Petition for Writ of Certiorari — Jesus Oscar Meraz Leon, Petitioner v. Charles L. Ryan, Director, Arizona Department of Corrections, et al.

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Case: 19-15242, 06/28/2019, ID: 11348216, DktEntry: 3, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

JUN28 2019

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JESUS OSCAR MERAZ LEON, named as:

Jesus Meraz Leon,

Petitioner-Appellant,

No.

19-15242

D.C. No. 2:17-cv-04227-DWL

District of Arizona,

Phoenix

ORDER

CHARLES L. RYAN; ATTORNEY

GENERAL FOR THE STATE OF

ARIZONA,

Respondents-Appellees.

Before:

SILVERMAN and WATFORD, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 2) is denied

because appellant has not shown that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28

U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012).

Any pending motions are denied as moot.

DENIED.

Case: 19-15242, 08/22/2019, ID: 11407266, DktEntry: 5, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

AUG 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JESUS OSCAR MERAZ LEON, named as:

Jesus Meraz Leon,

Petitioner-Appellant,

No.

19-15242

D.C. No. 2:17-cv-04227-DWL

District of Arizona,

Phoenix

ORDER

CHARLES L. RYAN; ATTORNEY

GENERAL FOR THE STATE OF

ARIZONA,

Respondents-Appellees.

Before:

SCHROEDER and PAEZ, Circuit Judges.

Appellant’s notice of appeal (Docket Entry No. 4) is construed as a motion

for reconsideration and is denied. See 9th Cir. R. 27-10.

If appellant wishes to seek review of this court’s decision, he is directed to

file a petition for writ of certiorari directly with the United States Supreme Court.

No further filings will be entertained in this closed case.

Case 2:17-cv-04227-DWL Document 23 Filed 02/05/19 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Jesus Oscar Meraz Leon,

Petitioner,

Charles L Ryan, et al.,

No. CV-17-04227-PHX-DWL

ORDER

Respondents.

On November 16, 2017, Petitioner filed a petition for writ of habeas corpus under

28 U.S.C. § 2254 (“the Petition”). (Doc. 1.) On August 27, 2018, Magistrate Judge Fine

issued a Report and Recommendation (“R&R”) concluding the Petition should be denied

and dismissed with prejudice. (Doc. 19.) Afterward, Petitioner filed written objections to

the R&R (Doc. 20) and Respondents filed a response (Doc. 21).

As explained below, the Court will deny Petitioner’s objections.

Background

In 1985, following a jury trial, Petitioner was convicted of armed burglary, sexual

assault, and attempted sexual assault and sentenced to life in prison. (Doc. 19 at 1-2.) He

unsuccessfully appealed his conviction and sentence through the Arizona court system on

grounds not relevant here. (Id.)

In 2000, the state of Arizona enacted a post-conviction DNA testing procedure,

which is codified at A.R.S. § 13-4240(A). (Doc. 19 at 3-4.)

Four years later—in 2004—Petitioner filed a notice of post-conviction relief in

Case 2:17-cv-04227-DWL Document 23 Filed 02/05/19 Page 2 of 5

which he requested “medical testing” of DNA. (Doc. 19 at 2.) The superior court never

ruled on this notice. (Id.) Instead of requesting a ruling or petitioning to the Arizona Court

of Appeals, Petitioner continued to file additional motions for post-conviction relief. (Id.)

In March 2015, Petitioner filed another motion in the superior court for post

conviction DNA testing under A.R.S. § 13-4240(A). (Doc. 19 at 2.) In April 2015, the

motion was denied. (Id.)

In July 2015, Petitioner filed a petition for review with the Arizona Court of

Appeals. (Id.) In April 2017, the Court of Appeals issued a memorandum decision in

which it denied relief on the grounds that (1) “Leon offers no proof the evidence still exists

more than thirty years after investigators first collected it, or, if it does exist, that it remains

in a condition that allows DNA testing,” and (2) “Leon previously petitioned for DNA

testing in 2004. . .. [I]f Leon wished to challenge the failure to grant that earlier petition

for testing, he had an obligation to file a timely petition for review” and failed to do so.

(Doc. 17-1 at 61.)

In May 2017, Petitioner filed a petition for review with the Arizona Supreme Court.

(Doc. 17-1 at 63-76.) This petition framed the issue as whether the trial court had abused

its discretion under Arizona law. (Id. at 64.) The only two references to a possible federal

constitutional claim were (1) an assertion that Arizona’s abuse-of-discretion standard “is

too liberal and has resulted in an arbitrary and capricious enforcement of this substantive

right for all but the wealthiest of defendants and is a complete violation of the 14th

Amendment due process and equal protection clause” and (2) and assertion that the Court

of Appeals had “resorted to using incorrect rhetoric so that they may sweep this complete

denial of due process under the rug.” (Id. at 68-70.) The Supreme Court denied the petition

in September 2017. (Doc. 17-1 at 85.)

In November 2017, Petitioner filed the Petition. (Doc. 1.) It raises only one ground

for relief: that Arizona’s refusal to grant his request for DNA testing violated his Fourteenth

Amendment rights to due process and equal protection because he is actually innocent of

sexual assault. (Id. at 6.)

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Case 2:17-cv-04227-DWL Document 23 Filed 02/05/19 Page 3 of 5

The R&R was issued in August 2018. (Doc. 19.) It concludes the Petition should

be denied for three independent reasons: (1) the petition is untimely and not subject to the

“actual innocence” exception because Petitioner failed to present any new evidence of his

innocence (Doc. 19 at 3-5); (2) Petitioner didn’t “fairly present[]” any federal claims in his

petition to the Arizona Supreme Court and thus failed to meet AEDPA’s exhaustion

requirement (Doc. 19 at 5-6); and (3) the Supreme Court specifically held, in Dist. Atty’s

Office for Third Judicial Dist. v. McGuire, 557 U.S. 52 (2009), that there’s no federal

constitutional right to post-conviction DNA testing (Doc. 19 at 6.)

II.

Legal Standard

A party may file specific, written objections to an R&R within fourteen days of

being served with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254

Rules”); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). The Court must

undertake a de novo review of those portions of the R&R to which specific objections are

made. See, e.g., Thomas v. Am, 474 U.S. 140, 149-50 (1985) (“It does not appear that

Congress intended to require district court review of a magistrate’s factual or legal

conclusions, under a de novo or any other standard, when neither party objects to those

findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1221 (9th Cir. 2003) (“[T]he

district judge must review the magistrate judge’s findings and recommendations de novo

if objection is made, but not otherwise.”). The Court may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate judge. Section

2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).

III.

The Parties’ Arguments

In his objections to the R&R, Petitioner doesn’t meaningfully address the analysis

contained in the R&R. (Doc. 20.) Instead, he argues (1) he’s entitled to DNA testing under

Brady v. Maryland, 373 U.S. 83 (1963), (2) the evidence against him at trial was weak

(there was no DNA evidence and the victim couldn’t identify him), and (3) the prosecution

never proved “at least some penetration” as required under Arizona’s rape laws. {Id.)

In their response, Respondents argue that Petitioner’s new arguments, “even if true,

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Case 2:17-cv-04227-DWL Document 23 Filed 02/05/19 Page 4 of 5

do[] not excuse the untimeliness of his claim nor [do they] turn his state claim into a federal

one.” (Doc. 21 at 1-2.)

IV.

Analysis

The R&R identified three independent reasons why habeas relief is unavailable: (1)

the Petition is untimely; (2) Petitioner failed to exhaust his federal claims in state court;

and (3) on the merits, there is no federal constitutional right to DNA testing. In his

objections, Petitioner seemingly ignored these issues. Even if his invocation of Brady

could be liberally construed as an attempt to shoehorn his complaint into a cognizable

federal theory of relief—and thus address the third ground for dismissal identified in the

R&R—he still hasn’t addressed the issues of timeliness and exhaustion.

These omissions mean Petitioner is not entitled to relief. The Supreme Court has

explained that “[i]t does not appear that Congress intended to require district court review

of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when

neither party objects to those findings.” Thomas v. Am, 474 U.S. 140, 149-50 (1985).

See also United States v. Reyna-Tapia, 328 F.3d 1114,1221 (9th Cir. 2003) (“[T]he district

judge must review the magistrate judge’s findings and recommendations de novo if

objection is made, but not otherwise.”). Here, Petitioner has effectively conceded that the

R&R’s analysis of the timeliness and exhaustion issues is correct.

Accordingly, IT IS ORDERED that:

(1)

The Court accepts the recommended disposition of the R&R (Doc. 19);

(2)

The Petition (Doc. 1) is denied and dismissed with prejudice;

(3)

A Certificate of Appealability and leave to proceed in forma pauperis on

appeal are denied because the dismissal of the Petition is justified by a plain procedural bar

and reasonable jurists would not find the ruling debatable; and

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Case 2:17-cv-04227-DWL Document 23 Filed 02/05/19 Page 5 of 5

The Clerk shall enter judgment accordingly and terminate this action.

(4)

Dated this 5th day of February, 2019.

Dominic W. Lanza

United States District Judge

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Case 2:17-cv-04227-DWL Document 19 Filed 08/27/18 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Jesus Meraz Leon,

No. CV-17-04227-PHX-DJH (DMF)

Petitioner,

Charles Ryan, et al.,

REPORT AND

RECOMMENDATION

Respondent.

TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT

JUDGE:

This matter is on referral to the undersigned pursuant to Rules 72.1 and 72.2 of the

Local Rules of Civil Procedure for further proceedings and a report and recommendation.

Pending is the Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (“Petition”)

filed by Jesus Meraz Leon (“Petitioner” or “Leon”) (Doc. 1). Respondents filed their

Answer (Doc. 17). Petitioner filed a Reply (Doc. 18). For the reasons set forth herein,

the undersigned Magistrate Judge recommends that this Court deny and dismiss the

Petition with prejudice and also deny a certificate of appealability.

Procedural History

After a jury trial, Petitioner was convicted in Maricopa County Superior Court,

case #CR-2000-149150, of armed burglary, sexual assault, and attempted sexual assault

(Doc. 17-1 at 3-8). On December 19, 1985, Petitioner was sentenced to two consecutive

life sentences for the armed burglary and sexual assault convictions and a concurrent 20-

Case 2:17-cv-04227-DWL Document 19 Filed 08/27/18 Page 2 of 7

year term of imprisonment for the attempted sexual assault conviction (Doc. 17-1 at 9-

16).

conviction and sentence were affirmed (Doc. 1 at 2-4; Doc. 17 at 3; Doc. 17-1 at 17-26).

According to both parties, post-conviction relief was not granted (Doc. 1 at 2-4; Doc. 17

at 3), and the initial post-conviction proceedings concluded at some point between 1987

and 1999 (Doc. 17-1 at 17-26; Doc. 17 at 3). Yet, Petitioner continued to file post

conviction notices; by April 25, 2017, the Arizona Court of Appeals noted that Petitioner

had initiated over fourteen post-conviction proceedings (Doc. 17-1 at 60).

After direct appeal and petition to the Arizona Supreme Court, Petitioner’s

On September 29, 2004, Petitioner filed a notice of post-conviction relief,

requesting “a medical testing” of the “D.N.A.” (Doc. 17-1 at 17-31). It appears that the

superior court never ruled on that notice, and instead of requesting a ruling or petitioning

to the court of appeals, according to Respondents, Petitioner continued to file PCRs (Doc.

17 at 3).

On March 2, 2015, Petitioner filed a motion in the state superior court for post

conviction DNA testing under A.R.S. § 13^1240 (Doc. 17-1 at 32-40). The motion was

denied on April 17, 2015 (Doc. 17-1 at 41-42). On July 10, 2015, Petitioner filed a

petition for review to the Arizona Court of Appeals, asserting that he met the criteria for

DNA testing under A.R.S. § 13- 4240 (Doc. 17- 1 at 43-57). The court of appeals denied

relief, finding that Petitioner had not established the elements under A.R.S. § 13-4240

(Doc. 17-1 at 58-61).

Petitioner then petitioned for review to the Arizona Supreme Court, arguing that

the lower court denial of his request for DNA testing was an abuse of discretion (Doc.

17-1 at 62-83). Petitioner framed the issue as, “Did the superior court abuse it’s [sic]

discretion when summarily denying [Petitioner’s] request for DNA testing pursuant to

A.R.S. 13-4240 and Arizona Rule of Criminal Procedure 32.12 without comment or

explanation?” (Doc. 17-1 at 64). In Petitioner’s dozen pages of his argument, Petitioner

only references to any constitutional claim are as follows: “[T]he current ‘abuse of

discretion’ standard is too liberal and has resulted in an arbitrary and capricious

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Case 2:17-cv-04227-DWL Document 19 Filed 08/27/18 Page 3 of 7

enforcement of this substantive right for all but the wealthiest of defendants and is a

complete violation of the 14th Amendment due process and equal protection clause”

(Doc. 17-1 at 68); and “[T]he court of appeals, in order to obtain the desired result and

affirm the superior court’s ruling, resorted to using incorrect rhetoric so that they may

sweep this complete denial of due process under the rug” (Doc. 17-1 at 70).

Arizona Supreme Court denied the petition on September 15, 2017 (Doc. 17-1 at 85).

The

Petitioner asserts one ground in his Petition, which was filed with this Court on

November 15, 2017 (Doc. I).1

In his Petition, Petitioner names Charles Ryan as

Respondent and the Arizona Attorney General as an Additional Respondent. In the

Petition, Petitioner claims that the state court’s refusal to grant his request for DNA

testing violates his Fourteenth Amendment rights to due process and equal protection

because he is actually innocent of sexual assault (Doc. 1 at 6).

II.

Analysis

Respondents argue that the Petition is untimely under the one year statute of

limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) beginning on “the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence.” 28 U.S.C. §

2244(d)(1)(D).

conviction DNA testing procedure that provides, inter alia, as follows:

At any time, a person who was convicted of and sentenced for a felony

offense and who meets the requirements of this section may request the

forensic deoxyribonucleic acid testing of any evidence that is in the

possession or control of the court or the state, that is related to the

investigation or prosecution that resulted in the judgment of conviction, and

that may contain biological evidence.

Untimely Petition.

As relevant here, in 2000, the Arizona Legislature enacted a post

The Petition was docketed by the Clerk of Court on November 16, 2017. The

Petition contains a certificate of service indicating that Petitioner placed the Petition in

the prison mailing system on November 15, 2017 (Doc. 1 at 11). Pursuant to the prison

mailbox rule, the undersigned has used November 15, 2017, as the filing date. Porter v.

Ollison, 620 F.3d 952. 958 (9th Cir.2010) (“A petition is considered to be filed on the

date a prisoner hands tne petition to prison officials for mailing.”).

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Case 2:17-cv-04227-DWL Document 19 Filed 08/27/18 Page 4 of 7

A.R.S. § 13^f240(A) (2000) (added by Laws 2000, Ch. 373, § 1.)- This statute became

effective July 18, 2000. See S.B. 1353, 44th Leg., 2nd Reg. Sess. (AZ 2000).

Petitioner did not request DNA testing until September 29, 2004, more than four

years after the statute became effective. Petitioner did not further try to exhaust his

remedies in state court until March 2, 2015. Petitioner did not diligently pursue DNA

testing after the enactment of the state DNA testing statute in 2000.

United States, 544 U.S. 295, 311, 125 S. Ct. 1571(2005) (stating that in order for a

prisoner to be entitled to the alternative start for a claim based on a previously unknown

factual predicate under 28 U.S.C. § 2255, t 6(4), a prisoner must act with “reasonable

promptness”); see also Diaz v. Conway, 498 F. Supp. 2d 654, 658 (S.D.N.Y. 2007)

(claim based on DNA tests was not timely pursuant to § 2244(d)(1)(D) where petitioner

filed DNA-testing motion 8 years after DNA statute was enacted). Thus, the Petition is

untimely.

Cf Johnson v.

Petitioner acknowledges that his Petition is untimely (Doc. 1 at 17). Petitioner

requests relief under the “Schlup actual innocence gateway” claiming that the state is

impeding his ability to conduct DNA testing to prove his innocence {Id.).

through the actual innocencdSchlup gateway to excuse untimeliness of a petition , a

petitioner must establish his or her factual innocence of the crime and not mere legal

insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340

F.3d 877, 882-83 (9th Cir.2003).

support his allegations of constitutional error with new reliable evidence-whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence.” Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th

Cir.2011). A petitioner “must show that it is more likely than not that no reasonable juror

would have convicted him in the light of the new evidence.” 569 U.S. 383, 399 (2013)

(quoting Schlup, 513 U.S. at 327). Because of “the rarity of such evidence, in virtually

To pass

“To be credible, such a claim requires petitioner to

2 Schlup v. Delo, 513 U.S. 298, 327 (1995); House v. Bell, 547 U.S. 518 (2006);

McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013).

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Case 2:17-cv-04227-DWL Document 19 Filed 08/27/18 Page 5 of 7

every case, the allegation of actual innocence has been summarily rejected.” Shumway v.

Payne, 223 F.3d 982, 990 (9th Cir.2000) (citing Calderon v. Thomas, 523 U.S. 538, 559

(1998)). Here, Petitioner presents no new evidence. Thus, the Schlup actual innocence

gateway cannot apply to render the Petition timely.

Petitioner argues that the Arizona state courts violated his Fourteenth Amendment

rights to due process and equal protection when his post-conviction request for DNA

testing was denied (Doc. 1 at 6). Respondents argue that this claim is not cognizable

in habeas review because it is a question of state law and, despite Petitioner’s argument

here, is not a federal question (Doc. 17 at 7).

Denial of DNA Testing.

The Court notes that Petitioner did not raise the DNA testing issue as a question of

federal law in the state courts (Doc. 17-1 at 32-40, 43-57, 62-83). A state prisoner must

properly exhaust all state court remedies before this Court can grant an application for a

writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365

(1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly

exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a

procedurally appropriate manner.

(1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33

F.3d 36, 38 (9th Cir. 1994). To be fairly presented, a claim must include a statement of the

operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-

33 (2004); Gray v. Netherland, 518 U.S. 152, 162—63 (1996); Duncan, 513 U.S. at 365-

66; Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009).

O'Sullivan v. Boerckel, 526 U.S. 838, 843-45

A defendant cannot “transform a state-law issue into a federal one merely by

asserting a violation of due process.”

Langford v. Day, 110 F.3d 1380, 1389

(9th Cir. 1996).

claim; instead, Petitioner must have articulated a federal theory for his federal habeas

claim. See Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir. 2005). Further, mere

“general appeals to broad constitutional principles, such as due process, equal protection,

Isolated citations to federal provisions or cases do not create a federal

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Case 2:17-cv-04227-DWL Document 19 Filed 08/27/18 Page 6 of 7

and the right to a fair trial,” do not establish exhaustion. Hiivala v. Wood, 195 F.3d 1098,

1106 (9th Cir.1999) (citation omitted). Nor is it enough to raise a state claim that is

analogous or closely similar to a federal claim. Castillo, 399 F.3d at 999. Accordingly,

because Petitioner’s arguments to the Arizona state courts did not raise a question of

federal law for purposes of habeas review, this issue was not properly exhausted.

Moreover,

the

Court

notes

that

Petitioner

requested

post

conviction DNA testing under an Arizona statute and the Arizona courts reviewed his

request under Arizona law (Doc. 17-1 at 41-42, 58-61). On habeas review, this Court

cannot “reexamine state-court determinations on state-law questions.” Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991).

Finally, even if Petitioner had raised this as a federal question earlier in his legal

proceedings, it would be unavailing because there is no “freestanding [Constitutional]

right” to post-conviction DNA testing. Dist. Atty's Office for Third Judicial Dist. v.

Osborne, 557 U.S. 52, 72-73 (2009).

For all of the reasons above, undersigned concludes that Petitioner is not entitled

to habeas relief. Accordingly,

IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be denied and dismissed with prejudice.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability be

denied because dismissal of the Petition is justified by a plain procedural bar and

reasonable jurists would not find the procedural ruling debatable.

This recommendation is not an order that is immediately appealable to the Ninth

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal

Rules of Appellate Procedure should not be filed until entry of the District Court’s

judgment. The parties shall have fourteen days from the date of service of a copy of this

recommendation within which to file specific written objections with the Court. See 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within

which to file responses to any objections. Failure to file timely objections to the

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Case 2:17-cv-04227-DWL Document 19 Filed 08/27/18 Page 7 of 7

Magistrate Judge’s Report and Recommendation may result in the acceptance of the

Report and Recommendation by the District Court without further review. See United

States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely

objections to any factual determination of the Magistrate Judge may be considered a

waiver of a party’s right to appellate review of the findings of fact in an order or

judgment entered pursuant to the Magistrate Judge’s recommendation. See Fed. R. Civ.

P. 72.

Dated this 27th day of August, 2018.

Honorable Deborah M. Fine

United States Magistrate Judge

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Case 2:17-cv-04227-DWL Document 24 Filed 02/05/19 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Jesus Oscar Meraz Leon,

Petitioner,

Charles L Ryan, et al.,

NO. CV-17-04227-PHX-DWL

JUDGMENT IN A CIVIL CASE

Respondents.

Decision by Court. This action came for consideration before the Court. The

issues have been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED adopting the Report and Recommendation

of the Magistrate Judge as the order of this Court. Petitioner’s Petition for Writ of

Habeas Corpus pursuant to 28 U. S. C. § 2254 is denied and this action is hereby

dismissed with prejudice.

Brian D. Karth

District Court Executive/Clerk of Court

February 5, 2019

s/ Rebecca Kobza

Deputy Clerk

Additional material

from this filing is

available in the

Clerk's Office.

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