Weinert v. O'Connell

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Brad Weinert's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1 ) is DENIED. IT IS FURTHER ORDERED that the Court finds that, because Petitioner can not make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). A judgment dismissing this case is filed herewith. Signed by District Judge John A. Ross on 5/6/2022. (CLO) (Main Document 25 replaced on 5/6/2022) (CLO).

Case: 4:20-cv-00850-JAR Doc. #: 25 Filed: 05/06/22 Page: 1 of 14 PageID #: 1738

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRAD WEINERT,

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Petitioner,
v.
JULIE KEMPKER 1
Respondent.

No. 4:20-cv-00850-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Brad Weinert’s Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). The motion is fully briefed and ready for
disposition. For the following reasons, Petitioner’s Section 2254 petition will be denied and the
action dismissed.
I.

Introduction and Background
The evidence at trial revealed the following. On March 30, 2012 at around 5:30 P.M.,

Petitioner was speeding down Interstate 70, weaving in and out of traffic, when he crashed his
minivan into a car driven by Adrianne Crews. (Doc. No. 13-3 at 676). Although Petitioner claimed
his vehicle was hit by Ms. Crews’ truck, Petitioner’s vehicle had “heavy front end damage,” and
witnesses reported his vehicle hit Ms. Crews truck. Id. at 68-69. Ms. Crews’ truck flipped several
times as a result of the accident. Terri Bellagamba was driving down Interstate 70 at the time of
the accident and witnessed Petitioner hit Ms. Crews’ car. She pulled over and called 911. Id. at

1

After filing his petition, Petitioner was released on parole. As such, Julie Kempker, the
Director of the Missouri Board of Probation and Parole shall be substituted for Brian O’Connell
as the party respondent. 28 U.S.C. § 2254, Rule 2.
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684-85. Ms. Bellagamba spoke with a state trooper briefly; Petitioner then walked up to her car
and asked her about her conversation with the officer. Id. at 686. Ms. Bellagamba did not respond,
but Petitioner remained at her car window staring in at her for several minutes. Id. at 878-87.
State Trooper Justin Moll responded to the accident. He noticed Petitioner had red, watery
eyes, slurred speech, and smelled of alcohol. Id. at 70. Petitioner admitted he drank six beers prior
to driving. Id. Petitioner performed three field sobriety tests, all of which showed indications of
intoxication. Id. at 118-19. He was then arrested for driving while intoxicated and taken to a
hospital to have his blood drawn to test for blood alcohol content. Petitioner’s blood was drawn at
11:09 P.M. and again at 12:19 A.M. The first test resulted in a 0.14 BAC and the second resulted
in a 0.119 BAC. Id. at 618-19.
At the trial, Ms. Crews testified about the extent of her injuries. She described the pain of
the injury as “the worst pain I ever had in my life.” Id. at 711. The prosecutor asked her what
injuries she had as a result of the crash and Ms. Crews responded “I had a concussion. I broke my
back teeth. I bruised internal organs. I -- my abdominal walls separated, I had muscle separation
in my stomach. My back had all kinds of things messed up with my back, my neck, my head. My
hips hurt. I had bruises from my face all the way down to my ankles.” Id. at 712. Additionally, Ms.
Crews’ bladder was damaged. She was incontinent and urinated blood for 6 weeks. She also
testified about the extreme extent of her pain: “I’m in pain right now…I am in extreme pain most
of the time.” Id.
Ms. Bellagamba testified at the trial about the trauma she experienced as a result of the
accident. She said the accident impacted her “driving” and “if I’m not in control of the car, if I’m
riding with somebody else, I can’t handle it…I feel like I have to be in control. I’m a nervous
wreck. I want to be on the floorboard telling them what to do from point A to point B.” Id. at 689.

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During closing arguments, the prosecuting attorney showed the jury six beer bottles, and
explained the bottles were demonstrative. The trial court allowed the prosecutor to use the beers
provided the jury “understand that these are not any beers that were in evidence.” Id. at 749. Trial
counsel objected to Ms. Crews’ and Ms. Bellagamba’s testimony about their injuries as well as the
prosecuting attorney’s use of the six beer bottles.
The jury found Petitioner guilty of driving while intoxicated pursuant to Rev. Stat. Mo.
§557.010. The charge has two elements: first, the person must have operated a motor vehicle and
second, the person must be intoxicated while operating the vehicle. The prosecutor also sought to
enhance Petitioner’s sentence by showing he is a chronic offender under Rev. Stat. Mo. § 577.023.
To prove Petitioner is a chronic offender, the prosecutor presented non-certified printouts from the
Driving While Intoxicated Tracking System (DWITS) maintained by the Missouri state highway
patrol. (Doc. No. 13-3 at 160-64). The printouts indicated Petitioner has five prior DWI
convictions and one conviction of excessive blood alcohol content. Trial counsel objected to the
introduction of the DWITS records because the records were not authenticated. Id. The trial judge
overruled the objection, finding the printouts were sufficient proof. Id. at 163. Based on the
DWITS records, the judge found Petitioner is a chronic offender and enhanced his sentence from
a Class B misdemeanor to a Class B felony. Petitioner was sentenced to eleven years. Since filing,
Petitioner has been released on parole. 2
a. Direct appeal
Petitioner raised three points on direct appeal: (1) the trial court abused its discretion in
permitting Ms. Crews to testify about the severity of the injuries she suffered as a result of the

2

Although Petitioner is no longer in physical custody, his petition has not been rendered
moot. The imposition of parole conditions constitutes “custody” for the purposes of 28 U.S.C. §
2254. Jones v. Cunningham, 371 U.S. 236 (1963).
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accident, (2) the trial court abused its discretion in permitting Ms. Bellagamba to testify about her
emotional distress, and (3) the trial court erred in allowing the prosecutor to display the six beer
bottles during closing argument. On October 25, 2016, the Missouri Court of Appeals, Eastern
District, determined Petitioner could not demonstrate prejudice on his first and second claims
because he failed to show “the challenged admission of [Ms. Crews’ and Ms. Bellagamba’s]
injuries is dispositive.” (Doc. No. 13-7 at 6). The appellate court also found that Petitioner
conceded the first element of § 577.010—that he operated a motor vehicle—and there was
“overwhelming evidence adduced during the course of trial” showing the second element, that
Petitioner was intoxicated while operating the motor vehicle, including the blood alcohol tests and
Petitioner’s admission that he drank six beers prior to driving. Id. at 5-6. The appellate court further
found against Petitioner on the third claim, determining it “need not discern the propriety of the
trial court’s ruling that permitted the State to display six beer bottles, for demonstrative purposes,
during closing arguments, because [Petitioner], again, cannot demonstrate prejudice.” Id. at 10.
b. Post-Conviction Court
Petitioner alleged in his motion for post-conviction relief that his appellate counsel was
ineffective for failing to assert on direct appeal that the trial court erred in accepting
unauthenticated evidence from the DWITS as evidence that Petitioner is a chronic offender
pursuant to Mo. Rev. Stat. § 577.023. On August 15, 2017, after the Eastern District Court of
Appeals denied Petitioner’s direct appeal, the Missouri Court of Appeals, Western District,
determined § 577.023 did not eliminate the general foundational requirements for admissibility of
evidence, and as such an unauthenticated DWITS record printout is inadmissible. State v.
Pylypczuk, 527 S.W.3d 96, 102 (Mo. Ct. App. 2017).

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The post-conviction court held an evidentiary hearing at which Petitioner’s appellate
counsel, William Swift, and Petitioner testified. Mr. Swift testified that, based on his reading of
the statute and review of the trial record, the claim did not have as high a chance of success as the
claims he chose to raise. (Doc. No. 13-10 at 13-45). The post-conviction court found appellate
counsel acted reasonably in not raising the DWITS argument. (Doc. No. 13-9 at 124). No appellate
court had yet interpreted the language of §577.023 regarding authentication and the reading given
by appellate counsel was customarily used at the trial level by both counsel and trial courts. Id.
Furthermore, the post-conviction court found Petitioner had failed to show prejudice because he
“has not alleged facts or submitted evidence to establish a reasonable probability that the Eastern
District Court of Appeals would have reversed the trial court’s admission of the DWITS record,”
as the Eastern District has not yet interpreted the language at issue. Id. at 125.
c. Post-Conviction Appeal
Petitioner appealed the post-conviction court’s determination, arguing the court erred in
finding appellate counsel’s actions were reasonable, as a competent attorney would have raised
the DWITS argument on appeal. The appellate court upheld the post-conviction court’s decision.
It found that Petitioner has failed to show the DWITS claim was “so obvious any reasonably
competent attorney would have asserted it at the time of Movant’s direct appeal.” (Doc. No. 1313 at 1). The post-conviction appellate court found Pylypczuk did not render appellate counsel’s
decision clearly erroneous because he “could not have been expected to predict the clarification
under Pylypczuk when another reasonable interpretation existed.” Id. at 10. However, the appellate
court agreed with Petitioner that “it is now clear the DWITS claim would likely have resulted in a
reduced sentence.” Id. at 11.

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II.

Analysis
A district court “shall entertain an application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court 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).
Federal courts may not grant habeas relief on a claim that has been decided on the merits in State
court unless that 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).
“A state court’s decision is contrary to . . . clearly established law if it applies a rule that
contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that
are materially indistinguishable from a [Supreme Court] decision . . . and nevertheless arrives at a
[different] result.” Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007) (quoting Mitchell v.
Esparza, 540 U.S. 12, 15-16 (2003) (internal quotation marks omitted)). A state court
“unreasonably applies” federal law when it “identifies the correct governing legal rule from [the
Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s
case,” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to a new context where
it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). A state court decision may be
considered an unreasonable determination “only if it is shown that the state court’s presumptively
correct factual findings do not enjoy support in the record.” Ryan v. Clarke, 387 F.3d 785, 790791 (8th Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)). A state court’s factual findings are presumed
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to be correct. 28 U.S.C. § 2254(e)(1); Wood v. Allen, 558 U.S. 290, 293 (2010). Review under §
2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits.
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). Clear and convincing evidence that state court
factual findings lack evidentiary support is required to grant habeas relief. 28 U.S.C. § 2254(e)(1);
Wood, 558 U.S. at 293.
III.

Discussion
Petitioner raises four grounds for reversal: 1) the trial court erred in allowing Ms. Crews to

testify about the severity of her injuries; 2) the trial court erred in allowing Ms. Bellagamba to
testify about the severe emotional trauma she experienced as a result of the car accident; 3) the
trial court erred in allowing the prosecuting attorney to show the jury six beer bottles that were not
admitted into evidence; and 4) appellate counsel was ineffective for failing to argue the trial court
erred in admitting the uncertified DWITS records.
a. Trial Court Error
The Court will address Petitioner’s first three claims together, as all three claims relate to
the admission of evidence during the trial. In his first two claims, Petitioner claims the trial court
erred in admitting certain testimony from Ms. Crews and Ms. Bellagamba. In his third claim, he
claims the trial court erred in allowing the prosecuting attorney to use six empty beer bottles for
demonstrative purposes.
As the Supreme Court has emphasized, “it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions,” such as the admissibility of evidence
at trial. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “In conducting habeas review, a federal
court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Id. at 68. Evidentiary issues can, however, form the basis for habeas relief if the

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error constitutes an independent constitutional violation. See Bounds v. Delo, 151 F.3d 1116, 1119
(8th Cir. 1998). “A state court’s evidentiary rulings can form the basis for federal 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.” Id. (quoting
Parker v. Bowersox, 94 F.3d 458, 460 (8th Cir. 1996)). To meet this standard, a petitioner must
show a reasonable probability that the evidentiary errors affected the trial’s outcome. See Meadows
v. Delo, 99 F.3d 280, 283 (8th Cir. 1996).
The Court concludes that the introduction of the evidence at issue did not amount to a
denial of Petitioner’s right to due process. In order to show a violation of the right to due process,
Petitioner “must show a reasonable probability that the error affected the trial’s outcome.” Id.
(citation omitted). Where the conviction is based on sufficient evidence outside the challenged
evidence, a petitioner cannot show that the error affected the trial’s outcome and therefore is not
entitled to relief. See Troupe v. Groose, 72 F.3d 75, 76 (8th Cir. 1995) (“Given the other evidence
at trial, [the court] cannot say the admission of [petitioner]’s earlier conviction affected the trial’s
outcome.”) (internal citation omitted).
Petitioner’s conviction is sufficiently grounded in other evidence and therefore he cannot
show prejudice. The jury found Petitioner guilty of driving while intoxicated pursuant to Rev. Stat.
Mo. § 557.010. The charge has two elements; first, the defendant must have operated a motor
vehicle and second, the defendant must be intoxicated while operating the vehicle. The Missouri
Court of Appeals found “overwhelming evidence” proving the elements of the crime. (Doc. No.
13-7 at 6). The Court agrees that the evidence adduced at trial is more than sufficient to prove both
elements of the crime. Petitioner does not dispute the first element, that he was operating the
vehicle. There was significant evidence introduced at trial to show Petitioner was intoxicated,

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including two blood alcohol content tests administered hours after the incident showing
Petitioner’s BAC was 0.14 and later 0.119, testimony that Petitioner failed three field sobriety tests
administered immediately after the accident, and testimony that Petitioner told an officer at the
scene of the accident he had recently drunk six beers. Given the extensive evidence at the trial,
Petitioner cannot show a reasonable probability of a different outcome. As such, Grounds 1, 2, and
3 will be denied.
b. Ineffective Assistance of Counsel
Petitioner next argues that his appellate counsel was ineffective for failing to raise an
obvious trial court error, the admission of the unauthenticated DWITS records. Petitioner concedes
that appellate counsel was not ineffective for failing to raise the other ten preserved grounds for
appeal. Respondent argues that Petitioner is unable to show his counsel’s performance was
objectively unreasonable.
To prevail on a claim alleging ineffective assistance of counsel, the movant must satisfy
the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, (1984). Under
Strickland, the movant must first show that the counsel’s performance was deficient. Id. at 687.
This requires the movant to show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Secondly, the
movant must demonstrate that the deficient performance prejudiced the defense so as “to deprive
the defendant of a fair trial, a trial whose result is reliable.” Id. The movant “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. A defendant attempting to prove ineffective assistance of

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counsel within the context of a section 2255 pleading faces a heavy burden. See United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
The Eighth Circuit has described the two-fold test as follows: (1) counsel’s representation
fell below an objective standard of reasonableness; and (2) but for this ineffective assistance, there
is a reasonable probability that the outcome of the trial would have been different. Rogers v. United
States, 1 F.3d 697, 700 (8th Cir. 1993). More recently the Eighth Circuit has described the
Strickland test as follows: “[w]hether counsel’s performance was in fact deficient and, if so,
whether the defendant was prejudiced by the inadequate representation. If we can answer ‘no’ to
either question, then we need not address the other part of the test.” Fields v. United States, 201
F.3d 1025, 1027 (8th Cir. 2000). For appellate counsel, the first prong requires a showing “that
counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them.”
Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764, 145 L. Ed. 2d 756 (2000).
When evaluating counsel’s performance, the court “must indulge in a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Counsel’s performance is considered objectively, and gauged
“whether it was reasonable ‘under prevailing professional norms’ and ‘considering all the
circumstances.’” Fields, 201 F.3d at 1027 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 206465), Counsel’s challenged conduct is viewed as of the time of his representation, “[a]nd we avoid
making judgments based on hindsight.” Fields, 201 F.3d at 1027. “The standards created by
Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is
doubly so.” Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 788 (2011) (internal citations
and quotations omitted).

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The parties dispute whether the “doubly” deferential standard described in Richter applies
to this case. Petitioner argues the standard of review only applies in cases where a federal court
reviews a state court decision that is “unaccompanied by an explanation.” Id. at 98, 131 S. Ct. 784.
Petitioner misreads Richter. The Supreme Court stated in Richter that when “a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by
showing there was no reasonable basis for the state court to deny relief.” Id. However, the doubly
deferential standard described in Richter is not tied to whether the state court explained its
decision; it applies where, as here, a federal court reviews a state court’s evaluation of counsel’s
performance. See Franklin v. Hawley, 879 F.3d 307, 310 (8th Cir. 2018) (to succeed on an
ineffective assistance of counsel claim under the AEDPA, a petitioner must meet a doubly
deferential standard). To the extent Petitioner argues the Court cannot affirm the state court on a
basis not contained in its opinion, as described below, the Court finds the reasoning of the state
court was sound and as such it need not consider alternative bases to affirm its decision.
Petitioner argues that his counsel was ineffective for failing to assert that the DWITS
records require authentication pursuant to § 577.023. The relevant portion of § 577.023 states:
Evidence offered as proof of the defendant’s status as a… chronic offender … shall
include but not be limited to evidence of findings of guilt received by a search of
the records of the Missouri uniform law enforcement system, including criminal
history records from the central repository or records from the driving while
intoxicated tracking system (DWITS) maintained by the Missouri state highway
patrol, or the certified driving record maintained by the Missouri department of
revenue.
Mo. Rev. Stat. § 577.023.
On August 15, 2017, almost a year after the Missouri Court of Appeals issued its order
affirming the judgment of Petitioner’s conviction on October 25, 2016, the Missouri Court of
Appeals for the Western District determined DWITS records must be authenticated to serve as
evidence of a prior conviction under § 577.010. See Pylypczuk, 527 S.W. 3d 96.
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In Pylypczuk, the defendant was convicted of driving while intoxicated in violation of §
577.010. Id. To prove he was a repeat offender, the State introduced into evidence a printout, which
purported to be a record taken from the DWITS. The printout was unauthenticated. The State
argued that pursuant to § 577.023, the DWITS record could be admitted without any foundation.
The Pylypczuk court found that nothing in § 577.023 eliminates “the general foundational
requirement for admission of DWITS records,” and therefore the printout could not serve as
evidence that the defendant was a repeat offender unless it was authenticated. Id. at 101.
Respondent does not dispute that, had Petitioner’s appellate counsel raised this point on appeal, he
would have been entitled to relief under Pylypczuk. Instead, Respondent argues that Petitioner has
not shown appellate counsel was deficient for failing to raise the claim.
Petitioner claims that the error was obvious, and as such appellate counsel was
unreasonable for failing to raise the claim. He points out that, although Pylypczuk had not yet been
decided, no appellate court had held the DWITS record did not need to be authenticated. Petitioner
argues that, as the Pylypczuk court noted, prior interpretations of § 577.023 explain that the purpose
of the statute is to identify the types of evidence that are sufficient to establish a prior conviction;
he further claims these cases show DWITS printouts require authentication. See State v. Thomas,
969 S.W.2d 354, 356 (Mo. Ct. App. 1998) (holding Department of Revenue records are competent
evidence to prove a defendant is a persistent offender pursuant to § 577.023); State v. Miller, 153
S.W.3d 333, 337–38 (Mo. Ct. App. 2005) (finding § 577.023 “demonstrates clear legislative intent
to establish the minimum evidentiary burden” to establish predicate offenses for an enhanced
conviction). Moreover, Petitioner argues the Missouri “legislature generally reflects its intent to
omit certain evidence from basic foundational requirements with language such as ‘shall be
admissible as evidence in all courts of this state.’” Pylypczuk, 527 S.W.3d at 99–100 (quoting

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Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 338 (Mo. 1993) superseded by statute as recognized
in Mills v. Dir. of Revenue, 964 S.W.2d 873, 875 (Mo. Ct. App. 1998)). Section 577.023 does not
contain such language. Finally, Petitioner claims appellate counsel was ineffective for choosing to
raise three evidentiary arguments, which are subject to an abuse of discretion standard, rather than
the challenge to the “chronic offender” enhancement, which is subject to a lesser standard of
review.
The Court cannot say appellate counsel’s actions were objectively unreasonable for failing
to raise the issue of DWITS authenticity on appeal. The post-conviction court and the postconviction appellate court found counsel acted reasonably. No appellate court had yet interpreted
the language of §577.023. Petitioner argues that authority for the rule that DWITS printouts require
authentication before they may be admitted as proof of prior offenses predated his appeal.
However, Petitioner fails to identify any caselaw in support of this proposition, nor can the Court
find any. 3 Appellate counsel reviewed the language of the statute and determined the claim was
weaker than those he chose to raise. As the postconviction appellate court noted, §577.023 explains
that “records from the driving while intoxicated tracking system (DWITS), or the certified driving
record maintained by the Missouri department of revenue” may be used as evidence of prior
offenses. Mo. Rev. Stat. § 577.023; (Doc. No. 13-13 at 8). Appellate counsel could have reasonably
concluded that by specifying driving records, but not DWITS records, must be certified, the
legislature intended to eliminate the need to authenticate DWITS records. (Doc. No. 13-3 at 9).

3

The cases referenced by Pylypczuk explain that one purpose of §577.023 was establishing
the type of evidence sufficient to prove a prior offense. These cases do not determine whether
§577.023 eliminates the need to authenticate such evidence. See Thomas, 969 S.W.2d 354;
Miller, 153 S.W.3d 333.
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Furthermore, the post-conviction court found it was common practice of both trial counsel
and trial courts to rely upon unauthenticated DWITS printouts as proof of prior offenses. Petitioner
argues appellate counsel erred in declining to raise the claim because it was subject to a lower
standard of review. Appellate counsel considered the claims he could bring and reasonably
determined the DWITS claim was not as strong as the evidentiary claims. Counsel need not raise
every nonfrivolous issue on appeal. The Court cannot say appellate counsel acted unreasonably by
failing to raise the DWITS issue on appeal. Therefore, Ground 4 is denied.
IV.

Conclusion
Accordingly,
IT IS HEREBY ORDERED that Petitioner Brad Weinert’s Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1) is DENIED.
IT IS FURTHER ORDERED that the Court finds that, because Petitioner cannot make a
substantial showing of the denial of a constitutional right, the Court will not issue a certificate of
appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834
(1998).
A judgment dismissing this case is filed herewith.
Dated this 6th day of May, 2022.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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