Opinion
No. C 02-4812 MJJ (PR).
July 5, 2005
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a California prisoner who filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After reviewing this petition, the Court dismissed Petitioner's restitution claim as not cognizable. The Court, however, ordered Respondent to show cause why the petition should not be granted on the basis of the Petitioner's remaining two cognizable claims. Respondent filed an answer, accompanied by a memorandum and exhibits, contending that the petition should be denied. Petitioner filed a traverse.
FACTUAL BACKGROUND
The California Court of Appeals detailed the events leading to Petitioner's conviction:
Theresa Talbot testified that she and Petitioner married in 1987, after the birth of their son. They divorced a year later, but after a brief separation during which Petitioner married another woman, they lived together until December 1995. They had a difficult relationship partly because Petitioner remained involved with the woman he had married with whom he had two children. Petitioner and Talbot fought all the time and Petitioner physically abused Talbot a great deal.
Petitioner owned a garment shop in Oakland, where Talbot also worked. In early November 1995, Talbot met Mark Moritz after Petitioner hired him to do some construction work at the garment shop. Talbot started talking to Moritz and, about two weeks after he started working at the shop, Talbot became romantically involved with him. At the end of November, Talbot decided to move out of Petitioner's house and in with Moritz. She left on December 2, 1995, but after petitioner told her he would not let her have their son, and would take him to Hong Kong (where Petitioner is from) if necessary, Talbot decided to return to Petitioner's house, and did so the next day, December 3, 1995.
On December 4, 1995, Talbot admitted to Petitioner that she was romantically involved with Moritz. Petitioner got angry and insisted she stop seeing Moritz. On December 6, Petitioner said he would kill Moritz if he saw him and Talbot together. On December 7, Petitioner told Talbot, "I better not catch you guys together. . . . Something very bad's going to happen to one of you."
On December 8, 1995, Talbot went with Petitioner to his shop. Later, Talbot told Petitioner she was going to hang curtains, but she actually went to meet Moritz. They rented a motel room at about 1 p.m., and she returned to the shop at about 5 p.m. Petitioner was mad and asked what took her so long; Talbot tried to convince him she had been out hanging curtains. Just before leaving the shop, at about 8 p.m., Talbot called Moritz and told him Petitioner was angry with her. After stopping in Chinatown to pick up food, Petitioner, Talbot, and their son drove home. Petitioner continued arguing and threatening to kill Mark if it turned out Talbot had been with him.
After eating, when Petitioner went into the living room to play video games with their son, Talbot took a cellular phone into their son's room and called Moritz at his sister's house. Moritz said Talbot had to leave before she got hurt; Talbot said she had to figure out a way to get her son away first. While she was still on the phone, Petitioner walked in the room and she put the phone down without disconnecting. Petitioner took from her hand a piece of paper with Moritz's phone numbers on it and ran out of the room.
Petitioner returned with a gun in his hand and threw Talbot to the ground. He held the gun to her head while he choked her. He also scraped the end of the gun against the side of her face. Just as she felt she was losing consciousness from being unable to breathe, he let up. Petitioner then jerked her up and guided her into their bedroom. He put down the gun and used a phone to dial the number on the paper; Talbot heard him ask for Mark. After he hung up, Petitioner told Talbot, "Mark's not there." Talbot said he was probably on his way over to Petitioner's house. Petitioner picked up the gun again and said, "You're not fucking going anywhere."
Petitioner was pointing the gun at her and Talbot was scared he was going to shoot her, so she tried to calm him down by putting her arms around him and pleading with him. He said, "It's too late for that." He shot the gun at the wall, toward the bedroom window, and then said, "Now we're going to have some fun." Petitioner then began aiming the gun at various parts of Talbot's body while she screamed and pleaded for her life. Talbot jumped under the comforter on the bed and dodged around while he continued to aim the gun at her. As she was screaming, she thought she heard someone call her name out front. She then heard the sound of glass breaking and heard Moritz yell, "hey" really loud.
Petitioner ran out of the bedroom to the living room, saying "God damn, son of a bitch." Talbot tried to stop him, but he jumped on the living room couch, put his arm out the broken window and fired the gun twice. Petitioner then went outside briefly; when he returned to the house, he told Talbot to call 911. She and Petitioner then went outside where she saw Moritz lying on the ground with police officers around him.
Romana Moritz, Mark Moritz's sister, was present while her brother had two phone conversations with Talbot on December 8, 1995. After the first conversation, he told his sister that Petitioner was being abusive to Talbot, that she was frightened, and that he had told her to call the police. About an hour later, Talbot called again. Moritz listened for a time and then said, "I'll be there," before hanging up. He told his sister that Petitioner was threatening Talbot and her son with a gun; he borrowed his sister's car and left. She understood that Moritz was planning to pick up Talbot and her son from their home in Oakland. Less than four minutes later, the phone rang again and a man with an Asian accent asked if Mark was there. When Ramona Moritz realized that it was Petitioner on the phone, she was frightened for her brother's safety, and so she said Moritz had just gone to the store.
Timothy Amey is a deacon of the Ephesian Baptist Church, which is located across 34th Street from Petitioner's home in Oakland. On the evening of December 8, 1995, he was attending a social event at the church, when, at about 9 p.m., he heard the sound of glass breaking outside. He and several other people ran outside, where Amey saw a man in the front yard of Petitioner's house, holding a crowbar near a broken window.
Through the window, he also saw a Caucasian woman trying to restrain an Asian man. The man with the crowbar said something as he faced the window. He then ducked around to the side of the house, then peeked in the window one more time before running toward the church, shouting to call the cops. A few seconds later, as Amey shepherded the people back into the church and closed the doors, he heard three or four gunshots. He immediately called 911. When Amey looked outside again, he saw the man with the crowbar lying in the street. He eventually saw the Asian man come out of the house and hand his gun to one of the police officers at the scene.
Warren Coleman was also at the church social event and also went outside after hearing the sound of glass breaking. He saw a man outside the house across the street from the church; he was banging with a bat or a crowbar on some bars on a window. Coleman heard someone inside the house say, "Get away from here, I have a gun." He then saw the man turn and run out of the yard yelling, "Call the police." When he heard gunshots, Coleman and the people he was with ran back into the church.
When Oakland police sergeant Charles Dove arrived at the scene, there was a group of people standing in front of the church on one side of the street and another group of people standing on the opposite side of the street. While he was bent over Moritz, a white female came up behind him; she was sobbing and she told him that "the man that did this is standing over there and he's got a gun." Dove looked over to where she had pointed and saw a male Asian (Petitioner) standing in front of the house across the street with a gun in his hand. Petitioner was looking at the body in the street; he had an angry scowl on his face and was standing in a "fighting stance." Dove went and took the gun from his hand. When Dove asked Petitioner what had happened, Petitioner said, "Look at my window. . . . [¶] I was protecting my family." Petitioner then admitted shooting Moritz.
Dr. Clifford Tscetter conducted an autopsy on Moritz's body and concluded that he had died from a gunshot wound in his chest. The bullet had entered his upper left arm on a horizontal plane and had traveled through the left lung, the aorta, and the right lung.Defense Case
Petitioner testified that after he hired Moritz to work in his garment shop, Moritz told Petitioner that if anyone threatened or tried to extort money from Petitioner, Moritz knew someone who could take care of the problem if Petitioner paid "a little money." Petitioner understood Moritz to mean he knew "[s]ome kind of drug people or whatever, some kind of organization. . . ." In the days before the shooting, after Talbot admitted that she was having sex with Moritz, Talbot twice told Petitioner that Moritz had said that if he could not have Talbot, he would kill Petitioner.
On the evening of December 8, 1995, Petitioner found Talbot in their son's room with a piece of paper with phone numbers on it; he also saw the cell phone on the floor. He realized she had been talking to Moritz, so he went to their bedroom and got a gun to try to scare her, to stop her from being with Moritz behind his back. He struggled with her and they both fell down. He put his hand on her neck, but then felt bad and let go. He also pointed the gun at her head. He then put the gun to his head and asked her if she wanted him to kill himself; she said no. Then they both got up and walked to their bedroom.
In their bedroom, Petitioner called one of the phone numbers on the piece of paper; Moritz's sister answered. After Petitioner asked to speak to Mark, his sister said he had gone Christmas shopping. Petitioner hung up and told Talbot Moritz was not there. She said he was probably on his way over to their house. Talbot then started describing sex with Moritz. She also said Moritz had some drug dealer or some kind of organization after Petitioner. Petitioner pointed the gun at Talbot's leg and told her to stick out her leg. He then told her to kneel down. She came and put her arms around him and told him she would stay in the shop all day and do what he wanted. Petitioner pointed the gun at the window and fired one shot to show her she had not scared him when she said Moritz had a drug dealer or organization after him. He was careful to shoot away from Talbot. She was screaming before and after he fired the shot.
One or two minutes later, Petitioner heard the living room window breaking. He told Talbot to call 911 and he went into the living room, where he immediately yelled, "I got a gun, go away." Talbot was holding him saying, "no, no." He saw a metal bar sticking through the window, but did not see a person. He got scared because Talbot had said Moritz had someone after him, so he shot at the broken window. He then went outside and saw somebody lying in the street. He went back inside, took the phone from Talbot, and said to get someone over there fast.
After the police arrived, Petitioner went outside and gave his gun to an officer. He did not realize that it was Moritz lying in the street. He told the officer what had happened and the officer put him in a police car and took him to the city jail. At no time on the night of December 8, 1995, did Petitioner intend to shoot another human being.People v. Wong, No. 126738, slip op. at 2-7 (Cal.Ct.App. May 3, 2000) (hereinafter "Slip Op.").
This Court substitutes "Petitioner" for "appellant" throughout the Court of Appeals's factual account.
Petitioner was charged by information with the murder of Mark Moritz on December 8, 1995, personally using a firearm and inflicting great bodily injury on his victim (count 1; Cal. Pen. Code §§ 187, 1203.06, 1203.075, 12022.5), corporal injury on a cohabitant with personal use of a firearm (count 2; §§ 273.5, 12022.5), and willful discharge of a firearm in a grossly negligent manner, also with an allegation of firearm use (count 3; §§ 246.3, 969f, 1192.7, subd. (c)(8)).
All further statutory references are to the California Penal Code unless otherwise indicated.
On February 11, 1998, Petitioner waived his right to a jury trial in exchange of a finding of no more than voluntary manslaughter on count 1 and a total sentence of no more than 21 years in state prison. Petitioner pleaded not guilty to all charges and denied all enhancements, was tried by the court, and testified in his own defense.
On March 9, 1998, the trial court found Petitioner guilty of voluntary manslaughter with personal use of a firearm (§§ 192(a), 12022.5), which is a lesser included offense of count 1, and also found Petitioner guilty of count 2 and count 3, both with personal firearm use.
On July 24, 1998, the trial court sentenced Petitioner to state prison for a sentence totaling 13 years. Petitioner's sentence included six years for the voluntary manslaughter conviction, with an additional four years for the firearm use enhancement; one year for the corporal injury on a cohabitant conviction, with an additional one year and four months for the firearm use enhancement; and eight months for the discharge of a firearm conviction.
Petitioner filed a direct appeal to the California Court of Appeal, contending that the evidence was insufficient to support a conviction for the discharge of a firearm count and that the trial court impermissibly subjected him to double punishment in imposing consecutive sentences for the infliction of corporal injury count and the discharge of a firearm count. On May 3, 2000, the court affirmed Petitioner's convictions and sentence.
On August 2, 2001, Petitioner filed a Petition for Writ of Habeas Corpus in the California Superior Court, which the court denied on August 7, 2001.
Petitioner filed a Petition for Review in the California Supreme Court alleging there was insufficient evidence to sustain the conviction for the discharge of a firearm count. On August 15, 2000, the court denied the Petition for Review.
On September 10, 2001, Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeals, which the court denied on September 14, 2001.
On July 10, 2002, the Supreme Court of California denied Petitioner's Petition for Writ of Habeas Corpus.
DISCUSSION
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district court may grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court only if 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).
Under the `contrary to' clause of 28 U.S.C. § 2254(d)(1), this Court may grant a writ if the "state court arrives at a conclusion opposite to 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."Williams (Terry) v. Taylor, 529 U.S. 362, 413 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 412-13.
Under 28 U.S.C. § 2254(d)(2), an unreasonable determination of the facts occurs where the state court fails to consider and weigh highly probative, relevant evidence, central to Petitioner's claim, that was properly presented and made part of the state-court record. Taylor v. Maddox, 366 F.3d 992, 1005 (9th Cir. 2004). Where a state court has not made a necessary factual finding, the reviewing court determines the fact de novo.Wiggins v. Smith, 539 U.S. 510, 531 (2003). A court must presume correct any factual determination made by a state court unless the Petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Legal Claims
On July 30, 2003, after reviewing the petition, this Court recognized as cognizable Petitioner's claim that his appellate counsel was ineffective and that there was insufficient evidence to sustain his conviction for grossly negligent discharge of a firearm.
I. Ineffective Assistance of Appellate Counsel
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out inStrickland v. Washington, 466 U.S. 668 (1984). Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). A violation of the Sixth Amendment right to counsel based on trial counsel's ineffectiveness requires a showing that counsel's performance was both deficient and prejudicial. Strickland, 466 U.S. at 686-93 (1984). A defendant therefore must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal.Miller, 882 F.2d at 1434 n. 9 (citing Strickland, 466 U.S. at 688, 694; Birtle, 792 F.2d at 849).
Although the right to the effective assistance of counsel at trial is guaranteed to state criminal defendants by the Sixth Amendment as applied to the states through the Fourteenth, see Lucey, 469 U.S. at 392, the Sixth Amendment does not address a defendant's rights on appeal; the right to effective state appellate counsel is derived purely from the Fourteenth Amendment's due process guarantee, see id.
Petitioner claims that his appellate counsel was ineffective because counsel failed to raise arguments of justifiable homicide, including self-defense or imperfect self-defense, and involuntary manslaughter on appeal. In support of these defenses, Petitioner argues that the trajectory of the bullet wound, which pierced through both of Mr. Moritz's lungs and heart, reveals that Mr. Moritz was standing adjacent to the window when he was shot, and not retreating from the home. The duty of the state appellate courts, however, is not to reweigh the evidence or make fresh factual determinations, but to evaluate whether or not an error of law has occurred, fundamentally prejudicing the conclusions of the lower courts. In re Jasmon O., 8 Cal.4th 398, 423 (1994); Lemelle v. Superior Court, 77 Cal.App.3d 148, 162 (1978). Reviewing courts must therefore presume the correctness of factual issues resolved by trial courts. The defenses of justifiable homicide or involuntary manslaughter were appropriate arguments to for trial counsel to make to the fact-finder in the trial court, in this case the trial judge. On appeal, however, appellate counsel would be urging the Court of Appeals to revisit the facts of the crime and make new factual findings over the presumption of correctness owed to the trial court's factual findings. Petitioner suggests no basis upon which the Court of Appeals could have overcome this presumption of correctness. Appellate counsel's decision not to urge the Court of Appeals to make new factual determinations against the presumptively correct trial court factual findings was simply a decision not to raise weak issues which had little to no chance of success. See Miller, 882 F.2d at 1434 (holding that weeding out weaker issues is widely recognized as a hallmark of effective appellate advocacy). As such, appellate counsel's choice to omit these issues in favor instead raise stronger, legal arguments does not equate to objectively incompetent or deficient assistance underStrickland.
To whatever extent that Petitioner means to argue that appellate counsel could have claimed that there was insufficient evidence to support a voluntary manslaughter conviction, such a claim is without merit. The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." See In re Winship, 397 U.S. 358, 364 (1970). Voluntary manslaughter requires, firstly, that a killing be unlawful such that it is neither justified by perfect self-defense, nor excused as an unintentional killing by accident or misfortune in the performance of a lawful act by lawful means with the exercise of due care; secondly, that the killing be intentional; and thirdly, that the killing occur upon a sudden quarrel or heat of passion. People v. Rios, 23 Cal.4th 450, 458, 460, § 192(a). Petitioner contends that there was insufficient evidence to prove the intent element in his voluntary manslaughter conviction. In support of this contention, Petitioner claims that he fired the gun toward the living room window in order to scare the intruder, and Petitioner could not know the identity of the intruder, nor get a clear shot, because the curtain was down and boxes in front of a table full of presents and a couch blocked Petitioner's pathway. Pet. at 17, 30. Furthermore, Petitioner argues that the unintentional killing was lawful because it occurred during an act of self-defense in the face of imminent danger. Pet. at 28.
First, sufficient evidence supports the trial court's finding that Petitioner intentionally killed Moritz, and not, as petitioner claims, that the killing was an unintentional result of warning shots fired in self-defense. Mr. Amey testified that he had seen Petitioner struggling with Ms. Talbot by the living room window, and Mr. Moritz running away from the house yelling, "call the cops" and scaling a fence before the gunshots fired. Resp't P. A., Cal. Sup. Ct. Rep. Tr. ("RT") at 222-28. Mr. Coleman also saw two figures in the living room window and witnessed Mr. Moritz climbing over the fence and running toward the church before the gun fired. Id. at 731. Petitioner testified and Mr. Coleman believed Petitioner shouted, "Get away, I've got a gun" before shooting Mr. Moritz, supporting the finding that Petitioner unreasonably believed he or his son's life was in danger before shooting Mr. Moritz. Id. at 725, 1046, 1321. Ms. Talbot testified that Petitioner had leapt onto the love seat and reached his arm outside the window, through the broken glass to shoot Mr. Moritz. Id. at 416-18. The three witnesses also testified to hearing multiple shots fired, supporting a finding of intent to shoot beyond the purpose of merely frightening the intruder. Id. at 422, 232, 736-37. This evidence supports the trial court's finding that Petitioner "manifest[ed] an intention to unlawfully kill a human being in firing the two shots from the living room window at the fleeing victim," and also possessed "an actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury" since "the shots were fired after the victim had left the window and was a distance away from the house." Id. at 1323. Ms. Talbot testified that Petitioner discovered that Ms. Talbot had been on the phone with Mr. Moritz minutes before the shooting, and had been choking Ms. Talbot and threatening her with the gun. Id. at 394-99. This evidence supports the trial court's finding that Petitioner was in a "heat of passion," an element of voluntary manslaughter. Id. at 1323. Mr. Amey and Mr. Coleman's view of Petitioner, Ms. Talbot, and Mr. Moritz at the front window from across the street supports the trial court's finding "that the curtain covering the window in question was at least partially down at that point," allowing Petitioner to see his target. Id. at 1321. The testimony of Ms. Talbot and of two disinterested parties, Mr. Amey and Mr. Coleman, provided the trial court with sufficient evidence to find beyond a reasonable doubt that the killing was intentional, and also that it occurred during a heat of passion.
There was also sufficient evidence to support the trial court's finding that Petitioner did not act in perfect self-defense. Justified killings done in perfect self-defense to prevent great bodily harm or death occur when "the circumstances [are] sufficient to excite the fears of a reasonable person" and when the party killing acts "under the influence of such fears alone," whereas unjustified killings done in imperfect self-defense result from unreasonable fear. Cal. Penal Code § 197, 198. Unreasonable fear of great bodily harm or death only negates the malice element of murder, but not the intent requirement of voluntary manslaughter, and thus imperfect self-defense generally mitigates murder convictions to voluntary manslaughter. People v. Flannel, 25 Cal.3d 668 (Cal., 1979). The testimony of Mr. Amey and Mr. Coleman, as well as Ms. Talbot, as described above, supported the trial court's finding that Mr. Moritz was shot as he was fleeing the house, when he posed no reasonable threat or imminent danger to Petitioner. This testimony was sufficient to find that Petitioner did not meet the reasonable fear requirement of perfect self-defense, but only fulfilled the unreasonable fear requirement of imperfect self-defense. See Cal. Penal Code §§ 197, 198.
If appellate counsel were to raise the claim of insufficient evidence to support the voluntary manslaughter conviction, upon reviewing the record, the Court of Appeals would almost certainly have agreed that sufficient evidence supports the conviction. Therefore, not raising such a claim was an objectively competent decision, and did not cause prejudice to Petitioner's within the meaning of Strickland. Petitioner's claim of ineffective assistance of appellate counsel is therefore DENIED.
II. Insufficient Evidence Regarding Discharge of Firearm Count
Petitioner claims that there was insufficient evidence to prove that he willfully discharged a firearm in a grossly negligent manner. A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324. The federal court determines only 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." See id. at 319. Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See id. at 324. If confronted by a record that supports conflicting inferences, a federal habeas court "must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." See id. at 326.
It is unreasonable to make a petitioner plead all facts proven at trial and argue that they were insufficient to support the verdict. An allegation that the evidence was insufficient to prove beyond a reasonable doubt an element of the crime is sufficient to warrant service of the petition. See Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983).
Under California law, a conviction for the willful discharge of a firearm in a grossly negligent manner is valid when a person unlawfully and "willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person." Cal. Penal Code § 246.3. Petitioner contends that the shot fired could not result in injury or death to a person because no one was within immediate shooting range when he fired the gun into the bedroom wall. Petitioner asserts that he deliberately shot away from Ms. Talbot, that the bullet lodged into the wall and could not harm anyone outside of the house, and that the street alongside the bedroom was known to be quiet.
Evidence of the location of the bullet and the residential character of the neighborhood was sufficient to support the trial court's finding beyond a reasonable doubt that the shot fired could have caused injury or death to a passerby. At the time the gun fired, a church social had been taking place across the street, see RT at 723, and even Petitioner concedes that "people were known to walk up and down the street" beyond the bedroom wall, see Pet. at 32. According to expert testimony, the bullet was close enough to the window to pierce the curtain, and was 4 feet, 11 inches above the ground. RT at 651, 688. It is therefore plausible that someone could have been walking along the sidewalk adjacent to Petitioner's bedroom when the gun fired, and the bullet could have shot through the window, rather than the wall. Such a bullet could have struck the passerby because the bullet was within the range of an average human body's height. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the firing of the gun posed a threat of injury or death to the public. Petitioner's claim of insufficient evidence to support conviction of the willful discharge of a firearm in a negligent manner is therefore DENIED.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED, as explained above. All pending motions are terminated and the clerk shall close the file.
IT IS SO ORDERED.