Opinion
Civil No. 02-CV-70776-DT
January 14, 2003
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Ronald Joseph Bohm, ("petitioner"), presently confined at the Southern Michigan Correctional Facility in Jackson, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges the legality of his conviction after a jury trial in the St. Clair County Circuit Court of one count of operating a motor vehicle under the influence of intoxicating liquor ("OUIL"), third offense, M.C.L. § 257.625; unauthorized use of a motor vehicle, M.C.L. § 750.414; operating a motor vehicle with a suspended license, M.C.L. § 257.904(1)(b); and fourth felony offender, M.C.L. § 769.12. Petitioner was sentenced as a fourth felony offender to twenty to forty years for the OUIL third offense conviction, ten to fifteen years for the unlawful use of a motor vehicle conviction, and six months for driving with a suspended license, for which he received six months credit for time served.
The petition raises claims of 1) Fourth Amendment violations in the issuance of the arrest warrant, 2) Fifth and Sixth Amendment violations when petitioner was not afforded counsel, or read his Miranda warnings after his arrest and prior to chemical testing, 3) lack of subject matter and personal jurisdiction in the trial court, 4) alleged perjured testimony offered by the prosecution at trial, and 5) an Eighth Amendment violation where petitioner's twenty to forty year sentence for OUIL third offense constitutes cruel and unusual punishment. Respondent has answered the petition and contends that petitioner's first four claims are procedurally defaulted and that his fifth claim, his cruel and unusual punishment issue, lacks merit under controlling United States Supreme Court precedent.
The Court concludes for the following reasons that the petition must be denied.
II. Factual Background
Petitioner was arrested for drunk driving or OUIL after a traffic stop which resulted when petitioner was observed swerving over the double yellow directional lane divider while driving a truck which belonged to his employer's company. The arresting officer testified that petitioner came within five feet of colliding with his patrol car. A field sobriety test was administered and it showed that petitioner was intoxicated. Later, petitioner was tested twice by a breathalyzer. His scores were .18 and .19 for the two tests.
Petitioner acknowledged that he had been drinking alcohol and was using the truck for personal business. Petitioner claimed that he had drank only four twelve ounce beers during a four hour period and was not intoxicated and that he had never been informed not to use the company truck for personal business. Petitioner asserted that the breathalyzer results were invalid and should be excluded from evidence because he had burped up some gas or acid before the tests were administered. The Michigan courts rejected this claim. Petitioner acknowledged that he was not working on the night of his arrest, but contended that he had permission to drive the truck at that time. According to petitioner, "Mr. Bohm's employer, Jerry Hoffman, the owner of the Port Huron Cleaning Company, testified that he had not given Mr. Bohm's supervisor Pete Paulmell, had [sic] the authority to give Mr. Bohm's [sic] permission to use the company vehicle." Petition at 10.
III. Procedural History
Petitioner was convicted of operating a motor vehicle under the influence of intoxicating liquor ("OUIL"), third offense, M.C.L. § 257.625; unauthorized use of a motor vehicle, M.C.L. § 750.414; operating a motor vehicle with a suspended license, M.C.L. § 257.904(1)(b); and fourth felony offender, M.C.L. § 769.12, after a jury trial in the St. Clair County Circuit Court. Petitioner was sentenced as a fourth felony offender to prison terms of twenty to forty years for the OUIL third offense conviction, ten to fifteen years for the unlawful use of a motor vehicle conviction, and six months for driving with a suspended license, for which he received six months credit for time served.
Petitioner appealed his conviction as of right to the Michigan Court of Appeals, raising the following issues:
I. The trial judge erred reversibly by denying Mr. Bohm's motion to suppress the chemical test evidence, which was performed without adequate observation of Mr. Bohm for fifteen minutes prior to its administration.
II. Mr. Bohm's OUIL sentence must be vacated because the same prior OUIL conviction was improperly used to enhance his sentence twice, first under the OUIL statute and then again under the habitual offender statute.
III. The trial judge reversibly erred by denying Mr. Bohm's motion for a mistrial after three jurors observed him wearing handcuffs outside of the courtroom.
IV. Mr. Bohm's 20 to 40 year sentence for OUIL third and his 10 to 15 year sentence for unlawful use of a motor vehicle must be vacated because they violate the principle of proportionality.
On January 30, 1998, almost a tear after appellate counsel filed the brief on appeal, petitioner attempted to file a pro se supplemental brief raising the following five additional issues:
V-VII. Whether or not it appears that the warrants, complaints, and information failed to meet the criteria of the Michigan statutes and court rules, and whether the prosecution has failed to meet its own constitutional requirements?
VIII. Whether or not the prosecution denied defendant the right to confront his accuser when the trial judge denied appellant the constitutional due process rights guaranteed by the state and federal constitution's Sixth Amendment?
IX. Whether or not it appears that the offense of perjury as affected by lack of jurisdiction by the 72nd Judicial Court and the 31st Judicial Court before which false testimony was given?
The Michigan Court of Appeals denied petitioner's motion to file his pro se brief in an order dated March 6, 1998. The Michigan Court of Appeals affirmed petitioner's convictions, but vacated his twenty to forty year sentence for OUIL third as an habitual offender. People v. Bohm, 1998 WL 1992892: Mich. Ct. App. No. 195649 (per curiam) (March 6, 1998). The prosecutor appealed the vacation of petitioner's sentence and the Michigan Supreme Court reversed the Michigan Court of Appeals' decision on that matter only. People v. Bohm, 459 Mich. 862; 584 N.W.2d 923 (1998).
On October 21, 1998, petitioner filed a petition for writ of habeas corpus in this Court raising seven issues. The Court dismissed the petition without prejudice for failure to exhaust state court remedies. Bohm v. Curtis, No. 98-CV-40365-FL (E.D. Mich. August 12, 1999).
On or about November 3, 1999, petitioner filed a motion for relief from judgement in the trial court raising the same issues presented in his present habeas petition. The trial court denied the motion, stating "[t]his court finds that the Defendant has failed in his burden to establish `good cause' and `prejudice' for having not raised this issue [sic] in his prior appeals." People v. Bohm, St. Clair County Circuit Court No. 95-1542-FH (January 29, 2001). The Michigan Court of Appeals denied leave to appeal "for failure to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Bohm, Mich. Ct. App. No. 232938 (August 6, 2001). The Michigan Supreme Court denied leave to appeal this decision, stating that "[d]efendant has failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Bohm, 639 N.W.2d 810 (Table); Mich. Sup.Ct. No. 119935 (February 4, 2002).
On or about February 28, 2002, petitioner filed the instant petition for a writ of habeas corpus in this Court, raising the following claims for relief:
I. The arrest warrant was improperly issued in violation of the Fourth Amendment.
II. Petitioner's Fifth and Sixth Amendment rights were violated when petitioner was not afforded counsel or read his Miranda warnings after his arrest and prior to chemical testing.
III. The trial court lacked subject matter and personal jurisdiction to try petitioner.
IV. False testimony was offered by the prosecution at trial.
V. Petitioner's twenty to forty year sentence for OUIL third as an habitual offender constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.
Respondent has answered the petition. Respondent asserts that review of petitioner's first four claims for habeas relief is barred by his procedural default of failing to properly raise these claims in his appeal of right. Respondent also asserts that petitioner's cruel and unusual punishment claim lacks merit.
For the reasons set forth below, the petition shall be denied.
IV. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.
As amended, 28 U.S.C. § 2254(d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.28 U.S.C. § 2254(d).
Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir. 1998); Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ; see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give complete deference to state court findings unless they are clearly erroneous").
28 U.S.C. § 2254(e)(1) provides, in pertinent part:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . . A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:
[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable . . .
[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id. at 409-11 (emphasis in original).
With this standard in mind, the Court proceeds to address the petition for a writ of habeas corpus.
V. Discussion A. Procedural Default of Petitioner's Claims I Through IV
Respondent contends that petitioner's habeas claims I through IV are procedurally defaulted because they were not presented in his appeal of right as federal constitutional claims. Only petitioner's challenge to his sentence was presented in petitioner's appeal of right. Petitioner challenged his sentence in his appeal of right as disproportionate under principles established by People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). The rest of petitioner's habeas claims were presented to the state courts for the first time in his motion for relief from judgment and/or his pro se supplementary brief which the Michigan Court of Appeals refused to accept. Petitioner has filed a traverse to respondent's answer in which he contends that the issues presented for the first time in his motion for relief for judgment and/or his unaccepted pro se supplemental brief should not be deemed procedurally defaulted.
When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate "cause" for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice". Coleman v. Thompson, 501 U.S. 722, 750-751, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). If petitioner does not show cause for his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Bell v. Smith, 114 F. Supp.2d 633, 638 (E.D.Mich. 2000) (Gadola, J.). In an extraordinary case, where a constitutional error has probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-480, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). However, to be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence of actual innocence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Moreover, actual innocence, which would permit collateral review of a procedurally defaulted claim, means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); See also Hilliard v. United States, 157 F.3d 444, 450 (6th Cir. 1998).
In Simpson v. Jones, 238 F.3d 399, 407-08 (6th Cir. 2000), the Sixth Circuit Court of Appeals held that an order of the Michigan Supreme Court denying leave to appeal and stating simply that the petitioner "failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)" was sufficient to constitute a procedural bar, despite its brevity and its failure to cite the specific procedural default provisions of M.C.R. 6.508(D)(3).
In the present case, the trial court, the Michigan Court of Appeals, and the Michigan Supreme Court all rejected petitioner's claims which were not presented in his appeal of right for failure to show cause for failing to do so and prejudice therefrom in reliance on M.C.R. 6.508(D). The orders of the Michigan Court of Appeals and the Michigan Supreme Court expressly citing M.C.R. 6.508(D) as the basis for denying petitioner relief have been construed by the Sixth Circuit Court of Appeals as the invocation of a well-established and regularly followed state procedural bar. Burroughs v. Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002). See also, Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038. 1044 n. 10 (1989) (noting that a state court may invoke a procedural bar either by express reference to the procedural bar alone, or by invoking the bar and addressing the merits of a federal claim in an alternative holding without waiving its procedural bar and permitting federal review).
To overcome his state procedural defaults and have his defaulted claims reviewed by this Court, petitioner must demonstrate good cause for his failure to present these claims in his appeal of right and prejudice therefrom. Strickler v. Greene, 527 U.S. 263. (1999). The United States Supreme Court has held that "cause" under the cause and prejudice standard must be "something external to the petitioner, something that cannot fairly be attributable to him." Coleman, 501 U.S. at 753, 111 S.Ct. 2546. The Court further held that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error. . . . Attorney error that constitutes ineffective assistance of counsel is cause, however." Id. at 753-54, 111 S.Ct. 2546 (internal citations omitted). Cause to excuse a procedural default may also be shown when the factual or legal basis of a claim was not reasonably available when the default occurred, or if interference by state officials made compliance with the procedural rule impracticable. A claim of ineffective assistance of counsel asserted as cause to excuse a procedural default is itself an independent constitutional claim which requires exhaustion in state court. Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000). A petitioner must exhaust his state court remedies prior to seeking federal habeas relief by fairly presenting the substance of each federal constitutional claim in state court. 28 U.S.C. § 2254(b)(1)(A) 2254(c).
Petitioner implies that appellate counsel was ineffective for failing to present the claims petitioner presented in his pro se supplemental brief and/or his motion for relief from judgment. However, because petitioner did not first exhaust such an ineffective assistance of appellate counsel argument in the Michigan state courts, he cannot present it here to show cause for his procedural defaults. Jacobs v. Mohr, 265 F.3d 407 (6th Cir. 2001). Further, while petitioner implies that appellate counsel was ineffective, he has not presented a clear argument. briefed and supported by precedent in state and federal court, that ineffective assistance of appellate counsel is cause for his procedural defaults. "[P]etitioner's default in failing to raise these claims in the state court and further default in the federal court to justify that failure forecloses [this Court] from reaching the merits of those claims." Cone v. Bell, 243 F.3d 961, 971 (6th Cir. 2001), reversed on other grounds in Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843 (2002).
Petitioner arguably raised the claims set forth in the present habeas petition in his pro se supplementary brief which was rejected by the Michigan Court of Appeals. However, the Sixth Circuit has expressly held that, because there is no constitutional right to file a pro se supplementary brief in addition to a brief filed by counsel, the failure of the state court to accept the pro se brief for filing cannot constitute cause to excuse a procedural default. McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000).
While petitioner claims that he is innocent of the crimes of which he was convicted, he has presented no reliable new evidence supporting this claim. In Schlup, the Supreme Court stated that a petitioner must support his allegations of constitutional error with "new reliable evidence . . . that was not presented at trial." Schlup, 513 U.S. at 324, 115 S.Ct. 851. "To be credible, [a claim of actual innocence] requires petitioner to support 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. Petitioner has made no such showing in this case. Consequently, petitioner may not rely upon an actual innocence exception to excuse his procedural default and his claims I though IV are thus barred by procedural default.
B. Cruel and Unusual Punishment Claim
In his direct appeal, petitioner presented a claim that his twenty to forty year sentence for OUIL third as a fourth felony offender violated the principle of proportionality set forth in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). Petitioner's claim that his sentence violates the proportionality principle of People v. Milbourn does not state a claim cognizable in federal habeas corpus. To the extent that Petitioner argues under Michigan state sentencing law, "his claim is not cognizable in habeas because it is a state law claim." Thomas v. Foltz, 654 F. Supp. 105, 107 (E.D.Mich. 1987). Claimed violations of state law are not cognizable in federal habeas corpus. 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1983).
Petitioner's claim that his sentence violates the Eighth Amendment's prohibition of cruel and unusual punishment states a claim cognizable in federal habeas corpus. Pummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). It is arguable that petitioner's Eighth Amendment claim is exhausted, because People v. Milbourn itself is based, in part, on United States Supreme Court Eighth Amendment precedent. People v. Milbourn, 435 Mich. at 650-51. In any event, failure to exhaust state remedies is not an absolute bar to federal habeas review when the claim is plainly meritless and it would be a waste of time and judicial resources to require additional court proceedings. 28 U.S.C. § 2254(b)(1)(A)(c); Friday v. Straub, 175 F. Supp.2d 933, 936 (E.D. Mich. 2001 (Gadola, J.). Consequently, this Court shall address the merits of petitioner's Eighth Amendment claim.
A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D.Mich. 1999)(Gadola, J.). The maximum penalty for a primary OUIL third offense conviction is five years imprisonment. M.C.L. § 257.625(1). However, petitioner was sentenced as a fourth felony habitual offender. Where the maximum penalty for a first offense is five years or more, a person convicted as a fourth felony offender in Michigan may be sentenced to life imprisonment or a lesser term. M.C.L. § 769.12. A sentence within the statutory maximum set by statute does not normally constitute cruel and unusual punishment. Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000). Generally, federal habeas review of a state court sentence ends once the court makes a determination that the sentence is within the limitation set by statute. Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000); Harp v. Yukins, 2000 WL 1772619, *2 (E.D.Mich. October 30, 2000)(Steeh, J.).
In the present case, petitioner claims that his sentence was excessive and disproportionate because no one was injured in commission of his offense. However, the United States Constitution does not require that sentences be strictly proportionate. In Harmelin v. Michigan, 501 U.S. 957, 965 (1991), a plurality of the U.S. Supreme Court concluded that the Eighth Amendment does not contain a requirement of strict proportionality between the crime and sentence. The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Harmelin, 501 U.S. at 1001. Thus, successful challenges to the proportionality of a particular sentence in non-capital cases are "exceedingly rare". Rummel v. Estelle, 445 U.S. at 272. Federal courts will therefore generally not engage in a proportionality analysis except where the sentence imposed is death or life imprisonment without parole. Seeger v. Straub, 29 F. Supp.2d 385, 392 (E.D.Mich. 1998)(Tarnow, J).
The Sixth Circuit Court of Appeals has stated that "there is no requirement of strict proportionality; the eighth amendment is offended only by an extreme disparity between crime and sentence." United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991).
Moreover, in Rummel, the United States Supreme Court upheld a sentence of paroleable life imprisonment against an Eighth Amendment challenge where the sentence was imposed on an offender who had been convicted of three minor non-violent property felonies. In the present case, petitioner's prior criminal record is at least as serious as the defendant's in Rummel. Petitioner's felony convictions include larceny from a building, uttering and publishing, larceny over $100, prison escape, unlawful driving away an automobile, multiple counts of writing no account checks, and a previous OUIL third offense. Further, petitioner's record includes misdemeanor convictions for reckless driving and eleven (11) prior OUIL convictions for either first or second offense. As the Michigan Court of Appeals stated, "[a] review of defendant's extensive prior criminal record reveals that defendant has a continuing disregard for the criminal justice system and an unwillingness or inability to conform his conduct to the laws of society." People v. Bohm, Mich. Ct. App. No. 195649 at 3.
In Rummel the Supreme Court stated through Justice Rehnquist that:
The purpose of a recidivist statute . . . is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. . . . [T]he amount of time that the recidivist will be isolated from society [is a] matter largely within the discretion of the punishing jurisdiction.445 U.S. 263, 284-85 (1980) (emphasis added).
Petitioner's prior felony criminal record and his prior closely related driving record indicate that he is a danger to society. The goals of deterring petitioner and deterring others who are inclined to act similarly and the protection of society are furthered by his lengthy sentence. The United States Supreme Court has held that recidivist sentences up to and including paroleable life are constitutional for repeat felony offenders in conformity with the goals of deterrence and the protection of the public safety. Therefore, petitioner fails to show that the Michigan Court's decision upholding his twenty to forty year sentence was an unreasonable result under controlling United States Supreme Court law.
Because petitioner's sentence was within the statutory limits for his offense as a fourth felony habitual offender, this Court will not set the sentence aside. See Welch v. Burke, 49 F. Supp.2d 992, 1009 (E.D.Mich. 1999)(Cleland, J.). This Court concludes that petitioner has not shown that the Michigan courts' decisions imposing and affirming his sentence are contrary to, or unreasonable applications of, controlling United States Supreme Court Eighth Amendment precedent. Therefore, petitioner's challenge to his sentence is denied.
C. Conclusion
For the foregoing reasons, the court concludes that all of petitioner's claims for habeas relief filed pursuant to 28 U.S.C. § 2254 are either barred by the doctrine of procedural default or lack merit. Consequently, petitioner's application for federal habeas relief shall be dismissed and the writ denied.
IV. Order
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and the case is DISMISSED WITH PREJUDICE.