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Steven Brooks v. Harrington

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 18, 2011

STEVEN BROOKS,
PETITIONER,
v.
HARRINGTON, RESPONDENT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1) AND DIRECTING THE CLERK TO CLOSE THE ACTION

ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on December 23, 2010 (doc. 5). Pending before the Court is the petition, which was filed on December 6, 2010.

I. Jurisdiction

Petitioner, who is an inmate of Kern Valley State Prison (KVSP) serving a sentence of over eight years, challenges a prison disciplinary finding made at California State Prison at Solano (CSP) on October 20, 2006, that Petitioner possessed an inmate-manufactured weapon in violation of Cal. Code Regs., tit. 15, §3006(a), which resulted in a forfeiture of 181 days of earned time credits. (Pet. 4-6, 24.) Petitioner seeks dismissal of the charge, restoration of credits, and release. (Pet. 21.)

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000).

Plaintiff claims that in the course of the proceedings resulting in the disciplinary finding, he suffered violations of his right to equal protection and due process of law guaranteed by the Fourteenth Amendment. Because violations of the Constitution are alleged, it is concluded that the Court has subject matter jurisdiction over the instant petition.

Further, Petitioner names as Respondent "Harrington." (Pet. 1.) Reference to the facilities website of the California Department of Corrections and Rehabilitation (CDCR) reflects that the warden of KVSP is Kelly Harrington. Petitioner has thus named as Respondent a person who has custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Accordingly, this Court has jurisdiction over this action and over Respondent Harrington, Warden of KVSP.

II. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

Here, a review of the petition demonstrates that Petitioner has included apparently complete documentation of the challenged disciplinary proceedings and Petitioner's exhaustion of the administrative remedies available to Petitioner within the CDCR. (Pet. 1-48, 30-32, 44.)

Petitioner claimed in the disciplinary proceedings and alleges in the petition that he did not possess the weapon, which was found in a vent over the sink in the cell he shared with another inmate, because he did not have access to it or knowledge of its presence. He contended that he had only recently moved into the cell in question. (Pet. 16, 25.) Other than Petitioner's denial that he possessed the weapon, there do not appear to be any disputed material facts with respect to the disciplinary proceedings or the evidence underlying the finding that Petitioner possessed the weapon.

Accordingly, the Court will proceed to determine whether Petitioner's allegations state a cognizable claim for habeas corpus relief.

III. Factual Allegations

Correctional Sergeant D. Whitson reported in a rules violation report dated September 18, 2006, that during a cell search, a single-edged razor in a Bugler case with tattoo needles and a note of a type associated with northern Hispanic gangs were discovered in Petitioner's cell. Pet. 24.) The razor blade had cellophane at one end to be used as a handle. (Id.) Whitson gave a consistent statement concerning the weapons and their discovery via telephone at the hearing on the charge. (Pet. 26.) Correctional Lieutenant Jackson, the hearing officer, reported that Whitson stated that she had seen both Petitioner and his cell mate moving around in their cell while throwing things into the toilet, and during a subsequent cell search the razor blade was discovered in the air vent. (Pet. 25.)

With respect to the procedures relating to the disciplinary hearing, Petitioner was given notice of the charges. (Pet. 24.) Petitioner pled not guilty. (Pet. 24.)

Following Petitioner's request for an investigative employee (IE), Officer Parks was assigned and subsequently accepted by Petitioner. (Pet. 28.) Parks interviewed Whitson on September 28, 2006. Parks reported that Whitson stated that during a cell search the cell door was jammed; Petitioner and cell mate Dunlap were scrambling to get rid of contraband in the toilet and vent above the sink; after restraint of both inmates, the razor blade, tattoo gun with needles, and a mini note were found in the cell. (Pet. 28.)

The petition shows that Whitson's rules violation report was given to Petitioner on September 21, 2006; the crime incident report dated September 18, 2006, was issued to Petitioner on the same date; and the IE's report, dated September 27, 2006, was issued to Petitioner on October 3, 2006. (Pet. 25.)

Although the IE's report reflects that Petitioner told Parks that he did not want Whitson or any staff or inmate witnesses at the hearing (Pet. 28-29), the report of the hearing officer reflects that Petitioner requested that Sgt. Whitson be made available. She gave a statement by telephone. (Pet. 25.) Petitioner did not object to Whitson's telephonic presence at the hearing. (Pet. 26.)

The evidence presented at the hearing was Whitson's report, the crime incident report, Whitson's telephonic statement, and the investigative employee's report. The hearing officer found Petitioner guilty based on a preponderance of the evidence, including Whitson's report of the evidence found in the cell as well as her statement at the hearing. (Pet. 26.)

IV. Legal Standards

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000).

Title 28 U.S.C. § 2254 provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence.

The Petitioner bears the burden of establishing that the decision of the state court was contrary to, or involved an unreasonable application of, the precedents of the United States Supreme Court. Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004); Baylor v.Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

With respect to prison disciplinary proceedings, procedural due process of law requires that where the state has made good time subject to forfeiture only for serious misbehavior, prisoners subject to a loss of good-time credits must be given advance written notice of the claimed violation, a right to call witnesses and present documentary evidence where it would not be unduly hazardous to institutional safety or correctional goals, and a written statement of the finder of fact as to the evidence relied upon and the reasons for disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 563-64 (1974). Confrontation, cross-examination, and counsel are not required. Wolff, 418 U.S. at 568-70.

Further, where good-time credits are a protected liberty interest, the decision to revoke credits must be supported by some evidence in the record. Superintendent v. Hill, 472 U.S. 445, 454 (1985). The Court in Hill stated:

We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if "there was some evidence from which the conclusion of the administrative tribunal could be deduced...." United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 106, 47 S.Ct., at 304. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974).

Superintendent v. Hill, 472 U.S. at 455-56. The Constitution does not require that the evidence logically preclude any conclusion other than the conclusion reached by the disciplinary board. There need only be some evidence in order to ensure that there was some basis in fact for the decision. Superintendent v. Hill, 472 U.S. at 457.

V. Analysis A. Some Evidence to Support the Finding

With respect to the requirement that some evidence support the finding that Petitioner possessed the weapon, this Court does not make its own assessment of the credibility of witnesses or re-weigh the evidence. The Court must, however, ascertain that the evidence has some indicia of reliability and, even if meager, "not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary." Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987) (quoting Superintendent v. Hill, 472 U.S. 445, 457 (1985)).

In Cato v. Rushen, 824 F.2d at 705, the Court found that the Hill standard was not satisfied where the only evidence implicating the inmate was another inmate's statement that was related to prison officials through a confidential informant who had no first-hand knowledge of any relevant statements or actions by the inmate being disciplined, and whose polygraph results were inconclusive. In contrast, evidence evaluated and found to constitute "some evidence" supportive of various findings has included the report of a prison guard who saw several inmates fleeing an area after an assault on another inmate when no other inmates were in the area, Superintendent v. Hill, 472 U.S. 456-57; the statement of a guard that the inmate had admitted a theft to supplement his income, coupled with corroborating evidence, Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989); an inmate's admission and corroborating, circumstantial evidence, Crane v. Evans, 2009 WL 148273, *3 (N.D.Cal. Feb. 2, 2009); and an inmate's admission of having engaged in the violation plus an officer's report of having heard a recording of the offending conversation, Dawson v. Norwood, 2010 WL 761226, *1 (C.D.Cal. March 1, 2010).

The Court has reviewed the allegations of the petition and the documentation provided by Petitioner in support of the petition and concludes that the finding of possession was supported by some evidence, including Sgt. Whitson's report of her discovery and logging of the contraband, and her statement. Whitson's statement was based on personal knowledge of the discovery of the contraband. (Pet. 25.)

Petitioner argues that Whitson gave conflicting statements to investigative employee Parks. Whitson said she found Petitioner and Dunlap disposing of contraband in the toilet and vent area; documentation showed that it was alleged that Petitioner and a new cell mate, Dunlap, refused staff orders to exit their cells, after which they left, and a weapon was found in an air vent above the cell. (Pet. 14.) Petitioner alleges that Whitson was not present at the cell door, which Whitson said was jammed; the identity of officials arriving at the cell door was suppressed; and Whitson gave contradictory answers regarding whether water was available in the cell. (Pet. 15.) Petitioner argues there was no documentary or photographic evidence showing that the weapon was accessible from the vent. Petitioner further asserts that the vent was accessible only from an exterior position or through a janitor's access. (Pet. 16.) Thus, Whitson's testimony does not constitute "some evidence." (Pet. 17.)

However, Petitioner's arguments are essentially an invitation to this Court to reweigh the evidence, which is not within the scope of this Court's scope of review.

B. Failure to Interview Witnesses and Obtain

Relevant Information

Petitioner argues that prison officials failed to interview requested witnesses and obtain relevant information. Petitioner contends that investigative employee Parks failed to conduct an investigation adequate pursuant to Cal. Code Regs., tit. 15, §§ 3315 and 3318; Petitioner requested all witnesses and involved staff be interviewed, the weapon or weapons be tested for fingerprints and DNA, and logs of previous cell searches be checked pursuant to § 3287; he further requested that this evidence be disclosed to him before the hearing pursuant to § 3320(a). (Pet. 14-15, 19-20, 28-30.) Petitioner alleges that officials failed to obtain the evidence concerning previous searches, and failed to disclose evidence, including photographs of the weapons and other photos pertaining to the rules violation and search logs of the cell, which would have tended to show when the cell was last cleared of contraband.

Federal habeas relief is available to state prisoners only to correct violations of the United States Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a). Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).

Petitioner's claims concerning an absence of compliance with the state regulatory laws governing prison investigations constitute claims premised upon state law and as such would not entitle Petitioner to federal habeas corpus relief. Thus, they are not cognizable and will be dismissed.

To the extent that Petitioner may be attempting to rely on federal law, in Wolff v. McDonnell, 418 U.S. 539 (1974), the Court declined to require the assistance of counsel at prison disciplinary hearings. The court noted that in certain limited circumstances, due process might require that an inmate be allowed the assistance of a fellow inmate or staff member so that he might be able to collect and present the evidence necessary for an adequate comprehension of the case. Wolff, 418 U.S. at 570. The circumstances specified by the Court that may prompt assistance include illiteracy and presence of an issue so complex that it is unlikely that an inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case. Id.

Here, Petitioner has not alleged that he is illiterate. The hearing officer's report reflects that Petitioner did not manifest an inability to communicate effectively during the hearing, and he expressed his understanding of the charges. Further, a mental health assessment was not ordered. (Pet. 25.) Petitioner was assigned an investigative employee pursuant to Cal. Code Regs., tit. 15, § 3315 because he was housed in administrative segregation. (Id.) Petitioner did have the assistance of an employee.

Further, the issues were not complex. The charge involved a simple offense of possession of a weapon and straightforward evidence involving observation of the contraband in the cell as well as furtive and obstructive activity on the part of Petitioner and his cell mate. This evidence provided ample basis for an inference of knowledgeable possession. This does not appear to be an instance where fundamentally fair procedure requires forensic testing of the evidence.

Accordingly, the Court concludes that Petitioner's claim concerning an absence of an adequate investigation does not state a claim cognizable on federal habeas corpus.

C. Failure to Remedy the Violations

Petitioner argues that the hearing officer failed to remedy the defective investigation and consider the cell search logs as to when the cell was last cleared. (Pet. 16.) Petitioner further alleges that the warden, as supervisor of the employees, was liable because he had the power to remedy the violations. (Pet. 18.)

To the extent that these claims concern the hearing officer's or warden's alleged failure to remedy state law violations, they are premised solely upon state law. To the extent that they are based upon federal law, Petitioner has not alleged facts demonstrating a denial of due process. Therefore, the claim concerning the hearing officer's or warden's failure to remedy Petitioner's complaints does not entitle Petitioner to federal habeas relief, and will be dismissed.

D. The Hearing Officer's Failure to Document

Questions and Reasons for Denying Witnesses Petitioner argues that the hearing officer failed to allow him adequate examination of witnesses and failed to document any reasons for denying witnesses. (Pet. 4-5, 10, 14, 16.) Petitioner argues that he had a right to call witnesses unless there was a legitimate basis for exclusion and a statement of reasons for refusal to have witnesses. (Pet. 19.) Petitioner alleges that his examination of Whitson by telephone at the hearing was inadequate because she was unable to hear one of Petitioner's questions concerning whether if she had really been at the cell, she would be able to make her mind up about whether the water was on in the cell at the time. (Pet. 36.) When asked if she could identify Petitioner at the hearing, Whitson explained that she was at a distance and participated telephonically, and thus could not identify any one of the participants. (Pet. 36.) Further, Petitioner asserts that he did not receive answers to his questions, such as why Whitson's observations concerning the placement in the vent of the contraband were not in her incident report, why she did not spray the inmates or direct them to the back of the cell, whether string was tied to the weapon to pull it from the vent, and how the weapon was situated. (Id.)

Initially, the Court notes that it does not appear that Petitioner was denied any request for witnesses at the hearing. The hearing officer's report reflects that Petitioner did not object to proceeding with the hearing. (Pet. 25.) Petitioner's request that Sgt. Whitson be available for examination was granted. Petitioner did not object to her telephonic appearance, which was permitted by the pertinent state regulatory law. (Pet. 32 [administrative appellate decision referring to Cal. Code Regs. tit. 15, § 3315].) The portion of the hearing officer's report concerning witnesses states:

Inmate Brooks requested the following witness: Staff: Sgt. Whitson (granted) Passed on: Reporting Employee Witness Statement: She seen both inmates move around in their cell throwing things into the toilet. (Pet. 25.) This entry is reasonably interpreted as reflecting a request for only a single witness, Whitson, who was otherwise referred to by prison documentation and by Petitioner as the reporting employee. (Pet. 24, 28, 14, 35.) Further, in the petition, Petitioner does not identify any other witnesses he requested. He specifically identifies his "requested witness" as Whitson. (Pet. 35.)

Thus, it does not appear that Petitioner was denied witnesses or that he objected to any aspect of the proceeding relating to examination of witnesses. (Id. at 25-26.) That Petitioner did not receive the precise answers he desired from witness Whitson does not undercut the conclusion that Whitson was made available for Petitioner to examine at the hearing.

Further, Petitioner's questions concerning Whitson's reporting of her observations, her failure to spray the inmates or direct them to the back of the cell, the position and condition of the weapons when found, and her allegedly inconsistent statements concerning the status of water in the cell do not support a finding of prejudicial denial of due process. The rules violation report and the crime incident report both reflect that Whitson initially reported that after Petitioner and his cell mate refused staff orders to exit their cell, Whitson searched Petitioner's cell and discovered the weapons lying in the air vent above the sink. (Pet. 24, 39.) This evidence supports an inference that the weapons were accessible to inhabitants of the cell.

Whitson's failure to undertake certain procedures with respect to the inmates does not undercut her testimony concerning her personal knowledge of the events in question. Her inability to identify Petitioner at the hearing is inconsequential because of the controlled setting in which the incident occurred. Petitioner and his cell mate were in the cell at the commencement of the incident and remained there throughout; the facts do not suggest that any third party, as distinct from Petitioner, was present at the time of the discovery of the contraband or was otherwise responsible. Petitioner's general allegations of deprivation of the right to cross-examine are unsupported by a statement of specific facts showing a violation that warrants habeas relief. See, James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).

Therefore, Petitioner has not shown any prejudicial denial of due process. Cf., Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (determining that habeas relief is warranted when an error resulted in actual prejudice, or had a substantial and injurious effect or influence in determining the jury's verdict); Schenck v. Edwards, 921 F.Supp. 679, 687-88 (E.D.Wash. 1996). Petitioner's claim concerning witnesses does not constitute a basis for habeas relief.

E. Denial of Equal Protection

Petitioner further alleges what the Court understands to be a claim concerning a denial of equal protection of the laws concerning prison officials' dismissing the charges against cell mate and co-defendant Dunlap, restoring Dunlap's credit, and releasing him on parole early. (Pet. 5.)

To the extent that Petitioner complains that state law did not authorize the disposition of Dunlap's case, Petitioner's complaint does not state a basis for federal habeas relief.

Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race, religion, or membership in a protected class subject to restrictions and limitations necessitated by legitimate penological interests. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). The Equal Protection Clause essentially directs that all persons similarly situated should be treated alike. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Violations of equal protection are shown when a respondent intentionally discriminated against a petitioner based on membership in a protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or when a respondent intentionally treated a member of an identifiable class differently from other similarly situated individuals without a rational basis, or a rational relationship to a legitimate state purpose, for the difference in treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

Here, Petitioner has not alleged that membership in a protected class was the basis of any alleged discrimination. Further, it appears from the petition that Petitioner alleged that his cell mate had become an informant, was able to have his rules violation charge dismissed because he cooperated with the institution's gang investigator and security and investigations staff, and was ultimately paroled in June 2007. (Pet. 44.) Thus, because it is shown that the cell mate cooperated with the prison authorities with respect to the legitimate security needs of the institution, it appears that Petitioner and his cell mate were not similarly situated with respect to the events in question. Accordingly, the different treatment of the cell mate and Petitioner does not entitle Petitioner to habeas relief.

In summary, Petitioner has failed to state in the petition specific facts that point to a real possibility of constitutional error and that would entitle Petitioner to habeas relief. Because full documentation of the disciplinary proceedings has been provided to the Court, Petitioner cannot amend the petition to state facts that would entitle him to relief. Therefore, the petition will be dismissed.

VI. Certificate of Appealability

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to show more than an absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338.

A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court will decline to issue a certificate of appealability.

VII. Disposition

Accordingly, it is ORDERED that:

1) The petition is DISMISSED for failure to state a cognizable claim pursuant to 28 U.S.C. § 2254; and

2) The Clerk is DIRECTED to close the action because this order terminates the case; and

3) The Court DECLINES to issue a certificate of appealability.

IT IS SO ORDERED.

ie14hj

20110118

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