Brown v. Pettigrew

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

BILLY BROWN, )

)

Petitioner, )

)

v. ) Case No. 17-CV-0651-CVE-CDL

)

DAVID ROGERS, Warden,1 )

)

Respondent. )

OPINION AND ORDER

Before the Court is petitioner Billy Brown’s petition for a writ of habeas corpus under 28

U.S.C. § 2254 (Dkt. # 1). Brown challenges the lawfulness of his custody under the judgment

entered against him in Tulsa County District Court Case No. CF-2014-5068. He contends that this

judgment was obtained in violation of his Fourteenth Amendment right to due process because:

(1) the State of Oklahoma (“the state”) lacked jurisdiction to prosecute him for a crime he

committed in Indian country (claim one); (2) the state lacked jurisdiction to prosecute him because

he did not waive his federal right to a grand jury indictment (claim two); (3) state courts deprived

him of due process by failing to comply with state and federal law, failing to consider the merits

of his appellate and postconviction claims, and denying his request for a hearing (claim three); and

(4) the state discriminated against him, denied him equal protection of the law, and denied him

due process because he is “disabled, incompetent, poor [and] black” (claim four). Dkt. # 1, at 5-

1 Brown presently is incarcerated at the Joseph Harp Correctional Center (“JHCC”), in

Lexington, Oklahoma. The Court therefore substitutes the JHCC’s current warden, David Rogers,

in place of Luke Pettigrew as party respondent. Fed. R. Civ. P. 25(d); Rule 2(a), Rules Governing

Section 2254 Cases in the United States District Courts. The Clerk of Court shall note on the

record this substitution.

10. Having carefully considered the parties’ arguments in the petition, responses, and

supplemental briefs (Dkt. ## 1, 16, 17, 31, 32, 38, 39), the record of state court proceedings (Dkt.

## 18, 20), and applicable law, the Court finds and concludes that the petition shall be denied.

BACKGROUND

In August 2015, a jury found Brown guilty of first-degree murder for fatally stabbing his

girlfriend, Sukey Walters, in the apartment the two shared in Tulsa. Dkt. # 11-1, at 1-2.2 As

recommended by the jury, the trial court sentenced Brown to life without the possibility of parole.

Id. at 1. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Brown’s judgment and

sentence on direct appeal. Id. at 8. Brown subsequently filed two applications for postconviction

relief, the state district court denied both applications, and the OCCA affirmed the denial of both

applications. Dkt. ## 11-2 through 11-5.

Brown filed the instant petition in December 2017, and respondent moved to dismiss it,

primarily asserting that Brown had not exhausted available state remedies. Dkt. # 11; see 28

U.S.C. § 2254(b)(1)(A); Grant v. Royal, 886 F.3d 874, 890-92 (10th Cir. 2018) (discussing

exhaustion requirement and fair presentation of federal claims in state court). In September 2018,

the court3 determined that Brown had exhausted available state remedies by presenting his first

three claims to the OCCA through his second postconviction appeal, but that he had not presented

his fourth claim in state court and, thus, had procedurally defaulted that claim. Dkt. # 13. The

court denied respondent’s motion to dismiss the petition, directed Brown to file a response

addressing whether he could overcome the procedural default of claim four, and directed

respondent to file a response addressing the merits of claims one, two, and three. Id. Because

2 The Court’s citations refer to the CM/ECF pagination.

3 The Honorable Judge John E. Dowdell presided over this case until it was reassigned to

the undersigned in October 2022. Dkt. # 40.

Brown did not file an optional reply brief, this matter was fully briefed and ripe for adjudication

in November 2018.

In July 2020, while Brown’s petition was pending, the United States Supreme Court issued

two decisions relevant to Brown’s first claim—McGirt v. Oklahoma, 591 U.S. 894 (2020), and

Sharp v. Murphy, 591 U.S. 977 (2020) (“Murphy II”). In February 2021, the court reviewed the

case materials, appointed habeas counsel for Brown, and directed the parties to submit

supplemental briefs addressing (1) whether these decisions had any impact on claim one, (2)

whether Brown had any further state postconviction remedies available as to claim one, and, (3) if

any state remedies were available, whether further state postconviction proceedings were

necessary before adjudication of the petition. Dkt. # 28. Both parties filed supplemental briefs

addressing these issues in March 2021. Dkt. ## 31, 32. On consideration of those briefs, the court

granted Brown’s request to stay this habeas proceeding, and ordered this matter administratively

closed. Dkt. # 33. On Brown’s motion, the court reopened this matter in June 2022, following the

conclusion of Brown’s third state postconviction appeal, and reinstated the petition. Dkt. # 37. As

directed by the court, both parties filed supplemental briefs. Dkt. ## 38, 39.

DISCUSSION

A federal court may grant habeas relief to a petitioner in custody pursuant to a state court

judgment “only on the ground that [the petitioner] is in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a); see also Wilson v. Corcoran, 562 U.S.

1, 5 (2010) (“[I]t is only noncompliance with federal law that renders a State’s criminal judgment

susceptible to collateral attack in the federal courts.”). But “a state prisoner must exhaust available

state remedies before presenting his claim to a federal habeas court.” Davis v Davila, 582 U.S.

521, 527 (2017); see 28 U.S.C. § 2254(b). The exhaustion requirement gives “state courts one full

opportunity to resolve any constitutional issues by invoking one complete round of the State’s

established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). A

petitioner satisfies the exhaustion requirement by demonstrating that he “fairly presented” his

federal claim to the state’s highest court, either on direct appeal or in a postconviction proceeding,

in a procedural manner permitting the court to consider the claim on the merits. Castille v. Peoples,

489 U.S. 346, 351 (1989). A federal court ordinarily should dismiss an unexhausted federal claim

so that the petitioner can pursue available state remedies. Grant, 886 F.3d at 891-92. However, if

further state court review of the claim would be barred by an adequate and independent state

procedural rule, the federal court may treat the claim as exhausted but procedurally defaulted. Id.

at 892.

Ordinarily, a court may not review “federal claims that were procedurally defaulted in state

court.” Davila, 582 U.S. at 527. This includes claims that the state court denied based on an

adequate and independent state procedural rule, and claims that a federal court deems procedurally

defaulted through application of an anticipatory procedural bar. Id.; Coleman v. Thompson, 501

U.S. 722, 732 (1991) (“A habeas petitioner who has defaulted his federal claims in state court

meets the technical requirements for exhaustion; there are no state remedies any longer ‘available’

to him.”), holding modified on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012). A petitioner

“may overcome the prohibition on reviewing procedurally defaulted claims” only by

demonstrating either cause for the procedural default and resulting prejudice or that the federal

court’s failure to review the claim will result in a fundamental miscarriage of justice. Davila, 582

U.S. at 527; Coleman, 501 U.S. at 750. The miscarriage-of-justice exception, “however, is a

markedly narrow one, implicated only in ‘extraordinary case[s] where a constitutional violation

has probably resulted in the conviction of one who is actually innocent.’” Magar v. Parker, 490

F.3d 816, 820 (10th Cir. 2007) (quoting Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999)).

When a petitioner fairly presents a federal claim in state court, and the state court denies

that claim on the merits, a federal court may grant habeas relief on that claim only if the petitioner

makes a threshold showing that the state court’s decision either (1) “was contrary to . . . clearly

established Federal law,” 28 U.S.C. § 2254(d)(1), (2) “involved an unreasonable application of

clearly established Federal law,” id., or (3) “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). Regardless

of whether the prisoner challenges either the legal underpinnings of the state court’s decision,

under § 2254(d)(1), or the factual underpinnings of the state court’s decision, under § 2254(d)(2),

the prisoner must show that no fairminded jurist would agree with the state court’s decision. See

Mays v. Hines, 592 U.S. 385, 391 (2021) (“Because a Tennessee court considered and rejected

[the petitioner’s] theory, a federal court ‘shall not’ grant a writ of habeas corpus unless the earlier

decision took an ‘unreasonable’ view of the facts or law.” (quoting 28 U.S.C. § 2254(d))); Dunn

v. Madison, 583 U.S. 10, 12 (2017) (“A habeas petitioner meets [§ 2254(d)’s] demanding standard

only when he shows that the state court’s decision was ‘so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.’” (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)); Richter, 562 U.S. at 101

(“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.” (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); Renico v. Lett, 559 U.S. 766, 779 (2010)

(noting that § 2254(d) “prevents defendants—and federal courts—from using federal habeas

corpus review as a vehicle to second-guess the reasonable decisions of state courts”).

However, even if a petitioner makes the threshold showings necessary either to overcome

the procedural default of federal claims or to overcome § 2254(d)’s bar to relief, the petitioner is

not entitled to federal habeas relief. See Brown v. Davenport, 596 U.S. 118, 132 (2022) (“Congress

invested federal courts with discretion when it comes to supplying habeas relief—providing that

they ‘may’ (not must) grant writs of habeas corpus, and that they should do so only as ‘law and

justice require.’” (quoting 28 U.S.C. §§ 2241, 2243)); Milton v. Miller, 744 F.3d 660, 670-71 (10th

Cir. 2014) (explaining that satisfaction of § 2254(d)’s standards “effectively removes AEDPA’s

prohibition on the issuance of a writ” and “requires [a federal habeas court] to review de novo”

petitioner’s claims). And, when a federal court reviews a petitioner’s federal claims de novo and

finds the existence of a constitutional error, the federal court must apply a harmless-error analysis

to determine whether habeas relief is warranted. See Davenport, 596 U.S. at 134 (explaining that

“a federal court must deny relief to a state habeas petitioner who fails to satisfy either this Court’s

equitable precedents or AEDPA. But to grant relief, a court must find that the petitioner has

cleared both tests”); Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (explaining that if the federal court

finds a constitutional error on de novo review, the court “must assess [its] prejudicial impact . . .

under the ‘substantial and injurious effect’ standard set forth in Brecht [v. Abrahamson, 507 U.S.

619 (1993)], whether or not the state appellate court recognized the error and reviewed it for

harmlessness”). Under the Brecht standard, a federal court may grant habeas relief only if the

court “is in grave doubt as to the harmlessness of an error that affects substantial rights.” O’Neal

v. McAninch, 513 U.S. 432, 445 (1995).

I. Claim one: Indian country jurisdiction claim

Brown claims that the state “lacked jurisdiction over [a] crime committed by an Indian,

upon an Indian, in Indian country, inside an Indian reservation.” Dkt. # 1, at 5. The OCCA twice

rejected this claim. But because the law relevant to this claim was unsettled during Brown’s quest

for postconviction relief, a brief discussion of that law provides context for the claim and the

OCCA’s decisions.

After Brown’s judgment was final and the OCCA affirmed the denial of his first application

for postconviction relief, the United States Court of Appeals for the Tenth Circuit “decided

Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017) [“Murphy I”], holding that a large portion of the

State of Oklahoma is ‘Indian country’ for purposes of the Major Crimes Act, which provides for

exclusive federal jurisdiction over certain enumerated crimes committed by Indians in ‘Indian

country.’ 18 U.S.C. § 1153(a).” Pacheco v. Habti, 62 F.4th 1233, 1237 (10th Cir. 2023). Relying

on Murphy I, Brown filed a second application for postconviction relief, asserting that he was

wrongly prosecuted in state court for a murder that he committed in Indian country. Dkt. # 17-6,

at 1. The state district court rejected this claim reasoning that the mandate had not issued in

Murphy I and that, even if it had, Brown’s reliance on Murphy I was misplaced because Brown

presented no evidence demonstrating that he is Indian.4 Dkt. # 11-4, at 6-7. In October 2018,

when it affirmed the denial of Brown’s second application for postconviction relief, the OCCA

noted that the mandate had been issued in Murphy I, but the OCCA appeared to agree with the

state district court’s determination that the Murphy I claim lacked merit. Dkt. # 17-8, at 4-7.

Nearly two years later, the Supreme Court held in McGirt that because Congress did not

disestablish the Muscogee (Creek) Nation Reservation the land within the boundaries of that

reservation is “Indian country,” as defined in 18 U.S.C. § 1151(a), and, as a result, the federal

4 The relevant federal statutes do not define the term “Indian,” but the Tenth Circuit applies

a two-part test to determine jurisdiction under §§ 1152 and 1153, inquiring whether either the

defendant or the victim “(1) has some Indian blood; and (2) is recognized as an Indian by a tribe

or by the federal government.” United States v. Prentiss, 273 F.3d 1277, 1280 (10th Cir. 2001)

(quoting Scrivner v. Tansy, 68 F.3d 1234, 1241 (10th Cir. 1995)).

government has exclusive jurisdiction under the Major Crimes Act, 18 U.S.C. § 1153(a), to

prosecute certain crimes committed within those boundaries by Indian defendants. McGirt, 594

U.S. at 933-34. The McGirt Court further stated that the General Crimes Act, 18 U.S.C. § 1152,

“provides that federal law applies to a broader range of crimes by or against Indians in Indian

country” and that “[s]tates are otherwise free to apply their criminal laws in cases of non-Indian

victims and defendants, including within Indian country.” Id. at 933; see also Prentiss, 273 F.3d

at 1278 (noting that “18 U.S.C. § 1152 establishes federal jurisdiction over ‘interracial’ crimes,

those in which the defendant is an Indian and the victim is a non-Indian, or vice-versa”). Relying

on its decision in McGirt, the Supreme Court summarily affirmed Murphy I. Murphy II, 591 U.S.

977, 977.

In July 2021, after the court stayed this habeas proceeding, Brown, through habeas counsel,

filed a third application for postconviction relief in state court. Dkt. # 35 at 1. In that application,

Brown relied on McGirt to argue that the state lacked jurisdiction to prosecute him “because the

victim of his crime was an enrolled member of the Seminole Nation and because the crime

occurred within the Muscogee (Creek) Nation” Reservation. Dkt. # 35-1, at 2. The state district

court found that the murder victim, Walters, was Indian and that the murder was committed in

Indian country. Id. at 2. The state district court nonetheless relied on the OCCA’s decision in

State ex rel. Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021) (“Wallace”), to deny relief.

Id. at 3-6. In Wallace, the OCCA held “that McGirt and [the OCCA’s] post-McGirt decisions

recognizing [that several reservations in Oklahoma had not been disestablished] shall not apply

retroactively to void a conviction that was final when McGirt was decided” and that “[a]ny

statements, holdings, or suggestions to the contrary in [the OCCA’s] previous cases are hereby

overruled.” Wallace, 497 P.3d at 689. The OCCA likewise relied on Wallace to affirm the denial

of Brown’s third application for postconviction relief. Dkt. # 35-2.

In June 2022, the Supreme Court issued a third decision relevant to Brown’s claim. In

Oklahoma v. Castro-Huerta, 597 U.S. 629, 647 (2022), the Supreme Court held that that the

General Crimes Act, 18 U.S.C. § 1152, “does not preempt state jurisdiction over crimes committed

by non-Indians against Indians in Indian country.” The Castro-Huerta Court further held that

Public Law 280 is a not a source of preemption; that the balancing test developed in White

Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), “does not bar the State from prosecuting

crimes committed by non-Indians against Indians in Indian country”; that certain treaties “do not

preempt Oklahoma’s authority to prosecute; and that the Oklahoma Enabling Act does not preempt

Oklahoma’s authority to prosecute (indeed, it solidifies the State’s presumptive sovereign

authority to prosecute).” Id. at 647-51, 655-56.

Taking this evolution of the law into account, the parties now agree that McGirt affords

Brown no relief on claim one because he is not Indian, and that Castro-Huerta precludes relief on

claim one for that same reason even though Brown’s victim was Indian. Dkt. ## 38, 39. Having

carefully considered the record of state court proceedings, the parties’ arguments, and applicable

law, the Court agrees that federal habeas relief is not warranted as to claim one. The Court

therefore denies the petition as to claim one.

II. Claim two: grand jury indictment claim

Brown claims that the state court lacked jurisdiction because the “state court failed to

advise [him] of his federal right” to a grand jury indictment and failed to obtain Brown’s waiver

of that right. Dkt. # 1, at 7. Brown presented this claim to the OCCA through his first

postconviction appeal, and the OCCA denied relief. Dkt. # 11-3. Respondent contends this claim

is procedurally barred because the OCCA applied an adequate and independent state law

procedural rule that bars postconviction relief as to claims that could have been raised on direct

appeal. Dkt. # 17, at 12-20.

The OCCA’s reasons for rejecting the claim, however, are less than clear. After listing the

three issues that Brown raised on direct appeal, the OCCA stated: “All issues previously ruled

upon by this Court are res judicata and all issues not raised in Brown’s direct appeal, which could

have been raised, are waived.” Dkt. # 11-3, at 1-2. The OCCA then listed the eleven issues that

Brown raised in his first application for postconviction relief, describing his third issue as alleging

that “the trial court lacked jurisdiction because the record showed no grand jury waiver was signed

or read into the record.” Id. at 2. The OCCA described the state district court’s order denying

relief as to this claim as “thorough and complete,” noted that the state district court found that this

claim was “without merit” because “Oklahoma law allows for prosecution upon filing of a

sufficient information which was done in Brown’s case,” and further noted that the state district

court “[a]cknowledg[ed] that jurisdictional claims can be raised at any time . . . [and] found that

the [s]tate’s information charging Brown with murder was sufficient to invoke the trial court’s

jurisdiction.” Id. at 3. After discussing the state district court’s assessment of Brown’s other issues

and its conclusion that postconviction relief was not warranted, the OCCA stated:

We agree. The Post-Conviction Procedure Act is not a substitute for a direct appeal,

nor is it intended as a means of providing a petitioner with a second direct appeal.

[ . . .] [The state district court] correctly determined that Brown’s claims, except

for his claim of ineffective assistance of appellate counsel, were either addressed

on direct appeal or were waived for failure to raise them on direct appeal. In

addition, the district court specifically addressed, in detail, even those claims which

should have been presented on direct appeal but were not, and found they did not

warrant relief.

Id. at 3-5 (internal citations omitted). The OCCA then (presumably) considered the merits of each

of Brown’s issues, including the grand-jury indictment waiver issue, when it evaluated whether

appellate counsel was ineffective for failing to raise them on direct appeal. Id. at 5-7.

On this record, it is not clear to this Court whether the OCCA adjudicated this claim on the

merits or rejected it on procedural grounds. Regardless, federal habeas relief is not warranted for

two reasons. First, assuming the OCCA applied a procedural bar, the Court agrees with respondent

that the OCCA’s waiver rule is an adequate and independent state procedural rule and that Brown

procedurally defaulted claim two. See Sherrill v. Hargett, 184 F.3d 1172, 1175 (10th Cir. 1999)

(“Oklahoma’s procedural rule barring post-conviction relief for claims petitioner could have raised

on direct appeal constitutes an independent and adequate ground barring review of petitioner’s

jury instruction claim.”). And, after careful consideration of Brown’s response addressing the

procedural default of claim four, the Court further agrees with respondent that Brown has not made

the showings necessary to overcome the procedural default of this claim. Dkt. # 17 at 13-20; Dkt.

# 16. Second, to the extent the OCCA adjudicated this claim on the merits, Brown has not argued,

much less shown, that no fairminded jurist would agree with the OCCA’s decision. Over five

decades ago, a federal district court in this circuit stated:

[I]t is settled beyond argument that a state may proceed by an Information in a

criminal case and need not proceed by way of grand jury Indictment. Proceeding

by way of Information, as done herein by the State of Oklahoma, does not violate

the Federal Constitution. Williams v. Page, 289 F. Supp. 661 (E.D. Okl. 1968);

Hampton v. State of Oklahoma, 368 F.2d 9 (Tenth Cir. 1966); Lem Woon v. State

of Oregon, 229 U.S. 586, 33 S. Ct. 783, 57 L. Ed. 1340.

Cody v. Page, 296 F. Supp. 961, 962 (W.D. Okla. 1969); see Lem Woon, 229 U.S. at 590 (stating,

in 1913, “as this court has so often held, the ‘due process of law’ clause does not require the state

to adopt the institution and procedure of a grand jury”). Thus, to the extent this claim is not

procedurally barred, § 2254(d) precludes relief, and this Court denies the petition as to claim two.

III. Claim three: nonspecific due process claim

Brown’s third claim broadly asserts that his “conviction [is] contrary to federal laws, and

[he was] denied due process.” Dkt. # 1, at 8. In support of this claim, Brown alleges:

State courts refused to follow their own rules, laws or constitution; refused to

address merits of [his] claims; refused to apply, or comply with U.S. Supreme Court

opinions, Acts of Congress, violated U.S. Constitution.

Petitioner is actually innocent, it was proven in postconviction to be an accident,

but state courts refused due process or a hearing.

Id. Respondent contends, and the court previously suggested, that Brown’s nonspecific allegations

of one or more due process violations does not state a cognizable habeas claim. Dkt. # 13, at 7

n.3; Dkt. # 17, at 21. Because Brown filed the petition without the benefit of counsel, the Court

must liberally construe his claims. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But

the rule of liberal construction neither requires nor permits a court to serve as an advocate for a

self-represented litigant by speculating about the federal claim he is attempting to present or by

searching through the record for facts that might support that claim. Id.; see Crawford v. Addison,

526 F. App’x 893, 895 (10th Cir. 2013) (noting that the habeas petitioner appeared pro se but

declining “to scour the record for factual support” of an undeveloped “possible thirteenth ground

for relief”).5 Brown’s vague and conclusory assertions that state courts refused to comply with

state and federal law do not support a cognizable habeas claim. See Bodine v. Warden of Joseph

Harp Corr. Ctr., 217 F. App’x 811, 813 (10th Cir. 2007) (stating that the habeas petitioner

“launche[d] a blanket attack on the manner in which the OCCA reviewed his direct appeal, calling

the whole process ‘inadequate[], ineffective[], and unmeaningful,’” and concluding that “[w]ithout

relevant detail, however, his generalized screed does not state a cognizable claim for federal habeas

5 The Court cites all unpublished decisions herein as persuasive authority. FED. R. APP. P.

32.1; 10th Cir. R. 32.1.

relief”). Further, to the extent Brown contends that he was denied due process during state

postconviction proceedings, he likewise fails to state a cognizable habeas claim. See Sellers v.

Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (explaining that “because the constitutional error [the

habeas petitioner] raises focuses only on the [s]tate’s post-conviction remedy and not the judgment

which provides the basis for his incarceration, it states no cognizable federal habeas claim”).

Lastly, to the extent Brown asserts that he is actually innocent, that too does not state a cognizable

habeas claim. See Farrar v. Raemisch, 924 F.3d 1126, 1131 (10th Cir. 2019) (explaining that

“[t]he Supreme Court has repeatedly sanctioned gateway actual innocence claims,” as a method to

overcome procedural barriers to federal habeas relief, “but the Court has never recognized

freestanding actual innocence claims as a basis for federal habeas relief”). For these reasons, the

Court denies the petition as to claim three.

IV. Claim four: discrimination, due process, and equal protection claim

In claim four, Brown asserts that he suffered “discrimination because of disabilities” and

that he was “denied equal protection and due process of law” Dkt. # 1, at 10. In support of this

claim, Brown alleges that he was treated unfairly throughout his trial and direct appeal and that

appellate counsel raised fewer issues on direct appeal because Brown is “disabled, incompetent,

poor [and] black.” Id. Respondent contends, and this court previously determined, that this claim

is unexhausted and procedurally defaulted. Dkt. # 17, at 23; Dkt. # 13, at 8-11. But the Court

finds it unnecessary to consider whether Brown can overcome the procedural default of this claim.

Like claim three, claim four “launches a blanket attack” on the fairness of his trial and the appeal

process but does not identify any specific constitutional defects suggesting that he is “in custody

in violation of the Constitution or laws or treaties of the United States” under the challenged

criminal judgment. Bodine, 217 F. App’x at 813. Thus, even if Brown could overcome the

procedural default of claim four, the Court finds that federal habeas relief is not warranted as to

this claim. The Court thus denies the petition as to claim four.

CONCLUSION

Because Brown has not shown that he is in custody in violation of federal law, the Court

concludes that federal habeas relief is not warranted and denies the petition as to all claims raised

there. 28 U.S.C. §§ 2243, 2254(a). The Court further concludes that no certificate of

appealability shall issue because reasonable jurists would not “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,

483-84 (2000) (cleaned up); 28 U.S.C. § 2253(c).

IT IS THEREFORE ORDERED that the Clerk of Court shall note on the record the

substitution of David Rogers, Warden, in place of Luke Pettigrew as party respondent.

IT IS FURTHER ORDERED that: (1) the petition for writ of habeas corpus (Dkt. # 1)

is denied; (2) a certificate of appealability is denied; and (3) a separate judgment shall be entered

herewith.

DATED this 22nd day of May, 2025.

Chena A babe

CLAIRE V.EAGAN

UNITED STATES DISTRICT JUDGE

14