Warner v. USA
Filing
27
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 16 AND DENYING PETITION 1 . The Court GRANTS Warner's motions to supplement his petition (dkt.nos. 19 , 21 , and 23 ); DENIES Warner's motion to amend his petition (dkt. no. 15 ); ADOPTS those portions of the R&R to which Warner did not object (dkt. no. 16 ); OVERRULES Warner's objections; DENIES and DISMISSES Warner's petition WITH PREJUDICE (dkt. no. 1 ), and ORDERS it stricken for the Court's active docket. The Court DENIES a certificate of appealability. Signed by District Judge Irene M. Keeley on 6/1/2017. (kd)(Copy pro se party/cmrrr) (kd) (Additional attachment(s) added on 6/1/2017: # 1 Certified Mail Return Receipt) (kd).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ARTHUR SEAN WARNER,
Petitioner,
v.
//
CIVIL NO. 1:15CV164
CRIMINAL NO. 1:14CR81
(Judge Keeley)
UNITED STATES OF AMERICA
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
Pending before the Court is the Report and Recommendation
(“R&R”) (dkt. no. 16) of the Honorable James E. Seibert, United
States Magistrate Judge, to which the pro se petitioner, Arthur
Sean Warner (“Warner”), has filed objections (dkt. no. 18). For the
reasons that follow, the Court OVERRULES Warner’s objections,
ADOPTS
the
R&R,
and
DENIES
and
DISMISSES
the
petition
WITH
PREJUDICE.
I. BACKGROUND
On September 18, 2015, Warner filed a petition pursuant to 28
U.S.C. § 2255 to vacate, set aside, or correct his sentence (dkt.
no. 1). In his petition, Warner sets forth the following three
grounds for relief:
(1)
His counsel was ineffective in failing to move
suppress items found in a safe, the search of which
was not covered under the otherwise valid search
warrant;
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
(2)
His counsel was ineffective because he conspired
with the government to decline to investigate and
object to a prior conviction that served as a
predicate offense for Warner’s career offender
sentencing enhancement; and
(3)
The Court incorrectly sentenced him as a career
offender.
Id. at 5, 6, and 8. Warner asks the Court to vacate his judgment,
sentence, and plea, and to give him a two-level reduction under
Amendment
782
to
the
United
States
Sentencing
Guidelines
(“U.S.S.G.” or “guidelines”) and 28 U.S.C. § 994(o).
In accord with LR PL P 2, the Court referred this matter to
Magistrate
Judge
Seibert
for
initial
screening
and
an
R&R.
Magistrate Judge Seibert directed the government to file a response
to the petition (dkt. no. 3).
The government did so (dkt. no. 9),
asserting the following contentions:
(1)
Warner had knowingly and voluntarily waived the
right to file a § 2255 motion incident to his plea,
with the exception of certain claims of ineffective
assistance of counsel;
(2)
Warner had procedurally defaulted all three claims
in his petition because he did not raise them on
direct appeal;
(3)
Warner’s counsel was not ineffective for failing to
move to suppress items seized without a warrant,
because the search warrant specifically listed
safes and lock boxes as items to be seized;
2
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
(4)
Warner’s counsel was not ineffective for failing to
object to the application of the career offender
enhancement because, despite Warner’s claim that
one of his predicate offenses should not count as
he was serving a probationary sentence for that
offense at the time he was sentenced on the instant
charges, even without that conviction, he had been
convicted of at least two other serious felony drug
offenses; and
(5)
Warner was not entitled to a two-level reduction
because he was sentenced under the 2014 sentencing
guidelines, which already included the two-level
reduction under Amendment 782.
Dkt. No. 9 at 4-9.
In his reply to the government’s contentions (dkt. no. 10),
Warner
withdrew
his
ineffective
assistance
of
counsel
claim
regarding any failure to move to suppress the items found in the
safe; however, he continued to argue that he did not qualify as a
career offender. In addition, while the R&R was pending, he moved
to amend his petition in light of the ruling of the Supreme Court
of the United States in Molina-Martinez v. United States, 136 S.
Ct.
1338
(2016),
to
allege
an
additional
claim
based
on
inaccuracies in the calculation of the sentencing guidelines.
In his R&R, Magistrate Judge Seibert concluded that Warner had
knowingly and voluntarily waived any collateral attack based on
ineffective assistance of counsel, either prior to or during his
sentencing. Further, even if Warner had not waived such collateral
3
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
attack, Magistrate Judge Seibert found that his counsel had not
been deficient in his representation by failing to object to
Warner’s classification as a career offender because Warner had at
least two predicate offenses that supported the Court’s decision to
sentence him as a career offender. As to Warner’s claim that
counsel had conspired with the government, the R&R concluded that
such a threadbare legal conclusion failed to meet the heightened
pleading
standards
required
of
habeas
petitions.
Finally,
Magistrate Judge Seibert recommended denying Warner’s motion to
amend his petition to add a claim based on inaccuracies in the
calculation of the sentencing guidelines because it was time-barred
and did not relate back. For all those reasons, he recommended that
the Court deny Warner’s petition and dismiss it with prejudice.
In his sole objection to the R&R (dkt. no. 18), Warner argued
that he was not a career offender because his prior Arizona
convictions were not predicate offenses. He included copies of
certain sentencing documents related to his two Arizona convictions
in support of his arguments.
While the R&R was pending review, Warner filed three motions
(dkt. nos. 19, 21, and 23) seeking to supplement his petition to
add arguments that 1) the decision of the Supreme Court of the
4
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
United States in Mathis v. United States, 136 S.Ct. 2243 (2016),
further supported his claim that his Arizona convictions were not
predicate offenses, and 2) Chang-Cruz v. United States, 659 Fed.
Appx. 114 (3rd Cir. 2016) (unpublished), supported his argument
that the statute forming the basis of his New Jersey conviction did
not qualify as a predicate offense. In support, Warner attached
copies of the relevant New Jersey judgment of conviction (dkt. no.
21-1; dkt no. 23-1).
II. STANDARD
“The Court will review de novo any portions of the magistrate
judge’s Report and Recommendation to which a specific objection is
made . . . and the Court may adopt, without explanation, any of the
magistrate judge’s recommendations to which the prisoner does not
object.” Dellacirprete V Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D. W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983)).
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson v. Astrue, 605 F.
Supp.2d 744, 749 (S.D.W.Va. 2009) (citing Howard’s Yellow Cabs,
Inc. v. United States, 987 F.Supp. 469, 474 (W.D.N.C. 1997)).
5
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
Further, failure to raise “any specific error of the magistrate’s
review” waives the claimants right to a de novo review. Id. (citing
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). Likewise,
“general and conclusory” objections to the magistrate’s R&R do not
warrant a de novo review by the District Court. Id. (citing
Howard’s Yellow Cabs, 987 F.Supp. at 474); see also Green v.
Rubenstein, 644 F.Supp.2d 723 (S.D.W.Va. 2009).
III. DISCUSSION
Warner did not object to the R&R’s conclusions that his motion
to amend was untimely, or that he had inadequately pleaded his
proposed additional claim that the probation officer improperly
calculated
the
guidelines.
Nor
does
he
object
to
the
R&R’s
conclusion that he inadequately pleaded a conspiracy between his
counsel and the government. His sole objection is that he does not
qualify as a career offender. Consequently, as to those portions of
the R&R to which Warner did not object, the Court finds no clear
error and adopts the reasoning in those portions as its own.
Further, the Court GRANTS Warner’s motions to supplement his
petition to add his arguments related to the rulings in Mathis and
Chang-Cruz (dkt. nos. 19, 21, and 23).
Thus, the sole remaining
issue is whether Warner has at least two prior convictions that
6
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
qualify as “controlled substance offenses” under § 4B1.1 of the
sentencing guidelines.
A.
The Categorical and Modified Categorical Approaches
In determining whether a prior conviction is a predicate
offense triggering an enhancement under the sentencing guidelines,
the Court “approach[es] the issue categorically, looking ‘only to
the fact of conviction and the statutory definition of the prior
offense.’” United States v. Dozier, 848 F.3d 180, 183 (4th Cir.
2017) (quoting United States v. Cabrera-Umanzor, 728 F.3d 347, 350
(4th Cir. 2013) (quoting in turn Taylor v. United States, 495 U.S.
575, 602 (1990))). Under this categorical approach, the Court looks
solely at the elements of the state criminal law, not at the
defendant’s actual conduct in committing the crime. Id. A prior
conviction is a predicate offense if the elements of the relevant
statute
“‘correspond[]
in
substance’
to
the
elements
of
the
enumerated offense.” Id. (alteration in original) (quoting Taylor,
495 U.S. at 599). In addition, if the statute of prior conviction
provides various “means” of satisfying an element, some of which
would fall within the guideline definition, and at least one other
that would not, it is broader than the guideline definition and is
7
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
not categorically a predicate offense. See Mathis v. United States,
136 S.Ct. 2243, 2253-54 (2016).
Accordingly, “[t]he prior conviction qualifies as [a predicate
offense] only if the statute’s elements are the same as, or
narrower than, those of the [guideline definition].” Descamps, 133
S.Ct. at 2281. That is to say, if a defendant could be guilty of a
violation of the statute of prior conviction by satisfying an
element not present in the guideline or generic definition, it is
not a predicate offense. Mathis, 136 S.Ct. at 2251 (“[A] state
crime cannot qualify as [a] predicate if its elements are broader
than those of a listed generic offense.”).
If the statute of prior conviction is “divisible,” that is, it
“list[s] elements in the alternative[ ] and thereby define[s]
multiple crimes,” the Court may apply the modified categorical
approach.
Id.
(quoting
Mathis,
136
S.Ct.
at
2249)
(second
alteration in original). Under this approach, courts may “consult
‘a
limited
class
of
documents’—otherwise
known
as
Shepard
documents—‘to determine what crime, with what elements, a defendant
was convicted of.’”1 Id. (quoting Mathis, 136 S.Ct. at 2249). The
1
Shepard documents, among other things, include judgments of
conviction, charging documents, plea agreement, plea colloquy, and
jury instructions. See, e.g., Chang-Cruz, 659 Fed. Appx. at 117.
8
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
modified categorical approach, however, should be used only in the
limited circumstances where the statute of prior conviction lists
elements in the alternative, thereby creating a question as to
which alternative element formed the basis of the conviction. Id.
(citing Decamps. v. United States, 133 S.Ct. 2276, 2283 (2013). A
statute is not divisible if it simply provides alternative “means”
of satisfying an element of the crime. See Mathis, 136 S.Ct. at
2251.
B.
Warner’s Prior Convictions
It is clear from the sentencing transcripts that the Court
informed Warner he had four prior controlled substance convictions
that potentially qualified as predicate offenses:
THE COURT: There is a Chapter Four enhancement, as
paragraph 23 [of the PSR] establishes. You have five
prior convictions for felony controlled substance
offenses, four of which are accountable for criminal
history scoring purposes and the statutory maximum
penalty for the instant offense is 20 years, so under
guideline 4B1.1, as a career offender, your offense level
is increased to a level 32. Do you have any questions
about that?
THE DEFENDANT: No.
Dkt. No. 16 at 16 (emphasis in original) (quoting sentencing
transcript). The four prior convictions were 1) a 2003 conviction
9
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
in New Jersey, 2) a 2009 conviction in Maryland, 3) an Arizona
conviction in 2010, and 4) an Arizona conviction in 2011.
1.
Warner’s 2003 New Jersey Conviction
On February 10, 2003, Warner was arrested in New Jersey and
charged with eight drug related crimes (dkt. no. 21-1 at 2). On
June 8, 2004, he pleaded guilty to a violation of N.J.S.A. § 2C:357, for possession with intent to distribute cocaine within 1,000'
of a school property or bus. That statute provides in pertinent
part:
Any person who violates subsection a. of N.J.S.2C:35-5 by
distributing, dispensing or possessing with intent to
distribute a controlled dangerous substance or controlled
substance analog while on any school property used for
school purposes which is owned by or leased to any
elementary or secondary school or school board, or within
1,000 feet of such school property or a school bus, or
while on any school bus, is guilty of a crime of the
third degree and shall, except as provided in
N.J.S.2C:35-12, be sentenced by the court to a term of
imprisonment.
Subsection a. of N.J.S.A. 2C:35-5 provides in pertinent part that:
. . . [I]t shall be unlawful for any person knowingly or
purposely:
(1)
To manufacture, distribute or dispense, or to
possess or have under his control with intent to
manufacture, distribute or dispense, a controlled
dangerous substance or controlled substance analog;
or
10
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
(2)
To create, distribute, or possess or have under his
control with intent to distribute, a counterfeit
controlled dangerous substance.
The definition of controlled substance offense under the
U.S.S.G. is defined as:
an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance
(or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b).
It is clear from this statutory language that Warner’s New
Jersey conviction “qualifies as [a predicate offense] [because] the
statute’s elements are the same as, or narrower than, those of the
[guideline definition].” Descamps, 133 S.Ct. at 2281. Indeed, there
are no elements that Warner could have satisfied to be found guilty
of the New Jersey statute that would not also fall within the
guideline definition. Id.
Warner, however, argues that pursuant to the Third Circuit’s
decision in Chang-Cruz his New Jersey conviction does not qualify
as a predicate offense. That argument, however, is meritless.
Chang-Cruz analyzed whether a defendant’s violation of N.J.S.A. §
2C:35-7(a) was a “violent felony” as defined in the Immigration and
11
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
Nationality Act that would have allowed the government to deport
the defendant. Here, whether Warner’s New Jersey conviction is a
violent felony is immaterial; the relevant question is whether his
New Jersey conviction qualifies as a controlled substance violation
under federal sentencing guidelines, which the Court finds that it
does.
Chang-Cruz, therefore, does not apply.
Warner’s 2009 Maryland Conviction
2.
On
February
6,
2009,
Warner
was
arrested
in
Baltimore,
Maryland, and charged with possession with intent to distribute
marijuana in violation of Md. Crim. Law § 5-602.
That statute
provides:
Except as otherwise provided in this title, a person may
not:
(1)
distribute or dispense a controlled dangerous
substance; or
(2)
possess a controlled dangerous substance in
sufficient quantity reasonably to indicate
under
all
circumstances
an
intent
to
distribute or dispense a controlled dangerous
substance.
Both subsections (1) and (2) fall squarely within the guideline
definition of a controlled substance offense. There are no elements
that Warner could satisfy to be found guilty of Md. Crim. Law § 5602 that are not also elements of U.S.S.G. § 4B1.2(b). Therefore,
12
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
Warner’s
prior
Maryland
conviction
qualifies
as
a
predicate
offense.
3.
Warner’s 2010 and 2011 Arizona Convictions
On April 21, 2010, and July 8, 2011, respectively, Warner was
charged with two separate violations of Arizona criminal statute
A.R.S. § 13-3405, which provides that:
A.
A person shall not knowingly:
1.
2.
Possess marijuana for sale.
3.
Produce marijuana.
4.
On
Possess or use marijuana.
Transport for sale, import into this state or
offer to transport for sale or import into
this state, sell, transfer or offer to sell or
transfer marijuana.
review,
this
statutory
language
establishes
that
a
defendant could be found guilty of offering to sell marijuana, an
element not present in the guideline definition. Further, as A.R.S.
§ 13-3405 is clearly divisible into four distinct criminal subsets,
the Court may apply the modified categorical approach to attempt to
“figur[e] out which of the alternative elements listed . . . was
integral to the defendant’s conviction.” Mathis, 136 S.Ct. at 2249.
Looking at the 2010 judgment of conviction (dkt. no. 19-1 at
2), it is evident that Warner pleaded guilty to “Possession of
13
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
Marijuana for Sale,” a violation of A.R.S. § 13-3405(A)(2). The
federal guideline definition of a controlled substance offense
encompasses the elements contained in the statute under which
Warner was convicted in 2010, and it therefore constitutes another
predicate offense — his third — for purposes of his career offender
status.
Turning to Warner’s 2011 conviction (dkt. no. 19-1 at 4), he
pleaded
guilty
to
“Transportation
of
Marijuana,”
which
is
a
violation of A.R.S. § 13-3405(A)(4). As noted, that subsection of
A.R.S. § 13-3405 contains as an alternative element the act of
offering to sell marijuana, which is not explicitly contained in
the
guideline
Application
Note
definition.
1.
to
Notwithstanding
U.S.S.G.
§
4B1.2
this
provides
omission,
further
definition: “For purposes of this guideline — ‘Crime of violence’
and ‘controlled substance offense’ include the offenses of aiding
and abetting, conspiring, and attempting to commit such offenses.”
(emphasis added).
Relying on United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016), Warner contends that, because A.R.S. § 13-3405 contains
offering to sell marijuana as an element, it is broader than the
guideline definition and cannot qualify as a predicate offense. In
14
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
Hinkle, the Fifth Circuit held that a similar Texas statute, which
also contained an offer to sell element, albeit as part of the
definition
of
“delivery,”
was
broader
than
the
guideline
definition.2 Here, unlike the Texas statute, an “offer” is an
element rather than a “means” of satisfying an element and, as
such, subsection 4. of A.R.S. § 13-3405 is not further divisible.
Consequently, the Court may only apply the categorical approach to
that subsection.
In the Court’s opinion, “offering to sell” marijuana is
indistinguishable from “attempting” to sell marijuana as defined in
Application Note 1., which would place the offer to sell element of
A.R.S. § 13-3405(A)(4) within the guideline definition. As such,
Warner’s 2011 Arizona conviction likely qualifies as a predicate
offense for purposes of establishing his career offender status.
Nevertheless, even without his 2011 Arizona conviction, Warner
qualifies as a career offender by use of any two of his three other
prior predicate offenses.3
2
It should be noted that the Fifth Circuit has held that an
“offer to sell” was but one means of satisfying the element of
“delivery” under the Texas statute. Thus, in accord with Mathis,
the court was constrained to use only the categorical approach.
3
Warner also cites several other cases for his proposition
that the Arizona statute does not qualify as a predicate offense.
15
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
IV. CONCLUSION
Warner was correctly sentenced as a career offender because he
had at least two prior qualifying controlled substance offenses
under U.S.S.G. 4B1.2(b). Further, Warner’s claim of ineffective
assistance of counsel based on allegations that his attorney failed
to object to his career offender classification fail.
For the reasons discussed, the Court:
•
GRANTS Warner’s motions to supplement his petition (dkt.
nos. 19, 21, and 23);
•
DENIES Warner’s motion to amend his petition (dkt. no.
15);
•
ADOPTS those portions of the R&R to which Warner did not
object (dkt. no. 16);
•
OVERRULES Warner’s objections (dkt. no. 18);
See Dkt. No. 19 at 5. As with Chang-Cruz, these cases are
inapplicable here, as they address whether certain convictions
qualify for deportation under the Immigration and Nationality Act.
See Rosa-Castenda v. Holder, 630 F.3d 881 (9th Cir. 2011) overruled
on other grounds by Young v. Holder, 655 F.3d 875 (9th Cir. 2011)
(whether violation of A.R.S. § 13-3405 was an aggravated felony);
Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007) (whether
drug conviction was “crime of moral turpitude” warranting
deportation); United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th
Cir. 2003) (whether violation of A.R.S. § 13-3405 was an aggravated
felony).
16
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
•
DENIES and DISMISSES Warner’s petition WITH PREJUDICE
(dkt. no. 1), and ORDERS it stricken for the Court’s
active docket.
It is so ORDERED.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to
the
applicant”
in
such
cases.
If
the
court
denies
the
certificate, “the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of
Appellate Procedure 22.” 28 U.S.C. foll. § 2255(a). The Court finds
it inappropriate to issue a certificate of appealability in this
matter because Warner has not made a “substantial showing of the
denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by
the
district
court
is
debatable
or
wrong,
and
that
any
dispositive procedural ruling by the district court is likewise
debatable. See Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003).
Upon review of the record, the Court concludes that Warner has
17
WARNER V. UNITED STATES
1:15CV164
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 16] AND DENYING PETITION [DKT. NO. 1]
failed to make the requisite showing, and DENIES a certificate of
appealability.
The Court directs the Clerk to transmit copies of this Order
to the pro se petitioner and counsel of record.
DATED: June 1, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?