Opinion
Civil Action No. 98-73997-DT.
May 30, 2000.
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner, Kelvin Jean McDonald. ("Petitioner"), presently confined at the Thumb Correctional Facility in Lapeer, Michigan, has filed this pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, Petitioner attacks his 1993 convictions for unarmed robbery. M.C.L. 750.530, and habitual offender, fourth offense. M.C.L. 769.12. Petitioner was charged with armed robbery and commission of a felony while being in possession of a firearm ("felony firearm"). The jury was instructed on the charge of armed robbery and the lesser included offenses of unarmed robbery, larceny from a person, and obtaining money by false pretenses, and felony firearm. The jury found Petitioner guilty of unarmed robbery. Petitioner was found not guilty of felony firearm. Petitioner pleaded guilty to being a fourth felony habitual offender and was sentenced to twenty to thirty years imprisonment.
II. Factual Background
Petitioner's convictions arise from an incident in which he unlawfully obtained eighty dollars from Jason Stevens ("Stevens").
A. Testimony of complainant
Stevens testified that Petitioner approached him in the entrance to a Meijer's store and repeatedly asked if he wanted to buy some stolen stereo equipment. Stevens said he did not. Petitioner accompanied him inside the store and continued asking Stevens if he was interested in buying a stolen radio and other electronic equipment. Stevens again said he was not interested. Stevens walked farther into the store looking for plumbing parts and a Nintendo game, but could not find what he wanted to buy Stevens stopped again in the entrance to use the telephone on his way out of the store. Stevens noticed Petitioner walk back into the store again. Stevens walked to his car which he had parked some distance from any other cars in the lot to prevent it from being scratched because it was new.
As Stevens was putting his key in his car door, Petitioner drove up, got out of his car, and approached Stevens. Petitioner then pulled a small black gun out of his pocket, held it to Stevens's ribs, and ordered him to give Petitioner his money. Stevens immediately gave Petitioner eighty dollars. Stevens could not tell if the gun was rubber or plastic or was a real gun. Stevens saw Petitioner's license plate number as he drove away, wrote it down, and reported the incident to the police. Petitioner was arrested shortly thereafter. No gun was found.
B. Petitioner's testimony
Petitioner did nor deny illegally obtaining eighty dollars from Stevens on the day in question, but he denied committing a robbery, denied that he assaulted Stevens in any way, and denied possessing a gun and pointing a gun at Stevens.
Petitioner testified that he tricked or conned Stevens out of his money by offering to sell him a CD player from a stolen stereo system for eighty dollars, far below its market value. Petitioner testified that Stevens agreed to make the sham purchase after a Meijer employee whom Petitioner knew told Stevens that Petitioner was not a police officer. Petitioner and Stevens then drove in separate cars to a nearby convenience store where Petitioner told Stevens the stereo equipment would be obtained. Petitioner then struck up a conversation with an innocent third party in a blue car who knew nothing about his scheme. Petitioner told Stevens that the man in the blue car was the person who would get them the stereo and that he had given the man their money. Petitioner testified that he planned on telling Stevens that the man in the blue car had taken his money also, when no one arrived with the stereo equipment.
Petitioner further testified that Stevens became nervous while waiting in the convenience store parking lot and drove back to the Meijer store. Petitioner followed Stevens back in his car. Petitioner testified that he followed Petitioner back to the Meijer store because he did not want Stevens to think he (Petitioner) had taken his money. Petitioner finally left Stevens at the Meijer's lot after telling him that he (Petitioner) was going to get the stereo equipment and return with it later.
Petitioner testified that he had prior convictions for larceny by trick and attempted larceny from a building. Petitioner also testified that he telephoned Stevens's mother once from jail by way of a three-way call and, posing as deputy prosecutor, told her that Petitioner had taken and passed a lie detector test seven times concerning the events of the alleged robbery.
C. Testimony of complainant's mother
Steven's mother, Deborah Louise Stevens (Mrs. Stevens), testified that a man identifying himself as a prosecutor called her house several times. The caller asked if Jason Stevens intended to prosecute concerning the matter and stated that Jason would have to testify and that it was a delicate situation, because if Jason were to lie it would present problems. Mrs. Stevens was suspicious and told the police about the call. The police confirmed her suspicions that no one from the prosecutor's office had made the call. On another occasion, Petitioner called, identified himself as prosecutor Smitherington, and said that Jason might be asked to take a lie detector test. This conversation was taped. The tape and a transcript of it were admitted in evidence. Mrs. Stevens testified that Petitioner called her home a third time. This time. again posing as a prosecutor. Petitioner told Mrs. Stevens that Petitioner had passed a polygraph with flying colors, that the prosecution had a strong perjury case against Jason Stevens, and that, if Jason was caught perjuring himself, he would personally see that Jason ended up in prison for a fifteen-year prison term. This conversation was not recorded.
D. Final argument of prosecutor
The prosecutor argued that the facts showed Jason Stevens was a victim of an armed robbery. The prosecutor contended that the credibility of Jason Stevens' version of the crime was evidenced by Jason's low intelligence and the fact that he told police he had been robbed at gunpoint when he initially reported the crime. The prosecutor also argued that Petitioner's credibility was undermined by the repeated lies he told Mrs. Stevens during his phone calls made while posing as a prosecutor and characterized Petitioner's entire testimony as an attempt to con the jury into convicting him of a much less serious offense than the one he actually committed. The prosecutor also called on the jury to consider how they would have reacted to being confronted as Jason Stevens allegedly was. Defense counsel objected, arguing that it was improper to ask the jury to put themselves in the position of the alleged victim. The trial judge sustained this objection.
Jason Stevens testified that he was twenty-one years old. When asked to spell his name for the record Jason testified that he did not know how to spell his middle name which was Douglas. Deborah Stevens testified that Jason Stevens was learning-disabled, had tested at about a second or third grade reading level, and attended special education classes throughout school. She further testified that Jason was a licensed driver end able to find his way around by car.
E. Final argument of defense counsel
Defense counsel argued that 1) Petitioner would not have been so foolish as to commit an armed robbery of someone such as Jason Stevens who did not appear to have much money, 2) Petitioner had a job and about two-hundred dollars in his possession and, hence, had no reason to commit armed robbery, 3) testimony by Meijer employees indicated that Jason Stevens had expressed interest in buying stolen stereo parts, 4) the police would have found the gun if Petitioner had used one, and 5) Jason Stevens made up the story that Petitioner robbed him at gunpoint to explain why he returned home with neither his mother's money, nor the plumbing parts and gift for his sister he went to buy.
F. Jury verdict and sentence imposed
The jury found Petitioner guilty of unarmed robbery and not guilty of felony firearm. Alter Petitioner pleaded guilty to being a fourth felony habitual offender, he was sentenced to a term of twenty to thirty years imprisonment.
III. Procedural History
Petitioner appealed his convictions and sentence as of right to the Michigan Court of Appeals. In his appeal of right Petitioner contended that 1) prosecutorial misconduct deprived him of a fair trial, 2) the trial Judge's refusal to instruct the jury on the crime of larceny by trick deprived him of due process of law, 3) the trial court abused its discretion by admitting a tape recording and transcript thereof which contained a reference to a polygraph test, and 4) his sentence was disproportionate to his crime and surrounding circumstances. The Michigan Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished opinion. People v. McDonald, Michigan Court of Appeals No. 17000 (January 10, 1997). The Michigan Supreme Court denied Petitioner's application for leave to appeal. People v. McDonald, Michigan Supreme Court No. 109498 (March 31, 1998).
On or about September 16, 1998, Petitioner filed the present application for a writ of habeas corpus, raising the following claims:
I. Petitioner's Fourteenth and Sixth Amendment rights were violated by the trial court's refusal to give petitioner's properly requested July instruction on the crime of larceny by trick.
II. The trial court violated Petitioner's Fourteenth Amendment right to due process of law and fundamental fairness by admitting into evidence a tape recording which contained references to polygraph tests and results.
For the reasons explained below, the petition will be denied.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996) ("AEDPA" or "the Act"), govern this case because petitioner filed his habeas corpus petition after the effective date of the Act. Lindh v. Murphy, 521 U.S. 320 (1997).
As amended, 28 U.S.C. § 2254 (d) provides that:
(d) 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 proceeding.
The United States Supreme Court has recently addressed the question of the proper interpretation of the amendments to the habeas corpus statute concerning entitlement to relief. The Supreme Court has stated that "[i]n sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). The Supreme Court summarized the standard of review as follows:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 120 S.Ct. at 1523.
"[A} federal habeas making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 120 S.Ct. at 1521. The reviewing court should not inquire whether all reasonable jurists would agree that the state court's decision was reasonable or unreasonable. The reviewing court must be aware that "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 120 S.Ct. at 1522. However, a postulated complete unanimity of the entire federal judiciary that a state court decision is unreasonable is not required before the reviewing court may conclude that the decision in question includes at least one dispositive unreasonable application of clearly established federal law.
Where constitutional trial error has been shown and the reviewing court concludes that the error had a substantial and injurious effect or influence in determining the jury's verdict a state court ruling finding such error harmless beyond a reasonable doubt is outside the realm of plausible, credible outcomes and the petitioner is entitled to habeas relief. Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999). "[A] state court's application of federal law is unreasonable and a writ may issue only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible, credible outcomes." Barker, 199 F.3d at 871. "When a habeas court is in grave doubt as to the harmlessness of an error that affects substantial rights, it should grant relief." O'Neal v. McAninch, 513 U.S. 432, 445 (1995).
The federal court reviewing a habeas petition must apply the presumption of correctness to evidence-supported factual determinations made by a state court West v. Seabold, 73 F.3d 81, 83 (6th Cir. 1996); cert den. 518 U.S. 1027 (1996); Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989), cert denied, 495 U.S. 950 (1990). This presumption may only be overcome by the presentation of clear and convincing evidence by the petitioner. 28 U.S.C. § 2254 (e)(1).
IV. Discussion
A. Claim I — Jury Instruction Claim
Petitioner contends that he was deprived of his constitutional right to a fair trial under the Fourteenth and Sixth Amendments when the trial court refused to instruct the jury on the elements of the lesser included offense of larceny by trick. This claim does not merit habeas relief for several reasons.
In general, the failure of a state trial court to instruct a jury on a lesser included offense in a noncapital case is not an error cognizable in federal habeas corpus review. Bagby v. Sowders, 894 F.2d 792, 797 (6th 1990); Prather v. Rees, 822 F.2d 1418, 1423 (6th Cir. 1987). Such a claim may be cognizable if the failure to instruct on a lesser included offense was "such a fundamental defect as inherently results in a miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." Bagby, 894 F.2d at 797.
Petitioner was charged with armed robbery and convicted of unarmed robbery. The jury "was instructed on the elements of armed robbery, unarmed robbery, larceny of a person, and obtaining money by false pretenses. Examination of the elements of these crimes and the facts of Petitioner's case shows that failing to instruct the jury on the elements of larceny by trick did not deprive him of due process.
The essential elements of armed robbery are 1) an assault, 2) felonious taking of the property from the victim's person or presence. with the intent to permanently deprive the owner of the property, 3) while the perpetrator is armed with a dangerous weapon as described in the statute, or while the perpetrator physically communicates that he is armed with a dangerous weapon such that the victim reasonably believes that is the case. People v. Parker, 417 Mich. 556 (1983); People v. Avery, 115 Mich. App. 699 (1982). The assault element is satisfied if the defendant committed an unlawful act which placed another in reasonable apprehension of receiving an immediate battery. People v. Sanford, 402 Mich. 460 (1978). The elements of unarmed robbery are 1) an assault, 2) felonious taking of the property from the victim's person or presence, with intent to permanently deprive the owner of the property, 3) while not armed with a dangerous weapon and not communicating that the defendant is armed with a dangerous weapon. People v. Denny 114 Mich. App. 320 (1982). Considered in the context of lesser included offenses, being unarmed is that absence of the element of the use of a dangerous weapon. People v. Chamblis, 395 Mich. 408 (1975). It is the use or absence of use of a dangerous weapon which distinguishes armed robbery from unarmed robbery.
Larceny from a person is the felonious taking of property from a person with intent to permanently deprive the owner of the property. It is the element of force, or an assault that distinguishes unarmed robbery from larceny from a person. M.C.L. § 750.357; People v. LeFlore, 96 Mich. App. 557 (1980); People v. Chamblis, 395 Mich. at 424. If the perpetrator uses force or an assault to accomplish the felonious taking of the property of another from his person or presence, he has committed robbery. Where the perpetrator feloniously takes the property of another from his person or his presence, but does not use force or an assault to accomplish the taking, he has committed larceny from a person.
The elements of the crime of obtaining money by false pretenses are I) a false representation of an existing fact, 2) knowledge by the defendant of the falsity of the representation. 3) use of the false representation with an intent to deceive, and 4) detrimental reliance on the false representation by the victim. M.C.L. 750.218; People v. Matthews, 124 Mich. App. 23 (1983); People v. Wogaman, 133 Mich. App. 823 (1984). "In Michigan, the crime of false pretenses is defined as obtaining property with the intent that title should pass. Larceny by trick involves the criminal taking of property when the true owner has no intention of giving ownership but only intends to give up possession." People v. Niver, 7 Mich. App. 652, 655 (1967) (citing People v. Martin, 116 Mich. 446, 448 (1898)). In Niver, the victim sold his Cadillac car with the intent that both title and possession pass to the defendant, who gave the victim a bogus check for the car. However, if Niver had feloniously obtained the car from the victim by asking to borrow it and never returning it, he would have committed the crime of larceny by conversion or larceny by trick, because the victim would have intended only to give possession of the car to Niver, not possession and title.
In the case at bar, the trial court refused to instruct the jury on larceny by trick, because the trial court found that the facts testified to by Petitioner were that the victim intended to give him both possession and title to the eighty dollars in exchange for a CD player "worth considerably more. Petitioner testified that the victim gave him the eighty dollars in reliance on his representation that he would receive the stolen CD player at a bargain price. Thus, the trial court found that under Michigan law Petitioner was entitled to an instruction on the crime of obtaining property by false pretenses, not larceny by trick. According to Petitioner's version of the events, the victim was induced to give him the cash on the basis of fraud or false representation. The victim intended to give Petitioner both possession and title to the cash, in reliance on a false promise that he would receive a valuable CD player. The victim did not expect to get his money back, or retain title to it. According to Petitioner, the victim expected to get a CD player for his eighty dollars. Thus, the trial court correctly ruled that the facts as alleged by Petitioner supported a charge of obtaining property by false pretenses and not a charge of larceny by trick.
"Due process requires that a lesser offense instruction be given only when the evidence warrants such an instruction." Hopper v. Evans, 456 U.S. 605, 611 (1982). The failure to give a lesser included offense instruction does not rise to the level of constitutional error "when the failure was correct as a matter of state law. Mann v. Gray, 622 F. Supp. 1225, 1231 (N.D. Ohio 1985). In the present case, the trial judge's refusal to give the larceny by trick instruct on was correct as a matter of Michigan law. The evidence as alleged by Petitioner amounted to a crime of false pretenses, not larceny by trick. Consequently, for this reason it was not fundamentally unfair or a deprivation of due process to fail to give the larceny by trick instruction.
Furthermore, as the Michigan courts have noted, the distinction between the crimes of obtaining property by false pretenses and larceny by trick is a "fine distinction," based on whether the owner intends to give up possession and title to the property, or only possession. Niver, 7 Mich. App. at 655. Although it is clear in the present case that Petitioner's testimony alleged the crime of obtaining property by false pretenses, "it is sometimes difficult to determine in a given case whether the offense is larceny or whether it is the crime of false pretenses." Martin, 116 Mich. at 450. However, the distinction between robbery and false pretenses is not a fine distinction. It was not difficult for the jury to determine that Jason Stevens alleged that Petitioner committed robbery whereas Petitioner admitted only that he committed the crime of obtaining property by false pretenses. The determination that Petitioner was guilty of robbery was a factual determination by the jury which accepted Jason Stevens's version of the events and rejected Petitioner's.
It is correct that Jason Stevens testified that Petitioner pointed some type of gun at him, but the jury convicted Petitioner of unarmed robbery. Nonetheless, although the jury found there was reasonable doubt whether Petitioner had been armed with a gun, the jury clearly credited Stevens's basic version of the crime while rejecting Petitioner's. It was not necessary for the jury to credit every aspect to Jason Stevens's testimony to properly find Petitioner guilty of unarmed robbery beyond a reasonable doubt.
The jury convicted Petitioner of unarmed robbery after having been instructed on armed robbery, unarmed robbery, larceny from a person, and obtaining money by false pretenses. The jury's verdict was a finding that Petitioner obtained Jason Stevens's money by an assault, not by fraud or deceit or false representation. That is, Petitioner used force and/or threats, and did not engage in a "con game." There is no meaningful possibility that a jury which convicted Petitioner of robbery and rejected the charge of obtaining property by false pretenses would have convicted Petitioner of larceny by trick if given the opportunity. Thus, there is no possibility that the trial judge's failure to give the larceny by trick instruction (assuming that it was error) had a substantial and injurious affect on the outcome of the trial. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
Furthermore, in determining whether jury instructions violated a defendant's due process rights to a fair trial, the reviewing court must consider the charge to the jury in its entirety. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). To rise to the level of a constitutional violation, the allegedly erroneous instruction must so affect the entire trial that a conviction violates due process. For purposes of a constitutional claim, it is insufficient that the instructions are "undesirable, erroneous, or `even universally condemned.'" Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Petitioner does not allege that the jury instructions regarding false pretenses and unarmed robbery or any of the other jury instructions were incorrect. Review of the record shows that they were correct. Nonetheless, despite the fact that Petitioner admitted he engaged in false pretenses and denied he committed a robbery, the jury convicted him of robbery. Consequently, the jury instructions did not violate due process of law. Any error in failing to instruct the jury on the crime of larceny by trick did nor deprive Petitioner of a fair trial,
This court concludes that the Michigan Court of Appeals decision affirming the trial court's refusal to instruct the jury on the crime of larceny by trick was a reasonable application of clearly established law federal law as determined by the United States Supreme Court.
Accordingly, for all of the above reasons, Petitioner's claim that the trial court's refusal to instruct the jury on the crime of larceny by trick deprived him of due process and a fair trial is denied.
B. Claim II — Admission of tape recording mentioning polygraph test results
Petitioner contends that he was denied due process of law by the action of the trial judge in admitting into evidence a tape recording of a conversation in which Petitioner — while misrepresenting himself as an assistant prosecutor — falsely told the victim's mother that he (Petitioner) had taken and passed a polygraph examination. This issue "lacks merit but not chutzpah." United States v. Thompson, 126 F.3d 1032, 1034 (7th Cir. 1997).
Petitioner cites People v. Rocha, 110 Mich. App. 1 (1981), for the principle that the results of a polygraph examination are not admissible at trial in Michigan. It is correct that neither the fact of the taking of a polygraph examination, nor the results thereof, are admissible at trial under Michigan law. People v. Barbara, 400 Mich, 352 (1977). However, no evidence of the actual taking of a polygraph examination or of the actual results of a polygraph examination was admitted at Petitioner's trial. Thus, even if admission of such evidence would constitute federal constitutional error. no such error occurred.
Habeas corpus relief is available only where the petitioner shows that he has been prejudiced by a violation of his federal constitutional rights. Smith v. Phillips, 455 U.S. 209; 221 (1982); Pulley v. Harris, 465 U.S. 37, 41 (1983); Estelle v. McGuire, 502 U.S. 62 (1991). "Federal habeas actions do not lie for mere errors of stare law." Stephens v. Miller, 13 F.3d 998, 1001 (7th 1994) (en banc). In the present case, Petitioner has not shown the violation of federal or state law. This Court also notes that mere mention of a polygraph test without more, even where one was actually administered, does not justify a mistrial wider Michigan law. People v. Johnson, 396 Mich. 424 (1976). Additionally, while results of polygraph examinations are generally inadmissible, in limited circumstances a federal district court maw admit evidence of a party's willingness to take a polygraph examination. United States v. Scarborough, 43 F.3d 1021, 1025 (6th Cir. 1994). This indicates that a defendant's constitutional rights are not necessarily violated by a reference to actual polygraph testing which may have been offered or requested. It follows that admission of evidence of Petitioner's reference to polygraph testing which was never actually offered, requested, or administered is not a constitutional violation.
What was admitted at trial was evidence of Petitioner's attempt to tamper with a witness. Petitioner telephoned Stevens's home via three-way calling and spoke to Jason Stevens's mother. Deborah Stevens. Petitioner — misrepresenting himself as an assistant prosecutor — tried to convince Deborah Stevens that 1) there were important inconsistencies in her son's version of the incident which could be found in the police report, 2) Petitioner himself had taken and passed one or more polygraph examinations concerning the incident, 3) Jason Stevens might be required to take a polygraph examination, and 4) Jason Stevens would face prosecution and imprisonment for perjury if it was determined that his version of the crime was found not to be truthful.
Petitioner has cited no oases indicating that a defendant has a constitutional right to tamper with a witness, make implied threats to a witness, misrepresent himself as a prosecutor or assistant prosecutor, or harass a witness. On the contrary; tampering with, threatening and/or harassing a witness and misrepresenting oneself as a prosecutor are crimes. Evidence that a defendant committed these crimes is admissible at trial when the defendant testifies, because evidence that the defendant committed these acts is relevant to the credibility of his testimony. Mich. R.E. 402. Evidence of threats to a witness is also admissible as tending to show consciousness of guilt. Phillips v. United States, 334 F.2d 589 (9th Cir. 1964); United States v. Queen, 132 F.2d 991 (4th Cir. 1997). Prosecutorial accusations that a defendant has tampered with a witness are improper unless they are supported by evidence. Hall v. United States, 419 P.2d 582 (5th Cir. 1969). They are not improper where they are supported by evidence. The fact that Petitioner incorporated into his witness-tampering false assertions that he had taken and passed a polygraph exam concerning his crime and false assertions that the victim might be required to take a polygraph exam does not render evidence of this witness tampering and threatening inadmissible. This Court concludes that the Michigan Court of Appeals decision denying Petitioner's claim that admission of the evidence of his witness-tampering telephone call to the Stevens home (including the part of the call concerning Petitioner's misrepresentations about non-existent polygraph examination results) was a reasonable application of controlling federal constitutional law. Accordingly, Petitioner's claim that he was denied due process by admission of evidence (including the tape and transcript of one telephone call) about his attempted witness tampering which included his own reference to non-existent polygraph test results is denied.
IV. Conclusion
None of Petitioner's claims merit habeas corpus relief. Therefore, the petition must be denied. Accordingly.
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.