Brown v. Warden

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CHRISTOPHER BROWN,

Petitioner,

v. CAUSE NO. 3:23-CV-914-DRL-MGG

WARDEN,

Respondent.

OPINION AND ORDER

Christopher Brown, by counsel, filed a habeas corpus petition to challenge his

conviction for conspiracy to commit robbery resulting in serious bodily injury and

robbery resulting in serious bodily injury under Case No. 09C01-1603-F2-6. Following a

jury trial, he was sentenced to 80 years of incarceration, but his sentence was reduced to

36 years following direct and post-conviction review. Mr. Brown asserts that his Sixth

Amendment rights were violated at a critical stage of the criminal proceedings when the

trial court allowed the prosecution to amend the charges at the February 2016 hearing

without the presence of trial counsel. He articulates his claim as follows:

Christopher Brown’s claim to federal habeas relief is straightforward. Tried

together with a codefendant, Brandon Black, after a mistrial because the

jury deadlocked, the State of Indiana moved to amend the charging

informations against both to add more serious charges. Both Mr. Brown and

Mr. Black had public defenders with appearances on file. At the hearing

held by the Indiana trial court on the State’s motion to amend the

informations to add more serious charges, no lawyer was present for

neither Mr. Brown or Mr. Black.

Mr. Brown’s case presents the paradigmatic application of United States v.

Cronic, 466 U.S. 648 (1984). Prejudice must be presumed, Chronic says, from

Mr. Brown’s lawyer’s absence at the hearing on the State’s motion to amend

the charging information.

ECF 1 at 1-2.

In support of this claim, Mr. Brown relies on United States v. Cronic, 466 U.S. 648

(1984). There, the Supreme Court indicated that the criminal defendant is ordinarily

required to demonstrate prejudice in connection with an ineffective assistance of counsel

claim. Id. at 658. “There are, however, circumstances that are so likely to prejudice the

accused that the cost of litigating their effect in a particular case is unjustified.” Id. “Most

obvious, of course, is the complete denial of counsel. The presumption that counsel’s

assistance is essential requires us to conclude that a trial is unfair if the accused is denied

counsel at a critical stage of his trial.” Id. at 659.

The Indiana Court of Appeals summarized the relevant sequence of events as

follows:

On January 19, 2015, the State charged Brown with conspiracy to commit

robbery as a Level 3 felony and battery as a Level 6 felony. The State also

alleged Brown was an habitual offender. Following a jury trial in February

2016, the trial court declared a mistrial after the jury deadlocked.

On February 24, 2016, the State filed an amendment to the charging

information to include three additional counts against Brown: conspiracy

to commit robbery resulting in serious bodily injury as a Level 2 felony

(“Count III”), robbery resulting in serious bodily injury as a Level 2 felony

(“Count IV”), and battery resulting in serious bodily injury as a Level 5

felony (“Count V”). On February 29, 2016, the trial court held an “Initial

hearing” with respect to these new charges. At the hearing, the State

informed the trial court that it would move to dismiss the original two

counts that had resulted in a mistrial and proceed only on the three new

charges. Brown’s counsel was not present at the hearing but the trial court

entered a plea of not guilty to the new charges on Brown’s behalf. The State

did not file a motion to dismiss Counts I and II thereafter.

On July 19, 2016, the State filed a new charging information against Brown

and Black that included only Counts III-V, now renumbered Counts I-III

(hereafter referred to as such), and the habitual offender allegation. Brown

did not object.1 A joint trial commenced the following day. There, the State

admitted evidence of the show-up identification and Amin also testified

that Brown was one of his assailants. The jury found Brown guilty as

charged. The trial court entered judgment of conviction on all counts, but

vacated the battery conviction due to double jeopardy concerns. The trial

court sentenced Brown to thirty years on both Counts I and III, to be served

consecutively. The trial court also enhanced Brown’s sentence by twenty

years due to his habitual offender status for an aggregate sentence of eighty

years in the Indiana Department of Correction.

ECF 7-6 at 5-6; Brown v. State, 87 N.E.3d 54 (Ind. Ct. App. 2017).

TIMELINESS

The Warden argues that the petition is untimely. The statute of limitations for

habeas petitions states as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State

court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws

of the United States is removed, if the applicant was

prevented from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

1 This sentence requires some clarification. On July 19, 2016, trial counsel objected to the

amendments made on that date on the eve of trial but did not object to the amendments made on

February 29, 2016. ECF 8-7 at 179.

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

(2) The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment

or claim is pending shall not be counted toward any period of limitation

under this subsection.

28 U.S.C. § 2244(d).

Based on review of the petition, the date on which the judgment became final is

the applicable starting point for calculating timeliness. Mr. Brown’s direct appeal

culminated in the Indiana Supreme Court’s denial of a petition to transfer on September

26, 2017. ECF 7-2. Therefore, his conviction became final for purposes of 28 U.S.C. §

2244(d)(1)(A) when the time for petitioning the United States Supreme Court for a writ

of certiorari expired on December 20, 2017. See U.S. Sup. Ct. R. 13(1) (petition for writs of

certiorari must filed within 90 days after entry of judgment); Jimenez v. Quarterman, 555

U.S. 113, 119 (2009) (when a state prisoner does not petition the Supreme Court of the

United States on direct appeal, his conviction becomes final when the time for filing a

petition expires). Before any time had run, Mr. Brown initiated post-conviction

proceedings. ECF 7-10. On December 14, 2020, the Cass Superior Court granted the post-

conviction petition and vacated the habitual offender conviction. ECF 7-11. On January

20, 2021, Mr. Brown filed a motion acknowledging the post-conviction order as a final

order and asking the Cass Superior Court to send an amended abstract of judgment

consistent with the post-conviction order to the Indiana Department of Correction, which

was granted the next day. ECF 7-1 at 10; ECF 7-10 at 5; ECF 7-12. On February 12, 2021,

Mr. Brown filed another motion highlighting errors in the amended abstract of judgment

and asked the Cass Superior Court to send another amended abstract of judgment to the

Indiana Department of Correction, which was granted on the same day. ECF 7-1 at 10;

ECF 7-10 at 5; ECF 7-13. On October 21, 2021, Mr. Brown filed a motion for a new

sentencing hearing or a new sentencing order, which was granted on October 26, 2021.

ECF 7-10 at 6; ECF 7-14.

The parties dispute how long these proceedings remained pending. The pendency

of post-convictions is material because 28 U.S.C. § 2244(d)(2) statutorily tolls the

limitations period for “the time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment or claim is

pending.” Mr. Brown asserts that post-conviction proceedings concluded when the Cass

Superior Court issued the new sentencing order on October 26, 2021. The Warden

responds that they concluded when the Cass Superior Court granted post-conviction

relief and vacated the habitual offender enhancement conviction.

“The issue of whether a post-conviction petition is pending for habeas purposes is

governed by state law.” Wilson v. Battles, 302 F.3d 745, 747 (7th Cir. 2002). “For purposes

of habeas review, an application for collateral review is pending until it has achieved final

resolution through the State’s post-conviction procedures.” Id. Section 6 of Rule 1 of the

Indiana Rules of Post-Conviction Remedies, titled “Judgment,” states as follows:

The court shall make specific findings of fact, and conclusions of law on all

issues presented, whether or not a hearing is held. If the court finds in favor

of the petitioner, it shall enter an appropriate order with respect to the

conviction or sentence in the former proceedings, and any supplementary

orders as to arraignment, retrial, custody, bail, discharge, correction of

sentence, or other matters that may be necessary and proper. This order is

a final judgment.

On this basis, the court finds that the post-conviction petition was no longer pending

once the Cass Superior Court issued the order on December 14, 2020.

In that order, the Cass Superior Court resolved the post-conviction petition, and

that resolution was not subsequently modified or challenged, rendering it a final

resolution. The state post-conviction rules also deemed this order a final judgment as Mr.

Brown conceded in one of his post-judgment motions. ECF 7-12. And even in these post-

judgment motions, Mr. Brown sought to enforce the December 2020 order rather than to

challenge it.

The federal limitations expired one year later on December 14, 2021. Though Mr.

Brown initiated further efforts to obtain collateral relief in October 2022 (ECF 7-1 at 11-

16), these efforts did not restart the federal limitations period, nor did they “open a new

window for federal collateral review.” See De Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir.

2009). On October 16, 2023, Mr. Brown initiated this case by filing a habeas petition. ECF

1. Because Mr. Brown filed the petition nearly two years too late, the court dismisses the

petition as untimely. Nevertheless, for the sake of completeness, the court will address

the merits of his claim.

STANDARD

“Federal habeas review . . . exists as a guard against extreme malfunctions in the

state criminal justice systems, not a substitute for ordinary error correction through

appeal.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (quotations and citation omitted).

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.

28 U.S.C. § 2254(d).

[This] standard is intentionally difficult to meet. We have explained that

clearly established Federal law for purposes of §2254(d)(1) includes only

the holdings, as opposed to the dicta, of this Court’s decisions. And an

unreasonable application of those holdings must be objectively

unreasonable, not merely wrong; even clear error will not suffice. To satisfy

this high bar, a habeas petitioner is required to 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.

Woods, 135 S. Ct. at 1376 (quotations and citations omitted). Criminal defendants are

entitled to a fair trial but not a perfect one. Rose v. Clark, 478 U.S. 570, 579 (1986). To

warrant relief, a state court’s decision must be more than incorrect or erroneous; it must

be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 (2003). “A state court’s

determination that a claim lacks merit precludes federal habeas relief so long as

fairminded jurists could disagree on the correctness of the state court’s decision.”

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotations omitted).

DISCUSSION

Mr. Brown asserts that he is entitled to habeas relief because the trial court violated

his Sixth Amendment right to trial counsel by allowing the prosecution to amend the

charges at the February 2016 hearing without the presence of trial counsel. On direct

appeal, the Indiana Court of Appeals rejected this claim, finding that an initial hearing as

held in Indiana is not a critical stage and characterizing the February 2016 hearing as an

initial hearing.2 ECF 7-6 at 6-8. The appellate court noted that the trial court described the

hearing as an initial hearing and reviewed the charges, entered Mr. Brown’s plea of not

guilty, and did not insist on the presence of trial counsel consistent with an initial hearing.

Id. The appellate court further determined that the hearing was not a critical stage even

without reference to its status as an initial hearing because trial counsel’s presence was

not critical. Id. The appellate court reasoned that trial counsel could have raised any

objection to the amendments at a later date so Mr. Brown did not suffer prejudice as a

result of trial counsel’s absence at the hearing. Id. The appellate court also determined

that the absence of trial counsel would have amounted to harmless error. Id. The appellate

court reasoned that the amendments were made five months before trial, so trial counsel

had ample time to make objections and to prepare a meaningful defense. Id.

A. Critical Stage of the Proceedings.

Mr. Brown argues that the state court acted unreasonably by finding that the

February 2016 hearing was not a critical stage of the proceedings. “[T]he right to the

effective assistance of counsel is recognized not for its own sake, but because of the effect

it has on the ability of the accused to receive a fair trial.” United States v. Cronic, 466 U.S.

2 The Indiana Court of Appeals acknowledged that it had found that the February 2016 hearing

was not an initial hearing and that it amounted to a critical stage of the proceedings in the direct

appeal of Mr. Brown’s codefendant, Brandon Black. Though the Indiana Court of Appeals did

not elaborate on this discrepancy, this court observes that different three-judge panels presided

over the two appeals.

648, 658 (1984). “The presumption that counsel's assistance is essential requires us to

conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.

Id. at 659. However, “[i]ts protections are not designed simply to protect the trial.” Lafler

v. Cooper, 566 U.S. 156, 165 (2012). “The constitutional guarantee applies to pretrial critical

stages that are part of the whole course of a criminal proceeding, a proceeding in which

defendants cannot be presumed to make critical decisions without counsel’s advice.” Id.

“The Supreme Court has not provided a concise explanation of what constitutes a

critical stage.” Schmidt v. Foster, 911 F.3d 469, 479 (7th Cir. 2018). “Broadly, it has described

a critical stage as a step of a criminal proceeding that holds significant consequences for

the accused.” Id. (quoting Bell v. Cone, 535 U.S. 685, 696 (2002)). “Alternatively, though

still broadly, the Court has said that whether a stage is critical depends on whether,

during a particular confrontation, the accused faces prejudice that counsel could help

avoid.” Id. (quoting United States v. Wade, 388 U.S. 218, 227 (1967)).

On this point, the court finds Schmidt v. Foster, 911 F.3d 469 (7th Cir. 2018), to be

particularly instructive. In Schmidt, the habeas petitioner argued that the state court erred

by finding that an in camera examination of a criminal defendant to determine whether

there was a sufficient factual basis for an adequate provocation defense during an

evidentiary hearing was not a critical stage of the proceedings. Id. at 472-73, 480. The

Seventh Circuit observed the lack of a precise definition for critical stage and that the

Supreme Court had never recognized an in camera examination of a criminal defendant

or an evidentiary hearing as a critical stage. Id. at 479-80. The Seventh Circuit concluded

by finding it unnecessary to resolve the issue, but it nevertheless implied that the state

court could not have unreasonably applied clearly established federal law under these

circumstances. Id. at 480. This court is similarly inclined to agree that the state court here

could not have acted unreasonably given the absence of a clear definition from the

Supreme Court and given the absence of any Supreme Court case holding that a hearing

like this one in which trial counsel had ample opportunity to make objections and to

prepare for trial is a critical stage of the proceedings.

Mr. Brown maintains that Brewer v. Williams, 430 U.S. 387 (1977), and Rothgery v.

Gillespie County, 554 U.S. 191 (2008), stand for the proposition that the February 2016

hearing was a critical stage of the proceedings. These cases hold that “the right to counsel

guaranteed by the Sixth Amendment applies at the first appearance before a judicial

officer at which a defendant is told of the formal accusation against him and restrictions

are imposed on his liberty.” Rothgery, 554 U.S. at 194. In other words, these cases stand

for the proposition that the right to counsel attaches at “the initiation of adversary judicial

criminal proceedings—whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment;” id. at 198, but they do not directly indicate that

the first appearance before a judicial officer is a critical stage requiring the presence of

counsel. To the contrary, the Supreme Court in Rothgery observed that “the

overwhelming consensus practice” of the federal and state courts is to appoint counsel

“before, at, or just after an initial appearance,” strongly implying that the presence of

counsel is not required at the point where the right to counsel attaches. See id. at 203-05

(italics added).

Mr. Brown further maintains that in Jones v. Zatecky, 917 F.3d 578 (7th Cir. 2019),

the Seventh Circuit “has already held that a hearing on the State’s late amendments to an

Indiana charging information is a critical stage.” ECF 1 at 13. In Jones, the Seventh Circuit

found ineffective assistance of trial counsel when the trial court granted an untimely

amendment to the information at a pretrial hearing, and trial counsel did not object,

which waived the meritorious objection based on untimeliness for appellate review. Jones,

917 F.3d at 581-84. Notably, the Seventh Circuit did not expressly hold that the pretrial

amendment hearing was a critical stage. Nor did the Seventh Circuit imply that the

ineffective assistance occurred due to trial counsel’s inaction at the pretrial amendment

hearing or otherwise suggest that this hearing in and of itself was of any particular

importance. Instead, the Seventh Circuit found ineffective assistance due to trial counsel’s

failure to object to amendments at any time and due to its prejudicial effect on the

outcome of the direct appeal. Id. at 583. In sum, neither Brewer, Rothgery, nor Jones

persuade the court that the state court unreasonably determined that the February 2016

hearing was not a critical stage of the proceedings.

B. Harmless Error Analysis.

Mr. Brown argues that the state court decision to apply a harmless error analysis

rather than presuming prejudice to Mr. Brown’s denial of counsel claim was an

unreasonable application of United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the

Supreme Court noted that defendants must ordinarily demonstrate some harmful effect

on the trial process to demonstrate a violation of the right to effective assistance of

counsel. Id. at 658. However, the Supreme Court acknowledged that some circumstances

“are so likely to prejudice the accused that the cost of litigating their effect in a particular

case is unjustified.” Id. As examples, the Supreme Court identified the “complete denial

of counsel”, a complete failure “to subject the prosecution’s case to meaningful

adversarial testing,” and the denial of any opportunity to conduct “an effective cross-

examination” as rendering “the adversary process itself presumptively unreliable.” Id. at

659.

That said, the existence of the right to the assistance of counsel at all critical stages

does not mean that a reviewing court must always presume prejudice if it is infringed. In

subsequent cases, the Supreme Court has emphasized that the denial of counsel must be

“complete” to apply the presumption of prejudice. See Wright v. Van Patten, 552 U.S. 120,

125 (2008); Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000). The Supreme Court recently

reaffirmed this principle in Glebe v. Frost, 574 U.S. 21, 23-24 (2014), holding that the

presumption of prejudice applies only when the error “infects the entire trial process and

necessarily renders it fundamentally unfair” and that, at most, its prior rulings

established only that the “complete denial of summation” requires the presumption of

prejudice.

“[T]he Cronic exception is exceedingly narrow.” Smith v. Brown, 764 F.3d 790, 796

(7th Cir. 2014). “In the wake of [Bell v. Cone, 535 U.S. 685 (2002)], courts have rarely

applied Cronic, emphasizing that only non-representation, not poor representation,

triggers a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007).

“Most constitutional mistakes call for reversal only if the government cannot demonstrate

harmlessness.” Glebe v. Frost, 574 U.S. 21, 23 (2014).

Upon careful consideration, this court cannot find that the state court made an

unreasonable determination of federal law by applying harmless error analysis. Implicit

in the state court’s reasoning is that trial counsel’s absence from the February 2016

hearing did not completely deprive him of his ability to challenge the trial court’s ruling

on the amended information. Significantly, Indiana law did not require Mr. Brown to

challenge the amended indictment at the February 2016 hearing. See Ind. Code § 35-34-1-

4 (allowing motions to dismiss information within 20 days prior to the omnibus date for

certain grounds or any time before or during trial for other grounds); Gross v. State, 41

N.E.3d 1043, 1047 (Ind. Ct. App. 2015) (“Trial courts have the inherent authority to

dismiss criminal charges where the prosecution of such charges would violate a

defendant’s constitutional rights.”). The record further indicates that trial counsel knew

of the proposed amended information before the February 2016 hearing and that he did

not challenge the amended information in the five months between that hearing and the

trial date. ECF 7-1 at 1-6; ECF 8-2 at 154-58.

On this basis, the court concludes that Mr. Brown’s claim more closely resembles

scenarios in which federal courts have declined to find a complete denial of counsel.

These scenarios include appellate counsel’s declining to pursue a direct appeal or a

particular argument, Vinyard v. United States, 804 F.3d 1218, 1228 (7th Cir. 2015); Kitchen

v. United States, 227 F.3d 1014, 1021 (7th Cir. 2000); restrictions on trial counsel’s

summation, Glebe v. Frost, 574 U.S. 21, 24 (2014) and restrictions of trial counsel’s

involvement during an in camera examination of the defendant, Schmidt v. Foster, 911

F.3d 469, 481 (7th Cir. 2018). Whether it was error to hold the February 2016 hearing in

trial counsel’s absence, trial counsel had other opportunities to challenge the amended

indictment. It is thus unclear how such error could have infected the entire trial process

and rendered it fundamentally unfair, so the court cannot find a complete denial of

counsel that would entitle Mr. Brown to a presumption of prejudice.

Moreover, the court does not perceive trial counsel’s absence at the February 2016

hearing as a circumstance that is “so likely to prejudice the accused that the cost of

litigating their effect in a particular case is unjustified,” Woods v. Donald, 575 U.S. 312, 318

(2015), or that “prejudice is so likely that case-by-case inquiry into prejudice is not worth

the cost,” Kitchen v. United States, 227 F.3d 1014, 1020 (7th Cir. 2000). The only significant

consequence of the February 2016 hearing identified by Mr. Brown was the amended

information. Prejudice could be shown though the Strickland framework by identifying a

meritorious challenge to the information that trial counsel could have made and by

showing its probable effect on the outcome of the trial. See Jones v. Zatecky, 917 F.3d 578,

582 (7th Cir. 2019); Shaw v. Wilson, 721 F.3d 908, 918 (7th Cir. 2013). Mr. Brown’s ability

to demonstrate prejudice here seems substantially similar to the petitioner’s ability in

Kitchen, 227 F.3d 1014, 1020-22 (7th Cir. 2000), where the Seventh Circuit required the

petitioner to demonstrate prejudice “by showing that the omitted issue may have

resulted in a reversal of the conviction or an order for a new trial” and declined to apply

a presumption of prejudice. See also Bell v. Cone, 535 U.S. 685, 697 (2002) (“The aspects of

counsel’s performance challenged by respondent—the failure to adduce mitigating

evidence and the waiver of closing argument—are plainly of the same ilk as other specific

attorney errors we have held subject to Strickland’s performance and prejudice

components.”).

The court further observes that the inability to object to an amended indictment

at a particular hearing is not so likely to result in prejudice as to obviate the need for a

case-by-case inquiry. Prosecutors often amend charges to which no objections are raised

and to which no valid objections could be raised. And, here, trial counsel’s opportunity

to challenge the indictment both before and after the hearing further diminishes the

likelihood of prejudice. Based on the foregoing, the court cannot find that the State

court made an unreasonable determination of clearly established federal law by

applying harmless error analysis to Mr. Brown’s claim.

Next, the court finds that the state court applied the harmless error analysis in a

reasonable manner. For errors of constitutional dimension, “an otherwise valid

conviction should not be set aside if the reviewing court may confidently say, on the

whole record, that the constitutional error was harmless beyond a reasonable doubt.”

Rose v. Clark, 478 U.S. 570, 576 (1986). However, on habeas review, the reviewing court

must instead consider whether the constitutional error “had substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,

638 (1993).

Notably, Mr. Brown has not demonstrated or even argued on habeas review that

trial counsel was deficient for failing to challenge the amended indictment from February

2016. And Mr. Brown makes no other argument specifically identifying how trial

counsel’s absence at the February 2016 hearing might have affected the outcome of trial.

Further, after reviewing the record, the court is unable to identify any likelihood that trial

counsel’s absence at the February 2016 hearing had an injurious effect on the jury verdict.

Trial counsel had ample opportunity to challenge the amended information despite his

absence at the February 2016 hearing. Trial counsel also had ample time to prepare a

defense to the new charges. Further, on direct appeal, the Indiana Court of Appeals

reviewed the objections Mr. Brown could have made before or after the hearing and

found that the amendments did not cause him any prejudice. ECF 7-6 at 9-11.

Consequently, the court cannot find that trial counsel’s absence at the February 2016

hearing had a substantial and injurious effect on the jury’s verdict. Because the State court

did not unreasonably decide Mr. Brown’s denial of counsel claim, it is not a basis for

habeas relief.

CERTIFICATE OF APPEALABILITY

Pursuant to Section 2254 Habeas Corpus Rule 11, the court must grant or deny a

certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. §

2253(c), the petitioner must make a substantial showing of the denial of a constitutional

right by establishing “that a reasonable jurist 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). For the reasons explained in this order, there is no basis

for encouraging Mr. Brown to proceed further.

For these reasons, the court DENIES the habeas corpus petition; DENIES a

certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11; and

DIRECTS the clerk to enter judgment in favor of the Respondent and against the

Petitioner.

SO ORDERED.

June 24, 2024 s/ Damon R. Leichty

Judge, United States District Court