HAYWOOD S. GILLIAM, JR., District Judge.
Before the Court is Petitioner Willis Dismuke Murray's petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254, challenging the validity of a conviction obtained against him in state court. Dkt. No. 1 ("Pet."). Respondent has filed an answer. Dkt. Nos. 22 and 23. Petitioner has not filed a traverse, and the deadline to do so has since passed. The Court has carefully considered the briefs submitted by the parties. For the reasons set forth below, the petition is DENIED.
On August 26, 2014, the Contra Costa County District Attorney filed an amended information charging petitioner with forcible rape (Cal. Penal Code § 261(a)(2)), kidnapping for a sexual purpose (Cal. Penal Code § 209(b)(1)) and attempted second degree robbery (Cal. Penal Code §§ 212, 212.5(c) & 664). The information also alleged that, in connection with the rape count, Petitioner substantially increased the risk of harm by kidnapping the victim. Ans., Ex. 1
On September 23, 2014, a jury found Petitioner guilty of forcible rape, but found the kidnapping allegation not true. The jury acquitted Petitioner of kidnapping for a sexual purpose and was unable to reach a verdict on the attempted robbery count. CT at 663-64. The trial court declared a mistrial on the attempted robbery count, and the prosecutor subsequently dismissed this count. CT at 663, 676. On November 2, 2014, Petitioner was sentenced to a term of eight years. CT 675-76, 83.
On March 28, 2016, the California Court of Appeal affirmed the conviction in an unpublished decision. People v. Murray, 2016 WL 1179434 (Cal. Ct. App. Mar. 28, 2016). On June 8, 2016, the California Supreme Court denied summarily denied the petition for review. Ans., Ex. 8.
On October 5, 2016, Petitioner filed the instant federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1. On November 9, 2016, the Court found that the petition stated the following cognizable claims: (1) juror misconduct; (2) trial court error in failing to declare a mistrial; and (3) ineffective assistance of counsel for failing to investigate or use Petitioner's sister as a witness. Dkt. No. 5. The Court ordered Respondent to show cause why a writ of habeas corpus should not be granted. Dkt. No. 5. On January 11, 2017, Respondent filed a motion to dismiss Claim No. 3 for failure to exhaust, which the Court granted.
On March 18, 1997, Petitioner raped Jane Doe, but he was not charged at that time. In November 2010, Petitioner was arrested for a separate offense and a DNA swab was taken pursuant to the arrest. The DNA was found to match the DNA from the vaginal sample taken from Jane Doe at the time of the 1997 rape. In 2011, Petitioner was charged with the 1997 rape of Jane Doe, and the information also charged him with kidnapping and attempted second-degree robbery. Ans., Ex. 2 ("RT") at 339-41, 361-63.
Because Petitioner's claims are unrelated to the facts of the underlying offense, the Court will not relate the evidence presented at trial regarding the offense. The Court only relates the facts related to Petitioner's claims that the trial court erred in failing to discharge a juror for cause and in failing to discharge the jury after it twice reported that it was unable to reach a verdict.
The trial began on September 2, 2014. On September 9, 2014, during a break, Juror No. 6 approached the prosecution witness, Jennifer Smith, a forensic DNA analyst for Cellmark Forensics. Ms. Smith was waiting to take the stand. Juror No. 6 asked Ms. Smith where she was from, and Ms. Smith responded that she was from Dallas, Texas. Juror No. 6 commented that it wasn't too terrible of a flight, and Ms. Smith agreed and mentioned that she flew Southwest. RT 896-900.
The court admonished her for speaking to the juror, and instructed her to respond to any future interactions with, "I'm sorry, I cannot speak with you because you're a juror" and promptly end the conversation. Ms. Smith stated that although the prosecutor had pre-instructed her not to speak to jurors, she had responded to the juror's questions because she did not want to be rude. RT 896-900.
After this admonishment, Ms. Smith took the stand and, in her capacity as an expert in DNA analysis and identification, testified regarding testing the buccal swabs taken from Petitioner in 2010, and confirming that the DNA in the buccal swab matched the DNA in the 1997 vaginal sample. She described receiving and processing the buccal swabs; the DNA extraction procedure; and the development of the DNA profile. She testified that she reviewed the DNA profile of the vaginal swab and the related report. RT 900-44.
On the afternoon of September 16, 2014, the jury retired for deliberations. RT 1530. On September 17, 2014, the jury returned for deliberations. RT 1540-41. On the morning of September 18, 2014, the jury informed the court that they were unable to reach a decision and requested a break. RT 1543. The court brought in the jury and asked the jury foreperson to inform him, without indicating where the jurors stood on the vote, if the jury required assistance with any legal issues or needed additional readback from the court reporter. RT 1547. The jury foreperson stated that neither was needed. RT 1547. The court then requested that the jury continue their deliberations:
So if you'd return to the jury room, I appreciate it.
RT 1548-49. The jury left the courtroom and went to lunch almost immediately thereafter, returned at 1:30 p.m., and deliberated until 3 p.m. RT 1551, 1557. The jury then adjourned for three days. RT 1551.
On September 22, 2014, the jury resumed deliberations. RT 1551. Less than half an hour after restarting their deliberations, the jury again sent a note to the court indicating that they could not reach a decision. RT 1553. The court expressed concern that the jury had only deliberated for a total of approximately five hours:
RT 1557. The court brought the jury back in and further instructed the jury as follows:
RT 1558-62. The jury returned to deliberate. Later that afternoon, the jury sent a note seeking clarification as to the kidnapping enhancement charge. The court referred the jury to jury instruction 3719 for charge enhancement part B; to jury instruction 1203 for the elements of kidnapping; and to jury instruction 3175 for charge enhancement part C. RT 1563. The court also instructed the jury to consider the court's response in connection with all of the other jury instructions. RT 1563.
The next day, September 23, 2014, the jury returned to continue deliberations. Later that morning, the jury informed the court that it had reached a verdict on counts one and two, but was unable to reach a verdict as to count 3. RT 1566. The court declared a mistrial as to count 3, and accepted the guilty verdict with respect to count one (forcible rape), the not guilty verdict with respect to count two (kidnapping), and the not true finding with respect to the enhancement to the rape count. RT 1570-72.
A petition for a writ of habeas corpus is governed by AEDPA. This Court may entertain a petition 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).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(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." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Additionally, habeas relief is warranted only if the constitutional error at issue "`had substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court's jurisprudence. "[C]learly established Federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. A state court decision is "contrary to" clearly established Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [the Supreme Court's] 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 [its] precedent." Id. at 405-06. "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. "A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous." Mitchell v. Esparza, 540 U.S. 12, 17 (2003).
The state court decision to which § 2254(d) applies is the "last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). The final state court decision from the California Supreme Court summarily denied the petition for review. The California Court of Appeal's decision was the last reasoned state court decision that addressed the claims raised by Petitioner. Accordingly, in reviewing this habeas petition, this Court reviews the California Court of Appeal's decision. See Ylst, 501 U.S. at 803-04; Barker, 423 F.3d at 1091-92.
Petitioner alleges the following cognizable claims for habeas relief: (1) juror misconduct; and (2) error by the trial court in failing to declare a mistrial when the jury was deadlocked.
Petitioner argues that a juror committed misconduct when she spoke to a state witness. Pet. at 5. The state court rejected this claim as follows:
Murray, 2016 WL 1179434, at *1-*2.
The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of impartial jurors. U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S. 717, 722 (1961). "Even if only one juror is unduly biased or prejudiced, the defendant is denied his constitutional right to an impartial jury." Tinsley v. Borg, 895 F.2d 520, 523-24 (9th Cir. 1990) (internal quotation marks omitted). The Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217 (1982). The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Id. Due process only 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. Such determinations may properly be made at a hearing. Id.
Clearly established Supreme Court precedent "compels a criminal trial court to consider the prejudicial effect of any external contact that has a `tendency' to influence the verdict, irrespective of whether it is about the matter pending before the jury." Tarango v. McDaniel, 837 F.3d 936, 946 (9th Cir. 2016) (citing Mattox v. United States, 146 U.S. 140, 150-51 (1892)) (emphasis in original). "[P]rivate communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." Mattox v. United States, 146 U.S. 140, 142 (1892). Mattox's "presumption is not conclusive, but the burden rests heavily on the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant." Remmer v. United States, 347 U.S. 227, 229 (1954). A state court decision that contravenes the "bedrock principles" of Mattox and Remmer is "`contrary to' clearly established Supreme Court precedent." Godoy, 861 F.3d at 960 (quoting 28 U.S.C. § 2254(d)(1).
When faced with allegations of improper contact between a juror and an outside party, courts apply a settled two-step framework. Godoy, 861 F.3d at 959. At step one, the court asks "whether the contact was `possibly prejudicial,' meaning it had a `tendency' to be `injurious to the defendant.'" Id. (quoting Mattox, 146 U.S. at 150). If so, "the contact is `deemed presumptively prejudicial' and the court proceeds to step two, where the `burden rests heavily upon the [state] to establish' the contact was, in fact, `harmless.'" Id. (quoting Remmer, 347 U.S. at 229). "If the state does not show harmlessness, the court must grant the defendant a new trial." Id. (internal quotation marks and citation omitted). "When the presumption arises but the prejudicial effect of the contact is unclear from the existing record, the trial court must hold a `hearing' to `determine the circumstances [of the contact], the impact thereof upon the juror, and whether or not it was prejudicial.'" Id. (quoting Remmer, 347 U.S. at 229-30).
"[I]f an unauthorized contact with a juror is de minimus, the defendant must show that the communication could have influenced the verdict before the burden of proof shifts to the prosecution." Caliendo v. Warden of Calif. Men's Colony, 365 F.3d 691, 696 (9th Cir. 2004). But the Mattox presumption applies to any unauthorized communication that "crosses a low threshold to create the potential for prejudice" and "raises a risk of influencing the verdict." Id. at 697. The government must rebut the Mattox presumption with a strong contrary showing that the improper contact was harmless. See id. at 698 (reviewing de novo correct question of whether, after an evidentiary hearing, government met its heavy burden of proof under Mattox and Remmer).
In determining whether an unauthorized communication raised a risk of tainting the verdict, courts should consider factors such as whether the unauthorized communication concerned the case, the length and nature of the contact, the identity and role at trial of the parties involved, evidence of actual impact on the juror, and the possibility of eliminating prejudice through a limiting instruction. See Caliendo, 365 F.3d at 697-98 (critical prosecution witness' unauthorized conversation with multiple jurors for 20 minutes was possibly prejudicial under Mattox, even if conversation did not concern the trial).
The state court's conclusion that the contact was neither presumptively prejudicial nor actually prejudicial is consistent with Mattox and Remmer, and was not based on an unreasonable determination of the facts. The improper contact at issue in this case differs in critical ways from the improper contact in the relevant Supreme Court jurisprudence. In Mattox, the bailiff stated in the jury's presence that the victim was the third person that the defendant had killed and that the defendant would be tried again after the trial. Mattox, 146 U.S. at 142-44. The petitioner sought a new trial on numerous grounds, including the ground that the bailiff's contact with the jurors was improper. The petitioner proffered affidavits from the jurors regarding the bailiff's statements in support of his motion, and the court refused to consider the affidavits. The Supreme Court found that the trial court committed reversible error in failing to consider juror affidavits regarding the bailiff's statements, but granted the new trial on different grounds. Id. at 150-51. In Remmer, an unnamed person told the foreman of the jury that he "could profit by bringing in a verdict favorable" to the defendant. Remmer, 347 U.S. at 228. The court had the matter investigated by the Federal Bureau of Investigation, which concluded that the remark had been made in jest. The petitioner and defense attorney were never informed of this improper contact. The Supreme Court remanded this case to the district court to hold a hearing to determine whether the improper contact had harmed the petitioner. Id. at 229-31.
The nature and magnitude of the improper contact in this case was very different. The improper contact consisted of a brief discussion unrelated to the trial. There is no evidence indicating that Juror No. 6 was influenced in any way by the conversation. In addition, while Ms. Smith's testimony was important, it was not the only testimony linking Petitioner's DNA to Jane Doe's vaginal swab. Ms. Smith was one of several criminal analysts who testified. Prior to Ms. Smith, there was testimony from three other witnesses regarding the collection of the DNA samples from the victim in 1997 and from Petitioner in 2010; the DNA analysis performed on the vaginal swab from the victim; and the match in CODIS (Combined DNA Index System), the state database of DNA samples collected from certain crime scenes. Lillian Tugao, a senior criminal analyst for the California Department of Justice, testified that when the CODIS database reports a match, state policy is to double-check that match by redoing the DNA process using another sample from the arrestee's original submission. RT 886. Ms. Smith performed this second DNA analysis of Petitioner's buccal swab, and her testimony was regarding this repeat DNA testing. Because the relevant Supreme Court jurisprudence regarding improper contact with jurors involved much more significant deliberate interference with the deliberation process, the nature of the misconduct here is factually distinguishable from clearly established Sixth Amendment Supreme Court precedent. Given these facts, the state court reasonably concluded that the contact did not have a tendency to be injurious to Petitioner because of the contact's "trifling" nature, and also reasonably concluded that even if the contact had a tendency to be injurious to Petitioner, the contact was harmless because of the weight of the evidence of Petitioner's guilt.
The state court's denial of this claim thus was not contrary to, nor an unreasonable application of, clearly established federal law, as determined by the Supreme Court; nor was the denial based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Federal habeas relief is denied on this claim.
Petitioner argues that the trial court erred by failing to declare a mistrial when the jury was deadlocked. Pet. at 5. The state court rejected this claim as follows:
When the jury returned to the courtroom, the court addressed the jury, in full, as follows:
Murray, 2016 WL 1179434, at *2-*5.
"Any criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict of that body." Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). Thus, an instruction is unconstitutionally coercive if it denies the defendant the due process right to a trial by a fair and impartial jury. DeWeaver v. Runnels, 556 F.3d 995, 1007 (9th Cir. 2009). The use of a supplemental jury charge given by the court to encourage a jury to reach a verdict after the jury has been unable to agree for some period of deliberation, sometimes referred to as an Allen charge, has long been sanctioned. See Allen v. United States, 164 U.S. 492, 501-02 (1896).
After AEDPA, the Ninth Circuit has said that in a habeas case involving a state conviction the questions for the court in determining whether a supplemental charge had an impermissible coercive effect on the jury are (1) whether the applicable state court looked at the totality of the circumstances in determining if the instruction was coercive; and (2) whether that court's determination on the coercion question was reasonable. Parker v. Small, 665 F.3d 1143, 1148 (9th Cir. 2011). Federal courts reviewing a supplemental charge given by a state court must consider the supplemental instruction "`in its context and under all circumstances.'" Lowenfield, 484 U.S. at 237 (citation omitted). Whether the comments and conduct of the state trial judge violated due process ultimately turns on whether "`the trial judge's inquiry would be likely to coerce certain jurors into relinquishing their views in favor of reaching a unanimous decision.'" Jiminez, 40 F.3d at 979 (quoting Locks v. Sumner, 703 F.2d 403, 406 (9th Cir. 1983). Relief will not be granted "unless it is `clear from the record' that an Allen charge had an impermissibly coercive effect on the jury." Rodriguez v. Marshall, 125 F.3d 739, 750 (9th Cir. 1997).
After carefully reviewing the record and keeping in mind the above legal principles, the Court finds that the state court's denial of this claim did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court. Nor was the denial of this claim based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Only two Supreme Court cases have applied Allen's prohibition on a coercive supplemental charge, Lowenfield v. Phelps, 484 U.S. 231 (1988), and Early v. Packer, 537 U.S. 3 (2002).
In Lowenfield, after a day and a half of deliberations, the jury indicated that it was unable to reach a decision on a sentencing recommendation in a capital trial. The court polled the jury twice as to whether further deliberations would assist them in arriving at a verdict. After the second poll, all but one juror responded that further deliberations would be helpful. The court then reinstructed the jury as follows:
Lowenfield, 484 U.S. at 235 (internal quotation marks and citation omitted). The jury resumed its deliberations and, thirty minutes later, returned a verdict sentencing the petitioner to death on all three counts of first-degree murder. The Supreme Court considered the supplemental charge "in its context and under all the circumstances" and held that, on these particular facts, the combination of the polling of the jury and the supplemental instruction was not "coercive" in such a way as to deny any constitutional right. Id. at 241. In so holding, the Supreme Court noted that the supplemental charge was not a "traditional" Allen charge because it did not speak specifically to the minority jurors, and that in Allen, the Supreme Court had found that the Allen charge did not violate the petitioner's constitutional rights because it was reasonable to urge the minority to consider the views of the majority and question whether their own views were reasonable under the circumstances. Id. at 237. The Supreme Court further noted that the defense counsel's failure to object to either the polling or the supplemental charge indicated that the potential for coercion was not apparent at that time. Id. at 240.
In Early, a California jury struggled to reach a verdict on a count of second-degree murder and one count of attempted murder. After twenty-eight hours of deliberation, the jury had returned sealed verdict forms with respect to fifteen other counts (which included attempted robbery, assault with a deadly weapon, and assault with a firearm). At that time, juror Radcliff sent a note, requesting to be dismissed and stating that the seriousness of the charges was causing her to feel burnt out. After the judge requested that she "hold out just a little bit longer," she agreed to continue. The next day, the foreman sent the judge a note stating that they were no longer able to deliberate because Radcliff did not appear capable of understanding the rules or of reasoning. The judge summoned the jury back into the courtroom and addressed the issue as follows. He informed the jurors that a juror has "a right to disagree with everybody else" but not a right to not deliberate. In response to the judge's questioning, the foreman indicated that the last vote count had been 11 to 1 and that further deliberations would be helpful. The judge then gave the following instruction:
Early, 537 U.S. at 4-5. At this point, defense counsel objected on the ground that the judge was improperly instructing the jury as to its manner of deliberation. This objection was overruled and the judge continued:
Early, 537 U.S. at 5-6. Soon after deliberations resumed, Radcliff again asked to be dismissed, complaining about feelings of distrust and disrespect from the other jurors, and stating that she had "reached a point of anger" and did not believe that she could be objective. The judge met with Radcliff and the foreman, and confirmed that Radcliff was continuing to deliberate. The jury resumed its deliberations and, approximately two days later, returned a guilty verdict on the attempted-murder count. The following, the jury returned a guilty verdict on the second-degree murder charge. Id. at 6.
The state appellate court rejected the petitioner's claim that the comments to Radcliff and the jury were coercive and denied the petitioner his due process right to a fair and impartial jury. The federal district court also denied habeas relief on this claim, but the Ninth Circuit reversed and instructed the district court to grant habeas relief on the murder convictions. Id. at 7. The Supreme Court reversed the Ninth Circuit, finding that the Ninth Circuit erred in finding that the state court's denial of the claim was contrary to clearly established Federal law, as established by the Supreme Court. The Supreme Court specifically noted that the Ninth Circuit was incorrect in finding that the state appellate court's statement that "there is nothing improper in urging the jury to consider [the matter] further with the view to reaching an agreement as long as the language used does not coerce a particular type of verdict" was contrary to clearly established federal law because the supporting federal caselaw cited by the Ninth Circuit was inapplicable to state-court proceedings. Id. at 9-10. The Supreme Court further noted that Lowenfield correctly set forth the standard for analyzing supplemental charges. Id. at 10.
Here, the state court considered the supplemental charge in its context and under all the circumstances, as required by Lowenfield. The state court examined the exact wording of the supplemental charge; noted the time deliberations began, stopped, and restarted; noted the time that notes were sent to the judge, whether for clarification or expressing inability to reach a decision; and noted the overall time spent deliberating, as calculated by the trial judge and by the petitioner. Also, the supplemental charge at issue here is distinct from the sanctioned Allen charge because it did not speak specifically to the minority jurors. Nor could there be implied pressure on the minority jurors here because the trial court did not poll the jurors. The language of the supplemental challenge also contained the conditional language that the jurors should arrive at a verdict, if each juror could do so without violence to his or her individual judgment. In addition, the jury took an additional day to reach its verdict, which appears to be half of the overall time spent deliberating, and ultimately did not reach a verdict on the third count. The state court reasonably determined that the supplemental charge here, in context and under all circumstances, was not coercive. Cf. Rodriguez, 125 F.3d at 750 (no coercion where judge not only advised jurors not to surrender their sincerely held beliefs but 1) made no comment on numerical split, 2) did not know whether the majority favored conviction or acquittal, and 3) did not know the identity of the holdouts; fact that the jury deliberated for four more days and called for a reading of testimony indicated that there had been no coercion). The state court's denial of this claim was neither based on an unreasonable determination of the facts, nor contrary to, or an unreasonable application of, clearly established federal law. Federal habeas relief is denied on this claim.
The federal rules governing habeas cases brought by state prisoners require a district court that issues an order denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 11(a).
A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, Petitioner has not made such a showing, and, accordingly, a certificate of appealability will be denied.
For the reasons stated above, the petition for a writ of habeas corpus is DENIED, and a certificate of appealability is DENIED.
The Clerk shall enter judgment in favor of Respondent and close the file.
