Johnson v. Davis
Filing
11
MEMORANDUM OPINION AND ORDER. Signed by Chief Judge Orlando L. Garcia. (mgr)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
FILED
APR 2 3 2018
CLERK
U.S.
0ISTp
TO
ALEXANDER WILLIAM JOHNSON,
TDCJ No. 1726073,
COURT
§
§
§
Petitioner,
§
§
V.
§
SA-1 7-CV-00955-OLG
§
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
§
§
§
§
Respondent.
§
MEMORANDUM OPINION AND ORDER
Alexander Johnson, an inmate in the custody of the Texas Department of Criminal
Justice-Correctional Institution's Division, has filed a counseled application for a writ of habeas
corpus, pursuant to 28 U.S.C.
§
2254, challenging his conviction on one count of murder. (ECF
No. 1). As required by Rule 4 of the Rules Governing Section 2254 Cases, the Court conducted a
preliminary review of the petition. Having considered the habeas petition (ECF No. 1),
Respondent's Answer (ECF No. 7), Petitioner's Reply (ECF No. 10), the record (ECF No. 8),
and applicable law, the Court finds the petition should be DENIED. Petitioner is also denied a
certificate of appealability.
Background
A grand jury indictment returned July 21, 2010, charged Petitioner with murder, alleging
the use of a deadly weapon. (ECF No. 8-6 at 12). Petitioner testified at his trial in the 186th
District Court of Bexar County, Texas. The Fourth Court of Appeals summarized his testimony
as follows:
During the guilt-innocence phase of trial, appellant testified on his own
behalf. He said he and Randi Flores both worked for University Health System.
Appellant said he and Randi were friends and that he had feelings for her. When
he was told she was dating someone else, he was "bothered," but not upset. In the
evening of May 13, 2010, appellant drove to an apartment complex to see Randi.
While in the parking lot of the complex, he asked Randi if she was "with Andy
[Vela]' now," she replied "yes," and appellant said "okay" and then drove away.
At some point in the evening, appellant drove to another apartment in
search of some of his belongings. . . . A few hours later, he returned to the
apartments where he had earlier spoken to Randi to meet with Randi's mother
who said she had some of his belongings.
While waiting in his car for Randi's mother, he saw a truck and two cars
full of people and he thought to himself, "Something like this is not good. . . . Be
careful." Appellant said Josue [the victim] walked up to appellant's car and asked
"What the, 'blank,' are you doing? What the F are you doing back here?"
Appellant said Josue had his hands in his pockets as he was walking, as if he were
holding his pants up under his shirt. Appellant said he asked Josue if he had his
"stuff," to which Josue replied "Yeah, I got something for you," and Josue pulled
out a gun. Appellant said he then reached for his gun and started firing, and then
he drove away. Appellant could not remember how many times he fired, and he
said he was terrified. Appellant was arrested at approximately 3:00 a.m. the next
morning. On cross-examination, appellant said he knew Josue and that Josue was
a "good guy," but "if he wouldn't have did what he did, then I would never have
done that." Appellant said he shot Josue because Josue pointed a gun at him and
he felt justified in shooting Josue because he believed his own life was in danger.
Johnson
v.
State,
No.
04-11-00461-CR, 2013 WL 345006, at *2 (Tex.
App.San Antonio 2013,
pet. ref'd).
Several witnesses testified that Randi was visiting with friends in the parking lot of the
apartment complex when Petitioner drove into the parking lot around 10:30 p.m. These
individuals knew the victim, Randi, and Petitioner, and testified under subpoena as State's
witnesses.2
(ECF No. 8-11 at 44, 71, 109). These witnesses testified they observed Josue walk
towards them in the parking lot as Petitioner drove into the parking lot. They all testified that, as
'Andy Vela was the victim's roommate. (ECF No. 8-1 1 at 176-77).
Although Randi was sworn as a witness when the Rule was invoked, (ECF No. 8-11 at
4), she did not testif' at Petitioner's trial.
2
2
Petitioner stopped his vehicle near them, Josue walked toward the driver's side of the vehicle and
asked Petitioner "What are you doing?" or "Do you need something?" or "Can I help you?"
(ECF No. 8-11 at 55, 79, 120). They testified that immediately afterward they heard at least four
gunshots, and witnessed Petitioner speed away in his vehicle. The State subpoenaed the
testimony of Andy Vela and Valerie Ingorvaia, who testified they were with the victim in Ms.
Ingorvaia's apartment just prior to the shooting. (ECF No. 8-11 at 132, 143-44, 183-84).
Although they did not witness the shooting, Mr. Vela and Ms. Ingorvaia heard the shots and
rushed to where Josue was lying in the parking lot. (ECF No. 8-11 at 144, 184). These
two
witnesses testified Josue named Petitioner as the person who shot him, and then died. (ECF No.
8-11 at 147-48, 187). On cross-examination defense counsel highlighted
inconsistencies in the
State's witnesses' statements, and elicited testimony from the medical examiner that at least
one
of the gunshots would have immediately rendered Josue unconscious and unable to speak. (ECF
No. 8-12 at 72-73).
The jury was instructed on murder and self-defense. (ECF No. 8-6 at 144-55). The jury
found Petitioner guilty of murder, and the trial court imposed a sentence of life
imprisonment.
(ECF No. 8-6 at 156, 169). Petitioner was appointed appellate counsel, who did not file
a motion
for a new trial. (ECF No. 7 at 3).
See also Johnson,
2013 WL 345006 at *5 n.1.
Petitioner appealed, asserting he was entitled to a new sentencing hearing because the
trial court was not an impartial adjudicator. (ECF No. 8-1). The Fourth Court of
Appeals
affirmed the trial court's judgment. Johnson, 2013 WL 345006, at 5.
Petitioner, through counsel, sought a state writ of habeas corpus, asserting he was denied
his right to a public trial because the public was excluded from the courtroom during voir
dire
and because he was denied his right to the effective assistance of trial and appellate
counsel.
3
(ECF No. 8-19 at 10, 12-14). Petitioner asserted trial counsel was ineffective for failing to object
to the "exclusion of the public during jury selection and by failing to interview and call as a
witness at trial Jasmine Salinas who could have contradicted Andy Vela's testimony that Josue
did not arm himself prior to confronting Alex." (ECF No. 8-19 at 39). He alleged appellate
counsel's performance was deficient because counsel failed to file a motion for a new trial
regarding the improper exclusion of the public during jury selection. (ECF No. 8-19 at 40). The
state habeas trial court made findings of fact and conclusions of law, and recommended the writ
be denied. (ECF No. 8-19 at 184-90). The Court of Criminal Appeals denied the writ on the
findings of the trial court. (ECF No. 8-17).
In this federal habeas action Petitioner asserts he was denied his right to a public trial.
(ECF No.
1
at 7; ECF No. 6 at 12-26). He further alleges he was denied the effective assistance
of trial and appellate counsel. (ECF No. 6 at 26-39). He also contends "[t]he state habeas court's
finding that the courtroom was not closed to the public during jury selection is an unreasonable
determination of the facts," and that "[t]he state habeas court's finding that the defense
adequately investigated this case and that several witnesses, who stated they were available to
testify at trial and were not interviewed by the defense, were not available at the time of trial is
an unreasonable determination of the facts." (ECF No. 6 at 42). Respondent allows the petition is
timely and not successive, and that Petitioner exhausted his federal habeas claims in the state
courts. (ECF No. 7 at 5).
4
Analysis
I.
Standard of Review
Review of State Court Adjudications
A.
Petitioner's habeas petition is governed by the heightened standard of review provided by
the Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified at 28 U.S.C.
Under
§
§
2254.
2254(d), a petitioner may not obtain federal habeas corpus relief on any claim that was
adjudicated on the merits in state court proceedings, unless the adjudication of that claim either
"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 resulted in
a decision based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding. Brown
v.
Payton, 544 U.S. 133, 141 (2005). A state court's
findings of fact are presumed to be correct unless the petitioner can rebut the findings of fact
through clear and convincing evidence. 28 U.S.C.
§
2254(e)(l); Valdez
v.
Cockrell, 274 F.3d
941, 949 (5th Cir. 2001). This intentionally difficult standard stops just short of imposing a
complete bar on federal court relitigation of claims already rejected in state proceedings.
Harrington v. Richter, 562 U.S. 86, 102 (2011).
A federal habeas court's inquiry into unreasonableness should always be objective rather
than subjective, with a focus on whether the state court's application of clearly established
federal law was "objectively unreasonable," and not whether it was incorrect or erroneous.
McDaniel
v.
Brown, 558 U.S. 120, 132-33 (2010); Wiggins
v.
Smith, 539 U.S. 510, 520-21
(2003). As long as "fairminded jurists could disagree" on the correctness of the state court's
decision, the state court's determination that a claim lacks merit precludes federal habeas relief.
Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
5
B.
Review of Sixth Amendment Claims
The Court reviews Sixth Amendment claims concerning the alleged ineffective assistance
of counsel under the two-prong test established in Strickland
v.
Washington, 466 U.S. 668
(1984). To succeed on a Strickland claim, a petitioner must demonstrate counsel's performance
was deficient and this deficiency prejudiced his defense. Id. at 687-88, 690. The Supreme Court
has held that "[s]urmounting Strickland's high bar is never an easy task." Padilla
v.
Kentucky,
559 U.S. 356, 371 (2010).
When determining whether counsel performed deficiently, courts "must be highly
deferential" to counsel's conduct, and a petitioner must show that counsel's performance fell
beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 687-89.
Counsel is "strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." Burt v. Titlow, 134 S. Ct. 10, 17
(2013) (quoting Strickland, 466 U.S. at 690). Accordingly, there is a strong presumption that an
alleged deficiency "falls within the wide range of reasonable professional assistance." Strickland,
466 U.S. at 689). To demonstrate prejudice, a petitioner "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." Id. at 694.
A Strickland claim fails if the petitioner cannot establish either deficient performance or
prejudice and, accordingly, the Court need not evaluate both prongs of the test
if the petitioner
makes an insufficient showing as to either performance or prejudice. Id. at 697; Blanton
v.
Quarterman, 543 F.3d 230, 235-36 (5th Cir. 2008). A habeas petitioner has the burden of
proving both prongs of the Strickland test. Rogers
v.
Quarterman, 555 F.3d 483, 489 (5th Cir.
2009); Blanton, 543 F.3d at 235.
II.
Merits
A.
Public Trial
Petitioner contends the trial court, Judge Herr, denied him a public trial. (ECF No. 6
at 12). He alleges members of the public were present prior to voir dire, but were "forced by the
bailiffs to leave the courtroom before the venire panel entered the courtroom." (ECF No. 12
at 12, 25). Petitioner raised this claim in his state habeas action, and the Court of Criminal
Appeals denied the claim on the findings of the habeas trial court, Judge Moore.
In an affidavit in the state habeas action, a Ms. Johnson stated she was present in the
courtroom on the first day of trial, and that the bailiff required her and "all of the members of the
public (approximately five other people) to leave the [courtroom] before the venire panel entered
the [courtroom]." (ECF No. 8-19 at 124). Judge Herr, her court reporter, and Petitioner's trial
counsel all filed affidavits in the state habeas action. Petitioner's trial counsel averred:
The usual practice in the 186th District Court at that time was for the bailiff to ask
members of the public to leave the courtroom during jury selection because of
limited space. I knew in advance that this was going to happen so I had already
informed Alex Johnson and his family. No one objected or said they wanted to
[be] in the courtroom during jury selection. If any member of Alex Johnson's
family or friends had wanted to remain in the courtroom during jury selection I
would have informed the Judge. I do not recall bow many other people, if any,
were in the courtroom of the 186th.
(ECF No. 8-19 at 194).
Judge Herr's affidavit states:
Although I do not have a specific recollection as to this particular trial, I
can state with certainty that at no time did I close the courtroom to the public.
I further attest that the normal practice and routine in the 186th when a
jury panel entered the courtroom was that the bailiffs cleared the
courtroom to
allow the venire panel to enter and be seated.
7
The 186th District Court courtroom was always open to the public during
the jury selection proceedings. I do not recall a time that it was brought to my
attention that there were spectators who wanted to be allowed in the courtroom
and were denied access.
(ECF No. 8-19 at 196). These factual statements were supported by the affidavit of the court
reporter. (ECF No. 8-19 at 198).
The state habeas court found the affidavit of trial counsel truthful, and found the
affidavits of Judge Herr and the court reporter credible. (ECF No. 8-19 at 186-87). The state
habeas trial court found there was "no evidence on the record of the voir dire proceedings to
suggest the courtroom was closed to the public." (ECF No. 8-19 at 186). The habeas court
further found
that Judge Herr never closed 186th District Court to the public.
The Court finds that the statements of Hilda Johnson in the affidavit attached
to the application credible. The Court finds that she was asked to leave the
courtroom so that the jury panel could be seated. The Court does not find her
conclusion that, "neither I nor any members of the public were allowed to enter
the courtroom during voir dire.. ." credible based on the affidavits from the other
witnesses.
10. The Court finds that the courtroom was cleared briefly to allow the panel to be
seated and does not find that the courtroom was closed to the public at any time.
. .
(ECF No. 8-19 at 187). The Court of Criminal Appeals adopted these findings and denied relief.
The state court's denial of this claim was based on the factual conclusion that the
courtroom was not closed to the public. This conclusion was not an unreasonable determination
of the facts in light of the evidence presented in the state court proceeding. The record before the
state habeas court, i.e., the affidavits of Petitioner's counsel, the trial court, and the court
reporter, all indicate that Ms. Johnson and the other members of the "public" were only asked to
leave the courtroom to provide seating for the venire panel.
8
Section 2254(e)(1) requires that a state court's factual determinations "shall be presumed
to be correct." The AEDPA requires this Court to presume the correctness of the state court's
factual findings unless Petitioner rebuts this presumption with "clear and convincing evidence."
Lewis
v.
Thaler, 701 F.3d 783, 788 (5th Cir. 2012). Petitioner presents no clear and convincing
evidence to rebut the state habeas court's finding of fact that the courtroom was not closed to the
public. Reasonable jurists could not disagree that the state court's factual finding that the
courtroom was not closed to the public was erroneous and, accordingly, Petitioner is not entitled
to relief on this claim. Wood
v.
Allen, 558 U.S. 290, 301 (2010); Rice
v.
Collins, 546 U.S. 333,
341-42 (2006).
B.
Ineffective Assistance of Trial Counsel
Petitioner asserts trial counsel was ineffective for failing to interview Jasmine Salinas and
call her as a witness at trial. Petitioner argues Ms. Salinas would have contradicted Andy Vela's
testimony that the victim was not armed when confronting Petitioner. (ECF No. 8-19 at 39)3
The state habeas court considered and rejected this claim of ineffective assistance of trial
counsel. Ms. Salinas' affidavit was attached to Petitioner's state habeas pleadings. In her
affidavit she states:
Some time after the shooting of Josue. . . Andy Vela told me he was a witness in
this case . . . Andy told me that on the night of the shooting, Josue had gone
outside his apartment (Josue shared an apartment with Andy) to confront
Alexander (the Defendant in this cause) and that Josue had armed himself with a
gun prior to confronting Alexander. Andy ran out of the apartment when he heard
the shots and found Josue dead. Andy denied taking Josue's gun.
In his petition, Petitioner asserts his counsel "failed [to] interview 2 witnesses who could have
testified that they saw complainant, a gang member," arm himself before he "confronted" Petitioner.
(ECF No. 1 at 5). However, in his memorandum in support of his petition, Petitioner cites only counsel's
failure to interview and call Ms. Salinas.
(ECF No. 8-19 at 122). Ms. Salinas does not state in her affidavit that she was available to testify
at trial. Id However, also attached to the state habeas application is the affidavit of a private
investigator, stating "[d]uring my interview with [Ms.] Salinas she claimed she did not testify at
Alexander's Johnson's original trial but that she would have been willing and able to appear and
testify if she had been called." (ECF No. 8-19 at 126).
Petitioner's trial counsel filed an affidavit in the state habeas action. Counsel averred:
The police and the defense investigator tried to interview all witnesses that could
be found at that time. The victim, Applicant and many of the witnesses knew each
other. It was no secret amongst their group that Applicant was accused of Murder.
We were not able to find anyone that said the victim had a gun or find anyone that
said they had been told that the victim had a gun. No gun was ever found.
However, I do agree with Applicant that testimony from a witness stating
the victim had a gun and was threatening him would have made a difference in
the result of his trial. Unfortunately, we were not able to find anyone willing to
say this.
(ECF No. 8-19 at 194).
The state habeas trial court made the following findings and conclusions:
'12. The Court finds that trial counsel and his investigator adequately investigated
witnesses and attempted to locate individuals that could assist Applicant in his
defense.
13. Applicant provides affidavits in support of the allegation that several
witnesses were available to testify. The Court is not persuaded that the witnesses
were available at the time of trial. Although, many of the individuals knew each
other, counsel was unable to locate any witnesses who could testify that the victim
had a gun. The Court finds that it is more likely that the witnesses did not wish to
be located at the time of trial.
(ECFN0. 8-19 at 187).
Strickland requires counsel to either undertake a reasonable investigation or make an
informed strategic decision that investigation is unnecessary. 466 U.S. at 690-91; Charles
v.
Stephens, 736 F.3d 380, 389 (5th Cir. 2013). The state habeas court's factual finding, that
10
counsel's investigation was adequate, has not been rebutted with clear and convincing evidence.
Furthermore, although Ms. Salinas' testimony could have been used to impeach Mr. Vela's
credibility, she does not state that she personally observed the victim in possession of a gun and,
accordingly, her statement would have been inadmissible hearsay with regard to truth of the
matter asserted, i.e., that the victim was armed. Additionally, the statements she alleges Mr. Vela
made do not comport with all of the testimony presented at trial; all of the witnesses testified Mr.
Vela and the victim were at Ms. Ingovaia's apartment, and not their own, immediately prior
to
the shooting. Mr. Vela and Ms. Ingovaia also testified the victim did not leave the apartment
to
confront Petitioner, but instead left the apartment to ask Randi to return to the apartment.
Additionally, even without Ms. Salinas' testimony defense counsel was able to attack Mr.
Vela's credibility with regard to whether the victim was armed when he left the apartment just
prior to being shot, (ECF No. 8-11 at l9l-92), and no weapon was found on or near the
victim
after the shooting. Furthermore, all of the testimony indicated the victim did not know
Petitioner
would be driving into the parking lot when he left the apartment to ascertain
Randi's
whereabouts and, accordingly, there was no reason for the victim to arm himself in anticipation
Upon cross-examination, Mr. Vela testified the victim knew Mr. Vela had seen a gun
in
Petitioner's car earlier in the day. (ECF No. 8-11 at 189-90). Defense counsel then questioned Mr. Vela
as
follows:
Q And you're worried and you are sending out Josue, your roommate, empty handed
without a weapon. Is that what you are telling this jury?
A Well, I mean, I can't I mean, if! don't possess a weapon for myself, why am I going
to give him an illegal firearm? Why should I give him anything?
Q So you didn't go yourself. You sent him?
A No. I was on my way to go, and he asked me.
Q You sent him out and you stayed behind; is that correct?
A Yes, sir.
Q Right?
A Yeah.
Q You sent him out empty handed, no handguns?
A No handguns. How am I supposed to know this is going to happen? I can't predict
anything. I mean, I can't tell you.
(ECFNo. 8-11 at 191-92).
-
11
of a confrontation. Therefore, Petitioner is unable to establish that counsel's alleged failure to
present Ms. Salinas' testimony was prejudicial.
The state court's factual finding, that Ms. Salinas was not available to testif', was not an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. Additionally, because Petitioner is unable to establish prejudice arising from
counsel's "failure" to present Ms. Salinas' proffered testimony, the state court's denial of this
claim was not an unreasonable application of Strickland. Accordingly, Petitioner is not entitled
to federal habeas relief on this claim of ineffective assistance
C.
of counsel.
Ineffective Assistance of Appellate Counsel
Petitioner alleges appellate counsel's performance was deficient because counsel failed to
file a motion for a new trial regarding the improper exclusion of the public during jury selection.
(ECF No. 8-19 at 40). Petitioner raised this claim in his state habeas action. Mr. Callahan
represented Petitioner during the time allowed to file a motion for a new trial, and he filed two
affidavits in the state habeas action. Mr. Callahan's first affidavit states:
1. I was
2.
3.
4.
appointed to the appeal in the above Applicant's case on July 5, 2011.
I never represented the Applicant in the trial court.
I reviewed the record on appeal on September 1, 2011.
On October 4, 2011, I filed a Motion to Withdraw as Attorney of Record
because Alex Sharff, Esq. had been retained by the Applicant's father.
(ECF No. 8-19 at 175). His second affidavit in the state habeas action states: "My notes do not
reveal from the record on appeal that the issue of people excluded from the courtroom was ever
mentioned.
. . .
Nor do my notes reflect that this even occurred." (ECF No. 8-19 at 183).
Petitioner's appeal was filed by Mr. Sharff whose affidavit states:
It should be noted that Petitioner was convicted on July 1, 2011, when Petitioner was
represented by trial counsel[,] Mario Trevino. The trial court then appointed Vincent D.
Callahan to represent Petitioner on direct appeal on July 5, 2011. The undersigned
counsel was not hired until after September 27, 2011, a date clearly outside the time limit
12
The state habeas court found:
Applicant has not established by a preponderance of the evidence that the
courtroom was closed to the public.
16. The Court finds the affidavit of Vincent D. Callahan, Applicant's appellate
attorney on direct appeal, credible.
17. The Court finds that appellate counsel was unaware of any issues pertaining to
the closure of the courtroom; it was not on the record.
18. The Court finds the record of the proceedings did not reveal any evidence of
members of the public being asked to leave the courtroom. Appellate counsel
could not have had knowledge of the alleged closure from the record.
***
The Court concludes that Applicant fails to prove by a preponderance of the
evidence that his appellate counsel was ineffective for failing to raise the claim
that the courtroom was closed in a Motion for New Trial or on appeal. Counsel
was unaware of the issue, if any.
Further, had he raised the issue on appeal, the Court finds that the courtroom was
not closed and therefore there [sic] Applicant fails to establish that the result of
the appeal would have been different. Robbins, 528 U.S. at 285-86, 120 S. Ct. 746
(citing Strickland, 466 U.S. at 687-9 1, 694, 104 S. Ct. 2052).
(ECF No. 8-19 at 187-89).
To succeed on a claim of ineffective assistance of appellate counsel, a petitioner must
show that his counsel's performance was "deficient," i.e., objectively unreasonable. Smith
v.
Robbins, 528 U.S. 259, 285 (2000); Dorsey v. Stephens, 720 F.3d 309, 319 (5th Cir. 2013). If the
petitioner is able to establish that appellate counsel's performance was deficient, he then must
demonstrate prejudice arising from the deficient performance. To establish prejudice, the
petitioner must show a reasonable probability that, but for his counsel's unreasonable failure to
assert a particular claim on appeal, he would have prevailed in the appeal. Smith, 528 U.S. at
286; Moreno
v.
Dretke, 450 F.3d 158, 168 (5th Cir. 2006).
for filing a Motion for New Trial. There was no legal means by which the undersigned
could have raised the issue alleged in Petitioner's writ of habeas corpus because counsel
was not employed in a timely manner.
(ECF No. 8-19 at 174).
13
Because the issue of the closed courtroom was not meritorious, Mr. Callahan's alleged
failure to raise this issue in a motion for a new trial was not prejudicial, and the state court's
denial of this claim was not an unreasonable application of Strickland.
Conclusion
Petitioner has not rebutted the state habeas court's finding of fact that his trial was not
closed to the public during voir dire by clear and convincing evidence. Nor has Petitioner
established that the state court's denial of his ineffective assistance of trial and appellate counsel
claims was an unreasonable application of Strickland. Accordingly, Petitioner fails to establish
an entitlement to federal habeas relief.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C.
§
2253(c) (l)(A). Pursuant to Rule
11
of the Federal Rules Governing Section 2254 Cases, the
district court must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§
2253(c)(2). The Supreme Court fully
explained the requirement associated with a "substantial showing of the denial of a constitutional
right" in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a
petitioner's constitutional claims on the merits, "the petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims debatable or
wrong." Id. "When a district court denies a habeas petition on procedural grounds without
14
reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid
claim of the 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.
In this case, reasonable jurists could not debate the dismissal of the Petitioner's habeas
petition on substantive or procedural grounds, nor find that the issues presented are adequate to
deserve encouragement to proceed.
Miller-El
v.
Cockrell,
537 U.S. 322, 327 (2003) (citing Slack,
529 U.S. at 484). Accordingly, the Court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the Application for Writ of Habeas Corpus [ECF
No. 1] is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
SIGNED on this
day of April, 2018.
ORLANDO L. GARCIA
CHIEF UNITED STATES DISTRICT JUDGE
15
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