Opinion
Civil Action No. 03-311-SLR.
August 31, 2004
Romayne O. Jackson, pro se petitioner.
Loren C. Meyers, Chief of Appeals Division, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.
MEMORANDUM OPINION
I. INTRODUCTION
Petitioner Romayne O. Jackson is a Delaware inmate in custody at the Sussex Correctional Institution in Georgetown, Delaware. Currently before the court is petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 1) For the reasons that follow, the court will dismiss his application.
II. FACTUAL AND PROCEDURAL BACKGROUND
In May 1998, a Delaware Superior Court jury convicted petitioner of second degree assault, second degree robbery, two counts of second degree conspiracy, resisting arrest, and felony receipt of stolen property. See Jackson v. State, 734 A.2d 641 (Del. May 26, 1999). In June 1998, petitioner pled guilty to possession of cocaine. He was sentenced to one year imprisonment on the cocaine possession charge, suspended for one year of probation. For the robbery conviction, petitioner was sentenced to five years imprisonment, suspended after one year, for a total of four years at a halfway house and probation. The aggregate term of imprisonment for these two convictions is six years.
Neither the state record nor the published state court opinions indicate the sentences imposed for the other four convictions (second degree assault, two counts of second degree conspiracy, resisting arrest, and felony receipt of stolen property). However, petitioner does not challenge these sentences or the VOP sentences imposed with respect to these convictions.
In September 2001, probation officers charged petitioner with committing new criminal offenses, failing to report as instructed, and using controlled substances. In January 2002, the Delaware Superior Court held a violation of probation hearing ("VOP") where, represented by counsel, petitioner admitted the violations. Petitioner's probation officer recommended a total sentence of ten years imprisonment, with sixteen months credit for time served on the robbery sentence. (D.I. 14, Jan. 10, 2002 Sentencing Transcript, at 7-8, attached to Motion to Affirm in Jackson v. State, No. 31, 2002) Petitioner's attorney contended, however, that the probation officer's sentencing recommendation was excessive. After determining that petitioner did violate his probation, the Superior Court revoked his probation for five of his original convictions and sentenced him to a total of seven years imprisonment with credit for sixteen months previously served. Id. at 14. The Delaware Supreme Court affirmed this decision. Jackson v. State, 2002 WL 31084260 (Del. Sept. 16, 2002).
Petitioner admitted violating the probation conditions for all of the original six convictions.
A total of seven years of imprisonment was imposed for violating the probation conditions for five of the original 1998 convictions. (The sentencing transcript indicates that one violation was discharged). The VOP sentence imposed for the cocaine possession VOP was six months at Level 5, and the VOP sentence imposed for the robbery VOP was five years at Level 5, with credit for sixteen months. (D.I. 14, January 10, 2002 VOP Hearing Transcript, at 13-14) Only the VOP sentences imposed for the cocaine possession and robbery convictions are the subject of petitioner's habeas petition.
Thereafter, in October 2002, petitioner filed with the Delaware Superior Court a motion to review one of the VOP sentences imposed in January 2002. He contended that the VOP sentence imposed in connection with the cocaine possession charge was incorrect because his original 1998 sentence was for one year of imprisonment, but that the VOP sentence was for five years of imprisonment. The Superior Court denied the motion as time-barred. However, the Delaware court noted that the VOP sentences for the cocaine possession and the second degree robbery had been inadvertently switched in the sentencing orders, and corrected the misnumbered sentencing orders. As a result, petitioner's VOP sentence for the cocaine possession was six months of imprisonment, and the sentence for the second degree robbery was five years of imprisonment (reduced by sixteen months credit for previously served time).
Petitioner's sentence on his cocaine possession conviction was for one year of imprisonment, whereas the VOP sentence for the cocaine possession was for six months of imprisonment.
Petitioner appealed, arguing that the five year VOP sentence for his cocaine conviction violated double jeopardy, because his original sentence was only for one year of imprisonment at Level V. The Delaware Supreme Court affirmed the Superior Court's denial of the motion to review the sentence, and denied petitioner's double jeopardy claim as meritless. Jackson v. State, 817 A.2d 804, **1 (Del. Feb. 4, 2003).
Thereafter, petitioner filed the habeas application currently before the court, asserting one claim: the VOP sentence for his cocaine conviction (five years at Level 5) violates the equal protection, due process, and double jeopardy clauses of the constitution because he was originally sentenced to only one year at Level 5 incarceration, to be suspended for one year at Level 2. (D.I. 1)
Respondents' answer asks the court to dismiss petitioner's double jeopardy claim for failing to satisfy § 2254(d) (1), and to dismiss his due process and equal protection claims as procedurally barred from federal habeas review. (D.I. 12)
Petitioner filed a response to respondents' answer, alleging that: (1) the transcripts do not reflect an inadvertent switching of numbers; (2) the Department of Correction records indicate that petitioner is still serving a five year sentence for the cocaine VOP; and (3) the probation officer and respondents presented misleading information at the VOP sentencing hearing. (D.I. 16) Petitioner also asks the court to consider a "scenario" where the state is covering up its mistake and correcting a sentence to its benefit. (D.I. 19.)
Petitioner's federal habeas petition is now ready for review.
III. GOVERNING LEGAL PRINCIPLES
A. The Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "to reduce delays in the execution of state and federal criminal sentences . . . and to further the principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 206 (2003) (internal citations and quotation marks omitted). AEDPA increases the deference federal courts must give to state court decisions, primarily by imposing procedural requirements and standards for analyzing the merits of a habeas petition. See id. at 206. Generally, AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
B. Exhaustion and Procedural Default
Under AEDPA, a federal court may consider a habeas petition filed by a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Absent exceptional circumstances, a federal court cannot review a habeas petition unless the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). AEDPA states:
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 unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254 (b) (1).
A petitioner "shall not be deemed to have exhausted remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). The exhaustion requirement is based on principles of comity, requiring the petitioner to give "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 844-45;Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). Generally, the petitioner must demonstrate that the habeas claim was "fairly presented" to the state's highest court, either on direct appeal or in a post-conviction proceeding. See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citations omitted); Coverdale v. Snyder, 2000 WL 1897290, at *2 (D. Del. Dec. 22, 2000).
To satisfy the fair presentation requirement, the petitioner must have asserted a legal theory and facts to the state courts that are substantially equivalent to those contained in the federal habeas petition. Coverdale, 2000 WL 1897290, at *2;Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). Fair presentation also requires that the claim be raised in a procedural context in which the state courts can consider it on the merits. Castille v. Peoples, 489 U.S. 346, 351 (1989). However, provided that the petitioner did, in fact, fairly present the federal claim to the state's highest court, the exhaustion requirement is satisfied even if the state court did not actually consider or discuss the federal issue. See Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules prevent him from seeking further relief in state courts. Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000); Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although deemed exhausted, such claims are nonetheless procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749 (1991); Lines, 208 F.3d at 160. A federal habeas court cannot review the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice resulting therefrom, or that a fundamental miscarriage of justice will result if the court does not review the claims. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at 750-51 (1999); Caswell v. Ryan, 953 F.2d 853, 861-62 (3d Cir. 1992).
C. Standard of Review Under AEDPA
Once a federal court determines that a claim is exhausted and not procedurally defaulted, it must next determine the appropriate standard for reviewing the habeas claim. If a state court adjudicated the federal habeas claim on the merits, then the federal habeas court can only grant habeas relief when the state court's 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)(1), (2); Williams v. Taylor, 529 U.S. 362, 412 (2000); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). A state court has adjudicated a claim on the merits for the purposes of 28 U.S.C. § 2254(d)(1) if the state court "decision finally resolv[es] the parties' claims, with res judicata effect, [and] is based on the substance of the claim advanced, rather than on a procedural, or other ground." Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004) (internal citations omitted). In short, "a failure to decide affects the standard of review; a failure to discuss (either at all or to the satisfaction of the habeas petitioner or the federal court) is irrelevant." Id.
AEDPA also requires a federal court to presume that a state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1). A petitioner can only rebut this presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El, 537 U.S. at 341 (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000).
IV. DISCUSSION
A. Petitioner's double jeopardy claim does not warrant federal habeas relief under § 2254(d)(1)
Petitioner states "that the court sentenced [him] to 5 years Level 5 incarceration, when the original sentence was 1 year Level 5 suspended for 1 year at Level 2." (D.I. 1.) The court interprets petitioner's double jeopardy claim as a challenge to the imposition of the five year VOP sentence for cocaine possession because it was greater than the original one year sentence imposed in 1998 for the cocaine possession conviction itself. Respondents appear to interpret petitioner's claim as a challenge to the entire VOP proceeding, especially the correction of the sentencing error.
To the extent petitioner's argument can be interpreted as a challenge to the application of Delaware Superior Court Criminal Rule 36, this claim is not subject to federal habeas review.Estelle v. McGuire, 502 U.S. 62, 67-8 (1991) (it is not the province of a federal court to re-examine a state court's determination of state law); Johnson v. Rosemeyer, 117 F.3d 104, 109 (1997) ("it is well established that a state court's misapplication of its own law does not generally raise a constitutional claim").
Respondents correctly assert that petitioner exhausted state remedies with respect to his double jeopardy claim by presenting it to the Delaware Supreme Court on post-conviction appeal. The Delaware Supreme Court rejected petitioner's double jeopardy claim on the merits. Jackson, 817 A.2d 804 (Del. 2003); see Rompilla, 355 F.3d at 247 (where adjudication was on the merits despite state court's failure to cite or apply federal law). As such, this court must apply the deferential standard of review contained in § 2254(d)(1) and determine whether the Delaware Supreme Court's decision either was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. 362; Werts v. Vaughn, 228 F.3d 178 (3d Cir. 2000), cert. denied, 532 U.S. 980 (2001) (holding that the Third Circuit's interpretation of § 2254(d)(1) in Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 880 (3d Cir. 1999) (en banc), is in accord with Williams).
Where, as here, the state court does not expressly analyze the merits of petitioner's claim in light of Supreme Court precedent, the state court decision will only be "contrary to" clearly established Federal law if the reasoning or result of the state court decision contradicts the governing law set forth in the Supreme Court's cases. Early v. Packer, 537 U.S. 3, 81 (2002) (announcing the standard where a state court does not expressly analyze the merits of petitioner's claim in light of Supreme Court precedent). To determine whether the Delaware Supreme Court's decision was an "unreasonable application" of Supreme Court precedent, this court must objectively evaluate the state court decision on the merits, and determine whether the state court reasonably applied Supreme Court precedent to the facts of petitioner's case. See Williams, 529 U.S. at 412-13;Matteo, 171 F.3d at 891. Before reaching either prong, the court must first identify the clearly established Supreme Court precedent governing petitioner's claim. Werts, 228 F.3d at 197.
The Double Jeopardy Clause "protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense."United States v. Baird, 63 F.3d 1213, 1215 (3d Cir. 1995). Petitioner's claim invokes the third prohibition: multiple punishments for the same offense.
It is well-settled that the revocation of parole or probation and the corresponding imposition of confinement does not violate the Double Jeopardy Clause because "these criminal sanctions do not involve the increase of a final sentence, and . . . defendant is aware at the original sentencing that a term of imprisonment later may be imposed." Ralston v. Robinson, 454 U.S. 201, 220 n. 14 (1981) (citing United States v. DiFrancesco, 449 U.S. 117, 137 (1980)). However, the Double Jeopardy Clause prevents a sentencing court from prescribing a greater punishment than that intended by the legislature, Garrett v. United States, 471 U.S. 773, 780 (1985), and it also prevents a court from increasing a valid sentence after a defendant has started serving his punishment. In re Bradley, 318 U.S. 50 (1943); Hill v. United States ex rel. Wampler, 298 U.S. 460 (1936).
Nevertheless, a court may always correct an illegal sentence to make the sentence conform to the statutory minimum or to the original intent of the sentencing judge without violating the double jeopardy clause. Bozza v. United States, 330 U.S. 160 (1946). "[C]ourts [also] have the power and duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake." American Trucking Associations, Inc. v. Frisco Transportation Company, 358 U.S. 133, 145 (1958); Gagnon v. United States, 193 U.S. 451, 453 (1904). As stated by Justice Brennan in his dissent in U.S. v. DiFrancesco, 449 U.S. 117, 146 n. 4 (1980) (joined by Justice White, Justice Marshall, and Justice Stevens), "[u]nder my view of the double jeopardy protection against multiple punishments, a sentence may not be increased once a technically correct sentence has been imposed. I would distinguish correction of a technically improper sentence which the Court has always allowed." When there is a conflict between a written judgment and the oral pronouncement of the judgment, the oral pronouncement governs.See Hill v. United States ex rel. Wampler, 298 U.S. 460, 465 (1936).
Applying these principles to petitioner's situation demonstrates that the Delaware Supreme Court's denial of petitioner's double jeopardy claim was not contrary to, or an unreasonable application of, these clearly established Federal laws. The Delaware Supreme Court rejected petitioner's double jeopardy argument because it determined that the five year VOP sentence for the cocaine conviction was the result of an inadvertent clerical error and not a double jeopardy violation. The Delaware Supreme Court also held that the Superior Court's correction of the error was authorized under Delaware Superior Court Criminal Rule 36.
This court has independently reviewed the record and also concludes that the challenged VOP sentence was the result of a clerical error. The VOP sentencing transcript clearly reveals the judge's intent to sentence petitioner to six months imprisonment at Level 5 for his cocaine possession VOP, rather than five years imprisonment at Level 5. The aggregate term of incarceration originally imposed by the VOP judge was seven years, with sixteen months credit for time served. Even with the clerical error, the aggregate term of incarceration remained the same. However, six different sentencing orders were issued for petitioner's six different violations of his probation, and the criminal action numbers for the cocaine VOP and robbery VOP were switched on the sentencing orders. Once the Superior Court discovered the misnumbering, it corrected the clerical error and imposed the proper sentence. As such, the initial cocaine VOP sentence for five years was not an attempt to impose an additional sentence for the original conviction. Rather, the increased sentence was the result of a clerical mistake. Upon discovering the mistake, the Superior Court corrected the sentencing orders to effectuate its original sentencing intent. Neither the inadvertent sentencing error, nor the correction of the error, violated the Double Jeopardy Clause.
Further, to the extent the Delaware Supreme Court's determination (that the misnumbering constituted a clerical error) was a factual determination, this court is required to presume this determination to be correct. See 28 U.S.C. § 2254(e)(1).
Petitioner was originally convicted of two counts of second degree conspiracy. A separate VOP sentencing order was issued for each count.
In short, petitioner was not put "twice . . . in jeopardy for the same offense. The sentence as corrected imposes a valid punishment for an offense instead of an invalid punishment for that offense." Bozza v. United States, 330 U.S. 160, 167 (1947). Accordingly, the Delaware Supreme Court's denial of petitioner's double jeopardy claim does not contradict the principles established in the applicable Supreme Court precedent, nor does it constitute an unreasonable application of that precedent.
Although petitioner's double jeopardy claim does not warrant federal habeas relief, the court observes that petitioner's offender status sheet still lists his VOP sentence for cocaine possession (VN9609041301) as five years. (D.I. 16 at Exh. C.) The sheet indicates that the sentence for another probation violation (VN9709053901) was corrected instead. The court notes, however, that this status sheet is dated May 9, 2003. Respondents may want to inquire as to petitioner's current status to ensure the sentences accurately reflect the sentences imposed.
Although the correction may not have been made to the cocaine possession VOP sentence, the status sheet still indicates that petitioner's aggregate sentence is the same as originally imposed by the VOP judge: seven years.
B. Due process claim regarding misleading information at VOP hearing
Petitioner's reply contends that his probation officer and respondents presented misleading information at his VOP hearing regarding his completion of a drug treatment program and his failure to attend all weekly probation appointments. He appears to believe that this information affected the judge's sentencing decision. Broadly construing these claims, it appears that petitioner is attempting to assert a due process claim with respect to the entire VOP sentencing proceeding.
To the extent this claim is petitioner's attempt to amend his original habeas petition, the court grants the amendment.See Fed.R.Civ.P. 15(a).
Petitioner presented this claim to the Delaware Supreme Court in his appeal of the VOP hearing, thereby exhausting state remedies. The Delaware Supreme Court dismissed the claim as meritless. Jackson v. State, 2002 WL 31084260 (Del. Sept. 16, 2002). Thus, the court must determine if this dismissal was contrary to, or an unreasonable application of, clearly established Federal law. See § 2254(d)(1).
It is well-settled that revocation of probation hearings are only subject to the minimum requirements of due process. Black v. Romano, 471 U.S. 606, 612 (1985); United States v. Barnhart, 980 F.2d 219, 222 (3d Cir. 1992). These requirements include: (1) written notice of the claimed violations of probation; (2) disclosure to the probationer of evidence against him; (3) opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral and detached hearing body; and (6) a written statement by the factfinder as to evidence relied on and reasons for revoking probation. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).
Here, petitioner was represented by counsel at his VOP hearing, and he admitted that he had violated his probation. Petitioner does not contend that the allegedly erroneous information was not disclosed to him, nor does he contend that he was prevented from challenging the allegedly erroneous information at the VOP hearing. As such, his due process claim is meritless, and the Delaware Supreme Court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. This claim does not warrant federal habeas relief under § 2254(d)(1).
C. Petitioner's due process and equal protection claims with respect to the five year cocaine VOP sentence are procedurally barred
Petitioner contends that the five year sentence imposed for the cocaine possession VOP violated his due process and equal protection rights. Respondents contend that federal habeas review of petitioner's due process and equal protection claims is foreclosed by his procedural default of these claims at the state court level. As explained below, the court agrees.
Petitioner never presented these claims to the Delaware Supreme Court, thereby failing to exhaust state remedies. This failure to exhaust is excused, however, because state procedural rules prevent petitioner from pursuing further state court relief. See Coleman, 501 U.S. at 750; Lines, 208 F.3d at 160. In Delaware, "the failure to raise a legal issue in the text of the opening brief generally constitutes a waiver of that claim on appeal." Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993) (internal citations omitted); see also Del. Supr. Ct. R. 14(b)(vi). By omitting these claims in his post-conviction appeal, petitioner waived and abandoned them. See Somerville v. State, 703 A.2d 629, 631 (Del. 1997). Further, because petitioner raised these claims in a prior Superior Court proceeding, Superior Court Criminal Rule 61(i)(4) would bar any further consideration of the claims as formerly adjudicated.See, e.g., Kendall v. Attorney General of Delaware, 2002 WL 531221, at *4 (D. Del. Mar. 26, 2002). Consequently, further state relief is foreclosed, and these claims are deemed exhausted.
Although petitioner raised these claims in his motion to review his sentence, he did not raise them in his appeal of the Superior Court's denial of that motion. Petitioner also did not raise these claims in his appeal of the VOP hearing.
Although deemed exhausted, these claims are still procedurally defaulted, and federal habeas review is foreclosed unless petitioner establishes cause for his procedural default and prejudice resulting therefrom, or that a miscarriage of justice will result if the court refuses to hear the claims.See Coleman v. Thompson, 501 U.S. 722, 750-51 (1991);Harris, 489 U.S. at 262; Caswell v. Ryan, 953 F.2d 853, 860-61 (3d Cir. 1992). Here, petitioner has not demonstrated that an external impediment prevented him from presenting these claims in his post-conviction appeal, thereby failing to demonstrate cause for his procedural default. See Murray v. Carrier, 477 U.S. 478, 492 (1986). Because petitioner has not demonstrated cause, the court does not need to address the issue of prejudice.See Smith v. Murray, 477 U.S. 527, 533 (1986).
Moreover, petitioner has not alleged that he is actually innocent, nor has he presented any colorable evidence of his actual innocence. Thus, he has not demonstrated that a fundamental miscarriage of justice will result from failure to review this claim. Murray, 477 U.S. at 496 (to establish a miscarriage of justice, a petitioner must show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent"); Sweger v. Chesney, 294 F.3d 506, 522-24 (3d Cir. 2002) (a petitioner establishes actual innocence by proving that no reasonable juror would have voted to find him guilty beyond a reasonable doubt); Bousley v. United States, 523 U.S. 614, 623 (1998) (actual innocence means factual innocence, not legal insufficiency). As a result, federal habeas review of petitioner's due process and equal protection claims is unavailable.
V. CERTIFICATE OF APPEALABILITY
Finally, the court must decide whether to issue a certificate of appealabilty. See Third Circuit Local Appellate Rule 22.2. A certificate of appealability may only be issued when a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the denial of a constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the reasons stated above, the court concludes that petitioner is not entitled to federal habeas relief for any of his claims. Petitioner's double jeopardy claim and one due process claim do not provide a basis for federal habeas relief under 28 U.S.C. § 2254(d)(1), and his other due process claim and equal protection claim are procedurally barred. Reasonable jurists would not find these conclusions unreasonable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued.
VI. CONCLUSION
For the foregoing reasons, petitioner's application for habeas relief filed pursuant to 28 U.S.C. § 2254 will be denied.
An appropriate order will be entered.
ORDER
For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that:1. Petitioner Romayne O. Jackson's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (D.I. 1.) is DENIED.
2. The court declines to issue a certificate of appealability.