COOKE v. KELLER
Filing
13
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 3/2/2012, that Respondent's Motion for Summary Judgment (Docket Entry 4 ) is GRANTED, that the Habeas Petition (Docket Entry 1 ) is DENIED, and that this action be, and the same hereby is, DISMISSED. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JANSE ELIOT COOKE,
Petitioner,
v.
ALVIN KELLER,
Respondent.
)
)
)
)
)
)
)
)
)
1:10CV156
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
AULD, Magistrate Judge
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Entry 1.)
(Docket
On August 19, 2003, in the Superior Court of Hoke
County, Petitioner pled guilty under North Carolina v. Alford, 400
U.S. 25 (1970), to two counts of solicitation to commit a felony
(first-degree murder) in cases 02 CRS 50162 and -50163.
1.)1
The
convictions
were
consolidated
and
sentenced to 168 to 211 months of imprisonment.
(Id. at
Petitioner
was
(Id.)
Although Petitioner asserted in conclusory fashion that he
appealed his conviction to the North Carolina Court of Appeals in
case number COA06-761 (id. at 2), the record actually reflects that
Petitioner “did not timely file a notice of appeal.
On 20 May 2004
Page citations refer to the page number in the CM/ECF footer
for this document.
1
[he] filed a petition for writ of certiorari with [the North
Carolina Court of Appeals] alleging that his sentencing worksheet
had
been
erroneously
calculated
and
that
he
had
received
ineffective assistance of counsel.” State v. Cooke, No. COA06-761,
2007 N.C. App. LEXIS 563, at *1-2 (Mar. 20, 2007) (unpublished).
That
court
upheld
the
trial
court
judgment.
(Id.
at
*5.)
Petitioner sought discretionary review from the North Carolina
Supreme Court, which denied that request on August 23, 2007. (Id.,
Ex. 3.)
Petitioner next began two series of post-conviction motions in
the state courts.
In one set of motions, Petitioner attacked the
convictions he challenges in his current Petition in this Court,
beginning on February 12, 2008, when Petitioner submitted a motion
for appropriate relief in Hoke County regarding those convictions.
(Id., Ex. 4.)
letters
to
Then, on March 5, 2008 and April 6, 2008, he wrote
the
disregarded.
Hoke
County
court
(Id., Exs. 5, 6.)
asking
that
the
motion
be
As a result, the motion for
appropriate relief was placed in the case files, but not processed.
(Id., Ex. 7.)
Then, on October 10, 2008, Petitioner filed a second
motion for appropriate relief in Hoke County.
(Id., Ex. 8.)
This
motion for appropriate relief was denied on February 4, 2009.
(Id.,
Ex.
9.)
A
subsequent
request
by
reconsideration was denied on July 7, 2009.
Petitioner
for
(Id., Ex. 10.)
Petitioner did not file a petition for certiorari seeking to have
-2-
his second Hoke County motion for appropriate relief reviewed by
the North Carolina Court of Appeals.
(See Docket Entry 1 at 4.)
In June of 2008, in between the filings of his first and
second motions for appropriate relief in Hoke County, Petitioner
filed a motion for appropriate relief in Stokes County, North
Carolina, challenging his convictions in 92 CR 7108 and 98 CR 1654,
which were among the convictions used to calculate Petitioner’s
prior criminal record at his sentencing in the Hoke County cases.
(Docket Entry 5, Ex. 11.)
12.)
This motion was also denied.
(Id., Ex.
Petitioner next sought certiorari from the North Carolina
Court of Appeals, which dismissed that petition on August 27, 2008.
(Id., Exs. 13, 15.)
Petitioner then filed a petition for a writ of
certiorari in the Stokes County Superior Court seeking further
review of his motion for appropriate relief, which that court
denied. (Id., Exs. 16, 17.) Petitioner filed another petition for
certiorari with the North Carolina Court of Appeals, but it was
denied on February 19, 2009. (Id., Exs. 18, 20.) He then petitioned
for
certiorari
from
the
North
Carolina
dismissed that petition on June 17, 2009.
Supreme
Court,
which
(Id. Exs. 21, 22.)
In addition to his efforts in the state courts, Petitioner
also filed a previous habeas corpus petition in this Court, in
which he sought relief as to the two Stokes County cases challenged
in Petitioner’s Stokes County motion for appropriate relief. Cooke
v. Brandon, No. 1:09CV525, Docket Entry 1 (filed July 10, 2009).
-3-
A few days later, on July 23, 2009, a recommendation of summary
dismissal under Rule 4 of the Rules Governing Section 2254 Cases
was entered because Petitioner was no longer “in custody” on the
Stokes County convictions.
Id., Docket Entry 3.
Petitioner
responded with objections which argued, at least in part, that he
was “in custody” because the Stokes County convictions factored
into the criminal history level for sentencing on the Hoke County
convictions.
Id., Docket Entry 5.
The Court rejected those
objections and dismissed the case in an Order and Judgment entered
on February 16, 2010.
Id., Docket Entries 6, 7.
The Order stated
that the dismissal “in no way affects [Petitioner’s] right to file
a challenge to his current conviction.”
Id., Docket Entry 6 at 1.
Petitioner thereafter commenced the instant case challenging his
Hoke County convictions.
(Docket Entry 1.)
Respondent has filed
a Motion for Summary Judgment which now comes before the Court for
a decision.
(Docket Entry 4.)2
Petitioner’s Claims
Petitioner raises four potential claims for relief in his
Petition:
1)
ineffective assistance of counsel based on counsel’s
decision to stipulate to Petitioner’s prior record level for
sentencing purposes and counsel’s alleged failure to “properly
2
With the consent of the parties, this case was referred to
the undersigned Magistrate Judge for disposition pursuant to 28
U.S.C. § 636(c). (Docket Entry 11.)
-4-
investigate and challenge prior convictions obtained in violation
of the right to counsel and due process of law” (Docket Entry 1 at
5);
2)
the “[u]se of Prior Convictions obtained in violation of
[Petitioner’s] right to counsel and due process of law to enhance
[his] sentence” (id. at 6);
3)
defective indictments which listed the wrong statute of
offense (id. at 8); and
4)
the use of “an additional point in the calculation of
[Petitioner’s] prior record level” in violation of Blakely v.
Washington, 542 U.S. 296 (2004) (id. at 10).
Discussion
Timeliness of the Petition
Respondent first argues that the Petition is time-barred under
28 U.S.C. § 2244(d). (Docket Entry 5 at 4-9.) Although Respondent’s
arguments concerning the timeliness of the Petition appear welltaken, they involve a number of complicated and somewhat unsettled
issues. The other grounds set out in Respondent’s summary judgment
brief present no such difficulties.
Moreover, the limitation
period in § 2244(d) is not jurisdictional, so the Court need not
consider it before proceeding to other arguments. Hill v. Braxton,
277
F.3d
701,
705
(4th
Cir.
2002).
Given
all
of
these
circumstances, the Court will not address the time bar issue
-5-
further,
but
instead
will
analyze
Respondent’s
other
summary
judgment arguments.
Claim One
Petitioner’s first claim alleges ineffective assistance of
counsel based on his attorney’s stipulation to his prior record
level at sentencing.
that
his
attorney
(Docket Entry 1 at 5.)
did
not
properly
Petitioner claims
investigate
his
prior
convictions and thereby failed to challenge the two Stokes County
convictions.
(Id.)
Respondent
asserts
unexhausted and procedurally barred.
that
this
claim
is
(Docket Entry 5 at 9-11.)
In order to exhaust his state court remedies, Petitioner must
allow “the State the opportunity to pass upon and correct alleged
violations
of
its
prisoners’
federal
rights”
by
“‘“fairly
present[ing]” his claim in each appropriate state court . . .,
thereby alerting that court to the federal nature of the claim.’”
Jones v. Sussex I State Prison, 591 F.3d 707, 712 (4th Cir. 2010)
(citing and quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)).
He
must also “raise his claim before every available state court,
including those courts . . . whose review is discretionary.”
Id.
at 713 (citing O’Sullivan v. Boerckel, 526 U.S. 838, 847 (1999)).
Petitioner presented his ineffective assistance of counsel claim in
his initial petition for certiorari to the North Carolina Court of
Appeals.
(Docket Entry 5, Ex. 1.)
However, once that court
granted certiorari only on a limited basis, Petitioner did not
-6-
pursue the claim further. (Id., Ex. 2.)
Petitioner later raised
the claim in the first motion for appropriate relief filed in Hoke
County. (Id., Ex. 4.) Petitioner voluntarily withdrew that motion
for appropriate relief before the state court acted and never represented his ineffective assistance of counsel claim in state
court.
(Id.,
Exs. 5-8, 10, 11, 15, 18, 21.)
Therefore, no state
court has ever ruled on the claim despite the fact that Petitioner
had clear opportunities to raise the claim.
Petitioner thus did
not exhaust this claim in the state courts and this Court cannot
grant relief on it.
Not
only
is
See 28 U.S.C. § 2254(b).
Petitioner’s
claim
unexhausted,
it
is
also
procedurally barred. If Petitioner returned to the state courts to
exhaust his claim, he would find his claim procedurally barred by
N.C. Gen. Stat. § 15A-1419 because he could have pursued the claim
in his previous motion for appropriate relief, but did not.
In
fact, in denying Petitioner’s second motion for appropriate relief
in Hoke County, the trial court explicitly stated that the denial
acted
as
a
bar
to
all
future
motions.
(Id.,
Ex.
9.)
This
circumstance means that the claim is also procedurally barred from
consideration in this Court.
See O’Sullivan, 526 U.S. at 848.
Petitioner has not made any argument in favor of excusing the
procedural bar and none appears in the record.
denied as unexhausted and procedurally barred.
-7-
The claim will be
Claim Two
Petitioner’s second claim for relief asserts that the state
court
impermissibly
used
two
prior
convictions
obtained
in
violation of Petitioner’s right to counsel to increase Petitioner’s
sentence.
(Docket Entry 1 at 6-7.)
Petitioner points to his
convictions in 92 CR 7108 and 98 CR 1654 as the allegedly invalid
convictions used to calculate his prior criminal history.
(Id.)
In his motion for appropriate relief contesting those convictions
in Stokes County, Petitioner claimed that the conviction in 92 CR
7108 was invalid because he was 17 years old at the time, was
charged with being a minor in possession of alcohol, appeared in
court unaccompanied by a parent, guardian, or attorney, sought a
continuance to allow time to hire an attorney, had the request
denied, and represented himself without signing a written waiver of
his right to counsel.
(Docket Entry 5, Ex. 11 at 1-2.)
Regarding
98 CR 1654, Petitioner alleged that he was charged with driving
while impaired, appeared late for court, told the judge he had not
“gotten up the money to pay an attorney,” asked for more time, had
that request denied, and represented himself without signing a
waiver of counsel form.
(Id.)
The Stokes County Superior Court
denied the motion for appropriate relief, as well as a later
petition for certiorari which also addressed these convictions.
(Id., Exs. 12, 17.)
Petitioner exhausted his state court remedies
by pursuing two petitions for certiorari with the North Carolina
-8-
Court of Appeals and one with the North Carolina Supreme Court.
(Id., Exs. 13, 18, 21.)
Where, as here, a state court adjudicates a petitioner’s claim
on its merits, this Court must apply 28 U.S.C. § 2254(d)’s highly
deferential standard of review, which precludes habeas relief
unless the decision was contrary to, or involved an unreasonable
application of, clearly established federal law as set out by the
United States Supreme Court or the state court decision was based
on an unreasonable determination of the facts.
A state court
decision is “contrary to” United States Supreme Court precedent if
it either arrives at “a conclusion opposite to that reached by [the
United States Supreme] Court on a question of law” or “confronts
facts that are materially indistinguishable from a relevant [United
States] Supreme Court precedent and arrives at a result opposite”
to that of the Supreme Court.
Williams v. Taylor, 529 U.S. 362,
406 (2000). A state decision “involves an unreasonable application”
of United States Supreme Court law “if the state court identifies
the correct governing legal rule from [the United States Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case.”
Id. at 407.
“Unreasonable”
does not mean simply “incorrect” or “erroneous” and the Court must
judge the reasonableness of the state court’s decision from an
objective, rather than subjective, standpoint.
-9-
Id. at 409-11.
Finally, state court findings of fact are presumed correct unless
rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Petitioner raised his instant claim in his Stokes County
motion for appropriate relief and the state court denied it as
follows: “IT IS HEREBY ORDERED, that after review and careful
consideration of Defendant’s Motion, Brief and attachments, the
Court hereby denies Defendant’s Motion for Appropriate Relief.”
(Docket Entry 5, Ex. 12.)
Moreover, in denying Petitioner’s later
petition for certiorari, the Stokes County Superior Court explained
that it had considered the appropriate records and Petitioner’s
submissions and then held that, “[a]s to Petitioner’s claim as to
not being advised of his right to counsel and the denial of the
same, the well established principle of presumption of regularity
appears to be an insurmountable obstacle to Petitioner’s claim.”
(Docket Entry 5, Ex. 17.)
The Court therefore must determine
whether the Stokes County decisions run afoul of the habeas review
standards.
The United States Supreme Court has recognized that a state
may apply a presumption of regularity regarding the validity of
prior convictions used to increase a sentence. See Parke v. Raley,
506 U.S. 20, 28-34 (1992).
In so doing, it observed that the
presumption can apply in situations where no records or transcripts
exist to show that a plea was properly entered, at least where the
plea was entered following Boykin v. Alabama, 395 U.S. 238 (1969)
-10-
(requiring
courts
intelligently
and
to
affirmatively
voluntarily
ascertain
waived
that
constitutional
defendant
rights
to
silence, a jury trial, and to confront accusers, before accepting
guilty plea).
North
See Parke, 506 U.S. at 30.
Carolina
has
actually
codified
a
presumption
of
regularity in N.C. Gen. Stat. § 15A-980(c), a fact of which the
United States Supreme Court took note without any disapproval. See
Parke, 506 U.S. at 33 (describing a variety of state practices,
including § 15A-980, and concluding that “the range of contemporary
state practice certainly does not suggest that allocating some
burden to the defendant is fundamentally unfair”). Section 15A-980
both creates and limits a defendant’s ability to challenge a prior
conviction in a current proceeding in North Carolina.
A defendant
has “the right to suppress the use of a prior conviction that was
obtained in violation of his right to counsel if its use by the
State” will “[r]esult in a lengthened sentence of imprisonment.”
N.C. Gen. Stat. § 15A-980(a).
However, a defendant who fails to
file a pretrial motion to suppress evidence “waives [the] right to
suppress use of a prior conviction.” N.C. Gen. Stat. § 15A-980(b).
Further, in so moving, the defendant “has the burden of proving by
the preponderance of the evidence that the conviction was obtained
in violation of his right to counsel. To prevail, he must prove
that at the time of the conviction he was indigent, had no counsel,
-11-
and had not waived his right to counsel.”
N.C. Gen. Stat. § 15A-
980(c).
Petitioner’s motion for appropriate relief in Stokes County
Superior Court cited to § 15A-980 and argued his motion using its
criteria.
(b)
of
(Docket Entry 5, Ex. 11 at 3, 6.)
that
statute,
the
state
court
Based on subsection
properly
could
treat
Petitioner as having waived his right to challenge the prior
convictions because he failed to file a pretrial motion to suppress
during his murder cases.
Even if the state court considered Petitioner’s claim on the
merits, he still cannot prevail.
Petitioner submitted his motion,
the state court considered his submission, and it then concluded
that he could not overcome the presumption of regularity attached
to his prior convictions.
(Id., Ex. 17.)
Due to the age of the
prior convictions, almost no records existed by the time Petitioner
submitted his motion for appropriate relief, but the ones that did
exist showed that Petitioner waived his right to counsel. (Id., Ex.
11, Exs. A, B.)
Also, Petitioner pled guilty to both of the prior
charges well after Boykin.
Further, in his affidavit supporting
his motion for appropriate relief, Petitioner stated that he pled
guilty in both cases, was not represented by an attorney, and did
not “sign a waiver of counsel and waive my right to a court
appointed attorney.”
(Id., Petitioner’s Aff. ¶¶ 3, 6.)
The
affidavit is conclusory at best and does not deny explicitly that
-12-
Petitioner waived counsel orally (as opposed to in writing) during
or prior to a plea colloquy.3
In addition, at least as to the conviction in 98 CR 1654,
Petitioner failed to meet North Carolina’s requirements for proving
indigency at time of that conviction.
North Carolina case law
holds that “testimony by a defendant, standing alone, ‘that he
could not afford an attorney at the time of a prior conviction does
not prove by a preponderance of the evidence that the defendant was
indigent, as required under N.C.G.S. § 15A-980.’” State v. Jordan,
174 N.C. App. 479, 482, 621 S.E.2d 229, 231 (2005) (quoting State
v. Rogers, 153 N.C. App. 203, 217, 569 S.E.2d 657, 666 (2002)).
Here, Petitioner produced no evidence of indigency beyond his own
statement.
Therefore, the state court certainly had reason under
state law evidentiary rules to reject Petitioner’s claims as to 98
3
Forcing a state to nullify a prior conviction in these
circumstances would wreak havoc on the presumption of regularity
and the finality of prior convictions.
As the United States
Supreme Court recognized, court systems do not maintain case files
in perpetuity.
Parke, 506 U.S. at 30.
If a defendant in
Petitioner’s shoes could prevail on a claim such as his, then any
defendant who had represented himself could simply wait until
records had been destroyed, claim a denial of counsel in conclusory
fashion, and have a prior conviction nullified at a future
proceeding.
-13-
CR 1654.4
Petitioner points to no United States Supreme Court case
law that would dictate a different result.5
The portion of Petitioner’s claim addressing 92 CR 7108
suffers from a separate, fatal flaw.
In that case, Petitioner
received a misdemeanor conviction for possession of alcohol by a
person under the age of 21.
(Docket Entry 5, Ex. 11, Ex. A.)
state
a
court
imposed
only
fine
of
unsupervised probation as a sentence.
¶ 2.)
to
$72.00
and
a
year
The
of
(Id., Ex. 11, Pet. Aff.
Although all defendants charged with felonies have a right
counsel
under
Constitution,
“in
the
Sixth
misdemeanor
Amendment
and
petty
of
the
offense
United
States
prosecutions,
[that] right to counsel is triggered only if the defendant is
actually sentenced to a term of imprisonment.”
United States v.
Pollard, 389 F.3d 101, 103 (4th Cir. 2004) (citing Argersinger v.
Hamlin, 407 U.S. 25, 37 (1972), and Scott v. Illinois, 440 U.S.
367, 373-74 (1979)).
Accordingly, Petitioner had no right to
counsel under the Sixth Amendment.
Therefore, the state court’s
4
As to 92 CR 7108, Petitioner raised a statutory argument
that, because of his then age, North Carolina would have
automatically treated him as indigent at the time of his conviction
under N.C. Gen. Stat. § 7B-2000(b) (formerly N.C. Gen. Stat.
§ 7A-584) (stating that all “juveniles” are “conclusively presumed
to be indigent”).
In fact, the United States Court of Appeals for the Fourth
Circuit has itself rejected the use of only vague and self-serving
statements by a defendant to challenge prior convictions at
sentencing. See United States v. Jones, 977 F.2d 105, 109 (4th
Cir. 1992).
5
-14-
rejection of his claim as to this conviction was not contrary to,
or an unreasonable application of, any established United States
Supreme Court precedent.
Overall,
Petitioner
did
not
overcome
North
Carolina’s
presumption of regularity generally, did not make a sufficient
showing of indigency as to his conviction in 98 CR 1654, and did
not show that he had a federal right to counsel in case 92 CR 7108.
The state courts’ decisions to deny Petitioner’s claims thus were
neither
contrary
to,
nor
an
unreasonable
application
of,
established Supreme Court precedent. Petitioner’s second claim for
relief will be denied.
Claim Three
Petitioner’s
third
claim
for
relief
indictment lists the wrong statute of offense.
8.) This claim fails on its face.
asserts
that
his
(Docket Entry 1 at
A pleading defect in an
indictment does not constitute a jurisdictional defect. See United
States v. Cotton, 535 U.S. 625, 630-31 (2002).
plea waives non-jurisdictional defects.
411 U.S. 258, 267 (1973).
Further, a guilty
See Tollett v. Henderson,
Petitioner plainly waived any defect in
the indictment by pleading guilty. Petitioner actually agrees that
this claim lacks merit and abandons it in his response brief.
(Docket Entry 9 at 3.)
Therefore, this claim is denied.
-15-
Claim Four
Petitioner’s final claim for relief alleges that the state
erroneously
added
a
point
to
his
prior
criminal
history
at
sentencing because he was incarcerated at the time he committed the
instant offense.
(Docket Entry 1 at 10.)
Petitioner contends
that, because this point neither arose due to a prior conviction
nor was found applicable by a jury beyond a reasonable doubt, its
use at sentencing violated the Sixth Amendment as construed in
Blakely.
(Id.)
Petitioner pursued this claim in the North
Carolina Court of Appeals after it granted certiorari. Cooke, 2007
N.C. App. LEXIS 563, at *2-5.
The North Carolina Court of Appeals
noted that Blakely did not apply retroactively to cases that became
final prior to said decision.
See id. at *4.
The court deemed
Petitioner’s conviction in question final before the decision in
Blakely because he failed to file a timely notice of appeal and
because the limited grant of certiorari did not affect the finality
date.
See id. at *4-5.
It therefore denied any relief.
See id.
at *5.
Other courts similarly have concluded that Blakely does not
apply retroactively to cases in which the direct appeal had already
ended and the judgment had become final.
See, e.g., Portalatin v.
Graham, 624 F.3d 69, 81 n.6 (2d Cir. 2010), cert. denied, 131 S.
Ct. 1693 (2011); Burton v. Fabian, 612 F.3d 1003, 1010 n.4 (8th
Cir. 2010) (citing United States v. Stoltz, 149 Fed. Appx. 567,
-16-
568-69 (8th Cir. 2005)), cert. denied, 131 S. Ct. 1491 (2011);
Scott v. Schriro, 567 F.3d 573 (9th Cir. 2009) (citing Schardt v.
Payne, 414 F.3d 1025, 1036 (9th Cir. 2005)), cert. denied sub nom.
Ryan v. Scott, 130 S. Ct. 1014 (2009).
Petitioner points to
nothing to show that the North Carolina Court of Appeals’ decision
was contrary to, or an unreasonable application of, United States
Supreme Court precedent.
(See Docket Entry 1 at 10.)
Further, even if the Court concluded that Blakely did apply to
Petitioner’s case, that would still not help him.
First, Blakely
was built upon the rule of Apprendi v. New Jersey, 530 U.S. 466
(2000), which states that “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’” Blakely, 542 U.S. at 301
(quoting Apprendi, 530 U.S. at 490).
A defendant can waive such
Apprendi rights by admitting to the facts in question.
Id. at 310.
“Admissions may take a variety of forms, including guilty pleas and
stipulations, a defendant’s own statements in open court, and
representations by counsel.”
United States v. Revels, 455 F.3d
448, 450 (4th Cir. 2006) (citations omitted).
In this case, the prosecuting attorney, in setting out the
factual
basis
for
Petitioner’s
guilty
plea,
explained
that
Petitioner was incarcerated at the time of his crimes and explained
those crimes at length.
(Docket Entry 5, Ex. 1, Sent’g Tr. at 7-
-17-
15.)
Petitioner solicited another inmate to kill Petitioner’s
father and former girlfriend, partly because Petitioner blamed his
father for Petitioner’s incarceration.
(Id. at 7.)
Petitioner’s
attorney contested part of the facts, but not the fact that
Petitioner was incarcerated when the crimes occurred; instead,
Petitioner’s
counsel
acknowledged
the
fact
of
Petitioner’s
incarceration. (Id. at 15-20.) Further, Petitioner agreed through
counsel to his prior record level, including the point about which
he now complains.
(Id. at 22.)
Then, at sentencing, Petitioner
not only admitted that he was in prison at the time of his crime as
he attempted to explain the circumstances of his crime to the
sentencing judge, but also partially attributed his commission of
the crimes to anger during the early days of his incarceration.
(Id. at 22-23.)
In several ways, Petitioner thus admitted to the
facts used to support the now-contested point at sentencing and
agreed through counsel to the assessment of the point itself.
For all of these reasons, Petitioner’s fourth claim for relief
is denied.
IT IS THEREFORE ORDERED that Respondent’s Motion for Summary
Judgment (Docket Entry 4) is GRANTED, that the Habeas Petition
(Docket Entry 1) is DENIED, and that this action be, and the same
hereby is, DISMISSED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
Date:
March 2, 2012
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