Opinion
Civil Action No. 04-1000.
November 16, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a counseled petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution in Waymart, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On September 2, 1993, petitioner shot and killed Brian Johnson at Johnson's residence. Petitioner subsequently phoned the police and informed them that his gun had accidentally discharged. Though petitioner originally pled guilty to murder in the third degree, he withdrew that plea and decided to proceed with trial after hiring new counsel.
On April 30, 1999, at the conclusion of a jury trial before the Honorable John J. Poserina, Jr. of the Philadelphia County Court of Common Pleas, petitioner was convicted of first degree murder and possession of an instrument of crime. Petitioner was subsequently sentenced to life imprisonment.
Petitioner filed a direct appeal to the Pennsylvania Superior Court, which was denied on May 11, 2001. Commonwealth v. Platel, 778 A.2d 1246 (Pa.Super. 2001). Petitioner chose not to file a petition for Allowance of Appeal to the Pennsylvania Supreme Court.
On July 27, 2001, petitioner filed a pro se petition for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541, et seq, which was subsequently denied on July 12, 2002. Petitioner appealed, and on July 1, 2003, the Superior Court affirmed the PCRA court's decision. Commonwealth v. Platel, 832 A.2d 542 (Pa.Super. 2003).
Petitioner filed his initial petition for Writ of Habeas Corpus on March 8, 2004. Later that month, petitioner's counsel withdrew, and new counsel entered his appearance. New counsel filed an amended petition for Writ of Habeas Corpus, which was docketed on May 10, 2004, raising the following claims:
(1) The prosecutor engaged in extensive misconduct, amounting to a violation of petitioner's Fourteenth Amendment rights;
(2) The prosecutor and investigating officer deprived petitioner of his right to counsel;
(3) There is insufficient evidence to support petitioner's conviction for murder in the first degree;
(4) Petitioner was denied effective assistance of counsel;
(5) The police failed to preserve the 911 tapes and transcripts, as well as the victim's clothing, amounting to a violation of petitioner's Sixth and Fourteenth Amendment rights; and
(6) The trial court improperly admitted testimony that petitioner had an affair with an underage woman, amounting to a violation of his Fourteenth Amendment rights.
Respondents retort that petitioner is not entitled to federal habeas relief. They contend that many of petitioner's claims are procedurally defaulted, as they were not properly presented to the state courts, and cannot be presented there now. Respondents argue that petitioner's remaining claims are without merit, and thus, the petition for Writ of Habeas Corpus should be dismissed with prejudice. We find all of petitioner's claims either procedurally defaulted or without merit, and thus we dismiss the habeas petition in its entirety.
II. PROCEDURAL DEFAULT
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c) (1994); Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056, 1059, reh'g denied, 490 U.S. 1076, 109 S. Ct. 2091 (1989). In other words, a petitioner must invoke "one complete round of the state's established appellate review process," in order to exhaust his remedies. O'Sullivan, 526 U.S. at 845. A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demand, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3rd Cir. 1982), cert. denied, 459 U.S. 1115, 103 S. Ct. 750 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise they risk depriving the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3rd Cir. 1993).
However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S. Ct. 2546, reh'g denied, 501 U.S. 1277, 112 S. Ct. 27 (1991);McCandless v. Vaughn, 172 F.3d 255, 260 (3rd Cir. 1999). The procedural default barrier precludes federal courts from reviewing a state petitioner's federal claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 729. "In the context of direct review of a state court judgment, [this] doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. "In the absence of [the procedural default doctrine] in federal habeas, habeas petitioners would be able to avoid the exhaustion doctrine by defaulting their federal claims in state court." Id. at 732.
As noted above, respondents contend that several of petitioner's claims are procedurally defaulted as he has never raised them in the state courts and currently has no avenue through which he could do so. See 42 Pa. C.S. § 9545(b).
Thus, petitioner is not entitled to federal habeas review unless he can show that his default should be excused. Such excuse is allowed only where the petitioner can show "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims would result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
We find the following claims brought by petitioner procedurally defaulted: 1, 2, 4 (sub-part b), and 5. Petitioner's remaining claims — 3, 4 (sub-parts a and c-f), and 6 — are addressed in Section IV of this report and recommendation.
Petitioner's first claim is that the prosecutor engaged in extensive misconduct, amounting to a violation of his Fourteenth Amendment rights. This claim has seven sub-parts, all of which we find procedurally defaulted, as they were never raised in either the Pennsylvania Superior Court or the Pennsylvania Supreme Court.
The following is a list of the seven sub-parts of claim 1:
(a) It was improper for the prosecutor to argue that it is the jury's patriotic duty to convict the defendant or give the victim a fair trial;
(b) It was improper for the prosecutor to argue that petitioner is afforded constitutional protections and that the victim was afforded none;
(c) It was improper for the prosecutor to inform the jury that he did not call the medical examiner who performed the autopsy because he "charged an arm and a leg;"
(d) It was improper for the prosecutor to refer to Mr. Bilbay's testimony as a story, as this negatively influenced Mr. Bilbay's credibility;
(e) It was improper for the prosecutor to repeatedly imply that the homicide was racially motivated;
(f) It was improper for the prosecutor to inform the jury that petitioner was jealous because the victim was "seeing his woman," since there was no evidence that petitioner felt as if he owned his wife; and
(g) It was improper for the prosecutor to infer that petitioner believed the victim impregnated his wife when there was no evidence petitioner knew his wife was pregnant on the day of the shooting.
Though petitioner has alleged cause and prejudice in his reply brief, he has not shown that the court's failure to consider this claim would result in a fundamental miscarriage of justice. To meet the miscarriage of justice exception, petitioner must demonstrate "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup v. Delo, 513 U.S. 298, 327 (1995). Petitioner's arguments fall short of the Schlup standard, and consequently, petitioner's first claim is dismissed without consideration on the merits.
The "reply brief" references petitioner's Reply in Support of his First Amended Petition for Writ of Habeas Corpus, which was filed on October 25, 2004.
Petitioner's second claim is that the prosecutor and investigating officer deprived him of his right to counsel. Petitioner states that the investigating officer interviewed him at his residence the day before he testified, inquiring as to Mr. Bilbay's whereabouts. He contends that he informed the officer that he did not know Mr. Bilbay's current address, but that his attorney had that information. Petitioner claims that the prosecutor subsequently implied to the jury that petitioner concealed Mr. Bilbay's whereabouts from the officer, and then offered a rebuttal witness who testified that the residences of petitioner and Mr. Bilbay were close in proximity to one another.
Though petitioner has alleged cause and prejudice in his reply brief, he has not shown that the court's failure to consider his claim would result in a fundamental miscarriage of justice. As petitioner's arguments fall short of the Schlup standard, his second claim must be dismissed without consideration on the merits.
Sub-part two of petitioner's fourth claim is that trial counsel failed to develop evidence concerning petitioner's lack of knowledge concerning his wife's pregnancy. Petitioner believes the government premised its case on the theory that petitioner murdered Mr. Johnson after discovering that his wife was carrying Johnson's child. As a result, petitioner contends that trial counsel should have admitted the child's birth certificate into evidence, as well as the medical records of his wife, which would have shown that she had her period in September of 1999, thereby proving that she was unaware of her pregnancy on the date of the shooting. Petitioner also contends that trial counsel failed to call Ms. Thornton as a witness, who would have testified that petitioner's wife did not inform petitioner of her pregnancy until after the shooting.
Though petitioner has alleged cause and prejudice in his reply brief, he has not shown that the court's failure to consider his claim would result in a fundamental miscarriage of justice. As petitioner's arguments fall short of the Schlup standard, the second portion of his fourth claim must be dismissed without consideration on the merits.
Petitioner's fifth claim is that the police failed to preserve the 911 tapes and transcripts, as well as the victim's clothing, amounting to a violation of his Sixth and Fourteenth Amendment rights. Petitioner contends that the urgency in his voice on the tapes would have verified his testimony as to his state of mind after the shooting, and that the holes in the victim's clothing would have been consistent with his theory of "doubling" or "slamming."
Petitioner raised this claim in his direct appeal before the Pennsylvania Superior Court, arguing that the absence of the above evidence necessitated a mistrial. The Superior Court found the claim to be waived as petitioner's counsel had not moved for a mistrial, and in addition, petitioner had failed to couch this claim within his claims for ineffective assistance of counsel on appeal. Support for the court's ruling is found in Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130 (1996), which held that in order to avoid waiver of an issue on appeal, a claimant must first raise the issue in question to the trial court by means of a timely, specific motion or objection.
Though petitioner has alleged cause and prejudice in his reply brief, he has not shown that the court's failure to consider his claim would result in a fundamental miscarriage of justice. As petitioner's arguments fall short of the Schlup standard, his fifth claim must be dismissed without consideration on the merits.
III. STANDARD OF REVIEW
Petitioner's remaining claims — 3, 4 (sub-parts a and c-f), and 6 — are subject to the following standard of review.
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for Writ of Habeas Corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues — a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court as follows:
An application for a writ of habeas corpus on behalf of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless 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 proceeding.28 U.S.C. § 2254(d).
The United States Supreme Court, in Williams v. Taylor, 529 U.S. 362, 404-05, 120 S. Ct. 1495 (2000), interpreted the standards established by the AEDPA regarding the deference to be accorded state court legal decisions, and more clearly defined the two-part analysis set forth in the statute. Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to" the "clearly established federal law, as determined by the Supreme Court of the United States." As defined by Justice O'Connor, writing for the majority of the Court on this issue, a state court decision can be contrary to Supreme Court precedent in two ways: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] court on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. She explained, however, that this "contrary to" clause does not encompass the run-of-the-mill state court decisions "applying the correct legal rule from Supreme Court cases to the facts of the prisoner's case." Id. at 406.
To reach such "run-of-the-mill" cases, the Court turned to an interpretation of the "unreasonable application" clause of § 2254(d)(1). It found that a state court decision can involve an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."Id. at 407-08. The Court specified, however, that under this clause, "a federal habeas court may not issue the writ simply because the 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 410.
IV. DISCUSSION OF MERITS
Petitioner's claims 3, 4 (sub-parts a and c-f), and 6 have been properly exhausted in the state courts and will now be addressed on the merits.
Petitioner's third claim is that there is insufficient evidence to support his conviction for murder in the first degree. Specifically, petitioner alleges that the government failed to prove that there was either long-standing animosity between himself and the victim or that there was a significant event on the day in question that precipitated the shooting, and thus failed to prove beyond a reasonable doubt that petitioner murdered the victim in a deliberate and premeditated manner.
When evaluating a claim for insufficiency of due process of law, the court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 307, 319 (1979). It is of no matter whether this court believes that the evidence at trial established petitioner's guilt beyond a reasonable doubt. See id., 443 U.S. at 318-19.
In the case at bar, petitioner fails to explain why his view of the facts leads to the only possible rational conclusion. Additionally, petitioner offers no compelling argument that the verdict reached by the jury was irrational in nature. It is clear from the Superior Court's opinion that the evidence of petitioner's culpability introduced at trial was more than necessary for a first degree murder conviction, and thus petitioner cannot meet the Jackson standard. As such, petitioner is unable to prove that the state court decision involved an unreasonable application of Supreme Court precedent. See Williams, 529 U.S. at 407-08. Therefore, we must dismiss the habeas petition as to this claim.
Petitioner's fourth claim is comprised of six sub-parts, all of which maintain the denial of effective assistance of counsel. The sub-parts are as follows:
(a) Trial counsel failed to provide reasonable effective assistance as a result of his lack of pretrial preparation, skill, and experience;
(b) Trial counsel failed to develop evidence concerning petitioner's lack of knowledge concerning his wife's pregnancy (Note: sub-part (b) of petitioner's fourth claim has been dismissed as procedurally defaulted);
(c) Trial counsel failed to call Mr. Bleil as a witness, who would have testified that petitioner did not go to the victim's home with any intent to shoot or kill him;
(d) Trial counsel failed to preserve his request for a jury instruction that the court instruct the jury on the failure of the police to preserve the 911 tapes and transcripts;
(e) Trial counsel failed to object to the instruction that the court provided the jury concerning the presumption of malice; and
(f) Trial counsel failed to develop the defense that negligent care by the EMTs was the true cause of the victim's death.
When reviewing claims of ineffective assistance of counsel, this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different, absent the alleged ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562 (1984). The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. Const., amend. VI. The Supreme Court has set forth a two-prong test — both parts of which must be satisfied — by which claims alleging counsel's ineffectiveness are adjudged. Id. at 668. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. The Supreme Court has explained that:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 76 S. Ct. 158, 163-64 (1955)).
A convicted defendant asserting ineffective assistance must therefore identify the acts or omissions that are alleged not to have been the result of reasoned professional judgment. Id. at 690. Then the reviewing court must determine whether, in light of all the circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance." Id. Under Pennsylvania law, counsel is not ineffective for failing to raise baseless or frivolous issues.Commonwealth v. Wilson, 393 A.2d 1141, 1143 (Pa. 1978).
Second, the petitioner must demonstrate that his counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694. A reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. If it is easier to dispose of an ineffectiveness claim for lack of the requisite prejudice, that course should be followed. Id. at 697.
In the case at bar, sub-part (b) of petitioner's fourth claim has been dismissed as procedurally defaulted. A discussion of the remaining five sub-parts follows.
In sub-part (a), petitioner claims that trial counsel failed to provide reasonable effective assistance as a result of his lack of pretrial preparation, skill, and experience. Specifically, petitioner contends that trial counsel failed to investigate the possibility that someone had tampered with the gun used in the killing.
After the gun had been admitted as evidence, trial counsel informed the court that he believed there was oil residue on the gun, prompting him to inquire whether the police had tampered with it during their accidental discharge testing. The officer who had conducted the testing was recalled as a witness and testified that he had not oiled the gun. Petitioner's expert reexamined the gun and found no evidence of tampering, at which point counsel withdrew the claim. Because petitioner's argument is refuted by the evidence admitted at trial, and therefore meritless, counsel's actions cannot be said to amount to ineffective assistance. Thus, we must dismiss the habeas petition as to this claim.
In sub-part (c), petitioner contends that counsel was ineffective for failing to call Mr. Bleil as a witness, as he would have testified that petitioner did not go to the victim's home with the intent to shoot or kill him.
To establish ineffectiveness for failure to call a witness, appellant must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have known him; (4) the witness was prepared to cooperate and testify for appellant at trial; and (5) the absence of the testimony prejudiced appellant so as to deny him a fair trial. Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa.Super. 2002) (quoting Commonwealth v. Petras, 534 A.2d 483, 485 (1987)).
In the case at bar, petitioner and Mr. Bilbay both testified that petitioner had gone to the victim's home to check on his employees, and not to murder Mr. Johnson. Mr. Bleil's testimony would not have added to the that previously introduced by petitioner and Mr. Bilbay, and thus would have been cumulative. As a result, petitioner cannot meet the fifth prong of the Petras standard, and therefore counsel cannot be judged ineffective for failing to present Mr. Bleil's testimony.
In sub-part (d), petitioner contends that trial counsel was ineffective for failing to preserve his request for a jury instruction that the court instruct the jury on the failure of the police to preserve the 911 tapes and transcripts.
A "missing evidence instruction" is given to a jury only where the following three prong test is met: (1) the item is only available to the party who fails to produce it; (2) the item contains or shows special information which is material to the issue; and (3) the item would not be merely cumulative. Pa. Standard Jury Instruction § 3.21B (Crim); see also Commonwealth v. Whaley, 434 A.2d 147 (Pa.Super. 1981) (holding that "missing evidence" is not material where it would have failed to create reasonable doubt, and where the defendant had other evidence by which to attempt to prove his innocence).
The missing 911 tapes and transcripts would have been offered by the defense to show the urgency in petitioner's voice immediately following the shooting. However, the jury was presented with the testimony of both petitioner and Mr. Bilbay that petitioner cried out, "Oh my God, I shot Brian" right after the gun went off. As the 911 tapes and transcripts would merely have been cumulative evidence, they were immaterial, and thus a jury instruction on the police department's failure to preserve them for trial was not warranted. Counsel cannot be held ineffective for failure to raise a meritless claim, and thus counsel cannot be considered ineffective in this instance. As such, we must dismiss the habeas petition as to this claim.
In sub-part (e), petitioner argues that trial counsel failed to object to the instruction that the court provided the jury concerning the presumption of malice. Petitioner contends that the instruction allowed the jury to infer that the Commonwealth met its burden of proof regarding malice merely by showing that petitioner pointed his gun at a vital part of the victim's body.
In order for a jury instruction to be proper, it must fully inform the jury of the law as it pertains to the case in question. Commonwealth v. Clinton, 683 A.2d 1236 (Pa.Super. 1996). In the case at bar, petitioner's complaint is based upon the following instruction:
You may infer malice from certain kinds of conduct, for example, if you believed that a person or defendant intentionally pointed a deadly weapon at a vital part of the human body in such a manner that was calculated or likely to cause death or serious bodily injury, you may infer that the weapon was used with malice, but whether or not you do is entirely up to the jury to decide. N.T. 4/30/99 at 43.
The instruction makes clear that malice may be inferred only where a deadly weapon is both pointed at a vital part of the human body and used, and thus it was adequate. Additionally, as there was no question that petitioner fatally shot Mr. Johnson in the neck, the jury could not have been misled into finding malice merely as a result of petitioner's pointing the gun in Mr. Johnson's direction. Thus, petitioner's claim is meritless, and therefore, counsel cannot be held ineffective for failing to object to the jury instruction. As such, we must dismiss the habeas petition as to this claim.
In sub-part (f), petitioner argues that trial counsel failed to develop the defense that negligent care by the EMTs was the true cause of Mr. Johnson's death. Petitioner contends that Mr. Johnson might have survived if he had received appropriate treatment within twenty minutes of having been shot.
The appropriate test states that, "a defendant's actions are the legal cause of death if they are a direct and substantial factor in bringing it about."Commonwealth v. Paquette, 451 Pa. 250, 254, 301 A.2d 837, 839 (1973). A "defendant cannot escape the natural consequences of his act merely because of foreseeable complications." Id.
In the case at bar, petitioner has failed to show that the paramedics could have arrived sooner. Additionally, though petitioner has shown that the victim was not taken to the closest trauma unit, he has not demonstrated that the victim could have been transported to that unit quickly enough to provide him with a chance of survival. It was certainly foreseeable that the victim would not have been able to obtain the medical treatment necessary to save his life in the twenty minutes following the shooting. As such, petitioner had no "negligent care" defense, and thus counsel was not ineffective for failing to attempt to develop one. Therefore, we must dismiss the habeas petition as to this claim.
Petitioner's sixth claim is that the trial court improperly admitted testimony that petitioner had an affair with an underage woman, amounting to a violation of his Fourteenth Amendment rights.
The trial court overruled counsel's objection to the woman's testimony that she had had a relationship with petitioner six years prior to the trial on the ground that the witness was only testifying because of some personal relationship with petitioner.
The witness responded to direct questioning that she was twenty-two on the date of her testimony, and that she had had a relationship with petitioner in 1993. Thus, the jury could easily deduce that she was fifteen or sixteen at the time of the relationship.
The PCRA court upheld the trial court's ruling on appeal, stating that the admission of the fact that petitioner and the witness had a prior relationship ". . . is not grounds for a new trial both because its prejudicial impact was de minimus and because the evidence of [petitioner's] guilt was so overwhelming and the prejudicial effect was so insignificant by comparison that the error, if any, could not have contributed to the verdict." We agree. As such, the habeas petition must be dismissed as to this claim and in its entirety.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ____ day of November, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.