Carter v. Thaler

Filing 26

Memorandum Opinion and Order Denying Relief: Carters petition for a writ of habeas corpus is DENIED. Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the Court DENIES a certificate of appealability. (Ordered by Judge Terry R Means on 3/4/2015) (mem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
TILON LASHON CARTER,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 4:10-CV-969-Y
(Death Penalty Case)

MEMORANDUM OPINION AND ORDER DENYING RELIEF
Petitioner Tilon Lashon Carter has filed a petition for a writ
of habeas corpus (Pet., ECF No. 11) and brief in support (Pet. Br.,
ECF No. 12).

Respondent William Stephens has filed an answer

(Ans., ECF No. 17).

Carter has filed his reply to the answer

(Reply, ECF No. 20).

Because the state court’s denial of Carter’s

claims has not been shown to be unreasonable or contrary to clearly
established federal law, the petition will be denied.
I
On April 28, 2004, Carter and his girlfriend, Leketha Allen,
broke into the home of James Tomlin, 89, and bound him with duct
tape on his ankles, hands and face while they robbed his house.
Tomlin died of asphyxiation.
Carter was convicted and sentenced to death for the capital
murder of Tomlin on November 16, 2006, in the 371st Judicial
District Court, Tarrant County, Texas. The Texas Court of Criminal

Appeals (“CCA”) affirmed his death sentence on January 14, 2009.
(Carter v. State, No. AP-75,603, 2009 WL 81328 (Tex. Crim. App.
2009).)

Carter’s petition for a writ of certiorari was denied on

October 5, 2009.

(Carter v. Texas, 558 U.S. 830 (2009).)

On September 5, 2008, Carter filed an application for habeascorpus relief in the state district court.
Clerk’s Record, “SHCR”, at 2.)

(Vol. 1, State Habeas

After an evidentiary hearing, the

trial court entered findings to deny relief on October 8, 2010 (2
SHCR 139-54), which were adopted by the CCA on December 15, 2010.
(Ex parte Carter, No. WR-70,722-01, 2010 WL 5232998 (Tex. Crim.
App. 2010).)
II
Carter makes three claims for habeas relief: (1) He was denied
the effective assistance of counsel under the Sixth Amendment
because his trial attorneys failed timely to contact, confer with,
and produce in court the testimony of a forensic pathologist to
testify regarding the cause and manner of the victim’s death (Pet.
Br. at 1-18); (2) The trial court’s failure to require proof beyond
a reasonable doubt at the punishment phase that no mitigating
circumstances existed to warrant a sentence of life imprisonment
rather than death violated Carter’s rights under the Fifth, Sixth,
and Fourteenth Amendments (Pet. Br. at 18-31); and (3) the Texas
rule that the jury may not return a verdict in the defendant’s
favor on punishment phase special issues unless at least ten jurors

2

agree, and that the jury not be informed of the consequences of
failing to return a verdict, combined to violate Carter’s rights
under the Eighth and Fourteenth Amendments (Pet. Br. at 32-38).
Regarding all three claims, Respondent asserts that Carter’s
claims lack merit and that he cannot demonstrate that the state
court’s resolution is unreasonable.

(Ans. at 21-68.)

Regarding

the second and third claims, Respondent also asserts that they are
barred by the nonretroactivity doctrine of Teague v. Lane, 489 U.S.
288 (1989).

(Ans. at 1, 59-61, 65-66.)
III

The Supreme Court consistently emphasizes the deference that
federal courts must provide to state-court adjudications of claims
under 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).

If the state court

denies the claim on the merits, a federal court may not grant
relief unless it first determines that the claim was unreasonably
adjudicated by the state court, as defined in § 2254(d):
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 with respect to any claim that
was adjudicated on the merits in State court proceedings
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
3

light of the evidence presented in the State
court proceeding.
Id.

The Supreme Court has described this as “a provision of law

that some federal judges find too confining, but that all federal
judges must obey.”

White v. Woodall, 134 S. Ct. 1697, 1701 (2014).

In the context of § 2254(d) analysis, “adjudicated on the
merits” is a term of art referring to a state court’s disposition
of a case on substantive rather than procedural grounds.
Johnson,

116

F.3d

1115,

1121

(5th

Cir.

1997).

Green v.

Instead

of

authorizing habeas relief, this provision prevents federal courts
from granting it to state prisoners on claims that were not first
unreasonably denied by the state courts.

Thus, the AEDPA limits

rather than expands the availability of habeas relief.

See Fry v.

Pliler, 551 U.S. 112, 119 (2007); Williams v. Taylor, 529 U.S. 362,
412 (2000). “By its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the
exceptions in §§ 2254(d)(1) and (d)(2).”
562 U.S. 86, 131 S. Ct. 770, 784 (2011).

Harrington v. Richter,
“This is a ‘difficult to

meet,’ and ‘highly deferential standard for evaluating state-court
rulings, which demands that state-court rulings be given the
benefit of the doubt.’” Cullen v. Pinholster, 131 S.Ct. 1388, 1398
(2011) (internal citations omitted) (quoting Richter, 131 S.Ct. at
786, and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam)).

4

Under the “contrary to” clause, a federal court is not
prohibited from granting federal habeas relief if the state court
either arrives at a conclusion opposite to that reached by the
United States Supreme Court on a question of law or decides a case
differently from the United States Supreme Court on a set of
materially indistinguishable facts.

See Williams v. Taylor, 529

U.S. at 412-13; Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.
2000).

Under the “unreasonable application” clause, a federal

court is also not prohibited from granting federal habeas relief if
the state court unreasonably applies the correct legal rule to the
facts of a particular case.

See Williams, 529 U.S. at 407.

The

Supreme Court has recently reaffirmed the high and difficult
standard that must be met:
Clearly established Federal law for purposes of §
2254(d)(1) includes only the holdings, as opposed to the
dicta, of this Court’s decisions. And an unreasonable
application of those holdings must be objectively
unreasonable, not merely wrong; even clear error will not
suffice. Rather, as a condition for obtaining habeas
corpus from a federal court, a state prisoner must show
that the state court’s ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded
disagreement.
White v. Woodall, 134 S. Ct. at 1702 (quotation marks and internal
citations omitted).
Federal habeas relief is not available on a claim adjudicated
on the merits by the state court unless the record before the state
court first satisfies § 2254(d). “[E]vidence introduced in federal
5

court has no bearing on § 2254(d)(1) review.

If a claim has been

adjudicated on the merits by a state court, a federal habeas
petitioner must overcome the limitation of § 2254(d)(1) on the
record that was before that state court.” Pinholster, 131 S.Ct. at
1400.

The evidence required under § 2254(d)(2) must show that the

state-court adjudication “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.”

Id.

IV
Carter claims that he was denied the effective assistance of
counsel in violation of the Sixth and Fourteenth Amendments to the
United States Constitution because his trial attorneys failed
timely to contact, confer with, and produce in court the testimony
of a forensic pathologist to testify regarding the cause and manner
of the death of James Tomlin.

(Pet. Br. at 6-18).

Specifically,

Carter complains that his trial counsel failed to offer expert
testimony to contradict the opinion of the state’s medical examiner
that the victim had been killed deliberately by a human agent.
(Pet. Br. at 8.)
Respondent asserts that Carter has not shown and cannot show
that the state court’s resolution of this claim is unreasonable.
(Ans. at 21-46.)

6

A. State Court Proceedings
The manner of death was an important issue at trial because it
related to the specific intent necessary to prove capital murder.1
Carter made statements to the police indicating that he intended to
rob, but not kill, the victim.

(State’s Exh. 95, 97; Volume 40 of

the Reporter’s Record, “RR”, at pages 107, 137, 139-44; 42 RR 44,
48-49, 62.) The State’s pathologist, Dr. Nizam Peerwani, performed
the autopsy and testified at trial that, while he was sure that the
victim died of asphyxiation, he could not be certain of the exact
mechanism that caused it.

(41 RR 189, 191, 208, 216-17.)

He

testified that the manner in which the victim was restrained and
the position that the body was found would be consistent with
positional asphyxiation, but that marks on the inside of the
victim’s lips indicated an intentional smothering.

(41 RR 169-73,

176-78, 187, 205, 208.)
The state habeas court ordered affidavits (Volume 2 of the
State Habeas Clerk’s Record, “SHCR”, at pages 10-11), and eventually conducted an evidentiary hearing on this claim on October 13
& 15, 2009.

(Volume 1 of the State Habeas Reporter’s Record,

“SHRR”, at pages 4-5; 2 SHRR 3, 131-32; 3 SHRR 3, 168-69.)
Following the hearing, the state habeas court made findings that
differed from those submitted by either party.

1

Most of every attorney’s closing argument in the guilt/innocence stage
focused on whether the evidence showed the specific intent to kill necessary to
elevate murder to capital murder. (42 RR 34-77.)

7

The state habeas court found that trial counsel’s performance
was deficient in failing to promptly investigate the available
experts in forensic pathology “[d]espite knowing early that intent
would be the lynchpin of their case,” but recommended that relief
be denied because such deficiency did not result in prejudice to
Carter.

(2 SHCR 144.)

The state court reasoned that even if trial

counsel had investigated more promptly, the testimony of the
available expert pathologist, Dr. Charles Harvey, “would not have
benefitted the defense, so it would not have had a reasonable
probability of changing the results of the proceedings.”
145.)

(2 SHCR

The state court also found that trial counsel “made a

reasonable, strategic decision not to call Dr. Harvey to testify at
Applicant’s trial after Dr. Harvey told the defense that he had
reviewed everything, agreed with [the State’s expert pathologist],
and could not help the defense.”

(2 SHCR 143.)

These findings and

the recommendation to deny relief were adopted by the CCA.2
B.

Legal Standard
In addition to the high deference under the AEDPA, “[j]udicial

scrutiny of counsel’s performance must be highly deferential” under
Strickland v. Washington, 466 U.S. 668, 689 (1984).

To prove a

Sixth Amendment claim of ineffective assistance of trial counsel,

2

The CCA adopted all of the trial court’s findings pertaining to this claim
except for (1) two sentences regarding whether and how Carter’s expert at the
habeas-corpus hearing differed from the State’s expert testimony at trial, and
(2) one of the concluding paragraphs regarding whether trial counsel’s decisions
may be judged only by what they actually knew or also by what they should have
known. See Ex parte Carter, No. WR-70722-01, 2010 WL 5232998, at *1.

8

a habeas petitioner must show that counsel’s performance was
deficient
defense.

and

that

such

deficient

performance

prejudiced

the

See id. at 687.

This two-pronged approach requires the defendant to
demonstrate that counsel’s errors were “so serious as to
deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. The defendant must meet both
prongs; otherwise, “it cannot be said that the conviction
or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.”
Id.
Beatty v. Stephens, 759 F.3d 455, 462-63 (5th Cir. 2014) (quoting
Strickland, 466 U.S. at 687), petition for cert. filed Feb. 2, 2015
(No. 14-8291).
Under the first Strickland prong, the petitioner must show
that counsel’s representation “fell below an objective standard of
reasonableness.”
463.

Strickland, 466 U.S. at 688; Beatty, 759 F.3d at

A petitioner must overcome a “strong presumption” that the

representation fell “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Under the second
prong, “[t]he 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.

A reasonable

probability is a probability sufficient to undermine confidence in
the outcome.”
This

Id. at 694.

Court’s

review

is

even

standards of deference apply.

9

more

deferential

when

both

Because this case arises under AEDPA, Strickland is
not the only standard we must keep in mind.
When a
petitioner brings a Strickland claim under AEDPA, the
“pivotal question” is not whether the petitioner was
deprived of his right to counsel under the Sixth Amendment.
Instead, “the question is whether the state
court’s application of the Strickland standard was
unreasonable.” Both the Strickland standard and AEDPA
standard are “highly deferential,” and “when the two
apply in tandem, review is doubly so.”
Beatty, 759 F.3d at 463 (quoting Richter, 131 S.Ct. at 785, 788)
(internal citations omitted); see also Pinholster, 131 S. Ct. at
1392 (“Review here is thus ‘doubly deferential’ ... requiring a
‘highly deferential’ look at counsel’s performance ... through §
2254(d)’s ‘deferential lens.’”).
C. Analysis
The state court’s denial of relief under the Strickland
standard was not unreasonable.

Its conclusion that trial counsel

made a “reasonable, strategic decision” not to call Dr. Harvey to
testify at trial was supported by the undisputed testimony that Dr.
Harvey told the defense that he had reviewed everything, agreed
with the State’s expert pathologist, and could not help the
defense.

(2 SHCR 143; 2 SHRR 24, 30, 49, 57, 90-91, 93-95, 117,

119, 129; 3 SHRR 5, 17-18, 45-46, 160.)
At the evidentiary hearing in the state habeas proceedings,
Dr. Harvey testified that he agreed with the findings of Dr.
Peerwani, the State’s expert pathologist, and that the death was a
homicide caused by smothering with positional asphyxia.
24, 65.)

(2 SHRR

He only slightly differed with the State’s expert
10

pathologist in that Dr. Harvey would have considered the victim’s
age and health problems as potentially greater contributing factors
in the death, and Dr. Harvey saw indications that could possibly
support a finding of manual strangulation.

(2 SHRR 35-36, 61-62.)

Trial counsel testified that they would not have wanted to
call an expert that would confirm the very expert testimony that
they were trying to dispute: that the victim was intentionally
smothered.

Lead counsel testified,

I didn’t want the jury to hear from a second doctor
saying that--basically that Dr. Peerwani’s testimony was
that there was evidence of an intentional act of smothering because the--that takes it away from the hog-tying
accidental asphyxia cause of death to an intentional act.
I
thought
we
had
made
some
points
during
cross-examination that the possibility of cause of death
was still asphyxia, and so it becomes an issue of was
there evidence of intentional smothering or not, because
... that would get us to the intentional act of capital
murder ... .
(2 SHRR 91.)

Similarly, co-counsel testified,

When the expert witness tells you that he’s not going to
be able to help you or contradict the medical examiner
and the medical examiner’s findings, then we didn’t think
it was a very good idea to go back and reinforce the
State’s testimony, so we did not call him.
(3 SHRR 53.)

Dr. Harvey’s testimony, therefore, would not have

benefitted the defensive theory at trial.
Further, the trial court’s finding that the absence of expert
testimony did not prejudice the defense was supported by the same
undisputed evidence.

These were reasonable conclusions from the

evidence presented in the state-court proceedings.

11

Therefore, the state-court findings have not been shown to be
unreasonable or contrary to clearly established federal law under
the AEDPA.

Instead, its denial of relief is consistent with the

record before this Court.

Accordingly, Carter’s first claim for

relief is denied.
V
Carter also claims that he was denied his rights under the
Fifth, Sixth, and Fourteenth Amendments by the trial court’s
failure to require proof beyond reasonable doubt at the punishment
phase of Petitioner’s capital murder trial that no mitigating
circumstances existed to warrant a sentence of life imprisonment
rather than death.

(Pet. Br. at 6, 18-31.)

Respondent asserts

that the claim lacks merit, that Carter cannot demonstrate that the
state court’s resolution of it is unreasonable, and that it is
barred by the nonretroactivity doctrine of Teague, 489 U.S. at 310.
(Ans. at 46-60.)
Carter presented this claim to the state court in his fifth
and sixth points of error in his direct appeal (1 CR 159; 2 CR
328-340; 9 RR 22-23; 50 RR 4), and the state court denied such
complaints on the merits. (Carter v. State, 2009 WL 81328, at *5.)
Carter also presented a portion of this claim in his fifteenth
claim in postconviction habeas-corpus proceedings (1 SHCR 65-78),
and the state court denied it as procedurally barred due to the

12

resolution of the claim on direct appeal (2 SHCR 152-53).

(Ex

parte Carter, 2010 WL 5232998, at *1.)
Carter argues that a negative finding on the mitigation
special issue increases his punishment to death and, therefore,
falls within the rule announced in Ring v. Arizona, 536 U.S. 584,
585-86 (2002), and Apprendi v. New Jersey, 530 U.S, 466, 490
(2000), requiring it to be found by the jury beyond a reasonable
doubt.

(Pet. Br. at 18, 20.)

The United States Court of Appeals

for the Fifth Circuit, however, has repeatedly rejected this
argument.

See Blue v. Thaler, 665 F.3d 647, 669 (5th Cir. 2011);

Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir. 2006);
Rowell v. Dretke, 398 F.3d 370, 379 (5th Cir. 2005).

The Court of

Appeals has held that this special issue does not increase the
sentence to death, but rather allows the jury to decrease a
sentence from death.

See Granados, 455 F.3d at 537.

Carter acknowledges the binding circuit precedent against him
on this issue, but attempts to distinguish those precedents as not
addressing the precise arguments being made in these proceedings.
(Pet. Br. at 24-25.)

There is no meaningful distinction in this

case, however, and this Court is bound by such precedent.

See

Avila v. Quarterman, 560 F.3d 299, 314-15 (5th Cir. 2009) (finding
that

the

Court

of

Appeals

was

bound

by

precedent

to

reject

petitioner’s argument that the jury was required to find a lack of
mitigating evidence beyond a reasonable doubt).
13

Respondent properly asserts that the expansion of Ring and
Apprendi that Carter seeks would constitute a new rule of law that
would be barred by the nonretroactivity doctrine of Teague, 489
U.S. at 310. (Ans. at 59-60.) Under this doctrine, federal courts
are generally barred from applying new constitutional rules of
criminal procedure retroactively on collateral review. See Caspari
v. Bohlen, 510 U.S. 383, 389–90 (1994).
A “new rule” for Teague purposes is one that was not dictated
by the precedent existing at the time the defendant’s conviction
became final.

See O’Dell v. Netherland, 521 U.S. 151, 156 (1997)

(holding a “new rule” either “breaks new ground,” “imposes a new
obligation on the States or the Federal Government,” or was not
“dictated

by

precedent

existing

conviction became final”).

at

the

time

the

defendant’s

The rule asserted by Carter was not

dictated by the precedent that existed at the time his conviction
became final and, in fact, continues to be rejected by binding
precedent.

Therefore,

Carter’s

second

claim

is

barred

the

nonretroactivity doctrine of Teague.
Alternatively, Carter’s claim may be denied on the merits.
Carter has not shown that the state court’s denial of his claim was
unreasonable under 28 U.S.C., § 2254(d).

Since this claim “has

been previously rejected in both state and federal court, and is
not supported by Supreme Court authority,”

14

Scheanette v. Quarter-

man, 482 F.3d 815, 828 (5th Cir. 2007) (footnote omitted), the
state court properly denied the claim.
Carter’s second claim is denied as barred by Teague, and
alternatively for lack of merit.
VI
Finally, Carter complains that he was denied his rights under
the Eighth and Fourteenth Amendments by the Texas statutory rule in
capital-murder prosecutions requiring the jury to be instructed
that

punishment-phase

special

issues

not

be

resolved

in

the

defendant’s favor unless at least ten jurors agree, and by the
statutory prohibition against informing the jurors of the consequences of their failure to render a verdict.
38.)

(Pet. Br. at 7, 32-

Respondent asserts that the claim lacks merit, that Carter

cannot demonstrate that the state court’s resolution of it is
unreasonable,

and

doctrine of Teague.

that

it

is

barred

by

the

nonretroactivity

(Ans. at 60-68.)

Carter presented these complaints to the state court as his
fourth and seventh points of error in his direct appeal (1 CR 211;
9 RR 22-231), and the state court denied such complaints on the
merits.

(Carter v. State, 2009 WL 81328, at *4.)

Carter also

presented a portion of this claim as his ninth claim in the
postconviction habeas-corpus proceedings (1 SHCR 49-51), and the
state court denied it on the merits (2 SHCR 149-50).
Carter, 2010 WL 5232998, at *1.)
15

(Ex parte

At the time of Carter’s trial, Texas law required all twelve
jurors to be unanimous in returning a verdict on special issues
that would result in a death sentence, but allowed them to return
a verdict on certain special issues that would result in a life
sentence with the agreement of only ten jurors.
PROC. art. 37.071 §§ 2(a)(1), (g).

See TEX. CODE CRIM.

This requirement has been

referred to as the “10–12" Rule, Carter v. State, 2009 WL 81328, at
*4; Blue, 665 F.3d at 662, and the “12–10" Rule.

See Druery v.

Thaler, 647 F.3d 535, 542 (5th Cir. 2011).
Carter asserts that this requirement, in conjunction with the
prohibition on informing the jury of the consequence of their
failure to render a verdict, is unconstitutionally misleading to
jurors.

(Pet. Br. at 32,36-38.)

He argues that the jury charge

deliberately created a misunderstanding of the legal consequences
that would follow from unreconciled differences of opinion between
jurors, with the manifest purpose of coercing jurors who hold a
minority view on the mitigation special issue into changing their
position for the sake of reaching a verdict, in violation of the
principles announced in Mills v. Maryland, 486 U.S. 367 (1988),
Romano v. Oklahoma, 512 U.S. 1, 8 (1994), and Caldwell v. Mississippi, 472 U.S. 320 (1985).

(Pet. Br. at 33-34, 36.)

These

arguments have also been rejected by binding circuit precedent.
In Miller v. Johnson, 200 F.3d 274, 288 (5th Cir. 2000), the
court of appeals noted that circuit precedent at that time already

16

foreclosed this reading of Mills, which really only required all
jurors be allowed to consider any circumstance that they regarded
as mitigating.

The court of appeals observed that “[u]nder the

Texas system, all jurors can take into account any mitigating
circumstance.

One juror cannot preclude the entire jury from

considering a mitigating circumstance.”

Id. at 288-89.

This was

repeated in Druery v. Thaler, in which the court of appeals again
cited circuit precedent in rejecting the claim “that Texas’s 12–10
Rule violated due process and the right to freedom from cruel and
unusual punishment.” 647 F.3d at 542 (citing Hughes v. Dretke, 412
F.3d 582, 593–94 (5th Cir. 2005)); see also Blue, 665 F.3d at 670
(rejecting same argument based on Romano v. Oklahoma).
The court of appeals in Druery also noted circuit precedent
rejecting Carter’s argument based on Caldwell v. Mississippi that
the 10-12 Rule mislead jurors regarding the consequences of their
actions.

See 647 F.3d at 544 (citing Jones v. United States, 527

U.S. 373, 381 (1999) (holding that “the Eighth Amendment does not
require that the jurors be instructed as to the consequences of
their failure to agree”)).

The court of appeals observed that

“12–10 Rules implicitly urge jurors toward consensus, but nothing
in them suggests the ultimate responsibility to choose reposes in
another actor.”

Druery, 647 F.3d at 544.

Respondent again properly asserts that this claim is barred by
the nonretroactivity doctrine of Teague.
17

(Ans. at 65-66.)

Again,

the rule asserted by Carter was not dictated by the precedent that
existed at the time his conviction became final, or even now.
O’Dell, 521 U.S. at 156.

See

Therefore, Carter’s third claim would

rely upon a new procedural rule and is, therefore, barred by the
nonretroactivity doctrine of Teague.

See Druery, 647 F.3d at

542-45 (denying complaints against 12-10 Rule on similar arguments
based on merits and Teague); Blue, 665 F.3d at 670 (same).
Carter’s third claim has been repeatedly denied by binding
circuit precedent.

Therefore, this claim is denied as barred by

Teague, and alternatively for lack of merit.
VII
Carter’s petition for a writ of habeas corpus is DENIED.
Considering the record in this case and pursuant to Federal
Rule

of

Appellate

Procedure

22(b),

Rule

11(a)

of

the

Rules

Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the Court DENIES a certificate of appealability.

Based on its

analysis of the claims, the Court finds that the petitioner has
failed to show (1) that reasonable jurists would find this Court’s
“assessment of the constitutional claims debatable or wrong,” or
(2) that reasonable jurists would find “it debatable whether the
petition states a valid claim of the denial of a constitutional
right” and “debatable whether [this Court] was correct in its
procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

18

In the event he files a notice of appeal, Carter may proceed
in forma pauperis on appeal.

See 18 U.S.C. § 3006A(d)(7).

SIGNED March 4, 2015.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/rs

19