MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

ALVIN K. HELLERSTEIN, United States District Judge

Petitioner Clifton Dickens petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Judgment was entered against petitioner on September 14, 1995 by the New York State Supreme Court, New York County, after a jury verdict, convicting petitioner of Manslaughter in the First Degree, N.Y. Penal Law § 125.20, Criminal Use of a Firearm in the First Degree, N.Y. Penal Law § 265.09[1], Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03, Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02[4], and Attempted Assault in the Second Degree, N.Y. Penal Law §§ 110 120.05[2]. Petitioner was acquitted of Murder in the Second Degree, N.Y. Penal Law § 125.25. Petitioner was sentenced to concurrent terms of eight-and-one-third to twenty-five years for first-degree manslaughter, twelve-and-a-half to twenty-five years for first-degree criminal use of a firearm, five to fifteen years for second-degree weapon possession, and two-and-one-third to seven years for third-degree weapon possession, and a consecutive term of one-and-one-third years to four years for second-degree attempted assault, for a total sentence of nine-and-two-thirds to twenty-nine years.

Petitioner initially raised five grounds of alleged constitutional error, contending that he was denied due process because: (1) the prosecutor introduced an inflammatory photo of the deceased with his family; (2) a witness testified that petitioner committed an unrelated crime despite the court's pretrial ruling excluding such testimony; (3) the trial court erred in its charge on justification; (4) the prosecutor made various improper and prejudicial remarks in summation and cross-examination; and (5) the sentence imposed on the petitioner was unduly harsh and excessive. I dismissed grounds one, three, and five of the petition sua sponte by Order dated October 18, 2000, as it appeared on the face of the petition that petitioner was not entitled to relief on these grounds. See Rules Governing Section 2254 Cases in the U.S. Dist. Cts., Rule 5.

After considering the two remaining grounds on the merits, I conclude that neither warrants the requested relief, and dismiss the petition.

I. Background

A. Factual Background

This case arose from a shooting on December 22, 1993 that resulted in the death of Gregory King. Two days prior, on December 20, 1993, on 151st Street between Amsterdam Avenue and Broadway in Manhattan, petitioner and a friend were arguing, leading to a fight in which petitioner pulled a knife on his friend. King walked by with his dog and tried to break up the fight, which resulted in petitioner stabbing King in the chest and thigh. On December 22, petitioner and King had another encounter in the same vicinity. The two started fighting and petitioner shot and killed King. At trial, petitioner defended his actions as justified, claiming that the gun had belonged to King and that King had initially drawn it. Petitioner claimed that when King dropped the gun, petitioner picked it up and fired in self-defense.

B. Procedural History

By New York County Indictment No. 5173/94, filed on January 25, 1994, petitioner was charged with the crimes of Murder in the Second Degree, N.Y. Penal Law § 125.25, Criminal Use of a Firearm in the First Degree, N.Y. Penal Law § 265.09[1], Criminal Possession of a Weapon in the Second Degree, N.Y. Penal Law § 265.03, Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02[4], and, in connection with the earlier stabbing, Attempted Assault in the Second Degree, N.Y. Penal Law §§ 110 120.05[2]. On July 25, 1995, petitioner was convicted of first-degree manslaughter, a lesser included charge under the second-degree murder count, as well as the rest of the charges in the indictment. On September 14, 1995, he was sentenced to concurrent terms of eight-and-one-third to twenty-five years for first-degree manslaughter, twelve-and-a-half to twenty-five years for first-degree criminal use of a firearm, five to fifteen years for second-degree weapon possession, and two-and-one-third to seven years for third-degree weapon possession, and a consecutive term of one-and-one-third years to four years for second-degree attempted assault, for a total sentence of nine-and-two-thirds to twenty-nine years.

On October 11, 1995, petitioner filed a Notice of Appeal to the New York State Supreme Court, Appellate Division, First Department. Petitioner's brief to the Appellate Division, filed on November 16, 1997, argued for reversal of petitioner's conviction on the same grounds asserted in the instant petition: (1) the prosecutor introduced a photo of the deceased with his family to inflame the jury; (2) a witness testified that petitioner committed an unrelated crime despite the court's pretrial ruling excluding mention of such acts; (3) the trial court erred in its charge on justification; (4) the prosecutor made various improper and prejudicial remarks in summation and cross-examination; and (5) the sentence imposed on the petitioner was unduly harsh and excessive.

In an opinion dated September 22, 1998, the Appellate Division unanimously affirmed petitioner's conviction. People v. Dickens, 253 A.D.2d 670 (1st Dep't 1998). The Appellate Division held that the admission of the photographs was an appropriate exercise of discretion in light of petitioner's justification defense, and that the "court's charge to the jury regarding justification, when viewed in its entirety, correctly conveyed the appropriate legal principles." Id. The Appellate Division further held that the potential prejudice of a witness's unsolicited reference to an uncharged crime by petitioner was minimized by the court's prompt action striking it from the record, and that by failing to object to remarks made by the prosecutor during summation, petitioner failed to preserve his claims concerning the prosecutor's allegedly improper remarks in summation. Id. at 670-71.

In a letter dated October 24, 1998, petitioner sought leave to appeal to the New York Court of Appeals. The Court of Appeals denied petitioner's application on December 24, 1998. People v. Dickens. 92 N.Y.2d 1031 (1998) (table).

Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the United Stated District Court for the Southern District of New York on March 18, 2000. By Order dated May 12, 2000, I dismissed grounds one, three and five of the petition because it was clear from the face of the petition that petitioner was not entitled to relief on those grounds. See Rules Governing Section 2254 in the U.S. Dist. Cts., Rule 4. By a letter filed with this Court on July 26, 2000, petitioner sought to assert a new, unexhausted claim, and requested that I place his petition on the suspense docket to allow him to exhaust his state remedies as required by 28 U.S.C. § 2254(b)(1). By Order dated October 18, 2000, I denied the motion for suspense docketing and asked petitioner to notify the Court in writing whether he wished the Court to dismiss his petition without prejudice to allow him to exhaust his state remedies or to consider his petition on the two remaining exhausted issues without reaching the additional, unexhausted claim. By letter dated November 3, 2000, petitioner requested that his petition be dismissed without prejudice to allow him to exhaust state court remedies. By Order dated November 8, 2000, I dismissed the petition without prejudice. By Order dated November 30, 2000, I denied petitioner's subsequent request, by letter dated November 17, 2000, that I vacate the dismissal and reinstate his petition.

Petitioner, by letter dated January 4, 2001, requested a certificate of appealability. In the interim, the Court of Appeals for the Second Circuit decided Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), which held that "a district judge confronting a mixed petition has discretion either to dismiss the petition, or to dismiss only the unexhausted claims and stay the balance of the petition," and that a stay "will be the only appropriate course in cases . . . where an outright dismissal `could jeopardize the timeliness of a collateral attack.'" Id. at 380 (citation omitted). I vacated my Order of November 8, 2000 and re-opened the petition by Order dated July 26, 2001.

Respondent moves to dismiss, and argues that Zarvela is inapplicable to the instant petition and neither compels nor requires granting a stay to allow petitioner to exhaust his additional claim. By Order dated August 21, 2001, I gave petitioner until September 28, 2001 to oppose respondent's motion. On August 26, 2001, petitioner wrote that he had not yet filed proceedings to exhaust state remedies, and that he promised to do so as soon as he could obtain the necessary papers. Eight months later, petitioner had still not explained what claims required exhaustion or what proceedings must be completed to do so. Thus, I informed petitioner by Order dated May 2, 2002 that I would proceed to consider the remaining grounds of his petition, two and four, unless petitioner identified the specific grounds that were supposedly not exhausted and promptly filed a state court proceeding on the unexhausted grounds. In a letter dated May 28, 2002, petitioner explained that he had decided not to pursue exhaustion of the additional grounds at this time and asked the Court to continue with its final determination of grounds two and four. I proceed to do so.

C. Petitioner's Remaining Arguments

The first remaining ground of petitioner's habeas petition, Point II, alleges that petitioner was denied due process when the trial court denied his motion for a mistrial. The motion was based on testimony given by the deceased's wife, Anita King, that made an unsolicited allusion to another assault allegedly committed by petitioner. Petitioner had not been charged with a crime and the trial court's pretrial ruling denied leave to the prosecutor to mention the incident.

The second remaining ground of the petition, Point IV, alleges that petitioner's conviction should be reversed because of various instances of prosecutorial misconduct, including: (1) characterizing petitioner's testimony as a "story;" (2) inviting the jury to speculate that the petitioner may have had prior convictions; (3) arguing that petitioner failed to turn himself into police; and (4) that the prosecutor shifted the burden of proof to petitioner.

II. Discussion

A. Petitioner's Motion for Mistrial Based on Uncharged Crimes Evidence

Prior to the trial, at a hearing pursuant to People v. Sandoval, 34 N.Y.2d 371 (N.Y. 1974), the prosecution stated that if petitioner testified, the prosecution wished to question him about the stabbing of his girlfriend's friend on December 17, 1993, a crime for which he was never charged. The trial court ruled that the prosecution could not introduce evidence of the uncharged crimes.

At trial, Anita King testified that a detective had called her home on the night of the stabbing. When the prosecutor asked if "any plans [were] made to speak to the detective," she responded: "Well, the detective said that he wanted us to come back down to the precinct and speak to him because this — Clifton had stabbed somebody earlier" (Tr. at 128). Petitioner immediately objected, and the court stated, "Strike that." The prosecutor then told King, "Just tell us what the plan was." The court again struck the question and added, "The jury will disregard it" (Tr. at 128).

Subsequently, during a colloquy conducted after King had left the stand and three additional witnesses had testified, petitioner moved for a mistrial on the basis of the above-described remark by King (Tr. at 250). The court denied petitioner's motion, noting:

But you made the objection at that juncture. She was cut off and I instructed the jury to disregard the remarks. I think it was spontaneous, unsolicited, and you cut it off at the pass (Tr. at 250-251).

On direct appeal, petitioner claimed that his mistrial motion should have been granted. He argued that the unsolicited testimony could have easily led the jury to infer that the defendant had a propensity for assaultive behavior, a belief highly prejudicial to petitioner given his claim of self-defense. Petitioner concedes that the court struck the testimony, but argues that this was insufficient to overcome the prejudice and that denying his motion for mistrial violated his right to due process.

Courts "normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it." Greer v. Miller. 483 U.S. 756, 766 n. 8 (1987). For King's utterance to constitute a constitutional wrong, petitioner must demonstrate both (1) that it is overwhelming[ly] probab[le]" that the jury will be unable to follow the instruction, Richardson v. Marsh, 481 U.S. 200, 208 (1987); and (2) that the effect of the evidence would have a strong likelihood of being "devastating" to the defendant. Bruton v. United States, 391 U.S. 123, 136 (1968); Greer, 483 U.S. at 766 n. 8.

Petitioner's case does not present an exception to the general rule presuming that juries will follow the court's instructions. See United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993) (holding that the inadvertent admission of two items of evidence regarding weapons did not violate defendant's rights because the court ordered that the admission be stricken); Roldan v. Artuz, 78 F. Supp.2d 260 (S.D.N.Y. 1999) (holding that even if testimony produced inadmissible evidence of uncharged crimes, the trial court's prompt curative instructions to the jury eliminated the risk of unfair prejudice). Anita King's testimony in question took up a single line of trial transcript, followed by the testimony of 14 other witnesses. Her utterance was spontaneous, not planned. The trial court promptly struck the comment and instructed the jury to disregard it. The court's instruction was easily followed; the jury was not required to "perform olympian mental gymnastics" to follow the instruction and disregard the testimony. See United States v. Paone, 782 F.2d 386, 395 (2d Cir. 1985). Indeed, the jury acquitted petitioner of the most serious charge in the indictment, second-degree murder. The trial court's denial of petitioner's motion for mistrial on the basis of King's testimony cannot serve as a basis for habeas relief.

B. Petitioner's Claim of Prosecutorial Misconduct

On direct appeal, petitioner challenged various remarks made by the prosecutor during summation. The Appellate Division found that the claim was procedurally barred, and alternatively, that it failed on the merits: "By failing to object, or by making only generalized objections, defendant failed to preserve his current claims of error regarding various comments by the prosecutor during summation and we decline to review them in the interest of justice. Were we to review these claims, we would find that the remarks, in context, constituted appropriate response to the defense summation and acceptable comment on the evidence." Dickens, 253 A.D.2d at 671.

1. Petitioner's Claim is Procedurally Barred

Federal courts cannot review questions of federal law disposed of by state courts when the disposition rests upon independent and adequate state law grounds. Coleman v. Thompson, 501 U.S. 722, 729 (1991). This doctrine applies to constitutional claims in federal habeas petitions where the state appellate court declined to address the petitioner's federal claims because the petitioner failed to meet state procedural requirements. Id. at 730. A state law ground is considered "independent" if it relies on grounds distinct from the merits of the federal claim. Harris v. Reed, 489 U.S. 255, 260 (1989). The state court's invocation of a state procedural bar is considered "independent" even if the court also comments on the merits of petitioner's claim. Valasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); Wedra v. LeFevre, 988 F.2d 334, 338-39 (2d Cir. 1993); Glenn v. Barlett, 98 F.3d 721, 725 (2d Cir. 1996). The appropriate test for determining the "adequacy" of a state law ground is whether there was a "fair and substantial basis" in state law for the procedural default. Lawrence v. State Tax Comm'n, 286 U.S. 276, 282 (1932).

Because New York's contemporaneous objection rule is well established as an independent and adequate state ground precluding habeas review, it is clear that there was a fair and substantial basis in state law for the default in the instant case. N.Y. Crim. Proc. Law § 470.05[2] ("[A] protest . . . is registered . . . at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same."). See. e.g., Garcia v. Lewis, 188 F.3d 71, 78-79 (2d Cir. 1999); Vargas v. Keane 86 F.3d 1273, 1280 (2d Cir. 1996); Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994); Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir. 1991); Peterson v. Scully, 896 F.2d 661, 663 (2d Cir. 1990). I therefore hold that the Appellate Division's denial on direct appeal of petitioner's argument based on a state procedural bar constituted an independent and adequate state ground.

However, federal courts may consider a petitioner's claim despite its rejection on independent and adequate state grounds if "cause" exists for petitioner's failure to comply with the state procedural rules and petitioner suffers "actual prejudice" resulting from a violation of federal rights. Coleman, 501 U.S. at 750 (internal citations omitted). To show "cause" petitioner must show that some objective factor external to the defense impeded his efforts to raise the claims in state court, such as the government's concealment of evidence. McCleskey v. Zant, 499 U.S. 467, 493 (1991). In his brief to the Appellate Division, petitioner argued that after an objection by petitioner to prosecutorial comment during summation, the trial judge told defense counsel to stop objecting by telling him: "You keep interrupting. Write it down and we'll do it later" (Tr. at 745). Petitioner's counsel did not object during the remainder of summation (Tr. at 745-80), presumably because counsel believed that the judge's remarks precluded a proper contemporaneous objection, and there was therefore "cause" for the procedural default. McCleskey, 499 U.S. at 493-94 ("Objective factors that constitute cause include `interference by officials' that makes compliance with the State's procedural rule impracticable."). The argument is without merit, however, because counsel was given the opportunity to register his objections in a colloquy at the completion of the summations (Tr. at 781). At that time, petitioner's counsel moved for a mistrial on the basis of the prosecution's allusion to previous convictions petitioner might have had, but did not raise any other objections (Tr. at 781-82).

In addition, petitioner has the "burden of showing not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). Petitioner does not demonstrate that he suffered actual prejudice.

If petitioner cannot show cause and prejudice for his procedural default, petitioner must demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750 (internal citations omitted). Petitioner has not made such a showing. See Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993) ("Such a miscarriage of justice occurs in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." (quotations ommitted)). I hold that petitioner's claims concerning prosecutor's conduct are procedurally barred.

2. Petitioner's Claim is Dismissed on the Merits

Even if petitioner had not procedurally defaulted and I were to evaluate this claim, I would dismiss it on the merits. To succeed on the merits, petitioner must show that the prosecutor's summation "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donelly v. DeChristoforo, 416 U.S. 637, 643 (1974), and that it caused "substantial prejudice," as measured by "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1997) (quoting Floyd v. Meacham, 907 F.2d 347, 355 (2d Cir. 1990)). Petitioner has not made the requisite showing.

When relief is sought based on comments made by a prosecutor in summation, the prosecutor's remarks need to be viewed in context to determine whether the remarks affected the fundamental fairness of the trial. United States v. Young, 470 U.S. 1, 11 (1985) ("[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context."); U.S. v. Thompson 29 F.3d 62, 66 (2d Cir. 1994).

Petitioner highlighted several allegedly improper comments by the prosecution in his brief to the Appellate Division. First, petitioner claims that the prosecutor referred to petitioner's version of the events as a "story," and made aspersions in response to a defense argument that defendant was credible because he had no previous convictions. The prosecutor said:

The defense is boasting how he has no criminal convictions. That's fair enough. What does that mean, no criminal convictions. Take that what [sic] means, but don't take it for more than it says.

DEFENSE COUNSEL: Objection.

THE COURT: I'll allow it.

PROSECUTOR: Doesn't mean he's a law abiding citizen. Criminal conviction is basically, with some exceptions, when you're over sixteen years of age and you're arrested and you go to Criminal Court and are either found guilty —

DEFENSE COUNSEL: Objection.

THE COURT: Go ahead.

THE PROSECUTOR: — either found guilty or plead guilty [sic] to a felony or a misdemeanor. That's a criminal conviction, that's all it means. A conviction is a plea of guilty or conviction after trial of a felony or misdemeanor in Criminal Court, generally after sixteen years of age.

The defendant after this shooting was only seventeen. Take it for what it means, but don't think it means anything more than he has no criminal convictions.

We know he spends most of his time hanging out on the street. And you get a good glimpse from the defendant and his personality on December 20, 1993, from all the witness' account, Jeffrey Daniels account, the defendant's own account, he's a little street punk. Even the defense calls him that. . . . You don't have to cast any major moral judgments against him. The fact is, he's just not a person whose word you can accept at face value. He says what suits his interest (Tr. at 743-744).

The prosecutor's argument was a response to a defense argument that petitioner had a stellar record, entitling his testimony to be credited (Tr. at 685), and that the prosecution's star witness could not be credible because of his relationship with the deceased (Tr. at 674-679). Prosecutors and defense attorneys are generally given broad leeway in framing arguments to the jury, as long as they do not misstate the evidence. United States v. Tocco 135 F.3d 116, 130 (2d Cir. 1998), cert. denied. Ferrante v. United States, 523 U.S. 1096 (1998). This is particularly true when viewed against the backdrop of defense summation, which challenged the credibility of the People's witnesses and extolled the credibility of petitioner's version of events, claiming that "[t]here is uncontroverted evidence that the manner in which Clifton explained the shooting is, in fact, the way it happened" (Tr. at 691). Given the defense summation, it was within the prosecutor's discretion to question petitioner's version of events and respond to "argument[s] that impugn[ed] its integrity or the integrity of the case." United States v. Thai, 29 F.3d 785, 807 (2d Cir.), cert. denied, 533 U.S. 977 (1994); accord United States v. Shareef, 190 F.3d 71, 79 (2d Cir. 1999) ("It is not ordinarily improper . . . `to characterize disputed testimony' where credibility was clearly an issue, particularly where the `prosecutor tied to the pertinent evidence of the record.'" (quoting United States v. Peterson 808 F.2d 969, 977 (2d Cir. 1987))).

Next, petitioner alleges that his conviction was improper because of comments made by the prosecutor about petitioner's failure to turn himself into the police. During cross-examination of petitioner, the prosecutor elicited, without any objection by petitioner, that the defendant stopped going to his "regular home" for the period immediately following King's death even though he knew that the police were looking for him (Tr. at 635-36). In summation, the prosecutor relied on this evidence to argue that defendant's actions after the shooting were not consistent with his justification defense. The prosecutor commented:

He knows he's guilty. If it happened the way he claims . . ., he's a freaking hero. . . . You go tell the cops and you go home and see your girlfriend that night. . . . The great need to hide out for two weeks . . . tells you that you all need to know [sic] about his state of mind, that tells you that on January 5 . . . he knows he wasn't justified" (Tr. at 766-767).

On appeal, petitioner contended that these remarks were unduly prejudicial and designed to "inflame" the jury so that they would reject his justification defense.

It is well-settled that conduct that indicates consciousness of guilt is admissible evidence. United States v. Mickens, 926 F.2d 1323, 1329 (2d Cir. 1991). Here, the prosecutor used petitioner's own statements at trial to challenge petitioner's justification defense, an acceptable summation technique. His language, although not felicitous, was focused on issues relevant to the trial.

Petitioner also contends that the prosecution improperly shifted the burden of proof during trial. During summation, the prosecutor stated: "Now, it's up to the defendant, who is going to have something different to explain how it goes from this little fight, that he shot a guy, into somehow being legally justified" (Tr. at 735). Along the same lines, the prosecutor commented on a witness who had seen mere "tussling" between the two men and stated: "There is no way the defendant can justify shooting from that account. So he has to come [sic] with this story" (Tr. at 736). The prosecutor also noted that by all witnesses' accounts, even those of the defense witnesses, the initial fight on December 20 was insufficient to legally justify the use of deadly physical force on December 22 and therefore petitioner had been forced to claim that King had initially produced the gun because "it's the only story [petitioner] could have given at the time he testified" (Tr. at 738).

Since petitioner explored issues about his personal life and presented his version of the events on direct examination, the prosecution's cross-examination of petitioner on these topics and comments on petitioner's credibility during summation were proper. See Portuondo v. Agard 529 U.S. 61, 69 (2000) (When a defendant takes the stand, "his credibility may be impeached and his testimony assailed like that of any other witness." (internal quotations omitted)). In context, the prosecutor's remarks did not constitute burden-shifting so much as they suggested that petitioner's version of the events was not credible. See United States v. Walker 835 F.2d 983, 988 (2d Cir. 1987).

Moreover, any prejudicial impact was cured by the judge's instructions, which repeatedly reminded the jury that petitioner was presumed to be innocent and need prove nothing, and that the prosecution had the burden of proof on all issues (See, e.g., Tr. at 803-04, 828, 832, 835). Because juries must be presumed to follow instructions, see discussion supra Part II.A., this was sufficient to cure the alleged misconduct. See, e.g., Walker, 835 F.2d at 988 (trial court's instructions prevented prejudice from improper prosecution summation); United States v. Cruz, 797 F.2d 90, 93 n. 1 (2d. Cir. 1986) (holding that a curative instruction and the broader context of the trial were sufficient to overcome prosecutor's inappropriate summation comment).

Taken as a whole, the prosecutor's remarks in summation and cross-examination did not rise to the level of "inflamation" that petitioner alleges, but rather constituted appropriate responses to the defense summation and acceptable comment on the evidence. Because the allegedly improper remarks in summation did not result in a trial that deprived petitioner of his due process rights, I dismiss this final remaining ground on the merits.

III. Conclusion

For the reasons stated above, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied. Because petitioner has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2252(c)(2), petitioner is not entitled to a certificate of appealability. There are no issues worthy of appellate review, and no certificate of appealability will be issued.

The Clerk of the Court is directed to mark this matter as closed.