Opinion
NO. 01-CV-70832-DT
April 8, 2002
OPINION AND ORDER DISMISSING HABEAS PETITION
I. Introduction
This matter is before the Court on petitioner Ahmed Adams' application for the writ of habeas corpus under 28 U.S.C. § 2254. Petitioner has been convicted of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520(b)(1)(f) (personal injury to the victim and sexual penetration through the use of force or coercion). The conviction arose from charges that Petitioner "held his minor victim captive in his automobile, terrorized her, and subjected her to a violent rape." People v. Adams, No. 194170, at 1 (Mich.Ct.App. Oct. 7, 1997). Petitioner's defense was that the sex was consensual.
On March 28, 1996, the trial court sentenced Petitioner to a term often to twenty years in prison for the crime. In an appeal of right, Petitioner argued that
I. The court erred in computing sentencing guidelines thus implementing a sentence that is inaccurate and disproportionate to defendant-appellant's crime.
II. The circuit court judge abused his discretion by not allowing the jury to receive lesser included jury instructions regarding assault with intent to commit criminal sexual conduct in the second degree (contact) and assault and battery.
The Michigan Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished, per curiam opinion. See id. Petitioner's untimely application for leave to appeal in the Michigan Supreme Court was rejected by the court on March 19, 1998.
On or about January 4, 1999, Petitioner filed a motion for relief from judgment in which he raised his habeas claims. The trial court denied the motion after concluding that Petitioner could have raised his claims on direct appeal and that he had failed to establish "cause and prejudice" under Michigan Court Rule 6.508(D)(3). See People v. Adams, No. 93-128530-FC (Oakland County Cir. Ct. May 21, 1999).
Petitioner appealed the trial court's decision to the Michigan Court of Appeals, which denied leave to appeal "for lack of merit in the grounds presented." People v. Adams, No. 224142 (Mich.Ct.App. May 2, 2000). The Michigan Supreme Court denied leave to appeal, citing Michigan Court Rule 6.508(D). See People v. Adams, No. 117030 (Mich.Sup.Ct. Nov. 29, 2000).
On March 1, 2001, Petitioner filed his habeas corpus petition through counsel, alleging that:
I. Petitioner Adams was denied a fair trial and due process when the emergency room physician repeatedly testified that his diagnosis of the complainant was that she had been sexually assaulted, based solely on what the complainant said.
II. Petitioner Adams was denied a fair trial and due process when the trial court precluded a defense witness from testifying because the defense had violated the notice provision of the discovery rule.
III. Petitioner Adams was denied his constitutional rights under the Fifth and Fourteenth Amendments when the prosecutor used the Petitioner's post-arrest silence in her case-in-chief as substantive evidence of Petitioner's guilt.
IV. Petitioner was denied a fair trial under the federal Constitution when the prosecutor (A) denigrated defense counsel in her closing argument; (B) undermined the role of the jury; (C) asked the petitioner to comment on the credibility of the police; and (D) the prosecutors s misconduct denied Petitioner a fair trial and relief is warranted because it was not harmless beyond a reasonable doubt.
V. Petitioner Adams was deprived of his right to the effective assistance of counsel guaranteed by the United States Constitution, by the deficient performance of trial counsel that denied him of a fair trial.
VI. Petitioner Adams was denied his right of due process to be sentenced on accurate information when the trial judge sentenced him on the erroneous belief that he was on probation for another offense and erroneously scored the guidelines.
VII. Petitioner Adams has established an entitlement to relief from the judgment of his conviction by demonstrating good cause for the failure to raise his present claim on direct appeal and actual prejudice from the alleged irregularities in this criminal process, and therefore is not subject to a procedural default claim.
Respondent contends that Petitioner's claims are procedurally defaulted.
II. Discussion A. Procedural Default
The doctrine of procedural default provides that,
[w]hen a habeas petitioner fails to obtain consideration of a claim by a state court . . . due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review.Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citations omitted), cert. denied, 532 U.S. 989 (2001); accord Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989).
In Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), the Sixth Circuit set forth a four-part test for determining whether a prisoner's constitutional claim is procedurally defaulted and barred from habeas review:
First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction — that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must consider whether the procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. See id. A procedural rule is adequate only when it is firmly established and regularly followed at the time it was applied. See Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998). The rule would be an independent basis for disposition of a case if the state courts actually relied on the procedural bar. See Harris v. Reed, 489 U.S. 255, 261-62 (1989). Fourth, if the federal court answers the first three questions in the affirmative, it would not review the petitioner's procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice. See Maupin, 785 F.2d at 138.
Williams. v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001).
1. The Rule in Question; Violation of the Rule; Reliance on the Rule; Adequacy of the Rule
Michigan Court Rule 6.508(D)(3) prohibits state courts from granting a motion for relief from judgment if the motion "alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence . . . ." An exception may be made if "the defendant demonstrates (a) good cause for failure to raise such grounds on appeal . . . and (b) actual prejudice from the alleged irregularities that support the claim for relief" Id. Petitioner violated this rule by not raising his claims on direct appeal from his conviction. See Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (concluding that portions of the petitioner's habeas claims were procedurally defaulted because they were not presented to the state courts on direct appeal).
The last state court to adjudicate Petitioner's claims was the Michigan Supreme Court. It denied leave to appeal because Petitioner failed to establish entitlement to relief under Michigan Court Rule 6.508(D). Petitioner asserts that the supreme court's order was not a reasoned judgment and that its reference to Rule 6.508(D) was an insufficient basis for this Court to invoke a procedural bar.
Discretionary denials of leave to appeal are not judgments, and a presumption which gives unexplained orders no effect reflects the role they are intended to play. Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). However, the Michigan Supreme Court's brief judgment was not unexplained. The order expressly stated that Petitioner failed to meet the burden of establishing entitlement to relief under Rule 6.508(D).
The supreme court presumably relied on subsection (3) of Rule 6.508(D) because Petitioner could have raised his claims in the appeal of right and because the other subsections were not applicable. A state's legitimate interest in requiring a defendant to raise all his claims at one time is an independent and adequate state ground. Cone v. Bell, 243 F.3d 961, 970 (6th Cir.), petition for cert. granted, ___ U.S. ___, 122 S.Ct. 663 (2001). Thus, Rule 6.508(D)(3) is an independent and adequate state procedural rule on which the state court could rely. Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000). The supreme court's reliance on Rule 6.508(D), without an explicit reference to subsection (3), is a sufficient basis for this Court to conclude that the state court's ruling was based on procedural default, which prevents habeas review. Burroughs v. Makowski, ___ F.3d ___, ___, No. 00-1471, 2002 WL 276146, at *3 (6th Cir. Feb. 28, 2002); Simpson, 238 F.3d at 407. Therefore, in order to obtain habeas review of his claims, Petitioner must show cause for not raising his claims in the appeal of right and actual prejudice or that a miscarriage of justice will occur if the Court fails to adjudicate the claims on their merits.
Subsection (1) of Rule 6.508(D) was inapplicable because Petitioner was not seeking relief from a judgment that was still subject to challenge on appeal. Subsection (2) of Rule 6.508(D) was inapplicable because, with the possible exception of claim VI, his claims were not raised in a prior appeal or proceeding.
2. Cause and Prejudice
"The cause and prejudice standard is a two-part test in which the petitioner must: (1) present a substantial reason to excuse the default, Coleman, 501 U.S. at 754; and (2) show that he was actually prejudiced as a result of the claimed constitutional error, United States v. Frady, 456 U.S. 152, 167-69 (1982)." Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002). "Cause" is some objective factor external to the defense that impeded efforts to comply with the procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986).
Petitioner alleges that appellate counsel was "cause" for the failure to raise his habeas claims on direct review. Constitutionally ineffective assistance of counsel is cause for a procedural default. Id. However, Petitioner had no absolute right to compel his attorney to make every nonfrivolous argument on appeal. Evitts v. Lucey, 469 U.S. 387, 394 (1985) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Tactical choices about which claims to raise on appeal "are properly left to the sound professional judgment of counsel . . . ." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). "In fact, the process of "`winnowing out weaker arguments on appeal'" is `the hallmark of effective appellate advocacy.' Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). `Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.' Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)." Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002).
Petitioner must show that his appellate attorney's
performance fell below an objective standard of reasonableness and that his counsel's errors were so serious as to prejudice [him.] Strickland [v. Washington, 466 U.S. 668, 687-88 (1985)]. Review of counsel's performance is highly deferential and requires that courts `indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance.' Id. at 689. To establish prejudice, the defendant `must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Id. at 694.Id. The Court will briefly review Petitioner's claims to determine whether appellate counsel's performance fell within the wide range of reasonably professional assistance and whether counsel's performance prejudiced the appeal.
B. The Physician's Diagnosis
Petitioner's first claim is that he was denied a fair trial and due process of law when an emergency room physician testified that, in his opinion, the complainant had been sexually assaulted. Petitioner contends that an expert witness may not testify about whether a sexual assault occurred.
Appellate counsel arguably was not ineffective for failing to raise this claim on appeal, because he did not object to the physician's testimony on the same basis at trial. See People v. Ramsdell, 230 Mich. App. 386, 404 (1998) (requiring a contemporaneous objection to evidence presented at trial to preserve a claim for appellate review). Moreover, the trial court stated in its decision on Petitioner's post-conviction motion that the physician's diagnosis of sexual assault was admissible. In reaching this conclusion, the trial court relied on People v. Smith, 425 Mich. 98 (1986), and People v. Schwartz, 171 Mich. App. 364 (1988). The Michigan Supreme Court held in Smith that an expert's opinion on forceful penetration is admissible if it was based on a proper factual foundation. Smith, 425 Mich. at 115.
Petitioner's trial attorney also represented Petitioner on appeal.
Dr. William Anderson testified that he examined the complainant shortly after the alleged assault and that his diagnosis was sexual assault. Dr. Anderson based his opinion on what the complainant told him and on three one-centimeter lacerations around the complainant's anus. (Tr. I, at 57-61) Dr. Anderson testified that the lacerations could occur during consensual sex, but that the lacerations indicated more of a forceful, traumatic occurrence. (Tr. I, at 68-69) He admitted on cross-examination that, as far as knowing whether the sex was consensual, he had to rely on what the complainant told him. (Tr. I, at 71, 74, 78-79) However, his diagnosis of sexual assault was based on both the history obtained from the complainant and his physical findings. (Tr. I, at 73, 77) Because there was objective evidence supporting Dr. Anderson's opinion and because cross-examination was used to expose any bias, the testimony was admissible. See Smith, 425 Mich. at 114-15.
Petitioner asserts that the trial court's reliance on Smith and Schwartz is misplaced because more recent state court opinions establish that an expert may not testify that a sexual assault occurred. The cases cited by Petitioner deal with the proper scope of expert testimony in childhood sexual abuse cases. In those cases, an expert was permitted to express an opinion on whether sexual abuse occurred, using only the victim's behavior as an indicator. Because Smith has not been overruled, appellate counsel was not ineffective for failing to raise Petitioner's first claim in the appeal of right.
C. The Right to Present a Defense
Petitioner's second claim is that he was denied a fair trial and due process when the trial court precluded him from putting his cousin, Bryant Dawson, on the stand. Dawson accompanied Petitioner and the complainant when they left the victim's workplace before the alleged assault. Petitioner alleges that Dawson would have testified that the complainant did not ask Petitioner to take her home, that she did ask Petitioner to buy her liquor, and that she suggested Dawson be dropped off Dawson also would have testified that the complainant offered to drop the charges against Petitioner for $10,000 or a car.
The trial court prevented Dawson from testifying because defense counsel had failed to provide notice of the witness to the prosecutor. Petitioner maintains that this extreme sanction for disregarding a discovery rule violated his right to present material evidence supporting his defense that the sexual contact was consensual.
Michigan Court Rule 6.201(A)(1) requires parties, on request, to provide the opposing party with the names and addresses of all witnesses whom the party intends to call at trial. A trial court may exclude testimony as a sanction for violating this rule. Mich. Ct. R. 6.201(J)
Petitioner had a constitutional right to present a defense. Chambers v. Mississippi, 410 U.S. 284, 294 (1973). However, a trial court's refusal to allow an undisclosed witness to testify, as a sanction for failing to identify a defense witness pursuant to a pretrial discovery request, is not absolutely prohibited by the Compulsory Process Clause of the Sixth Amendment. Taylor v. Illinois, 484 U.S. 400, 401-02 (1988).
Furthermore, Dawson's testimony would not have supported Petitioner's defense. Dawson was not present during the alleged assault, and even if the jury believed testimony that the complainant offered to drop the charge in return for money and a car, the testimony would not have established that the complainant fabricated the charge. Not only did the complainant deny the allegation about trying to extort money and a car from Petitioner, she could have been willing to accept gifts, in return for dropping the charge, even if she were assaulted.
The complainant testified at the preliminary examination that Petitioner's cousin offered money to her in return for dropping the charges. The district court judge apparently believed the complainant, for he authorized charges against the cousin for interference with the prosecution. (Tr. of Prelim. Examination, at 74-79)
At trial, defense counsel asked the complainant whether she had sent any messages to Petitioner through third parties. The complainant denied sending any messages to Petitioner, and she said, without further explanation, that Petitioner had sent some messages to her. Defense counsel then asked whether she had talked to anybody regarding what she wanted Petitioner to do for her regarding this case. The complainant responded, "No." (Tr. II, at 64)
The Court concludes that appellate counsel's performance was not deficient for failing to raise Petitioner's second claim in the appeal of right. Even if assuming that counsel's performance was deficient, the deficiency did not prejudice the appeal.
D. Petitioner's Silence
Two police officers testified at trial that Petitioner was not wearing shoes or socks and his pants were unzipped when they approached him at the scene of the alleged assault. The prosecutor asked one officer whether Petitioner offered an excuse for why he was not wearing shoes and why his pants were unzipped. The officer answered, "No." (Tr. II, at 134-35)
Petitioner alleges that the prosecutor used his silence as substantive evidence of guilt. According to Petitioner, his silence implied that he sexually assaulted the complainant, because someone who had not committed a sexual assault would have responded that his appearance was due to having had consensual sex. The trial court concluded in its opinion on Petitioner's postconviction motion that any error was harmless and that appellate counsel's failure to raise this issue did not prejudice Petitioner.
The Sixth Circuit has held that "the use of a defendant's prearrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination. `[A]pplication of the privilege is not limited to persons in custody or charged with a crime; it may be asserted by a suspect who is questioned during the investigation of a crime.'" Combs v. Coyle, 205 F.3d 269, 283 (6th Cir.) (quoting Coppola v. Powell, 878 F.2d 1562, 1564 (1st Cir. 1989)), cert. denied, 531 U.S. 1035 (2000).
Even assuming that the Fifth Amendment right to remain silent applied here, defense counsel did not object at trial to the prosecutor's question and the police officer's answer. Therefore, appellate review of Petitioner's Fifth Amendment claim was precluded, absent manifest injustice. Ramsdell, 230 Mich. App. at 404.
In addition, Petitioner arguably waived the privilege against self-incrimination. He gave a statement to the police during custodial interrogation at the police station, and he testified at trial. Cf. Combs, 205 F.3d at 286 (noting that Combs never waived his Fifth Amendment privilege against self incrimination and did not testify at trial). Furthermore, the prosecutor's questions arguably do not fall within the scope of the Combs holding. The questions apparently were an attempt to cast doubt on Petitioner's anticipated defense, not to intimate guilt. Seymour, 224 F.3d at 560.
Finally, the alleged Fifth Amendment error could not have had a substantial and injurious effect or influence on the jury. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The questions and answers about Petitioner's silence were a brief and fleeting part of the prosecutor's case in chief No particular emphasis was placed on the two questions and answers, and there was no other reference to, or argument about, Petitioner's failure to explain his appearance at the scene of the alleged assault. Therefore, Petitioner was not prejudiced by appellate counsel's failure to raise Petitioner's Fifth Amendment claim in the appeal of right.
E. The Prosecutor's Conduct
Next, Petitioner alleges that the prosecutor denigrated defense counsel in her closing argument, undermined the jurors' role, and improperly asked Petitioner to comment on the police officers' credibility. Petitioner contends that the prosecutor's misconduct deprived him of a fair trial and that the misconduct was not harmless beyond a reasonable doubt.
Petitioner did not make a contemporaneous objection to the alleged misconduct at trial. Therefore, his prosecutorial-misconduct claim was not preserved for appellate review unless he demonstrated that failure to consider the claim would result in a miscarriage of justice. People v. Stanaway, 446 Mich. 643, 687 (1994). To prevail on a claim of prosecutorial misconduct, appellate counsel would have had to demonstrate that the prosecutor's conduct infected the trial with such unfairness as to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
The prosecutor stated during closing arguments that defense counsel's cross-examination of the complainant on matters concerning her cursing, her abortion, and her use of alcohol and illicit drugs was a smoke screen. The prosecutor stated that defense counsel had tried to make the complainant look like a bad person to "[k]eep the jury away from the truth" and to "make the jury not like the victim." (Tr. III, at 124)
Although these comments insinuated that defense counsel was trying to trick the jury, the prosecutor's remarks were not overly excessive, and they did not impair the search for the truth. United States v. August, 984 F.2d 705, 715 (6th Cir. 1992) (citing Lindgren v. Lane, 925 F.2d 198, 204 (7th Cir. 1991)). The prosecutor apparently was trying to make the point that the victim did not deserve to be raped even if she acted tough and that she had no motive for lying.
Petitioner asserts next that the prosecutor undermined the jurors' role by arguing to the jurors that they could "let [Petitioner] go" if they were not convinced that the complainant was sexually assaulted. (Tr. III, at 106) This argument was acceptable because it merely encouraged the jurors to weigh the evidence and acquit Petitioner if they chose not to believe the complainant. The prosecutor did not mention the potential penalty for the charged offense.
Petitioner's final allegation about the prosecutor is that she improperly asked him whether the police officers lied when they testified that he was pulling up his pants as they approached his car. Petitioner responded that the police did lie. (Tr. III, at 65) The question may have been improper, but it did not result in "improper bolstering of the credibility of prosecution witnesses" or the expression of "an opinion on [Petitioner's] guilt or credibility." People v. Buckey, 424 Mich. 1, 17 (1985). Consequently, the question and answer were harmless. Id.
The Court concludes that the prosecutor's conduct did not permeate the trial with such unfairness that it resulted in a denial of due process. Therefore, appellate counsel was not ineffective for failing to raise Petitioner's prosecutorial-misconduct claim in the appeal of right.
F. Trial Counsel
The fifth habeas claim alleges ineffective assistance of trial counsel. "Cause" for not raising this claim on direct appeal may be presumed because Petitioner's appellate attorney was also Petitioner's trial attorney. Hopkinson v. Shillinger, 866 F.2d 1185, 1203-04 n. 12 (10th Cir. 1990). The question then becomes whether Petitioner was prejudiced by the alleged errors.
Petitioner's first allegation about defense counsel is that he failed to list Bryant Dawson as a witness during the discovery phase. Petitioner's other allegations about defense counsel are that he failed to object to the prosecutor's improper arguments and Dr. Anderson's testimony about whether a sexual assault occurred.
Dawson's testimony did not support Petitioner's defense; the physician's testimony was admissible under state law; and the prosecutor's closing argument was not so unfair that it resulted in a denial of due process. Consequently, defense counsel's omissions did not prejudice Petitioner.
G. The Sentence
Petitioner's sixth and final substantive claim attacks his sentence.
1. Allegedly Mistaken Information
Petitioner alleges that the trial court sentenced him on the mistaken notion that he was on probation for another offense when he committed the alleged assault in this case. Petitioner had a constitutional right not to be sentenced on "misinformation of constitutional magnitude." Roberts v. United States, 445 U.S. 552, 556 (1980) (quoting United States v. Tucker, 404 U.S. 443, 447 (1972)); see Townsend v. Burke, 334 U.S. 736, 741 (1948) (stating that reliance on "extensively and materially false" information, which the prisoner had no opportunity to correct violates due process of law).
The trial court expressed concern about Petitioner's prior record, the trauma that Petitioner inflicted on the victim, and the fact that Petitioner admittedly lied to the police. The trial court also opined that Petitioner had lied at trial. The trial court stated that its sentencing goals were to punish Petitioner and to protect society. (Sent. Tr., at 12-15) It does not appear from the record that the trial court relied on misinformation of a constitutional magnitude.
2. Scoring of the Sentencing Guidelines
Petitioner alleges that the trial court improperly scored certain offense variables when it computed the sentencing guidelines. Petitioner raised these claims of error at sentencing, but the trial court disagreed with his interpretation of the facts. When Petitioner subsequently appealed the scoring of two offense variables, the Michigan Court of Appeals stated that the claim was not a cognizable one and that Petitioner's sentence was proportionate. Given these facts, appellate counsel's failure to present all Petitioner's challenges to the sentencing guidelines in the appeal of right did not prejudice the appeal.
H. Summary
The Court concludes for all the reasons given above that appellate counsel's failure to raise the habeas claims in the appeal of right either did not amount to deficient performance or did not prejudice the appeal. Therefore, appellate counsel was not ineffective, and ineffective assistance of appellate counsel cannot serve as "cause" for Petitioner's procedural default. The Court need not consider whether Petitioner was prejudiced by the alleged constitutional errors, because he has not shown `causes' for his procedural default. Smith v. Murray, 477 U.S. 527, 533 (1986).
I. Miscarriage of Justice
A federal court may reach the merits of a habeas claim, despite the failure to show cause for a state procedural default and actual prejudice, if the petitioner can demonstrate "that refusal to consider his claim would result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception requires a showing that `in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" Coleman v. Mitchell, 244 F.3d 533, 540 (6th Cir.) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)), cert. denied, ___ U.S. ___, 122 S. Ct. 405 (2001).
Petitioner has not "support[ed] his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. Therefore, a miscarriage of justice will not occur if the Court declines to adjudicate his claims on the merits.
III. Conclusion
The habeas claims are procedurally defaulted and barred from substantive review by this Court. Accordingly, the application for the writ of habeas corpus is DISMISSED.