Opinion
Civil No. 00-CV-73414-DT
February 28, 2001
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
James Moore, ("petitioner"), presently confined at the Southern Michigan Correctional Facility in Jackson, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction and sentence on one count of armed robbery, M.C.L.A. 750.529; M.S.A. 28.797; one count of carjacking, M.C.L.A. 750.529a; M.S.A. 28.797(a); and one count of felony-firearm, M.C.L.A. 750.227b; M.S.A. 28.424(2). For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
At the time that petitioner filed this petition for writ of habeas corpus, he was incarcerated at the Brooks Correctional Facility in Muskegon Heights, Michigan.
I. BACKGROUND
Petitioner was convicted of the above offenses on May 1, 1997, following a bench trial in the Detroit Recorder's Court. The complainant, Sharnail Stallworth, testified that at approximately 12:00 a.m. on February 26, 1997, she was making a phone call at a gas station located on Schoolcraft Road in Detroit, Michigan. Stallworth had driven to the gas station in her car, a 1989 black Mercury Tracer. While she was making her phone call, a man she identified as petitioner approached and pointed a large automatic gun at her chest and demanded her money. When Stallworth informed him that she did not have any money, petitioner demanded her car keys. The victim threw the car keys at petitioner. Petitioner threatened to shoot Stallworth if she drew any attention to herself and also demanded that she get into the passenger's side of her car. Instead of getting into the car, Stallworth ran away as petitioner unlocked her car door. (Trial Transcript, hereinafter, "T", pp. 5-10).
Stallworth ran through an alley to the other side of the gas station and got inside of an eighteen wheeler tanker truck that was delivering gasoline to the station. Petitioner followed in her car, but then turned onto Outer Drive and drove away from the area. The victim immediately called police. Stallworth gave a description of petitioner to the police. On March 7, 1997, Ms. Stallworth positively identified petitioner as the robber at a lineup conducted at Detroit police headquarters. (T., pp. 11-13, 17). On cross-examination, Stallworth denied any prior acquaintance with petitioner and further denied paging petitioner on the evening of the robbery. (T., pp. 22-23, 25, 41).
Detroit police officer Denise Balinski responded to the call from the gas station. Officer Balinski testified that Stallworth appeared upset, but was able to provide her with a description of her assailant. Stallworth informed the police that she had never seen the perpetrator before. (T., pp. 46-48).
Detroit Police Officer Larry Barnett, Jr. testified that on March 6, 1997, he observed Stallworth's black Mercury Tracer being driven by petitioner, with a white female as the passenger. The vehicle failed to stop for a stop sign and Officer Barnett ran the license plate through the L.E.I.N. system. When the vehicle's license plate came back as stolen, Officer Barnett went to pull the car over. Petitioner refused to pull over and a chase ensued. When the car finally stopped, petitioner and the passenger bailed out. Petitioner was apprehended by Barnett's partner. (T., pp. 50-52).
After the prosecution rested, the defense called several witnesses. Charmaine Turner testified that she had recognized the victim, Ms. Stallworth, as having been at her mother's house about a year to a year and half prior to this incident. Ms. Turner had observed Stallworth at her mother's house in a chair with her shirt unbuttoned. At the same time, she indicated that petitioner was naked upstairs. Turner indicated that petitioner had been friends with her mother Althea Bell. (T., pp. 58, 60, 63-64, 66).
Althea Bell testified that she was petitioner's girlfriend. She indicated that she had seen Ms. Stallworth with petitioner in the housing projects. Ms. Bell further explained that Stallworth would call and page petitioner. Bell testified that she had seen Stallworth and petitioner together in a black Mercury Tracer. Bell also claimed that Stallworth had purchased illegal drugs in the projects on prior occasions. Bell also indicated that her daughter Charmaine Turner had told her about a time when a strange woman was in the house. (T., pp. 80-83). On cross-examination, Bell admitted that she was present at the 36th District Court on the day of petitioner's preliminary examination on this charge, but denied staying for the examination itself. (T., p. 85).
Petitioner testified that he met Ms. Stallworth in August of 1986 through friends. Petitioner claimed that he and Stallworth had a sexual relationship and that he would buy narcotics for her. Petitioner testified that on February 26, 1997, Stallworth paged him to meet him at a gas station. Petitioner claimed that he was going to give her drugs and money in exchange for the use of her car. Petitioner testified that Stallworth voluntarily gave him her car. Petitioner denied having a gun in his possession on the night in question. Petitioner testified that this was not the first time that Stallworth had lent him her car. Petitioner indicated that the reason he fled from the police on March 6, 1997 was because the woman in the car with him had told him to do so because she had drugs on her. (T., pp. 90-101).
The prosecution called the officer in charge of the case, Michelle Jones, as a rebuttal witness. Detective Jones stated that Althea Bell had been present in the courtroom in 36th District Court during petitioner's preliminary examination. (T., p. 103).
The trial court then asked that the victim be recalled and asked her a series of questions. In response to the questions from the court, Stallworth denied having sex with petitioner, loaning her car to him, or using drugs. Stallworth, in fact, indicated that she would be willing to take a test to show that she did not use drugs. Stallworth denied ever seeing petitioner before or knowing petitioner's girlfriend. (T., pp. 110-115).
The trial court found petitioner guilty of the charged offenses. In discussing the factors used to determine credibility, the court noted that these included such things as a person's demeanor, their evasiveness, and their willingness to answer truthfully. With respect to the issue of credibility, the court found that "complainant is going to win hands down on all of those issues." (T., p. 123). The court further noted that if one looked at the case on objective grounds, the victim had no interest in "burying the defendant", whereas petitioner's story made "a lot of sense in order to escape criminal responsibility." (T., p. 123). The court noted that he had heard "the pawned car notion" before as a defense to armed robbery cases, usually in connection with drugs. The court found that it made no sense for the victim to pawn her car to petitioner and then to immediately call the police, particularly if she had given the car away for drugs and money. The court also questioned why petitioner would go to the gas station and get the victim's car and leave her at the gas station. (T. "pp. 124-125). Finally, the court noted that when the police went to stop petitioner, he attempted to flee from them. The court found petitioner's flight from police to be "the strongest evidence of consciousness of guilt" on petitioner's part. (T. p. 125).
Procedural History .
Following his conviction, appellate counsel was appointed for petitioner and a brief on appeal was filed on his behalf with the Michigan Court of Appeals. The prosecutor's initial brief on appeal was stricken because it failed to conform to the requirements of M.C.R. 7.212 (A)(2)(b), because it lacked proof that service was made on the other parties to the appeal. People v. Moore, 205016 (Mich.Ct.App. April 16, 1998). Petitioner thereafter filed a motion to have his appellate counsel's brief stricken and to receive permission to proceed in pro persona. The Michigan Court of Appeals granted the motion to strike the appellant's brief and allowed petitioner to file his own brief. People v. Moore, 205016 (Mich.Ct.App. June 8, 1998). Petitioner thereafter filed his own brief on appeal. Petitioner also filed a motion for an evidentiary hearing on his ineffective assistance of counsel claim in the trial court, which was denied on the basis that the grounds stated in the motion were insufficient to require a hearing. People v. Moore, Detroit Recorder's Court No. 97-002340-01, Order dated June 22, 1998. Petitioner's subsequent motion to remand for an evidentiary hearing was denied by the Michigan Court of Appeals because petitioner had failed to provide the Court with an adequate affidavit or other offer of proof regarding the witnesses' testimony. People v. Moore, 205016 (Mich.Ct.App. August 12, 1998). Petitioner's conviction was affirmed on appeal. People v. Moore, 205016 (Mich.Ct.App. January 26, 1999); reh. den. 205016 (Mich.Ct.App. March 24, 1999); lv. den. 602 N.W.2d 581 (1999). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. Petitioner's Fourteenth Amendment rights to a fair trial under the due process of law were denied to him when the trial judge, acting as trier of fact in a bench trial, found that evidence of flight was sufficient to support a finding of guilty of the crimes of armed robbery, carjacking, and the possession of a firearm during the commission of a felony, to sustain petitioner's conviction, rendering petitioner's bench trial fundamentally unfair.
II. Petitioner was denied the effective assistance of counsel by his attorney's failure to interview the truck driver mentioned as an eyewitness by the complainant and Officers Williams and Peoples, who interviewed the complainant, who denied this interview, and to challenge the prosecution (sic) lack of producing these res gestae witnesses, or to move for an evidentiary hearing on the matter.
III. Petitioner was denied due process on his appeal of right.
II. STANDARD OF REVIEW
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.28 U.S.C. § 2254 (d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
III. DISCUSSION
A. Claim # 1. The trial court's use of petitioner's flight to find him guilty of the charged crimes.
Petitioner first contends that the trial court improperly used his flight from the police as evidence of his guilt, which he argues, was insufficient to sustain his convictions. Petitioner also contends that the credibility of the complainant was suspect, based upon the fact that all of his witnesses testified that the victim was a drug addict.
The Due Process clause of the 14th Amendment protects an accused in a criminal case against conviction except upon proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). The appropriate standard of review in a federal habeas corpus proceeding involving a claim of insufficiency of evidence in a state criminal conviction is whether, after reviewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime had been proven beyond a reasonable doubt. Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998). The reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court. Marshall v. Lonberger, 459 U.S. 422, 434 (1983); Kines v. Godinez, 7 F.3d 674, 678 (7th Cir. 1993). It is the province of the factfinder to weigh the probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992).
Petitioner first claims that the trial court improperly used petitioner's flight as evidence to find him guilty of the above offenses. This Court first notes that the trial court mentioned other factors besides petitioner's flight at the time of his arrest in support of its finding that petitioner was guilty of these offenses. Moreover, the fact that the trial court considered petitioner's flight as evidence of guilt does not raise a constitutional issue. Challenges to the sufficiency of evidence pertaining to an element of an offense raise constitutional due process concerns under In Re Winship and are reviewable on habeas review. Gall v. Parker, 231 F.3d 265, 307 (6th Cir. 2000). On the other hand, challenges to the evidence on the non-elements of an offense do not generally implicate In Re Winship and are not reviewable in a habeas petition. Id.
In the present case, petitioner was convicted of armed robbery, carjacking, and felony-firearm. The elements of armed robbery are: (1) an assault; (2) a felonious taking of property from the victim's presence or person; (3) while armed with a weapon described in the armed robbery statute. People v. Carines, 460 Mich. 750, 757; 597 N.W.2d 130 (1999). The elements of carjacking are: (1) the defendant took a motor vehicle from another person; (2) the defendant did so in the presence of that person, a passenger, or any other person in lawful possession of the motor vehicle; and (3) the defendant did so either by force or violence, by threat of force or violence, or by putting the other person in fear. People v. Davenport, 230 Mich. App. 577, 579; 583 N.W.2d 919 (1998). The elements of felony-firearm are that the defendant possessed a firearm during the commission of, or an attempt to commit, a felony. People v. Avant, 235 Mich. App. 499, 505; 597 N.W.2d 864 (1999).
A review of these cases shows that flight or lack of flight is not an element of any of the offenses that petitioner was convicted of. Instead, under Michigan law, flight is merely relevant to consciousness of guilt. Johnson v. Burke, 903 F.2d 1056, 1062 (6th Cir. 1990) (internal citations omitted). Because this evidence of flight involves only a nonelement of the offenses that petitioner was convicted of, petitioner would not be entitled to habeas review of this claim. Gall v. Parker, 231 F.3d at 307. Thus, assuming that the state court erred in using petitioner's evidence of petitioner's flight as consciousness of guilt, such an erroneous ruling would not rise to a constitutional dimension. See Diaz v. Greiner, 110 F. Supp.2d 225, 235 (S.D.N.Y. 2000). Lastly, the existence of other possible reasons for flight would not render an inference of guilt from that flight to be impermissible or irrational. United States v. Clark, 45 F.3d 1247, 1251 (8th Cir. 1995). Petitioner would therefore not be entitled to habeas relief on his claim that the trial court used his flight as evidence of his guilt.
Petitioner's related claim that the evidence was insufficient to convict because of the victim's suspect credibility must also be rejected. An assessment of the credibility of witnesses is generally beyond the scope of federal habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F.3d at 286. The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim. Id. A district court is without authority to reweigh the evidence in a federal habeas proceeding. Holmes v. McKune, 117 F. Supp.2d 1096, 1113 (D. Kan. 2000). The federal habeas corpus statute gives federal courts no license to redetermine credibility of witnesses whose demeanor has been observed by a state trial court. Perfetto v. Hoke, 898 F. Supp. 105, 113 (E.D.N.Y. 1995) (quoting Marshall v. Lonberger, 459 U.S. at 434). Thus, in reviewing a sufficiency of the evidence claim, a federal habeas court may not question a fact finder's determinations of witness credibility. Rodgers v. Angelone, 113 F. Supp.2d 922, 934 (E.D. Va. 2000).
In the present case, the trial court had the opportunity to observe the victim testify and found her to be more credible than the petitioner or his witnesses. This Court cannot question this determination. The victim testified that petitioner took her car from her at gunpoint without her permission. Her testimony was legally sufficient to establish the elements of the offenses of armed robbery, carjacking, and felony-firearm. Accordingly, petitioner's first claim does not entitle him to habeas relief.
B. Claim #2. The ineffective assistance of counsel claims.
Petitioner next alleges that he was deprived of the effective assistance of counsel.
1. Standard of Review
To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id.; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In other words, petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
2. Petitioner's right to an evidentiary hearing.
The Court first needs to determine whether petitioner is entitled to an evidentiary hearing on his ineffective assistance of counsel claim. 28 U.S.C. § 2254 (e)(2) states that if an applicant for a writ of habeas corpus has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that:
(A) the claim relies on:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfind er would have found the applicant guilty of the underlying offense.
Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim by a habeas petitioner is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or prisoner's counsel. Williams v. Taylor, 529 U.S. 420, 432 (2000). Diligence will require that the petitioner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. Id. at 435.
Under M.C.R. 7.211(C)(1)(a)(ii), a motion to remand brought under this subrule must be supported by affidavit or offer of proof regarding the facts to be established at a hearing. In the present case, the Michigan Court of Appeals denied petitioner's motion to remand, finding that the allegations contained therein were not supported by an affidavit or other offer of proof as required by M.C.R. 7.211(C)(1). Petitioner has failed to show that he acted with diligence in attempting to develop these claims in state court. Moreover, even assuming that petitioner had acted with due diligence in seeking to develop his ineffective assistance of counsel claims in state court, he still cannot meet the § 2254(e)(2) standard because it requires a showing by clear and convincing evidence that "but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." Id. A review of petitioner's ineffective assistance of counsel claims shows that he has failed to show by clear and convincing evidence that but for these errors, no reasonable factfinder would have found him guilty of these offenses.
Petitioner alleges that his attorney failed to investigate or interview various witnesses or request their production at trial. However, petitioner does not identify the substance of the proposed testimony of these witnesses. Mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue. Cordova v. Johnson, 993 F. Supp. 473, 524 (W.D. Tex. 1998). Petitioner does not indicate what the substance of the testimony of these missing witnesses would be, but merely speculates that their testimony would have been helpful to his case. Petitioner cannot establish that counsel was ineffective based upon "vague and conclusory allegations that some unspecified and speculative testimony might have established his defense." Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3rd Cir. 1991); See also Flagg v. Robinson, 2000 WL 1772607, * 9 (E.D. Mich. October 31, 2000)(Hood, J.). In addition, petitioner has offered no proof that his attorney failed to investigate these witnesses. Petitioner's conclusory allegations that his trial counsel failed to investigate the facts or circumstances of his case and did not interview potential witnesses cannot serve as the basis for an ineffective assistance of counsel claim. See United States v. Daniels, 12 F. Supp.2d 568, 575 (N.D. Tex. 1998).
A court must evaluate counsel's decision not to interview or call a particular witness, for purposes of an ineffective assistance of counsel claim, from the perspective of counsel at the time that the decision was made. Parker v. Bowersox, 94 F.3d 458, 461 (8th Cir. 1996). To establish prejudice from counsel's failure to investigate a potential witness, a petitioner must show that the witness would have testified and that the witness's testimony would probably have changed the outcome of the trial. Hadley v. Groose, 97 F.3d 1131, 1135 (8th Cir. 1996). A defense counsel has no obligation to call or even interview a witness whose testimony would not have exculpated the defendant. Marra v. Larkins, 111 F. Supp.2d 575, 585, fn. 13 (E.D. Pa. 2000).
Petitioner's main allegation is that counsel was ineffective for failing to interview or to request the production of the truck driver whose truck the victim escaped into after the robbery. As the Michigan Court of Appeals indicated in its opinion, there was nothing to indicate that counsel would have deemed this witness' testimony to have been helpful. People v. Moore, Slip. Op. at * 2. Stallworth's testimony was that the robbery took place on the Schoolcraft road side of the gas station and she ran down an alley and ran around to the other side of the gas station and jumped into the truck. (T., pp. 10-11). Because the truck was located on the other side of the gas station, the truck driver may not have appeared to have been an exculpatory witness from defense counsel's perspective, since it is unclear whether the truck driver could have observed the actual robbery from the vantage point where his truck was parked. Moreover, because Stallworth testified that she had told the truck driver that she had just been robbed (T., p. 40), defense counsel could have concluded that the truck driver's testimony would only have corroborated the victim's testimony.
Petitioner also claims that defense counsel was ineffective because he should have called Kenneth Williams to testify, claiming that Officer Williams, and not Officer Michelle Jones, was the real officer in charge of the case. Officer Jones, however, testified that she was the officer in charge of the case. (T., pp. 104-105). The only evidence that petitioner offers that Officer Williams was the real officer in charge of the case is the Investigator's Report which he has attached to his petition. A review of this report shows that although Williams signed his name on the line for the signature of the investigating officer, he indicated that he was signing the report for P.O. Michelle Jones, the officer in charge of the case. Officer Jones' name appears in typed print below Officer Williams signature and the signature line. There is no indication that Officer Williams conducted the actual investigation of this case, hence, counsel would not have been ineffective for failing to interview him or request his production.
Petitioner also claims that his attorney was ineffective for failing to call Officer Dion Peoples to testify. The only involvement of Officer Peoples in this case appears to have been in conducting the live line up, at which time petitioner was positively identified by Stallworth as her assailant. Petitioner indicates that Officer Peoples should have been called to testify after the victim denied making a statement to him that she ran behind the gas station and hid briefly before jumping into the truck. (T., p. 41). Petitioner does not indicate that there was anything in Officer Peoples' report that would have exculpated him of this crime. The only conceivable purpose in calling Officer Peoples to testify would have been to impeach the victim's testimony that she did not make any statements to Officer Peoples. Impeachment strategy is a matter of trial tactics, and tactical decisions are not ineffective assistance of counsel simply because in retrospect better tactics may have been available. Gallo v. Kernan, 933 F. Supp. 878, 881 (N.D. Cal. 1996). Defense counsel spent over thirty pages cross-examing the victim. (T., pp. 14-45). Where, as here, trial counsel conducts a thorough and meaningful cross-examination of a witness, counsel's failure to employ a trial strategy that, in hindsight, might have been more effective does not constitute unreasonable performance for purposes of an ineffective assistance of counsel claim. Rich v. Curtis, 2000 WL 1772628, * 5 (E.D. Mich. October 24, 2000)(Friedman, J.); Cardwell v. Netherland, 971 F. Supp. 997, 1019 (E.D. Va. 1997).
Petitioner has failed to establish that his attorney failed to investigate or to call any witnesses who would have exculpated him of this crime. He has failed to establish that he was deprived of the effective assistance of counsel.
C. Claim #3. The claim that petitioner was deprived of his appeal by right.
Petitioner lastly claims that he was deprived of his appeal by right because the prosecutor failed to file a timely response brief to his in pro per appellate brief and then purposely failed to send petitioner a copy of this brief.
The equal protection and due process clauses of the Fourteenth Amendment require that a state's procedure offers adequate and effective appellate review to indigent defendants, and a state's procedure provides such review so long as it reasonably ensures that an indigent's appeal will be resolved in a way that is related to the merit of that appeal. Smith v. Robbins, 528 U.S. 259, 276-277 (2000).
In the present case, petitioner was permitted to file his own in pro per brief on appeal. The Michigan Court of Appeals addressed the merits of all of the claims that petitioner raised. Petitioner does not identify how his appeal was hindered by the prosecutor's failure to provide him with a copy of their brief on appeal. The Sixth Circuit has applied a harmless error analysis to a claim that a state appellate court deprived a habeas petitioner of his right to appeal because of its failure to provide him a full and fair factfinding hearing on the issues set forth in his appeal, Norris v. Schotten, 146 F.3d 314, 336 (6th Cir. 1998). Here, petitioner has not alleged or shown that the Michigan Court of Appeals failed to address the issues raised in his appeal, nor has he identified what points in the prosecutor's appeal brief he would have rebutted in a reply brief. In any event, the inability of petitioner to file a reply brief would not raise a federal constitutional issue. See Ortiz v. Greiner, 113 F. Supp.2d 327, 344 (E.D.N.Y. 2000) (claim challenging state appellate court's denial of leave to file a supplemental reply brief during state appeals process raised no federal constitutional issue and was not cognizable in federal habeas review). Because petitioner has failed to show that his right to effective appellate review was prejudiced due to the prosecutor's failure to provide him with a copy of their brief on appeal, he is not entitled to relief on this claim.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.