COLVIN v. CUNNINGHAM et al
Filing
13
OPINION. Signed by Chief Judge Jerome B. Simandle on 6/23/2016. (dmr)(n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HARVEY COLVIN,
HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 13-2740 (JBS)
v.
CUNNINGHAM, et al.,
OPINION
Respondents.
APPEARANCES:
HARVEY COLVIN, Petitioner pro se
510432B/267027
Northern State Prison
168 Frontage Road
Newark, New Jersey 07102
CHRISTOPHER C. JOSEPHSON, Deputy Attorney General.
Office the Attorney General for the State of New Jersey
R.J. Hughes Justice Complex
PO Box 112
Trenton, New Jersey 08625
Attorney for Respondent Cunningham
SIMANDLE, Chief Judge:
I.
INTRODUCTION
Harvey Colvin, a state prisoner confined at Northern State
Prison, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 arguing the decision of the New
Jersey State Parole Board (“Parole Board” or “Board”) to impose
a 120-month future eligibility term (“FET”) violates the Ex Post
Facto Clause. Petition, Docket Entry 1. Respondent Cunningham
opposes the petition. Answer, Docket Entry 8. Petitioner did not
submit a traverse. For the reasons stated herein, the petition
shall be denied and no certificate of appealability shall issue.
II.
BACKGROUND
The facts underlying Petitioner’s conviction were recounted
in the Superior Court, Appellate Division, and this Court,
affording the state court’s factual determinations the
appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the
recitation of the facts as set forth by the New Jersey Superior
Court Appellate Division in its opinion affirming the Parole
Board’s decision to impose a 120-month FET:
The conviction for which Colvin is serving a sentence of
fifty years imprisonment arose from the killing of his
pregnant girlfriend in 1993. Colvin was living with a
different woman and their child at the same time that he
was dating the victim. When the victim told Colvin she
was pregnant with his child, he became upset and wanted
her to get an abortion. She refused. They argued while
Colvin was driving her car and, according to police
investigative reports, he struck her in the head with a
blunt object and pushed her out of the car. He then drove
the car over her and dragged her some fifty feet
underneath the car before it came to a stop.
After the victim was killed, Colvin enlisted the help of
a friend to bury her body in a secluded place. The friend
participated in the plan for a while but then had
misgivings and went to the police two days later. Colvin
had paid the friend $100 to conceal the crime, but the
friend revealed Colvin's involvement to the police. When
Colvin was interviewed by the police, he gave a false
statement, which included a false alibi. He had also
paid another person to lie to the police to support his
alibi.
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After being charged, Colvin claimed that the victim died
after he accidentally backed over her following an
argument. His version was contradicted by physical
evidence, including front-end damage to the car and
blood stains on the front bumper.
Colvin v. N.J. State Parole Bd., No. A-5278-10, slip op. at 2-3
(N.J. Super. Ct. App. Div. Aug. 20, 2012); Respondent’s Exhibit
D, Docket Entry 8-6.
A Cumberland County Grand Jury indicted Petitioner for
purposeful murder, N.J. STAT. ANN. § 2C:11-3(a)(1) (Count One);
kidnapping, N.J. STAT. ANN. § 2C:13-1(b) (Count Two); felony
murder, N.J. STAT. ANN. § 2C:11-3(a)(3) (Count Three); witness
tampering, N.J. STAT. ANN. § 2C:28-5(a) (Count Four) and;
hindering apprehension, N.J. STAT. ANN. § 2C:29-3(b)(1), (Count
Five). Judgment of Conviction, Respondent’s Exhibit B Part 1,
Docket Entry 8-3 at 35. Petitioner entered into a plea agreement
with the State, pleading guilty to a reduced charge of
manslaughter on Count One, as well as Counts Four and Five. Id.
He also pled guilty to a separate accusation charging him with
hindering prosecution, N.J. STAT. ANN. § 2C:29-3(b)(4); and
compounding, N.J. STAT. ANN. § 2C:29-4. Id. at 38. On December 22,
1994, the trial court sentenced Petitioner to an aggregate term
of 50 years, with 15 years of parole ineligibility. Id.
Petitioner was evaluated for parole in 2008; however, “[a]
two-member panel of the Parole Board denied Colvin's first
opportunity for parole on May 12, 2008, and the panel set an FET
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of thirty-six months.” Colvin, No. A-5278-10, slip op. at 3.
After serving approximately 16 years and 10 months of his
sentence, Petitioner became eligible for parole again in 2010.
Exhibit B Part 1 at 83. Two members of the Parole Board
evaluated Petitioner and denied his release on parole. Id. at
84. The members found that there was “a substantial likelihood
that [he] would commit a new crime if [he were] released on
parole at this time.” Id. They noted Petitioner was incarcerated
for several crimes; he had numerous, serious institutional
infractions resulting in administrative segregation conviction,
the most recent being June 15, 2009; he had failed to address
his substance abuse problem; and that he continued to minimize
his actions leading to the charges. Id. Petitioner’s case was
referred to a three-member panel “for the establishment of a
FET” as the possible “[t]erm may be in excess of administrative
guidelines.” Id. at 85.
Petitioner submitted a request for reconsideration of the
panel’s decision on May 25, 2010. Id. at 86-92. He objected to
the characterization of his remarks at his hearing and the
validity of the June 2009 institutional infraction, which he had
appealed to the Appellate Division.1 Id. at 86-90. He also argued
The Appellate Division later affirmed the charge. Colvin v.
N.J. Dep't of Corr., No. A-5878-08, 2010 WL 3933213 (N.J. Super.
Ct. App. Div. Sept. 24, 2010).
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the panel had not sufficiently considered mitigating evidence
regarding his substance abuse and rehabilitative counseling. Id.
at 90-92. On June 8, 2010, the director of the Parole Board’s
Legal Support Unit wrote to Petitioner to inform him that the
administrative code no longer provided for reconsideration of
determinations and that he would have to appeal the
recommendation to the full Board. Respondent’s Exhibit B Part 2,
Docket Entry 8-4 at 24.2
On July 14, 2010, Petitioner received a document from the
three-member panel titled “Notice of Decision.” Id. at 28.
The
notice informed Petitioner that the three-member panel had set a
120-month FET as “[t]he Panel has determined a substantial
likelihood exists that you would commit a new crime if released
on parole at this time.” Id. Several items were checked off
under the “Reasons for Denial” portion of the form. Id. A letter
to Petitioner indicated that a more detailed explanation of the
reasoning would be forwarded to Petitioner “upon completion.”
Id. at 29. Petitioner received this statement on December 8,
2010. Petitioner’s Appendix (“PA”) at 6.
On January 18, 2010, New Jersey passed an amendment to the
statute governing the scheduling of FETs, N.J. STAT. ANN. § 30:4123.56. Act of Jan. 18, 2010, c. 330, § 6, eff. Aug. 1 2010
2 The full Board upheld the two-member panel’s decision to deny
parole on September 29, 2010. Exhibit B Part 2 at 30.
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(“2010 amendment”). Beginning August 1, 2010, “in no case shall
any parole eligibility date scheduled pursuant to this
subsection be more than three years following the date on which
an inmate was denied release.” Id. Petitioner filed an
administrative appeal to the full Parole Board on January 6,
2011, arguing that “because the Legislature amended N.J.S.A.
30:4-123.56a and b. effective August 1, 2010, that upon a denial
of parole, the FET shall be no more than three years. Colvin
must have the retroactive benefit of it and have his 120 month
FET reduced to no more than three years as the amendment is
ameliorative or curative.” Exhibit B Part 2 at 51. He later
requested to amend his appeal to include the argument that
“[b]ecause the decision of the three-member panel was not handed
down until December 8, 2010, that, in the interest of fairness,
I should have the benefit of the amended statute . . . which
limits the establishment of a FET to no more than three years.”
PA at 17.
In May 2011, the statute was amended again to remove the
prohibitions on FETs longer than three years, effective
immediately. Act of May 9, 2011, c. 67, § 1, eff. May 9, 2011
(“2011 amendment”). On May 25, 2011, the full Parole Board
affirmed the decisions of the two- and three-member panels to
deny parole and establish a 120-month FET, respectively.
Respondent’s Exhibit B Part 3, Docket Entry 8-5 at 46. The full
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Board concluded that “the [2010] amendment to N.J.S.A. 30:4123.56 applies only to those cases in which parole is denied on
or after August 1, 2010.” Id. at 49.
Petitioner appealed as of right to the Appellate Division.
He argued the 2011 amendment applied to his case as “[t]he new
law became effective on August 1, 2010, two months prior to the
Board Panel’s written decision in the instant matter.”
Petitioner’s Appellate Brief, Respondent’s Exhibit A, Docket
Entry 8-2 at 18. In his reply brief, he argued 120-month FET
violated the Ex Post Facto Clause as it was “a pure application
of the 2011 amendment. It holds that although the 2010 amendment
to the legislation was repealed and replaced with the 2011
version, however, current legislative approaches to parole as
should be applied in this case [sic], is for no more than a
three-year FET.” Petitioner’s Reply Brief, Respondent’s Exhibit
C, Docket Entry 8-6 at 7. “The limit of ten years can and should
only apply to those cases coming after May 9, 2011.” Id.
The Appellate Division concluded the 2010 amendment did not
apply to Petitioner as “the three-member panel issued its notice
of decision setting the 120–month FET on July 14, 2010, before
the effective date of the repealed statutory amendment. The
December 8, 2010 written decision of the panel was a
supplementary explanation of the reasoning for the earlier
decision.” Colvin v. N.J. State Parole Bd., No. A-5278-10, slip
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op. at 7 (N.J. Super. Ct. App. Div. Aug. 20, 2012). It rejected
the ex post facto argument as “[c]hanges in the frequency of
parole hearings during a term of imprisonment do not violate
constitutional ex post facto clauses.” Id. (citing Cal. Dep’t of
Corr. v. Morales, 514 U.S. 499, 511–13 (1995)). The New Jersey
Supreme Court denied certification on January 24, 2013. Colvin
v. N.J. State Parole Bd., 59 A.3d 601 (N.J. 2013).
This timely petition under 28 U.S.C. § 2254 followed on
April 3, 2013. By order dated January 16, 2014, this Court
advised Petitioner of his rights under Mason v. Meyers, 208 F.3d
414 (3d Cir. 2000), and directed Petitioner to inform the Court
within 45 days as to whether he wanted to proceed with his
petition as filed, or withdraw it and file one all-inclusive §
2254 petition subject to the one-year statute of limitations.
Mason Order, Docket Entry 2. Petitioner did not respond to the
Mason Order; therefore, the Court ordered Respondent to answer
on May 12, 2014. After two extensions of time, Respondent filed
its answer on July 25, 2014. Answer, Docket Entry 8. Petitioner
did not file a traverse.
III. STANDARD OF REVIEW
Title 28 U.S.C. § 2254 permits a federal court to entertain
a petition for writ of habeas custody on behalf of a person in
state custody pursuant to the judgment of a state court, “only
on the ground that he is in custody in violation of the
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Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits by a
state court, the writ shall not issue unless the adjudication of
the claim
(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). A state court decision is “contrary to”
Supreme Court precedent “if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases,” or “if the state court confronts a set of facts that are
materially indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court's]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
“[A] state-court decision is an unreasonable application of
clearly established [Supreme Court] precedent if it correctly
identifies the governing legal rule but applies that rule
unreasonably to the facts of a particular prisoner's case.”
White v. Woodall, 134 S. Ct. 1697, 1706, reh'g denied, 134 S.
Ct. 2835 (2014). The Court must presume that the state court’s
factual findings are correct unless Petitioner has rebutted the
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presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
IV. ANALYSIS
Petitioner raises one ground for relief in his petition:
“Inasmuch as Respondent NJSPB did not provide Petitioner with
its statement of evidence relied on, i.e., specific reasons for
imposing the 120 month FET, until December 8, 2010, the ex post
facto laws were violated because N.J.S.A. 30:4-123.56(a)(b) were
amended, L. 2009, c. 330, § 6, and became effective August 1,
2010 through May 9, 2011, which limited all FETs to be no more
than 3 years.” Petition ¶ 12(a).
A. Ex Post Facto Clause
“The States are prohibited from enacting an ex post facto
law. One function of the Ex Post Facto Clause is to bar
enactments which, by retroactive operation, increase the
punishment for a crime after its commission. Retroactive changes
in laws governing parole of prisoners, in some instances, may be
violative of this precept.” Garner v. Jones, 529 U.S. 244, 24950 (2000) (citing U.S. CONST., Art. I, § 10, cl. 1; Lynce v.
Mathis, 519 U.S. 433, 445–446 (1997); Collins v. Youngblood, 497
U.S. 37, 42 (1990)). However, the Ex Post Facto Clause does not
forbid all legislative changes that have “any conceivable risk
of affecting a prisoner's punishment.” Cal. Dep’t of Corr. v.
Morales, 514 U.S. 499, 508 (1995). “[T]he Ex Post Facto Clause
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should not be employed for ‘the micromanagement of an endless
array of legislative adjustments to parole and sentencing
procedures.’ . . . The States must have due flexibility in
formulating parole procedures and addressing problems associated
with confinement and release.” Garner, 529 U.S. at 252 (quoting
Morales, 514 U.S. at 508).
The Appellate Division concluded Petitioner’s ex post facto
argument failed as “[c]hanges in the frequency of parole
hearings during a term of imprisonment do not violate
constitutional ex post facto clauses.” Colvin v. N.J. State
Parole Bd., No. A-5278-10, slip op. at 7 (N.J. Super. Ct. App.
Div. Aug. 20, 2012) (citing Morales, 514 U.S. at 511-13). The
standard for ex post facto violations is more nuanced than the
Appellate Division’s statement, however.
Morales did not hold that changes to the frequency of
parole eligibility hearings could never form the basis of an ex
post facto challenge; rather, “[t]he controlling inquiry . . .
was whether retroactive application of the change in . . . law
created ‘a sufficient risk of increasing the measure of
punishment attached to the covered crimes.’” Garner, 529 U.S. at
250 (quoting Morales, 514 U.S. at 509). In order to demonstrate
an ex post facto violation, petitioners “must show both a
retroactive change in law or policy and that this change caused
individual disadvantage by creating ‘a significant risk of
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increasing his punishment.’” Richardson v. Pa. Bd. of Prob. &
Parole, 423 F.3d 282, 284 (3d Cir. 2005) (emphasis in original)
(quoting Garner, 529 U.S. at 255); see also Benchoff v. Yale,
620 F. App'x 114, 116 (3d Cir. 2015) (noting the change in the
law or policy must create a “‘sufficient risk of increasing the
measure of punishment attached to the covered crimes’; a
‘speculative and attenuated possibility of ... increasing the
measure of punishment’ is not enough.” (quoting Richardson, 423
F.3d at 287–88)). But see Brown v. Williamson, 314 F. App'x 492,
497 (3d Cir. 2009) (“The constitutional relevance of the
frequency of rehearings is questionable given Morales and Garner
. . . .”).
That being said, the Court finds after reviewing the state
court record that the Appellate Division’s decision is not
contrary to, or an unreasonable application of, clearly
established Supreme Court precedent as it is not “substantially
different from the relevant [Supreme Court] precedent” or an
“objectively unreasonable” application of Supreme Court
precedent. See White v. Woodall, 134 S. Ct. 1697, 1702 (2014);
Williams v. Taylor, 529 U.S. 362, 405 (2000). Petitioner has not
shown that he was subjected to a retroactive change in the law;
therefore, his ex post facto claim fails.
At the time of Petitioner’s plea and sentencing, there were
no limitations on the length of FETs. Parole Act of 1979, L.
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1979, c. 441, § 12(a)-(b), eff. Apr. 21, 1980. The statute
prohibiting FETs longer than 36 months did not go effect until
August 1, 2010, Act of Jan. 18, 2009, c. 330, § 6, eff. Aug. 1,
2010, by which time the three-member panel had already informed
Petitioner of its decision to set the FET at 120 months, Exhibit
B Part 2 at 28. The short-lived amendment was repealed on May 9,
2011, removing the prohibition on FETs longer than 36 months
effective immediately. Act of May 9, 2011, c. 67, §§ 1, 3, eff.
May 9, 2011. The full Parole Board upheld the 120-month FET on
May 25, 2011, after the amendment had been repealed.
Respondent’s Exhibit B Part 3 at 46.
Petitioner bases his ex post facto argument on the fact
that the three-member panel issued its detailed statement of
reasons on December 8, 2010, falling within the short period of
time in which the 2010 amendment was effective. He asserts the
“adjudication was not complete and satisfied until Petitioner
was afforded the statement of evidence relied on.” Petition at
23. The Appellate Division found that the relevant date was the
date on which the three-member panel issued its Notice of
Decision, July 14, 2010, as that was the date Petitioner was
informed that his FET had been set at 120 months for essentially
the same reasons for which the two-member panel had denied
parole in the first place. Colvin v. N.J. State Parole Bd., No.
A-5278-10, slip op. at 7 (N.J. Super. Ct. App. Div. Aug. 20,
13
2012). See also Exhibit B Part 1 at 84-85; Exhibit B Part 2 at
28-29. It further concluded December 8, 2010 written decision
was only “a supplementary explanation of the reasoning for the
earlier decision.” Colvin, No. A-5278-10, slip op. at 7. This is
not an unreasonable finding in light of the record below and
relevant federal law.
“There is no right under the Federal Constitution to be
conditionally released before the expiration of a valid
sentence, and the States are under no duty to offer parole to
their prisoners.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011).
“When, however, a State creates a liberty interest, the Due
Process Clause requires fair procedures for its vindication —
and federal courts will review the application of those
constitutionally required procedures. In the context of parole,
we have held that the procedures required are minimal.” Id.
In
Greenholtz v. Inmates of Nebraska Penal & Correctional Complex,
the Supreme Court held that the Due Process Clause requires
inmates to be “afford[ed] an opportunity to be heard, and when
parole is denied [the Parole Board must] inform[] the inmate in
what respects he falls short of qualifying for parole; this
affords the process that is due under these circumstances. The
Constitution does not require more.” 442 U.S. 1, 16 (1979).
Petitioner was heard by the two- and three-member panels of
the Parole Board, and the three-member panel informed Petitioner
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on July 14, 2010 why a 120-month FET had been set. See Exhibit B
Part 2 at 28. At the time of the three-member panel’s decision,
the relevant state administrative code provision required the
panel to consider 23 factors when determining if a FET should
exceed the presumptive terms. See N.J. Admin. Code 10A:713.21(a), (c)-(d); N.J. Admin. Code 10A:71-3.11, as amended by 37
N.J. Reg. 1191(b) (Apr. 18, 2005). These factors included, but
were not limited to: the “facts and circumstances of the
offense”; the “commission of serious disciplinary infractions”;
statements by the inmate and institutional staff “reflecting on
the likelihood that [the inmate] . . . will commit another
crime; the failure to cooperate in his . . . own rehabilitation;
or the reasonable expectation that he . . . will violate
conditions of parole”; and, “[p]articipation in institutional
programs which could have led to the improvement of problems
diagnosed at admission or during incarceration.” N.J. Admin.
Code § 10A:71-3.11, as amended by 37 N.J. Reg. 1191(b) (Apr. 18,
2005). These are the same factors marked on the Notice of
Decision that Petitioner received on July 14, 2010. Exhibit B
Part 2 at 28.
Contrary to Petitioner’s argument, a “statement of
evidence” is not required under the Due Process Clause, as “[t]o
require the parole authority to provide a summary of the
evidence would tend to convert the process into an adversary
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proceeding and to equate the Board's parole-release
determination with a guilt determination.” Greenholtz, 442 U.S.
at 15-16. Petitioner had an opportunity to present his arguments
to the Board, and it informed him on July 14, 2010 that the FET
had been set at 120 months and the reasons for that decision.
That is “the beginning and the end of the federal habeas courts'
inquiry into whether [Petitioner] received due process.”
Swarthout v. Cooke, 562 U.S. 216, 220 (2011).
In light of the applicable Due Process standard and the
state court record, Petitioner has not shown that the Appellate
Division’s determination that the relevant date was July 14,
2010 is incorrect by clear and convincing evidence.3 See 28
U.S.C. § 2254(e)(1). From there, it follows that the 2011
amendment was not retroactively applied to Petitioner as the
2010 amendment never applied to Petitioner in the first
instance. The 2010 statute clearly indicated it was to apply to
FET decisions made after August 1, 2010. Act of Jan. 18, 2010,
c. 330, §§ 6, eff. Aug. 1, 2010. In his appeal to the full
Parole Board, Petitioner did not argue that the December 8, 2010
“Statement of Evidence” meant that his proceedings were covered
3 Petitioner cites to two unpublished, non-precedential Appellate
Division cases in which the 2010 amendment was applied to other
inmates. The fact that other panels of the Appellate Division
reached a different decision in those cases on different facts
does not mean its decision in Petitioner’s case is contrary to,
or an unreasonable application of, federal law.
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by the 2010 amendment. Instead, he argued he “must receive the
retroactive application” of the 2010 amendment as a matter of
equity,4 Exhibit B Part 2 at 88, and amended his appeal to argue
“in the interest of fairness, I should have the benefit of the
amended statute . . . which limits the establishment of a FET to
no more than three years.” PA at 17.
By arguing for the retroactive application of the 2010
amendment, Petitioner implicitly conceded that it did not apply
to his proceedings on its face. As the amended statute never
applied to Petitioner in the first place, the repealing of the
law cannot be said to “retroactively alter . . . the punishment
for criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43
(1990). The Appellate Division’s decision is therefore not
contrary to, nor an unreasonable application of, Supreme Court
precedent, and Petitioner’s ex post facto argument fails.
B. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not
appeal from a final order in a habeas proceeding where that
petitioner's detention arises out of his state court conviction
unless he has “made a substantial showing of the denial of a
constitutional right.” “A petitioner satisfies this standard by
4 Petitioner did raise an ex post facto challenge to the Parole
Board, but it did not concern the 2011 amendment as that
legislation had not yet been passed by the Legislature.
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demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims or that
jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons expressed above, Petitioner has failed to
make a substantial showing that he was denied a constitutional
right. As jurists of reason could not disagree with this Court's
resolution of his claims, the Court shall deny Petitioner a
certificate of appealability.
V.
CONCLUSION
For the reasons stated above, the habeas petition is
denied. A certificate of appealability shall not issue. An
accompanying Order will be entered.
June 23, 2016
s/ Jerome B. Simandle
`
JEROME B. SIMANDLE
Chief U.S. District Judge
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