Bernhardt v. Staats

Filing 19

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that respondents Danielle R. Staats and the Missouri Board of Probation and Parole are dismissed from this action. IT IS FURTHER ORDERED that Andrew Bernhardt's petitions for writ o f habeas corpus pursuant to 28 U.S.C. § 2254 1 2 are denied. IT IS FURTHER ORDERED that a Certificate of Appealability will not issue in this action because petitioner has not made a substantial showing of a denial of a constitutional right. A separate Judgment is filed herewith. Signed by District Judge Catherine D. Perry on 9/21/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDREW BERNHARDT,
Petitioner,
v.
DANIELLE R. STAATS, et al.,
Respondents.

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No. 4:14 CV 1341 CDP

MEMORANDUM AND ORDER
Petitioner Andrew Bernhardt brings this petition for writ of habeas corpus
under 28 U.S.C. § 2254 claiming that there was insufficient evidence to support his
convictions for aggravated stalking and armed criminal action. Because I do not
have jurisdiction to consider Bernhardt’s challenge to his aggravated stalking
conviction, and his challenge to the armed criminal action conviction is without
merit, I will deny the petition.
Procedural Background
After a jury in the Circuit Court of St. Louis County, Missouri, convicted
Bernhardt of one count of aggravated stalking and one count of armed criminal
action, Bernhardt was sentenced on June 2, 2010, to terms of four years’ and five
years’ imprisonment, respectively, with the sentences ordered to be served
concurrently. (Resp. Exh. B at 27-31.)

Bernhardt appealed his convictions to the Missouri Court of Appeals,
arguing that: 1) the evidence was insufficient to show that he communicated a
credible threat to the victim, as required to sustain a conviction for aggravated
stalking; 2) the statute defining the criminal offense of aggravated stalking was
unconstitutionally vague; and 3) the evidence was insufficient to sustain a
conviction for armed criminal action because merely holding a gun without
pointing or displaying it to or at the victim, his family, or his house does not meet
the statutory definition of committing the underlying offense “by, with, or through
the use, assistance, or aid” of a deadly weapon. (Resp. Exh. C.) The Missouri
Court of Appeals affirmed Bernhardt’s convictions on March 1, 2011. State v.
Bernhardt, 338 S.W.3d 830 (Mo. Ct. App. 2011).
Bernhardt thereafter filed a motion for post-conviction relief under Missouri
Supreme Court Rule 29.15, challenging the assistance of counsel both at trial and
on direct appeal. (Resp. Exh. G at 79-129.) The trial court denied the motion
without an evidentiary hearing. (Id. at 155-65.) On August 27, 2013, the Missouri
Court of Appeals affirmed the denial of post-conviction relief. Bernhardt v. State,
412 S.W.3d 359 (Mo. Ct. App. 2013) (order) (per curiam).
When Bernhardt was sentenced in June 2010, he was given 312 days’ jailtime credit on both sentences. (Resp. Exh. L.) Bernhardt’s four-year sentence for
aggravated stalking therefore expired July 31, 2013. His five-year sentence for
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armed criminal action expired July 31, 2014. (Id.)
Bernhardt filed his original petition for writ of habeas corpus on July 30,
2014. He amended the petition on August 5, 2014.
Proper Party Respondent
When Bernhardt filed his original habeas petition on July 30, 2014, he was
no longer under any physical restraint on either conviction. His sentence for
aggravated stalking had expired, and he was on parole for armed criminal action.
His sentence for armed criminal action, however, expired one day after he filed his
original petition and five days before he filed his amended petition.
In his original petition, Bernhardt named as respondents Danielle R. Staats
(his then-current parole officer) and the Missouri State Attorney General. In his
amended petition, Bernhardt continued to name Staats and the Missouri State
Attorney General as respondents, but he also added the Missouri Board of
Probation and Parole as a respondent. When he filed this amended petition,
however, the sentence for which he was on parole had fully expired and he was no
longer on parole. Accordingly, Staats and the Board were improperly named as
respondents in this amended petition, and I will dismiss them from this action.1
For reasons stated later in this opinion, I consider Bernhardt’s challenge to
his armed criminal action conviction to continue to be ripe for review despite his
1

See Rule 2(b), Rules Governing Section 2254 Cases in the United States District Courts,
Advisory Committee Notes, 1976 Adoption, Subdivision (b)(2).
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sentence having expired. Since Bernhardt seeks relief from the effects of this
conviction, the appropriate respondent in this action is the Missouri State Attorney
General.2
Grounds for Relief
In his amended petition for writ of habeas corpus, Bernhardt raises the
following grounds for relief:
(1) That there was insufficient evidence to support his conviction for
aggravated stalking; and
(2) That there was insufficient evidence to support his conviction for
armed criminal action because: (a) no reasonable jury could find from the
witness’s testimony that the witness saw Bernhardt with a gun inside his
vehicle, and (b) the mere possession and/or loading of a firearm does not
constitute an offense under the armed criminal action statute.
In response, respondent contends that I do not have jurisdiction to consider
the claim raised in Ground 1 of the petition because Bernhardt was not in custody
on the relevant conviction when he filed this action. As to Ground 2, respondent
argues that the Missouri Court of Appeals properly found there to be sufficient
evidence to support Bernhardt’s conviction for armed criminal action, and that I
should defer to this determination.
Jurisdiction
Federal courts have jurisdiction to consider habeas petitions from persons

2

See id. at Subdivision (b)(3).
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who are in custody in violation of the Constitution, laws, or treaties of the United
States. At the time a habeas petitioner brings his petition, however, he must be in
custody under the conviction or sentence he seeks to attack. Maleng v. Cook, 490
U.S. 488, 491 (1989). Where a sentence imposed on a conviction has fully expired
at the time the petition is filed, the petitioner is no longer “in custody” under that
conviction. Id. at 491-92. In circumstances where, as here, a petitioner files a
habeas petition while serving the longer of concurrent terms of imprisonment after
the shorter sentence has expired, the petitioner is in custody on the conviction for
which he is serving the longer sentence but is no longer in custody on the
conviction for which he received the shorter, expired sentence. See Mays v.
Dinwiddie, 580 F.3d 1136, 1140-41 (10th Cir. 2009).
In his first ground for relief here, Bernhardt challenges the sufficiency of the
evidence supporting his conviction for aggravated stalking. However, when
Bernhardt filed this habeas action in July 2014, his four-year sentence on this
conviction had already expired. He therefore was no longer in custody under his
conviction for aggravated stalking when he filed his petition, which results in my
having no jurisdiction to entertain his claim challenging that conviction. Maleng,
490 U.S. at 491-92; Mays v. Dinwiddie, 580 F.3d 1136 (10th Cir. 2009); Sweet v.
McNeil, 345 F. App'x 480 (11th Cir. 2009).
Bernhardt concedes that his sentence for aggravated stalking had expired,
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but he argues that he nevertheless satisfies the “in custody” requirement on this
conviction because he remained in custody on and was challenging his conviction
for armed crimination action, for which he claims he received an enhanced
sentence because of the aggravated stalking conviction. Relying on Lackawanna
Cnty. Dist. Attorney v. Coss, 532 U.S. 394 (2001), Bernhardt argues that because
his conviction for aggravated stalking adversely affected his conviction and
sentence for armed criminal action, his habeas challenge to the armed criminal
action conviction extends to the underlying conviction that provided the basis for
the enhancement. Bernhardt misreads Lackawanna.
In Lackawanna, the Supreme Court answered in the negative the question of
whether an expired State conviction may be subject to challenge in an attack upon
a current sentence that was enhanced by that prior conviction. The Court clearly
held that “once a state conviction is no longer open to direct or collateral attack in
its own right because the defendant failed to pursue those remedies while they
were available (or because the defendant did so unsuccessfully), the conviction
may be regarded as conclusively valid.” 532 U.S. at 403. The constitutionality of
that conviction may not be challenged through a habeas petitioner’s attack on an
existing sentence that may have been affected by that conviction. Id. at 403-04.
While Lackawanna carves out two exceptions to this rule, namely 1) the failure to
appoint counsel in the underlying criminal case, and 2) where the federal habeas
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court is the first and only forum available to conduct this constitutional review, id.
at 404-06, Bernhardt does not meet either of these exceptions.3
At the time Bernhardt filed this petition for writ of habeas corpus, his
conviction and sentence for aggravated stalking was no longer open to direct or
collateral attack. It is therefore regarded as conclusively valid and is not subject to
review merely on the basis that it may have affected a conviction currently open to
attack. Because Bernhardt was no longer in custody under his conviction for
aggravated stalking when he filed this habeas action, I have no jurisdiction to
entertain his claim challenging that conviction.
Bernhardt’s sentence for armed criminal action had not yet expired when he
filed his original petition, and I find that his amended petition – filed after the
expiration of this sentence – sufficiently relates back such that I will consider it
filed as of the date of the original petition. Accordingly, Bernhardt was in custody
on his conviction for armed criminal action when he filed this habeas action, and I
have jurisdiction to consider his claim directed to it. Although his sentence has
since expired, his challenge to that conviction is not moot, given the presumption

3

In his reply brief, Bernhardt refers to the Supreme Court’s discussion of the second exception
to support his argument that I have jurisdiction to review his expired aggravated stalking
conviction because of its adverse effect on his armed criminal action conviction. (See Petr.’s
Reply, ECF #13 at pp. 2-3.) However, because this federal habeas court is not the first and only
forum in which Bernhardt could have challenged his conviction for aggravated stalking – and
indeed, he raised constitutional challenges to this conviction in State court – the second
exception to Lackawanna does not apply here.
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that a wrongful criminal conviction has continuing collateral consequences. Cf.
Spencer v. Kemna, 523 U.S. 1, 7-8 (1998); Carafas v. LaVallee, 391 U.S. 234,
237-38 (1968).
Sufficiency of the Evidence / Armed Criminal Action
In his second ground for relief, Bernhardt contends that the evidence
presented at trial was insufficient to sustain his conviction for armed criminal
action, arguing (a) that witness David Packman’s testimony provided an
insufficient basis upon which the jury could find that he had a gun in his car, and
(b) that merely possessing or loading a gun is insufficient to constitute armed
criminal action.
Witness Testimony
Bernhardt first argues that witness David Packman’s testimony provided an
insufficient basis upon which the jury could find that Bernhardt had a gun in his
vehicle. Bernhardt specifically contends that the combination of the lighting
conditions and the distance between his car and the window from which Packman
purportedly observed him would make it nearly impossible for Packman to have
been able to see into his car and to see a gun. Bernhardt did not raise these factual
averments in State court, however, in pursuing his claim of insufficiency of the
evidence. (Resp. Exh. C.) This portion of Bernhardt’s second ground for relief,

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therefore, is defaulted.4
A claim must be presented at each step of the judicial process in State court
in order to avoid procedural default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.
1994). To be fairly presented, the claim in State court must contain the same
factual grounds and legal theories as asserted in the federal habeas petition. Picard
v. Connor, 404 U.S. 270 (1971); Palmer v. Clarke, 408 F.3d 423, 430, (8th Cir.
2005); Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995). See also see Ward v.
Norris, 577 F.3d 925, 935-36 (8th Cir. 2009) (federal habeas claim cannot be based
on different facts than those presented to the State court). Mere similarity in
claims is insufficient. Abdullah v. Groose, 75 F.3d 408, 412 (8th Cir. 1996) (citing
Duncan v. Henry, 513 U.S. 364 (1995) (per curiam)).
Here, Bernhardt argued on direct appeal that the evidence was insufficient to
support his conviction for armed criminal action. The sole factual basis of this
claim on direct appeal, however, was that mere possession or loading of a firearm
without pointing it at or displaying it to the victim, his family, or his household
cannot constitute armed criminal action. This factual basis is substantially
different from that raised here – that David Packman’s trial testimony was suspect
given the lighting and distance factors in the case.
4

Because respondent did not address the procedurally defaulted aspect of this claim, I raised the
issue and provided Bernhardt the opportunity to present his position as to procedural default.
(See Order, ECF #15.)
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Bernhardt failed to assert the witness testimony aspect of his sufficiency of
the evidence claim on direct appeal in State court. That factual aspect of the claim
is therefore procedurally barred from review by this Court unless Bernhardt can
show cause for his default and actual prejudice resulting from the alleged
unconstitutional conduct, or demonstrate that failure to consider the claim will
result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.
722, 731-32, 750 (1991). Bernhardt argues that he included these factual
averments in this habeas petition to place in context his otherwise preserved claim
challenging the sufficiency of the evidence. He contends that while he poorly
rephrased his claim that was raised in State court, the overall claim of insufficiency
of the evidence should not be considered defaulted.
I do not consider Bernhardt’s claim of insufficiency of the evidence to be
defaulted in toto. To the extent Bernhardt seeks habeas relief on the facts asserted
here, however – that Packman’s testimony was insufficient to support his
conviction because of lighting and distance – it is only this factual basis that I may
not review because of Bernhardt’s failure to raise it in State court. To the extent
Bernhardt raises in this petition the same factual basis as raised in State court to
support his claim of insufficiency of the evidence, I consider that aspect of the
claim on the merits later in this opinion.
Accordingly, to the extent Bernhardt contends that witness David Packman’s
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testimony provided an insufficient basis upon which the jury could find that
Bernhardt had a gun because of lighting conditions and distance, the factual basis
of this claim is procedurally barred from federal habeas review because of
Bernhardt’s failure to include it in his claim raised on appeal in State court.
Bernhardt has neither asserted nor shown cause for his failure to raise this factual
basis in State court, nor has he presented any new reliable evidence of his actual
innocence to invoke the fundamental miscarriage of justice exception. Schlup v.
Delo, 513 U.S. 298, 316 (1995) (“Without any new evidence of innocence, even
the existence of a concededly meritorious constitutional violation is not in itself
sufficient to establish a miscarriage of justice that would allow a habeas court to
reach the merits of a barred claim.”). Therefore, my refusal to entertain this
procedurally defaulted aspect of the claim raised in Ground 2 will not result in a
fundamental miscarriage of justice.
Accordingly, the claim raised in Ground 2(a) is procedurally barred from
federal habeas review and will be denied.
Mere Possession of or Loading a Firearm
Bernhardt also contends that the mere holding of a gun in his hand, with
nothing more, is insufficient to constitute armed criminal action. Because
Bernhardt raised this aspect of his claim on direct appeal, and the Missouri Court
of Appeals denied relief on the merits, I may address the claim here, exercising
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limited and deferential review. 28 U.S.C. 2254(b)(1); O'Sullivan v. Boerckel, 526
U.S. 838, 842 (1999).
Legal Standard
Under 28 U.S.C. § 2254(d), when a claim has been adjudicated on the merits
in State court, a federal court may not grant an application for 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 “contrary to” clause is satisfied if a state court has arrived at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law or confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent but arrives at the opposite
result. A state court “unreasonably applies” clearly established
federal law when it identifies the correct governing legal principle
from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case. A case cannot be
overturned merely because it incorrectly applies federal law, for the
application must also be “unreasonable.”
Shafer v. Bowersox, 329 F.3d 637, 646-47 (8th Cir. 2003) (internal quotation
marks and citations omitted) (alterations in Shafer).
Under subsection (2), factual determinations of a State court “shall be
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presumed correct” and a petitioner must rebut such determinations by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). “[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) (quoting 28 U.S.C. §
2254(d)(2)). See also Boyd v. Minnesota, 274 F.3d 497, 501 n.4 (8th Cir. 2001).
I am “bound by the AEDPA [Antiterrorism and Effective Death Penalty Act]
to exercise only limited and deferential review of underlying state court decisions.”
Lomholt, 327 F.3d at 751. For me to grant habeas relief under this standard,
Bernhardt must show that the challenged State court ruling “rested on ‘an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.’” Metrish v. Lancaster, 569 U.S. 351, ___, 133 S. Ct.
1781, 1786-87 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102-03
(2011)). This standard is difficult to meet. Metrish, 133 S. Ct. at 1786.
Discussion
At the time Bernhardt’s conviction became final, the law was clearly
established that when reviewing a claim challenging the sufficiency of the
evidence, “the relevant question is whether after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). “Once a defendant has been
found guilty of the crime charged, the factfinder’s role as weigher of the evidence
is preserved through a legal conclusion that upon judicial review all of the evidence
is to be considered in the light most favorable to the prosecution.” Id. (emphasis in
original). When applying this standard, the scope of review is extremely limited.
A reviewing court “must presume that the trier of fact resolved all conflicting
inferences in the record in favor of the state, and [it] must defer to that resolution.”
Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003) (internal quotations
marks and citations omitted).
Because I review Bernhardt’s claim in the habeas context, I may grant relief
only if the Missouri Court of Appeals’ conclusion that the evidence satisfied the
Jackson standard was both incorrect and unreasonable. See Cole v. Roper, 623
F.3d 1183, 1187 (8th Cir. 2010); see also Skillicorn v. Luebbers, 475 F.3d 965, 977
(8th Cir. 2007) (recognizing the scope of review of the State court’s determination
of whether evidence was sufficient is “extremely limited”). For the following
reasons, the court of appeals’ decision was neither.
Under Mo. Rev. Stat. § 571.015.1, “any person who commits any felony
under the laws of this state by, with, or through the use, assistance, or aid of a
dangerous instrument or deadly weapon is also guilty of the crime of armed
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criminal action[.]” Bernhardt argues that the evidence shows that he merely
possessed a firearm, and that possession of a firearm without actual use is
insufficient to sustain a conviction under the armed criminal action statute.
On direct appeal, the Missouri Court of Appeals summarized the relevant
evidence adduced at trial and noted it to show the following: Bernhardt drove to
the victim’s house at 3:00 a.m., where he was observed by David Packman
(David),5 the victim’s son, to shift between reverse and drive several times on the
street in front of the house, as if attempting to parallel park. David observed this
occurrence from his second-story bedroom. After a minute or two, Bernhardt
drove away. He returned a couple of minutes later and parallel parked. He stayed
in the car and drove away about five minutes later. After ten more minutes had
passed, Bernhardt again drove to the victim’s house and stopped his car in the
middle of the street, after which it appeared to David that Bernhardt loaded a gun
while sitting in the front seat of his car. When a patrol car came, Bernhardt sped
away. About ninety minutes later, Bernhardt returned to the street in front of the
victim’s house, got in and out of his car three or four times, and was observed by
David to be carrying what appeared to be a handgun. Bernhardt never stepped
onto the victim’s property, and he eventually left. The police stopped Bernhardt a
few blocks away and seized from his vehicle a gun case that contained a loaded
5

The victim was Dr. Paul Packman. To avoid confusion, I will refer to his son as “David” in
this part of the memorandum. No disrespect is intended.
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handgun. Bernhardt, 338 S.W.3d at 832.
Bernhardt was convicted of aggravated stalking in relation to this incident,
which, at the time of Bernhardt’s conviction, required the jury to find that he
purposely, through his course of conduct, harassed or followed with the intent of
harassing another person and made a credible threat. Mo. Rev. Stat. §
565.225.3(1). “A ‘credible threat’ is a threat communicated with the intent to
cause the person who is the target of the threat to reasonably fear for his or her
safety, or the safety of his or her family, or household members.” Mo. Rev. Stat. §
565.225.1(2). The Missouri Court of Appeals found that Bernhardt’s actions of
loading his handgun and stepping out of his vehicle in front of the victim’s
residence with the gun in hand “comprised precisely the credible threat causing
David to fear for his safety and that of other household members. In short, the gun
was the threat.” Bernhardt, 338 S.W.3d at 835. The court of appeals therefore
found the evidence adduced at trial to be sufficient to support Bernhardt’s
conviction for armed criminal action. Id.
A State appellate court’s conclusion that the evidence was sufficient to
support a criminal conviction is entitled to great deference by a federal court.
Jackson, 443 U.S. at 323. “[W]hether the record contains sufficient evidence to
establish each element of the crime beyond a reasonable doubt ‘is everyday
business for the state courts, grist for their mill, and it will be a rare case in which a
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federal court on habeas will disagree with them.’” Cassell v. Lockhart, 886 F.2d
178, 179 (8th Cir. 1989) (quoting Moeller v. Attorney Gen. of S.D., 838 F.2d 309,
310 (8th Cir. 1988)).
According due deference to the court of appeals’ determination, I agree that
there was sufficient evidence to support the conviction. The victim’s son saw
Bernhardt load a handgun while parked in front of his house and later exit his
vehicle with the loaded gun in his hand. This all occurred after the son saw
Bernhardt drive and park (or attempt to park) on the street in front of his house on
several occasions within the span of two hours in the middle of the night. While
Bernhardt did not point or display the weapon directly at anyone or in the direction
of the house, a trier of fact could reasonably find in the circumstances of the case
that the gun itself constituted the “credible threat” that gave rise to the aggravated
stalking. It necessarily follows, then, that this threat – that is, the visible and
known presence of a loaded gun – was made “by, with, or through the use,
assistance or aid of a deadly weapon.” Contra State v. Reynolds, 819 S.W.2d 322
(Mo. banc 1991) (evidence insufficient to support armed criminal action conviction
where the knife was found in a sheath hooked inside the defendant’s boot, never
left the boot, and the victims were unaware of its presence).
The court of appeals’ determination that there was sufficient evidence to
support Bernhardt’s conviction for armed criminal action is supported by the
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record and entitled to deference. I am not aware of any “clearly established
Federal law, as determined by the Supreme Court of the United States” of which
the court’s decision runs afoul, nor has Bernhardt demonstrated such. Therefore, it
cannot be said that the State court’s determination “resulted in a decision that was
contrary to, or involved an unreasonable application of,” clearly established federal
law. 28 U.S.C. § 2254(d)(1). Nor has Bernhardt shown that the court’s resolution
of his claim “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)(2).
Accordingly, Bernhardt’s challenge to the sufficiency of the evidence as
raised in Ground 2(b) of his petition will be denied.
Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from the final order denying habeas relief in a § 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. 28 U.S.C. § 2253(c)(2); see Tiedeman
v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing
that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565,
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569 (8th Cir. 1997). I find that reasonable jurists could not differ on any of
Bernhardt’s claims, so I will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that respondents Danielle R. Staats and the
Missouri Board of Probation and Parole are dismissed from this action.
IT IS FURTHER ORDERED that Andrew Bernhardt’s petitions for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 [1] [2] are denied.
IT IS FURTHER ORDERED that a Certificate of Appealability will not
issue in this action because petitioner has not made a substantial showing of a
denial of a constitutional right.
A separate Judgment is filed herewith.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 21st day of September, 2017.

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