# Harding v. Falkenrath

> District Court, E.D. Missouri · September 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10237580

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10237580

## How later opinions describe it (automated extraction)

- finding that it was not an abuse of discretion to allow evidence of a prior felony conviction where the defendant did not stipulate to the fact
- finding, in dicta, that counsel was not ineffective for failing to raise a potential Sixth Amendment challenge

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICKY JOHN HARDING, JR., )
)
Petitioner, )
)
vs. ) Case No. 4:21 CV 918 JMB
)
SUPERINTENDENT DORIS FALKENRATH, )
)
Respondent. )

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Ricky John Harding, Jr.’s petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
I. Procedural Background
Petitioner is incarcerated at the Jefferson City Correctional Center pursuant to the judgment
and sentence of the Circuit Court of Warren County, Missouri. In 2015, a jury convicted him of
felony murder, unlawful possession of a firearm, domestic assault in the second degree, and four
counts of endangering the welfare of a child in the second degree (Doc. 14-1, p. 1). He was
sentenced to a term of 30 years’ imprisonment on February 4, 2016 (Id. p. 3; Doc. 14-6, p. 46-48).
On April 25, 2017, the Missouri Court of Appeals affirmed his conviction and the sentence
imposed but reversed and remanded on a discrete clerical error in the judgment which stated that
petitioner was convicted of felony child endangerment instead of misdemeanor child
endangerment. State v. Harding, 528 S.W.3d 362 (Mo. Ct. App. 2017) (Doc. 14-1).
Following an evidentiary hearing, Petitioner’s motion for postconviction relief pursuant to
Missouri Supreme Court Rule 29.15 was denied by the trial court in June, 2019 (Doc. 14-2, p. 2).
On December 29, 2020, the Missouri Court of Appeals affirmed the denial of postconviction relief.
Harding v. State, 613 S.W.3d 522 (Mo. Ct. App. 2020) (Doc. 14-2). On July 19, 2021, Petitioner
timely filed his § 2254 petition, in which he asserts six claims of ineffective assistance of counsel,
newly discovered evidence, prosecutorial misconduct, and abuse of discretion. Respondent filed
a response in opposition (Doc. 14) to which Petitioner replied (Doc. 21), rendering this matter fully

briefed.
II. Factual Background
In the early morning of May 25, 2014, Petitioner and the victim engaged in a physical
altercation at their home, awakening victim’s four minor children. During the altercation,
Petitioner and victim struggled to gain control of Petitioner’s gun, which fired and injured victim.
As victim lay bleeding profusely, Petitioner left the house, leaving the children with their dying
mother. The oldest child called 911 and unsuccessfully attempted to transport the victim to the
hospital. The children then waited for emergency services to arrive at the home. Victim was
transported to the hospital but could not be resuscitated and subsequently died. Petitioner then

arrived at the hospital and was arrested and charged in the death.
Additional facts will be included as necessary to address the issues.
III. Legal Standards
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §
2254(d), allows for habeas relief in Federal court only if the state court’s determination:
(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)(1)-(2).
A state court’s decision is “contrary to” clearly established law 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 is materially indistinguishable from a decision of [the Supreme Court] but reaches a
different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). “The state court need not cite or
even be aware of the governing Supreme Court cases, ‘so long as neither the reasoning nor the

result of the state-court decision contradicts them.’” Brown v. Luebbers, 371 F.3d 458, 461 (8th
Cir. 2004) (citing Early v. Packer, 537 U.S. 3, 8 (2002)). “In the ‘contrary to’ analysis of the state
court’s decision, [the federal court’s] focus is on the result and any reasoning that the court may
have given; the absence of reasoning is not a barrier to a denial of relief.” Id.
A decision involves an “unreasonable application” of clearly established law if “the state
court applies [the Supreme Court’s] precedents to the facts in an objectively unreasonable
manner,” Brown, 544 U.S. at 141; Williams v. Taylor, 529 U.S. 362, 405 (2000), or “if the state
court either unreasonably extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to extend that principle to a new context

where it should apply.” Id. at 406. “Federal habeas relief is warranted only when the refusal was
‘objectively unreasonable,’ not when it was merely erroneous or incorrect.” Carter v. Kemna, 255
F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410–11).
When reviewing whether a state court decision involves an “unreasonable determination
of the facts,” state court findings of “basic, primary, or historical facts” are presumed correct unless
the petitioner rebuts the presumption with clear and convincing evidence. Collier v. Norris, 485
F.3d 415, 423 (8th Cir. 2007) (citations omitted); 28 U.S.C. § 2254(e)(1). Erroneous findings of
fact by the state courts do not ensure the grant of habeas relief. Rather, the determination of these
facts must be unreasonable in light of the evidence of record. Id.
To prevail on his ineffective assistance of counsel claims, Petitioner must show that his
attorney’s performance fell below an objective standard of reasonableness and that he was
prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688 (1984). With respect to the first
Strickland prong, there is a strong presumption that counsel’s conduct falls within the wide range
of professionally reasonable assistance. Id. at 689. Thus, “counsel should be strongly presumed

to have rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment,” and the “burden to show that counsel’s performance was
deficient rests squarely on the defendant.” Burt v. Titlow, 571 U.S. 12, 22–23 (2013) (quotation
marks and citation omitted). Courts “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 466 U.S. at 689; see also Abernathy v. Hobbs, 748
F.3d 813, 816 (8th Cir. 2014) (reviewing court must refrain “from engaging in hindsight or second-
guessing of trial counsel’s strategic decisions.”) (citation omitted)).

To establish the “prejudice” prong, the movant must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Merely showing a conceivable effect is not enough;
a reasonable probability is one sufficient to undermine confidence in the outcome.” Paulson v.
Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014) (citation omitted). Although Strickland
requires a showing of both deficient performance and prejudice, a “finding that no prejudice exists
is sufficient to conclude that counsel was not constitutionally ineffective — [courts] need not first
make a determination regarding deficiency.” Holder v. United States, 721 F.3d 979, 987 (8th Cir.
2013).
“Taken together, AEDPA and Strickland establish a ‘doubly deferential standard’ of
review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v. Pinholster, 563
U.S. 170, 202 (2011)).
First, under Strickland, the state court must make a predictive judgment
about the effect of the alleged deficiencies of counsel on the outcome of the trial,
focusing on whether it is “reasonably likely” that the result would have been
different absent the errors. Strickland, 466 U.S. at 696. . . . To satisfy Strickland,
the likelihood of a different result must be “substantial, not just conceivable.” Id.
Under AEDPA, [federal courts] must then give substantial deference to the state
court’s predictive judgment. So long as the state court’s decision was not “contrary
to” clearly established law, the remaining question under the “unreasonable
application” clause of § 2254(d) is whether the state court’s determination under
the Strickland standard is unreasonable, not merely whether it is incorrect.
[Harrington v. Richter, 562 U.S. 86, 112, 101], 131 S. Ct. 770, 792, 785 (2011).
This standard was meant to be difficult to meet, and “even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.” Id. at [102].
Williams, 695 F.3d at 831–32. “When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. Furthermore, a state
court’s findings of fact made in the course of deciding a claim of ineffective assistance of counsel
are presumed to be correct. Odem v. Hopkins, 382 F.3d 846, 849 (8th Cir. 2004).
IV. Discussion
Petitioner asserts five claims of ineffective assistance of trial counsel. He contends that
trial counsel: (1) failed to object to a stipulation naming the nature of his prior felony conviction;
(2) failed to investigate gunshot residue evidence; (3) failed to object to jury instructions that
included his prior conviction; (4) failed to object to the prejudicial hearsay statement of witness
A.H. (Petitioner’s and victim’s minor daughter); and (5) failed to impeach a state’s witness A.L.
(victim’s minor daughter) (Claims 1, 2, 3, 5, 7, respectively). He further asserts one count of
ineffective assistance of appellate counsel for failing to raise the claims in his petition on direct
appeal (Claim 8). Finally, he asserts newly discovered evidence in the form of gunshot residue on
the victim’s hands (Claim 4), prosecutorial misconduct in eliciting witness A.L.’s false testimony
(Claim 6), and that the court abused its discretion by allowing his prior convictions in the verdict
director (Claim 9). Respondent asserts that Petitioner procedurally defaulted claims 2-6, 8-9
because he did not raise them before the state courts and that, in any event, all of his claims are
without merit.1

A. Procedural Default
State prisoners seeking habeas relief in federal court are typically limited to raising claims
that have been “fairly presented” in state court proceedings. Deck v. Jennings, 978 F.3d 578, 581
(8th Cir. 2020). Claims raised in federal court that have not been presented in state court and for
which there are no remaining state remedies are procedurally defaulted and should not be
considered further. Dansby v. Payne, No. 19-3006 (8th Cir. 2022); Stephen v. Smith, 963 F.3d
795, 799 (8th Cir. 2020).2 Such procedurally defaulted claims may nonetheless be considered if a
petitioner can demonstrate “cause for the default and actual prejudice as a result of the alleged
violation of federal law” or a fundamental miscarriage of justice (i.e. actual innocence). Bousley

v. United States, 523 U.S. 614, 622 (1998); Coleman v. Thompson, 501 U.S. 772, 750 (1991);
Morgan v. Javois, 744 F.3d 535, 538-539 (8th Cir. 2013).
“Ineffective assistance of state postconviction counsel does not usually provide cause for
a procedural default, except for one ‘narrow exception.’” Deck, 978 F.3d at 582 (citing Coleman,
501 U.S. at 755 and Martinez v. Ryan, 566 U.S. 1, 9 (2012)). In Martinez, the Supreme Court held
that ineffective assistance of postconviction counsel can provide “cause” to excuse a defaulted

1 Respondent concedes that Petitioner has exhausted state remedies and that the Petition before the Court is
timely.

2 Procedural default also occurs when a state court’s decision on a question of federal law “rests on a state
law ground that is independent of the federal question and adequate to support the judgment.” Coleman v.
Thompson, 501 U.S. 722, 729-730 (1991).
ineffective-assistance-of-trial-counsel claim where (1) the claim of ineffective assistance of trial
counsel was a “substantial” claim, and (2) the “cause” consisted of there being “no counsel” or
only “ineffective” counsel during the state collateral review proceeding.3 Harris v. Wallace, 984
F.3d 641, 648 (8th Cir. 2021) (citations omitted).
Respondent argues that Claims 2-6 and 8-9 are procedurally defaulted and that Petitioner

has not shown cause and prejudice for the default. Respondent notes that only claims 1 and 7 were
raised in state court and through a complete round of review, and Petitioner has not alleged or
shown that post-conviction counsel was ineffective. On direct appeal (Doc. 14-7), Petitioner raised
8 grounds for relief: (1) there was insufficient evidence of felony murder; (2) a jury instruction
regarding felony murder was erroneous; (3) there was insufficient evidence of child endangerment;
(4) the trial Court erred in failing to grant a continuance to secure a defense witness, Dr. Arain; (5)
the trial court erred in barring the testimony of another defense witness, Timothy Taylor; (6) the
trial court erred in failing to give a mitigating jury instruction; and, (7) the judgment did not
comport with the jury verdict. None of these claims are raised in the Petition before this Court. In

his brief before the Missouri Court of Appeals on collateral review (Doc. 14-9), Petitioner alleged
5 grounds for relief: (1) prosecutorial misconduct in the failure to disclose a pretrial meeting with
the victim’s daughter A.L.; (2) ineffective assistance of trial counsel for failing to impeach A.L.;
(3) ineffective assistance of trial counsel for agreeing to the stipulation that named Petitioner’s
prior conviction; (4) ineffective assistance of trial counsel for failing to object to evidence that
Petitioner beat and threatened his children; and, (5) ineffective assistance of trial counsel for failing
to object to the prosecutor’s prejudicial closing argument related to the third ground for relief. In

3 The Martinez exception has a third element: that the state collateral review proceeding was the “initial”
review with respect to ineffective-assistance claims. This element is satisfied because Missouri does not
allow ineffective-assistance claims to be raised on direct appeal and requires that they be raised in
postconviction proceedings. Missouri Supreme Court Rule 29.15.
the Petition before this Court, he again asserts that trial counsel was ineffective for failing to
impeach witness A.L. (claim 7) and that trial counsel was ineffective for failing to object to a
stipulation regarding the nature of his prior felony (claim 1). However, he did not raise any of his
other claims before the Missouri Court of Appeals. Therefore, Petitioner procedurally defaulted
all claims except 1 and 7.

In response, Petitioner states that he raised all of his current claims in the Missouri Supreme
Court Rule 29.15 amended motion before the trial court (Doc. 21-2). However only claims 1 and
7 were appealed to the Missouri Court of Appeals. O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“[S]tate 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.”). A claim contained in a denied Rule 29.15 motion that is not appealed is considered
abandoned. Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996); See also Roe v. Delo, 160 F.3d
416, 418 (8th Cir. 1998) (“Because of this presumption [, that counsel’s conduct was reasonable,]
and the reality that effective appellate advocacy often entails screening out weaker issues, the Sixth

Amendment does not require that appellate counsel raise every colorable or non-frivolous issue on
appeal.”). Petitioner also has not shown cause and prejudice for the default. That is, he has not
shown that “some objective external” factor prevented him from raising these defenses and that
there was a reasonable probability that the outcome of the proceedings would have been different.
Marcyniuk v. Payne, 39 F.4th 988, 995 (8th Cir. 2022) (internal quotation marks and citations
omitted). Finally, Petitioner has not alleged or shown that post-conviction counsel (at the trial
court level) was ineffective such that Martinez may apply; and, Martinez does not apply to claims
that post-conviction appellate counsel was ineffective. Davila v. Davis, ___ U.S. ___, 137 S.Ct.
2058, 2065 (2017). Accordingly, claims 2-6 and 8-9 are procedurally defaulted. Because the
Corut finds that Petitioner procedurally defaulted claims 2-6 and 8-9, the Court will only address
the merits of Claims 1 and 7, which allege claims of ineffective assistance of trial counsel.
B. Ineffective Assistance of Counsel
Petitioner cannot satisfy the “doubly deferential” standard required to obtain habeas relief
on his claims arising from trial counsel’s failure to object to a stipulation naming the nature of his

prior felony conviction (Claim 1) or failure to impeach State’s witness A.L. (Claim 7). First, the
Missouri Court of Appeals correctly identified the Strickland legal standard governing his claims.
Second, the decision to defer to trial counsel’s strategic decisions was not an unreasonable
application of Strickland.
1. Claim 1: Prior Conviction Stipulation
In Old Chief v. United States, 519 U.S. 172 (1997), the Supreme Court held that when a
criminal defendant’s status as a convicted felon is an element of a charged offense and the
defendant admits to being a felon, additional evidence of the name and nature of the prior offense,
whose sole purpose is to prove the prior conviction, is generally more prejudicial than probative

and should be excluded by the trial judge. Id. at 174; United States v. Hellems, 866 F.3d 856, 861-
862 (8th Cir. 2017). The practical effect of Old Chief is that criminal defendants often stipulate to
the existence of a prior felony conviction without naming the particular felony or the circumstance
of the offense and thereby negate the necessity of introducing evidence of the prior conviction.
See United States v. Richardson, 40 F.4th 858, 866 (8th Cir. 2022) (finding that it was not an abuse
of discretion to allow evidence of a prior felony conviction where the defendant did not stipulate
to the fact). Old Chief does not stand for the proposition that the criminal defendant cannot
introduce evidence regarding a prior conviction.
In his brief before the Missouri Court of Appeals, Petitioner argued that counsel was
ineffective for agreeing to the following stipulation naming the prior felony conviction:
The State of Missouri and Defendant Ricky Harding, by and through Counsel, do
Stipulate and Agree THAT Defendant Ricky Harding has been convicted of the
Class C Felony of Burglary in the Second Degree, from the Circuit Court of Cole
County, Missouri . . . .

(Tr. 14-9, p. 41).

The state court found that trial counsel was not ineffective for agreeing to the stipulation because
she “made the permissible strategic decision to include in the stipulation that Harding’s prior
felony was the class C felony of burglary” in order to convince the jury that he was not convicted
of a violent offense or a weapons-related offense (Doc. 14-2, p. 9). Before this Court, Petitioner
argues that the state court erred because his trial counsel was not aware of the holding in Old Chief
and offered nothing to explain to the jury that he was convicted of a non-violent crime, thus casting
doubt on her claim that it was a strategic decision to agree to the stipulation.4
The Supreme Court has not “articulate[d] specific guidelines for appropriate attorney
conduct.” Wiggins v. Smith, 539 U.S. 510, 521 (2003). In assessing counsel, however, “[t]he
question is whether an attorney’s representation amounted to incompetence under ‘prevailing
professional norms,’ not whether it deviated from best practices or most common custom.”
Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). Certainly, one would expect
an attorney to be aware of relevant and applicable Supreme Court precedent. See, e.g., Poe v.
United States, 233 F. Supp. 173, 178 (D.D.C 1964), aff'd, 352 F.2d 639 (D.C. Cir. 1965) (“Where
the defense is substantially weakened because of the unawareness on the part of defense counsel

4 Petitioner has provided limited excerpts of the post-conviction hearing held on July 17, 2018 which
appears to suggest that trial counsel was not aware of the holding in Old Chief and that she agreed to the
stipulation because she wanted to show that the burglary conviction was not a weapons offense and that it
occurred in 1997, prior to a change in the law that made it illegal for felons to possess firearms (Doc. 21-1,
p. 14).
of a rule of law basic to the case, the accused is not given the effective representation guaranteed
him by the Constitution”). However, the Sixth Amendment does not require perfection, only
competence. Harrington, 562 U.S. 110. And, there is a strong presumption that counsel acted
competently. See Ford v. Lockhart, 904 F.2d 458, 462 (8th Cir. 1990). In this case, even accepting
that trial counsel was unaware of Old Chief, it was not consequential because her strategy was not

unreasonable. Therefore, the state court’s application of the Strickland standard is not objectively
unreasonable. See Wiggins, 539 U.S. at 520–521.
It was not unreasonable for the state court to find that the advantage of the ruling in Old
Chief did not outweigh a strategy that would demonstrate that Petitioner was not violent. See, e.g.
Scarberry v. Iowa, 430 F.3d 956 (8th Cir. 2005) (finding, in dicta, that counsel was not ineffective
for failing to raise a potential Sixth Amendment challenge). Petitioner was charged with violent
crimes: felony murder, domestic assault, and child endangerment. It was a reasonable strategy for
counsel to demonstrate to the jury, however imperfectly, that he was not a violent person
notwithstanding a prior felony conviction, which a jury may have otherwise assumed was a violent

felony in light on his possession of the gun that caused the death. Such a strategy is within the
wide range of reasonable professional assistance, and it was reasonable for the state court to reach
this conclusion.
In any event, Petitioner has not shown that there was a substantial likelihood of a different
result. Harrington, 562 U.S. at 111–112. Instead, Petitioner summarily argues that he was
prejudiced by trial counsel’s decision and could have been possibly found not guilty. “[W]hile in
some instances even an isolated error can support an ineffective-assistance claim if it is sufficiently
egregious and prejudicial, it is difficult to establish ineffective assistance when counsel’s overall
performance indicates active and capable advocacy.” Harrington, 562 U.S. at 111 (quotation
marks and citation omitted). Thus, even if trial counsel’s decision to stipulate can be considered
egregious (which it is not as set forth above), a brief perusal of the state court’s decision on direct
appeal demonstrates that trial counsel diligently defended Petitioner by offering alternative
explanations and myriad defenses to the allegations including justification and prior instances of
domestic abuse to explain the victim’s children’s mental state. Accordingly, Petitioner has not

satisfied the “doubly deferential” standard and Claim 1 is DENIED.
2. Claim 7: Failure to Impeach A.L.
In his Petition, Petitioner briefly states that trial counsel was ineffective for failing to
impeach A.L. with her deposition testimony regarding the location of the handgun used during the
incident (Doc. 1, p. 14). In his reply brief, however, he does not address this argument at all and
instead focuses on the defaulted claim that the prosecutor improperly elicited A.L.’s false
testimony. (Doc. 21, pp. 29-33). This claim is unpersuasive because it is unsupported by either
citation to the record or case authority. For this reason alone, Claim 7 is DENIED. See Burt, 571
U.S. at 18 (the burden of showing that counsel was ineffective rests on the petitioner).

Even if the Court were to consider the merits of the claim, it still would be denied. The
state court found that trial counsel was not ineffective in her examination of A.L. because: (1) as
a matter of trial strategy, failing to impeach a witness does not lead to post-conviction relief; (2)
counsel may have reasonably determined that impeachment would do more harm than good; and,
(3) counsel did in fact cross-examine A.L. on her prior inconsistent statements (Doc. 14-2, p. 7).
In sum, the state court found “counsel’s decisions to be reasonable because to aggressively cross-
examine a traumatized young girl at the trial regarding her mother’s murder may have risked
alienating the jury and harming Harding’s defense” (Doc. 14-2, pp. 7-8). As outlined by the state
court, evidence at trial revealed that Petitioner purchased a handgun knowing that it was illegal for
him to do so because he was a felon (Doc. 14-1, p. 1). At the time of the altercation, A.L. heard
and saw Petitioner and victim fighting, saw the victim grab Petitioner’s gun from a couch, and saw
them each struggling to gain control of the gun (Id. 2). While she did not see the shot, A.L. ran
out of her room after she heard the shot to see the victim bleeding on the floor (Id.). Petitioner
then left the house and A.L. was required to tend to her dying mother and her younger siblings

(Id.). After the incident, the victim’s children, including A.L., were seen by a therapist who
diagnosed them with post-traumatic stress disorder stemming from the incident (Id.). It was not
unreasonable, then, for the state court to determine that an aggressive cross-examination of A.L.
as to the location of the gun prior to the shot being fired would have alienated the jury. As with
Claim 1, Petitioner has not satisfied the “doubly deferential” standard and Claim 7 is DENIED.
* * * * *
For the foregoing reasons,
IT IS HEREBY ORDERED that the petition of Ricky John Harding, Jr. for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED.

IT IS FURTHER ORDERED that no certificate of appealability will be issued because
Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 335-338 (2003) (setting forth the standard for
issuing a certificate of appealability).
A separate Judgment will accompany this Memorandum and Order.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 9th day of September, 2022.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10237580. Public record. Not legal advice.