VICTORIA A. ROBERTS, District Judge.
Michigan state prisoner Keenan King filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. King is incarcerated at the Macomb Correctional Facility in New Haven, Michigan. He challenges his convictions for two counts of armed robbery, two counts of possession of a firearm during the commission of a felony, and unlawful imprisonment.
The Court denies the petition.
The Michigan Court of Appeals described the facts leading to King's convictions as follows:
People v. King, No. 279809, 2008 WL 5197086, *1 (Mich. Ct. App. Dec. 11, 2008). The Michigan Court of Appeals' recitation of the facts is presumed correct on habeas review. See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
A jury convicted King in Jackson County Circuit Court of two counts of armed robbery, two counts of assault with intent to rob, one count of unlawful imprisonment, and two counts of possession of a firearm during the commission of a felony. The trial court set aside the assault with intent to rob convictions, finding them to be lesser-included offense of armed robbery. On July 19, 2007, the trial court sentenced King to 18 to 40 years in prison for each of the armed robbery convictions and 8 to 15 years for the unlawful imprisonment conviction, concurrent to one another and consecutively to two concurrent two-year terms of imprisonment for the felony-firearm convictions.
King filed an appeal of right raising these claims through counsel and in an pro per brief:
The Michigan Court of Appeals affirmed King's convictions and sentences. People v. King, No. 279809, 2008 WL 5197086 (Mich. Ct. App. Dec. 11, 2008).
King filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal, People v. King, 483 Mich. 980 (Mich. Apr. 28, 2009), and denied King's motion for reconsideration. People v. King, 484 Mich. 874 (Mich. Aug. 6, 2009).
King then filed a motion for relief from judgment in the trial court. He raised these claims:
The trial court denied the motion. People v. King, No. 07-003708-FC (Jackson County Cir. Ct. March 5, 2010). The Michigan Court of Appeals and Michigan Supreme Court each denied King's applications for leave to appeal the denial of his motion for relief from judgment. People v. King, No. 299794 (Mich. Ct. App. Nov. 18, 2010); People v. King, 489 Mich. 971 (Mich. June 28, 2011).
King then filed this habeas petition. He raises these claims:
The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA provides:
28 U.S.C. § 2254(d).
"A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "[T]he `unreasonable application' prong of the statute permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "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, ___ U.S. ___, 131 S.Ct. 770, 789 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412. Section 2254(d) "does not require citation of [Supreme Court] cases — indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). "[W]hile the principles of "clearly established law" are to be determined solely by resort to Supreme Court rulings, the decisions of lower federal courts may be instructive in assessing the reasonableness of a state court's resolution of an issue." Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D. Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
King argues that his attorney rendered ineffective assistance at sentencing in failing to object to offense variables 7 and 16. The relevant sentencing statute directs 50 points be scored under OV 7 in cases of "aggravated physical abuse." Mich. Comp. Laws § 777.37(1). Aggravated physical abuse occurs when "[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense." Id. King further argues that the trial court erred in scoring five points for OV 16 because this offense variable applies only to crimes against property, not crimes against people.
To establish that he received ineffective assistance of counsel, a petitioner must show, first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner may show that counsel's performance was deficient by establishing that counsel's performance was "outside the wide range of professionally competent assistance." Id. at 689. This "requires a showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687.
To satisfy the prejudice prong, 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 court's review of counsel's performance must be "highly deferential." Id. at 689. Habeas relief may be granted only if the state-court decision unreasonably applied the standard for evaluating ineffective-assistance-of-counsel claims established by Strickland. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009). "The question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable — a substantially higher threshold." Id. at 123 (internal quotation omitted).
The Michigan Court of Appeals held, on direct review, that King's conduct was excessively cruel, harsh, and severe, justifying the scoring of 50 points for OV 7. King, 2008 WL 5197086 at *2. The state court also held that counsel was not ineffective for failing to object to the scoring of OV 7 because it was correctly scored. "[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting on habeas review." Bradshaw v. Richey, 546 U.S. 74, 76 (2005). "[S]tate courts are the ultimate expositors of state law." Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Given that the Michigan Court of Appeals held that offense variable 7 was correctly scored under Michigan law, King's attorney was not ineffective in failing to raise a futile objection. Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) ("Omitting meritless arguments is neither professionally unreasonable nor prejudicial.").
King also challenges the scoring of offense variable 16. He argues that points should be scored for this offense variable only for crimes against property, not crimes against people. The Michigan Court of Appeals held that the trial court erred in scoring five points for OV 16 because armed robbery is a crime against a person, not property, but that the error was harmless because a five-point reduction in King's total offense variable score would not affect the guidelines range. King, 2008 WL 5197086 at *3. Additionally, the Michigan Court of Appeals held that because King was not prejudiced by defense counsel's failure to object, defense counsel was not ineffective in failing to object. Id. This Court must defer to the state court's interpretation of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Because the state court found only harmless error in the scoring of the guidelines, defense counsel was not ineffective for failing to object to the guidelines. Habeas relief is denied on this claim.
King argues that his convictions for two counts of armed robbery and two counts of felony firearm violated the Double Jeopardy Clause because they arose from the same transaction.
The Double Jeopardy Clause of the Fifth Amendment provides, "No person . . . shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. This clause affords defendants protection against three basic harms: second prosecution for the same offense after acquittal, second prosecution for the same offense after conviction, and multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). "Because the substantive power to prescribe crimes and determine punishments is vested with the legislature . . ., the question under the Double Jeopardy Clause whether punishments are `multiple' is essentially one of legislative intent." Ohio v. Johnson, 467 U.S. 493, 499 (1984) (internal citations omitted). "Where ... a legislature specifically authorizes cumulative punishment under two statutes for the same conduct, regardless of whether those two statutes prescribe the `same' conduct, . . . a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial." Missouri v. Hunter, 459 U.S. 359, 368-69 (1983). In determining whether the Michigan legislature has intended to authorize cumulative punishments in the circumstances presented here, this Court is "bound by a state court's determination of the legislature's intent." Banner v. Davis, 886 F.2d 777, 779-80 (6th Cir. 1989); see also McCloud v. Deppisch, 409 F.3d 869, 874 (7th Cir. 2005) (holding that a federal court is "bound by" state court's interpretation of legislative intent).
The Michigan Court of Appeals has concluded that multiple armed robbery and felony-firearm convictions do not violate the Double Jeopardy Clause because the legislature intended to impose multiple punishments in circumstances involving multiple victims. People v. Wakeford, 418 Mich. 95, 111-12 (Mich. Ct. App. 1983). In this case, the Michigan Court of Appeals held that because the crimes were committed against two different victims and each victim was robbed at gunpoint, no double jeopardy violation occurred.
Accepting, as the Court must, the state court's interpretation of legislative intent, the Court finds that King's convictions do not violate the Double Jeopardy Clause. As evidenced by the decision in Wakeford, the Michigan courts have ruled that the Michigan Legislature intended to impose multiple punishments where a defendant engages in conduct that has multiple victims. The determination by the Court of Appeals is supported by the evidence and legal authority discussed above. Thus, King was not subjected to multiple punishments for a single criminal act, but was instead subjected to multiple punishments for multiple criminal acts. This does not offend the Double Jeopardy Clause. See, e.g., United States v. Redditt, 87 F. App'x 440, 447 (6th Cir. May 21, 2003) (the Double Jeopardy Clause is not violated where a defendant receives multiple punishments for committing separate criminal acts because he or she was not subjected to multiple sentences for the same offense). The Court denies habeas relief on this claim.
King claims that offense variable 8 was scored based upon inaccurate information because, under Mich. Comp. Laws § 777.38(1)(a), no points are to be scored if the sentencing offense is kidnapping. King argues that unlawful imprisonment is a form of kidnapping and no points should therefore have been scored for that offense.
A sentence violates due process if it is based on "misinformation of constitutional magnitude[,]" Roberts v. United States, 445 U.S. 552, 556 (1980), or "extensively and materially false" information, which the defendant had no opportunity to correct. Townsend v. Burke, 334 U.S. 736 (1948). "Townsend and its progeny are generally viewed as having established a due process `requirement that a defendant be afforded the opportunity of rebutting derogatory information demonstrably relied upon by the sentencing judge, when such information can in fact be shown to have been materially false.'" Stewart v. Erwin, 503 F.3d 488, 495 (6th Cir. 2007) (quoting Collins v. Buchkoe, 493 F.2d 343, 345 (6th Cir. 1974)).
King disagrees with the trial court's scoring of this offense variable, but has not shown that the trial court relied on "extensively and materially false" information that he had no opportunity to correct. Townsend, 334 U.S. 736, 741 (1948). The trial court's determination of the facts was reasonable. 28 U.S.C. § 2254(d)(2). The Michigan Court of Appeals held that the offense variable was correctly scored under Michigan law. In addition, his sentences are within the statutory maximum penalty for armed robbery (life) and unlawful imprisonment (15 years). Mich. Comp. Laws § § 750.317 & 750.349b. Accordingly, no deprivation of due process occurred, and King is not entitled to habeas relief on the basis of this claim.
King claims that his right to an impartial jury drawn from a fair cross-section of the community was violated because there was only one African-American person in the array from which his jury was selected.
The Sixth Amendment guarantees a defendant the right to a jury venire that is "designed to represent a fair cross section of the community." Duren v. Missouri, 439 U.S. 357, 363-64 (1979). To establish a prima facie violation of the fair-cross-section requirement, the defendant must show:
Id. at 364, citing Taylor v. Louisiana, 419 U.S. 522 (1975). "The Sixth Amendment guarantees only the opportunity for a representative jury, not a representative jury itself." Ambrose v. Booker, 684 F.3d 638, 645 (6th Cir. 2012). King bears the burden of establishing each element of the prima facie fair-cross section claim, including underrepresentation and systematic exclusion. See Berghuis v. Smith, 559 U.S. 314, 332 (2010); Duren, 439 U.S. at 364.
King fails to establish a prima facie fair cross-section claim. He bases his claim solely on the fact that there was a single African-American person on the jury venire from which his jury was drawn. It is well-established that "[e]vidence of a discrepancy on a single venire panel cannot demonstrate systematic exclusion." Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir. 1989). See also United States v. Orange, 49 F. App'x 815, 817 (10th Cir. Oct. 18, 2002) (holding that evidence of a discrepancy on a single venire panel is insufficient to demonstrate systematic exclusion); United States v. Williams, 264 F.3d 561, 568 (5th Cir. 2001).
The Michigan Court of Appeals denied King's claim, finding that he failed to identify "any evidence suggesting that any underrepresentation of African-Americans in his particular jury was due to systematic exclusion." King, 2008 WL 5197086 at *5. King has presented no evidence that other venires did not include a fair representation of African Americans, or that the method used to draw the jury pool was designed to exclude African Americans. Accordingly, the Michigan Court of Appeals's rejection of his claim was a reasonable application of Duren.
Defendant argues that he was denied his constitutional right to the effective assistance of counsel by his attorney's failure to: request a continuance to allow him to locate and call as witnesses two co-defendants; impeach Germaine Overton's testimony; or object to vague and incorrect jury instructions.
To establish that he received ineffective assistance of counsel, a petitioner must show, first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, King argues that his attorney should have requested a continuance to allow him to locate and call as witnesses two men, Harold James Cargill and Brack Lorenzo Rucker. King identifies these two men as his co-defendants and claims that if they had been called to testify the outcome of his trial would have been different because he would have presented an entirely different trial strategy. King fails to identify what this different trial strategy would have been. In addition, King testified for the prosecution at Cargill's trial and admitted to joining Cargill and Rucker in the robbery. See Cargill v. Rapelje, No. 2:11-CV-11360, 2012 WL 6808514, *2 (E.D. Mich. Nov. 30, 2012). Thus, it is apparent that neither Cargill's nor Rucker's appearance at trial would have aided the defense.
King next argues that counsel was ineffective for failing to impeach Overton's testimony, which, King claims, was rife with inconsistencies. King fails to identify specific areas of cross-examination that counsel failed to explore or to identify specific questions counsel should have asked but did not. The trial transcript shows that defense counsel cross-examined Overton regarding apparent inconsistencies in his testimony. King's conclusory allegation that counsel could have done more is insufficient to warrant habeas relief.
Finally, King argues that counsel was ineffective in failing to object to vague and incorrect jury instructions. King's argument, however, fails to identify which jury instructions were inadequate or in what way the instructions were incorrect. The Court will not create an argument for him. His conclusory claim is insufficient to warrant habeas corpus relief.
King argues that habeas relief should be granted because the prosecutor committed misconduct. King contends that the prosecutor vouched for the credibility of prosecution witnesses, misstated the evidence, and referred to evidence outside the scope of the case. Respondent argues these claims are procedurally default. The Court finds it unnecessary to address the question of procedural default, it is not a jurisdictional bar to review of the merits of an issue, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and "federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits," Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). Application of a procedural bar would not affect the outcome of this issue, and it is more efficient to proceed directly to the merits.
The "clearly established Federal law" relevant to a habeas court's review of a prosecutorial misconduct claim is the Supreme Court's decision in Darden v. Wainwright, 477 U.S. 168, 181 (1986). Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2153 (June 11, 2012). In Darden, the Supreme Court held that a "prosecutor's improper comments will be held to violate the Constitution only if they `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). This Court must ask whether the Michigan Court of Appeals' decision denying King's prosecutorial misconduct claim "`was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Parker, ___ U.S. at ___, 132 S. Ct. at 2155, (quoting Harrington, 562 U.S. at ___, 131 S. Ct. at 786-87.
King points to only one passage in the transcript to support his prosecutorial misconduct claim. He argues that the following portion of the prosecutor's argument was inappropriate:
Tr. 6/11/07 at 327.
King raised his prosecutorial misconduct claims on collateral review. The trial court, although finding the claim defaulted, considered the merits of the claims and found them lacking. This Court agrees.
Prosecutors may not vouch for a witness's credibility. Prosecutorial vouching and an expression of personal opinion regarding the accused's guilt "pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence." United States v. Young, 470 U.S. 1, 18-19 (1985). In this case, the prosecutor's arguments explored the evidence presented at trial, the demeanor of witnesses and argued that these factors supported Kavaciae's credibility. The prosecutor did not imply any special knowledge about Kavaciae's veracity. He simply argued that the evidence supported a finding that Kavaciae was credible. The argument was not improper.
King's argument that the prosecutor misstated evidence and went outside the scope of the case is unsupported by any specific allegations or reference to the record. The Court finds that the state court's denial of these claims as vague and unsupported, is a reasonable application of Darden.
King argues that habeas relief should be granted because the trial court's failure to control the proceedings denied him his right to a fair trial. Specifically, he alleges that the trial court failed to prevent the prosecutor from vouching for witnesses and failed to give a curative instruction regarding the prosecutor's misconduct. As discussed above, King has not shown that the prosecutor engaged in misconduct. King also fails to specify any other way the trial court purportedly failed to control the proceedings. This claim is without merit.
King argues that the trial court erred in directing him to pay $800 in restitution. Mich. Comp. Laws § 780.766 provides that a "court shall order . . . that the defendant make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction." King argues that the court incorrectly imposed restitution without assessing his ability to pay or substantiating the amount of loss sustained by the victims.
Subject matter jurisdiction exists under § 2254 "`only for claims that a person is `in custody in violation of the Constitution or laws or treaties of the United States.'" Washington v. McQuiggin, 529 F. App'x 766, 772 (6th Cir. July 11, 2013) (quoting Dickerson v. United States, 530 U.S. 428, 439 n.3 (2000); 28 U.S.C. § 2254(a)). Restitution orders generally "fall outside the scope of the federal habeas statute because they do not satisfy the `in custody' requirement of a cognizable habeas claim." Id. A federal court does not obtain jurisdiction over a challenge to a restitution order merely because the petitioner is in custody at the time he files his claim. There must be "a nexus between the petitioner's claim and the unlawful nature of the custody." Bailey v. Hill, 599 F.3d 976, 980 (9th Cir. 2010). A restitution order "falls outside . . . the margins of habeas . . . because it is not a serious restraint on . . . liberty as to warrant habeas relief." McQuiggin, 2013 WL 3466439 at *5. Where a petition raises a challenge to a restitution order, the district court must dismiss that portion of the petition for lack of subject matter jurisdiction. Id. at *6. The Court lacks jurisdiction to address this claim; it does not relate to King's custody.
King's eleventh and twelfth claims concern his argument that he was denied his right to a fair and impartial juror because a juror who admitted to having previously having had a conversation with Overton was permitted to remain on the jury and the trial court failed to conduct an adequate inquiry into the allegations of improper contact.
King, 2008 WL 5197086 at *5.
The Michigan Court of Appeals concluded that the allegations failed to show that the juror's impartiality was influenced by any extraneous influence:
King, 2008 WL 5197086 at *6.
The Sixth Amendment right to trial by jury encompasses the right to a fair trial by a panel of impartial jurors. Irvin v. Dowd, 366 U.S. 717 (1961). The right to due process, however, does not necessarily require a new trial in every instance in which a juror is potentially biased. Smith v. Phillips, 455 U.S. 209, 217 (1982). Rather, "[d]ue process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Id.
"As a matter of law, clearly established Supreme Court precedent requires that a criminal defendant be afforded the right to confront the evidence and the witnesses against him, and the right to a jury that considers only the evidence presented at trial." Doan v. Brigano, 237 F.3d 722, 733 n.7 (6th Cir. 2001) (citations omitted), overruled on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003). "Thus, under clearly established federal law, jury exposure to extrinsic evidence or other extraneous influence violates a defendant's Sixth Amendment rights, . . . and a state court decision that conflicts with this rule may justify habeas relief under the standard set forth in the AEDPA." Fletcher v. McKee, No. 08-1240, 2009 WL 4755293, *3 (6th Cir. Dec. 11, 2009).
The right to an impartial jury imposes on the trial judge the duty to investigate allegations of external jury influences. Remmer v. United States, 347 U.S. 227, 229-230 (1954). The Sixth Circuit Court of Appeals has held that a Remmer hearing is required "in all cases involving an unauthorized communication with a juror or the jury from an outside source that presents a likelihood of affecting the verdict." United States v. Rigsby, 45 F.3d 120, 123 (6th Cir. 1995). See also Nevers v. Killinger, 169 F.3d 352, 373 (6th Cir.1999) ("When a trial court is presented with evidence that an extrinsic influence has reached the jury which has a reasonable potential for tainting that jury, due process requires that the trial court take steps to determine what the effect of such extraneous information actually was on that jury."); overruled on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). Absent an outside influence on a juror or the jury, the need for a Remmer hearing does not arise. United States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997).
The record shows that after the trial court learned about Overton's alleged contact with a juror, the trial court questioned that juror individually. The juror denied discussing the case with Overton and said that she could and would decide based upon the evidence presented in court. A juror's statements regarding his or her own impartiality may be given great weight by a trial court judge in determining impartiality because "surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter." Remmer, 347 U.S. at 217 n.7 (internal quotation omitted). The trial court credited the juror's testimony that she would not be influenced by any extraneous contact. King has failed to present any evidence or argument which would rebut the presumption that the state court's finding was correct. In addition, King failed to show the state court's inquiry lacked breadth and depth. The prosecutor and defense counsel were present at the hearing. The juror was placed under oath before to being questioned. The trial court inquired about the juror's alleged contact with Overton and the juror's ability to consider only the evidence presented at trial. King fails to show any deficiencies in the inquiry. This Court cannot say that the state court's handling of the matter was contrary to or an unreasonable application of Supreme Court precedent; habeas relief is denied.
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules Governing Section 2254 Proceedings now requires that the Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
A 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). A petitioner 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) (citation omitted). The Court concludes that reasonable jurists would not debate the conclusion that the petition fails to state a claim upon which habeas corpus relief should be granted. Therefore, the Court denies a certificate of appealability.
For the foregoing reasons, the petition for a writ of habeas corpus and a certificate of appealability are DENIED; this matter is DISMISSED WITH PREJUDICE.
