th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)); Boyd v. Minnesota, 274 F.3d 497,
501 n.4 (8th Cir. 2001).
Discussion
Ground 1: Insufficiency of the Evidence for First Degree Robbery
In ground one, Reynolds claims that there was insufficient evidence to
support his conviction for first degree robbery because the state offered no
evidence of a weapon or what appeared to be a weapon. Reynolds raised this

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claim on direct appeal, so it is properly preserved for review here. The Missouri
Court of Appeals rejected the claim.
Claims of insufficiency of the evidence are analyzed under the standard of
Jackson v. Virginia, 443 U.S. 307 (1979). Under Jackson, a petitioner “is entitled
to habeas corpus relief if it is found that upon the record evidence adduced at the
trial no rational trier of fact could have found proof of guilt beyond a reasonable
doubt.” Id. at 324. “All conflicting inferences that arise from the historical facts
must be resolved in favor of the prosecution.” Nance v. Norris, 392 F.3d 284, 290
(8th Cir. 2004). Further, “[w]e also presume that the findings of fact made by a
state court are correct unless the petitioner rebuts that presumption by clear and
convincing evidence.” Evans v. Luebbers, 371 F.3d 438, 441 (8th Cir. 2004).
Missouri law provides that a “person commits the crime of robbery in the
first degree when he forcibly steals property and in the course thereof
he…[d]isplays or threatens the use of what appears to be a deadly weapon or
dangerous instrument.” Mo. Rev. Stat § 569.020(4). “For the purposes of firstdegree robbery, it does not matter whether the actor actually had a weapon, as long
as he [or she] appeared to have a weapon.” State v. Hand, 305 S.W.3d 476, 480
(Mo. Ct. App. 2010).
In the present case, Ross testified that Reynolds pressed a hard metal object
against his neck and threatened to “blow [him] away.” The Missouri Court of
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Appeals noted that the jury had a reasonable basis from which it could find that
Ross complied because he was in fear of personal harm from the hard metal object
against his neck while being told he would be blown away. Upon review of the
record, this Court does not believe that the decision of the Missouri Court of
Appeals, i.e., that a jury could find that Reynolds threatened the use of a weapon,
involved an unreasonable application of federal law or an unreasonable
determination of the facts. Accordingly, Petitioner is not entitled to habeas relief
on this ground.
Ground 2: Trial Court Error Regarding Prejudicial Testimony
In ground two, Reynolds claims the trial court erred in denying his motion
for a mistrial after a police detective testified he found a knife in Tranisha Gibbs’
purse. Gibbs was the woman who flagged Mr. Ross down and claimed she was out
of gas. Reynolds claims that the detective’s testimony was irrelevant, immaterial,
and highly prejudicial. Reynolds raised this claim on direct appeal, so it is
properly preserved for review here. The Missouri Court of Appeals denied the
claim.
The detective testified on direct examination that he found a knife in Gibbs’
purse. Reynolds objected to this testimony and requested a limiting instruction for
the jury. The trial judge sustained the objection and instructed the jury to
disregard. On cross-examination, Reynolds asked the detective whether a gun had
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been recovered, to which the detective responded that he did not find a gun in his
search for a weapon. On redirect, the State asked: “When you say you looked for a
weapon, was that based on the description that you had from the victim?” The
detective responded affirmatively. Reynolds then objected and requested a mistrial
based upon this statement and its relation to the testimony about the knife.
“‘A state court's evidentiary rulings can form the basis for habeas relief
under the due process clause only when they were so conspicuously prejudicial or
of such magnitude as to fatally infect the trial and deprive the defendant of due
process.’” Osborne v. Purkett, 411 F.3d 911, 917 (8th Cir. 2005) (quoting Parker
v. Bowersox, 94 F.3d 458, 460 (8th Cir. 1996). “A deprivation of due process is
established when an error is gross, conspicuously prejudicial or of such import that
the trial was fatally infected.” Logan v. Lockhart, 994 F.2d 1324, 1329 (8th Cir.
1993) (quotations omitted). “Relief will be granted only upon a showing of a
reasonable probability that the outcome would have been different but for the
improper statement.” Barnett v. Roper, 541 F.3d 804, 813 (8th Cir. 2008).
Here, the trial court judge immediately ruled that the evidence was
inadmissible and ordered the jury to disregard the detective’s testimony on the
matter of the knife. “We normally presume that a jury will follow an instruction to
disregard inadmissible evidence inadvertently presented to it, unless there is an
overwhelming probability that the jury will be unable to follow the court's
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instructions and a strong likelihood that the effect of the evidence would be
devastating to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987)
(quotations omitted).
Reynolds has not demonstrated a reasonable probability that he would not
have been convicted but for the improper statement about the knife. The Missouri
Court of Appeals found that the trial court acted within its discretion in instructing
the jury to disregard the evidence about the knife and in denying Reynolds’ motion
for a mistrial. The court’s decision was supported by the factual record and
involved a reasonable application of federal law. Accordingly, Petitioner is not
entitled to habeas relief on this ground.
Ground 3: Trial Court Error in Refusing to Strike a Juror
In ground three, Reynolds claims the trial court violated his right to due
process and a fair trial by an impartial jury in denying his motion to strike a juror
and seat an alternate after the juror informed the trial court she recognized the
victim. Reynolds raised this claim on direct appeal, so it is properly preserved for
review here. The Missouri Court of Appeals denied the claim.
After the victim testified, the juror informed a bailiff that she recognized the
victim. After the State had rested, the trial court conducted a hearing with the juror
at the bench. The juror indicated that she recognized the victim when he testified,
and that she had last seen the victim about thirty years ago when she was twelve
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years old. The victim was her mother’s landlord at that time. The court
questioned the juror and subsequently denied Reynolds’ motion to strike and
replace.
The issue of an individual juror’s partiality is a question of “historical fact”
for the trial court, and is entitled to “special deference.” Patton v. Yount, 467 U.S.
1025, 1036, 1038 (1984). “Under 28 U.S.C. § 2254(d), a habeas court must, of
course, afford this determination the presumption of correctness due a state court's
factual findings.” Logan, 994 F.2d at 1326-27. “The question for this court, then,
is whether the state court's conclusion that the juror would be impartial is fairly
supported by the record.” Id. at 1327.
Here, the juror testified that her past acquaintance with the victim would not
affect her ability to be impartial, and that she could judge the victim’s credibility
just as she would judge other witnesses. The trial court found the juror’s testimony
to be credible and denied Reynolds’ motion to remove the juror and replace her
with an alternate. The Missouri Court of Appeals noted that the juror had minimal
contact with the victim when she was twelve, and that she stated she would remain
fair and impartial. That decision is consistent with Patton. The trial court was in
the best position to determine whether the juror could overcome her past
acquaintance with the victim and remain impartial. Further, the decision of the
Missouri Court of Appeals was supported by the factual record and not contrary to,
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or an unreasonable application of, clearly established federal law. Accordingly,
Petitioner is not entitled to habeas relief on this ground.
Ground 4: Denial of the Right to Conflict-Free Counsel
In ground four, Reynolds claims he was denied the right to due process and
effective representation by conflict-free counsel. Reynolds alleges that he had a
conflict with trial counsel, that the trial court failed to take reasonable steps to
address that conflict, and that this conflict caused Reynolds to refuse a plea offer
and instead proceed to trial. Reynolds raised these issues in his motion for postconviction relief, and so they are properly preserved for review here. The motion
court denied the claim and the Missouri Court of Appeals affirmed.
Reynolds filed motions for change of appointed counsel twice during 2009
alleging a conflict of interest and an irreconcilable conflict over litigation strategy.
After jury selection, Reynolds told the trial court that he had a conflict of interest
with trial counsel because they did not see eye-to-eye. He also complained about
trial counsel’s attitude during their conversations and the fact that trial counsel had
merely interviewed the victim by telephone rather than taking a deposition. The
trial court noted these complaints but found they did not rise to the level necessary
for appointment of new counsel.
The Sixth Amendment does not guarantee the right to a “meaningful
relationship between an accused and his counsel.” Morris v. Slappy, 461 U.S. 1,
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14 (1983). Further, “[a]ppointment of new counsel is warranted only when the
defendant demonstrates justifiable dissatisfaction with his appointed attorney.”
United States v. Baisden, 713 F.3d 450, 454 (8th Cir. 2013). “The focus of the
justifiable dissatisfaction inquiry is the adequacy of counsel in the adversarial
process, not the accused's relationship with his attorney.” Id. (quoting United
States v. Barrow, 287 F.3d 733, 738 (8th Cir. 2002)). “Justifiable dissatisfaction
includes an irreconcilable conflict or a complete breakdown in communication.”
Baisden, 713 F.3d at 454. Importantly, “it does not include a defendant's
frustration with counsel who does not share defendant's tactical opinions but
continues to provide zealous representation.” Id. “Thus, a defendant has no right
to an attorney who will docilely do as []he is told….” Id.
Here, the alleged conflict did not rise to the level of justifiable
dissatisfaction. The Missouri Court of Appeals determined that the facts of the case
did not demonstrate an actual conflict. First, the court of appeals found that the
trial court informed Reynolds of the plea agreement and the possible consequences
of refusing the plea agreement and proceeding to trial. Second, considering the
motion court’s hearing, the Missouri Court of Appeals found no actual conflict of
interest and that Reynolds was simply detailing a dysfunctional relationship due to
his subjective mistrust of trial counsel. The court concluded that any conflict was
created by Reynolds’ unwillingness to accept the reality of the facts of his own
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predicament. Further, the court concluded that the fact that Reynolds proceeded to
trial and received a longer sentence than desired did not result in an actual conflict
of interest. In doing so, the Missouri Court of Appeals’ decision is supported by
the factual record and is not contrary to, or an unreasonable application of, clearly
established federal law. Accordingly, Petitioner is not entitled to habeas relief on
this ground.
Ground 5: Denial of Effective Assistance of Appellate Counsel
In ground five, Reynolds claims he was denied the rights to due process and
effective assistance of appellate counsel when his appellate counsel failed to raise
on direct appeal the alleged conflict of interest with trial counsel, as well as the
trial court’s refusal to provide substitute counsel. Reynolds alleges that the
Missouri Court of Appeals would have reversed his conviction had appellate
counsel raised these issues. Reynolds raised these issues in his motion for postconviction relief, and so they are properly preserved for review here. The motion
court denied the claim and the Missouri Court of Appeals affirmed.
Federal law relating to this claim is similar to that which relates to ground
four. A defendant is only entitled to new counsel upon proof of “justifiable
dissatisfaction.” Baisden, 713 F.3d at 454. The focus of this inquiry is on the
adequacy of counsel’s representation, not the defendant’s relationship with his
counsel. Id. Justifiable dissatisfaction does not include “a defendant's frustration
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with counsel who does not share defendant's tactical opinions but continues to
provide zealous representation.” Id.
To demonstrate ineffective assistance of counsel, the defendant must “show
that counsel’s representation fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 688 (1984). To prevail on a claim of
ineffective assistance of counsel requires proof of two components. Id. at 687.
First, the petitioner must “show that counsel's performance was deficient” by
“showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, the
petitioner must show “that the deficient performance prejudiced the defense.” Id.
The Missouri Court of Appeals found that because the trial court did not err
in denying Reynolds’ motion to substitute trial counsel his appellate counsel could
not have been ineffective for failing to raise the issue on appeal. Further, the court
found the conviction would have been affirmed even if such argument as Reynolds
desires had been made. The court’s decision is a reasonable application of, and not
contrary to, Strickland, and is supported by the factual record. Reynolds did not
prove that counsel’s performance was deficient, or that he was prejudiced by such
performance. Accordingly, Petitioner is not entitled to habeas relief on this
ground.

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Grounds Six and Seven: Ineffective Assistance of Trial and Appellate Counsel
In ground six, Reynolds claims he was denied the rights to due process and
effective representation by conflict-free trial counsel when his attorney assumed
Reynolds’ guilt, made no efforts to prepare and execute a viable defense, and
sought only to obtain a plea of guilty. In support, Reynolds notes counsel’s failure
to depose the victim, failure to object at certain times during trial, and discussion
with other attorneys about his case. In ground seven, Reynolds claims he was
denied the right to due process and effective representation by appellate counsel.
In support, Reynolds alleges appellate counsel was ineffective in not raising the
issue of the verdict director and claims of prosecutorial misconduct and trial court
error on direct appeal. This court considers these claims together because their
procedural history is exactly the same, as detailed below, and neither were properly
exhausted. Reynolds admits that he failed to exhaust these claims in state court.
For the reasons that follow, these claims are now procedurally defaulted.
In this case, Reynolds’ post-conviction public defender filed an amended
motion for post-conviction relief, to which he attached Reynolds’ original pro se
motion for post-conviction relief. As to the claims in grounds six and seven,
Reynolds’ public defender did not present any evidence to the motion court. Postconviction counsel did, however, include proposed findings of fact and conclusions
of law for each of the claims raised in Reynolds’ pro se motion, all of which were
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in grounds six and seven. Further, the amended motion explicitly incorporated all
claims raised in the original pro se motion, which, as noted above, was physically
attached to counsel’s amended motion. Finally, in its findings of fact and
conclusions of law, the motion court wrote that it had reviewed all of Reynolds’
pro se claims, which included the ones in grounds six and seven, and found no
merit in any of them. The motion court subsequently overruled and denied
Reynolds’ motion to vacate, set aside, or correct the judgment and sentence.
Reynolds did not appeal the claims in grounds six and seven to the Missouri Court
of Appeals.
Therefore, the claims in grounds six and seven were properly raised and
denied by the motion court. Reynolds failed to raise these claims on appeal of the
denial of his motion for post-conviction relief, and thus did not properly exhaust
them in state court. To preserve a claim for federal habeas review, a state prisoner
must properly raise the claim in the state courts. Sweet v. Delo, 125 F.3d 1144,
1149 (8th Cir. 1997). A failure to present a claim before the state court according
to state procedural rules results in a procedural default of that claim. Id. at 1151.
In Missouri, a claim is procedurally defaulted if it is not raised on appeal. Reese v.
Delo, 94 F.3d 1177, 1181 (8th Cir. 1996) (finding ineffective assistance of counsel
claim abandoned when not advanced on appeal from denial of post-conviction
motion).
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Reynolds can overcome his procedural default only if he can “demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991). Reynolds argues Martinez v. Ryan, 132 S. Ct. 1309 (2012), applies to
these claims, but it does not. In Martinez, the Supreme Court announced a narrow
carve-out to its earlier holding in Coleman: cause may only be demonstrated where
post-conviction counsel was ineffective in not raising ineffective assistance of trial
counsel claims in initial-review collateral proceedings. Martinez, 132 S. Ct. at
1315. The Supreme Court defined initial-review collateral proceedings as
“collateral proceedings which provide the first occasion to raise a claim of
ineffective assistance at trial.” Id. Here, post-conviction counsel raised these
claims in a motion for post-conviction relief, or the first occasion to raise the claim
of ineffective assistance. Because the motion court subsequently considered and
denied the claims, Martinez does not excuse Reynolds’ default. The Supreme
Court was specific in holding that a petitioner may establish cause for a default
“where appointed counsel in the initial-review collateral proceeding, where the
claim should have been raised, was ineffective under the standards of Strickland v.
Washington, 466 U.S. 668 (1984).” Id. at 1318. Reynolds post-conviction counsel
actually raised these claims in the initial-collateral review proceeding, and the
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court considered and denied them. Reynolds has failed to show counsel was
deficient in doing so. Thus, Martinez does not save Reynolds’ claims in grounds
six and seven from procedural default.
Further, with regard to ground seven’s ineffective assistance of appellate
counsel claim, the Eighth Circuit has declined to extend Martinez to such claims.
Dansby v. Hobbs, 766 F.3d 809, 833 (8th Cir. 2014) (“We therefore decline to
extend Martinez to claims alleging ineffective assistance of counsel on direct
appeal.”). Consequently, Reynolds has not established cause to overcome the
procedural default of this claim.
Because the claims contained in grounds six and seven were raised by postconviction counsel in initial collateral review proceedings, but not raised on
appeal, both are procedurally defaulted, and Reynolds has not established cause to
overcome this default.
Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from the final order in a 28 U.S.C. § 2254 proceeding unless a circuit justice or
judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant
such a certificate, the justice or judge must find a substantial showing of the denial
of a federal constitutional right. Id. § 2253(c)(2); see Tiedeman v. Benson, 122
F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are
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debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). I find that reasonable jurists could not differ on any of Reynolds’ claims, so
I will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that the petition of Demetrius Reynolds for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
IT IS FURTHER ORDERED that the petitioner has not made a substantial
showing of a denial of a constitutional right and this Court will not grant a
Certificate of Appealability.
A separate judgment in accord with this order is entered today.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 18th day of November, 2015.

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