Opinion
97 Civ. 2882 (RCC) (JCF)
February 14, 2001
OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION
Petitioner Kareem Ali Shariff ("Petitioner") filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 22, 1997. Petitioner asserts that his conviction following a jury trial in New York State Supreme Court, Bronx County, for Murder in the Second Degree (New York Penal Law § 125.25(1)) should be overturned due to ineffective assistance of trial counsel and prosecutorial misconduct in the state court proceedings, which he argues denied him due process.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), state prisoners are permitted one year from the completion of state court direct review to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1). For purposes of calculating when the one-year time limitation begins to run, "[a] judgment of conviction becomes final under the AEDPA at the conclusion of the ninety days during which the party could have sought certiorari in the United States Supreme Court."De'Oliveira v. Kelly, No. 97 Civ. 0876, 1997 WL 436921, at *1 (N.D.N.Y. July 31, 1997) (citations omitted). However, state prisoners who file a habeas petition, pursuant to 28 U.S.C. § 2254, more than a year after the completion of state court direct review but within one year after April 24, 1996, the date the AEDPA took effect, are also allowed to pursue their petition. Ross v. Artuz, 1998 WL 400446, at *4-6 (2d Cir. June 24, 1998). Petitioner filed his petition on April 22, 1997, which is within one year from the date the AEDPA took effect. In addition, on January 14, 1998, the Honorable Sonia Sotomayor, to whom this case was assigned prior to her elevation to the Second Circuit, denied the Government's motion to dismiss, holding that justice required a finding that the petition is timely. Therefore, the petition was timely filed.
By Report and Recommendation dated October 8, 1998 ("Report"), Magistrate Judge Francis recommended that a writ of habeas corpus be denied, finding that both the claim of ineffective assistance of counsel and the claim of prosecutorial misconduct were without merit. When reviewing a Report, a Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). The Court must make a de novo determination of those portions of the report to which objections are made. Id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Petitioner filed timely objections (the "Objections") to the Report. Petitioner's objections essentially reiterate the same arguments set forth in the petition, which were thoroughly considered and discussed at length by Magistrate Judge Francis. Because the Court agrees with the well-reasoned analysis set forth in the Report, an extended discussion of the issues is unnecessary. However, in light of Petitioner's objections, the Court reviews the issues de novo. Fed.R.Civ.P. 72(b).
I. Facts and Procedural Background
On September 19, 1980, Walter Grant ("Deceased") was killed by gunshot in his apartment. Jason Grant ("Grant"), the son of the Deceased, Peter Aguilar ("Aguilar"), the stepson of the Deceased, and Esther Sanchez ("Sanchez"), the common-law wife of the Deceased testified at Petitioner's trial for the murder. The following facts were testified to at Petitioner's trial. On the date of the murder, at approximately 4 in the morning, Petitioner called the Deceased's apartment and spoke with Sanchez. ((Trial Transcript ("Tr.") at 229-31). Petitioner arrived at the apartment approximately 15 minutes later with another man. (Tr. at 231). The three men went into the kitchen and began arguing about money and drugs. (Tr. at 42, 232.) Lonnie Youngblood ("Youngblood") arrived at the apartment and joined the argument. (Tr. at 232-33). At approximately 5:30 in the morning, Youngblood and the other man held the Deceased's arms while Petitioner shot and killed him. (Tr. at 136). Petitioner was convicted of Murder in the Second Degree on April 14, 1982, following a jury trial before the Honorable Stanley Parness.
On June 2, 1982, Petitioner moved to set aside the jury's verdict, pursuant to New York Criminal Procedure Law, Section 330.30, on the grounds of ineffective assistance of counsel and prosecutorial misconduct. New York State Supreme Court, Bronx County denied his motion and Petitioner was sentenced to twenty-five years to life in prison for his conviction. Petitioner filed a notice of direct appeal on September 7, 1982 and moved on January 10, 1985 to vacate his conviction, pursuant to New York Criminal Procedure Law, Section 440.10, on the grounds of ineffective assistance of counsel and prosecutorial misconduct. The trial court summarily denied his motion. The New York State Supreme Court, Appellate Division, First Department granted Petitioner a certificate for leave to appeal the denial of his motion to vacate, which he consolidated with his direct appeal. The Appellate Division then affirmed his conviction on May 13, 1986. and the New York Court of Appeals denied leave to appeal on June 30, 1986. Petitioner again moved to vacate his conviction on October 24, 1994, alleging additional instances of ineffective assistance of counsel, which motion was summarily denied on December 22, 1994. The Appellate Division denied leave to appeal this motion on May 2, 1995. On April 22, 1997, Petitioner filed the instant petition for a writ of habeas corpus.
Title 28 of the United States Code, Section 2254(b)(2) provides that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2) (1996). Here, as noted by Magistrate Judge Francis in the Report, although some of Petitioner's claims ineffective assistance of counsel may not be exhausted, all of Petitioner's claims may be reviewed and the petition may be denied on the merits.
II. Ineffective Assistance of Counsel
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that "(1) counsel's performance was unreasonably deficient under prevailing professional standards, and, (2) but for counsel's unprofessional errors, there exists a reasonable probability that the result would have been different." United States v. Torres, 129 F.3d 710, 716 (2d Cir. 1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)). A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Flores v. Demskie, 215 F.3d 293, 304 (2d Cir. 2000) (citing Strickland, 466 U.S. at 694). There is a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance," and that challenged actions amount to legitimate trial strategy. United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990). The right to effective assistance of counsel, however, may be violated by "even an isolated error of counsel if that error is sufficiently egregious and prejudicial." Murray v. Carrier, 477 U.S. 478, 496 (1986).
Although the determination of effective assistance of counsel depends on a finding for Petitioner on each of the two components, the Supreme Court stated that
[t]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.Strickland, 466 U.S. at 697. Therefore, an "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect of the judgment." Id. Accordingly, the Court will first determine whether any prejudice was suffered by Petitioner before turning to whether counsels actions fell below an objective standard of reasonableness. For the sake of this review, the Court assumes, without deciding, that counsel's conduct fell short of professional competence, and has reviewed the record to determine whether Petitioner has demonstrated that he suffered any prejudice as a result of counsel's conduct.
In order for a Petitioner to show prejudice, it is not enough that "the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test."Strickland, 466 U.S. at 693. Petitioner must show that there was a reasonable probablility that, absent the errors, the factfinder would have had a reasonable doubt about his guilt, such that would require acquittal. Id. at 695. Petitioner must show that counsel's error's were so serious as to deprive him of a fair trial. Id. at 687. The Court finds that Petitioner is unable to make such a showing.
Petitioner argues that there are numerous instances of the ineffective assistance of his trial counsel, citing the following examples: (1) failure to introduce 75 photos of the apartment where the murder occurred and failure to cross-examine each witness on the photos (Objections at 21); (2) failure to obtain Petitioner's work records which would prove that Petitioner was in North Carolina in February of 1978, at which time witness Sanchez claims to have met petitioner at the Metropolitan Correctional Center ("MCC"), and failure to impeach Sanchez on this point (Objections at 21-22); (3) "opening the door" for the prosecutor to mention Petitioner's "other cases" (Objections at 22-23); (4) failure to object to the court's corrective instructions regarding Petitioner's "other cases" (Objections at 23); (5) waiver of Petitioner's right to be present during a robing room conference (Objections at 23-25); (6) waiver of jury sequestration in the case of one juror (Objections at 25); (7) ineffective summation (Objections at 25-26); (8) failure to object to the prosecutor's summation (Objections at 26); (9) failure to call Youngblood as a witness (Objections at 26-27); and (10) failure to investigate Youngblood's "airtight alibi" (Objections at 27).
Petitioner's allegations that counsel's failed to impeach witnesses did not result in any meaningful prejudice to his case. In the case of Sanchez's testimony, Petitioner argues that his work records establish that could not have met Sanchez in February, 1978, and that counsel's failure to utilize them resulted in prejudice. However, Sanchez testified that she could not remember if she met Petitioner in 1978 or 1979. (Tr. at 250-53). Counsel explored her inconsistent testimony and her inability to remember the exact date, impeaching her credibility on this issue. Therefore, there was no prejudice for failing to impeach her on the same issue twice.
With respect to Petitioner's allegations that counsel failed to impeach witnesses testimony with 75 pictures of the house, by questioning them about where they were and from what angle they viewed the events that occurred at the house, such a line of questioning also would not have affected the outcome of Petitioner's case. See United States ex rel. Verser v. Nelson, 980 F. Supp. 280, 285 (N.D. Ill. 1997) (dismissing habeas claim based upon counsel's failure to impeach where the impeachment item was not exculpatory of petitioner's implication in the crime and other inconsistencies were of minor and inconsequential matters in the context of the case). As the Report details, the description of the pictures does not contradict the witnesses' testimony. Report at 13-14. Therefore, Petitioner clearly could not have suffered any prejudice from counsel's decision not to use such pictures.
Petitioner claims that counsel "opened the door" for the prosecution to mention his other cases. This occurred during the course of counsel's attempt to impeach Aguilar's testimony about what he observed on the date of the shooting. Aguilar testified that Petitioner and the deceased were taking about cocaine, and that he did not remember anything else. (Tr. at 90-93). Defense counsel asked whether Aguilar had ever told a detective that the argument was about bail money. Aguilar responded ". . . [Petitioner] was talking about he had other cases in that he was in trouble . . . because he had other cases up." (Tr. at 95). Defense counsel replied, "Yeah; now you remember that," in an attempt to impeach Aguilar. The prosecutor objected and argued that Aguilar was "told not to mention it unless he was asked." Id. Defense counsel asked what Aguilar was not supposed to mention, and the prosecutor responded, "Defendant's other cases." Id. No further indication was given to the jury about the nature of such other cases, and immediately after a conference in the robing room with the attorneys, the judge instructed the jury to disregard the prosecutor's statement. (Tr. at 103-06). The Court finds that this nonspecific reference which was immediately cured did not result in prejudice such that would have affected the outcome of Petitioner's case. Furthermore, juries are presumed to be able to follow and understand the court's instructions. United States v. Potamitis, 739 F.2d 784, 790 (2d Cir.) cert. denied, 469 U.S. 934 (1984) (jurors are presumed to be able to follow jury instructions). The statement the judge referred to in his curative instruction was clear from its context, particularly considering it was given immediately after the prosecutor's statement. There was no prejudice resulting from counsel's failure to object to the judge's instruction as inadequate. Additionally, there was no prejudice that resulted from counsel's waiver of Petitioner's right to be present during the robing room conference held immediately after the statement. While a defendant does have a right to be present at his own trial, that right is not absolute. Here, Petitioner's absence from a robing room conference involving only an issue of law, and in which he could not meaningfully participate, did not result in any prejudice to the outcome of his case. See Fed.R.Crim.P. 43(c) (stating that a "defendant need not be present . . . when the proceeding involves only a conference or hearing upon a question of law."); People v. Velasco, 77 N.Y.2d 469, 472, 568 N.Y.S.2d 721, 722 (1991) (defendant's presence is not required for charging conference in the robing room, where such conference involved only matters of law and procedure).
Similarly, Petitioner does not succeed on his argument that the jury's deliberation was tainted when his counsel waived sequestration for one juror. The decision to sequester "is left to the sound discretion of the trial judge." United States v. Hall, 536 F.2d 313, 326 (10th Cir.),cert. denied, 429 U.S. 919 (1976). Analogously, the decision to waive sequestration for one juror for a brief period of time also is within the sound discretion of the trial judge and is not a right for a defendant to waive. Although a waiver of sequestration for the juror undoubtedly permitted his access to the outside world and to the media that was denied other jurors, and although prejudicial publicity may deprive a defendant of a fair trial, Sheppard v. Maxwell, 384 U.S. 333 (1966). actual jury prejudice as a result of such publicity must be proven. Here, there are no specific allegations of jury prejudice, other than the fact that after the one excused juror returned, the jury did not request any additional read-backs, charges, or instructions. Petition at 56. Similarly, there are no allegations that Petitioner's case was covered in the press, such that the excused juror would have been exposed to prejudicial information. Importantly, the Court notes that the trial judge excused the juror for a brief period of time so that he could arrange for his father's funeral. Absent any specific factual allegations, the Court is not inclined to presume that the juror was concerned with investigating Petitioner's case during that brief period. There is nothing in the record to suggest that the jury was subjected to inappropriate influences such that the waiver of sequestration denied Petitioner a fair and impartial trial. See United States v. Floyd, 81 F.3d 1517, 1528 (10th Cir. 1996).
This case does not fall into the category of cases in which jury prejudice is presumed. See Williams v. Griswald, 743 F.2d 1533, 1537-41 (11th Cir. 1984).
Petitioner argues that counsel was ineffective because he gave a flawed summation. A flawed summation may be grounds for a successful claim of ineffective assistance of counsel, United States v. Jordan, 927 F.2d 53, 57 (2d Cir. 1991), however, it cannot form the basis of a successful claim in this case. Here, counsel crafted his summation based on strategic, tactical decisions made and theories developed during the trial. See United States v. Hon, 17 F.3d 21, 27 (2d Cir. 1994); United States v. Mitchell, 449 F.2d 985, 987-88 (D.C. Cir. 1971), reh'g denied, June 11, 1971 (finding constitutional error but holding that it was harmless, taking into consideration the evidence as a whole). The fact that the defense was not ultimately successful is not sufficient to demonstrate prejudice in an ineffective assistance of counsel claim, such that, but for counsel's flawed summation, the outcome of the trial would have been different.
Petitioner argues that counsel produced Youngblood for identification in the courtroom and then failed to call Youngblood as a witness. He also argues that counsel failed to investigate Youngblood's alleged alibi, both of which he argues resulted in effective assistance of counsel. Although counsel must follow Petitioner's directions with respect to certain issues, such as the entry of plea, waiver of jury trial and testifying on one's own behalf, tactical decisions, such as who to call as witnesses, rest within the discretion of trial counsel are subject to the Strickland analysis. See United States v. Perez, 904 F.2d 142, 151 (2d Cir. 1990). Petitioner makes predictions about what Youngblood's testimony would have been had he been called, or what the result would have been had Youngblood's "unimpeachable alibi" been called. Petitioner cannot carry his burden under Strickland of demonstrating that but for these decisions, the factfinder would have had a reasonable doubt about his guilt, such that would require acquittal, by guessing what affect uncalled witnesses' testimony would have had on the jury.
Additionally, Petitioner suffered no prejudice by counsel's in-court presentation of Youngblood and subsequent, tactical decision not to call him as a witness. Counsel used the fact that Youngblood appeared in court voluntarily to argue that Grant's identification of Petitioner was unreliable because Grant also identified Youngblood, who appeared voluntarily in court and was never arrested. Presumably, counsel decided that Youngblood was more helpful to the defense in his absence than if he gave testimony, which would be subject to cross examination. See Opinion of Judge Parness Denying Motion to Vacate, Index No. 1140/81, Ex. 4, Government's Motion to Dismiss, at 7 ("the defense may have reasonable concluded that on balance whatever additional benefit could be derived from Youngblood's testifying in person was outweighed by the dangers known, unknown or undiscovered in permitting him to be examined as a witness"). This argument may have been helpful to the defense, and clearly was not prejudicial.
Similarly, Petitioner was not prejudiced because counsel did not call Youngblood's alleged alibi. Petitioner argues that the alibi's testimony would have placed Youngblood in Atlantic City on the date of the murder, thus impeaching Grant's testimony identifying Youngblood. Grant's identification of Youngblood was less certain than that of Petitioner, in the first place, and in any event, it is collateral to the issue of Petitioner's guilt. Counsel's tactical decision to not call Youngblood or his alleged alibi as witnesses did not significantly prejudice the outcome of Petitioner's case, such that it deprived him of a fair trial.
Lastly, Petitioner argues that counsel was ineffective due to his failure to object to the trial judge's instructions relating to the prosecutor's summation and the burden of proof. As discussed below, the Court holds that the trial court's instructions were sufficient, therefore, there was no need for counsel to object.
Finding no prejudice, Petitioner's claim of ineffective assistance of counsel does not meet the requirements of the second prong of theStrickland test, and must fail. Accordingly, it is unnecessary for the Court to evaluate counsel's actions to determine whether they fell within the range of reasonable professional assistance. Strickland, 466 U.S. at 697 ("The object of an ineffectiveness claim is not to grade counsel's performance."). However, upon reviewing the record, the Report, and Petitioner's objections, it is clear to the Court that counsel's decisions amounted to legitimate trial tactics and fell within the range of reasonable professional assistance. None of counsel's actions were so egregious as to result in prejudice to Petitioner, such that would have affected the outcome of the trial or deprived him of a fair trial.
This Court agrees with the Magistrate Judge that Petitioner failed to offer any argument that but for counsel's actions, the result of the trial would have been different. Thus, Petitioner's ineffective assistance of counsel claim is without merit.
III. Prosecutorial Misconduct
Petitioner's second ground for bringing this petition is alleged prosecutorial misconduct. The habeas court's standard of review of an allegation of prosecutorial misconduct is not that of a broad exercise of supervisory power, but rather, a narrow review of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). In order to prevail on such a claim, Petitioner must show that the prosecutor's conduct was so egregious that Petitioner was deprived of a fair trial and denied due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986); Blisset v. Lefevre, 924 F.2d 434, 440 (2d Cir. 1991) (citations omitted); Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990). To make such a determination, a court should consider the severity of the alleged misconduct, any curative measures taken, and the likelihood of conviction absent any misconduct. United States v. Locascio, 6 F.3d 924, 945-46 (2d Cir. 1993).
Here, Petitioner argues that: (1) the prosecutor created the false impression that the possible defense witness Youngblood would be arrested, which misled the jury and induced defense counsel not to call Youngblood as a witness; (2) the prosecutor acted as an unsworn witness by commenting on Petitioner's other cases; (3) vouched for the credibility of the prosecution witness in summation; and (4) shifted the burden of proof on summation.
The knowing use of material false evidence by the prosecution violates due process. Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959). This rule applies whether the prosecution actually solicited the perjured testimony or whether the prosecution permits the testimony to stand uncorrected after learning of its falsity.Giglio, 405 U.S. at 153; Napue, 360 U.S. at 269. In order to prove a due process violation, the petitioner must "point to specific facts establishing that the testimony was 1) used by the state, 2) false, 3) known by the state to be false, and 4) material to the guilt or innocence of the defendant." Williams, 743 F.2d at 1542 (citing Giglio, 405 U.S. at 153-54; Napue, 360 U.S. at 269-72).
Petitioner argues that the Detective Arthur Vanderpool's ("Vanderpool") testimony that Youngblood would be arrested amounted to perjury, that the prosecutor was aware that it was false, and that the prosecutor relied on it nonetheless. Petitioner argues, without basis, that the jury accorded greater credibility to Vanderpool's testimony and therefore relied on his threat to arrest Youngblood, destroying Petitioner's defense. Petitioner's Objections, at 1-2. In making his argument, the Petitioner assumes that Vanderpool's statement that Youngblood would be arrested was, indeed, false, and that the prosecutor knew of this. Petitioner's bald assertions cannot be supported by the knowledge, gained through hindsight, that Youngblood was not ultimately arrested. Vanderpool's statements were about future actions that may well have been intended at the time he testified. The fact that Youngblood not arrested does not prove that Vanderpool's testimony amounted to perjury. Similarly, Petitioner does not meet his burden of pointing to specific facts establishing that the prosecution knew that Youngblood would not be arrested.
Petitioner also argues that the prosecution permitted false testimony of Sanchez, stating that she testified that she met petitioner in February of 1978, when Petitioner's work records establish that he was in North Carolina in February, 1978. However, Petitioner fails to mention that Sanchez's testimony was that she could not remember if she met Petitioner in 1978 or 1979. (Tr. at 250-53, 434-35). Counsel explored her inconsistent testimony and her inability to remember the exact date. As Sanchez's statement was inconsistent, rather than false, Petitioner's claim on this issue must fail. See Giglio, 405 U.S. at 153-54. It is clear to the Court that the prosecution did not solicit or permit false testimony on this point. The Court finds that Petitioner has not established that prosecutor knowingly solicited or permitted false testimony from Sanchez.
Petitioner argues that the prosecutor shifted the burden of proof to the defense during summation. Petitioner suffered no prejudice such that would result in a denial of due process from this, as the trial judge cured the remark immediately after it was made and also charged the jury that
the burden of proving the case against the defendant [is] on the People. It is upon the District Attorney. This is a burden which always remains on the District Attorney throughout the trial. Never shifts to the defendant. The defendant, in a criminal case, is never under an obligation to prove anything. Indeed, the defendant is entitled to rest upon this presumption of innocence in his favor until the presumption is so far outweighed by the evidence offered by the People that you, as jurors, are convinces of his guilty of the crime charged against him beyond a reasonable doubt. This means also that the People must establish each and every element of the crime charged against him beyond a reasonable doubt. This means also that the People must establish each and every element of the crime with which a defendant may be charged beyond a reasonable doubt. And the defendant is entitled to the benefit of every reasonable doubt arising out of the evidence or lack of evidence in the case.
Tr. at 516-17; Report at 18-19. The judge's jury instruction prevented any prejudice that Petitioner might have faced from the prosecutor's remarks. See Moreno v. Kelly, 1997 WL 109526, at *6 (S.D.N.Y. Mar. 11, 1997) (finding no prejudice from prosecutor's summation remarks that defendant was a coward for not admitting to sex crimes the Court issued an appropriate corrective, limiting jury instruction). The jury is presumed to be able to understand and follow such instructions.Potamitis, 739 F.2d at 790. The Court finds that, in light of the trial court's instructions, the prosecutor's statement during summation did not so infect the trial to make the resulting conviction a denial of due process. See Darden, 477 U.S. at 181.
Petitioner also claims that the prosecutor's threat to arrest Youngblood dissuaded him from testifying and violated Petitioner's due process rights. Although reversal of a conviction is appropriate if the government's conduct interfered substantially with a witness's free and unhampered decision to testify, see United States v. Pinto, 850 F.2d 927, 932 (2d Cir. 1988), reversal is not appropriate in this case, as there is no allegation that Youngblood was even aware of this threat. What Petitioner does allege is that the prosecutor's statement caused defense counsel to decide not to call Youngblood as a defense witness, which tactical decision is discussed above. The prosecutor's conduct on this issue did not result in a due process violation to Petitioner.
Lastly, Petitioner argues that the prosecutor made statements about witnesses' credibility which amounted to misconduct. The Court disagrees. Although the government may not vouch for a witness's credibility, it may respond to an argument that impugns the government's integrity or the integrity of the case. See United States v. Thai, 29 F.3d 785, 806-07 (2d Cir. 1994). The prosecution was entitled to respond to defense counsel's suggestions that the prosecution's witnesses were lying. None of the challenged remarks made by the prosecutor, either individually or in the aggregate, resulted in prejudice to the outcome of Petitioner's trial.
The Court finds that Petitioner's prosecutorial misconduct allegations are without merit and must be rejected.
Additionally, as the Court finds that Petitioner has not made a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), the Court sua sponte denies Petitioner a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) ("It is perfectly lawful for district courts to deny [certificates of appealability] sua sponte."); see 28 U.S.C. § 2253(c) (a petitioner must obtain a certificate of appealability in order to appeal the denial of his habeas petition).
CONCLUSION
For the above reasons, this Court accepts and adopts the Report and Recommendation of Magistrate Judge Francis in its entirety. The petition is denied and the Clerk of the Court is directed to close this case.