Dubray v. Hansen

Filing 22

MEMORANDUM AND ORDER that the Petition for Writ of Habeas Corpus 1 is denied and dismissed with prejudice. No certificate of appealability has been or will be issued. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DOMINICK DUBRAY,
Petitioner,
v.
BRAD HANSEN, Warden,
Tecumseh Prison,
Respondent.

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8:17CV21

MEMORANDUM AND ORDER

Dominick Dubray (Dubray or Petitioner) has filed a § 2254 motion seeking to
set aside his murder conviction and sentence. After reviewing the answer of the
Respondent, the evidentiary index and the briefs of the parties, the petition will be
denied with prejudice.
Background
Dubray and Catalina Chavez had lived together for 2 to 3 years in Alliance,
Nebraska, with their child and Chavez’ older child from a previous relationship.
Chavez’ 16-year-old half brother, Matthew Loutzenhiser, had also been living at their
house since June 2011. Mike Loutzenhiser, who lived in Scottsbluff, Nebraska, was
Chavez’ stepfather and Matthew’s father.
Dubray was found guilty of killing Chavez and Mike Loutzenhiser. He used at
least one knife (and perhaps more) multiple times to stab and kill his victims after a
long night of drinking with them.
Four other people had been drinking with Dubray and his victims until about
6:00 in the morning. Mike Loutzenhiser walked with Dubray and Chavez back to their
nearby house after leaving the four others. A business surveillance camera captured

them walking back to the house around 6:00 a.m. The killings took place at about 6:45
a.m.
After the killings, Dubray stabbed himself numerous times. At least one wound
was very serious and life threatening. Dubray told at least three witnesses, who were
relatives or friends of his, and who arrived at the scene after the killings, that he
wanted to die and did not want to go to prison.
He told one witness that his girlfriend Chavez was going to leave him, and “I
can’t believe what I have done.” Dubray was thinking straight enough that he had
called one of these witnesses on the phone to come over to the house to take care of
his small child. As the Nebraska Supreme Court later observed, the case against
Dubray was strong, and the most damning evidence of Dubray’s guilt was his own
statements to witnesses who had no reason to lie about them.
On October 12, 2012, a jury found Dubray guilty of two counts of murder and
two counts of using a deadly weapon to commit a felony. Dubray received two
consecutive life sentences for the murders and 30 to 40 years for each of the counts
regarding use of a deadly weapon.
Two new and very experienced lawyers from the excellent Nebraska
Commission on Public Advocacy were appointed to represent Dubray in the direct
appeal. However, the direct appeal was not successful. State v. Dubray, 854 N.W.2d
584 (Neb. 2014). (Dubray 1.) The decision spans roughly 43 pages on WestLaw.
Dubray then filed a state post conviction motion which was denied without an
evidentiary hearing. That decision was affirmed by the Nebraska Supreme Court. State
v. Dubray, 885 N.W.2d 540 (Neb. 2016) (Dubray 2). The decision spans roughly 27
pages on WestLaw.

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This habeas petition followed. Respondent does not assert that Petitioner’s
action is time-barred.
Claims
I previously dismissed with prejudice a variety of claims because they did not
set forth any cognizable federal issues. (Filing no. 7.) Summarized and condensed, the
remaining claims are these:
Claim One: Dubray was denied effective assistance of trial counsel for
failing to: (1) obtain a competency hearing or examination; (2) move to
suppress certain exhibits; (3) call a single witness and present a complete
defense; (4) address the illegally seized property; (5) raise that certain
jurors were not questioned during voir dire; (6) strike a pro-prosecution
juror; (7) confront state witnesses and properly cross examine them; (8)
object to prejudicial remarks from the prosecutor or the fact that no
evidence was presented at the sentencing hearing; and (9) call a
psychiatrist to determine mental competency. (Filing no. 7 at CM/ECF
p. 2; filing no. 1 at CM/ECF p. 6.)
Claim Two: Dubray was denied effective assistance of appellate counsel
for failing to: (1) raise issues of competency and insanity or to attack
trial counsel for failing to do so; (2) appeal the denial of a suppression
motion; (3) raise the existence of biased pro prosecution witnesses; and
(4) attack trial counsel for lack of a zealous defense such as the failure
to present lay or expert witnesses. (Filing no. 7 at CM/ECF p. 2.)
Claim Three: Dubray was denied due process of law as a result of
prosecutorial misconduct in that: (1) the prosecutor failed to turn over
exculpatory notes of several witnesses some or all of whom may have
been expert witnesses; (2) the prosecutor misstated the evidence in
closing argument; (3) the prosecutor forced Dubray to appear in court in
leg shackles in front of the jury; (4) the prosecutor failed to seek a
competency hearing of Dubray; (5) the prosecutor appeared as both a
prosecutor and witness; and (6) the prosecutor failed to call Megan Reza
as a witness. (Id.)
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Claim Four: The trial court denied Dubray due process of law when the
trial judge failed to order a competency hearing sua sponte. (Id.)
Summary of Decision
Respondent asserts, and I agree, that Claims One, Three, Four and a portion of
Claim Two have been procedurally defaulted without a showing of anything sufficient
to excuse the default. Respondent asserts that the remainder of Claim Two has no
substantive merit. I also agree.
Exhaustion and Procedural Default
As set forth in 28 U.S.C. § 2254:
(b)(1)

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that—
(A)

the applicant has exhausted the remedies available
in the courts of the State; or

(B)

(i)

there is an absence of available State
corrective process; or

(ii)

circumstances exist that render such process
ineffective to protect the rights of the
applicant.

28 U.S.C. § 2254(b)(1).
The United States Supreme Court has explained the habeas exhaustion
requirement as follows:
Because the exhaustion doctrine is designed to give the state
courts a full and fair opportunity to resolve federal constitutional claims
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before those claims are presented to the federal courts . . . state prisoners
must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s
established appellate review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
A state prisoner must therefore present the substance of each federal
constitutional claim to the state courts before seeking federal habeas corpus relief. In
Nebraska, “one complete round” ordinarily means that each § 2254 claim must have
been presented in an appeal to the Nebraska Court of Appeals, and then in a petition
for further review to the Nebraska Supreme Court if the Court of Appeals rules
against the petitioner. See Akins v. Kenney, 410 F.3d 451, 454-55 (8th Cir. 2005).
“In order to fairly present a federal claim to the state courts, the petitioner must
have referred to a specific federal constitutional right, a particular constitutional
provision, a federal constitutional case, or a state case raising a pertinent federal
constitutional issue in a claim before the state courts.” Carney v. Fabian, 487 F.3d
1094, 1096 (8th Cir. 2007) (internal citation and quotation marks omitted).
Where “no state court remedy is available for the unexhausted claim—that is,
if resort to the state courts would be futile—then the exhaustion requirement in
§ 2254(b) is satisfied, but the failure to exhaust ‘provides an independent and
adequate state-law ground for the conviction and sentence, and thus prevents federal
habeas corpus review of the defaulted claim, unless the petitioner can demonstrate
cause and prejudice for the default.’” Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir.
2005) (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)).
To be precise, a federal habeas court may not review a state prisoner’s federal
claims if those claims were defaulted in state court pursuant to an independent and
adequate state procedural rule “unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
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demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Nebraska Law Relevant to Procedural Default
Under Nebraska law, you don’t get two bites of the postconviction apple; that
is, “[a]n appellate court will not entertain a successive motion for postconviction
relief unless the motion affirmatively shows on its face that the basis relied upon for
relief was not available at the time the movant filed the prior motion.” State v. Ortiz,
670 N.W.2d 788, 792 (Neb. 2003).
Additionally, “[a] motion for postconviction relief cannot be used to secure
review of issues which were or could have been litigated on direct appeal.” Hall v.
State, 646 N.W.2d 572, 579 (Neb. 2002). See also State v. Thorpe, 858 N.W.2d 880,
887 (Neb. 2015) (“A motion for postconviction relief cannot be used to secure review
of issues which were or could have been litigated on direct appeal, no matter how
those issues may be phrased or rephrased.”); State v. Filholm, 848 N.W.2d 571, 576
(Neb. 2014) (“When a defendant’s trial counsel is different from his or her counsel
on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s
ineffective performance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred.”). (Italics added.)
Note also that Nebraska has a statute of limitations for bringing postconviction
actions that is similar to federal law. It reads:
4) A one-year period of limitation shall apply to the filing of a verified
motion for postconviction relief. The one-year limitation period shall
run from the later of:
(a) The date the judgment of conviction became final by the
conclusion of a direct appeal or the expiration of the time for
filing a direct appeal;

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(b) The date on which the factual predicate of the constitutional
claim or claims alleged could have been discovered through the
exercise of due diligence;
(c) The date on which an impediment created by state action, in
violation of the Constitution of the United States or the
Constitution of Nebraska or any law of this state, is removed, if
the prisoner was prevented from filing a verified motion by such
state action;
(d) The date on which a constitutional claim asserted was initially
recognized by the Supreme Court of the United States or the
Nebraska Supreme Court, if the newly recognized right has been
made applicable retroactively to cases on postconviction
collateral review; or
(e) August 27, 2011.
Neb. Rev. Stat. Ann. § 29-3001(4) (West).
Deference 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). 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. Williams v.
Taylor, 529 U.S. 362, 405-406 (2000). 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. 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—combined with its
express determination that the ineffective-assistance 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).
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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.
The Especially Deferential Strickland Standard
When a petitioner asserts an ineffective assistance of counsel claim, the
two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984), must be
applied. The standard is very hard for offenders to satisfy.
Strickland requires that the petitioner demonstrate both that his counsel’s
performance was deficient, and that such deficient performance prejudiced the
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. 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. Id.
at 690.
Additionally, the Supreme Court has emphasized that the deference due the
state courts applies with special 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
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of “latitude” and “leeway,” which presents a “substantially higher threshold” for a
federal habeas petitioner to overcome. 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. at 123 (internal quotation marks and citations omitted).
The Supreme Court has recently emphasized that Strickland applies equally to
appellate counsel, and that appellate counsel is entitled to the “benefit of the doubt.”
Woods v. Etherton, 136 S. Ct. 1149, 1153 (2016) (a “fairminded jurist” could have
concluded that repetition of anonymous tip in state-court cocaine-possession trial did
not establish that the uncontested facts it conveyed were submitted for their truth, in
violation of the Confrontation Clause, or that petitioner was prejudiced by its
admission into evidence, precluding federal habeas relief under Antiterrorism and
Effective Death Penalty Act (AEDPA); Petitioner could not establish that Petitioner’s
appellate counsel was ineffective, as appellate counsel was entitled to the “benefit of
the doubt”).
Procedurally Defaulted Claims
Claims One, Three and Four–Ineffective Trial Counsel, Prosecutorial Misconduct
and Trial Court Error
It appears that all of the allegations set forth in Dubray’s first, third, and fourth
habeas claims were raised in his state postconviction motion. (See filing no. 9-12 at
CM/ECF pp. 2-32.) The Nebraska Supreme Court, however, did not reach the merits
of those claims because Dubray could have raised those claims of ineffective
assistance of trial counsel, prosecutorial misconduct, and trial court error on direct
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appeal, and thus, were procedurally barred in the state postconviction action. Dubray
2, 885 N.W.2d at 551-54.1
This decision of the Nebraska Supreme Court was based on a Nebraska
procedural rule. See, e.g., State v. Hessler, 807 N.W.2d 504, 514 (Neb. 2011) (“A
motion for postconviction relief cannot be used to secure review of issues that were
known to the defendant and could have been litigated on direct review”). Therefore,
Dubray’s first, third, and fourth habeas claims have been procedurally defaulted. In
this vein, Dubray has not come to close to showing a valid reason to excuse the
defaults.2
Claim Two–Ineffective Appellate Counsel and Competency
The Nebraska Supreme Court rejected Dubray’s claim that appellate counsel
was ineffective–for failing to assert that trial court erred in not conducting a
competency hearing, and for failing to assert that trial counsel was ineffective for not
requesting one–pursuant to a state procedural rule requiring factual specificity. See,
e.g., State v. Starks, 883 N.W.2d 310, 317 (Neb. 2016) (“Thus, in a motion for
postconviction relief, the defendant must allege facts which, if proved, constitute a
denial or violation of his or her rights under the U.S. or Nebraska Constitution,
causing the judgment against the defendant to be void or voidable.”). The Nebraska
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In this post-conviction appeal, to the extent the Nebraska Supreme Court
considered on the merits the failure of trial counsel to call a specific witness (Megan),
885 N.W.2d at 553-554, the Nebraska Supreme Court’s decision, evaluated under the
doubly deferential Strickland standard, easily survives federal scrutiny. The same
holds true for all the ineffective assistance of trial and appellate counsel claims
mentioned in Dubray 2 (or, for that matter, in Dubray 1). Indeed, I have independently
evaluated all of the ineffective assistance of counsel claims–whether they be asserted
against trial counsel or appellate counsel. None of them have merit when Strickland
is properly applied even if no deference is accorded the Nebraska Supreme Court.
2

This is true for all of the procedurally defaulted claims.
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Supreme Court found that Dubray’s postconviction motion merely asserted that he
was not provided with a competency hearing and that he was
‘tried while incompetent.’ His statement that he was tried while
incompetent is a conclusory assertion of law. He alleges no facts that
would show that he was, in fact, incompetent to stand trial. The district
court was correct in concluding that these allegations were insufficient
and that Dubray was not entitled to an evidentiary hearing on them.
Dubray 2, 885 N.W.2d at 555.
Claim Two–Ineffective Appellate Counsel and Failure to File Suppression Motion
The Nebraska Supreme Court did not address the merits of this portion of the
claim pursuant to the same state procedural rule stated immediately above. The court
ruled:
Dubray presents another layered ineffective assistance claim based on
his trial counsel’s failure to move to suppress the three knives
introduced at trial and failure to preserve the issue for direct appeal. As
the district court correctly noted, Dubray’s motion failed to “allege[ ]
any basis in law or fact which would support suppression of the
evidence.” Because Dubray has not alleged any basis for the
suppression of this evidence, he has not made a viable claim of
ineffective assistance of counsel for not raising the issue.
Id.
Claim Two: Ineffective Appellate Counsel and Pro-Prosecution Witnesses (or Jurors)
If Dubray meant to attack appellate counsel for failing to attack trial counsel
for failing to object to pro-prosecution witnesses, that claim was never presented to
the Nebraska Supreme Court. It is therefore procedurally defaulted. Furthermore, the
state statute of limitations has run out.
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On the other hand, Dubray did attack appellate counsel for failing to attack trial
counsel for failing to object to or to move to strike pro-prosecution jurors. But
Dubray 2 decided that that the assertions were mere conclusions and raised “not even
an inference of bias.” Id. at 556 (subsection g). Thus, this claim, like the previous
claims, is procedurally defaulted. That is, the Nebraska Supreme Court did not
address the merits as Dubray provided no adequate factual basis for his assertion.
Claim Two: Ineffective Appellate Counsel and Failure to Present Witnesses
Again, Dubray provided no factual basis for the argument that appellate
counsel should have asserted that trial counsel was ineffective for failing to present
witnesses on behalf Dubray. The Nebraska Supreme Court stated, “Dubray asserts
another layered claim based on his trial counsel’s failure to call any expert witnesses
or character witnesses. However, he fails to make any allegations as to what any of
these witnesses would have testified.” Id. at 557. Having provided no adequate
factual basis for his assertion, Dubray procedurally defaulted this claim as well.
Parts of Claim Two That Were Fully Considered But Lack Merit
The Respondent concedes that two issues set forth in Claim Two were
considered on the merits. One issue relates to the failure of appellate counsel to attack
trial counsel for not asserting an insanity defense. The other relates to trial counsel’s
alleged failure to present a zealous defense, and appellate counsel’s failure to assert
that issue on direct appeal. Both of these issues were addressed in Dubray 2.
As for the insanity issue and the claim against appellate counsel, the Nebraska
Supreme Court discussed this issue in detail. It wrote:
Dubray asserts a layered claim based on trial counsel’s failure to
investigate and assert an insanity defense. The district court rejected

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these claims, stating that “[t]here is no allegation that would suggest
[Dubray] had any basis for an insanity defense.”
Nebraska follows the M’Naghten rule as to the defense of insanity. The
two requirements for the insanity defense are that (1) the defendant had
a mental disease or defect at the time of the crime and (2) the defendant
did not know or understand the nature and consequences of his or her
actions or that he or she did not know the difference between right and
wrong.
As we have said, “bald assertions of insanity, unsubstantiated by a
recital of credible facts and unsupported by the record, are wholly
insufficient and justify the summary dismissal of a post conviction
proceeding.” On their own, Dubray’s assertions are conclusory and fail
to allege any facts that would tend to show insanity. Moreover, the
record shows that these claims of insanity are without merit. As this
court said when discussing the issue of intoxication in Dubray’s direct
appeal:
[T]he evidence shows that Dubray was not wholly
deprived of reason immediately before or after the
murders. As explained, Dubray, Chavez, and Loutzenhiser
walked back to Dubray’s house around 6 a.m. No witness
testified that Dubray was behaving unreasonably at his
aunt’s house at this time. By 6:49 a.m., Dubray had killed
Chavez and Loutzenhiser and called Reza to take care of
his child. By the time Reza arrived a few minutes later,
Dubray had also attempted suicide for the first time. But
his concern for his daughter and his conduct after the
murders showed he was contemplating how to respond to
his imminent arrest. He specifically told Marco and Reza
that he intended to kill himself to avoid prison, and he
insisted that they not call Little Hoop so that [Dupray]
could carry out this [suicide] plan. He was clearly
reasoning and anticipating the consequences of the acts he
had just committed.

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The record belies Dubray’s conclusory claims of insanity. Because these
claims are without merit, Dubray did not suffer prejudice by his trial
counsel’s failure to raise the issue.
Id. at 557-587 (footnotes omitted).
Whether viewed from a legal point of view or a factual point of view, the
Nebraska Supreme Court’s decision did not violate clearly established federal law
and it was not based on an unreasonable determination of the facts.
Regarding the failure of trial counsel to present a zealous defense, and
appellate counsel’s failure to allege that as error on direct appeal, the Nebraska
Supreme Court considered and rejected this assertion. The Nebraska Supreme Court
reasoned:
Dubray presents a layered claim of ineffective counsel based on the
claim that his trial counsel did not put the prosecution’s case to
“meaningful adversarial testing.” In cases where counsel completely
fails to submit the State’s case to meaningful adversarial testing,
prejudice to the defendant will be presumed. But when the record shows
that the State’s witnesses were thoroughly cross-examined consistent
with the defense theory, there was meaningful adversarial testing of the
prosecution’s case.
Dubray specifically claims that his trial counsel failed to cross-examine
many of the State’s witnesses and failed to object to any evidence. But
his allegations are directly refuted by the record of his trial. Dubray’s
trial counsel conducted cross-examinations of most of the prosecution’s
witnesses in a thorough manner and consistent with the defenses of
self-defense or sudden quarrel. His counsel further objected to several
pieces of evidence, including through a pretrial motion in limine. The
prosecution’s case was put to meaningful adversarial testing. Because
there was meaningful adversarial testing, the district court was correct
to reject this claim.
Id. at 556 (footnotes omitted).
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Again, whether viewed from a legal point of view or a factual point of view,
the Nebraska Supreme Court’s decision did not violate clearly established federal law
and it was not based on an unreasonable determination of the facts.
No Certificate of Appealability
Finally, 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,
484-485 (2000). I have applied the appropriate standard and determined that
Petitioner is not entitled to a certificate of appealability.
IT IS ORDERED the petition for writ of habeas corpus under 28 U.S.C. § 2254
(filing no. 1) is denied and dismissed with prejudice. No certificate of appealability
has been or will be issued. A separate judgment will be entered.
DATED this 18th day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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