Leaphart v. Eagleton

Filing 43

ORDER AND OPINION accepting 37 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 35 Motion for Summary Judgment. Signed by Honorable J Michelle Childs on 3/28/2018.(ssam, ) (Main Document 43 replaced on 3/28/2018) (asni, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Kareem Jabbar Leaphart,
Petitioner,
v.

Warden Willie L. Eagleton,
Respondent.

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Civil Action No.: 2:15-cv-04910-JMC

ORDER AND OPINION

Petitioner Kareem Jabbar Leaphart seeks habeas relief pursuant to 28 U.S.C. § 2254. This
matter is before the court pursuant to Respondent Warden Willie L. Eagleton’s renewed Motion
for Summary Judgment (ECF No. 35) as to the remaining portions of Ground Two of Petitioner’s
habeas petition. As set forth below, the court GRANTS Respondent’s renewed Motion for
Summary Judgment (id.) and ACCEPTS the Magistrate Judge’s Report and Recommendation
(“Report”) (ECF No. 37).
I.

RELEVANT FACTUAL BACKGROUND

The court begins with a brief review of the evidence presented at Petitioner’s trial.
Douglas Curry (“Curry”), a narcotics agent employed by the Sheriff’s Office in Lexington, South
Carolina, testified that the Sheriff’s Office had received several complaints from citizens living
in a mobile home park in West Columbia that they believed drug activity was going on in the
area. (ECF No. 8-1 at 48-49.) Curry testified that, as a result of these complaints, on March 15,
2006, he and other members of his team decided to “go out there and make an undercover sting.”
(Id. at 50.) Curry stated that they “use[d] an undercover officer in an undercover car, and [they
went] out [to] see if [they had] any takers on [their] undercover sting.” (Id.) According to Curry,

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the police “went to the bank, took some money out of [their] narc[otics] account,” and “issued it”
to John Moore (“Moore”), an employee of the Lexington County Sheriff’s Office assigned to the
narcotics unit, to make the undercover buys. (Id. at 50-51.) Curry testified that they issued the
money to Moore, and the other officers stayed on the perimeter “like a holding pattern.” (Id. at
51.) Curry stated that Moore’s vehicle was fitted with a monitoring device so that police could
hear what was going on in the vehicle. (Id. at 50.) Curry testified that Petitioner approached
Moore’s vehicle and “told [Moore] to cut the block.” (Id. at 52-53.) According to Curry, Moore
drove around the block and came back to Petitioner; when the drug deal was complete, Moore “told
[them] to go ahead and affect an arrest.” (Id. at 53.) When the other officers “rolled up,”
Petitioner took off running. (Id.) Curry stated, “[Petitioner] took off between two trailers right
on the roadway. And as he did, he took what was in his pocket, threw it down on the ground, and
continued to run with Agents Gleaton and Strange in pursuit.” (Id. at 53-54.)
Curry identified State’s Exhibit 1 as “the money or some of the money” that Petitioner threw
and Curry picked up; the exhibit was admitted over counsel’s objection under South Carolina Rules
of Evidence 1002 and 1003. (Id. at 57.) As to State’s Exhibit 2, Curry testified that the contents
of that were “the one piece of crack cocaine that we originally purchased from [Petitioner], along
with a baggie that contained several other pieces and a small baggie of powder cocaine;”
according to Curry, “[t]his is what [Curry] recovered on the way back to [his] truck that
[Petitioner] had thrown down when he took off running.” (Id. at 56.) Curry clarified that Exhibit
2-B was the crack that Moore purchased from Petitioner; Exhibit 2-C “is the baggie that contained
crack cocaine that [Petitioner] threw down, along with the $20 that he had gotten from John Moore
when [officers] began chasing [Petitioner];” and Exhibit 2-A was the cocaine powder that was in
the baggie. (Id. at 77.)

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Moore testified that on the day in question, he went undercover at the trailer park,
“rid[ing] through it and see[ing] if anybody would sell [drugs] to [him].” (Id. at 102-03.) He
testified that State’s Exhibit 3 was a videotape of the transaction as it occurred that day; it was
admitted into evidence without objection. (Id. at 103-04.) Moore testified that he pulled into the
parking lot, and Petitioner approached Moore, asking him what he needed. (Id. at 105.)
According to Moore, after some conversation, including Petitioner asking to see Moore’s “stem”
(or “the tool or pipe that you use to smoke the crack with”), Petitioner asked Moore to “cut around
the block.” (Id. at 105-07.) Moore testified that he cut the block, came back up to Petitioner,
received the crack from Petitioner, and gave Petitioner the $40. (Id. at 107-08.) Moore testified
that he gave Petitioner “$40 of narcotics funds, and [Petitioner] handed [Moore] some crack
cocaine.” (Id. at 105-109.) Moore identified State’s Exhibit 2-B as the crack he received from
Petitioner and gave to Agent Curry. (Id. at 109.)
Emily Homer, a chemist employed by the Lexington County Sheriff’s Department, testified
that State’s Exhibit 2-A was .47 grams of cocaine hydrocholoride; State’s Exhibit 2-B was .35 grams
of cocaine base (also known as crack); and State’s Exhibit 2-C was .94 grams of cocaine base.
(Id. at 134, 137-8.) State’s Exhibit Numbers 2-A, 2-B, and 2-C were admitted during Ms. Homer’s
testimony. (Id. at 139-40.)
The jury convicted Petitioner of distribution of crack cocaine and resisting arrest. (ECF
No. 8-2 at 13.) Petitioner was found not guilty of possession with intent to distribute crack cocaine
and possession with intent to distribute cocaine. (Id.)
II.

RELEVANT PROCEDURAL BACKGROUND

Petitioner filed his habeas petition on December 10, 2015. (ECF No. 1.) On March 24,
2016, Respondent filed a Motion for Summary Judgment. (ECF No. 9.) On June 30, 2016

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Petitioner filed a response in opposition to the Motion for Summary Judgment (ECF No. 19), to
which Respondent filed a reply (ECF No. 20). On January 23, 2017, Magistrate Judge Mary
Gordon Baker filed a Report, recommending that Respondent’s Motion for Summary Judgment
(ECF No. 9) be granted and Petitioner’s habeas petition be dismissed with prejudice. (ECF No.
21.) In an Order dated March 29, 2017, the court granted in part and denied in part Respondent’s
Motion for Summary Judgment. (ECF No. 28.) Specifically, summary judgment was granted to
Respondent as to all grounds in the petition except to a portion of Ground two, namely the
following claims of ineffective assistance of counsel:
(a) failing to object to the State’s failure to lay a proper foundation for the
introduction of the photocopy of currency that the State contended was part of
the drug buy, 1 and
(b) failing to object to the repeated assertions by Agent Curry that the money in
question was the buy money where the record is completely void of any
evidence whatsoever that serial numbers, or any other distinguishing features
of the money used, were recorded through any method. 2
(Id. at 6-7, 21-23.) The court stated in its Order, inter alia:
The court notes that, because the Magistrate Judge’s analysis with respect to these
two reasons addressed only whether trial counsel’s performance was the result of a
strategic decision, the Report did not address whether trial counsel’s performance
was otherwise deficient, whether, if so, prejudice resulted from his failure to raise the
objections to which Petitioner points, whether, if so, these defaulted claims of
ineffective assistance are substantial, and whether, if so, PCR counsel’s failure to
assert the defaulted claims amounts to cause and prejudice under Martinez. The court
also notes that the parties’ arguments with respect to these two reasons under Ground
Two are somewhat cursory and provide little authority to guide judicial analysis.
1

South Carolina Rule of Evidence 901(a) provides that “[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.”
2
South Carolina Rule of Evidence 602 provides that:
A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of this matter. Evidence
to prove personal knowledge may, but need not, consist of the witness’ own
testimony. This rule is subject to the provisions of Rule 703, relating to opinion
testimony by expert witnesses.
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Denying summary judgment without prejudice at this point will allow Respondent to
refile his motion and will allow the parties to present more fully developed
arguments on the issues.
(Id. at 23.) Accordingly, the court recommitted the remaining two claims of ineffective assistance
to the Magistrate Judge for further consideration. (Id. at 26.) Thereafter, the Magistrate Judge
ordered the parties to file any additional motions in the case on or before May 5, 2017. (ECF No.
30.)
On May 5, 2017, Respondent filed a renewed Motion for Summary Judgment asserting
three arguments. (ECF No. 35.) First, Respondent states that because Agent Curry’s testimony
clearly demonstrates that the photocopy was of two bills that the team obtained from the bank, that
they were actually issued to Agent Moore and that they were used in the undercover drug buy, an
objection based upon the States’ supposed failure to establish a proper foundation of the admission
of the currency under South Carolina Rule of Evidence 901 would have been meritless. (Id. at 1516.) Second, Respondent posits that Agent Curry’s testimony was not based upon opinions drawn
by him. (Id. at 19.) Instead, “Agent Curry’s testimony that the photocopies were of the “buy
money” was strictly based on matters within his personal knowledge: he was involved in obtaining
the money from the bank that was subsequently used in the undercover buy; he gave the money to
Agent Moore, and he was able to identify the money that he picked up from the ground in the area
where Petitioner had dropped it as the money used in the transaction. He could also testify that
the photocopy was of the same money.” (Id.) Lastly, Respondent concludes that neither piece of
evidence, although both relevant and probative, was necessary to successfully prosecute Petitioner
for distribution of crack cocaine. (Id. at 24-25.) Consequently, Respondent proclaims that
Petitioner cannot prove that he was prejudiced by trial counsel’s inactions. (Id.)

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On May 15, 2017, Petitioner filed a reply, asserting that “the evidence in fact refutes any
claim that Agent Curry saw the evidence in question thrown to the ground. Agent Curry not only
does not say he saw Petitioner throw this evidence to the ground, he does not even claim he went
to the spot where he saw Petitioner discard the baggie, but rather stated that he “recovered it” on
his way back to this vehicle.” (ECF No. 36 at 4-5.) Petitioner espouses that evidence of the bills’
existence corroborates the testimony of Agent Curry and Agent Moore, which makes their
testimony that a money-for-drugs transaction occurred more likely, highlighting the precise
reasons why the introduction of this evidence is highly prejudicial to his case. (Id. at 5-6.)
On January 31, 2018, the Magistrate Judge filed a second Report, recommending that
Respondent’s Renewed Motion for Summary Judgment be granted and that Petitioner’s habeas
petition be dismissed with prejudice. (ECF No. 37.) The parties were advised of their right to file
objections to the Report. (ECF No. 37 at 13.) On March 16, 2018, Petitioner filed an objection to
the Report. (ECF No. 42.) Petitioner maintained that it is impossible to know to what degree
Petitioner’s jury was unduly influenced by State’s Exhibit No. 1 and Curry’s claims that he knew
it depicted money thrown to the ground by Petitioner and that the bills in question were the same
bills given to Agent Moore and used in a buy from Petitioner. (ECF No. 42 at 5.) Accordingly,
Petitioner claims this evidence improperly bolstered the testimony of undercover Agent Moore,
thereby prejudicing his case. (Id.)
III.

LEGAL STANDARD

A. The Magistrate Judge’s Report and Recommendation
The Magistrate Judge’s Report and Recommendation is made in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02(B)(2)(c) for the District of South Carolina. The Magistrate
Judge makes only a recommendation to this court. The recommendation has no presumptive

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weight. The responsibility to make a final determination remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination
of those portions of the Report and Recommendation to which specific objection is made, and the
court may accept, reject, or modify, in whole or in part, the Magistrate Judge’s recommendation
or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
B. Summary Judgment Standard
Summary judgment is appropriate when the materials in the record show that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “[I]n ruling on a motion for summary judgment, ‘the evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’” Tolan v.
Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam) (brackets omitted) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party,” and a fact is material if it “might
affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248.
The party seeking summary judgment shoulders the initial burden of demonstrating to the
court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the movant has made this threshold demonstration, the nonmoving party, to survive
the motion for summary judgment, may not rest on the allegations averred in its pleadings. Rather,
the nonmoving party must demonstrate that specific, material facts exist which give rise to a genuine
issue. See id. at 324.
C. Section 2254 Standard
Because Petitioner filed the petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), his claims are governed by 28 U.S.C. § 2254(d),
as amended. Lindh v. Murphy, 521 U.S. 320 (1997). Section 2254 “sets several limits on the power

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of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011). For instance, § 2254 authorizes review of only those
applications asserting a prisoner is in custody in violation of the Constitution or federal law and
only when, except in certain circumstances, the prisoner has exhausted remedies provided by the
state. Id.
When a § 2254 petition includes a claim that has been adjudicated on the merits in a state
court proceeding, § 2254 provides that the application shall not be granted with respect to that
claim, unless the state court's adjudication of the claim:
a. 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
b. 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). “This is a ‘difficult to meet,’ and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the doubt.’”
Pinholster, 563 U.S. at 181 (internal citations omitted) (quoting Harrington v. Richter, 562 U.S.
86, 102 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
D. Ineffective Assistance of Counsel
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. The
Supreme Court has held that this right is violated when counsel retained by, or appointed to, a
criminal defendant fails to provide adequate or effective legal assistance. See Strickland v.
Washington, 466 U.S. 668, 686 (1984). Strickland established a two-prong test for a claim of
ineffective assistance of counsel in violation of the Sixth Amendment, under which the criminal
defendant must show deficient performance and resulting prejudice. Id. at 687.

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“The performance prong of Strickland requires a defendant to show ‘that counsel's
representation fell below an objective standard of reasonableness.’” Lafler v. Cooper, 566 U.S.
156, 163 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)). “[C]ounsel should be ‘strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment,’” and courts should indulge in a “‘strong presumption that
counsel's conduct fell within the wide range of reasonable professional assistance.’” Burt v.
Titlow, 134 S. Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 689-90). “To establish Strickland
prejudice a defendant must ‘show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.’” Lafler, 566 U.S. at
163 (quoting Strickland, 466 U.S. at 694).
The standard for an ineffective assistance claim under Strickland in the first instance is
already “a most deferential one,” and “‘[s]urmounting Strickland's high bar is never an easy task.’”
Richter, 562 U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). Consequently,
“[e]stablishing that a state court’s application of Strickland was unreasonable under § 2254(d) is
all the more difficult, as the standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (internal citations
omitted) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); Lindh, 521 U.S. at 333, n.
7 (1997); Strickland, 466 U.S. at 689). “When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable... [but] whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard.” Richter, 562 U.S. at 89.
IV.

ANALYSIS

As explained in Harrington v. Richter, 562 U.S. 86 (2011),
With respect to prejudice, a challenger must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
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confidence in the outcome.” Id. at 694. It is not enough “to show that the errors had
some conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel’s
errors must be “so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. at 687.
Petitioner points to the counsel’s testimony at his PCR hearing to support his assertion of
prejudice:
Q. And you say that you don’t think, if you had been able to suppress the
photocopies of the $20 bills that were put into evidence, it would have affected
the outcome. But the jury--From a defense standpoint, this was a pretty good jury
and it could have raised an issue in their minds which would have created a
reasonable doubt. Isn’t that also true?
A. It could be. In fact, just to kind of go back on my testimony, the Attorney
General asked me if suppressing or moving to quash the arrest warrants or the
indictments would have had any success. I said, no. As to whether or not, if I had
used that statute under research and got the bills excluded, it would have made a
difference, I can’t testify that it wouldn’t have made a difference.
(ECF No. 8-2 at 143.) The court is not persuaded. The court does not believe that there is a
“reasonable probability” that the result of Petitioner’s trial would have been different, even if
counsel had been successful in keeping out of evidence the photocopy of the money and Curry’s
testimony that the money was “buy money.”
It is worth noting that Petitioner is not arguing herein that counsel was ineffective in
failing to object to the admission of the bag of drugs found on the ground; the claims of
ineffective assistance of counsel raised herein relate solely to the money (or photocopy of the
money). Even without the photocopy of the cash, and even without Curry’s testimony that the
money was “buy money,” the jury heard Moore’s testimony that he purchased crack cocaine
from Petitioner. That very crack cocaine was entered into evidence as Exhibit 2B. (ECF No.
8-1 at 77.) Not only was that crack cocaine admitted into evidence, but so was Exhibit 2C,
which Curry testified was the “baggie that contained crack cocaine that [Petitioner] threw down .
. . when we began chasing him.” (Id.) In addition, the video of the transaction as it occurred that

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day (which was admitted without objection), along with the other officers’ testimony,
corroborates Moore’s testimony. Moore testified that when Petitioner asked to see his “stem,”
Moore asked to see Petitioner’s badge, at which time Petitioner took out his wallet. (Id. at 106.)
In his PCR testimony, Petitioner admitted that the video shows Petitioner taking out his wallet.
(ECF No. 8-2 at 92.) Moore testified that Petitioner told him to drive around the block; although
other officers heard very little of the conversation between Moore and Petitioner (and did not
hear the conversation about buying drugs), the officers did hear Petitioner tell Moore to go around
the block, just as Moore testified. (Id. at 52-53, 65-66, 80, 82-83.) When Petitioner realized that
the police were present, he ran. (Id. at 84.)
Therefore, even assuming the photograph of the cash had been excluded, and Curry had
not testified that the money was “buy money,” there is not a reasonable probability that the results
of Petitioner’s proceeding would have been different. The elements of the offense of which
Petitioner was convicted do not require the exchange of drugs for money, and here, Moore testified
Petitioner gave him crack cocaine, and that very crack cocaine was admitted into evidence. See
State v. Watts, 321 S.C. 158, 168 (Ct. App. 1996); see also S.C. CODE ANN. § 44-53-375(B)
(2012); S.C. CODE ANN. § 44-53-110(17) (2016) (“‘Distribute’ means to deliver (other than by
administering or dispensing) a controlled substance.”); S.C. CODE ANN. § 44-53-110(10) (2016)
(“‘Deliver’ or ‘delivery’ means the actual, constructive, or attempted transfer of a controlled drug
or paraphernalia whether or not there exists an agency relationship.”). Cf. United States v.
Crawford, 87 F. App’x 890, 892 (4th Cir. 2004) (“Even if Crawford was merely supplying his
roommate or other friends with marijuana without charge, such conduct constitutes
distribution.”).

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In Jones v. Clark, 783 F.3d 987 (4th Cir. 2015), the trial judge, after a bench trial, found
the petitioner guilty charges of grand larceny and breaking and entering. Jones, 783 F.3d at
989. The district court granted the habeas petition, determining that “trial counsel’s failure to
object to the admission of the fingerprint evidence constituted deficient performance that
prejudiced Jones.” Id. at 990. The petitioner therein pointed to the “trial judge’s comments that
the fingerprint evidence –when combined with other evidence – was sufficient to establish guilt”
and argued “that the fingerprint evidence was essential to the guilty verdict, and without that
evidence, there is a reasonable probability that he would have been acquitted.” Id. at 992. The
Fourth Circuit reversed the grant of habeas relief, stating,
Having made that point, we readily acknowledge that the fingerprint evidence is
strong evidence tending to establish Jones’ guilt, and we do not doubt that the trial
judge relied on that evidence to reach his verdict. However, the mere fact of the trial
judge’s reliance on that evidence does not establish Strickland prejudice. Rather, the
determinative question for Strickland purposes is whether there is a reasonable
probability that the trial judge would have had reasonable doubt respecting Jones’
guilt if the fingerprint evidence had been excluded.
Id. The Fourth Circuit concluded the answer to that question was “no,” stating,
Even if the fingerprint evidence is removed from the equation, the admission of guilt,
in conjunction with the evidence establishing the corpus delicti and the evidence that
Jones had recently visited Joseph’s house, is sufficient to establish Jones’ guilt of the
charged crimes beyond a reasonable doubt. Although it is “conceivable” that the trial
judge may have acquitted Jones without the fingerprint evidence, we do not believe
that there is a “substantial” likelihood that the judge would have done so.
Id. at 993.
The court finds Jones instructive. Even removing the evidence of the photograph of money,
and Curry’s testimony that the money was “buy money,” the remaining evidence is – for the
reasons set forth above – sufficient to establish Petitioner’s guilt of the crime of distribution of
crack cocaine beyond a reasonable doubt. See Strickland, 466 U.S. at 695 (“When a defendant
challenges a conviction, the question is whether there is a reasonable probability that, absent the

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errors, the factfinder would have had a reasonable doubt respecting guilt.”). Because there is not
a reasonable probability the results of Petitioner’s proceeding would have been different, the court
grants summary judgment to Respondent as to the remaining two claims of ineffective assistance
of counsel. See Grueninger v. Dir., Va. Dep’t of Corr., 813 F.3d 517, 524-25 (4th Cir. 2016)
(where ineffective assistance of counsel claim is based on counsel’s failure to file motion to
suppress, the prejudice prong requires the petitioner to show “both (1) that the motion was
meritorious and likely would have been granted, and (2) a reasonable probability that granting the
motion would have affected the outcome of his trial” (citing Kimmelman v. Morrison, 477 U.S.
365, 375)).
V.

CONCLUSION

Based on the foregoing, the court GRANTS Respondent’s Motion for Summary Judgment
(ECF No. 35) and ACCEPTS the Magistrate Judge’s Report and Recommendation (“Report”)
(ECF No. 37).
VI.

CERTIFICATE OF APPEALABILITY

The law governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

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676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of
appealability has not been met.

IT IS SO ORDERED.

United States District Judge
March 28, 2018
Columbia, South Carolina

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