Orozco v. Davis
Filing
20
Memorandum Opinion and Order... It is ORDERED that respondent's motion to dismiss be, and is hereby, granted and that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. It is further ORDERED that a certificate of appealability be, and is hereby, denied. (Ordered by Senior Judge John McBryde on 11/1/2018) (wxc)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FILED
IN THE UNITED STATES DISTRICT COU T NOV - 1 2018
FOR THE NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
CLERK, U.S. DISTRICT COURT
By
§
---:D""e-p""uty,..---JOSE EDUARDO OROZCO,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
§
§
§
§
§
§
§
§
§
§
§
No.
4:17-CV-557-A
MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by petitioner, Jose Eduardo Orozco, a
state prisoner incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ),
against Lorie Davis, director of TDCJ, respondent. After having
considered the pleadings, state court records, and relief sought
by petitioner, the court has concluded that the petition should
be denied.
I . BACKGROUND
On April 19, 2011, in Tarrant County, Texas, Case Nos.
1208005D and 1208006D, following a bench trial, petitioner was
convicted in absentia of possession with intent to deliver 4
grams or more but less than 200 grams of cocaine and possession
with intent to deliver more than 400 grams of methamphetamine and
sentenced to 30 years' imprisonment in Case No. 1208005D and 40
years' imprisonment and a $2000 fine in Case No. 1208006D.
(Reporter's R., vol. 3, 38.) The trial court also made an
affirmative deadly weapon finding in each case. Petitioner
appealed his convictions, but the Eighth District Court of
Appeals of Texas affirmed the trial court's judgments and the
Texas Court of Criminal Appeals refused his petition for
discretionary review.
(Ops., Nos. 08-12-00051-CR & 08-12-00052-
CR; Resp't's Answer 3.) Petitioner also filed two state habeascorpus petitions challenging his convictions, one for each
conviction, which were denied by the Texas Court of Criminal
Appeals without written order on the findings of the trial court.
(02SHR 1 2-3 & Action Taken; 03SHR 2-3 & Action Taken.) This
federal habeas petition followed.
The state appellate court summarized the facts of the case
as follows:
On June 4, 2010, a magistrate found that probable
cause existed to support the issuance of a search
warrant for a residence located at 2307 Dell Street,
Fort Worth, Texas. The magistrate's probable-cause
determination was based on the affidavit of Fort Worth
Police Officer Alfredo Dominguez.
Officer Dominguez's affidavit recited, in April
2010, he received a tip from a confidential informant
that a Hispanic male named Jose Martinez Orozco was
trafficking methamphetamine and cocaine from the Dell
Street residence. Officer Dominguez averred, during the
next two months, he conducted surveillance on the
residence, observed activity consistent with the sale
111
02SHR" refers to the record of petitioner's state habeas proceeding in
WR-83,840-02; 1'03SHR" refers to the record of his state habeas proceeding in
WR-83,840-03.
2
and distribution of illegal drugs, and used a reliable
and confidential informant to make two controlled buys,
one of cocaine and one of methamphetamine, from the
residence. Officer Dominguez stated that when he met
with the informant after each purchase, the informant
told him that the narcotics were purchased from "Jose
Orozco" while inside the residence. Officer Dominguez
further stated, after he obtained a photograph of a man
named Jose Martinez Orozco, he identified [petitioner]
as the Hispanic male he had observed exit the residence
on the date the informant purchased cocaine.
After Officer Dominguez obtained the warrant to
search the Dell Street residence for cocaine and
methamphetamine, SWAT officers executed it. Upon
entering the residence, one of the SWAT officers saw
[petitioner] throw an item out of a window. The item
recovered directly beneath that window was a baggie of
cocaine. Larger quantities of cocaine and
methamphetamine were found inside the residence.
(Ops., Nos. 08-12-00051-CR
&
08-12-00052-CR (footnote omitted).)
II. ISSUES
Petitioner raises the following grounds for relief:
(1)
(2)
he received ineffective assistance of counsel because
counsel failed to file a motion for disclosure of the
confidential informant;
(3)
he received ineffective assistance of counsel because
counsel waived (a) his right to a jury trial and (b)
his right to cross-examine witnesses without his
consent; and
(4)
(Pet.
he received ineffective assistance of counsel because
counsel failed to properly argue that he was not in
possession of a deadly weapon;
he received ineffective assistance of counsel because
counsel did not communicate to him the state's 15-year
plea offer.
6- 7 . )
3
III. RULE 5 STATEMENT
Respondent does not believe that the petition is successive
or time-barred but does believe that petitioner's claim under
(3) (a), enumerated above, is unexhausted and procedurally barred
from the court's review.
(Resp' t' s Answer 5, doc. 16.)
IV. STANDARD OF REVIEW
A
§
2254 habeas petition is governed by the heightened
standard of review provided for in 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
established 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. See id.§ 2254(d) (1)-(2);
Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is
difficult to meet and
~stops
short of imposing a complete bar on
federal court relitigation of claims already rejected in state
proceedings." See Richter, 562 U.S. at 102.
The statute further requires that federal courts give great
deference to a state court's factual findings.
See 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. A petitioner has the
4
burden of rebutting the presumption of correctness by clear and
convincing evidence. See 28 U.S.C.
§
2254(e) (1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S.
362, 399 (2000).
Additionally, when the Texas Court of Criminal Appeals, the
state's highest criminal court, denies relief on a state
habeas-corpus application without written order, typically it is
an adjudication on the merits, which is likewise entitled to this
presumption. See Richter, 562 U.S. at 100; Ex parte Torres, 943
S.W.2d 469, 472
(Tex. Crim. App. 1997). In such a situation, a
federal court "should 'look through' the unexplained decision to
the last related state-court decision providing" particular
reasons, both legal and factual,
"presume that the unexplained
decision adopted the same reasoning," and give appropriate
deference to that decision. Wilson v. Sellers, 138 S. Ct. 1188,
1191-92 (2018).
V. DISCUSSION
As an initial matter, respondent claims that petitioner's
claim (3) (a)-that counsel was ineffective by waiving petitioner's
right to a jury trial without his consent-is unexhausted and
procedurally barred.
(Resp't's Answer 16-20.) The exhaustion
requirement is satisfied when the substance of the federal habeas
claim has been fairly presented to the highest court of the state
on direct appeal or in state post-conviction proceedings. See
5
O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher v.
Texas, 169 F.3d 295, 301 (5th Cir. 1999). The exhaustion
requirement is "not satisfied if the petitioner presents new
legal theories or factual claims in his federal habeas petition."
Anderson v.
Johnson, 338 F.3d 381, 386 (5th Cir. 2003).
Having reviewed the state court records, the court agrees
that claim (3) (a) does not sufficiently correspond with any of
petitioner's ineffective-assistance claims raised in his state
habeas application. Thus, the claim raised for the first time in
his federal petition is unexhausted for purposes
"A procedural default .
§
2254 (b) (1) (A).
occurs when a prisoner fails to
exhaust available state remedies and 'the court to which the
petitioner would be required to present his claims in order to
meet the exhaustion requirement would now find the claims
procedurally barred.'" Nobles v. Johnson, 127 F. 3d 409, 420 (5th
Cir. 1997)
(citing Coleman, 501 U.S. at 735 n.1). If petitioner
presented his unexhausted claim at this time to the Texas Court
of Criminal Appeals in another state habeas application, the
court would find the claims to be procedurally barred under the
Texas abuse-of-the-writ doctrine. See TEX. CODE CRIM. PROC. ANN.
art. 11.07
§
4(1)-(2); Ex parte Whiteside, 12 S.W.3d 819, 821
(Tex. Crim. App. 2000). This doctrine is an adequate and
independent state ground for the purpose of imposing a procedural
bar on federal habeas review. See Hughes v. Quarterman, 530 F.3d
6
336, 342 (5th Cir. 2008).
Petitioner may overcome a procedural default by
demonstrating either cause and actual prejudice for the default
or a showing that he is actually innocent of the crime(s) for
which he stands convicted.
338
See Sawyer v. Whitley, 505 U.S. 333,
(1992); Ylst v. Nunnemaker, 501 U.S. 797, 801-07
Smith v. Johnson, 216 F.3d 521, 523-24
(1991);
(5th Cir. 2000).
Petitioner does not assert actual innocence. Instead, he
acknowledges that respondent correctly asserts that the claim is
unexhausted but contends that any "exhaustion or procedural
default issues should be viewed through the 'lens' of Martinez."
(Pet' r's Obj. 3, 17-19.) See Martinez v. Ryan, 566 U.S. 1 (2012)
(holding "[i]nadequate assistance of counsel at initial review
collateral proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance at
trial"). See also Trevino v. Thaler, 569 U.S. 413 (2013)
(holding
that the rule in Martinez applies in collateral challenges to
Texas convictions). The holdings in Martinez and Trevino concern
the application of the cause-and-prejudice exception, as
discussed in Coleman, to a procedural default of an
ineffective-assistance-of-trial-counsel claim in state court
where there is no state habeas counsel in the initial state
habeas proceeding or counsel in that proceeding was ineffective.
Martinez, 566 U.S. at 9; Trevino, 569 U.S. at 429.
7
Petitioner had no counsel in his initial state habeas
proceeding, thus the rule in Martinez/Trevino may excuse his
procedural default of his ineffective-assistance-of-trial-counsel
claim if he can demonstrate that the claim is "substantial." For
a claim to be substantial, a "prisoner must demonstrate that the
claim has some merit." Martinez, 566 U.S. at 14. Conversely, an
"insubstantial" claim is one that "does not have any merit" or
that is "wholly without factual support." Id. at 16.
Under the familiar Strickland standard, 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 reasonable professional assistance.
Id. at 668,
688-89. Judicial scrutiny of counsel's performance must be highly
deferential and every effort must be made to eliminate the
Id. at 689.
distorting effects of hindsight.
Petitioner's claim that counsel waived his right to a jury
trial without his consent is wholly without factual support, save
for petitioner's bald assertion. Absent evidence in the record,
8
however, a court cannot consider a habeas petitioner's bald
assertions on a critical issue in his pro se petition,
unsupported and unsubstantiated by anything else contained in the
record, to be of probative evidentiary value. See Ross v.
Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). Further, copies
of the "Status Conference" held one month before trial and signed
by petitioner, his counsel, and the state prosecutor, reflect
that it was agreed to have a trial before the court and that "all
matters preliminary to trial except as entered on the record at
the Status Conference" were waived. 2 Absent a showing of cause or
prejudice, such showing not having been demonstrated, the claim
is procedurally barred from the court's review.
As to petitioner's remaining claims that counsel was
ineffective by (1)
failing to properly argue that he was not in
possession of a deadly weapon,
(2) failing to file a motion for
disclosure of the confidential informant,
(3) (b) waiving his
right to confront witnesses without his consent, and (4) failing
to communicate the state's 15-year plea offer to him, the state
habeas court recommended denying relief based on the following
relevant factual findings and legal conclusions:
FINDINGS OF FACT
4.
Hon. Jim Shaw represented [petitioner] during the
trial proceedings.
2The copies were provided by the Tarrant County District Clerk's Office
upon the court's request.
9
5.
During closing arguments, Hon. Shaw argued as
follows:
"So he's found in a house, first time he's
been seen there, based upon the evidence, and
no showing that he had any connection to the
drugs. So notwithstanding the fact that there
were a lot of drugs there, there was, in
fact, a codefendant in this case who is
similarly charged with the case and who I
would argue was at that house.
"There is no showing that there was any
clothes in the closets that fit a strapping
young Mexican lad who was arrested. There is
no showing that he had any personal effects
there. There is no showing that he had any
papers in the house. There is no showing
about anything other than he was in the house
where drugs were found. There is no showing
that he's ever been there before, recalling
the search warrant and parts within the
affidavit are not part of the case. So it's
my position there is not any affirmative
links to him and the drugs and the guns and
whatever.
"[Petitioner] had no connecting links to the
drugs, and that's the facts of the case."
6.
Counsel properly argued that [petitioner] was not
in possession of a deadly weapon.
7.
The evidence at trial established that law
enforcement received the knowledge that
[petitioner] lived at the house of the drug bust
through the confidential informant.
8.
The confidential informant could have linked
[petitioner] to the house.
9.
Counsel's argument was there was nothing linking
[petitioner] to the house.
10.
It was reasonable trial strategy to not request
10
the identity of the confidential informant because
the informant could link [petitioner) to the
house.
11.
Counsel conveyed the fifteen year plea offer to
[petitioner). ("[T]hey made an offer of 15, which
I thought he had accepted.n)
12.
[Petitioner) absconded before he could accept the
fifteen year plea offer.
13.
[Petitioner) did not receive the benefit of the
fifteen year plea offer because he voluntarily
absented himself during trial.
Denial of Cross-Examination
14.
[Petitioner) claims he was denied his right to
cross-examine the chemist.
15.
Hon. Shaw and the State signed a Stipulation of
Testimony for the chemist, Ms. Elizabeth Van.
16.
Hon. Shaw agreed that he was waiving
[petitioner)'s right to cross-examine Ms. Van as
part of the stipulation.
17.
[Petitioner) did not sign the Stipulation of
Testimony because he had voluntarily absented
himself.
18.
Hon. Shaw discussed with [petitioner) the
Stipulation of Testimony before [petitioner)
voluntarily absented himself.
19.
Any error from [petitioner) not signing the
Stipulation of Testimony was caused by his
voluntarily absenting himself.
20.
[Petitioner] was not denied his right to
cross-examine the chemist.
CONCLUSIONS OF LAW
Ineffective Assistance of Counsel
11
3.
The two-prong test enunciated in Strickland v.
Washington applies to ineffective assistance of
counsel claims in non-capital cases. To prevail on
his claim of ineffective assistance of counsel,
the applicant must show counsel's representation
fell below an objective standard of
reasonableness, and there is a reasonable
probability the results of the proceedings would
have been different in the absence of counsel's
unprofessional errors.
4.
The Court of Criminal Appeals will presume that
trial counsel made all significant decisions in
the exercise of reasonable professional judgment.
5.
The totality of counsel's representation is viewed
in determining whether counsel was ineffective.
6.
Support for [petitioner]'s claim of ineffective
assistance of counsel must be firmly grounded in
the record.
7.
Counsel's defense that there was no evidence
linking [petitioner] to the drugs or the guns
because there was no evidence showing [petitioner]
lived at the house was the result of reasonable
trial strategy.
8.
Counsel's decision to not move to disclose the
confidential informant, because the confidential
informant could link [petitioner] to the location
of the offense, was the result of reasonable trial
strategy.
9.
Counsel properly argued [petitioner] was not in
possession of the deadly weapon.
10.
Counsel properly conveyed the fifteen year plea
offer to [petitioner].
11.
Under the doctrine of invited error, a defendant
may not create error and then submit that error as
a basis for appellate relief.
12.
"Just as the law of entrapment estops the State
from making an offense of conduct that it induced,
the law of invited error estops a party from
making an appellate error of an action it
12
induced."
13.
[Petitioner] is estopped from complaining that he
was deprived of the chance to accept the plea
of fer because he created the error by not
returning to trial.
14.
[Petitioner] has failed to prove that counsel's
representation fell below an objective standard of
reasonableness.
15.
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.
16.
"[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
ineffective 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."
17.
[Petitioner] has failed to show that there is a
reasonable probability that the outcome of the
proceeding would have been different had counsel
moved to disclose the informant.
18.
[Petitioner] has failed to show that there is a
reasonable probability that the outcome of the
proceeding would have been different had counsel
argued differently.
19.
[Petitioner] has failed to show that there is a
reasonable probability that the outcome of the
proceeding would have been different had counsel
conveyed the plea offer differently.
20.
[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 be different.
21.
[Petitioner] has failed to prove that he received
13
ineffective assistance of trial counsel.
(03SHR 52-57
(citations omitted).)
Adopting the state habeas court's findings, the Texas Court
of Criminal Appeals, in turn, denied habeas relief.
Petitioner presents no clear and convincing evidence to
rebut the state courts' factual findings. Thus, relying on the
presumptive correctness of those findings, and having
independently reviewed petitioner's claims in conjunction with
the state court records, the state courts' adjudication of
petitioner's ineffective-assistance claims is not contrary to or
an unreasonable application of Strickland. Petitioner's claims
are conclusory, with no legal and/or evidentiary basis, refuted
by the record, involve matters of state law, or involve strategic
and tactical decisions made by counsel, all of which generally do
not entitle a state petitioner to federal habeas relief. See,
e.g., Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)
(providing
"counsel has wide latitude in deciding how best to represent a
client, and deference to counsel's tactical decisions in his
closing presentation is particularly important because of the
broad range of legitimate defense strategy at that stagen);
Strickland, 460 U.S. at 689 (providing strategic decisions by
counsel are virtually unchallengeable and generally do not
provide a basis for postconviction relief on the grounds of
ineffective assistance of counsel); Young v. Dretke, 356 F.3d
14
616,
628
(5th Cir. 2004)
(providing "in our role as a federal
habeas court, we cannot review the correctness of the state
habeas court's interpretation of state law"); Green v. Johnson,
160 F.3d 1029, 1037, 1042 (5th Cir. 1998)
(providing "[m]ere
conclusory allegations in support of a claim of ineffective
assistance of counsel are insufficient to raise a constitutional
issue") .
Petitioner claims counsel was ineffective by failing to
properly argue that he was not in possession of a deadly weapon
and to "hold a more productive hearing on the issue of the
weapons." (Pet'r's Mem. 4.) Specifically, he argues that counsel
should have relied upon the United States Supreme Court's
decision in Bailey v. United States, 516 U.S. 137 (1995),
regarding the evidence necessary to show that he used or
exhibited a deadly weapon during the offenses. However,
petitioner's reliance on Bailey is misplaced. The question in
Bailey was whether evidence of the proximity and accessibility of
a firearm to drugs or drug proceeds, alone, is sufficient to
support a conviction for "use" of a firearm during and relation
to a drug trafficking offense under former 18 U.S.C. § 924(c) (1),
a federal statute. Id. at 138-39. The Supreme Court held that a
conviction for use of a firearm under former§ 924(c) (1) required
more than a showing of mere possession of proximity to drugs and
concluded that the government must show "active employment" of
15
the firearm, which includes firing or attempting to fire,
brandishing, displaying, bartering, and striking with a firearm.
Id. at 142-44, 148. The Supreme Court's holding in Bailey was a
matter of federal statutory interpretation and was not a matter
of federal constitutional law. Therefore, it is not binding on a
state court's interpretation of a state statute. The Texas Court
of Criminal Appeals did not adopt the Supreme Court's
construction of the word "use" in the federal statute when
interpreting the word "use" in the state statute. Gale v. State,
998 S.W.2d 221, 224-25
(Tex. Crim. App. 1999). A state court's
interpretation of state law is binding on a federal court sitting
in habeas corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see
also Pape v. Thaler, 645 F.3d 281 (5th Cir. 2011). Because Bailey
is not applicable, counsel was not ineffective for failing to
make a legal argument under Bailey.
Petitioner claims that counsel was ineffective by failing to
file a motion for disclosure of the confidential informant's
identity. Under state law, generally, the state has a privilege
to refuse to disclose the identity of a person who has furnished
information relating to a possible violation of the law to a law
enforcement officer. See TEX. R. Evro. 508(a). However, the
state's privilege is not absolute and does not apply in a
criminal case (1) if the informer's identity has been voluntarily
disclosed,
( 2) if the informer may be able to give testimony
16
necessary to a fair determination of guilt or innocence, or (3)
if the court is not satisfied that information was obtained from
an informer reasonably believed to be reliable. See id. 508(c). A
defendant has the threshold burden of demonstrating that the
informant's identity must be disclosed.
See Bodin v.
State, 807
S.W.2d 313, 318-19 (Tex. Crim. App. 1991). Additionally, the
informant's potential testimony must significantly aid the
defendant, and mere conjecture or supposition about possible
relevancy is insufficient. See id. In this case, the identity of
the confidential informant was not voluntarily disclosed and
petitioner fails to demonstrate that he could have satisfied the
requirements to be entitled to disclosure. Nothing in the record
indicates that the informant would have been able to give
testimony necessary to a fair determination of petitioner's
guilt. Rather, the informant's testimony would have likely been
damaging to petitioner. Accordingly, the fact that trial counsel
did not seek disclosure of the identity of the informant does not
support a claim of ineffective assistance.
Petitioner claims counsel was ineffective by waiving his
right to cross-examine the chemist regarding whether she
"actually saw the tests [of the contraband] being performed or
participated in them." (Pet'r's Mem. 7.)
Petitioner was present
at the beginning of his trial but voluntarily absented himself on
the second day of trial, during which counsel agreed to enter
17
into a stipulation as to Van's testimony. The state courts
determined that the "invited errorn doctrine estopped petitioner
from bringing the claim in state court. It is well established in
Texas criminal jurisprudence that an accused cannot invite error
and then complain of that error. See Capistran v. State, 759
S.W.2d 121, 124 (Tex. Crim. App. 1982). Although respondent does
not raise the issue, the Fifth Circuit has held that the "invited
error" doctrine qualifies as a state procedural bar to federal
habeas review. Druery v. Thaler, 647 F.3d 535, 545 (5th Cir.
2011),
cert. denied, 565 U.S. 1207 (2012).
As previously noted, petitioner had no counsel in his
initial state habeas proceeding, thus the rule in
Martinez/Trevino may excuse his procedural default of his
ineffective-assistance-of-trial-counsel claim if he can
demonstrate that the claim is "substantial." See Martinez, 566
U.S. at 14. Petitioner fails to do so. He does not demonstrate
that counsel was deficient for not questioning the chemist or
that the outcome of his trial would have been different had he
done so. Absent a showing of cause and prejudice, such showing
not having been demonstrated, the claim is procedurally barred
from this court's review.
Finally, petitioner claims counsel was ineffective by
failing to communicate the state's 15-year plea offer to him.
This claim is conclusory, and arguably refuted by the record, and
18
does not raise a constitutional issue in a federal habeas
proceeding. Miller v. Johnson, 200 F.3d 274, 282
(5th Cir. 2000).
For the reasons discussed herein,
It is ORDERED that respondent's motion to dismiss be, and is
hereby, granted and that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.
§
2254 be, and is hereby,
denied. It is further ORDERED that a certificate of appealability
be, and is hereby, denied.
SIGNED November
l ,
-~--
2018.
19
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