Freese v. Brown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES FREESE, II,

Petitioner, Case No. 21-12800

Hon. Jonathan J.C. Grey

v.

MIKE BROWN,

Respondent.

/

OPINION AND ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS AND DENYING

CERTIFICATE OF APPEALABILITY

On December 2, 2021, James Freese, II, a Michigan prisoner

proceeding through counsel, filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Freese pleaded no contest to

eleven sexual misconduct charges. He now seeks habeas relief because

he was not advised prior to entering his plea that, under Michigan law,

a second-degree criminal sexual conduct conviction subjected him to

mandatory lifetime electronic monitoring (“LEM”).

For the reasons set forth below, the Court DENIES the petition and

declines to issue a certificate of appealability.

I. BACKGROUND

Freese was charged in Alpena County Circuit Court with twelve

counts of criminal sexual misconduct ranging in degree from first to

fourth. The charges arose from his sexual assault of various women and

girls between 1991 and 2012. See People v. Freese, No. 329673, 2017 WL

1488986, at *1 (Mich. Ct. App. Apr. 25, 2017). Freese elected to have his

case tried by a jury. Id.

On the third day of trial, Freese pleaded no contest to 11 counts of

criminal sexual conduct – five counts of first-degree criminal sexual

conduct (CSC-I), Mich. Comp. Laws. § 750.520b(1)(b)(ii), two counts of

second-degree criminal sexual conduct (CSC-II), Mich. Comp. Laws §

750.520c(1)(a), three counts of third-degree criminal sexual conduct

(CSC-III), Mich. Comp. Laws § 750.520d(1)(a), (b), and one count of

fourth-degree criminal sexual conduct (CSC-IV), Mich. Comp. Laws §

750.520e(1). In exchange for the plea, the prosecutor dismissed a first-

degree charge which would have exposed Freese to a mandatory

minimum sentence of not less than 25 years. Id.

Prior to sentencing, Freese filed a motion to withdraw his plea on

the ground that his trial counsel coerced him into entering a plea. The

trial court held an evidentiary hearing and denied the motion. (See ECF

No. 6-15.) The trial court sentenced Freese to concurrent sentences of

imprisonment of 15 to 40 years for each CSC-I conviction, 3 to 15 years

for each CSC-II conviction, 4 to 15 years for each CSC-III conviction, and

13 months to 2 years for the CSC-IV conviction, along with lifetime

electronic monitoring for each of the first and second-degree convictions

under Mich. Comp. Laws § 750.520n(1). See Freese, 2017 WL 1488986 at

*1.

Freese filed an appeal by right and by leave in the Michigan Court

of Appeals.1 He raised these claims: (1) the trial court abused its

discretion by denying Freese’s motion to withdraw his plea because it was

involuntary as it was induced by fear; (2) Freese’s plea was involuntary

because the trial judge failed to advise him of the mandatory lifetime

electronic monitoring for the second-degree CSC crimes; (3) the court

erred by imposing lifetime electronic monitoring in the judgment of

sentence when it was not imposed a part of the sentencing hearing; (4)

1 Several of the assaults occurred before December 24, 1994, the date the Michigan

Constitution was amended to eliminate an appeal of right following plea-based

convictions, allowing appeals only by leave granted. Freese’s appeal was by right as

to the convictions relating to assaults occurring before that date and by leave for those

occurring after. Freese, 2017 WL 1488986 at *1, n.1.

trial and appellate counsel rendered ineffective assistance by failing to

request plea withdrawal and pressuring Freese into entering a plea; and

(5) the sentence was disproportionate and unreasonable. The Michigan

Court of Appeals affirmed Freese’s convictions. Freese, 2017 WL 1488986.

The Michigan Supreme Court denied Freese’s application for leave to

appeal. People v. Freese, 501 Mich. 952 (2018).

Next, Freese filed a motion for relief from judgment in the trial

court. He claimed: (1) he should be permitted to withdraw his second-

degree CSC pleas because he was not advised that LEM was a

consequence of those pleas, and (2) under the Ex Post Facto Clause he

should not be sentenced to LEM for his first-degree CSC convictions. The

trial court denied the motion. (See ECF No. 6-17.) The Michigan Court of

Appeals granted Freese’s application for leave to appeal the trial court’s

decision. See People v. Freese, II, No. 332141 (Mich. Ct. App. May 5, 2016)

(ECF No. 6-19, PageID.1229.)

The Michigan Court of Appeals held that imposition of LEM based

on Freese’s first-degree CSC convictions violated the Ex Post Facto

Clause because, at the time of the charged offenses, the maximum

penalty for first-degree CSC was imprisonment for “life or any term of

years.” People v. Freese, No. 350388, 2021 WL 219557, *2 (Mich. Jan. 21,

2021). The court of appeals remanded to the trial court to correct the

judgment of sentence by removing the mandatory LEM from the first-

degree CSC sentences. Id. at *2, 5. The court of appeals affirmed the trial

court’s order denying the motion for relief from judgment in all other

respects. Id. at *5. The Michigan Supreme Court denied Freese leave to

appeal the court of appeals’ decision. People v. Freese, No. 162738, 508

Mich. 925 (Mich. 2021).

Freese then filed the instant petition for a writ of habeas corpus.

He presents a single ground for relief:

Under the Due Process Clause of the United States

Constitution, because Freese was not informed of the lifetime

electronic consequences of his CSC-II pleas, he is entitled to

withdraw those pleas.

Respondent filed an answer in opposition arguing that the Court

should decline to address the claim under the concurrent sentencing

doctrine, and that Freese’s claim is procedurally defaulted and meritless.

(ECF No. 5.) Freese filed a reply brief. (ECF No. 7.)

II. STANDARD

A § 2254 habeas petition is governed by the heightened standard of

review set forth in the Anti-Terrorism and Effective Death Penalty Act

(AEDPA) 28 U.S.C. § 2254. To obtain relief, habeas petitioners who

challenge “a matter ‘adjudicated on the merits in State court’ [must] show

that the relevant state court ‘decision’ (1) ‘was contrary to, or involved an

unreasonable application of, clearly established Federal law,’ or (2) ‘was

based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceedings.’” Wilson v. Sellers, 548

U.S. 122, 124–25 (2018) (quoting 28 U.S.C. § 2254(d)).

The focus of this standard “is not whether a federal court believes

the state court’s determination was incorrect but whether that

determination was unreasonable -- a substantially higher threshold.”

Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “AEDPA thus imposes a

highly deferential standard for evaluating state-court rulings and

demands that state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations and quotation

marks omitted).

“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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)). Also, a state-court’s factual determinations are presumed correct

on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited

to the record that was before the state court.” Cullen v. Pinholster, 563

U.S. 170, 181 (2011).

III. DISCUSSION

Freese pleaded no contest to eleven criminal sexual conduct

charges, including five counts of first-degree CSC and two counts of

second-degree CSC. Prior to accepting Freese’s plea, the trial court

advised him that he faced mandatory LEM for each of the first-degree

CSC charges but failed to advise him that he also faced mandatory LEM

for the second-degree CSC charges. Freese claims that this failure

rendered his plea to the second-degree CSC charges unknowing and

involuntary.

A. Concurrent Sentence Doctrine

Respondent argues that the Court should decline review of this

claim because even if the Court granted the requested relief and allowed

Freese the chance to withdraw his pleas to second-degree CSC, he would

still be incarcerated on his first-degree CSC convictions. (See ECF No. 5,

PageID.75-77.)

Under the concurrent sentence doctrine, a federal court may decline

to review a challenge to a conviction “when the sentence on the

challenged conviction is being served concurrently with an equal or

longer sentence on a valid conviction.” Dale v. Haberlin, 878 F.2d 930,

935 n.3 (6th Cir. 1989). The Sixth Circuit “has been admittedly hesitant

to apply this doctrine, invoking it only when there is no possibility of

‘adverse consequences’ if the convictions stand.” Pillette v. Berghuis, 408

F. App’x 873, 886 n.8 (6th Cir. 2010).

Adverse consequences in this context include: “an effect on parole

or a potential pardon, the existence of state recidivist statutes, the

possibility of impeachment at a future trial, the potential for use as

evidence of a prior bad act, and possible stigma.” Id. Respondent fails to

demonstrate a lack of adverse consequences attaching to Freese’s second-

degree CSC convictions. The Court therefore declines to apply the

concurrent sentence doctrine.

B. Procedural Default

Respondent argues that the sole claim raised in the petition is

procedurally defaulted. A habeas claim is procedurally defaulted if the

petitioner’s failure to comply with a state procedural rule was an

“adequate and independent” ground for the state court’s denial of relief

on that claim. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010).

Freese correctly concedes procedural default because the Michigan Court

of Appeals held that he did not comply with Michigan Court Rule

6.310(D), which requires a defendant to raise a specific claim for plea

withdrawal in the trial court before raising it on appeal. Freese, 2017 WL

1488986 at *2. The Court, therefore, may consider the merits of Freese’s

claim only if he can establish either (1) cause for the default and prejudice

from the alleged constitutional violation, or (2) that failure to consider

the claims would result in a “fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Freese asserts that his appellate attorney was ineffective by failing

to preserve the claim for review by filing a second motion for plea

withdrawal in the trial court and this constitutes cause to excuse the

default and that he suffered actual prejudice as a result. When an

ineffective assistance of counsel claim is asserted as cause to excuse a

procedural default, the ineffective assistance claim is reviewed de novo:

“An argument that ineffective assistance of counsel should

excuse a procedural default is treated differently than a free-

standing claim of ineffective assistance of counsel.” Hall v.

Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009). In particular,

“[t]he latter must meet the higher AEDPA standard of review,

while the former need not.” Id. at 237; see also, e.g., Smith v.

Warden, Toledo Corr. Inst., 780 F. App’x 208, 225 (6th Cir.

2019); Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir. 2006).

Thus, we review de novo the question of whether ineffective

assistance of appellate counsel excuses [the petitioner's]

procedural default.

Chase v. MaCauley, 971 F.3d 582, 591–92 (6th Cir. 2020).

An ineffective assistance of counsel claim has two components.

Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show

that counsel’s performance was deficient, and that the deficiency

prejudiced the defense. Id. at 687. To establish deficient representation,

a petitioner must demonstrate that counsel’s representation “fell below

an objective standard of reasonableness.” Id. at 688. To establish

prejudice, a petitioner must show that, but for the constitutionally

deficient representation, there is a “reasonable probability” that the

outcome of the proceeding would have been different. Id. at 694.

The Sixth Amendment guarantees a defendant the right to effective

assistance of counsel on the first appeal by right. See Evitts v. Lucey, 469

U.S. 387, 396–397 (1985). Appellate “‘[c]ounsel’s performance is strongly

presumed to be effective.’” McFarland v. Yukins, 356 F.3d 688, 710 (6th

Cir. 2004) (quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 2000)).

A petitioner does not have a constitutional right to have appellate

counsel raise every non-frivolous issue on appeal. Jones v. Barnes, 463

U.S. 745, 754 (1983). “[A]ppellate counsel who files a merits brief need

not (and should not) raise every nonfrivolous claim, but rather may select

from among them in order to maximize the likelihood of success on

appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000). “To evaluate a claim

of ineffective assistance of appellate counsel . . . the court must assess the

strength of the claim that counsel failed to raise.” Henness v. Bagley, 644

F.3d 308, 317 (6th Cir. 2011). “If a reasonable probability exists that the

defendant would have prevailed had the claim been raised on appeal, the

court still must consider whether the claim’s merit was so compelling

that the failure to raise it amounted to ineffective assistance of appellate

counsel.” Id.

Here, Freese fails to show that appellate counsel performed

deficiently or that he suffered prejudice. Freese maintains that it was

“objectively unreasonable” for appellate counsel not to seek plea

withdrawal in the trial court on the ground he was not notified about

mandatory LEM for second-degree CSC. (ECF No. 1-1, PageID.18.) While

appellate counsel did not file a second motion in the trial court, she did

file a motion to remand in the Michigan Court of Appeals on the ground

that counsel misadvised Freese about the applicability of lifetime

electronic monitoring. (See ECF No. 6-19, PageID.1174-1176.) Counsel’s

decision not to seek remand or move for plea withdrawal on the precise

issue raised by Freese was not unreasonable.

Counsel’s appellate brief shows that she carefully considered and

presented Petitioner’s lifetime electronic monitoring claim. (See id. at

PageID.1200-1202.) Counsel acknowledged that this precise claim was

not raised when Freese moved to withdraw his plea before sentencing but

argued that the court of appeals could excuse that error because Freese’s

first and second trial attorneys were ineffective. Counsel further argued

that state court precedent clearly showed a willingness to excuse the lack

of issue preservation for a plainly defective guilty (or no contest) plea.

Finally, she maintained that, because the error was plain, the court of

appeals could grant peremptory reversal under Mich. Ct. Rule

7.205(D)(2).

The reasonableness of an attorney’s decisions is not measured by

their success. See Baze v. Parker, 371 F.3d 310, 320–21 (6th Cir. 2004)

(“[T]he Sixth Amendment guarantees [only] reasonable competence, not

perfect litigation.”). Here, counsel’s presentation of the issues was clearly

the result of strategic and tactical choices, choices which are “properly

left to the sound professional judgment of counsel.” McMeans v. Brigano,

228 F.3d 674, 688 (6th Cir. 2000) (citing United States v. Perry, 908 F.2d

56, 59 (6th Cir. 1990)). Freese has failed to show that appellate counsel’s

tactical decisions fell outside the wide range of professionally competent

assistance.

Even if counsel erred, Freese has not shown prejudice. To show

prejudice, Freese must show that, but for his counsel’s error, there was a

reasonable probability he would have prevailed on appeal. Smith, 528

U.S. at 285–86. Freese argues that it is “clear cut” that if appellate

counsel had filed a second motion for plea withdrawal on the ground that

the trial court did not advise him about the lifetime electronic monitoring

consequences of his second-degree CSC pleas, “the trial court would have

been obligated to grant the motion.” (ECF No. 1-1, PageID.18.) In fact,

this is far from clear cut.

The Michigan Court of Appeals held that the error was harmless

because the trial court was in “substantial compliance” with Michigan

Court Rule 6.302(B)(2) which requires a defendant to be advised of

mandatory lifetime electronic monitoring. Freese, 2017 WL 1488986 at

*4. As the court of appeals noted, Petitioner was advised of the lifetime

electronic monitoring requirement with respect to each of the five first-

degree CSC charges. Given the state court’s holding that the trial court’s

colloquy was sufficient, if not perfect, Freese fails to show a reasonable

probability that, absent counsel’s claimed deficiency, the result of the

proceeding would have been different.

This claim, therefore, is procedurally defaulted unless Freese can

show that a fundamental miscarriage of justice would occur if his claim

were not reviewed. “The miscarriage-of-justice exception requires a

prisoner to present new reliable evidence showing that he is actually

innocent.” Dufresne v. Palmer, 876 F.3d 248, 256 (6th Cir. 2017). A

prisoner asserting actual innocence to excuse a procedural default “must

establish that, in light of new evidence, ‘it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable

doubt.’” House v. Bell, 547 U.S. 518, 536–37 (2006) (quoting Schlup v.

Delo, 513 U.S. 298, 327 (1995)). This standard is “demanding and permits

review only in the ‘extraordinary’ case.” Id. at 538 (quoting Schlup, 513

U.S. at 327).

Freese does not attempt to satisfy this standard nor is there any

evidence in the record that would support a miscarriage-of-justice

exception. Consequently, the Court finds that this claim is procedurally

defaulted.

C. Review of the Merits

Even if the procedural default were excused, Freese is not entitled

to relief. When a criminal defendant is convicted pursuant to a plea,

habeas review is limited to whether the plea was made knowingly,

intelligently, and voluntarily. See United States v. Broce, 488 U.S. 563,

570 (1989); Haring v. Prosise, 462 U.S. 306, 219–20 (1983).

Pleas must be made “with sufficient awareness of the relevant

circumstances and likely consequences.” United States v. Brady, 397 U.S.

742, 748 (1970). The voluntariness of a plea “can be determined only by

considering all of the relevant circumstances surrounding it.” Id. at 749.

A plea “entered by one fully aware of the direct consequences” is

voluntary in a constitutional sense, and the mere fact that the defendant

“did not correctly assess every relevant factor entering into his decision”

does not mean that the decision was not intelligent. Id. at 755, 757

(quotation omitted).

Michigan courts consider mandatory LEM to be “a direct

consequence of a plea.” People v. Cole, 491 Mich. 325, 337 (Mich. 2012).

The Michigan Supreme Court, therefore, has held that “when the

governing criminal statute mandates that a trial court sentence a

defendant to lifetime electronic monitoring, due process requires the trial

court to inform the defendant entering the plea that he or she will be

subject to mandatory lifetime electronic monitoring.” Id. But a state trial

court’s failure to comply with the rule set forth in Cole is not a basis for

habeas relief because the writ may not issue “on the basis of a perceived

error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Smith

v. Bauman, No. 10-11052, 2018 WL 1399312, at *4 (E.D. Mich. Mar. 19,

2018) (citations omitted), aff’d on other grounds, No. 18-1385, 2019 WL

4865345 (6th Cir. June 25, 2019) (holding that state court’s failure to

comply with Cole’s LEM-notice requirement is not a basis for habeas

relief).

The Supreme Court has never held that mandatory lifetime

electronic monitoring is a direct consequence of a defendant’s plea about

which the defendant must be informed. Furthermore, the Sixth Circuit

Court of Appeals has held that LEM is not a direct consequence of a plea.

Saylor v. Nagy, No. 20-1834, 2021 WL 5356030, at *4 (6th Cir. Nov. 17,

2021). In Saylor, the Sixth Circuit considered a habeas petitioner’s claim

that his plea was rendered unknowing by defense counsel’s failure to

advise him about LEM and sex-offender registration.

The Sixth Circuit recognized that “a defendant must be made ‘fully

aware of the direct consequences’ of his guilty plea.” Id. at 509 (emphasis

added by Saylor) (quoting Mabry v. Johnson, 467 U.S. 504, 509 (1984)).

The Sixth Circuit also recognized:

[The Supreme Court] says nothing about whether LEM and

sex-offender registration are direct or collateral consequences.

That distinction matters because “[t]he defendant need only

be aware of the direct consequences of the plea,” not collateral

ones. King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994)

(emphasis added); see also Parrino v. United States, 655 F.

App’x 399, 403 (6th Cir. 2016) (“Typically, a defendant’s

failure to consider . . . collateral consequences of a criminal

conviction . . . does not vitiate a guilty plea.”).[ ] A consequence

is collateral rather than direct if it “remains beyond the

control and responsibility of the district court in which that

conviction was entered.” El-Nobani v. United States, 287 F.3d

417, 421 (6th Cir. 2002) (quoting United States v. Gonzalez,

202 F.3d 20, 27 (1st Cir. 2000)).

If anything, the available caselaw cuts in the opposite

direction of Saylor’s argument. It puts sex-offender

registration firmly in the collateral column. See, e.g., Chaidez

v. United States, 568 U.S. 342, 349 n.5 (2013) (“[E]ffects of a

conviction commonly viewed as collateral include civil

commitment, civil forfeiture, sex offender registration,

disqualification from public benefits, and

disenfranchisement.”); Leslie v. Randle, 296 F.3d 518, 523

(6th Cir. 2002) (“[T]he classification, registration, and

community notification provisions [of an Ohio sexual-predator

statute] are more analogous to collateral consequences....”).

This makes sense, since “whether [the defendant] must

actually register is controlled by state and federal law and is

beyond the control or responsibility of the court.” United

States v. Cottle, 355 F. App’x 18, 20 (6th Cir. 2009). That same

logic applies just as well to LEM.2 With no guidance from the

Supreme Court to say otherwise, Saylor’s ineffective-

assistance-of-plea-counsel claim fails on arrival. And so we

need not reach prejudice.

_______________________

2 We have yet to consider this specific question. But a pair of

unpublished district court cases are instructive. See Smith v.

Bauman, No. 5:10-CV-11052, 2018 WL 1399312, at *5 (E.D.

Mich. Mar. 19, 2018) (“[LEM] ... will be beyond the control or

responsibility of the trial court and, therefore, it is a collateral

consequence....”); Noonan v. Hoffner, No. 1:14-CV-830, 2014

WL 5542745, at *10 (W.D. Mich. Oct. 31, 2014) (“[B]ecause the

electronic monitoring requirement is governed by state law, it

is beyond the control or responsibility of the court.”).

Saylor, 2021 WL 53556030 at *4.2

Because there is no clearly established federal law holding that

LEM is a direct consequence of a plea, Freese cannot establish that the

trial court’s failure to advise him of this consequence rendered his plea

involuntary.

2 More recently the Sixth Circuit considered LEM in the context of § 2254’s “in

custody” requirement and held that Michigan’s LEM requirements are “collateral

consequences of conviction.” Corridore v. Washington, 71 F.4th 491, 498 (6th Cir.

2023).

Moreover, even assuming that LEM is a direct consequence of a

second-degree CSC conviction, Petitioner is not entitled to relief. If LEM

is a direct consequence, then the trial court failed in its duty to advise

Freese regarding that penalty. Hall v. Gainsheimer, 137 F. App’x 866,

869 (6th Cir. 2005). But the failure to advise a defendant about a direct

consequence of a plea is subject to harmless error analysis. See id. Under

Brecht v. Abrahamson, 507 U.S. 619 (1993), Freese must show that the

error had a “substantial and injurious effect or influence” on the outcome.

Id. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

A “substantial and injurious effect or influence” means “actual prejudice.”

Id. at 637–38. In the context of a plea-based conviction, a defendant must

show that “but for the trial court’s failure to properly advise him about

[the LEM requirement], he would not have pleaded guilty.” Hall, 137 F.

App’x at 869.

Freese asserts that he would not have entered his plea had he

known about the electronic-monitoring requirement for the two second-

degree CSC crimes. This Court finds it implausible that, at the time of

the plea, Petitioner would be willing to face the possibility of lifetime

electronic monitoring for five first-degree CSC convictions but would be

unwilling to face the lifetime electronic monitoring for two second-degree

CSC convictions. Even now, Petitioner does not definitively assert his

desire to withdraw his plea. Instead, he asks for the opportunity to return

to the trial court to decide whether he wishes to withdraw his plea. Freese

fails to show that he would not have pleaded guilty if the trial court

advised him about the LEM consequence of his second-degree CSC plea.

Any error was harmless, and relief is denied.

IV. CERTIFICATE OF APPEALABILITY

Federal Rule of Appellate Procedure 22 provides that an appeal

may not proceed unless a certificate of appealability (“COA”) is issued

under 28 U.S.C. § 2253. A COA may be issued “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). A petitioner must show “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (citation omitted). In this case, the

Court concludes that reasonable jurists would not debate the conclusion

that the petition fails to state a claim upon which habeas corpus relief

should be granted. Therefore, the Court will deny a certificate of

appealability.

V. CONCLUSION

For the reasons set forth, the Court DENIES the petition for writ

of habeas corpus and DENIES a certificate of appealability.

SO ORDERED.

s/Jonathan J.C. Grey

Hon. Jonathan J.C. Grey

Date: March 19, 2025 United States District Judge

Certificate of Service

The undersigned certifies that the foregoing document was served upon

counsel of record and any unrepresented parties via the Court’s ECF

System to their respective email or First-Class U.S. mail addresses

disclosed on the Notice of Electronic Filing on March 19, 2025.

s/ S. Osorio

Sandra Osorio

Case Manager