PAUL W. GRIMM, District Judge.
Pending is James Brown's
On January 10, 2013, a jury in the Circuit Court for Worcester County convicted Brown of first-degree burglary, third-degree burglary, fourth-degree burglary, theft, and malicious destruction of property. See Docket 3-5, ECF No. 10-1. The court sentenced him to concurrent sentences of 20 years of imprisonment on the first-degree burglary conviction, 10 years of imprisonment on the theft conviction, and 60 days in county jail for the malicious destruction of property conviction. See id. The court also imposed a $500 fine and ordered him to pay $170 in court costs for malicious destruction of property. The remaining convictions were merged. Id.
On August 1, 2011, Theodore Elliott's home was burglarized. When Elliot came home from work, he found the back door was open and the door frame appeared to have been pried open. Missing items included three guitars, an amplifier, a laptop, 12 to 15 Playstation 3 video games, several guitar cases, and a Ryobi screw gun with two batteries. See Aug. 2014 Ct. Spec. App. Op. 1-2, ECF 8-2. Several of these items were found for sale at a thrift store on August 3, 2011, and were returned to Elliott. See id. at 2-3.
On the morning of the burglary, a witness named Alexis Butler, who was at her aunt's home — about 1.3 miles from Elliott's home — saw Brown pull into the driveway in a silver truck. Id. at 2. Brown was wearing a cutoff t-shirt, shorts, and black gloves. Trial Tr. 144-45, ECF 21-1. Butler observed that Brown had left his truck running and was carrying a crowbar and entered the house through the back door. Id. Butler spoke to Brown for 10 to 15 minutes. Id. at 148. Brown told her that he was a plumber and an elderly lady had called about a leak. Id. at 145-46. Butler testified that when Detective Robert Trautman presented her a photo array she identified Brown from the photographs in "[n]ot even five seconds." Id. at 149, 161.
Detective Trautman testified that when he had asked Elliott if he knew anyone who could have committed the crime, Elliott mentioned that he suspected a man known to him as "Chuck Morgan." Id. at 193. During the investigation, Trautman showed Butler a photograph of Morgan. Id. Butler said she did not think Morgan was the man who broke into the house. Id.; Post-Conviction R. 14-15, ECF No. 8-4.
At trial, Butler identified Brown as the man she had seen on August 1, 2011. See Aug. 2014 Ct. Spec. App. Op. 2 n.1. Brown testified at trial and denied burglarizing Elliott's home. See Trial Tr. 204-05. He testified that although the thrift store was run by the ministry he founded, he was not closely involved with its operation and was unaware that it was selling property stolen from Elliott's home. See id. at 201-05; Aug. 2014 Ct. Spec. App. Op. 3.
On cross-examination, concerning his contact before trial with an individual named John McLean, Brown said he told McLean that he did not have to come to court because "[w]hat I didn't want him to do was come here and perjure himself by saying that I was with him in Easton [at the time the burglary occurred] when I never told him to say that." Trial Tr. 216; see Aug. 2014 Ct. Spec. App. Op. 3. The State called McLean in rebuttal. McLean testified that Brown asked him to falsely testify in court that they had been together the entire day on August 1, 2011. See Trial Tr. 225-27. McLean testified that after he decided he was not willing to lie, Brown asked him not to appear in court. Id.; Aug. 2014 Ct. Spec. App. Op. 3.
Brown appealed his convictions, presenting four questions for review: (1) whether the trial court erred by failing to grant the defense's motions for a mistrial; (2) whether the trial court erred by admitting unduly prejudicial hearsay evidence that Brown's name was seen on bills, banking statements, and other papers in and around the premises where the stolen property was located; (3) whether the trial court erred by permitting the State to introduce extrinsic evidence that Brown asked a witness to lie for him in another case in direct contravention of Md. Rule 5-608(b); and (4) whether Brown's sentence for malicious destruction of property must be merged with his sentence for first-degree burglary. See Aug. 2014 Ct. Spec. App. Op. 1; Appellant's Br. 2, ECF No. 21-2.
In an unreported opinion, filed on August 11, 2014, the Court of Special Appeals affirmed Brown's convictions. Id. On November 20, 2014, the Court of Appeals of Maryland denied Brown's petition for a writ of certiorari. Brown v. State, 103 A.3d 593 (Md. 2014); see also ECF No. 8-3.
On September 19, 2014, Brown petitioned for post-conviction relief in the Circuit Court for Worcester County, raising claims of ineffective assistance of counsel and prosecutorial misconduct. Brown asserted his trial counsel provided ineffective assistance by failing to: object to an improper identification; present evidence that his truck was a color other than silver; present alibi evidence; notify him of what charges were being tried on January 10, 2013; subpoena defense witnesses; notify him of the State's additional witnesses; investigate a separate suspect; impeach a witness with prior convictions; request that witnesses be sequestered; cross-examine State's witness Alexis Butler effectively; present receipts for the purchase of guitars; object to the State's questioning of him at trial in regard to John McLean; and object to phone call evidence admitted at trial. Brown also claimed the prosecutor committed misconduct by failing to disclose McLean's criminal record, improperly obtaining a postponement, and using false and/or inadmissible evidence against him. Post-Conviction R. 3-14.
The Circuit Court held a hearing on the petition on October 14, 2015, and denied relief on December 21, 2015. Id. at 13-14, 26. Brown on February 18, 2016, filed an application for leave to appeal the denial. Id. at 27-50; Sept. 2016 Ct. Spec. App. Order 1-2, ECF No. 14-1. On September 19, 2016, the Court of Special Appeals dismissed Brown's application, determining it lacked jurisdiction because the application was untimely. See Sept. 2016 Ct. Spec. App. Order 1-2.
In this petition for federal habeas relief, Brown asserts claims of ineffective assistance of trial counsel, prosecutorial misconduct, trial court error, and post-conviction court error. He claims trial counsel was ineffective in failing to: (1) object to an improper pretrial identification; (2) present evidence that his truck was not silver; (3) present alibi evidence; (4) notify him of the charges that were being tried on January 10, 2013; (5) subpoena defense witnesses; (6) notify him of additional State's witnesses; (7) investigate a separate suspect; and (8) object to phone call evidence. See Pet. 15-26, ECF No. 1. Brown also asserts claims of prosecutorial misconduct for: (9) improperly calling a State witness to identify him before trial without defense counsel present; (10) improperly obtaining a postponement; and (11) failing to disclose State witness John McLean's criminal record. Id. at 15-17. Additionally, Brown asserts that (12) his post-conviction counsel was ineffective in failing to subpoena a witness and (13) the prosecutor committed perjury at the post-conviction hearing. Id. at 19, 28. Respondents assert these claims are procedurally defaulted and otherwise are without merit. April 2017 Answer 21-24, ECF No. 21.
In his supplement to the petition, Brown asserts the same claims of trial court error he presented on direct appeal — namely, that the trial court erred by: (14) failing to grant him a mistrial; (15) admitting evidence that his name was on bills, banking statements, and other papers in and around the premises where the stolen property was located; and (16) permitting the State to introduce extrinsic evidence that Brown asked a witness to lie for him in contravention of Md. Rule 65-608(B); and (17) neglecting to merge his sentence for malicious destruction of property.
Section 2254 states that a district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The exhaustion doctrine, codified at 28 U.S.C. § 2254(b)(1),
In O'Sullivan v. Boerckel, the Supreme Court stated: "To ... `protect the integrity' of the federal exhaustion rule, we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts." 526 U.S. at 848 (internal citation omitted); see also id. at 844 ("Section 2254(c) requires only that state prisoners give the state courts a fair opportunity to act on their claims."). The inquiry, then, is "[w]hether a prisoner who fails to present his claims in a petition for discretionary review to a state court of last resort has properly presented his claims to the state courts," and where the answer to this question is "no," the conclusion follows that the petitioner "has procedurally defaulted his claims." Id. at 848. Stated differently, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Id. at 845. The O'Sullivan Court noted, however, that:
Id. at 847-48; see also Breard v. Pruett, 134 F.3d 615, 619 (1998) ("A procedural default also occurs when a habeas petitioner fails to exhaust available state remedies and `the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991))). A procedural default also may occur when a state court declines "to consider the merits [of a claim] on the basis of an adequate and independent State procedural rule." Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999); see also Breard, 134 F.3d at 619.
When a claim is procedurally defaulted, a federal court may not address the merits of a state prisoner's habeas claim unless the petitioner can show: (1) both cause for the default and prejudice that would result from failing to consider the claim on the merits; or (2) that failure to consider the claim on the merits would result in a fundamental miscarriage of justice, i.e., the conviction of one who is actually innocent. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986). "Cause" consists of "some objective factor external to the defense [that] impeded counsel's efforts to raise the claim in state court at the appropriate time." Breard, 134 F.3d at 620. To demonstrate prejudice, a habeas petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (quoting Frady). Even when a petitioner fails to show cause and prejudice for a procedural default, a court still must consider whether it should reach the merits of a petitioner's claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995).
Respondents assert that Brown's claims of ineffective assistance of counsel (Claims 1-8) and prosecutorial misconduct (Claims 9-11), as well as his claims relating to the post-conviction proceedings (Claims 12-13), are procedurally defaulted because these claims were not raised before the state post-conviction court at the appellate level. See April 2017 Answer 21; see also Sept. 2016 Suppl. Answer 4, ECF No. 10. Brown raised these claims before the Circuit Court in his petition for post-conviction relief, and they were denied on their merits. Post-Conviction R. 18-26. Brown takes issue with the Court of Special Appeals' subsequent dismissal of his application for leave to appeal the denial of his petition, seemingly arguing that the Circuit Court did not promptly send him a copy of its decision denying post-conviction relief as required by Md. Rule 4-407(c), that he was unaware of the Circuit Court's decision until January 15, 2016, and that his lateness in filing the application was due to no fault of his own. See Pet. 20-21; Jan. 2016 Mot. to Reissue 2-3, ECF No. 25-7.
The Court of Special Appeals premised its ruling on the Maryland Rules of Procedure:
Sept. 2016 Ct. Spec. App. Order 1.
The appellate court premised its determination on the Maryland Rules of Procedure, which are independent state procedural rules. A federal district court has no authority to alter or amend the state appellate court's ruling on an issue of state procedural law. A federal habeas court generally is unable to review a federal constitutional claim that was "procedurally defaulted" due to the defendant's failure to raise the claim in accordance with state law requirements. Johnson v. Lee, 136 S.Ct. 1802, 1803 (2016); see also Yeatts 166 F.3d at 260 (noting that a procedural default may occur on the basis of an adequate and independent state procedural rule). Of import here, Brown does not assert in his response that he is actually innocent, nor does he identify grounds sufficient to find cause and prejudice to excuse the procedural default.
As noted above, a petition for a writ of habeas corpus may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a) (stating "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States").
A federal court may not grant a writ of habeas corpus unless the state's adjudication on the merits: (1) "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 (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." Id. § 2254(d). A state adjudication is "contrary to" clearly established federal law under § 2254(d)(1) where the state court "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that of the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). Under the "unreasonable application analysis," a "state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, "a federal habeas court may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Williams, 529 U.S. at 411).
Under § 2254(d)(2), "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). "[E]ven if `reasonable minds reviewing the record might disagree' about the finding in question," a federal court may not conclude that the state court decision was based on an unreasonable determination of the facts. Id. (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)).
Further, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." § 2254(e)(1). "Where the state court conducted an evidentiary hearing and explained its reasoning with some care, it should be particularly difficult to establish clear and convincing evidence of error on the state court's part." Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010). This is especially true where the state court has "resolved issues like witness credibility, which are `factual determinations' for purposes of Section 2254(e)(1)." Id.
Brown's claims in this action challenge state court rulings solely as they pertain to Maryland procedural and substantive law. See Suppl. These claims are unreviewable here, as it is not the role of a federal habeas court to second-guess state court rulings as they pertain to matters of state law. See Rose v. Hodges, 423 U.S. 19, 21-22 (1975); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.").
Brown asserts he should have been granted a mistrial on account of witness remarks that caused him prejudice. In rejecting this claim on direct appeal, the Court of Special Appeals stated:
Aug. 2014 Ct. Spec. App. Op. 4.
Trial Tr. 106. Defense counsel asked to approach the bench out of the jury's hearing and the following discussion ensued:
Id. at 106-07.
The court then directed the jury to disregard the witness's testimony about an alleged subsequent burglary by instructing:
Id. at 108.
Later, defense counsel again moved for a mistrial, this time in response to Detective Trautman's testimony concerning his investigation.
Id. at 122-23. Defense counsel asked to approach the bench, and the following discussion occurred outside the hearing of the jury.
Id. at 124-25.
The trial court judge warned this was the "last time" he would caution the State on this matter. Id. at 125. The judge added he did not fault the State, remarking that the problem arose because the defense "belatedly" requested a hearing in limine on Butler's testimony, and as a result the State did not have the opportunity to caution its witnesses in this regard. Id.
The judge proceeded to instruct the jury to "disregard [Detective Trautman's] testimony to the extent that it referred to any investigation in Wicomico County or in Delaware with respect to burglaries or other events which led to the development of evidence in this case." Id. at 126.
Brown's arguments here, as on direct appeal, are premised wholly on state law precedent. See Appellant's Br. 9-13. In deciding whether a mistrial was required because the two portions of the testimony were "so prejudicial to [Brown] that they effectively denied him a fair trial," the Court of Special Appeals looked to several factors enumerated in Braxton v. State, 720 A.2d 27 (Md. Ct. Spec. App. 1998), including whether the inadmissible evidence was repeated, was solicited by counsel, or was stated by a principle witness, as well as whether that witness's credibility was particularly at issue. See Aug. 2014 Ct. Spec. App. Op. 9-11.
Applying these factors, among others, the state appellate court concluded that each instance of disputed testimony at issue consisted of a single statement that immediately was the subject of an objection and a curative instruction. The court also noted the trial judge determined the testimony was not intentionally elicited by the State's Attorney and that neither witness was a principal upon which the State's case depended. See id. at 11. The court continued:
Id. at 10-12.
Turning to Brown's petition, I observe that Brown does not here allege — and, indeed, did not allege before the state appellate court — that this claim violated a federal constitutional right or federal law. See Suppl. 2-10; Appellant's Br. 6-14.
"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." McGuire, 502 U.S. at 68. Brown asserts that under Maryland law, the trial court should have declared a mistrial when Sergeant Crisafulli and Detective Trautman provided the challenged testimony. The Court of Appeals disagreed and found the statements were properly cured and did not deprive him of a fair trial. To the extent Brown presents these issues on federal habeas review as errors of state law, the claims are not cognizable. See id. at 67-68 ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Wilson v. Corcoran, 562 U.S. 1, 16 (2010) (per curiam); Spencer v. Murray, 18 F.3d 237, 239-40 (4th Cir. 1994) (where petitioner complained about the admissibility of evidence, without citing any constitutional provision or mentioning any constitutional right that was infringed, no federal claim was stated).
Even if this claim were cognizable, I would find there is no basis for habeas relief. The Court of Special Appeals' determination that the trial court did not abuse its discretion when it denied Brown's mistrial motions was based on the trial court's curative instructions; the single, isolated nature of the witness testimony; the fact that the testimony was unanticipated and unsolicited by counsel; and other factors, including the existence of other evidence supporting the jury's findings. Brown does not meet his burden under the deferential standard of federal habeas review, and so the state court decision may not be disturbed.
Brown presented this claim to the Court of Special Appeals, arguing that the primary evidence linking him to the burglary at the Elliott house was the fact that some of the property was recovered from the thrift store associated with the ministry he had founded. Brown asserts that the State's attempts at trial to strengthen his connection to the store by eliciting testimony from Officer Lindsey Lloyd that documents with Brown's name on them which were found at the store should have been excluded as inadmissible hearsay, and that the testimony was erroneously admitted to demonstrate his "proprietary interest in the thrift store where the property was located." Aug. 2014 Ct. Spec. App. Op. 12-17; see Suppl. 10-14. Brown's claim is based on the following colloquy at trial:
Trial Tr. 114.
The trial judge directed counsel to approach the bench. The State's Attorney proffered that Lloyd was "going to say that she observed paperwork with [Brown's] name on it." Id. at 115. The judge overruled the objection, and the colloquy continued:
Id. at 115-16.
The Court of Special Appeals distinguished the facts here from those in Bernadyn v. State, 887 A.2d 602, 605 (Md. 2005), a case Brown argued was analogous. In Bernadyn, the Court of Appeals held that hearsay must be excluded as evidence at trial unless it falls within a hearsay exception or is permitted by constitutional provisions or statutes. See Aug. 2014 Ct. Spec. App. Op. 12-13. In Brown's case, the Court of Special Appeals found the disputed testimony spoke only to the fact that the documents observed at the thrift shop had Brown's name on them. See id. at 15. The testimony provided no additional factual assertions, nor was it offered to prove anything related to the substance of the documents. Accordingly, the court concluded that Officer Lloyd's statements were merely testimony regarding circumstantial non-assertive evidence related to the burglary. See id. at 15-16. Further, it stated, any error in admitting the testimony "was rendered harmless beyond a reasonable doubt" when Brown testified the store was associated with his ministry. Id. at 16.
Brown's § 2254 petition identifies no constitutional violation and instead challenges the state court's determination of this claim. See ECF Nos. 1, 13. Because the claim rests on interpretation of state evidentiary rules and does not allege infringement of federal constitutional or other federal protections, it is not a cognizable ground for federal habeas corpus relief. See 28 U.S.C. § 2254(a); McGuire, 502 U.S. at 69; Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998). Habeas relief is proper only "when a state court's evidentiary ruling infringes upon a specific constitutional protection or is so prejudicial that it amounts to a denial of due process." Turner v. Armontrout, 845 F.2d 165, 169 (8th Cir. 1988), cert. denied, 488 U.S. 928. Here, Brown does not allege, nor does the record suggest, a violation of Brown's constitutional rights. Brown does not show the state court decision was contrary to or involved an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts presented in the state court proceeding. This claim provides no cause for federal habeas relief and will be denied.
Brown argued on appeal that the trial court improperly admitted evidence that Brown had asked McLean to falsely testify that they were together on the day of the burglary and that McLean's statement was made "in the context of a separate burglary case," i.e., the burglary of Alexis Butler's aunt's house. Appellant's Br. 21-22; see Aug. 2014 Ct. Spec. App. Op. 16.
In affirming the decision of the trial court as to this claim, the Court of Special Appeals noted that Maryland Rule 5-616(b)(2) provides that "extrinsic evidence contradicting a witness's testimony ordinarily may be admitted on non-collateral matters." Aug. 2014 Ct. Spec. App. Op. 17. The rule also provides: "[i]n a court's discretion ... extrinsic evidence may be admitted on collateral matters." Id. (alterations in original). The Court explained:
Id. at 17-18.
Because Brown fails in his federal petition to allege abridgement of a specific constitutional right or federal law, his claim is not cognizable on federal habeas review. Admissibility rulings support the grant of habeas relief only when the alleged error infringes upon a specific constitutional right or is so prejudicial that it amounts to the denial of due process. See Turner, 845 F.2d at 169. The issue is not whether the trial court erred in admitting the evidence, but whether its admission "resulted in a trial so fundamentally unfair" that the petitioner was denied due process of law. See Rainer v. Dep't of Corrs., 914 F.2d 1067, 1072 (8th Cir. 1990). Brown presents no evidence to suggest a violation of due process or any other constitutional infringement. Accordingly, habeas relief will be denied as to this claim.
Brown alleged on direct appeal that under the evidence presented at trial, his malicious destruction of property conviction would have had to have been based on the same facts as his burglary conviction, and so his sentence for malicious destruction of property must be vacated under the merger doctrine. See Suppl. 18-20; Appellant's Br. 22-24.
This claim is wholly premised on Maryland law and Maryland sentencing provisions in criminal cases. See Suppl. 18-20; Appellant's Br. 22-24. It is not the role of this Court to second-guess those conclusions. See Rose v. Hodges, 423 U.S. 19, 21-22 (1975). And there is no federal constitutional right to merger of convictions for the purpose of sentencing. See Hill v. Hershberger, No. PJM-12-2386, 2013 WL 3364374, at *7 (D. Md. July 2, 2013) (citing Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993)). The merger of convictions presents a question that is exclusively a state law matter and is not cognizable in a federal habeas corpus proceeding. Id.
A certificate of appealability ("COA") may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Buck v. Davis, ___ U.S. ___, 137 S.Ct. 759, 773 (2017) (citing Miller-El v. Cockerell, 537 U.S. 322, 336 (2003)). To meet this burden, an applicant must 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 were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). When a petition is denied on procedural grounds, a petitioner meets the standard with a showing that reasonable jurists "would find it debatable whether the petition states a valid claim of the denial of a constitutional right" and "whether the district court was correct in its procedural ruling." Id. at 478. I find that Brown has not made the requisite showing and therefore decline to issue a certificate of appealability.
Upon review of the petition for writ of habeas corpus, the response, and the exhibits, this Court determines that Brown is not entitled to federal habeas relief. There is no basis upon which to find constitutional deficiencies in the state court proceedings. Accordingly, the Court will in a separate order deny and dismiss the petition and decline to issue a certificate of appealability.
§ 2254(b)(1). Subsection (c) provides: "An applicant shall not be deemed to have exhausted the remedies available in the courts of the state, within the meaning of this section, if he has the right under the law of the state to raise, by any available procedure, the question presented." Id. § 2254(c).
