Mann v. Clarke
Filing
9
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 6/22/12.(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JAMES GARLAND MANN,
Petitioner,
v.
Civil Action No.
3:11CV711
HAROLD CLARKE,
Respondent.
MEMORANDUM OPINION
James
counsel,
28
U.S.C.
Garland
Mann,
a
Virginia
prisoner
proceeding
with
brings this petition for a writ of habeas corpus under
§ 2254.
Curtis
challenges
his
conviction
for
first
degree murder in the Circuit Court for the County of Goochland.
Mann
raises
the
following
claims
of
ineffective
assistance
of
counsel:
Claim One
Counsel
did
not
request
a
jury
instruction
"stating that
xThe failure of the evidence to
disclose
any
other
criminal
agent
than
the
defendant
is
not
a
circumstance
that may be
considered by the jury in determining whether or
not he is guilty of the crime with which he is
charged.'"
Claim Two
(§ 2254 Pet. SI 46. )1
xx[C]ounsel
failed
to
advise
Petitioner
of
personal and constitutional right to testify
his own defense and/or permit the Petitioner
testify . . . ."
Claim Three
his
in
to
(Io\_ SI 64. )
Counsel failed to present evidence that, in the
aftermath of Mann's suicide attempt, Mann "was
completely
xout
of
it,'
non-responsive,
and
unable
to
communicate
at
all
at
the
time
that
he
1 The Court has omitted emphasis in the quotations to Mann's
submissions.
was
initially observed and continuing for several
days thereafter."
(Id^ SI 80.)
Respondent has moved to dismiss on the ground that Mann's claims
lack
merit.
Mann
has
responded.
The
matter
is
ripe
for
disposition.
I.
APPLICABLE CONSTRAINTS UPON FEDERAL HABEAS REVEW
The Antiterrorism and Effective Death Penalty Act
of
1996
relief
further
by
way
circumscribed
of
a
writ
this
of
Court's
habeas
("AEDPA")
authority
corpus.
to
grant
Specifically,
"[s]tate court factual determinations are presumed to be correct
and
may
Gray
v.
U.S.C.
be
rebutted
Branker,
529
only
by
clear
and
F.3d
220,
228
(4th
§ 2254(e)(1)).
evidence."
Cir.
2008)
(citing
under 28
Additionally,
convincing
U.S.C.
28
§ 2254(d),
a federal court may not grant a writ of
habeas corpus based on
any
merits
claim
that
was
adjudicated
on
the
in
state
court
unless the adjudicated claim:
(1) resulted in a decision
involved
an
unreasonable
established Federal law, as
that was contrary to, or
application
of,
clearly
determined by the Supreme
Court of the United States; or
(2)
resulted
in
a
decision
that
was
based
on
an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C.
question
court's
§ 2254(d).
"is
not
The Supreme Court has emphasized that the
whether
determination
a
was
federal
court
incorrect
2
believes
but
the
whether
state
that
determination
threshold."
was
unreasonable—a
Schriro
v.
Landrigan,
(citing Williams v. Taylor,
II.
529 U.S.
substantially
550
362,
U.S.
410
465,
473
higher
(2007)
(2000)).
PERTINENT PROCEDURAL HISTORY
A jury in the Circuit Court found Mann guilty of the first
degree
murder
of
sufficiency of
Jason
Carr.
On
the evidence.
appeal,
Mann
The Court of
challenged
Appeals
the
of Virginia
aptly summarized the ample evidence of Mann's guilt as follows:
[A]t approximately 7:15 a.m. on July 18, 2005, Jason
Carr,
the manager of Stone Mountain Carpet Outlet
(Stone Mountain), was found slumped against the door
of
the
business.
Carr
.22 caliber firearm.
had been
shot
in
the
back with
a
Lieutenant James Mann[2] learned
that Carr had removed appellant,
a contract carpet
installer,
from
Stone
Mountain's
list
of
carpet
installers
and
that
appellant
had
previously
threatened and yelled at Carr.
Later that day, [the
Lieutenant]
went
to
appellant's
residence
and
appellant stated that at approximately 6:00 a.m. he
checked his horses and at approximately 7:50 a.m. he
went
to
a
store.
[The
Lieutenant]
saw
several
firearms inside appellant's house, and appellant gave
a .22 rifle to [the Lieutenant].
Later,
when the
authorities executed a search warrant for appellant's
house, they seized .22 bullets.
The authorities also
found the front license plate missing from appellant's
van and duct tape over Harley Davidson stickers on the
van's
back
window.
The
authorities
found
the
license
plate inside appellant's house.
A witness testified
that appellant's van was well known because of these
stickers.
2 Lieutenant
(Trial
Tr.
278.)
Mann
is
In
order
refer to Lieutenant Mann
as
not
to
related
avoid
to
"the Lieutenant."
3
James
confusion,
Garland
the
Court
Mann.
will
James Pickelman, an expert in firearm tool marks
identification, testified that two bullets found in
appellant's house were consistent with the bullets
removed from Carr's body, but that the bullets from
Carr's body had not been fired from the rifle taken
from appellant's house.
On July 18, 2005, appellant was scheduled to work
at
June
Frick's
house,
but
he
did
not
show
up.
The
next day, appellant called Frick and said that he had
hurt
himself
in
a
horseback
accident
the
prior
weekend.
Other witnesses testified that they saw
appellant on July 18, 2005 and that he did not appear
to be injured.
On July 20, 2005, Shannon Haskins, appellant's
daughter, found a package outside her house.
The
package contained letters written by appellant stating
that he was going to commit suicide.
One letter
stated that he knew this was coming for four years3 and
he did not want "to endure the indignity of the law."
Carr and appellant knew each other for four years.
After finding the package, Shannon and her husband,
Tommy Haskins, went to appellant's house and found him
on the floor.
Shannon asked appellant if he had tried
to commit suicide because
of
Carr,
and appellant
nodded his head affirmatively.
Shannon asked, "Did
you do it?" and appellant nodded his head and mouthed,
"yes."
On the way to the hospital, Shannon called her
ex-husband,
Wallace
Richardson
testified
conversation.
Later,
Richardson,
to
the
while
and
Shannon
details
recuperating
and
of
the
from
the
suicide attempt, appellant told Shannon that the gun
was in the river and appellant told Shannon and Tommy
that he committed the murder because of poor judgment.
Initially, Shannon and Tommy told the investigators
and the grand jury that appellant had not made any
statements to them about the murder.
However, they
later
changed
their
testimony
and
were
granted
immunity from prosecution for perjury.
Linda Alt, appellant's friend, testified that in
the
spring
2005
appellant
stated
Carr
had
"blackballed" him as a carpet installer and he 'was
unhappy
about
the
situation.
3 Carr had begun working
earlier.
(Trial Tr.
Alt
at Stone
216) .
4
visited
appellant
Mountain
four
years
after he attempted suicide,
and appellant stated that
he attempted suicide because after the authorities
questioned him about the murder, he heard his deceased
mother's voice tell him he could not run away from
this one.
Leeuwin Anderson and Jason Ward, convicted
felons
and
inmates
with
appellant
in
the
jail,
testified that they spoke to appellant on different
occasions and that appellant admitted killing Carr.
Jorge Botero, a defense witness, testified that
he saw a small car leave Stone Mountain's parking lot
or an adjacent car dealership's parking lot between
6:55 and 7:00 a.m. on July 18, 2005.
James Massa,
appellant's cellmate, testified that he never heard
appellant admit to Ward that he killed Carr.
Dr.
Martin
Buxton,
a
psychiatrist,
testified
that
appellant was clinically depressed in July 2005 and
that it would be reasonable for a clinically depressed
person suspected in a homicide to attempt suicide.
The
evidence
from
the
showed
that
Carr
installer's
list
for
had
removed
Stone
Mountain
appellant
and
that
appellant had threatened Carr.
Appellant confessed to
killing Carr to family members, to a friend, and to
jail inmates.
Bullets found in appellant's house were
consistent with bullets
removed from Carr's
body,
unique stickers on appellant's van were covered with
duct tape, and a license plate had been removed from
the van.
Appellant failed to go to a scheduled job on
July 18, 2005 and told the individual he had been
injured
the
prior
weekend;
however,
witnesses
testified that appellant did not appear injured on
July
18,
2005.
There
was
sufficient
evidence
supporting the jury's verdict.
Mann v.
14,
Commonwealth,
2007).
refused
On
Mann's
April
25,
petition
No. 072591 (Va. Apr.
Thereafter,
No.
0246-07-2,
2008,
for
at
the
1-4
(Va.
Supreme
appeal.
Mann
Ct.
Court
v.
App.
of
Sept.
Virginia
Commonwealth,
25, 2008).
Mann,
by counsel,
filed
of habeas corpus with the Circuit Court.
5
a petition
for
a writ
In that petition,
Mann
raised,
inter
federal
habeas
hearing
on Claim
habeas
alia,
the
same
petition.
Two,
petition.
three
After
the
Mann
claims
he
conducting
Circuit Court
v.
presses
Clarke,
an
denied
Dir.,
Court
Dep't
at 3 (Va. Cir. Ct. Dec. 30, 2010).
The
Supreme
of
III.
To
defendant
ALLEGED
demonstrate
must
defense.
(1984).
show
first,
To
satisfy
the
presumption'
that
the wide
Strickland,
defendant
v.
the
counsel's
Washington,
must
strategy
a
petition
F.3d
466 U.S.
at
"show
for
counsel,
representation
577,
689).
that
588
466
U.S.
overcome
and
a
was
668,
(4th
687
prong
of
the
tactics
"'strong
fall
assistance.'"
Cir.
2001)
'within
Burch
(quoting
The prejudice component requires
there
is
a
reasonable
but for counsel's unprofessional errors,
probability
of
performance
reasonable professional
proceeding would have been different.
is
Mann's
assistance
deficient
counsel's
273
to
that
defendant
range of
Corcoran,
that,
Mann appealed.
that the deficient performance prejudiced
Strickland
Strickland,
a
Corr.,
INEFFECTIVE ASSISTANCE OF COUNSEL
ineffective
deficient and second,
v.
refused
state
Mann v. Johnson, No. 110613, at 1 (Va. July 27, 2011).
appeal.
the
Virginia
evidentiary
Mann's
Va.
No. CL09-105,
in his
sufficient
to
A
probability
the result of the
reasonable probability
undermine
confidence
in
the
outcome."
Strickland,
466
U.S.
at
694.
ineffective assistance of counsel claims,
In
analyzing
it is not necessary to
determine whether counsel performed deficiently if the claim is
Id. at 697.
readily dismissed for lack of prejudice.
A.
Claim One
In Claim One, Mann faults counsel for not requesting a jury
instruction
disclose
which
"'The
any other criminal
circumstance that
whether
stated,
or
charged.'"
not
failure
of
is
guilty
(§ 2254 Pet.
evidence
of
5 46.)
the
jury in determining
crime
with
which
he
In rejecting this claim,
Circuit Court made the following pertinent findings:
Respondent
argues
that
the
trial
court
correctly
instructed the jury on presumption of innocence under
the model instruction where each and every element of
the offense must be proven beyond a reasonable doubt.
The
Respondent
further
argues
that
there was
no
evidence tending to implicate some other person other
than the accused.
Trial counsel's affidavit explains
why he did not seek to give this instruction because
of no evidence of another suspect.
The
answered
question
in
the
Commonwealth,
of
case
Record
by
the
Court
instruction has
of
the
giving
cited
No.
to
this
the
instruction
Court
2952-08-2
of
Patillo
(2010).
As
is
v.
noted
Appeals,
a
party
offering
an
burden of demonstrating that the
requested instruction was a correct statement of the
law, was applicable to the facts of the case, and was
expressed appropriately.
The instruction in question was the same in the
case
at
bar:
"The
to
agent than the defendant is not a
may be considered by the
he
the
failure
of
the
evidence
to
disclose
any other criminal agent than the defendant is not a
circumstance that may be considered by the jury in
is
the
determining
whether
he
is
guilty
of
the
crime
with
which he is charged."
The Court of Appeals ruled that the subject of
requested
instruction
was
covered
by
other
the
instructions given to the jury by the trial court in a
clearer manner than the requested instruction.
There
was no error in denying the requested instruction.
The same logic and ruling is applicable in this case
as
the
trial
court's
instructions
covered
principles covered in the requested instruction.
the
This
claim is denied and the Motion to Dismiss is granted.
Mann
v.
2010).
Johnson,
of
cannot
128,
141
involves
at
of
counsel
an
highly
prejudice.
Cir.
issue
state
state's
is
(4th
instructions],
a
counsel
show
assistance
to
CL09-105,
2-3
(Va.
Cir.
Ct.
June
29,
Given that the resolution of Mann's claim of ineffective
assistance
Mann
No.
Richardson
2012)
("When
raised
unique
to
in
state
a
a
Moreover,
upon
v.
of
habeas
law, such
court's
Virginia
Branker,
claim
a federal court should be
post-conviction
law.")
dependent
668
F.3d
ineffective
corpus
as
law,
petition
[certain
jury
especially deferential
interpretation
of
its
own
counsel reasonably perceived that the
requested instruction "would have just highlighted the fact that
there
was
good."
no
other
suspect
and
would
have
Respondent's Motion to Dismiss Ex.
counsel)
SI
105
Cir.
(Va.
9, Mann v.
demonstrated
dismissed.
Ct.
Johnson,
filed Aug.
deficiency
or
Dir.,
14,
Va.
2009) .
prejudice,
done
B
more
harm than
(affidavit of trial
Dep't Corr.,
Because
Claim
No.
Mann
One
CL09-
has
not
will
be
B.
Claim Two
In Claim Two,
Mann contends that counsel failed to advise
him regarding "his personal and constitutional right to testify
in
his
(§ 2254
own
defense
Pet.
1
and/or
permit
64.)
As
Court
recited
the
explained
Petitioner
below,
this
to
testify."
claim
lacks
factual merit.
The
Circuit
claim as
the
evidence
pertinent
to
this
follows:
At
the
November
22,
2010
hearing,
James
Garland[ ] Mann, Petitioner, testified that Todd B.
Stone, his retained attorney, told him he could not
testify at trial because he was not educated or
experienced and that the prosecutor would attack him
on the stand.
trial.
Mr.
This statement was made on Day 3 of the
Mann
said Mr.
Stone
said to
sit
down
and
"shut up" when Mr. Mann told Mr. Stone he wanted to
testify. Additionally, Mr. Mann was never called as a
witness and was never asked questions by the Court as
to his right to testify.
He further said he did not
know he had a legal right to testify, even if his
attorney advised against it.
Mr.
Mann
also
testified
him Respondent's Exhibit #1 [3]
that
Mr.
Stone
brought
received into evidence
on September 12, 2006 at the Henrico County Jail and
pushed it under the glass separating them in the
meeting room.
Petitioner said he did not have his
glasses and could not read it. He did say he wrote in
blue ink the answers to Questions 1 and 3 on page 2 of
3 Respondent's Exhibit 1 is a letter from Stone to Mann,
which responds to Mann's complaints with respect to Stone's
preparation of the case for trial.
Respondent's Evidentiary
Hearing Exhibit #1, Mann v. Johnson, No. CL09-105 (Va. Cir. Ct.
filed Nov. 22, 2010) . The end of the letter has a series of
questions and/or statements from Stone to Mann and provides
space for Mann to answer those questions.
Id. at 2-3.
9
the September 12,
2006 letter and pushed it back to
Mr. Stone in the metal tray under the glass.
Todd B.
Stone,
Esquire
testified
he thought
he
mailed Respondent's Exhibit 1 and Petitioner's Exhibit
1 (August 25,
2006 letter to Clerk requesting
subpoenas for trial) as a five (5)-page document to
Mr.
Mann,
was
not
but he noticed that Respondent's Exhibit 1
folded
and
therefore,
he
was
not
sure
he
mailed it.
Thus, he may have hand-delivered it, but
Mr. Stone has no recollection of any conversation with
Mr.
Mann
about
either
thought he received Mr.
exhibit.
He
testified
he
Mann's blue ink hand-written
comments to Questions 1 and 3 on Respondent's Exhibit
1 by mail.
Mr.
Stone also testified that at the close of the
Commonwealth's
case
in
the
three-day
trial,
which
began on September 19, 2006, he had a private meeting
in
the
courthouse
hour about
with
whether Mr.
Mr.
Mann
Mann
of
20
minutes
should testify at
to
an
trial.
In his testimony Mr. Stone said:
"I was very clear
with him that you have a right to testify if you want
to."
Later
in
that
same conversation
Stone
advised:
You may wish you had testified if you are convicted,
and you have a right to.
But where we are now, you
know, we don't have the benefit of hindsight, I think
you will dig a big hole for yourself [if] you testify.
Mann v. Johnson, Dir., Pep't Corr., No. CL09-105, at 2 (Va. Cir.
Ct. Nov.
In
29,
2010).
rejecting
this
claim,
the
Circuit
Court
made
following factual findings:
In evaluating the testimony on the two separate
recollections of the evidence, the court notes it is a
credibility issue it has to resolve. The first is the
testimony of each witness as to whether at any time
Mr.
Stone
told
Mr.
Mann
that
he
had
a
right
to
testify.
Mr. Mann says it was Day 2 or 3 of the trial
when he says Mr. Stone said he could not testify at
trial.
In his affidavit submitted with his petition,
he said he wanted to testify but he was not allowed to
10
the
do so by his attorney. He asserts he wanted to
testify, but did not know it was his decision.
That testimony is countered by Mr. Stone stating
a specific recollection of meeting with Mr. Mann at
the
conclusion
of
the
Commonwealth's
case
and
going
over his right to testify and the giving of Mr.
Stone's advice not to testify.
Mr. Stone said the
private meeting lasted 20 minutes to an hour.
Mr.
Mann did not
stated.
that
rebut this testimony other than as above
The
Court
notes
it
is
difficult
to
believe
a defense in a jury trial on a not guilty plea
was not discussed with Mr.
Mann and what testimony Mr.
Mann could give to show Mr.
Mann did not commit the
crime.
However, that does not answer the question of
whether Mr. Mann knew of his right to testify.
The second factual evidence presented to
the
court
involves
the
two
exhibits
as
Respondent's
Exhibit 1 and Petitioner's Exhibit 1.
Respondent's
Exhibit 1 is a letter from Mr.
Stone to Mr.
Mann about
Mr. Mann's "deep dissatisfaction" with preparation of
the case seven (7) days before the beginning of the
trial.
The
Court
concludes
this
letter
got
to
Mr.
Mann by some form of delivery.
It also concludes Mr.
Mann
responded
considered
the
letter
and
in
hand-writing to Questions 1 and 3 on page 2.
his
own
Question
1 does address the witnesses subpoenaed as noted in
Petitioner's 1, which is consistent with Mr. Stone
saying the two exhibits were presented as one document
to Mr. Mann.
The answer repeats a name on the list
(Petitioner's Exhibit 1).
Questions 2, 4, 5, 6 and 7
are
not
answered.
Question 7
issue before the Court. [4]
read the
letter because
is
Mr.
he
the
critical
one at
Mann says he did not
did not
have
his
glasses-
yet he was able to answer two of the questions.
Mr.
Stone has no recollection of discussing either exhibit
with Mr.
Mann.
Mr.
Mann's
"OK"
comment
on Question
3
does not list any complaints, which seems like the
logical interpretation.
The Court cannot explain how
Mr.
Mann
could
answer
Questions
1
and
3
and
believe
4 Question 7 states, "I understand that I have a right to
testify in my trial, even if my lawyer advises me not to
testify."
Respondent's Evidentiary
Hearing Exhibit #1, at 3,
Mann v. Johnson, No. CL09-105 (Va. Cir. Ct. filed Nov. 22,
2010).
11
that Mr. Mann could not read the
did not have his glasses.
questions because he
A reasonable inference is
that if he read Questions 1 and 3, it
have read the letter in its entirety.
seems
he
must
CONCLUSION
The testimony of Mr. Stone is more believable
than Mr. Mann's testimony.
In other words, the Court
finds Mr. Mann was advised of his right to testify and
chose
not
to
do
so.
Therefore,
[Mann's
claim
that
counsel provided inadequate assistance with respect to
advising Mann about his right to testify] is dismissed
as being insufficient to satisfy the first prong of
Strickland.
Id.
at
3-4.
For the reasons stated by the Circuit Court,
demonstrate
that
advised of his
at 4.
Mann
counsel
right
has
performed
deficiently.
to testify and
not
Mann fails to
"Mann
to do
by
demonstrated
chose not
and
clear
was
so."
Id.
convincing
evidence that the Circuit Court's factual finding in this regard
is
incorrect.
See
28
U.S.C.
§ 2254(e)(1).
Accordingly,
Claim
Two will be dismissed.
C.
In
present
Mann
Claim Three
Claim
Three,
testimony
could
not
attempt.
Mann
testimony
of
Mann
from
medical
communicate
contends
his
complains
such
daughter,
that
personnel
immediately
counsel
to
demonstrate
after
testimony would have
Shannon
12
Haskins,
failed
that
his
to
that
suicide
rebutted the
Mann
admitted
to her after his attempted suicide that he had killed Carr.
In
rejecting this claim, the Circuit Court stated:
Mann had been discovered by Haskins in a compromised
state after Mann had attempted suicide by
taking an overdose of pills.
Petitioner asserts that
medical
medical evidence would have shown Mann was not able to
communicate as described by Haskins.
Respondent
that
medical
asserts that Mann has made no proffer
evidence
would
have
shown
that
Mann
was
not able to communicate as described by Haskins in her
testimony at pages 326-329 of the Trial Transcript.
There is no proffer of what the EMT responders to the
suicide attempt would have said in testimony to refute
said account
by
Haskins.
In defense
counsel's
affidavit he states he spoke to the initial responders
to the suicide attempt and there was nothing of value
to present as evidence for the defendant.
The Court finds that the legal authority cited to
the Court by Respondent, Bassett[e] v. Thompson, 915
F.2d 932,
940
(4th Cir.
1990),
is persuasive and
sustains the Motion to Dismiss on Claim III.
Mann v. Johnson,
Dir.,
Cir. Ct.
2010).
June 29,
Mann
that
Mr.
fails
to
and Mrs.
Va.
Pep't Corr.,
demonstrate
Haskins
prejudice.
were
the
first
the scene of Mann's attempted suicide.
the
scene with Mr.
before
any
demonstrate
professionals
Haskins
emergency
that
any
could
for
an
personnel
emergency
credibly
No. CL09-105,
The
arrived.
personnel
Mrs.
to arrive
amount
Mann
or
fails
other
Haskins's
of
time
to
medical
testimony
about Mann's actions prior to their arrival upon the scene.
13
at
Haskins remained at
indeterminate
impeach
record reflects
persons
Mrs.
at 4 (Va.
Additionally,
even
if
the
testimony
of
the
emergency
responders or other medical personnel could create some doubt
regarding Haskins's testimony that Mann had nodded his head and
mouthed
the
word
killed
Carr,
no
"yes"
to
reasonable
the
question
of
whether
probability exists
that
Mann
Mann
had
would
have been acquitted.
After he had significantly recovered from
his
Mann
suicide
attempt,
indicated
to
Mrs.
Haskins
that
the
murder weapon was in the river and that the murder of Carr was
the product of "poor judgment."
07-2,
at
2
abundance
guilt.5
(Va.
of
Ct.
other
App.
evidence
Mann v. Commonwealth, No. 0246-
Sept.
14,
2007).
convincingly
Moreover,
demonstrated
an
Mann's
Claim Three will be dismissed.
5 Specifically,
as
noted
by
the
Court
of
Appeals
of
Virginia:
The
the
evidence showed that Carr had
installer's
list
for
Stone
[Mann]
had
threatened
Carr.
removed [Mann]
Mountain
and
[Mann]
from
that
confessed
to
killing Carr . . . to a friend[ ] and to jail inmates.
Bullets found in [Mann's] house were consistent with
bullets removed from Carr's body, unique stickers on
[Mann's]
van were
covered with duct
tape,
and a
license plate had been removed from the van.
[Mann]
failed to go to a scheduled job on July 18, 2005 [the
day of the murder] and told the individual he had been
injured
the
prior
weekend;
however,
witnesses
testified that [Mann] did not appear injured on July
18,
2005.
Mann v. Commonwealth,
14, 2007).
No.
0246-07-2,
14
at
3-4
(Va.
Ct.
App.
Sept.
The Motion to Dismiss
(Docket No.
3)
will be granted.
The
§ 2254 Petition will be denied and the action will be dismissed.
The Court denies a certificate of appealability.6
The
Clerk
is
directed
to
send
a
copy
of
the
Memorandum
Opinion to counsel of record.
/,/
M
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date:
\u*j>^,1+t\^
6 An appeal may not be taken from the final order in a
§ 2254 proceeding unless a judge issues a certificate of
appealability ("COA") . 28 U.S.C. § 2253(c)(1)(A).
A COA will
not issue unless a prisoner makes "a substantial showing of the
denial
This
could
of
a
constitutional
requirement
debate
is
whether
right."
satisfied
(or,
28
only when
for
that
U.S.C.
§
2253(c)(2).
"reasonable
matter,
agree
jurists
that)
the
petition should have been resolved in a different manner or that
the issues presented were
proceed further.'"
'adequate to deserve encouragement to
Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
No
law or evidence suggests that Mann is entitled to further
consideration in this matter.
15
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