Gallegos-Palafox v. Hansen

Filing 24

MEMORANDUM AND ORDER - IT IS THERFORE ORDERED that: Petitioner's Petition for Writ of Habeas Corpus (Filing No. 1 ) is dismissed with prejudice. Petitioner's Motion to Request Additional Documents (Filing No. 12 ) is denied as moot. Petitioner's Request for an Evidentiary Hearing (Filing No. 22 ) is denied. The court will not issue a certificate of appealability. The court will enter a separate judgment in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AURELIO GALLEGOS-PALAFOX,
Petitioner,

8:16CV291

vs.
MEMORANDUM
AND ORDER

BRAD HANSEN,
Respondent.

This matter is before the court on Petitioner Aurelio Gallegos-Palafox’s
(“Petitioner”) Petition for Writ of Habeas Corpus. (Filing No. 1.) For the reasons
that follow, Petitioner’s habeas petition is dismissed with prejudice.
I.
A.

BACKGROUND

Conviction and Sentence

Petitioner’s convictions arise out of a plea agreement. Prior to the plea
agreement, he was charged with three counts of first degree sexual assault, each a
Class II felony, and one count of first degree sexual assault of a child, a Class IB
felony, in the Platte County District Court (“state district court”). (Filing No. 1112 at CM/ECF pp.2–3; see also Filing No. 11-3 at CM/ECF pp.1–4.) As a result of
the plea agreement, Petitioner pled guilty to one count of first degree sexual
assault, a Class II felony, and one count of incest, a Class III felony. (Filing No.
11-12 at CM/ECF pp.4–5; Filing No. 11-16 at CM/ECF pp.46–69.) In exchange
for his pleas, the State dismissed the other pending charges and agreed not to make
a specific sentencing recommendation. (Filing No. 11-16 at CM/ECF pp.46–69.)
The factual basis for the pleas established that on April 14, 2011, 16-yearold S.L. reported that she had been raped by her stepfather, Petitioner, at their

house in Columbus, Nebraska. (Id. at CM/ECF pp.63–65.) S.L. told police that it
happened just the night before, and it also happened two days earlier. (Id.) On
both occasions, according to S.L., Petitioner came into her bedroom and she told
him to leave, but he refused and raped her on the floor of her bedroom as she
closed her eyes and covered her face with her hands. (Id.) S.L. reported that it
occurred against her will, but she was afraid to yell or fight back because she did
not want to hurt her mother who was in the residence. (Id.) Police also spoke with
Petitioner about the allegations and he initially denied having any intercourse with
S.L., but eventually admitted that he had sexual intercourse involving penetration
with her twice within the past week. (Id.)
After the factual basis was provided, the following exchange occurred
between the district court and the prosecutor:
THE COURT: And the State’s evidence, I take it, Ms. Herman, would
show that the sexual penetration that you have described today was
without the consent of the victim; is that correct?
MS. HERMAN: Yes. The victim indicated she was not willing, but
was afraid to fight back.
(Id. at CM/ECF p.65).
The district court then asked Petitioner if the factual basis was true and
accurate, and Petitioner said yes. (Id.) The court asked Petitioner if he had
discussed his case with his attorney, including any potential defenses that might be
available, and Petitioner said yes. (Id. at CM/ECF p.63.) The court also spoke
with Petitioner’s attorney, who said that he was aware of no reason the court
should not accept Petitioner’s guilty pleas and that the pleas were consistent with
the evidence. (Id. at CM/ECF p.66.) Following this discussion, the court accepted
2

Petitioner’s pleas and subsequently sentenced him to an aggregate period of 20 to
30 years’ imprisonment. (Id. at CM/ECF pp.66–67, 80–81.)
B.

Direct Appeal (“Gallegos-Palafox I”)

A direct appeal was not initially filed, but Petitioner subsequently filed a
motion for postconviction relief and was awarded a new direct appeal due to his
trial counsel’s failure to file a direct appeal. (Filing No. 11-12 at CM/ECF pp.9–
13.) Petitioner then filed a direct appeal with the assistance of a new attorney and
the sole assignment of error on appeal was excessive sentence. (Filing No. 11-6 at
CM/ECF p.5.) The Nebraska Court of Appeals rejected Petitioner’s claim and
entered a 1-page order granting the State’s motion for summary affirmance.
(Filing No. 11-1.)
C.

Postconviction Proceeding and Appeal (“Gallegos-Palafox II”)

Petitioner subsequently filed a second motion for postconviction relief in the
state district court on January 5, 2015. (Filing No. 11-13 at CM/ECF pp.2–19.)
Petitioner alleged that his direct appeal counsel was ineffective in two respects.
First, he alleged that his appellate counsel was ineffective for failing to assign as
error that the factual basis was insufficient to support his plea to first degree sexual
assault given that the factual basis did not establish that the sex was
nonconsensual. (Filing No. 11-3 at CM/ECF p.5.) Second, Petitioner alleged
appellate counsel was ineffective for failing to assert that trial counsel was
ineffective for (a) not advising him that consent is a defense to first degree sexual
assault, (b) advising him to waive his preliminary hearing, (c) advising him to
plead guilty without first conducting minimal investigation, such as deposing S.L.,
and (d) advising him to plead despite a record of consent. (Id.)
3

The state district court denied Petitioner’s postconviction motion without an
evidentiary hearing. (Filing No. 11-13 at CM/ECF pp.25–32.) Petitioner
appealed, and the Nebraska Court of Appeals affirmed the district court’s
judgment. (Filing No. 11-3.) The Nebraska Court of Appeals concluded that all of
Petitioner’s claims were without merit, and thus, they were properly denied
without an evidentiary hearing. (Id.) Petitioner sought further review in the
Nebraska Supreme Court, which the Court denied on June 8, 2016. (Filing No. 114.)
D.

Habeas Petition

Petitioner timely filed his Petition in this court on June 22, 2016.1 (Filing
No. 1.) In response to the Petition, Respondent filed an Answer, a Brief, and the
relevant state court records. (Filing Nos. 11, 13, 14.) Petitioner filed a Brief in
Response to Respondent’s Answer and Request for an Evidentiary Hearing.
(Filing Nos. 19, 22.) Respondent filed a reply brief. (Filing No. 23.) This matter
is fully submitted for disposition.
II.

DISCUSSION

Liberally construed, Petitioner’s habeas petition contains the same two
claims attacking counsel’s representation on direct appeal that he raised in his most
recent postconviction proceeding in state court. (See Part I.C. supra.) First,
1

There is no dispute that Petitioner’s habeas petition is timely since the one-year
limitations period under 28 U.S.C. § 2244(d)(1) did not begin to run until the conclusion of his
reinstated direct appeal. See Jimenez v. Quarterman, 555 U.S. 113 (2009) (concluding that
where a state court during a collateral proceeding reinstates a defendant’s right to file an “out-oftime” direct appeal, the one-year limitations period under 28 U.S.C. § 2244(d)(1) does not begin
to run until the date on which the new direct appeal becomes final).

4

Petitioner argues that appellate counsel was ineffective because counsel failed to
raise on direct appeal the sufficiency of the factual basis to support his plea.
Second, Petitioner claims that appellate counsel was ineffective for failing to raise
on direct appeal the following claims of ineffective assistance of trial counsel: (1)
trial counsel failed to advise Petitioner that consent was a defense; (2) trial counsel
advised Petitioner to waive preliminary hearing; (3) trial counsel advised Petitioner
to plead guilty without first investigating; and (4) trial counsel advised Petitioner to
plead guilty despite proof of consent. The Nebraska state courts adjudicated each
of these claims on the merits and so the court’s analysis is governed by the
provisions set forth in 28 U.S.C. § 2254(d).
A.

Standard Under 28 U.S.C. § 2254(d)

When a state court has adjudicated a habeas petitioner’s claim on the merits,
there is a very limited and extremely deferential standard of review both as to the
law and the facts. See 28 U.S.C. § 2254(d). Section 2254(d)(1) states that a
federal court may grant a writ of habeas corpus if the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1). As explained by the Supreme Court in Williams v. Taylor, 529 U.S.
362 (2000), a state court acts contrary to clearly established federal law if it applies
a legal rule that contradicts the Supreme Court’s prior holdings or if it reaches a
different result from one of that Court’s cases despite confronting indistinguishable
facts. 529 U.S. at 405–06. Further, “it is not enough for [the court] to conclude
that, in [its] independent judgment, [it] would have applied federal law differently
from the state court; the state court’s application must have been objectively
unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).

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With regard to the deference owed to factual findings of a state court’s
decision, Section 2254(d)(2) states that a federal court may grant a writ of habeas
corpus if a state court proceeding “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). Additionally, a federal court
must presume that a factual determination made by the state court is correct, unless
the petitioner “rebut[s] the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
As the Supreme Court noted, “[i]f this standard is difficult to meet, that is
because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The
deference due state court decisions “preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [Supreme Court] precedents.” Id. Indeed, “[i]t bears
repeating that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. However, this high degree of deference only
applies where a claim has been adjudicated on the merits by the state court. See
Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir. 2004) (“[A]s the language of the
statute makes clear, there is a condition precedent that must be satisfied before we
can apply the deferential AEDPA standard to [the petitioner’s] claim. The claim
must have been ‘adjudicated on the merits’ in state court.”).
The Eighth Circuit clarified what it means for a claim to be adjudicated on
the merits, finding that:
AEDPA’s requirement that a petitioner’s claim be adjudicated on the
merits by a state court is not an entitlement to a well-articulated or
even a correct decision by a state court. . . . Accordingly, the
postconviction trial court’s discussion of counsel’s performance–
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combined with its express determination that the ineffectiveassistance claim as a whole lacked merit–plainly suffices as an
adjudication on the merits under AEDPA.
Worthington v. Roper, 631 F.3d 487, 496–97 (8th Cir. 2011) (internal quotation
marks and citations omitted). The court also determined that a federal court
reviewing a habeas claim under AEDPA must “look through” the state court
opinions and “apply AEDPA review to the ‘last reasoned decision’ of the state
courts.” Id. at 497. A district court should do “so regardless of whether the
affirmance was reasoned as to some issues or was a summary denial of all claims.”
Id. Similarly, the Supreme Court wrote:
There is no text in the statute requiring a statement of reasons. The
statute refers only to a “decision,” which resulted from an
“adjudication.” As every Court of Appeals to consider the issue has
recognized, determining whether a state court’s decision resulted from
an unreasonable legal or factual conclusion does not require that there
be an opinion from the state court explaining the state court’s
reasoning.
Harrington, 562 U.S. at 98.
Here, because Petitioner argues his counsel was ineffective, the court must
address Petitioner’s arguments under the two-pronged standard of Strickland v.
Washington, 466 U.S. 668 (1984).
B.

Strickland Standard

Strickland requires that the petitioner demonstrate both that his counsel’s
performance was deficient, and that such deficient performance prejudiced the
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petitioner’s defense. Id. at 687. The first prong of the Strickland test requires that
the petitioner demonstrate that his attorney failed to provide reasonably effective
assistance. Id. at 687–88. In conducting such a review, the courts “indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. The second prong requires the
petitioner to demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. A court need not address the reasonableness of the attorney’s skills and
diligence if the movant cannot prove prejudice under the second prong of this test.
United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Further, as set forth in
Strickland, counsel’s “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable” in a later
habeas corpus action. Strickland, 466 U.S. at 690.
Additionally, the Supreme Court has emphasized that the deference due the
state courts applies with vigor to decisions involving ineffective assistance of
counsel claims. Knowles v. Mirzayance, 556 U.S. 111 (2009). In Knowles, the
Justices stressed that under the Strickland standard, the state courts have a great
deal of “latitude” and “leeway,” which presents a “substantially higher threshold”
for a federal habeas petitioner to overcome. Id. at 123. As stated in Knowles:
The question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether
that determination was unreasonable–a substantially higher threshold.
. . . And, because the Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a defendant
has not satisfied that standard.
Id. (internal quotation marks and citations omitted).
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C.

Sufficiency of Factual Basis for Plea

Petitioner first claims that his appellate counsel was ineffective for failing to
challenge the sufficiency of the factual basis for his plea to first degree sexual
assault. (Filing No. 1 at CM/ECF p.5.) Here, just as he did in his state
postconviction proceeding, Petitioner argues that the factual basis given at the plea
hearing demonstrates that the sexual penetration was consensual. In addressing
this claim, the Nebraska Court of Appeals set forth the statutory elements for the
offense of first degree sexual assault and concluded that the factual basis satisfied
each of the elements, including lack of consent. (Filing No. 11-3 at CM/ECF
pp.10–12.) As the Court of Appeals explained:
The factual basis established that Gallegos-Palafox entered his
16-year-old stepdaughter S. L.’s bedroom, she asked him to leave, but
he did not. S.L. did not yell for help as she did not want to hurt her
mother who was in the residence. She lay down on the floor, closed
her eyes, and placed her arms over her head. When Gallegos- Palafox
asked her to uncover her face, she refused. Following inquiry from
the court, the prosecutor further stated that the factual basis would
indicate that S. L. did not consent, she was an unwilling participant,
and she was afraid to fight back. A similar incident occurred two days
prior. Gallegos-Palafox admitted to having sexual intercourse
involving penetration twice on the floor of S.L.’s bedroom within the
previous week.
At the plea hearing, Gallegos-Palafox told the district court that
he was pleading guilty because he was guilty. After the State
provided the factual basis, he acknowledged that the factual basis was
true and accurate and informed the court that he still wished to plead
guilty.

9

The factual basis shows S.L.’s lack of consent through both her
words and conduct. We find no error in the district court’s
determination that Gallegos-Palafox’s guilty plea to first degree
sexual assault was supported by a sufficient factual basis.
Because Gallegos-Palafox has not shown that the factual basis
was insufficient to support his plea to the charge of first degree sexual
assault, he cannot show a reasonable probability that the result of the
direct appeal would have changed had his appellate counsel raised this
issue. Accordingly, the district court did not err in failing to grant an
evidentiary hearing on this issue. This assignment of error is without
merit.
(Id. at CM/ECF pp.11–12.)
The Nebraska Court of Appeal’s findings of fact and conclusions of law are
entitled to deference. Petitioner has not shown that the Nebraska Court of
Appeal’s decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or that the court reached “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). Indeed, the
record clearly demonstrates that the victim, Petitioner’s stepdaughter, did not
consent to have sex with Petitioner.2 This claim has no merit, and a grant of a writ
of habeas corpus is not warranted on this issue.

2

The court’s conclusion is based upon consideration of the relevant portions of the
presentence investigation report (“PSR”) cited by Petitioner in his Brief in Response to
Respondent’s Answer. (Filing No. 19.) As Respondent noted in his answer, the Nebraska Court
of Appeals likewise considered the information cited by Petitioner in the PSR when it rejected
Petitioner’s assertion that the PSR showed the sexual intercourse was consensual. (See Filing
No. 11-3.)

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D.

Ineffective Assistance of Trial Counsel

Petitioner’s second claim rests on appellate counsel’s alleged failure to raise
on direct appeal the ineffectiveness of Petitioner’s trial counsel. As set forth
above, Petitioner’s four claims of ineffective assistance of trial counsel are
intertwined with Petitioner’s overarching claim regarding the insufficiency of the
factual basis supporting his guilty plea with respect to the element of lack of
consent. Each claim, along with the Nebraska Court of Appeals’ findings with
respect to each claim, is set forth in greater detail below.
1.

Consent as a Defense

Petitioner argues that his trial counsel was ineffective for failing to advise
him that consent is a defense to first degree sexual assault and, if Petitioner had
known that, he would have not plead guilty to the sexual assault charge, but rather
proceeded to trial. (Filing No. 19 at CM/ECF p.21.) In rejecting this claim, the
Nebraska Court of Appeals found that the record reflects that Petitioner was, in
fact, advised during the plea hearing that lack of consent was an element of the
offense, and Petitioner himself acknowledged that he understood the allegations
and that the State’s factual basis was true and accurate. (Filing No. 11-3 at
CM/ECF p. 13.) The Court of Appeals also concluded that this claim was without
merit because Petitioner’s self-serving declarations were insufficient to establish
that he would have insisted on going to trial rather than entering his pleas given the
evidence against him and the fact that he would have been facing a maximum
penalty of life in prison and a mandatory minimum sentence of 15 years if he had
gone to trial on the original charges. (Id. at CM/ECF pp.13–14.)
2.

Waiver of Preliminary Hearing
11

Petitioner argues that trial counsel was ineffective for advising him to waive
his right to a preliminary hearing because, if a preliminary hearing had been held,
the State could not have established probable cause to believe Petitioner committed
first degree sexual assault. Again, Petitioner claims that the evidence in the record
shows that the sexual penetration that occurred was consensual. (Filing No. 19 at
CM/ECF p.27.)
The Nebraska Court of Appeals rejected Petitioner’s argument, noting that
Petitioner had been informed of his right to a preliminary hearing by the state
district court both at his initial arraignment and his arraignment on the amended
information, Petitioner acknowledged that he understood his right, and chose to
waive it after having consulted with his attorney on the matter. (Filing No. 11-16
at CM/ECF pp.33–34, 48–50.) The Nebraska Court of Appeals further held that
Petitioner’s claim lacked merit because the purpose of a preliminary hearing is to
ascertain whether probable cause exists to believe the accused committed the
offense in question, and such a showing would have obviously been made here
because the same factual basis that supported Petitioner’s guilty plea would have
established probable cause at a preliminary hearing. (Filing No. 11-3 at CM/ECF
pp. 15–18.) The Court of Appeals also specifically rejected Petitioner’s assertion
that a document in the presentence investigation report (“PSR”) pertaining to the
victim’s medical history establishes that the sexual intercourse was consensual. In
rejecting this assertion, the Court of Appeals wrote:
Gallegos-Palafox directs our attention to certain information
found in the PSR that he alleges shows the sexual penetration was
consensual. He refers to a victim’s medical history and assault
information form document, which includes a section with “Yes” and
“No” checkboxes following the question of “Was any coercion used?”
12

The form document in this case is marked “No.” The document also
includes checkboxes to indicate whether any coercion was in form of
a “Knife,” “Gun,” “Choke,” “Fists,” “Verbal Threats,” “Physical
Restraint,” or “Other.” The form also includes a space for the
victim’s description of the alleged assault, which reads “4-13-2011
victim in room step father entered her bedroom stated ‘let’s do this’
she tried to hide but he would not leave so she layed [sic] down on
floor and gave up.” We do not read the information provided on this
form document as an indication that the sexual penetration in this case
was consensual. Rather, the form simply shows that none of the
particular coercive measures listed on the form were used by
Gallegos-Palafox against S.L. The other information received in the
document is consistent with the description of events reflected in the
factual basis recited at the plea hearing, with the notation about S.L.
trying to hide being another indication via conduct that the encounter
was nonconsensual. In short, we have already determined that the
factual basis was sufficient to show the sexual penetration that
occurred was nonconsensual, and Gallegos-Palafox has not pointed to
information showing otherwise.
(Id. at CM/ECF pp.16–17.)
3.

Failure to Investigate

Petitioner next claims that his trial counsel was ineffective for failing to
investigate and depose the victim, S.L. The Nebraska Court of Appeals found no
merit in Petitioner’s argument that further investigation would have shown S.L.
consented to have sex with Petitioner as Petitioner failed to identify or allege any
other evidence showing consent, other than the medical history in the PSR which
the Court of Appeals had already concluded did not suggest consensual sex. (Id. at
CM/ECF pp.18–19.)

13

The Nebraska Court of Appeals also determined “that the decision not to
depose S.L. was a tactical decision” based on the evidence in the record which
reflected that the State’s plea agreement was contingent on the defense not
deposing S.L. in the presence of Petitioner. (Id. at CM/ECF pp.19–20; see also
Filing No. 11-16 at CM/ECF p.1.) The Court of Appeals cited to a letter from
Petitioner’s trial counsel to Petitioner, in which trial counsel noted that they opted
not to depose S.L. for this very reason. (Filing No. 11-3 at CM/ECF pp.19–20; see
also Filing No. 11-16 at CM/ECF p.16.) The Court of Appeals concluded that this
was a reasonable strategy by trial counsel, especially in light of the letter reflecting
that Petitioner and trial counsel agreed on the decision. (Filing No. 11-3 at
CM/ECF pp.19–20.)
4.

Advice to Plead Guilty

In his final claim, Petitioner argues that trial counsel was ineffective for
advising Petitioner to accept the plea agreement and plead guilty to first degree
sexual assault. (Filing No. 19 at CM/ECF p.36.) The Nebraska Court of Appeals
concluded that this claim was without merit because, as with the prior claims, it
was predicated on Petitioner’s faulty assertion that the factual basis was
insufficient to establish that the sexual intercourse was nonconsensual. (Filing No.
11-3 at CM/ECF pp.20–21.) The Nebraska Court of Appeals reiterated that the
factual basis was sufficient, as well as the fact that Petitioner greatly benefitted
from the plea agreement. In light of all the evidence, the Court of Appeals
concluded that Petitioner failed to establish that he was prejudiced by his trial
counsel’s advice to accept the plea offer and, thus, his appellate counsel was not
ineffective for failing to raise this issue on appeal. (Id.)

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5.

Application of the Deferential Standards of Review under 28
U.SC. § 2254(d) and Strickland

With respect to each of Petitioner’s four claims of ineffective assistance of
trial counsel, the Nebraska Court of Appeals’ findings of fact and conclusions of
law are entitled to deference under the statutory standard of review that applies to
factual and legal conclusions reached by the state courts. The Nebraska courts’
decisions on Petitioner’s claims do not conflict with Supreme Court precedents and
were not based on an unreasonable determination of the facts in light of the
evidence. Moreover, in light of the especially deferential standard under
Strickland, the Nebraska state courts’ decisions were reasonable and, after careful
review of the record, the court agrees with them.
The record reflects that Petitioner had spoken with his counsel regarding the
charges against him and that he was informed of the elements of first degree sexual
assault, including lack of consent. (Filing No. 11-16 at CM/ECF pp.54–55, 105.)
Contrary to Petitioner’s assertions, the record also contains evidence that Petitioner
and his trial counsel did discuss the decision to waive Petitioner’s right to a
preliminary hearing and the reasons for such decision. (Id. at CM/ECF pp.105,
115–16.)
Most significantly, the evidence contained within the record
overwhelmingly supports the Nebraska state courts’ conclusion that the factual
basis supporting Petitioner’s plea of guilty to first degree sexual assault established
that the sexual penetration was without S.L.’s consent. This alone refutes all of
Petitioner’s claims given that they are all contingent upon his assertion that his
stepdaughter consented to have sex with him. Petitioner’s argument to the contrary
is wholly unsupported by the record and is without merit. Accordingly, a grant of
a writ of habeas corpus is not warranted on Petitioner’s second claim.

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III.

PENDING MOTIONS

Petitioner filed a motion seeking additional state court records, specifically
the state district court’s original PSR. (Filing No. 12.) As the court noted in
footnote 2, supra, Petitioner included the requested materials with his Brief in
Response to Respondent’s Answer (Filing No. 19) and the court considered those
materials in reaching its decision. Accordingly, Petitioner’s Motion to Request
Additional Documents (Filing No. 12) is denied as moot.
Petitioner also filed a request for an evidentiary hearing. (Filing No. 22.) In
light of the court’s conclusion with respect to Petitioner’s habeas petition,
Petitioner’s request for an evidentiary hearing is denied.
IV.

CERTIFICATE OF APPEALABILITY

A petitioner cannot appeal an adverse ruling on his petition for writ of
habeas corpus under § 2254 unless he is granted a certificate of appealability. 28
U.S.C. § 2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The
standards for certificates (1) where the district court reaches the merits or (2) where
the district court rules on procedural grounds are set forth in Slack v. McDaniel,
529 U.S. 473, 484–85 (2000).
In this case, Petitioner has failed to make a substantial showing of the denial
of a constitutional right. The court is not persuaded that the claims raised in
Petitioner’s petition are debatable among reasonable jurists, that a court could
resolve the claims differently, or that the claims deserve further proceedings.
Accordingly, the court will not issue a certificate of appealability in this case.

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IT IS THERFORE ORDERED that:
1.
Petitioner’s Petition for Writ of Habeas Corpus (Filing No. 1) is
dismissed with prejudice.
2.
Petitioner’s Motion to Request Additional Documents (Filing No. 12)
is denied as moot.
3.
denied.
4.

Petitioner’s Request for an Evidentiary Hearing (Filing No. 22) is

The court will not issue a certificate of appealability.

5.
The court will enter a separate judgment in accordance with this
Memorandum and Order.
Dated this 16th day of November, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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