IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 98-51022
______________________
KENNETH ALLEN McDUFF,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent-Appellee.
-----------------------
Appeal from the United States District Court for the
Western District of Texas, Waco
(98-CA-147)
-----------------------
November 17, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
BY THE COURT:*
Kenneth Allen McDuff was sentenced to death after being
convicted of capital murder in Texas state court. He challenged
his conviction twice at the state level--once in his direct
criminal appeal and next in his subsequent state court habeas
petition. The United States Supreme Court denied writ of
certiorari in McDuff’s criminal appeal and the Texas Court of
Criminal Appeals also denied him state habeas relief. McDuff next
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
came to the federal courts where the district court denied him
federal habeas relief. He now applies this court for a Certificate
of Appealability (“COA”) under the Antiterrorism and Effective
Death Penalty Act of 1996 (the “AEDPA”), 28 U.S.C. § 2253.
McDuff’s application for COA essentially asserts two bases for
federal habeas relief. First, McDuff argues that the State’s
expert testimony, that the hairs found on the deceased’s body and
in her car bore identical characteristics to his hair, was
effectively false. Or perhaps it was effectively false. According
to McDuff, there is a chance, which was not scientifically
available to him at trial, that Mitochondrial DNA testing could
exclude him as a source of the hair fragments found on the deceased
and in her car. Such a conclusion, McDuff argues, would render the
State’s expert testimony “false.” Second, McDuff contends that he
is actually innocent of the crime--”that some one else did it”--and
therefore the Due Process Clause of the of the Fourteenth Amendment
prohibits an innocent man being put to death. Our review of the
record and the law demonstrates beyond the slightest doubt that
McDuff has no cognizable federal habeas claim. First, as matters
of fact, the record does not support either that McDuff was
actually innocent of murder, nor does it support that the hair
comparisons made by the State’s experts were false. And certainly,
the record does not show that the State knew that the hair
comparisons made by its experts were false, a fact that McDuff
admits. Second, as matters of law, Herrera v. Collins, 506 U.S.
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390 (1993) is completely dispositive of his actual innocence claim,
as he alleges no constitutional violation in the underlying State
criminal proceeding; and Blackmon v. Scott, 22 F.3d 560, 565,
appeal after remand Blackmon v. Johnson, 145 F.3d 205 (5th Cir.
1998) is completely dispositive of his false testimony claim, as
McDuff admits that he can produce no evidence that the State
actually knew of the purported falsity of its expert testimony.
I
As similarly noted by the district court, the facts underlying
McDuff’s conviction are set out in the petition of the Texas Court
of Criminal Appeals:
Viewed in the light most favorable to the verdict, the
evidence at trial established that around 4:OO a.m. on
March 1, 1992, the victim, Melissa Ann Northrup was
abducted from her work place, the Quick Pak #8 in Waco.
Richard Bannister testified that on that same day
sometime between 3:30 a.m. and 4:00 a.m. he confronted
[McDuff] yards from the Quick Pack #8 in a motel parking
lot. [McDuff] was pushing his Ford Thunderbird which was
later found to be abandoned there.
Jerry Myers testified that he saw [McDuff] driving the
victim’s vehicle North on Interstate 35 shortly after
4:00 a.m. with the victim in the passenger seat appearing
to be frightened. Shari Robinson testified that at
approximately 9:00 p.m. [McDuff] came to the door of her
Dallas County home and asked for food. The victim’s
abandoned vehicle was later found a short distance from
Robinson’s home.
Charles Linch, a hair comparison expert, testified that
a hair found on the victim’s body was identical to
[McDuff’s] hair. Steve Robinson, a Department of Public
Safety hair expert, testified that a hair found in the
victim’s car was similar to [McDuff’s] hair. Even Fred
Zain, [McDuff’s] hair comparison expert, admitted that
the hairs found in the victim’s car would not exclude
[McDuff].
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Immediately prior to the instant offense, [McDuff] had
attended Texas State Technical Institute (T.S.T.I) and
during that period, had worked at the Quick Pak #8 which
is located in McLennan County. In fact, [McDuff] had
received training from Aaron Northrup, the husband of the
deceased, while employed there. [McDuff] knew that the
Quick Pak #8 was very lax on security having no in-store
cameras or other security devices. Leonard Bradbury, a
Quick Pak supervisor, testified that over $250 was
missing from the cash register on the morning that
Northrup was discovered missing.
Mark Davis, a fellow T.S.T.I student, testified that on
an earlier occasion [McDuff] tried to enlist him to help
rob the Quick Pak #8 store. Lewis Bray, another T.S.T.I.
student, testified that on three different occasions,
[McDuff] told him that he was planning to rob the Quick
Pak #8. Bray and [McDuff] went so far as to drive by and
“case” the store. [McDuff] also told Bray that a good
way to dispose of a body was to slit the abdomen and
throw it into water. The deceased’s bound and partially
nude body was found floating in a water-filled gravel pit
not far from where her car was discovered. Part of her
lower torso was missing.
Alva Hank Worley testified that [McDuff] told him that
there was a good-looking girl at a convenience store that
he was going to kidnap. Worley also testified to a
signature crime involving the abduction, sexual assault,
and murder of Collen Reed by [McDuff].
Mildred Hollins testified that hours before the abduction
of the victim [McDuff] was using cocaine, wanted a girl,
needed money, planned to rob in order to get some money,
and was willing to kill to get what he wanted. After the
abduction of the deceased, [McDuff] took flight to Kansas
City, Missouri where, at the time of his capture, he was
living under an assumed name.
McDuff v. State, No. 71,700 at Slip op. 1-2.
During the guilt-innocence phase, the State offered the
testimony of Worley who testified, that in December of 1991, he and
McDuff abducted Collen Reed from a car wash in Austin, Texas, and
consequently took turns sexually assaulting her in a moving
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vehicle. Worley added that McDuff sexually assaulted Reed for
approximately forty-five minutes, until they reached Salado, Texas.
Worley further testified that while Reed was being repeatedly raped
by McDuff, and forced to perform heinous and vulgar sexual acts,
McDuff also beat Reed and burned her several times with a
cigarette. Worley continued that McDuff ultimately bound and
gagged Reed with shoestrings and placed her in the trunk of the
car. Worley testified that he would not give McDuff a shovel and
a pocket knife. He further testified that he was driven home and he
and McDuff parted ways.
During the punishment phase of the trial, the State presented
evidence of McDuff’s sixteen prior felony offenses and various
members of law enforcement, including Deputy United States Marshal
Parnell McNamara and Assistant United States Attorney Ken Dies
testified that McDuff had an extreme propensity for violence and
that he was generally dangerous.
Also during the punishment phase, the State produced
additional evidence that in 1966, McDuff had brutally raped and
murdered one teen-age girl and murdered two teen-age boys. Roy
Dale Green testified that while he and McDuff drove around Fort
Worth, Texas, McDuff told him that “he was going to get him a
girl.” Green testified that as McDuff approached a parked car
carrying a gun and a stick, he was told to wait behind until McDuff
beckoned him. Minutes later, Green stated that McDuff told him
”they got a good look at me. I am going to have to kill them.” It
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was at this time, according to Green, that McDuff told him that the
two young boys and one girl were locked in the trunk of the car.
Green testified that McDuff murdered the young boys execution style
by firing several shots into the trunk of the car where the boys
had been locked. Green observed that after killing the young boys,
McDuff remained “cool calm and collected.” Green further testified
that after raping the young girl, McDuff used a broomstick to choke
her. Green, who held the young girl’s legs as McDuff choked her,
later turned McDuff in to the authorities.
The only evidence McDuff offered during the punishment phase
was the testimony of Wendell Lee Dickerson who testified that
McDuff was a person who would not be a future danger in prison as
he adapted well to prison life.
The jury convicted McDuff of the capital murder of Northrup
and in accordance with Texas law, McDuff was sentenced to death.
After the Texas Court of Criminal Appeals affirmed McDuff’s
sentence and conviction in an unpublished opinion. McDuff v. State
of Texas, Slip op. No. 71,700 (Tex.Crim.App. 1997). McDuff filed
a petition for writ of certiorari to the United States Supreme
Court that was also denied. McDuff v. State of Texas, 118 S.Ct.
702 (1998). The Texas Court of Criminal Appeals subsequently
denied McDuff’s application for writ of habeas corpus. Then, under
28 U.S.C. § 2254 of the AEDPA, McDuff filed his first application
for habeas corpus relief in the United States District Court for
the Western District of Texas, setting out twelve claims for habeas
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relief. The State of Texas moved for summary judgment on McDuff’s
application and the district court granted the State’s motion on
October 15, 1998. In response, McDuff filed a notice of appeal,
which the district court treated as an Application for Certificate
of Appealability and ultimately denied. Finally, on November 10,
1998, under 28 U.S.C. § 2253, McDuff filed a Request for a
Certificate of Appealability with this court, which is the habeas
application before us today.
II
McDuff raises the following seven issues on appeal:
1. Is a defendant’s right to due process violated where his
conviction is based in substantial part on expert testimony which
later can be scientifically established to be false, where he
probably would not have been convicted without the false testimony?
2. Should an petitioner’s request for expert assistance be
granted, where such assistance is the only means an appellant has
to establish his claims, and there is a strong likelihood such
assistance may produce exculpatory information?
3. Can a petitioner’s actual innocence of the crime form the
basis of relief in federal court?
4. Did appellant adequately exhaust his due process claim
based on the use of false evidence, where he alleged he was
actually innocent and his execution would therefore constitute a
denial of due process?
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5. If appellant’s due process claim was not exhausted, did
the court err in disposing of it on the merits, instead of
remanding the entire case to state court for a decision?
6. Was petitioner’s right to due process, and to be free
from cruel and unusual punishment, violated by the failure to
instruct the jury that petitioner could not be released on parole
until he had served at least forty years?
7. Was petitioner’s right to due process violated by the use
of an extraneous offense at the guilt-innocence portion of his
trial?
We will address each of McDuff’s contentions in turn to
determine whether the district court erred in refusing to award him
federal habeas relief.
(1)
Issue 1: Is a defendant’s right to due process violated where his
conviction is based in substantial part on expert
testimony which later can be scientifically established
to be false, where he probably would not have been
convicted without the false testimony?
McDuff contends that his execution would violate his rights to
due process because his conviction is based in substantial part on
expert testimony that might now be scientifically established to be
false. During McDuff’s capital murder trial, one of the State’s
experts, Charles Linch, testified that McDuff’s hair and a hair
found on the victim both had the same “extreme Negroid
characteristics”--a distinctive pigment clumping, or a heavy dense
pigmentation. The State offered a second hair comparison expert,
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Steve Robertson, who also testified that he personally found a hair
in the deceased’s car that had the same physical appearance as
McDuff’s hair.
McDuff attacks the State’s expert hair comparison as being
inaccurate and unreliable. As support for his argument, McDuff
asserts that some of the hairs identified by Linch as being similar
to his were later DNA tested at the S.E.R.I. Laboratory in
California. Of the hairs tested, one hair fragment was determined
to have genetic markers different from McDuff’s, thereby excluding
him as a possible source of the hair. McDuff further contends that
advancements in scientific testing, specifically, Mitocondrial DNA
testing, now allow experts to test the hair fragments admitted into
evidence at his trial, which hairs could not have been previously
tested for his DNA. Thus, McDuff reasons that “there is as good as
chance as any that the hair comparisons conducted at his trial will
be wrong.” Given this possibility, McDuff concludes that his
rights under the due process clause have been violated by the
admission of false testimony at trial.
To establish a due process violation, McDuff must show that:
(1) the statements testified to by the State’s hair comparison
experts were actually false; (2) the State knew that the statements
were false; and (3) the statements were material. Blackmon v.
Scott, 22 F.3d 560, 565, appeal after remand Blackmon v. Johnson,
145 F.3d 205 (5th Cir. 1998).
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McDuff’s due process argument fails as a matter of fact and
law. There is no evidence in the record that the State’s expert
testimony linking the hairs found on the deceased’s body and in her
car to McDuff was false. As previously noted, one of the State’s
experts testified that McDuff’s hair and a hair found on the victim
both had the same distinctive pigment clumping. Again, a second
expert testified that he discovered hair in the deceased’s vehicle
that had the same physical appearance as McDuff’s hair. What is
most compelling, however, is that McDuff’s own expert could not
dispute the conclusions reached by either of the State’s experts.
McDuff’s expert also testified that McDuff’s hair had dense pigment
clumping similar to the hairs found on the deceased and in her car.
Furthermore, McDuff’s expert was never able to exclude him as the
possible source of the hairs found on the deceased and in her car.
But McDuff points out that one of the hairs identified by the
State’s expert as being similar to his was later determined to have
genetic markers different from McDuff’s. This is true but
unavailing because it is undisputed that the State did not rely on
this particular hair fragment to establish McDuff’s guilt. In
fact, the State’s expert never testified at trial regarding the
fragments of hair determined by the DNA test not to have come from
McDuff. Moreover, one of the hair fragments tested for McDuff’s
DNA did test positive for McDuff’s genetic markers, albeit weakly.
Given these circumstances, and the extremely consistent testimony
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offered from experts on both sides, McDuff’s arguments today fail
to establish that the expert testimony offered at trial was false.
In any event, McDuff admits that he cannot establish that the
State knew that the expert testimony identifying him as the
possible source of the hairs found on the victim and in her car was
false when it offered the evidence at trial. This failure alone is
fatal to his due process claim. Smith v. Black, 904 F.2d 950, 961
(5th Cir. 1990), vacated on other grounds, 503 U.S. 930 (1992)
(citing Mooney v. Holohan, 294 U.S. 103, 110, 112 (1935) (per
curiam)) (“[t]his circuit has long abided by the standard that the
prosecution must have knowingly used the testimony to obtain a
conviction for use of perjured testimony to constitute
constitutional error”); Skipper v. Wainwright, 598 F.2d 425, 427
(5th Cir.) (per curiam), cert. denied, 444 U.S. 974 (1979) (citing
Giglio v. United States, 405 U.S. 150 (1972)). McDuff’s request of
COA on this issue is therefore denied.
(2)
Issue 2: Should a petitioner’s request for expert assistance be
granted, where such assistance is the only means a
petitioner has to establish his claims, and there is a
strong likelihood such assistance may produce exculpatory
information?
McDuff next contends that the state court should have granted
his request for expert assistance because such assistance is the
only means he has to establish his claims, and there is a strong
likelihood that such assistance may produce exculpatory
information. Without the subsequent expert testing, McDuff
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contends that the accuracy of the hair comparison expert testimony
introduced at his trial will never be known.
To the extent that McDuff requests expert assistance to refute
the accuracy of the expert testimony as well as to discover other
exculpatory evidence, he fails to make a substantial showing of a
denial of a constitutional right and thus raises no cognizable
constitutional claim warranting federal habeas relief. See
Drinkard v. Johnson, 97 F.3d 751, 770 (5th Cir. 1996), cert.
denied, __ U.S.__, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997). In
short, McDuff raises no constitutional error in the state court
trial.
(3)
Issue 3: Can a petitioner’s actual innocence of the crime form the
basis of relief in federal court?
McDuff’s third argument is that his actual innocence of the
crime should form the basis of habeas relief in federal court.
McDuff concedes that generally the discovery of new evidence will
not establish a constitutional violation. He nonetheless argues
that the Fourteenth Amendment’s due process clause and the Eighth
Amendment warrant a different result when part of the State’s
testimony is established to be false. We need go no further in
addressing this argument than to reiterate our earlier conclusion
that the expert testimony offered at McDuff’s trial was not in fact
false.
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Nevertheless, it has long been the rule that “claims of actual
innocence based on newly discovered evidence have never been held
to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal
proceeding.” Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir. 1998)
(citing Herrera, 506 U.S. at 400). In pressing this point, McDuff
has not argued a constitutional violation in the underlying
criminal proceeding. Therefore, McDuff’s actual innocence claim is
virtually identical to the one made in Herrera and thus does not
present grounds for habeas relief. Id.; Herrera, 506 U.S. at
398-400.
McDuff, nonetheless, attempts to distinguish his argument for
a COA on the grounds that his claim of actual innocence--that one
Charles Gatlin committed the murder and not he--is not based on new
evidence, but on evidence that he acknowledges he was aware of at
trial but chose to reject for tactical reasons at that time.
McDuff reasons that if, under the new method of DNA testing, the
hairs can be identified as not coming from him, then he has a much
stronger claim of innocence. McDuff therefore concludes that it is
not merely the evidence concerning Gatlin, but possible additional
evidence resulting from the DNA testing of the hairs found in the
victim’s car and on her body that may support his claim.
We find this argument unavailing. “Even if a claim of actual
innocence is cognizable under federal habeas corpus, [without
McDuff showing an underlying constitutional violation in the trial
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court proceedings below,] the accumulation of evidence that tracks
and corroborates the evidence presented at trial and that largely
was available at the time of trial, does not qualify to meet the
extraordinarily high threshold as newly discovered evidence
demonstrating actual innocence that is necessary to suggest a
federal constitutional right arising from this Texas conviction.”
Lucas, 132 F.3d at 1076 n.3 (emphasis added).
Finally, to the extent that McDuff argues that the due process
clause and the Eighth Amendment should be extended to accommodate
his actual innocence claim, this request is barred as an improper
request for recognition of a new constitutional rule on collateral
review. Teague v. Lane, 489 U.S. at 288, 300-311 (1989).
Consequently, McDuff has failed to make any showing that his
claimed actual innocence justifies federal intervention.
(4)
Issue 4: Did appellant adequately exhaust his due process claim
based on the use of false evidence, where he alleged he
was actually innocent and his execution would therefore
constitute a denial of due process?
The district court concluded that McDuff’s claim in this
regard is procedurally barred. We have addressed the substance of
McDuff’s due process claim--that the State’s expert testimony
identifying him as the possible source of the hair fragments found
on the victim and in her car was false--and found it entirely
meritless. As discussed earlier, there exists no proof in the
record to support McDuff’s claim that the expert testimony was
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indeed false. Second, McDuff concedes that he cannot establish
that the State knew that the expert testimony offered at his trial
was false. Because he is unable to make these requisite showings,
McDuff’s due process claim fails as a matter of law. Giglio v.
United States, 405 U.S. 150, 153-54 (1963); Blackmon, 22 F.3d at
565. Even more telling, McDuff admits that DNA testing
establishing that the hair did not come from him would not, in
fact, establish his innocence. Given these circumstances, McDuff
has failed to demonstrate the denial of a federal constitutional
right necessary to entitle him to a certificate of appealability.
McDuff’s argument on appeal that he exhausted his state remedies is
therefore mooted.
(5)
Issue 5: If appellant’s due process claim was not exhausted, did
the court err in disposing of it on the merits, instead
of remanding the entire case to state court for a
decision?
Alternatively, McDuff asserts that even if his due process
claim was not exhausted, the district court erred in disposing of
the claim on the merits. McDuff argues that under Rose v. Lundy,
455 U.S. 509 (1982), the proper course for the district court was
to remand the entire case to the state court for a decision.
This argument is meritless. An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the State. 28 U.S.C. § 2254 (b)(2).
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(6)
Issue 6: Was petitioner’s right to due process, and to be free
from cruel and unusual punishment, violated by the
failure to instruct the jury that the petitioner could
not be released on parole until he had served at least
forty years?
McDuff next contends that the trial court improperly denied
his request for a jury instruction that, under Texas law, a
defendant receiving a life sentence for capital murder was required
to serve at least forty years before becoming eligible for parole.
The trial court was not required to instruct the jury as
McDuff requested. The Federal Constitution neither requires the
state of Texas to give jury instructions regarding parole
eligibility, nor does it prevent it from doing so. See California
v. Ramos, 463 U.S. 992 (1983). As such, Texas has traditionally
kept information about a capital defendant's parole ineligibility
from the sentencing jury.
We are aware that in Simmons v. South Carolina, 512 U.S. 154,
157 (1994), the Supreme Court held that due process requires a jury
to be informed that a defendant is ineligible for parole when
future dangerousness is at issue in the penalty phase of a capital
murder trial, and where state law altogether prohibits the
defendant’s release on parole. Texas, however, does not have a
life-without-parole sentencing alternative to capital punishment.
Moreover, the Simmons Court makes clear that its holding does not
invalidate Texas’ prohibition against informing juries about the
parole implications of a life sentence in a capital case. See
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Simmons, 512 U.S. at 168 (“in a state in which parole is available,
how the jury’s knowledge of parole eligibility will affect the
decision whether or not to impose the death penalty is speculative,
and we shall not lightly second-guess a decision whether or not to
inform the jury in information regarding parole”). Consequently,
McDuff cannot demonstrate that his rights under the due process
clause have been abridged by the trial court’s refusal to inform
the jury that he must serve at least forty calendar years before
becoming eligible for parole.
Second, because McDuff‘s Eighth Amendment argument does not
turn on the admission or exclusion of any categories of potentially
relevant mitigating evidence, i.e., evidence of his character and
record, and the circumstances of the crime, the trial court’s
refusal to give the requested parole instruction does not violate
the Eighth Amendment. See Smith v. State, 898 S.W.2d 838, 853
(Tex.Crim.App. 1995)(state’s parole laws are not in any way part of
capital defendant’s character, record, or circumstances of the
offense).
(7)
Issue 7: Was the petitioner’s right to due process violated by the
use of an extraneous offense at the guilt-innocence
portion of his trial?
Finally, McDuff argues that his due process rights were
violated by the use of an extraneous offense at the guilt-innocence
portion of his trial. Relying on the accomplice-witness rule under
Texas law, McDuff contends that it was error to allow Alva Hank
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Worley to testify regarding McDuff’s murder of Colleen Reed.
McDuff reasons that the State failed to prove he committed the
murder of Colleen Reed beyond a reasonable doubt because Worley was
an accomplice to Reed’s murder and his testimony alone could not
form the basis for a conviction against him.
Even if the trial court’s admission of Worley’s testimony
violated Texas’ accomplice-witness rule, the violation nonetheless
provides no basis for federal habeas relief. The accomplice-
witness rule is a state procedural rule that has no independent
constitutional basis. Brown v. Collins, 937 F.2d 175, 182 n.12
(5th Cir. 1991). Federal habeas relief is not available to correct
errors that are based solely upon state constitutional, statutory
or procedural law issues. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991).
CONCLUSION
We therefore conclude that Kenneth Allen McDuff has failed to
make a substantial showing of a denial of a constitutional right
that would entitle him to federal habeas relief. His application
for a certificate of appeal is hereby DENIED and his request for a
stay of execution is therefore DENIED.
CERTIFICATE OF APPEALABILITY DENIED;
MOTION TO STAY EXECUTION DENIED.
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