Winn v. Cook ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 23, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
DOUGLAS RAY WINN,
Petitioner - Appellant,
v.
No. 19-5013
MAX COOK, Creek County District
Attorney,
Respondent - Appellee,
and
DOUGLAS W. GOLDEN, Creek County
District Judge,
Respondent.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:18-CV-00382-JED-JFJ)
_________________________________
Submitted on the briefs:*
Robert D. Gifford, II, Gifford Law, P.L.L.C., Oklahoma City, Oklahoma for Petitioner-
Appellant.
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Applicant Douglas Ray Winn seeks a certificate of appealability (COA) to appeal
the denial by the United States District Court for the Northern District of Oklahoma of
his application for relief under 28 U.S.C. § 2241. See 28 U.S.C. § 2253(c)(1)(A)
(requiring COA for state prisoner to appeal denial of relief under § 2241); Montez v.
McKinna, 208 F.3d 862, 866–69 (10th Cir. 2000). Applicant signed a waiver of his right
to a jury trial during his state criminal proceeding. But he then claimed the waiver was
invalid, and he filed his § 2241 application asking the district court to order the state
court to conduct a jury trial. Concluding that the waiver was valid, the district court
denied relief. We deny a COA and dismiss the appeal. We rely, however, on the ground
that Younger v. Harris, 401 U.S. 37 (1971), precludes federal-court intervention.
I. BACKGROUND
Applicant was charged in Oklahoma state court with domestic abuse (assault and
battery) and related offenses. At a pretrial hearing he signed a waiver of his right to a
jury trial so that he could qualify for a state mental-health court program. Because he did
not complete the program, his case was put back on the trial docket. He then filed a
motion in the state trial court for reinstatement of a jury trial, stating his waiver was not
knowing, willing, or voluntary. There was no transcript of the pretrial hearing, so the
court held an evidentiary hearing. Applicant testified that he had believed he was signing
paperwork to enter the mental-health program, rather than signing a waiver, because he
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did not read the paperwork. He further claimed he did not recall either his attorney or the
judge advising him about the waiver. Applicant’s then-attorney testified that although he
could not remember specifically discussing the waiver with Applicant, his standard
practice is to advise defendants of the rights they are waiving and the permanence of such
a waiver. The court determined that the waiver was knowing and voluntary and denied
Applicant’s motion.
Applicant filed a petition for emergency relief with the Oklahoma Court of
Criminal Appeals (OCCA) seeking either a writ of prohibition or writ of mandamus. But
the OCCA ruled that Applicant could not establish that the lower court’s denial of his
jury-trial motion was “unauthorized by law,” as required for a writ of prohibition, nor
could he show that he had a “clear legal right to the relief sought,” as required for a writ
of mandamus. Aplt. App. at 139–41 (Okla. Crim. App., Order Den. Pet. (June 29, 2018)
at 2–3).
Applicant then sought federal-court relief under § 2241, requesting an order
requiring the state court to provide him a jury trial. The State responded that Applicant
had validly waived his right to a jury trial, and the district court agreed. The court also
held (1) that Applicant had exhausted his available state remedies by raising his invalid-
waiver claim in the state trial court and then seeking emergency relief from the OCCA on
the same ground, and (2) that it was not required to abstain from exercising jurisdiction
under Younger. Because we hold that the district court should have abstained, we need
not address any other issues.
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II. STANDARD FOR COA
Applicant is not entitled to a COA if no reasonable jurist would find it debatable
that his application (1) fails to state a valid constitutional claim or (2) is procedurally
barred. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). He fails on the procedural
prong, because the district court was required to abstain under Younger. We review de
novo the district court’s ruling regarding abstention. See Walck v. Edmonson, 472 F.3d
1227, 1232 (10th Cir. 2007).
III. YOUNGER ABSTENTION
A. The General Rule
Under the Younger abstention doctrine, federal courts are to abstain from
exercising jurisdiction to interfere with state proceedings when the following three
requirements are met:
(1) there is an ongoing state criminal, civil, or administrative proceeding,
(2) the state court provides an adequate forum to hear the claims raised in
the federal complaint, and (3) the state proceedings involve important state
interests, matters which traditionally look to state law for their resolution or
implicate separately articulated state policies.
Chapman v. Oklahoma, 472 F.3d 747, 749 (10th Cir. 2006). All three requirements are
satisfied here. First, the parties do not dispute that there is an ongoing state criminal
proceeding.
With regard to the second factor, “unless state law clearly bars the interposition of
the federal statutory and constitutional claims,” a plaintiff typically has “an adequate
opportunity to raise federal claims in state court.” Crown Point I, LLC v. Intermountain
Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003) (brackets and internal quotation
4
marks omitted). Applicant offers no reason to think that Oklahoma state courts would
not provide an adequate forum to review his claim, nor can we discern one. Indeed, the
state trial court conducted an evidentiary hearing on the claim. Younger requires only the
availability of an adequate state-court forum, not a favorable result in the state forum.
See Moore v. Sims, 442 U.S. 415, 430 (1979) (adequate forum existed when state law
posed no procedural barriers to raising constitutional claims). To be sure, proceedings
for emergency review by the OCCA provide only a limited opportunity for relief, but an
adverse decision does not preclude later plenary review on direct appeal. See Kimmel v.
Wallace, 370 P.2d 844, 846 (Okla. Crim. App. 1962) (denying emergency relief because
“a plain, clear and adequate remedy at law, by [direct] appeal to [the OCCA]” was
available to the petitioner to later obtain review of his due-process claim). And the fact
that state-writ relief may be limited does not change the Younger analysis. See Davis v.
Lansing, 851 F.2d 72, 73, 76 (2d Cir. 1988) (despite denial of petitions for writs of
mandamus and prohibition in state court, Younger required abstention because
defendant’s claims could be raised on direct appeal in state court); see also Sweeney v.
Bartow, 612 F.3d 571, 573 (7th Cir. 2010) (Younger applies even if person seeking
injunction has pursued all state remedies to block proceeding).
Finally, the third Younger requirement is met. For the purposes of Younger, state
criminal proceedings are viewed as “a traditional area of state concern.” Seneca-Cayuga
Tribe of Okla v. Oklahoma ex rel. Thompson, 874 F.2d 709, 713 (10th Cir. 1989); see
Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (injunction against state criminal-
enforcement activities “seriously impairs the State’s interest in enforcing its criminal
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laws, and implicates the concerns for federalism which lie at the heart of Younger”);
Fisher v. Whetsel, 142 F. App’x 337, 339 (10th Cir. 2005) (“Oklahoma’s important
interest in enforcing its criminal laws through proceedings in its state courts remains
axiomatic.”).
B. Exceptions/Irreparable Injury
1. In General
When Younger’s three requirements are met, abstention is mandatory unless one
of three exceptions applies: the prosecution was “(1) commenced in bad faith or to
harass, (2) based on a flagrantly and patently unconstitutional statute, or (3) related to any
other such extraordinary circumstance creating a threat of ‘irreparable injury’ both great
and immediate.” Phelps v. Hamilton, 59 F.3d 1058, 1063–64 (10th Cir. 1995). Because
(1) neither Applicant nor the federal district court has suggested that there was bad faith
or harassment in state court and (2) there has been no challenge to the constitutionality of
any statute, we consider only whether the alleged violation of Applicant’s right to a jury
trial constitutes an irreparable injury meriting an exception to Younger.
Younger said that “irreparable injury” significant enough to permit federal court
interference must pose a “threat to the plaintiff’s federally protected rights . . . that cannot
be eliminated by his defense against a single criminal prosecution.” 401 U.S. at 46.
“[T]he cost, anxiety, and inconvenience of having to defend against a single criminal
prosecution, could not by themselves be considered ‘irreparable’ in the special legal
sense of that term.” Id. If there is no injury “other than that incidental to every criminal
proceeding brought lawfully and in good faith,” id. at 47, there is no irreparable injury.
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In other words, an error by the state court does not create an irreparable injury simply
because the defendant must proceed through the tainted trial before obtaining relief—
relief that may well entail a second trial. For example, in Samuels v. Mackell, 401 U.S.
66 (1971), the defendant sought to enjoin his trial for violating an allegedly
unconstitutional state anarchy statute. The Court held that having to endure a state
criminal trial was not an immediate irreparable injury warranting federal relief. Id. at 67–
69; see Perez v. Ledesma, 401 U.S. 82, 85 (1971) (declining to find irreparable injury
where defendant sought suppression and return of allegedly obscene material to be used
in criminal prosecution, as he “was free to present his federal constitutional claims . . . to
the Louisiana courts”); see also Allee v. Medrano, 416 U.S. 802, 839 (1974) (Burger,
C.J., concurring in the result in part and dissenting in part) (“It will be the rare case,
indeed, where a single prosecution provides the quantum of harm that will justify
interference.”).
In accord with this authority, we have consistently refused to find an exception to
Younger when the injury could ultimately be corrected through the pending state
proceeding or on appeal. In Sweeten v. Sneddon, 463 F.2d 713, 714–15 (10th Cir. 1972),
we considered a claim that a Utah state court was violating a defendant’s Sixth
Amendment rights by refusing to appoint counsel. The right to counsel is a fundamental
trial right recognized by the Sixth Amendment. See Lockhart v. Fretwell, 506 U.S. 364,
368 (1993) (“Our decisions have emphasized that the Sixth Amendment right to counsel
exists in order to protect the fundamental right to a fair trial.” (internal quotation marks
omitted)). Yet we held that the district court erred in enjoining the state proceeding
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because the defendant “ha[d] an adequate remedy at law in the state trial of this case, an
appeal to the state supreme court, and the right to petition the Supreme Court of the
United States for review of any federal question.” Sweeten, 463 F.2d at 715. We also
abstained in Dolack v. Allenbrand, 548 F.2d 891, 894–95 (10th Cir. 1977), where the
defendant asserted his due-process rights were violated by the untimely appointment of
counsel. We said that his “hav[ing] to stand trial is not an ‘irreparable injury,’” and he
would “not lose the eventual opportunity to assert his constitutional rights.” Dolack, 548
F.2d at 894–95; see also Tyler v. Russel, 410 F.2d 490, 492 (10th Cir. 1969) (pre-
Younger decision refusing to enjoin pending state criminal prosecution despite
defendant’s claim that prosecution violated Fourth Amendment, noting that “[n]o great
and irreparable injury results to him which would not result to any other person charged
with the same crime”).
Other circuits have similarly interpreted “irreparable injury” under Younger. See
Lansing, 851 F.2d at 73–74, 77 (Younger prevented issuance of order directing state court
to either release defendant or prevent state judge from disallowing the defendant’s
peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986); defendant’s claim
that he would “suffer irreparable harm if his trial proceeds with an improperly constituted
jury” was rejected because “burden of defending a criminal prosecution is, of course,
insufficient without more to constitute irreparable harm”); Palmer v. City of Chicago, 755
F.2d 560, 575–76 (7th Cir. 1985) (Younger barred injunction restraining state officials
from continuing alleged practice of withholding material exculpatory evidence from
defendants facing trial; the constitutional claims could be adequately raised in the
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ongoing criminal proceedings); Davis v. Muellar, 643 F.2d 521, 525 (8th Cir. 1981)
(abstaining from determining whether state charges against Indian defendant should be
dismissed because defendant was taken into state custody on his reservation without a
tribal extradition hearing; requiring defendant to “defend himself in a criminal trial would
not justify habeas corpus relief under the ‘both great and immediate’ irreparable injury
test of Younger”).
It is important to note than in several of these cases the relief granted by a state
appeal would likely not terminate the prosecution of the defendant but would result only
in a new trial. See Sweeten, 463 F.2d at 715 (denial of counsel in first trial); Lansing, 851
F.2d at 76 (alleged Batson error at first trial); Palmer, 755 F.2d at 575–76 (alleged
withholding of exculpatory evidence at first trial); Muellar, 643 F.2d at 525 (failure to
properly extradite Indian from reservation).
So when would a defendant suffer irreparable injury from state trial proceedings if
relief could come only after an appeal? The federal courts have recognized two
circumstances: (1) when the defendant’s trial is being delayed in violation of the
constitutional right to a speedy trial, and (2) when the current trial would violate the
Double Jeopardy Clause.1
1
This is not to say that Younger’s third exception has not been invoked in other
criminal-proceeding contexts. In Gibson v. Berryhill, 411 U.S. 564, 577 (1973), the Court
said that “the predicate for a Younger v. Harris dismissal was lacking . . . [when the state
agency that could afford relief] was incompetent by reason of bias to adjudicate the
issues.” One can read Gibson as an example of an inadequate state forum, see Erwin
Chemerinsky, Federal Jurisdiction § 13.5, at 910 (7th ed. 2016), thus failing Younger’s
second requirement. But both the Supreme Court, see Kugler v. Helfant, 421 U.S. 117,
125 n. 4 (1975), and a leading treatise, Richard H. Fallon et al., Hart and Wechsler’s The
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2. Right to a Speedy Trial
The first circumstance was recognized by the Supreme Court in Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484, 485 (1973), though the Court did not
explicitly discuss Younger’s requirements or exceptions. The defendant complained that
the State had violated his Sixth Amendment speedy-trial right by not bringing him to trial
while he was confined in another State. See id. at 485–86. The Court upheld the federal
district court’s order that the State bring him to trial or release him. See id. at 486. In
doing so, the Court distinguished between two aspects of the right to a speedy trial: it
was ordering a state court to conduct a speedy trial, not requiring the state court to
dismiss a charge because it had not been tried in a timely fashion. The Court permitted
the defendant’s effort to seek “enforcement of the [State’s] affirmative constitutional
obligation to bring [the petitioner] promptly to trial,” but was not authorizing an effort to
Federal Courts and the Federal System 1098–99 (6th ed. 2009), have instead
characterized it as falling under the third, catch-all extraordinary-circumstances
exception.
Also, the Supreme Court has held that Younger does not apply to injunctions
sought by a defendant when grant of the injunction “could not prejudice the conduct of
the trial on the merits.” Gerstein v. Pugh, 420 U.S. 103, 108 n. 9 (1975) (challenge to
pretrial detention without a judicial hearing). The Ninth Circuit has held that in similar
circumstances, abstention is also improper because the defendant faces irreparable injury.
See Page v. King, 932 F.3d 898, 904 (9th Cir. 2019) (challenge to pretrial detention;
because “loss of liberty for the time of pretrial detention is ‘irretrievable’ regardless of
the outcome at trial,” defendant’s claim “fits squarely within the irreparable harm
exception to Younger” (internal quotation marks omitted)); Arevalo v. Hennessy, 882
F.3d 763, 767 (9th Cir. 2018) (Younger did not preclude adjudicating pretrial habeas
petition alleging defendant was being jailed without a constitutionally adequate bail
hearing because “[d]eprivation of physical liberty by detention constitutes irreparable
harm”).
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“litigate a federal defense to a criminal charge.” Id. at 489. It “emphasize[d] that nothing
we have said would permit the derailment of a pending state proceeding by an attempt to
litigate constitutional defenses prematurely in federal court.” Id. at 493. Because the
defendant “made no effort to abort a state proceeding or to disrupt the orderly functioning
of state judicial processes” by requesting only that he be brought to trial, granting pretrial
relief did “not jeopardize any legitimate interest of federalism.” Id. at 491–92.
Braden did not characterize its holding as an exception to the Younger doctrine. It
apparently thought that Younger was only marginally relevant (receiving merely a cf.
citation in a string cite on the exhaustion doctrine, see id. at 491) because of the absence
of a significant federalism interest, see id. at 491–92. But lower courts have examined
the significance of Braden to the Younger irreparable-injury exception. See Dolack, 548
F.2d at 894 (reading Braden as recognizing a “special circumstance[] . . . to take the case
out of the Younger doctrine”); Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980)
(noting the limited scope of Braden and reversing dismissal by district court of pending
criminal charge on ground of denial of speedy trial); Moore v. DeYoung, 515 F.2d 437,
445–46 (3d Cir. 1975) (district court’s permanent injunction against defendant’s state
criminal proceedings because of alleged speedy-trial violation was “precisely the
situation anticipated” by Braden that should be prohibited under Younger).
So why does a defendant face irreparable injury when he seeks an order requiring
that he be brought to trial but not when he seeks dismissal of the charges against him on
the ground that he has been denied a speedy trial? It is because in the first situation the
violation of the defendant’s rights is becoming more severe every day his trial is delayed,
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so failure to halt the violation causes additional injury to the constitutional right. But the
only injury that arises from delaying dismissal of the charges (until state remedies are
exhausted) is that the defendant must go through a trial and appeal, which is not the sort
of injury that satisfies the Younger exception; in particular, the process of proceeding
through a trial and appeal does no damage to the right to a speedy trial.
The absence of irreparable injury in the latter circumstance was explained by the
Supreme Court in United States v. MacDonald, 435 U.S. 850 (1978). There the Court
needed to determine whether denial of the defendant’s pretrial motion to dismiss on
speedy-trial grounds was a final order that could be immediately appealed. See
MacDonald, 435 U.S. at 850, 857–58. The answer depended on the application of the
collateral-order doctrine, which treats certain interlocutory orders as final and appealable.
See id. at 853–54. One of the doctrine’s requirements for finality is that denial of the
appeal could cause irreparable damage to an important right. See id. at 854–55.
MacDonald held that an order rejecting a motion to dismiss for denial of the right to a
speedy trial did not satisfy that requirement of the collateral-order doctrine (or any other
requirement, for that matter). See id. at 860–61. “The order sought to be appealed,” said
the Court, “may not accurately be described, in the sense that the description has been
employed, as involving an important right which would be lost, probably irreparably, if
review had to await final judgment.” Id. at 860 (internal quotation marks omitted). It
explained:
[T]he Speedy Trial Clause does not, either on its face or according to the
decisions of this Court, encompass a “right not to be tried” which must be
upheld prior to trial if it is to be enjoyed at all. It is the delay before trial,
12
not the trial itself, that offends against the constitutional guarantee of a
speedy trial. If the [accused is denied] his right to a speedy trial, that loss,
by definition, occurs before trial. Proceeding with the trial does not cause
or compound the deprivation already suffered.
Id. at 861. The Ninth Circuit in Carden, 626 F.2d at 84, similarly determined that “the
Speedy Trial Clause, when raised as an affirmative defense, does not embody a right
which is necessarily forfeited by delaying review until after trial.” The court reversed the
district court’s grant of habeas relief because the defendants had “not shown how they
[would] be irreparably injured by waiting until after trial to assert their speedy trial
claim.” Id.
3. Double Jeopardy
This court has recognized a second circumstance in which Younger does not
require abstention from orders affecting a criminal trial: “where a criminal accused
presents a colorable claim that a forthcoming second state trial will constitute a violation
of her double jeopardy rights.” Walck, 472 F.3d at 1234. Requiring a defendant to go to
trial in violation of the Double Jeopardy Clause causes injury that cannot be remedied
after the trial begins. As we explained:
“[T]he Double Jeopardy Clause . . . is a guarantee against being twice put
to trial for the same offense. The guarantee’s protections would be lost if
the accused were forced to run the gauntlet a second time before an appeal
could be taken; even if the accused is acquitted, or, if convicted, has his
conviction ultimately reversed on double jeopardy grounds, he has still
been forced to endure a trial that the Double Jeopardy Clause was designed
to prohibit.”
Id. at 1233 (quoting Abney v. United States, 431 U.S. 651, 660–62 (1977)) (further
brackets, ellipses, and internal quotation marks omitted). “‘A requirement that a
13
defendant run the entire gamut of state procedures, including retrial, prior to
consideration of his claim in federal court, would require him to sacrifice one of the
protections of the Double Jeopardy Clause.’” Id. at 1234 (quoting Justices of Bos. Mun.
Court v. Lydon, 466 U.S. 294, 303 (1984)) (brackets omitted). The Double Jeopardy
clause “itself contains a guarantee that a trial will not occur.” United States v. Wampler,
624 F.3d 1330, 1336 (10th Cir. 2010). Other circuits have similarly recognized that a
viable double-jeopardy claim warrants an exception to Younger. See, e.g., Gilliam v.
Foster, 61 F.3d 1070, 1082 (4th Cir. 1995); Davis v. Herring, 800 F.2d 513, 516 (5th Cir.
1986); Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir. 1992); Mannes v. Gillespie, 967
F.2d 1310, 1312 (9th Cir. 1992).
Circuit courts have not recognized any exceptions to Younger—outside the context
of the speedy-trial and double-jeopardy claims just discussed—when the defendant is
seeking relief regarding the trial itself. See In re Justices of Superior Court Dep’t of
Mass. Trial Court, 218 F.3d 11, 19 (1st Cir. 2000) (“With the notable exceptions of cases
involving double jeopardy and certain speedy trial claims, federal habeas relief, as a
general rule, is not available to defendants seeking pretrial review of constitutional
challenges to state criminal proceedings.”); Olsson v. Curran, 328 F. App’x 334, 335 (7th
Cir. 2009) (“Relief for state pretrial detainees through a federal petition for a writ of
habeas corpus is generally limited to speedy trial and double jeopardy claims.”). Younger
does not require abstention in the two exceptional circumstances because “federal
intervention is necessary to prevent the challenge from becoming moot.” Sweeney, 612
F.3d at 573.
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C. Application to this Case
We now turn to whether abstention was required in this case. Relying on Braden
and Walck, the district court concluded that Younger would not preclude the relief sought
by Applicant because he “could be irreparably harmed if the state proceeds with a non-
jury trial based on [his] allegedly invalid waiver of his right to a jury trial.” District Ct.
Order at 9. We respectfully disagree. A nonjury trial would not cause Applicant
irreparable injury in the sense relevant to Younger.
The district court’s decision that Younger does not bar a federal court from
ordering that a defendant’s upcoming state trial be held before a jury rather than a judge
is (to our knowledge) unprecedented. Our analysis begins with an examination of the
constitutional right to a jury trial. The Sixth Amendment states: “In all criminal
prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury.” U.S.
Const. amend. VI. Thus, before someone is subjected to criminal penalties, he or she has
the right to have guilt decided by a jury. But this provision on its face does not prohibit a
nonjury trial before such a jury trial any more than it prohibits a preliminary hearing—
even a very lengthy one—conducted before a jury trial. The right to a jury trial can be
vindicated after an improper nonjury trial by reversing the judge’s verdict and ordering a
jury trial. Younger and its descendants tell us that the burden of having to endure a trial
is not—outside the double-jeopardy context—irreparable injury in the Younger sense.
See Younger, 401 U.S. at 46. If the constitutional right can be afforded the defendant
later—such as by conducting a jury trial—there is not sufficient ground to intervene.
Applicant has not suggested that the state court’s denial of his motion for a jury trial was
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an effort to dissuade him from seeking a jury trial, as opposed to a good-faith ruling on
the facts and the law.
Supporting our view is the apparent standard practice of ordering a trial by jury
when the defendant has been unconstitutionally denied a jury trial and been subjected to a
nonjury trial. See United States v. Pina, 844 F.2d 1, 11 (1st Cir. 1988) (setting aside
contempt convictions and remanding for jury trial); United States v. Craner, 652 F.2d 23,
27 (9th Cir. 1981) (“It accords with the relevant state and federal practice that Craner
have the jury trial he seeks”); cf. United States v. Hamdan, 552 F.2d 276, 280 (9th Cir.
1977) (holding “appellants are entitled to a jury trial” after determining it was
constitutional error to deny jury trial). Implicit in this practice is the recognition that the
harm of denial of a jury at the first trial can be cured by providing a jury at a later trial.
Applicant can be provided a jury trial if his claim ultimately prevails in state court.
We therefore hold that Younger denies him access to the federal courts at this stage of the
proceedings.
IV. CONCLUSION
We DENY a COA and DISMISS the appeal.
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