Andrew v. Stephens
Filing
13
MEMORANDUM OPINION AND ORDER 10 MOTION for Summary Judgment with Brief in Support, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KENNETH GERHART ANDREW,
TDCJ #1423640,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
§
§
§
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-lS-1017
MEMORANDUM OPINION AND ORDER
The petitioner, Kenneth Gerhart Andrew, seeks a writ of habeas
corpus under 28 U.S.C.
§
2254 to challenge a state court conviction
that has resulted in his incarceration by the Texas Department of
Criminal Justice
-
Correctional Institutions Division
("TDCJ").
William Stephens has filed Respondent's Motion for Summary Judgment
with Brief in Support ("Respondent's MSJ")
(Docket Entry No. 10),
along with a copy of the state court record (Docket Entry No.7) .
Andrew has filed Petitioner's Response to Respondent's Motion for
Summary Judgment ("Petitioner's Response")
(Docket Entry No. 11).
After considering all of the pleadings, the state court record, and
the applicable law,
the court will grant the respondent's motion
and dismiss this action for the reasons explained below.
I.
Background
A grand jury in Harris County, Texas, returned an indictment
against
Andrew
in
cause
aggravated
sexual
indictment
was
additional
paragraphs,
number
assault
enhanced
of
for
a
child
younger
purposes
alleging
charging
1058171,
that
of
than
punishment
Andrew
had
him
with
14.1
The
with
prior
two
felony
convictions for unauthorized use of a motor vehicle and theft.2
A
jury found Andrew guilty as charged of aggravated sexual assault of
a child. 3
were
"true"
The jury also found that the enhancement allegations
and sentenced Andrew to 35 years'
imprisonment in
TDCJ. 4
On direct appeal Andrew argued that the trial court erred in
instructing
the
jury
and
that
the
insufficient to support the verdict.
evidence
was
factually
The intermediate court of
appeals rejected Andrew's claims and affirmed the conviction after
summarizing the facts presented at trial:
One evening in December 2003, the complainant - who
was twelve years old at the time - was at home eating
dinner with her sister and brothers.
Her adoptive
mother, Ruby Morris, was in the hospital at that time
with a heart ailment.
Her adoptive father had died
several years earlier.
According to complainant's
testimony, the appellant, her mother's second husband,
lIndictment, Docket Entry No. 7-7, p. 16.
2Id.
3Judgment of Conviction by Jury, Docket Entry No. 7-7, p. 105.
-2-
came home from work between 6:30 p.m. and 7:00 p.m. The
appellant walked through the dining area and asked the
complainant to come into his bedroom.
The complainant
then followed appellant into his bedroom. The complainant testified that appellant placed his keys on a
nightstand, picked up a pillow, and then closed the
bedroom door, placing the pillow against the crack under
the door. The appellant then turned out the lights and
locked the deadbolt lock on the bedroom door. According
to the complainant, appellant then walked across the
dimly lit room, and sat down on a rocking chair.
The
complainant heard what she described as a "zipper" sound
just before appellant sat down. Then, according to the
complainant, appellant asked her to get on her knees and
perform oral sex on him.
At trial, the complainant
described how she walked across the room, knelt before
the appellant, and then took his penis into her mouth.
The complainant testified that, after several minutes,
she got up and went to leave the room.
At that point,
appellant told her not to tell anyone of the encounter.
She then unlocked and opened the bedroom door before
walking upstairs.
The complainant further testified that a few months
later she told her niece of her encounter with the
appellant. [5]
The complainant said that, despite the
encouragement of her niece to tell someone about the
incident, her fear of the appellant kept her from wanting
to tell anyone else. Nonetheless, the niece went to the
complainant's mother and told her of the incident.
Later, the complainant herself discussed the incident
wi th her mother.
The complainant's mother then confronted appellant on the matter, and he denied it.
Almost two years later, and after her mother had died,
the complainant told her older sister of the incident.
The older sister called the police to report the
incident, and an investigation ensued.
Andrew v.
State, No.
14-07-00241-CR,
2009 WL 36443, at *1
App. - Houston [14th Dist.] Jan. 8, 2009)
[renumbered]
in original).
(unpublished)
(Tex.
(footnote
The Texas Court of Criminal Appeals
5The complainant's niece, the daughter of complainant's
much-older adoptive sister, is actually older than the complainant.
-3-
refused Andrew's petition for discretionary review on November 19,
2014, making his conviction final. 6
Andrew has now filed a
relief under 28 U.S.C.
§
Petition for federal habeas corpus
2254, raising the same claims that were
rejected on direct appeal. 7 Respondent's MSJ argues that Andrew is
not entitled to relief under the habeas corpus standard of review. s
II.
Standard of Review
Because the petitioner's claims were adjudicated on the merits
in
state
court,
his
petition
is
subj ect
to
review
Antiterrorism and Effective Death Penalty Act of 1996
codified at 28 U.S.C.
corpus
court
may
§
not
2254(d).
grant
adjudication
"resulted in a
involved
unreasonable
Federal
Uni ted
an
law,
as
States [ . ]
28
unless
the
decision that was
application
U.S.C.
by
§
the
("AEDPA"),
Under the AEDPA a federal habeas
relief
determined
under
the
of,
court's
contrary to,
clearly
Supreme
2254 (d) (1) .
state
"A
or
established
Court
state
of
the
court's
decision is deemed contrary to clearly established federal law if
it reaches a
legal conclusion in direct conflict with a prior
6In a state habeas proceeding, Andrew sought and was granted
leave to file an out-of-time petition for discretionary review.
See Ex parte Andrew, Writ No. 81,361-02, 2014 WL 5370022 (Tex.
Crim. App. 2014).
Andrew filed no other petition or application
for state habeas relief.
7Petition for a Writ of Habeas Corpus By a Person in State
Custody ("Petition"), Docket Entry No.1, p. 6.
8Docket Entry No. 10.
-4-
decision
of
the
Supreme
Court
or
if
it
reaches
a
different
conclusion than the Supreme Court on materially indistinguishable
facts."
Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)
(citations omitted); see also Williams v. Taylor, 120 S. Ct. 1495,
1519-20
(2000).
To constitute an "unreasonable application of"
clearly established federal law, a state court's holding "must be
objectively unreasonable, not merely wrong; even clear error will
not
suffice."
Woods
(quoting White v.
v.
Donald,
Woodall,
satisfy this high bar,
134 S.
135
S.
Ct.
Ct.
1372,
1697,
1702
1376
(2015)
(2014))
"To
a habeas petitioner is required to
'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
possibili ty for fairminded disagreement. '"
Id. (quoting Harrington
v. Richter, 131 S. Ct. 770, 786-87 (2011)).
The
AEDPA
"imposes
a
'highly
deferential
[which]
evaluating state-court rulings,
intentionally
"difficult
(citations omitted)
to meet"
because
for
'demands that state-
court decisions be given the benefit of the doubt."
130 S. Ct. 1855, 1862 (2010)
standard
it
Renico v. Lett,
This standard is
was
meant
to bar
relitigation of claims already rejected in state proceedings and to
preserve federal habeas review as "a 'guard against extreme malfuncions in the state criminal justice systems,' not a substitute for
ordinary error correction through appeal."
Richter, 131 S. Ct. at
786 (quoting Jackson v. Virginia, 99 S. Ct. 2781, 2796 n.5
(1979)
(Stevens, J., concurring)); see also White, 134 S. Ct. at 1702.
-5-
A
state
court's
factual
determinations
findings
§
to
be
with
2254(e) (1).
correct
"clear
unless
II
and
the
petitioner
convincing
entitled
to
Findings of fact are
deference on federal habeas corpus review.
"presumed
are
evidence.
rebuts
28
II
those
U.S.C.
This presumption of correctness extends not only to
express factual findings, but also to the state court's implicit
findings.
2006)
See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir.
(citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005)
Young v. Dretke, 356 F.3d 616, 629
presents a question of fact,
(5th Cir. 2004)).
j
If a claim
a petitioner cannot obtain federal
habeas relief unless he shows that the state court's denial of
relief "was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
U.S.C.
§
2254(d)(2).
A federal
habeas
corpus
court
II
28
"may not
characterize these state-court factual determinations as unreasonable 'merely because [it] would have reached a different conclusion
in the first instance. '"
(2015)
(quoting
"Instead,
§
Wood
v.
Brumfield v. Cain, 135 S. Ct. 2269, 2277
Allen,
130
S.
841,
849
(2010)).
2254(d) (2) requires that [a federal court] accord the
state trial court substantial deference."
III.
A.
Ct.
Id.
Discussion
Sufficiency of the Evidence
Andrew argues that there was factually insufficient evidence
to support his conviction because the complainant testified that
(1) he did not touch her during the incidentj and (2) she learned
-6-
about
oral
sex
from
a
magazine. 9
The
respondent
argues
that
Andrew's challenge to the factual sufficiency of the evidence must
be denied because it is not cognizable on federal habeas corpus
review. 10
Alternatively,
the
respondent
argues
that
Andrew's
challenge to the sufficiency of the evidence must be denied because
it lacks merit for the same reasons articulated by the state court
of appeals. ll
1.
The Claim is Not Cognizable
The intermediate court of appeals rejected Andrew's challenge
to
the
factual
complainant's
sufficiency of
testimony
the
satisfied
evidence,
the
finding
elements
of
the
that
charged
offense:
A person commits aggravated sexual assault of a
child if he intentionally and knowingly causes the
penetration of the mouth of the complainant with his
sexual organ when the complainant is a child younger than
fourteen years of age and not the person's spouse. See
Tex. Penal Code Ann. § 22.021(a) (1) (B) (ii),
(2) (B)
(Vernon Supp. 2008).
The trial transcript reveals that, during her
testimony,
the complainant described the specific
circumstances of the incident four times in varying
levels of detail.
The complainant testified to the
following: appellant instructed her to perform oral sex
on himj appellant opened his trousers, making his penis
available to herj complainant put appellant's penis into
9Petition, Docket Entry No.1, p. 6.
10Respondent's MSJ, Docket Entry No. 10, pp. 10-11.
llId. at 11-18.
-7-
the
her mouth; and complainant was twelve years old at the
time. The complainant's testimony sufficiently described
acts which could satisfy the elements of the charged
offense. See Tex. Penal Code Ann. § 22.021(a) (1) (B) (ii),
(a) (2) (B) .
Appellant argues that the complainant I s
descriptions of these acts defy believability. However,
complainant was subjected to vigorous cross-examination
by appellant's trial counsel. As a result, appellant had
the opportunity to expose any credibility issues at
trial, as well as any motives for the complainant I s
testimony.
Andrew v. State, No. 14-07-00241-CR, 2009 WL 36443, at **3-4 (Tex.
App. - Houston [14th Dist. Jan. 8,
2009, pet. ref'd).
Affording
the requisite deference to the jury's credibility determinations,
the
court
of
appeals
found
that
the
evidence
was
factually
sufficient to support the guilty verdict under the standard of
review found in Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.
App. 2006)
As
Andrew, 2009 WL 36443, at *4.
the
respondent
correctly
notes,
the
Texas
factual-sufficiency standard of review is based on state law.
See
Watson, 204 S.W.3d at 413-17 (distinguishing legal sufficiency from
factual-sufficiency review).
A federal habeas court does not sit
as a super state supreme court for review of issues decided by
state courts on state law grounds.
697, 700 (5th Cir. 1986).
§
tional
the
Estelle v.
infected
McGuire,
112
786 F.2d
A federal habeas corpus court reviewing
a petition under 28 U.S.C.
violation
Smith v. McCotter,
S.
2254 asks only whether a constitupetitioner's
Ct.
475,
480
Collins, 991 F.2d 1218, 1223 (5th Cir. 1993)
state
(1991);
trial.
See
Pemberton v.
Because a challenge
to the factual sufficiency of the evidence does not implicate a
-8-
constitutional issue, federal habeas corpus review is unavailable
for this claim.
2.
The Claim Lacks Merit
Alternatively,
the evidence presented during Andrew's trial
was clearly sufficient to support the jury's guilty verdict.
On
habeas corpus review of a state court conviction challenges to the
sufficiency of the evidence are governed by Jackson v. Virginia, 99
S. Ct. 2781 (1979), which reflects the federal constitutional due
process standard. 12
Cir.
2002).
See Woods v. Cockrell, 307 F.3d 353, 358 (5th
This standard requires only that a reviewing court
determine "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found
the essential elements of
doubt."
the
crime beyond a
reasonable
Jackson, 99 S. Ct. at 2789 (emphasis in original).
According
to
the
trial
transcript,
the
complainant
gave
detailed testimony about how Andrew coerced her to perform oral sex
on him when she was younger than 14 years of age. 13
The state court
of appeals considered all of the evidence and concluded that the
complainant's testimony was sufficient to satisfy every element of
12"[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged."
United States v. Davis, 735 F.3d 194, 198 (5th Cir. 2013) (quoting
In re Winship, 90 S. Ct. 1068, 1073 (1970)).
13Court
pp. 132-34.
Reporter's
Record,
vol.
-9-
4,
Docket
Entry
No.
7-8,
the
charged
offense
and
to
support
Andrew's
conviction
aggravated sexual assault of a child under the age of 14.
2 0 0 9 WL
3 644 3 ,
at
**3 - 4 .
Where
a
state
appellate
for
Andrew,
court
has
reviewed the sufficiency of the evidence, that court's opinion is
entitled to "great weight."
(5th Cir. 1985)
Parker v. Procunier, 763 F.2d 665, 666
(citation omitted)
998 F.2d 269, 276 (5th Cir. 1993)
has
conducted a
thoughtful
i
see also Callins v. Collins,
("Where a state appellate court
review of
the
evidence
determination is entitled to great deference").
its
This court's own
review of the evidence leads it to conclude that a rational trier
of fact could have found the essential elements of the offense
beyond a reasonable doubt.
Andrew argues
See Jackson, 99 S. Ct. at 2789.
that the complainant should not be believed
because she "never looked" at his "private area" and could not have
known "what she supposedly put in her mouth.
"14
To the extent that
Andrew asks this court to re-weigh the evidence and decide if the
jury's decision was correct, this type of inquiry is "beyond the
scope of review" permitted under the Jackson standard.
v. Delo, 115 S. Ct. 851, 868
(1995)
See Schlup
(discussing the standard for
challenges to the legal sufficiency of the evidence under Jackson) .
A federal habeas corpus court may not substitute its view of the
evidence for that of the fact-finder.
1059, 1062 (5th Cir. 1995)
See Weeks v. Scott, 55 F.3d
(citation omitted).
Under the Jackson
14Petitioner's Response, Docket Entry No. 11, pp. 3-4.
-10-
standard, "[a]ll credibility choices and conflicting inferences are
to be resolved in favor of the verdict."
F.3d 691, 695 (5th Cir. 2005)
Ramirez v. Dretke, 398
(citation omitted).
Viewing all of
the evidence under the deferential standard that applies on federal
habeas review, Andrew has not shown that the state court's decision
was objectively unreasonable or that he is entitled to relief under
Jackson.
Accordingly,
his challenge to the sufficiency of the
evidence will be denied.
B.
Erroneous Jury Instructions
Andrew contends that the trial court erred by instructing the
jury to determine guilt or innocence during the initial phase of
his bifurcated trial, effectively reducing the State's burden of
proof. 15
The respondent argues that this claim is without merit for
the same reasons articulated by the state court of appeals. 16
The propriety of jury instructions in a state criminal trial
presents an issue of state law and,
charge
does
relief.
not
generally provide
See McGuire,
112 S.
as such,
a
basis
Ct. at 482.
error in the jury
for
federal
habeas
Federal habeas corpus
review of state court jury instructions does not concern "whether
there was prejudice to the [petitioner], or whether state law was
violated,
but
whether
there
was
prejudice
of
15Peti tion, Docket Entry No.1, p. 6.
16Respondent's MSJ, Docket Entry No. 10, p. 18.
-11-
constitutional
magnitude."
1986).
"by
Sullivan v. Blackburn,
804 F.2d 885,
887
(5th Cir.
The relevant inquiry is whether the erroneous instruction
itself
so
infected
the
entire
conviction violates due process."
quoting Cupp v.
Naughten,
94 S.
trial
that
McGuire,
Ct.
396,
the
112 S.
400
resulting
Ct.
(1973);
Henderson v. Kibbe, 97 S. Ct. 1730, 1736-37 (1977)
at 482
see also
(same).
The state court of appeals considered Andrew's claim and found
no error in the jury instructions:
Appellant's first and second issues on appeal
involve the jury charge. Appellant claims that the trial
court erroneously charged the jury when it instructed the
jury to "determine whether Appellant was guilty or
innocent. "
Appellant asserts that this instruction
shifted the burden of proof at trial from the State to
appellant.
Specifically, appellant objects to the
following paragraph of the jury charge:
Your sole duty at this time is to determine
the guilt or innocence of the defendant under
the indictment in this cause and restrict your
deliberations solely to the issue of guilt or
innocence of the defendant.
An appellate court's first duty in evaluating a jury
charge issue is to determine whether error exists.
Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.
2003); Lee v. State, No. 14-06-00208-CR, 2007 WL 2183111,
at *2 (Tex. App. - Houston [14th Dist.] July 31, 2007,
pet. ref'd) (mem. op., not designated for publication).
Then, if error is found, the appellate court should
analyze that error for harm.
Middleton, 125 S.W.3d at
453; Lee, 2007 WL 2183111, at *2. We review the alleged
error in the charge by looking to the entire charge, the
state of the evidence, the arguments of counsel, and any
other relevant information contained in the record.
Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App.
2006); Barnes v. State, 855 S.W.2d 173, 175 (Tex. App. Houston [14th Dist.] 1993, pet. ref'd).
-12-
In the case before us, the jury charge stated no
less than six times that, in order to convict the
appellant, his guilt must be proven beyond a reasonable
doubt.
This point was amplified for the jury when
appellant's own counsel stated during closing argument,
"And you'll see in the jury charge over and over again
that the burden of proof rests with the State and it
never shifts to the defendant."
Finally, the charge
expressly states that the appellant was not required to
prove anything at all.
The statement to which the appellant objects was the
next-to-the-Iast paragraph of a six-page jury charge.
The language at issue merely conforms to the statutory
requirement of Texas Code of Criminal Procedure art.
37.07, section 2(a) that, in a felony trial, the judge
first must submit the guilt or innocence issue to the
jury before authorizing any consideration of punishment.
See Act of May 29, 2005, 79th Leg., R.S., ch. 660, § 1,
2005 Tex. Gen. Laws 1641, amended by Act of May 18, 2007,
80th Leg., R.S., ch. 593, §§ 3.14 & 3.15, 2007 Tex. Gen.
Laws 1120, 1133 (current version at Tex. Code Crim. Proc.
Ann. art. 37.07, § 2(a) (VernonSupp. 2008)).[]
This court has declined to find error in similar
jury instructions before, and we do so again in this
case. See Barnes, 855 S.W.2d at 175 (instruction telling
jurors that their "sole duty at this time is to determine
the guilt or innocence of the defendant under the
indictment"
was appropriate,
in light of state's
bifurcated submission) i Avila v. State, 15 S.W.3d 568,
576-77 (Tex. App. - Houston [14th Dist.] 2000, no pet.)
(jury charge restricting deliberations "solely to the
guilt
or
innocence
of
the
defendant"
did
not
impermissibly place burden on defendant to prove his
innocence).
"As demonstrated by an examination of the
entire charge which instructs the jury that the defendant
did not have to prove his innocence, the burden of proof
for the State was not changed by the challenged language
in the charge, and no burden was placed on appellant to
prove his innocence."
Avila, 15 S.W.3d at 576-77.
Consequently, it was not error for the trial court to
submit a charge to the jury instructing them to restrict
their deliberations to the guilt or innocence of the
defendant. See id. at 577. Appellant's first and second
issues are overruled.
Andrew v. State, 2009 WL 36443 at *2 (footnote omitted) .
-13-
The jury instruction that Andrew challenges is consistent with
Texas law, which provides that all felony cases tried before a jury
are bifurcated, with a separate submission on the issue of guilt or
innocence of the defendant on the offense charged followed,
necessary, by a submission on the issue of punishment.
Code Crim. Proc. art. 37.07,
in their entirety,
it
is
§
See Tex.
Reading the jury instructions
2(a)
clear
if
that
the
trial
judge properly
instructed the jury that the State had to prove guilt beyond a
reasonable
doubt
and
that
the
defendant
was
presumed
to
be
innocent. 17
In addition, defense counsel emphasized during closing
argument that "the burden of proof rests with the State and never
shifts to the defendant. ,,18
Based on this record, Andrew fails to
demonstrate that the jury was instructed in error or that his trial
was so fundamentally flawed that it violated due process. 19
Andrew
does not otherwise show that the state court's adjudication of this
claim
was
objectively
Accordingly,
unreasonable.
he
is
not
entitled to relief on this claim.
17Jury Instructions, Docket Entry No. 7-7, pp. 90-95.
18Court
p. 55.
Reporter's
Record,
vol.
6,
Docket
Entry No.
7-10,
19Even assuming there was an error, Andrew does not demonstrate
that the error had a "substantial and injurious effect or
influence" on the jury's verdict. Fry v. Pliler, 127 S. Ct. 2321,
2328 (2007) (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1722
(1993) ) .
Under these circumstances, any error is considered
harmless.
See Garcia, 454 F. 3d at 449.
For this additional
reason, Andrew's claim concerning the propriety of his jury
instructions must be denied.
-14-
Because Andrew has
failed to establish a
valid claim for
relief, the Respondent's MSJ will be granted and the Petition will
be denied.
IV.
The
federal
Certificate of Appealability
habeas
corpus Petition filed
in this case
is
governed by the Antiterrorism and Effective Death Penalty Act (the
"AEDPA"), codified as amended at 28 U.S.C.
§
a
before
certificate
proceed.
1997)
§
of
appealability
to
issue
2253, which requires
an
appeal
See Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir.
(noting that actions filed under either 28 U.S.C.
2255
may
require
a
certificate
of
appealability).
§
2254 or
"This
is
a
jurisdictional prerequisite because the COA statute mandates that
, [u] nless
a
circuit
appealability,
appeals.
(2003)
an
"'
justice or
appeal
may
judge
not
Miller-El v.
(citing 28 U.S.C.
§
issues
be
a
taken
to
Cockrell,
2253 (c) (1)).
123 S.
certificate of
the
Ct.
court
1029,
of
1039
Rule 11 of the Rules
Governing Section 2254 Cases requires a district court to issue or
deny a certificate of appealability when entering a final order
that is adverse to the petitioner.
A certificate of
petitioner
makes
"a
appealability will
substantial
constitutional right," 28 U.S.C.
showing
§
not
issue
of
the
2253 (c) (2),
unless
denial
of
the
a
which requires a
petitioner to demonstrate "that reasonable jurists would find the
district court's assessment of the constitutional claims debatable
or wrong.
II
Tennard v.
Dretke,
-15-
124
S.
Ct.
2562,
2565
(2004)
(quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
Under
the controlling standard this requires a petitioner to show "that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or
that
the
issues
presented
encouragement to proceed further.'"
Where
denial
of
relief
is
'adequate
were
to
deserve
Miller-EI, 123 S. Ct. at 1039.
based
on
procedural
grounds,
the
petitioner must show not only that "jurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a
constitutional right,"
but also that
they
"would find it
debatable whether the district court was correct in its procedural
ruling."
Slack, 120 S. Ct. at 1604.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
Alexander v.
Johnson,
211 F.3d 895,
898
(5th Cir.
2000).
See
After
careful review of the pleadings and the applicable law, the court
concludes that reasonable jurists would not find the assessment of
the
constitutional
claims
debatable
or
wrong.
Because
the
petitioner does not allege facts showing that his claims could be
resolved in a different manner, a certificate of appealability will
not issue in this case.
v.
Conclusion and Order
The court ORDERS as follows:
1.
Respondent's Motion for Summary Judgment
Entry No. 10) is GRANTED.
-16-
(Docket
2.
Kenneth Gerhart Andrew's Petition for a Writ of
Habeas Corpus By a Person in State Custody (Docket
Entry No.1) is DENIED.
3.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, this 17th day of September, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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