Turner v. Bowersox
Filing
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MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the petition of Antonio Turner for a writ of habeas corpus relief is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued. A separate Judgment shall accompany this Memorandum and Order.. Signed by District Judge Audrey G. Fleissig on 3/5/2018. (NEP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTONIO TURNER,
Petitioner,
v.
MICHAEL BOWERSOX,
Respondent.
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Case No. 4:15CV00132 AGF
MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
Antonio Turner, filed on January 15, 2015, for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. On April 6, 2010, following a two-day trial, a jury convicted Petitioner of
first degree robbery and armed criminal action related to an incident on March 9, 2008.
He was sentenced on May 14, 2010, to concurrent terms of 20 years for the robbery and
three years for the armed criminal action. Petitioner’s convictions and sentences were
affirmed on direct appeal. Petitioner’s motion for state post-conviction relief was denied
following an evidentiary hearing, and this denial was affirmed on appeal.
For federal habeas relief, Petitioner claims that his constitutional rights were
violated in the following ways: (1) the oral sentence did not conform to the written
sentence; (2) there was insufficient evidence to support the convictions; (3) defense
counsel was ineffective for failing to secure the testimony of a correctional officer
(Charles Boon) who escorted Petitioner to a lineup; (4) defense counsel was ineffective
for failing to object to the prosecutor’s comments during closing argument comparing
Petitioner to a used car salesman and stating that the jury should not find Petitioner
credible in light of his five prior felony convictions; and (5) defense counsel was
ineffective for failing to object to the prosecutor’s comments in closing argument
suggesting that Petitioner’s gun was loaded when there was no evidence that it was, and
according to Petitioner, it was not.
Respondent argues that habeas relief should be denied because Petitioner’s first
claim was procedurally defaulted, and, in any event, the state courts’ adjudication of that
claim and all remaining claims was legally and factually reasonable. 1 For the reasons
set forth below, habeas relief will be denied.
BACKGROUND
Indictment and Trial
Petitioner was charged by indictment with the crimes of conviction, as well as
with being a prior and persistent offender, having pled guilty in 2005 to possession of a
controlled substance, and in 1996 to two counts of first-degree robbery and two counts of
armed criminal action. At trial, Mohammad Bhatti testified that on the evening of March
9, 2008, he was working on a house he owned in the City of St. Louis. At about 8:00
p.m., when he was putting tools in his truck parked in front of the house, a man he did not
know walked up and began talking with him. Bhatti testified that the man stood close to
1
Respondent also argues that Petitioner can no longer challenge his conviction for
armed criminal action, as he had fully served the sentence for that conviction by the time
this action was filed. While Respondent is correct on this point, all of Petitioner’s claims
relate equally to both convictions.
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him and he could see his face clearly, and further, that the street lights were working at
the time. After asking him how he was doing, the man displayed a rifle from under his
coat, pointed it at Bhatti, and demanded all of his money. Bhatti reached into his pocket,
pulled out his wallet, and pushed it toward the man. At that point, police offers appeared
on the scene and the man ran away. The encounter with the man had lasted two to three
minutes. Bhatti testified that the robber was a little taller than himself. Bhatti then
identified Petitioner, who is African American, in the courtroom as the perpetrator. He
testified that at the end of April 2008, he also identified Petitioner in a live lineup.
On cross-examination, defense counsel attempted to weaken Bhatti’s identification
of Petitioner, pointing out that at 8:00 p.m. in the beginning of March it would have been
dark outside, that Petitioner was 5’ 10’, whereas Bhatti was only 5’ 5”, and that Bhatti
told the police at the scene that the robber had a medium build, not a big build. Bhatti
testified on redirect examination that he would never forget the face of the man who
robbed him.
Police Officer Stephen Slama testified that at the time of the crimes, he was
driving in the neighborhood in an unmarked minivan with his partner, looking for a
certain individual. As he drove down the street in question, he saw an Asian male talking
to a black male whose face Slama saw. Slama then saw the Asian male retrieve his
wallet from his pocket and push it toward the black male. Slama testified that he thought
a drug transaction was occurring and parked the van, at which point the black male’s
back was toward him. He heard the black male yell, “Give me your money or I’ll kill
you,” and saw him grab the victim’s wallet. Slama exited the van and announced
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“police,” at which point the black male immediately fled. Slama identified Petitioner as
the black male. Slama began chasing Petitioner, who had dropped a rifle as he fled. He
testified that Petitioner did not appear to have a limp or have any trouble running. Slama
did not have a radio or bullet-proof vest and so stopped chasing Petitioner. Slama
testified that after he had exited his vehicle, he saw Petitioner’s face for several seconds.
He testified that it was dusk, but there were streetlights and he saw Bhatti and Petitioner
clearly.
Slama testified that he radioed in a description of the robber as 5’ 10” to 5’ 11”, 25
to 30 years old, medium complected, and stocky, wearing a puffy coat. A few weeks
later, while Slama was at the city jail for an unrelated matter, he saw Petitioner and
recognized him at the person who had robbed Bhatti. The prosecutor showed Slama a
photo of the live lineup that had been conducted in connection with the robbery and
Slama identified the photo of Petitioner as the perpetrator. On cross-examination, Slama
acknowledged that he had described the robber as weighing 185 pounds, in addition to
being stocky.
Police Detective Robert Skaggs testified that on April 28, 2008, he interviewed
Petitioner about the Bhatti robbery, after reading Petitioner his constitutional rights.
Initially, Petitioner denied involvement, but after Skaggs told Petitioner that police had
information connecting him to the robbery, Petitioner said, “All right. You got me.
Yeah, I did the robbery. You can’t – you won’t be able to pin it on me.” Skaggs testified
that he then put Petitioner in a live lineup and Bhatti identified him immediately without
any doubt or hesitation. When Skaggs told Petitioner that he was picked out of the lineup
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and asked him if he wanted to talk about that, Petitioner said, “No, I guess I’m going
back to jail.”
The only witness for the defense was Petitioner. He testified that he had prior
convictions for two counts of first-degree robbery, two counts of armed criminal action,
and one count of “possession.” He denied committing the crimes of conviction and
making the statements to Skaggs noted above. Petitioner testified that he was 5’ 10’ and
weighed approximately 225 pounds at the time of the robbery. Petitioner testified that he
did not remember where he was at the time of the robbery, and that for the past 11 years
or so he had trouble with his left knee and could not run, and always limped. The trial
transcript indicates that as Petitioner left the stand, he showed the jury his swollen left
ankle, and limped back to his seat. The state presented, as a rebuttal witness, the deputy
sheriff who had accompanied Petitioner to and from the courtroom multiple times during
the trial. He testified that, prior to seeing Petitioner limp as he left the stand, he had
never observed him limping or having any problems at all getting around. Defense
counsel admitted into evidence medical records from 2000 to 2005 showing that
Petitioner had a movable “knot” in his left knee that caused him pain and range of motion
problems. 2
During closing argument, the prosecutor stated as follows:
What’s the thing a person in that situation has to be most concerned with?
That the person holding that gun stays calm. Stays happy. Right? Because
the one thing you don’t want to see in that situation is that person suddenly
2
These records are not part of the record before this Court. They are described in
detail in Petitioner’s brief on direct appeal, ECF No. 8-3 at 7-9, and the accuracy of this
description is not challenged.
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looking really pissed off or really angry. Because then the last thing Mr.
Bhatti would have heard would have been the sound of the gunshot. So he
was focused.
ECF No. 8-1 at 73. Defense counsel objected that this was “clearly improper
argument, total and complete speculation,” ECF No. 81 at 72, and the objection
was overruled. Defense counsel did not object to the prosecutor’s comments in
closing argument comparing Petition to a used car salesman and stating that the
jury should not find Petitioner credible in light of his five prior felony convictions.
In his own closing argument, defense counsel argued that the State had not proved
beyond a reasonable doubt that Petitioner was the perpetrator. During
deliberations, the jury asked for Petitioner’s medical records and they were
provided to the jury.
After the case was submitted to the jury, the State presented evidence that
Petitioner had pled guilty in 2005 to possession of a controlled substance, as
charged in the indictment. The Court made a finding beyond a reasonable doubt
that Petitioner was a prior offender subject to court sentencing. As noted above,
the jury found Petitioner guilty of first-degree robbery and armed criminal action.
No jury punishment phase was held; rather, the trial court sentenced Petitioner on
May 14, 2010. In pronouncing the sentence in court, the trial court did not state
that Petitioner was being sentenced as a prior offender. Petitioner did not object.
The written judgment and sentence showed that Petitioner was sentenced as a prior
offender.
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Direct Appeal
Petitioner raised several claims on direct appeal, including, as relevant here, the
first two claims he raises in his habeas petition. The Missouri Court of Appeals held that
the claim regarding the inconsistent oral and written sentences was defaulted when
Petitioner did not object at sentencing. The court further held that plain error review was
not warranted. The court acknowledged that the trial court did not comply with the
“technical requirements” of Mo. Rev. Stat. § 558.021, which provides that in a jury trial,
the facts supporting a finding that a defendant was a prior and persistent offender were to
be established and found prior to submission of the case to the jury. But the court
concluded that the failure of the trial court to make specific findings was a procedural
deficiency, in light of the fact that Petitioner testified to prior convictions, thus sufficient
evidence of his prior offender status was offered prior to the case’s submission to the
jury, and further, the trial court’s action in sentencing Petitioner without a jury showed
that the court “effectively found Petitioner to be a prior offender.”
The appellate court stated that generally, a written sentence and judgment must be
entered as orally pronounced, but that there was an exception to the general rule when the
oral sentence is not materially different from the written one, and such was the case here.
The court stated that as Petitioner failed to demonstrate manifest injustice due to being
sentenced as a prior offender, the court declined to proceed with plain error review.
The state appellate court rejected the insufficiency-of-the-evidence claim, in light
of the two in-court identifications and the lineup identification of Petitioner as the
perpetrator, as well as Detective Skagg’s testimony about the incriminating statements
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Petitioner made to him. The court held that a rational trier of fact reasonably could have
found Petitioner guilty beyond a reasonable doubt, and could have resolved any and all
inconsistencies in the identification evidence in favor of the State.
State Postconviction Proceedings
For state postconviction relief, Petitioner asserted the three ineffective assistance
of counsel claims he now raises in his habeas petition. With respect to the first claim,
Petitioner maintained that Correctional Officer Boon’s testimony would have supported
Petitioner’s own testimony that he did not make any statement to Detective Skaggs
suggesting he had committed the robbery. Petitioner argued that but for defense
counsel’s failure to call Boon, there was a reasonable probability that the outcome of
Petitioner’s trial would have been different.
The state court held an evidentiary hearing on March 21, 2013, at which Boon and
defense counsel testified. Boon testified that his task was to help walk Petitioner to the
April 28, 2008 lineup, that Petitioner was not a willing participant, and that Petitioner
asked for an attorney. Boon could not recall if he was present when Petitioner was
interviewed by the police officers. Boon testified that he was never contacted to testify at
Petitioner’s trial, that he had had surgery in April 2010, and had he been asked and
available, he would have been willing to testify. He stated that if asked to testify, his trial
testimony would have been “pretty much” the same as at the hearing. ECF No. 8-7 at 410.
Defense counsel testified that his investigator spoke to Boon, and that counsel
intended to call Boon at trial and had endorsed him as a witness. Counsel contacted the
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facility where Boon worked to let him know the trial was starting, and was informed at
that time that Boon was unavailable because he had just had surgery. Counsel did not
know whether the surgery was planned in advance or came up suddenly, but he had not
been informed about the surgery before trial. Counsel also testified that he did not
consider deposing Boon because as a general rule his office did not depose their own
witnesses unless there was some foreseeable unavailability. Because the facility where
Boon worked was attached to the courthouse where the trial took place, and because
counsel had no knowledge of a foreseeable problem with Boon’s availability, he did not
see a reason to depose him to preserve his testimony.
In affirming the motion court’s denial of Petitioner’s motion for post-conviction
relief, the Missouri Court of Appeals applied the standard of Strickland v. Washington,
466 U.S. 687 (1984), and held that defense counsel’s performance did not fall below the
standard of reasonably competent counsel in failing to secure the testimony of Boon,
because Boon’s unavailability was not foreseeable. The state appellate court rejected
Petitioner’s claim regarding defense counsel’s failure to object to the prosecutor’s
comment quoted above about Petitioner’s prior convictions, concluding that any
objection would not have been meritorious, as the comments were not used as improper
“propensity” evidence, but were rather used as a permissible attack on Petitioner’s
credibility.
Lastly, the Missouri Court of Appeals held that an objection, based on
prosecutorial misconduct in misrepresenting the evidence, to the prosecutor’s abovequoted statement about Petitioner’s gun being loaded would have rightly been overruled,
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as the comment went to the victim’s state of mind, a permissible matter for closing
argument.
DISCUSSION
Standard of Review
Federal habeas relief is available to a state prisoner “only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). Where a claim has been adjudicated on the merits in state court, the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that
application for a writ of habeas corpus cannot be granted 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
proceedings.
28 U.S.C. § 2254(d).
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.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). “[A] determination of a factual issue made by a State
court shall be presumed to be correct,” 28 U.S.C. § 2254(e)(1), and the petitioner has the
burden of rebutting this presumption of correctness by clear and convincing evidence. 28
U.S.C. § 2254(e)(1). A habeas petitioner meets the demanding standard for relief “only
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when he shows that the state court’s decision was “so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Dunn v. Madison, 138 S. Ct. 9, 11(2017) (citation
omitted).
Inconsistency of the Oral and Written Sentences
Rather than decide the procedural default issue with respect to Petitioner’s first
claim, the Court will address the claim on the merits. See Nance v. Norris, 392 F.3d 284,
291 (8th Cir. 2004) (holding that a court may by-pass a procedural default question and
proceed to the merits). A habeas claim grounded on issues of state law provides no basis
for habeas relief, as a violation of a state statute or rule of procedure is not, in itself, a
violation of the federal constitution. Engle v. Isaac, 456 U.S. 107, 120-21 (1982);
Evenstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006).
Here, the oral sentence and the written sentence were the same: 20 years for the
robbery and three years for the armed criminal action, to be served concurrently. The
Court does not believe that any federal constitutional right or federal law was violated by
the fact that in pronouncing the oral sentence, the trial court did not state that Petitioner
was being sentenced as a prior offender. There is no dispute that the record supported the
finding that Petitioner was a prior offender under Missouri law, as he had been charged,
and the trial court made clear in the written sentence that he was being sentenced as such.
The procedural irregularities presented here did not constitute a federal constitutional
right. See Bell v. Taylor, 198 F.3d 249 (8th Cir. 1999) (denying federal habeas relief
where Missouri state court found before trial that the petitioner was a persistent offender,
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but did not restate that finding in the oral sentence or original written sentence, later
amending the written sentence to reflect the finding).
Sufficiency of the Identification Evidence
Under Jackson v. Virginia, 443 U.S. 307 (1978), “a state prisoner is entitled to
habeas corpus relief if a federal judge finds that ‘upon the record evidence adduced at the
trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.’ ”
McDaniel v. Brown, 558 U.S. 120, 121 (2009) (quoting Jackson, 443 U.S. at 324). In a
Jackson analysis, a court must assume that the trier of fact resolved all conflicting
evidence in favor of the prosecution and defer to that resolution. Id. at 133. This Court
may only grant habeas relief on this claim if the Missouri Court of Appeals’s conclusion
that the evidence satisfied the Jackson sufficiency of evidence standard is “both incorrect
and unreasonable.” Garrison v. Burt, 637 F.3d 849, 855 (8th Cir. 2011).
Here, the state appellate court reasonably held that Bhatti and Detective Skaggs’
identification of Petitioner in court, and Bhatti’s lineup identification of Petitioner,
together with Skagg’s testimony about the incriminating statements Petitioner made to
him, was sufficient evidence for a reasonable jury to find that Petitioner was the
perpetrator. See, e.g., Williams v. Bowersox, 2017 WL 2645834, at *5 (E.D. Mo. June
20, 2017). As the state court held, the jury was entitled to give little relevance to Bhatti’s
testimony that the perpetrator was just a little taller than Bhatti was, and the jury was
entitled not to give credence to Petitioner’s testimony that he did not commit the crimes,
that he did not make the incriminating statements to Skagg, and that he could not have
been the robber because he could not run, as Bhatti and Skaggs testified the robber had
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done. Petitioner’s challenges to the credibility of the State’s witnesses’ testimony are
unavailing. See Garrison, 637 F.3d at 855 (rejecting a habeas petitioner’s challenge to
the sufficiency of the identification evidence); Wenfeel v. Wallace, 2016 WL 6269651, at
*6 (E.D. Mo. June 2, 2016), R & R adopted, 2016 WL 6248080 (E.D. Mo. Oct. 26, 2016)
(same). In sum, the Court finds that the state court’s decision is not contrary to, or an
unreasonable application of, clearly established federal law. This claim fails on the
merits.
Assistance of Defense Counsel
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show
ineffective assistance of counsel, a habeas petitioner must show both that “[his] counsel’s
performance was deficient” and that “the deficient performance prejudiced [his]
defense.” Strickland, 466 U.S. at 687. “Strickland’s first prong sets a high bar. A
defense lawyer navigating a criminal proceeding faces any number of choices about how
best to make a client’s case. The lawyer has discharged his constitutional responsibility
so long as his decisions fall within the ‘wide range of professionally competent
assistance.’” Buck v. Davis, 137 S. Ct. 759, 775 (2017) (quoting Strickland, 466 U.S. at
690).
“Judicial scrutiny of counsel’s performance must be highly deferential,” and
Petitioner bears a heavy burden in overcoming “a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance” and “might be
considered sound trial strategy.” Strickland, 466 U.S. at 689 (citations omitted). To
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show prejudice, a petitioner must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
When an ineffective assistance claim has been addressed by the state court, this
Court must bear in mind that “[t]aken together, AEDPA and Strickland establish a
‘doubly deferential standard’ of review.” See Williams v. Roper, 695 F.3d 825, 831 (8th
Cir. 2012) (citation omitted). In the context of a habeas claim, it is not sufficient for a
petitioner to “show that he would have satisfied Strickland’s test if his claim were being
analyzed in the first instance.” Bell v. Cone, 535 U.S. 685, 698-99 (2005). “Rather, he
must show that the [state court] applied Strickland to the facts of his case in an
objectively unreasonable manner.” Id. at 699.
Here, this Court cannot say that the state appellate court’s adjudication of the three
ineffective assistance of counsel claims Petitioner raises was in any way legally or
factually unreasonable. The record supports the state court’s conclusion that defense
counsel’s performance did not fall below the standard of reasonably competent counsel in
failing to secure the testimony of Boon, because Boon’s unavailability was not
foreseeable. Moreover, Petitioner has not shown how Boon’s testimony at trial that he
did not hear Petitioner make incriminating statements to Skaggs would have helped
Petitioner, as Boon was not present when those statements were made. 3
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Detective Skaggs testified that Petitioner’s admission to committing the offense
occurred before the lineup, which is when Boon heard Petitioner request an attorney.
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The state court reasonably determined that defense counsel’s failure to object to
the prosecutor’s comment about Petitioner’s prior convictions, would not have been
meritorious because those comments constituted a permissible attack on Petitioner’s
credibility. Because Petitioner took the stand in his own defense and was therefore
subject to cross examination regarding prior convictions for impeachment purposes, the
arguments made by the State in closing argument regarding Petitioner’s credibility were
permissible. Since counsel’s objection would have been without merit, counsel cannot be
found to have acted ineffectively in this regard. See Griffin v. Dormire, 2010 WL
4366547, at *5 (E.D. Mo. Sept. 24, 2010), R & R adopted, 2010 WL 4366542 (E.D. Mo.
Oct. 28, 2010).
Lastly, the Missouri Court of Appeals reasonably held that defense counsel was
not ineffective for failing to object to the prosecutor’s statement quoted above regarding
Bhatti’s focus during the robbery when the gun was pointed at him, on the basis of
prosecutorial misconduct. As noted above, defense counsel did object to the comment on
the basis that it was improper and constituted speculation. As the state appellate court
noted, the comment was directed to the victim’s state of mind, and was not an assertion
that the gun was actually loaded. Thus, the comment did not constitute prosecutorial
misconduct by arguing facts outside the record, and an objection on that basis would have
been meritless; counsel was therefore not ineffective for failing to raise such an objection.
Moreover, any prejudicial impact from the comment at issue was insignificant in the
context of the prosecutor’s overall argument and the evidence at trial. See Johnston v.
Bowersox, 119 F.Supp.2d 971, 985 (E.D. Mo. 2000) (holding that defense counsel’s
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failure to object to the prosecutor’s argument was not ineffective where the argument was
not in fact objectionable and/or because the prejudicial impact was insignificant in the
overall context of the evidence and argument presented to the jury), aff’d sub nom.
Johnston v. Luebbers, 288 F.3d 1048 (8th Cir. 2002). In sum, the decision of the
Missouri Court of Appeals denying Petitioner’s claims that defense counsel provided
ineffective assistance of counsel, due to a failure to secure Boon’s testimony, and failure
to object to the prosecutor’s closing statements noted above was not contrary to or an
unreasonable application of Strickland.
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief. The
Court does not believe that reasonable jurists might find the Court’s assessment of the
procedural or substantive issues presented in this case debatable or wrong, for purposes
of issuing a Certificate of Appealability under 28 U.S.C. § 2254(d)(2). See Buck, 137 S.
Ct. at 773 (standard for issuing a Certificate of Appealability) (citing Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003)).
Accordingly,
IT IS HEREBY ORDERED that the petition of Antonio Turner for a writ of
habeas corpus relief is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not be
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issued.
A separate Judgment shall accompany this Memorandum and Order.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 5th day of March, 2018.
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