Bonner v. Stephens-Director TDCJ-CID
Filing
23
Opinion and Order... Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Don A. Bonner, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correc tional Institutions Division, Respondent. After having considered the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied. Therefore, a certificate of appealability should not issue. (Ordered by Senior Judge Terry R Means on 2/23/2018) (wxc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DON A. BONNER,
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
No. 4:16-CV-347-Y
OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner, Don A. Bonner, a
state
prisoner,
against
Lorie
Davis,
director
of
the
Texas
Department of Criminal Justice, Correctional Institutions Division,
Respondent. After having considered the pleadings and relief sought
by Petitioner, the Court has concluded that the petition should be
denied.
I.
FACTUAL AND PROCEDURAL HISTORY
On November 2, 2012, in the 432nd Judicial District Court,
Tarrant County, Texas, Case No. 1269186D, a jury found Petitioner
guilty of unlawful possession of a firearm by a felon and found the
habitual-offender
notice
in
the
indictment
true.
It
assessed
Petitioner’s punishment at 42 years’ confinement. (Clerk’s R. 80,
doc. 8-13.) Petitioner appealed his conviction, but the Second
District Court of Appeals of Texas affirmed the trial court’s
judgment
and
the
Texas
Court
of
Criminal
Appeals
refused
Petitioner’s petition for discretionary review. (Docket Sheet 1,
doc. 8-2.) Petitioner also sought state post-conviction habeas
relief by filing a state application for a writ of habeas corpus,
raising the claims presented in this federal petition, which was
denied by the Texas Court of Criminal Appeals without written
order. (SH16 & Action Taken, docs. 9-13 & 9-15.)
The appellate court set out the factual background of the case
as follows:
[Petitioner]’s mother Mary Bonner passed away on
January 22, 2012. After Mary’s funeral on January 28,
2012, [Petitioner], his wife Marguerita Bonner, his
brother Virdis Bonner, Virdis’s fiancee Shekelia
Campbell, and Virdis’s stepdaughter Keiumbria (Bree)
Nelson went to Mary’s house at 2804 Gardenia Drive in
Fort Worth. Around 7:30 that evening, [Petitioner] asked
his brother and his brother’s family to leave so that
[Petitioner] could return to his home, which was located
on Avenue M, and change clothes. Virdis asked Shekelia
and Bree to go to their car and wait for him. Shekelia
and Bree heard [Petitioner] and Virdis arguing about why
[Petitioner] had asked them to leave. Marguerita and
Shekelia broke up the argument between the brothers, and
Shekelia got Virdis to leave. As Shekelia and Virdis were
getting in their car, they saw [Petitioner] standing in
the garage with a gun in his hand, yelling at Virdis.
Virdis called 911.
When police arrived, they obtained [Petitioner]’s
oral and written consent to search the residence, and he
told them that there was a handgun in a dresser in the
back bedroom. A search of the residence revealed a loaded
handgun in the dresser, ammunition, and two magazines—one
in the dresser drawer with the gun and another in the
kitchen.
(Mem. Op. 2, doc. 8-3.)
2
3
II.
ISSUES
Petitioner raises three grounds for relief:
(1)
Section 46.04(a)(2) of the Texas Penal Code is
unconstitutionally overbroad and impermissibly
vague;
(2)
there was no evidence or insufficient evidence to
prove mens rea; and
(3)
he was denied effective assistance of counsel and a
fair trial.
(Pet. 6-7, doc. 1.)
III.
RULE 5 STATEMENT
Respondent believes that Petitioner has exhausted his statecourt remedies and that the petition is neither time barred nor
subject to the successive-petition bar. (Resp’t’s Answer 5, doc.
11.)
IV. STANDARD OF REVIEW
A § 2254 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and Effective
Death Penalty Act (AEDPA). See 28 U.S.C. § 2254. Under the Act, a
writ of habeas corpus should be granted only if a state court
arrives at a decision that is contrary to or an unreasonable
application of clearly established federal law as determined by the
United States Supreme Court or that is based on an unreasonable
determination of the facts in light of the record before the state
court. 28 U.S.C. § 2254(d)(1)–(2); Harrington v. Richter, 562 U.S.
4
86, 100-01 (2011). This standard is difficult to meet but “stops
short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings.” Harrington, 562 U.S.
at 102.
Additionally, the statute requires that federal courts give
great deference to a state court’s factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1)
provides that a determination of a factual issue made by a state
court shall be presumed to be correct. Further, when the Texas
Court of Criminal Appeals denies relief in a state habeas-corpus
application without written order, it is “presumed that the state
court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”
Harrington, 562 U.S. at 99. In such a situation, a federal court
may assume the state court applied correct standards of federal law
to the facts, unless there is evidence that an incorrect standard
was applied. Townsend v. Sain, 372 U.S. 293, 314 (1963)1; Catalan
v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez v.
Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); Goodwin v.
Johnson, 132 F.3d 162, 183 (5th Cir. 1997). A petitioner has the
burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell,
1
The standards of Townsend v. Sain have been incorporated into 28 U.S.C.
§ 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981).
5
537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399
(2000).
V.
DISCUSSION
A. Constitutionality of Texas Penal Code § 46.04(a)(2)
Under his first ground, Petitioner claims that § 46.04(a)(2)
is unconstitutionally overbroad and impermissibly vague because “it
does not clearly give notice of the forbidden conduct as to the .
. . meaning [of] ‘the premises in which he live[s].’” (Pet. 6 &
Mem. 5-13, doc. 1.)
Petitioner raised this claim for the first time
in his state habeas application, and the state habeas court
expressly found that the claim was forfeited by Petitioner’s
failure to object at trial. (SH16 105, doc. 9-15.)
Under the procedural-default doctrine, a federal habeas court
will not review a claim if the last state court to consider the
claim expressly and unambiguously based its denial of relief on a
state procedural default.2 Coleman v. Thompson, 501 U.S. 722, 729
(1991); Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995). Texas’s
contemporaneous-objection rule is an independent and adequate state
procedural bar to federal habeas review. See Amos v. Scott, 61 F.3d
333, 341 (5th Cir. 1995). Thus, the procedural default in state
court precludes federal habeas review of the claim. Wainwright v.
2
A federal district court may raise procedural default sua sponte in habeas
proceedings. Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998). The state’s
failure to brief the issue does not waive the argument. Coleman v. Goodwin, 833
F.3d 537, 541 (5th Cir. 2016).
6
Sykes, 433 U.S. 72, 87 (1977); Ogan v. Cockrell, 297 F.3d 349, 356
(5th Cir. 2002).
To
overcome
a
state
procedural
bar,
a
petitioner
must
demonstrate either cause for the procedural default and actual
prejudice as a result of the alleged violation of federal law, or
that failure to consider the claim will result in a fundamental
miscarriage of justice-i.e., that he is actually innocent of the
offense for which he was convicted. Coleman, 501 U.S. at 750. Such
showing not having been demonstrated by Petitioner, this claim
raised for the first time in his state habeas application is
procedurally barred from this Court’s review.
B. No Evidence or Insufficient Evidence
Under his second ground, Petitioner claims that there was no
evidence or insufficient evidence to prove mens rea because there
was no evidence that he knowingly and intentionally possessed a
firearm away from the premises where he lived. (Pet. 6, doc. 1.)
According to Petitioner, prior to his arrest he had separated from
his wife and moved back home to Gardenia Drive to take care of his
dying mother. (Mem. 17, doc. 1.) Therefore, he contends that he did
not believe or think he was disobeying the law by possessing a
firearm at the Gardenia Drive house where he was residing at the
time. (Id.) He also contends that because his mother bequeathed the
house to him upon her death, he believed that he had the right of
ownership and control of the Gardenia Drive residence; thus, he
7
made no attempt to “evade or conceal his possession of the firearm
and answered truthfully to questions ask[ed] by the officers.” (Id.
at 17-18, 24.)
The state habeas court found that Petitioner had not alleged
that the evidence was insufficient to prove mens rea on appeal but,
rather, that the evidence was insufficient to prove that the
Gardenia Drive house was not the “premises at which [he]” lived.
(SH16 100-01, doc. 9-15.) Consequently, the state court determined
that the claim was forfeited by Petitioner’s failure to raise it on
appeal. (Id. at 106.) Under Texas law, a sufficiency-of-theevidence claim may only be raised on direct appeal and may not be
raised in a state habeas proceeding. See West v. Johnson, 92 F.3d
1385, 1389 n.18 (5th Cir. 1996); Ex parte Grigsby, 137 S.W.3d 673,
674 (Tex. Crim. App. 2004). The Texas Court of Criminal Appeals has
confirmed
that
when
a
state
habeas
applicant
challenges
the
sufficiency of the evidence in a state habeas application, and it
subsequently disposes of the application by entering a denial
without written order, the applicant’s sufficiency claim was denied
because the claim is not cognizable. Ex parte Grigsby, 137 S.W.3d
at 674. In these circumstances, reliance on the procedural default
by the state court is established and presents an adequate state
procedural
ground
barring
federal
habeas
review.
Ylst
v.
Nunnemaker, 501 U.S. 797, 801–07 (1991).
The two claims are distinguishable; thus, Petitioner’s failure
8
to raise the instant claim on appeal precludes federal habeas
review of the claim. Absent a showing of cause and prejudice or a
miscarriage of justice, such showing not having been made by
Petitioner, the claim is procedurally barred from this Court’s
review.
C. Ineffective Assistance of Counsel
Lastly, under his third ground, Petitioner claims his trial
counsel was ineffective by failing to have a firm command of the
facts and “elements of the charge and time element necessary to be
convicted of the charge”; to file a motion for continuance so his
mother’s will could be probated; and to seek a “mistake of fact”
defense. (Pet. & Mem. 7, 21-27, doc. 1.)
A
criminal
defendant
has
a
constitutional
right
to
the
effective assistance of counsel at trial. U.S. CONST. amend. VI,
XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985); Strickland v.
Washington, 466 U.S. 668, 688 (1984). To establish ineffective
assistance of counsel a petitioner must show (1) that counsel’s
performance fell below an objective standard of reasonableness and
(2) that but for counsel’s deficient performance the result of the
proceeding would have been different. Strickland, 466 U.S. at 688.
Both prongs of the Strickland test must be met to demonstrate
ineffective assistance. Id. at 687, 697.
In
applying
this
test,
a
court
must
indulge
a
strong
presumption that counsel’s conduct fell within the wide range of
9
reasonable professional assistance or sound trial strategy. Id. at
668, 688-89. Judicial scrutiny of counsel’s performance must be
highly deferential and every effort must be made to eliminate the
distorting effects of hindsight. Id. at 689. Where a petitioner’s
ineffective-assistance claims have been reviewed on their merits
and denied by the state courts, federal habeas relief will be
granted only if the state courts’ decision was contrary to or
involved an unreasonable application of the Strickland standard in
light of the state-court record. Harrington, 562 U.S. at 100-01
(quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)); Bell v.
Cone, 535 U.S. 685, 698-99 (2002). Thus, a federal court’s review
of
state-court
decisions
regarding
ineffective
assistance
of
counsel must be “doubly deferential” so as to afford “both the
state court and the defense attorney the benefit of the doubt.”
Burt v. Titlow, 134 S. Ct. 10, 13 (2013) (quoting Cullen v.
Pinholster, 563 U.S. 170, 190 (2011)).
Petitioner was represented at trial by Catherine Dunnavant.
Counsel filed an affidavit in the state habeas proceedings, in
which she averred (all spelling, grammatical, and/or punctuation
errors are in the original):
In his Memorandum in Support of the Application
("Memorandum"), [Petitioner] asserted counsel’s conduct
was deficient where counsel did not investigate and raise
a Mistake of Fact defense, and because counsel failed to
file a motion for continuance pending the probate of his
mother’s will, which devised him the property located at
2804 Gardenia. [Petitioner] alleged prejudice because
such deficiencies prevented the jury “to consider
10
critical evidence and any possibility of acquittal or
conviction of a lesser included offense and sentence.”
[Petitioner] further alleged “[h]ad the jury heard
evidence from the probate court that [he] was in fact the
owner of the residence at 2804 Gardenia that a motion for
continuance would have allowed and heard Evidence and
fact that [Petitioner] belief and understanding of the
law as to his right to possess a firearm at the premises
where he lived as a felon requiring [Petitioner] to
testify as to his belief, there is a reasonable
probability that the jury would have acquitted him of
possession of a firearm away from the premises where
he lived.”
Response:
Background: On April 11, 2012, Mr. Bonner was
indicted in two cases: No. 1269186, the instant case, for
a violation of Texas Penal Code§ 46.04(a). Unlawful
Possession of Firearm (a) A person who has been convicted
of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of
the
person’s
release
from
confinement
following
conviction of the felony or the person’s release from
supervision under community supervision, parole, or
mandatory supervision, whichever date is later; or (2)
after the period described by Subdivision (1), at any
location other than the premises at which the person
lives, and No. 1269189, for a violation of Texas Penal
Code§ 22.02(a)(2). Aggravated Assault, to wit: (a) a
person commits an offense if the person commits assault
as defined in § 22.01 and the person (2) uses or exhibits
a deadly weapon during the commission of the assault, to
wit: a firearm. Both cases were alleged to have arisen
out of the same transaction. [Petitioner] was tried and
convicted on November 2, 2012, in No. 1269186, the
instant case, for a violation of Texas Penal Code §
46.04(a). Unlawful Possession of Firearm. Cause No.
1269189 remained pending.
Mistake of Fact: The decision not to pursue defense
of mistake was made pursuant to trial strategy developed
through, and in consideration of, factors including, but
not limited to relevant background facts, legislative
history of the subject offense, interviews of Virdis
Bonner and Marguerita Bonner, property records research,
physical inspection of properties located at 2804
Gardenia Drive, Fort Worth, Texas, and 4203 M Ave., Fort
11
Worth, Texas, [Petitioner]’s criminal history, other
pretrial investigation, evidence presented at trial, jury
charge decisions regarding elements requiring proof of a
culpable mental state, whether to include or exclude a
definition of premises, and Mr. [Petitioner]’s pending
indictment for Aggravated Assault: use or exhibits a
deadly weapon during the commission of the assault, to
wit: a firearm.
Failure to request continuance of trial pending the
probate of the Will of Mary L. Bonner: The decision not
to file a motion with the court for a continuance of
trial while awaiting the conclusion of the subject
probate proceedings was made pursuant to trial strategy
developed through, and in consideration of, factors for
and against such motion for continuance, wherein factors
against outweighed factors in favor of such motion for
continuance.
The relevant issue at trial regarding the subject
property was whether the premises located at 2804
Gardenia Drive, Fort Worth, Texas, was the “premises at
which [Petitioner] lives” on January 28, 2012, the date
of the offense. Whether Mr. Bonner’s subsequently
acquired legal title of the subject property pursuant to
the probate of Mary L. Bonner’s Will was not dispositive
of the issue whether such residence was the “premises at
which [Petitioner] lives” on January 28, 2012. Moreover,
Mary Bonner’s Will also devised two additional
residential properties to [Petitioner], 4203 Avenue M,
Fort Worth, Texas, and 100 E. 17th Avenue, Corsicana,
Texas. Furthermore, evidence that Mary L. Bonner was
deceased, and her will devised the residence located at
2804 Gardenia Drive, Fort Worth, Texas to [Petitioner]
was presented and before the jury.
Prior to trial, the Tarrant County District
Attorney, through its Assistant District Attorney (“ADA”)
indicated the State’s intent to try [Petitioner]
separately for each case, first for the Unlawful
Possession of Firearm by Felon. A continuance of trial
may have resulted in the State’s election to proceed to
trial first for the Aggravated Assault, or for both
pending cases concurrently, both less preferable to
[Petitioner]’s defense strategy than being tried first
for Unlawful Possession of Firearm by Felon. [Petitioner]
further asserts a continuance of trial would have allowed
him to testify as to his belief and understanding of the
12
law regarding his right to possess a firearm at the
premises, resulting in “a reasonable probability that the
jury would have acquitted him of possession of a firearm
away from the premises where he lived.” Indeed,
[Petitioner] had opportunity to testify at his trial,
however, he elected not to testify. Factors considered by
[Petitioner] in deciding whether to testify included
important facts that would not change over time, such as
his prior criminal history.
(SH16
80-83
(emphasis
in
original)
(citations
to
the
record
omitted).)
Based on the documentary record, counsel’s affidavit, and his
own recollection of the trial proceedings, the state habeas court
entered the following factual findings relevant to this issue:
11.
[Petitioner] chose not to testify after considering
several factors, including his criminal history.
12.
Dunnavant presented evidence
lived with his mother.
that
[Petitioner]
. . .
14.
Hon. Dunnavant made a strategic decision to not
pursue a defense of mistake of fact after
considering the facts, the legislative history,
interviews with the witnesses, property records
research, physical inspection of the properties
involved, [Petitioner]’s criminal history, pretrial
investigation, the evidence presented at trial, and
[Petitioner]’s pending indictment for aggravated
assault.
15.
To request a mistake of fact instruction would be
inconsistent with [Petitioner]’s defense that he
did, in fact, live at the premises in question at
the time of the incident.
16.
Based on the chosen defense and evidence, Hon.
Dunnavant’s decision to not request a mistake of
fact instruction was the result of reasonable trial
strategy.
13
17.
[Petitioner] presents no evidence that a reasonable
likelihood exists that the outcome of the
proceeding would have been different had counsel
requested a mistake of fact jury instruction.
18.
Hon. Dunnavant did not request a continuance
because she did not need a continuance to present
evidence that [Petitioner] was bequeathed the
premises in question in his mother’s will.
19.
[Petitioner]’s mother bequeathed two additional
properties to [Petitioner], including the address
at which the State alleged he lived, 4203 Avenue M.
20.
A continuance was not needed for [Petitioner] to
testify that he believed he had a right to possess
a firearm at that location because Applicant could
have testified about it at his trial but chose not
to.
21.
Hon. Dunnavant made a strategic decision to not
request a continuance because it was not needed and
a continuance may have resulted in the State trying
the aggravated assault case first or concurrently.
22.
Hon.
Dunnavant’s
affidavit
supported by the record.
23.
There is no credible evidence, or authority, that a
reasonable likelihood exists that the outcome of
the proceeding would have been different had
counsel requested a continuance.
24.
The indictment and jury charge alleged that
[Petitioner] had possessed a firearm away from the
premises where he lived after he had been convicted
of a felony offense.
25.
When [Petitioner] discharged his parole was
irrelevant to this case because [Petitioner] was
not charged with possessing a firearm within five
years of his release from confinement.
26.
There is no evidence, or authority, that a
reasonable likelihood exists that the outcome of
the proceeding would have been different had
counsel presented evidence as to when he discharged
his sentence.
14
is
credible
and
27.
There is no credible evidence that a reasonable
likelihood exists that the outcome of the
proceeding would have been different but for the
alleged misconduct.
(SH16 101-04, doc. 9-15 (citations to the record omitted).)
Based on its findings, and applying the Strickland standard
and relevant state law, the habeas court entered the following
legal conclusions:
17.
“It is a defense to the prosecution that the actor
through mistake formed a reasonable belief about a
matter of fact if his mistaken belief negated the
kind of culpability required for commission of the
offense.”
18.
In light of the evidence and the chosen defense,
Hon. Dunnavant’s decision to not request a mistake
of fact instruction was the result of reasonable
trial strategy.
19.
Because the risk outweighed any possible benefit
for requesting a continuance, Hon. Dunnavant’s
decision to not request a continuance was the
result of reasonable trial strategy.
20.
“(a) A person who has been convicted of a felony
commits an offense if he possesses a firearm:
(1) after conviction and before the fifth
anniversary
of
the
person’s
release
from
confinement following conviction of the felony or
the person’s release from supervision under
community
supervision,
parole,
or
mandatory
supervision, whichever date is later; or
(2) after the period described by Subdivision
(1), at any location other than the premises at
which the person lives.”
21.
Because [Petitioner] was convicted of possessing a
firearm away from the premises where he lived, when
he was discharged from confinement was irrelevant.
22.
Because
when
[Petitioner]
15
was
discharged
from
confinement is irrelevant to this case, Hon.
Dunnavant properly did not present evidence of
[Petitioner]’s prior conviction and when he was
released from parole.
23.
[Petitioner] has failed to prove that his trial
attorney’s representation fell below an objective
standard of reasonableness.
24.
A party fails to carry his burden to prove
ineffective assistance of counsel where the
probability of a different result absent the
alleged deficient conduct sufficient to undermine
confidence in the outcome is not established.
25.
“[A] court need not determine whether counsel’s
performance was deficient before examining the
prejudice suffered by the defendant as a result of
the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be
so, that course should be followed.”
26.
[Petitioner] has failed to show that there is a
reasonable probability that the outcome of the
proceeding would have been different had trial
counsel
requested
a
mistake
of
fact
jury
instruction.
27.
[Petitioner] has failed to show that there is a
reasonable probability that the outcome of the
proceeding would have been different had trial
counsel moved for a continuance.
28.
[Petitioner] has failed to show that there is a
reasonable probability that the outcome of the
proceeding would have been different had trial
counsel presented evidence as to when [Petitioner]
was discharged from confinement.
29.
[Petitioner] has failed to show that there is a
reasonable probability that, but for the alleged
acts of misconduct, the result of the proceeding
would have been different.
30.
[Petitioner] has failed to prove that he received
16
ineffective assistance of trial counsel.
(Id. at 106-08 (citations omitted).)
Petitioner fails to rebut the state court’s findings of fact
by clear-and-convincing evidence. See 28 U.S.C. § 2254(e)(1). Thus,
the findings are entitled to a presumption of correctness. Richards
v. Quarterman, 566 F.3d 553, 563-64 (5th Cir. 2009); Galvan v.
Cockrell,
293
F.3d
760,
764
(5th
Cir.
2002).
Applying
the
appropriate deference to those findings, as well as the state
courts’ legal conclusions as to the alternative defensive theory of
mistake
of
application
fact,
of
it
does
not
Strickland
appear
was
that
the
objectively
state
courts’
unreasonable.
Petitioner’s claims are refuted by the record or involve matters of
state law and strategic decisions on counsel’s part, all of which
generally do not entitle a state petitioner to federal habeas
relief. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (providing
“[w]e have repeatedly held that a state court’s interpretation of
state law . . . binds a federal court sitting in habeas corpus”);
Strickland, 460 U.S. at 689 (holding strategic decisions by counsel
are “virtually unchallengeable” and generally do not provide a
basis for post-conviction relief on the grounds of ineffective
assistance of counsel). A petitioner shoulders a heavy burden to
overcome a presumption that his counsel’s conduct is strategically
motivated and to refute the premise that “an attorney’s actions are
strongly
presumed
to
have
fallen
17
within
the
wide
range
of
reasonable professional assistance.” Messer v. Kemp, 760 F.2d 1080,
1090 (11th Cir. 1985). Petitioner has presented no evidentiary,
factual, or legal basis in this federal habeas action that could
lead the Court to conclude that the state courts unreasonably
applied the standards set forth in Strickland based on the evidence
presented in state court. 28 U.S.C. § 2254(d).
VI.
Conclusion
For the reasons discussed, the Court DENIES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Further, Federal Rule of Appellate Procedure 22 provides that
an appeal may not proceed unless a certificate of appealability is
issued under 28 U.S.C. § 2253. A certificate of appealability may
issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). “Under this standard, when a district court denies
habeas relief by rejecting constitutional claims on their merits,
‘the petitioner must demonstrate that reasonable jurists would find
the
district
court’s
assessment
of
the
constitutional
claims
debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498 (5th
Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
When
a
district
court
denies
habeas
relief
by
rejecting
constitutional claims on procedural grounds without reaching the
merits, the petitioner must show “that jurists of reason would find
it debatable whether the petition states a valid claim of the
18
denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its
procedural
ruling.”
Id.
(quoting
Slack,
529
U.S.
at
484).
Petitioner has not made a showing that reasonable jurists would
question this Court’s resolution of his constitutional claims under
his third ground or its procedural rulings as to his first and
second grounds. Therefore, a certificate of appealability should
not issue.
SIGNED February 23, 2018.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
19
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