Opinion
No. 06-0528-PHX-DGC.
August 10, 2007
ORDER
Pending before the Court are Petitioner Robert F. Lindley, Jr.'s petition for writ of habeas corpus under 28 U.S.C. § 2254, United States Magistrate Judge Mark Aspey's Second Report and Recommendation ("R R"), and Petitioner's objections to the R R. Dkt. ##1, 21, 24. For the reasons stated below, the Court will accept the R R and deny the petition.
I. Background.
On May 30, 1990, Petitioner was convicted of 10 counts of child molestation and sexual conduct with a minor, and was later sentenced to more than five terms of life imprisonment. See Dkt. #11 at 2-3. On November 9, 2006, the Court entered an order that accepted in part and remanded in part the first R R. Dkt. #19. The order detailed Petitioner's appeals and three petitions for post-conviction relief. Id. at 2-3. The Court agreed that Petitioner's habeas corpus petition was not timely because he did not have a state court proceeding pending on April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and did not file his federal habeas claim within the one year grace period which ended on April 24, 1997. Id. at 2; see also Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001). The Court remanded the petition to Judge Aspey for consideration of whether Petitioner's claim of actual innocence excuses the untimely filing. Dkt. #19 at 4.
Judge Aspey issued the second R R on January 18, 2007, recommending that the Court deny Petitioner's habeas corpus petition because Petitioner did not show that he is actually innocent. Dkt. #21. Petitioner filed written objections on March 16, 2007. Dkt. #24. The Court issued an order on April 6, 2007, directing Respondents to respond to Petitioner's objections, especially objections alleging that certain exculpatory medical evidence was in Respondent's control. Dkt. #27. Respondents filed a response to Petitioner's objections on June 21, 2007. Dkt. #30.
II. Legal Standard.
When a petitioner has procedurally defaulted his habeas claims, review on the merits is available only when necessary to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 327 (1995). Such a miscarriage has occurred when a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. at 326-327. To establish his actual innocence, a petitioner must show it is more likely than not that no reasonable juror could have found him guilty of the offenses. Id. at 327.
The Supreme Court has described this type of "actual innocence" as a "gateway" that allows the court to consider procedurally defaulted claims. Schlup, 513 U.S. at 315-16. "A petitioner need not show that he is actually innocent of the crime he was convicted of committing; instead, he must show that a court cannot have confidence in the outcome of the trial." Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002) (quotations omitted).
"To be credible," a Schlup actual innocence claim "requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. The court is not bound by rules of admissibility, and the court may consider the probative value of relevant evidence that was wrongfully excluded, illegally admitted, or unavailable. Id. at 327-28. The new evidence may "call into question the credibility of the witnesses presented at trial. . . . [and] the habeas court may have to make some credibility assessments." Schlup, 513 U.S. at 330.
Petitioner asserts that he is entitled to habeas relief on four grounds: (1) he was denied his constitutional right to be tried by a fair and impartial jury, (2) he was denied his right to effective assistance of trial counsel because counsel failed to raise certain issues, (3) he was denied his right to effective assistance of appellate counsel because appellate counsel failed to raise certain issues on direct appeal, and (4) his due process rights were violated because there was insufficient evidence to support his conviction. See Dkt. ##1; 21 at 8. Because Petitioner did not file his federal habeas petition within the time limits set forth by AEDPA, the only way for the Court to address these claims on the merits is to find that Petitioner has shown that it is more likely than not that no reasonable juror could have found him guilty.
III. Discussion.
A. AEDPA's Statute of Limitations.
In its November 9, 2006 order, the Court agreed with the first R R that Petitioner's petition was untimely because it was not filed within one year of the effective date of AEDPA. Dkt. #19 at 2-3. The Court then remanded the petition to Magistrate Judge Aspey for consideration of Petitioner's Schlup actual innocence claim. Id. at 4. Respondents oppose the Court's consideration of a Schlup actual innocence claim, because while Schlup applies to a situation in which a petitioner's claims are procedurally defaulted, it does not apply explicitly to a situation in which a petitioner's claims are filed beyond AEDPA's statute of limitations. Dkt. #30 at 7. The R R correctly notes that the circuit courts of appeal disagree on whether a showing of actual innocence warrants equitable tolling of AEDPA's statute of limitations. Dkt. #21 at 12; compare, e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir. 2005) (actual innocence does not excuse untimely filing); David v. Hall, 318 F.3d 343, 347 (1st Cir. 2003) (same); with Souter v. Jones, 395 F.3d 577, 599 (6th Cir. 2005) (actual innocence may excuse belated filing); Flanders v. Graves, 299 F.3d 974, 978 (8th Cir. 2002) (actual innocence may warrant equitable tolling of AEDPA's statute of limitations provided petitioner can show he was prevented from discovering facts in a timely fashion). The Ninth Circuit has not squarely addressed the issue. See Majoy, 296 F.3d at 776-77 (the question of "whether surviving the rigors of this [Schlup] gateway has the consequence of overriding AEDPA's one-year statute of limitation [is] a legal question not yet decided by this Circuit or the Supreme Court.").
Respondents argue that AEDPA's statute of limitations must be treated as a jurisdictional requirement, and that Petitioner's failure to file his federal habeas petition within one year of AEDPA's passage strips the Court of authority to consider the petition. Dkt. #21 at 30. Respondents cite the recent Supreme Court case of Bowles v. Russell, which held that the timely filing of an appeal in a civil case is a jurisdictional requirement. 127 S.Ct. 2360, 2366 (2007). The Court in Bowles reasoned that because federal statutes set forth time limits on filing a notice of appeal and reopening the appeal period, Congress intended to preclude a court's jurisdiction over otherwise legitimate cases after a certain period of time had elapsed from final judgment. Id.
Like the federal statutes at issue in Bowles, AEDPA sets time limits on when a petitioner must file his claim. See 28 U.S.C. § 2244(d)(1). The Supreme Court has twice denied certiorari on the question of whether these limits are jurisdictional. See David v. Hall, 540 U.S. 815 (2003); Flanders v. Graves, 537 U.S. 1236 (2002). If the Supreme Court were to address this issue it might follow the reasoning in Bowles and find the AEDPA limitations provisions jurisdictional. The Supreme Court might also reach a different result, however, because the Court has "repeatedly noted the interplay between statutory language and judicially managed equitable considerations in the development of habeas corpus jurisprudence." Schlup, 513 U.S. at 319 n. 35.
Despite these unanswered questions and the inviting challenge of seeking resolution of the jurisdictional question, the Court will not address the jurisdictional issue at this stage. The Ninth Circuit has suggested that courts should review the merits of an actual innocence claim before deciding the statute of limitations issue. This is because serious constitutional questions involving the Due Process Clause, Suspension Clause, and Eighth Amendment could arise from preventing a petitioner who may be actually innocent from pursuing untimely habeas claims. Majoy, 296 F.3d at 776 (citing cases). To avoid wrestling with these important constitutional issues unnecessarily, courts should first determine whether an actual innocence argument is viable. Id. Other courts have endorsed this approach. See, e.g., Souter v. Jones, 395 F.3d at 589 ("Adhering to this principle of judicial restraint, we too will resolve the issue of whether Souter has put forth a credible claim of actual innocence before addressing the existence of the exception itself."); Whitley v. Senkowski, 317 F.3d 223 (2d Cir. 2003) (same); Wyzykowski v. Dep't of Corrs., 226 F.3d 1213, 1218 (11th Cir. 2000) ("The factual issue of whether the petitioner can make a showing of actual innocence should be first addressed, before addressing the constitutional issue of whether the Suspension Clause requires such an exception for actual innocence."). Consistent with this policy of judicial restraint, the Court will first address the merits of Petitioner's actual innocence claim.
B. Petitioner's Actual Innocence Objections.
Petitioner makes several objections to the R R. Dkt. #24. The Court will address them in turn, construing the objections liberally to ensure full treatment of Petitioner's arguments.
1. Salaiz and Enriquez statements.
Petitioner submits notarized statements from his aunt, Hope Salaiz, and his mother, Amollia Enriquez. Dkt. #1, Exs. 2-3. Both statements were given on June 30, 1994. Id.
Salaiz states that Petitioner's wife and step-daughter (whom he allegedly molested) told Salaiz that Petitioner was innocent. Dkt. #1, Ex. 2. According to Salaiz, Petitioner's wife said she fabricated the charges against Petitioner to get a divorce. Id. Salaiz states that she told prosecutor Lisa Roberts and defense attorney Ed Bassette about her conversation with the wife, but was never asked about it in court. Id. Salaiz states that Roberts told her that Roberts had lost a case involving Petitioner once and "wanted to see him hang." Id.
Enriquez states that Petitioner's wife often used drugs and treated her children poorly. Dkt. #1, Ex. 3. Enriquez claims the wife drove Petitioner away from Enriquez to the extent that Enriquez did not know Petitioner had been arrested until seeing the wife at a bar in October of 1988. Id. Enriquez claims that the wife told her in the bar's restroom that Petitioner was in jail because of the wife's daughter and that the wife needed Petitioner out of the way so she could divorce him. Enriquez reports that this comment made her "livid with rage" and near the point of assaulting the wife, and that the wife then "started to change her story around, stating that she knew [Petitioner] had not done it." Id.
These statements do not constitute the type of "new reliable evidence" necessary to support a gateway claim of actual innocence. Schlup, 513 U.S. at 324. Examples of sufficient evidence include "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Id. The statements by Salaiz and Enriquez are neither from eyewitnesses nor trustworthy. Salaiz's statement is vague and internally inconsistent, asserting initially that Petitioner's wife said she was afraid of Petitioner and later that the wife viewed Petitioner as a good father who could be trusted with her children. Dkt. #1, Ex. 2. Enriquez's statement is also unclear, and reasonably can be read as suggesting that the wife initially said Petitioner was in jail because he molested her daughter (a convenient fact, the wife said, because she wanted a divorce), and then asserted Petitioner's innocence only when Enriquez became enraged. Such a reading would suggest that the wife's exculpatory statement was defensive, intended to appease an angry Enriquez.
Moreover, although each statement is notarized and titled "Affidavit," neither was made under oath. And both Salaiz and Enriquez are interested witnesses — Petitioner's aunt and mother. What is more, both women testified during various phases of Petitioner's criminal proceedings and never mentioned the alleged conversations with Petitioner's wife. Although Petitioner attributes this to ineffective assistance of counsel, it is at least curious that neither woman would have volunteered such a critical fact during her testimony.
In determining whether Petitioner has made his actual innocence showing, the Court may consider the credibility of the proffered witnesses and the reliability of their purported testimony. Schlup, 513 U.S. at 327, 332. For the reasons explained, the Court cannot conclude that the statements of Salaiz and Enriquez shift the balance of evidence sufficiently to make it more likely than not that no reasonable juror could have convicted Petitioner.
2. The wife's letter.
Petitioner also includes an undated letter, purportedly received from his wife. The letter contains this statement, among others:
I need to tell you something that may help you get out of there. But no one can know that I gave you the information. . . . But the real problem is me and one other person know's what I'm going to tell you and the other person is [Prosecutor] Lisa Roberts. So it can be hard on me still[.]
Dkt. #1, Ex. 4. The letter does not state what the ex-wife and prosecutor knew. Nor does it assert that Petitioner is innocent. The lack of a date further diminishes the letter's probative value; it could have referred to the first time Petitioner was accused of molestation, charges that later were dismissed by Prosecutor Roberts. See Dkt. #24 at 8. As with the statements of Salaiz and Enriquez, the Court cannot conclude that the letter constitutes the kind of new and reliable evidence that will support an actual innocence claim. See Majoy, 296 F.3d at 776.
3. Petitioner's statement.
Petitioner includes his own sworn statement, in which he makes a variety of arguments relating to the credibility of trial witnesses. Dkt. #1, Ex. 1. He states that his wife committed welfare fraud. Id. He claims that a prosecution witness, his former neighbor, was frequently drunk and often mentioned that she was molested as a child. Id. He claims that his attorney did not ask him to testify to these facts. Id. As the R R points out, however, the trial court allowed defense counsel to impeach Petitioner's wife's testimony by presenting the fact of a prior felony conviction to the jury. Dkt. #21 at 15. Petitioner's statements about the former neighbor are of minimal probative value in assessing the accuracy of the verdict.
4. Medical evidence.
Petitioner's statement also asserts that it was medically impossible for him to have sexually molested his step-daughter. Dkt. ##1, Ex. 1; 24 at 6. He contends that after his arrest but before his trial, he was notified that the alleged victim was experiencing her first menstrual cycle. Dkt. #1, Ex. 1. While being treated for a brain cyst, Petitioner spoke with one Dr. Penille, who explained the Tanner stages of female development and allegedly told Petitioner that his step-daughter would almost certainly have shown signs of penetration if she were molested several months pre-menstruation. Id; Dkt. #24 at 6.
The R R concludes that Petitioner's argument does not establish actual innocence because it is unaccompanied by other "admissible" evidence and because it would have been available to Petitioner at the time of trial and therefore is not new evidence. Dkt. #21. But evidence need not be admissible to support a successful actual innocence claim. Schlup, 513 U.S. at 327-28. Nor does it matter that the evidence is not "newly discovered." The Ninth Circuit holds that the proper inquiry is whether the evidence is "newly presented." Griffin v. Johnson, 350 F.3d 956, 962-63 (9th Cir. 2003). For reasons to be explained, the Court nonetheless concludes that Petitioner has not made out a claim of actual innocence.
This evidence does not satisfy the actual innocence standard. Petitioner is merely recounting a conversation he had with one doctor who was examining him for reasons unrelated to the molestation allegations. There is no indication of the doctor's expertise or the information he was relying on to express an opinion, and there is no affidavit or other evidence from the doctor explaining this conversation. Respondents also note that Petitioner likely misrepresented the facts to Dr. Penille because evidence at trial showed the victim was in Tanner Stage 3, not Tanner Stage 2, as Petitioner apparently suggested to Dr. Penille. Dkt. #30 at 10, Ex. RR at 31. Dr. Kay Routh-Farley testified at trial that she had examined the victim, that her findings were inconclusive, and that the examination would support findings that the victim had and had not been penetrated repeatedly. Id., Ex. RR at 31-32.
5. Allegedly missing medical evidence.
Petitioner asserts that the victim underwent two medical examinations by the state, at which the doctors reported she had not been molested, and that these doctors did not testify at trial. Dkt. #24 at 7. Petitioner provides no evidence other than his own statements that the state conducted these examinations. The Court previously searched the record in this case and found no evidence of the examinations.
Nevertheless, to address Petitioner's claim that medical evidence had been withheld, the Court entered an order directing Respondents to review Petitioner's file and come forward with any exculpatory evidence in their possession. Dkt. #27. Applying Thomas v. Goldsmith, 979 F.2d 746 (9th Cir. 1992), the Court noted that Petitioner's allegations raised the possibility of the rare case in which Petitioner may be able to meet the Schlup actual innocence standard only through exculpatory evidence in Respondent's possession. Id. In Thomas, the Ninth Circuit held that the "state is under an obligation to come forward with any exculpatory evidence in its possession" and further instructed that "[i]f no such evidence exists, the state need only advise the district court of that fact." Id. at 749-50.
In response to the Court's order, Respondents reviewed the case file and averred to the Court that "there are no medical reports, exculpatory or otherwise, that have been withheld from Petitioner (or that were withheld from jury consideration)." Dkt. #30 at 4-5, Exs. NN-VV. Respondents further avowed that "[t]here is no indication in the record that there ever were any other medical examinations or results that were undisclosed to Petitioner. Respondents possess no other information concerning alleged `medical examinations.'" Id. at 6 (footnote omitted).
Respondents explain that Petitioner's allegation of two exculpatory medical exams conducted by people who did not testify at trial likely refers to the physician and nurse who examined the victim during her initial emergency room visit and who were listed as potential trial witnesses. Id. at 5 (citing Dkt. #24, Ex. 1). These individuals conducted tests on the victim with a sexual assault kit and determined that no sperm was found in the victim's vagina. Dkt. #30, Exs. QQ at 11, 67, 77, 93-97; RR at 45, 54-56. Although the doctor and nurse did not testify at trial, their findings were presented to the jury and were consistent with the victim's testimony that Petitioner did not ejaculate inside her and often made her use a douche after any sexual contact so that she did not get pregnant and so the "doctor couldn't find evidence." Dkt. #30, Ex. PP at 35, 38, 39.
The Court is satisfied that Respondents have reviewed Petitioner's case file and have found no evidence of exculpatory medical examinations or any other forms of exculpatory evidence. Although the victim's initial medical examination did not yield proof of sexual penetration, there was testimony and evidence adduced at trial that supported the jury's belief that Petitioner molested the victim. Petitioner's "bare allegations, unsupplemented by evidence, do not tend to establish his actual innocence[.]" Thomas, 979 F.2d at 750.
Petitioner further objects that when Dr. Kay Routh-Farley testified that it was "possible" that the victim had been molested, the defense attorney did not ask any follow-up questions and did not call any defense medical experts. Dkt. #24 at 7. This is a merits issue on Petitioner's claim of ineffective assistance of counsel that the Court may not address unless Petitioner meets the Schlup actual innocence exception.
6. Cumulative evaluation.
Petitioner correctly notes that any evidence of his actual innocence must be assessed cumulatively, even if each piece does not suffice to meet the Schlup standard individually. See Dkt. #24 at 7, 9; Schlup, 513 U.S. at 328 (the "habeas court must make its determination concerning petitioner's innocence `in light of all the evidence[.]'"). The Court has considered the cumulative effect of the evidence discussed above and cannot conclude that it satisfies the gateway actual innocence standard. Ambiguous and unsworn statements from Salaiz and Enriquez, an ambiguous and undated letter from Petitioner's wife, arguments about the credibility of witnesses, Petitioner's report of a conversation with a doctor, and uncorroborated accusations of missing medical examinations, even when considered together, simply do not show that it is more likely than not that no reasonable juror would have found Petitioner guilty at trial. Schlup, 513 U.S. at 327. Because Petitioner has not satisfied the Schlup actual innocence requirement, he cannot toll the AEDPA statute of limitations even if such tolling is possible. The petition remains untimely.
C. Petitioner's Miscellaneous Objections.
Although Petitioner's failure to show his actual innocence precludes the Court from considering the merits of his petition, the Court will briefly address several additional objections.
Petitioner repeatedly asserts a claim of substantive innocence distinct from his gateway actual innocence claim under Schlup. Dkt. #24 at 2-4, 11. Petitioner cites Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006), for the proposition that he be allowed to assert such a substantive innocence claim for the first time in his objections to the R R. Id. at 3. Contrary to Petitioner's belief, Smith dealt with the same type of gateway actual innocence claim the Court addresses here, but noted in dictum that the Schlup actual innocence inquiry is a less stringent standard than a substantive actual innocence claim, in which the petitioner must affirmatively prove that he is probably innocent. Id. at 812 (citing Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)). Even assuming that Petitioner may assert a substantive claim for the first time in his objections, the discussion above shows why he has not satisfied this higher standard.
Smith v. Baldwin has been submitted to the Ninth Circuit for en banc review. See 482 F.3d 1156 (9th Cir. 2007).
Petitioner continues to discuss the medical examinations, stating that he notified his trial attorney and all of his state appellate and post-conviction relief attorneys to investigate whether medical evidence could exonerate him. Dkt. #24 at 7. According to Petitioner, "[n]one of the attorneys would do so and none would even make a single inquiry." Id. Petitioner acknowledges that without credible medical expert testimony, it is difficult for him to establish his actual innocence, but "without court intervention, [he] cannot obtain the assistance of an expert who would prove his innocence." Id. Petitioner requests the assistance of an attorney in obtaining the allegedly suppressed evidence of the first two medical examinations and also requests a newly appointed medical expert who "will prove he is innocent." Id. at 2, 7; Dkt. #31 at 6.
By requiring Respondents to disclose any exculpatory evidence in its possession, the Court has addressed Petitioner's arguments regarding the difficulty of obtaining exculpatory evidence in Respondents' control. See Thomas, 979 F.2d at 749-50. Petitioner argues that Respondents violated the Court's order by not providing medical reports (Dkt. #31 at 5), but the Court's order clearly stated, in accord with Thomas, that Respondents need only turn over medical evidence that was exculpatory. Moreover, given the fact that the medical findings of the emergency room personnel and the inconclusive tests of Dr. Routh-Farley were presented to the jury in this case — in other words, that the jury knew there was no sperm found in the victim and that the victim's physical condition did not clearly show that molestation had occurred — there is no basis to believe that a Court-appointed attorney or medical expert would assist Petitioner in meeting the Schlup standard.
Petitioner next objects "to the extent that the second R R attempts to mischaracterize the Schlup claim as relying solely upon fabricated testimony evidence[.]" Dkt. #24 at 5. Petitioner states that the core of his claim is that a medical expert given the facts would find it scientifically impossible for Petitioner to be guilty. Id. The R R did not disregard this core assertion ( see Dkt. #21), and, in any event, this Court has addressed it above.
Petitioner also objects to the R R's conclusion that "trial counsel did, evidently, present expert medical testimony on behalf of Petitioner." Dkt. ##21 at 19 (citing Dkt. #11, Ex. D); 24 at 11. Petitioner claims that he did not have a medical expert who consulted with his trial attorney or testified on his behalf at trial. Dkt. #24 at 6. Even if this is true, it does not alter the conclusion that Petitioner has failed in this Court to establish gateway actual innocence.
Petitioner next argues that because Respondents have not contested his allegation that "any medical expert who is given the correct patient history, medical findings, and Lindley's anatomical measurements" will undeniably testify that he is innocent, the Court must accept these allegations as true. Dkt. #24 at 6. Respondents did address this argument in their response. Dkt. #30 at 10. Their failure to respond previously will not be deemed an admission that Petitioner is innocent.
Petitioner makes two new objections to the R R's treatment of the merits of his habeas claims. First, he asserts that the R R ignored evidence of bias on the part of one juror during voir dire. Dkt. #24 at 9. Next, Petitioner argues that the R R erred in concluding that the state had properly addressed Petitioner's claim of ineffectiveness of trial and appellate counsel. Dkt. #24 at 10. Because these issues deal with the merits of Petitioner's untimely habeas petition, the Court will not address them. The R R's treatment of these issues does not alter the Court's actual innocence conclusion set forth above.
Although the R R concluded that Petitioner had not satisfied the Schlup actual innocence standard, it proceeded to address the merits of the habeas petition. Dkt. #21 at 17. In objecting to this section of the R R, Petitioner reasserted objections that the Court has discussed elsewhere in this order. The Court will not repeat that discussion here.
Petitioner also objects to the R R's finding that Petitioner failed to act with due diligence that would entitle him to a tolling of the statute of limitations. Dkt. #21 at 21. The R R cites Eighth and Tenth Circuit law in imposing this requirement. See Flanders, 299 F.3d at 978; Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Because the Court finds that Petitioner has not satisfied the Schlup actual innocence standard, the Court need not address whether a due diligence requirement applies in the Ninth Circuit.
Finally, Petitioner states that he has obtained literature on sexual assault and asks that the Court allow him to supplement his objections with these documents or "to consider [these] document[s] sight-unseen as establishing that no penetration crime took place." Dkt. ##24 at 12; 28 at 1. The documents include a brochure entitled "Guidelines" and a 1994 article entitled "Medical Consideration in the Diagnosis of Child Sexual Abuse," published by the Institute for Psychological Therapies. Dkt. #28 at 1. Petitioner submitted the latter article without leave of court. Dkt. #31-2 at 4. The Court has reviewed this document and finds that it does not pertain specifically to Petitioner's case and does not help demonstrate that no reasonable juror could have convicted him. See Schlup, 513 U.S. at 327. Nor, given the Court's evaluation of the arguments set forth above, does the Court conclude that reviewing the brochure would produce a different outcome.
IT IS ORDERED:
1. Magistrate Judge Aspey's R R (Dkt. #21) is accepted.
2. Petitioner Lindley's petition for writ of habeas corpus (Dkt. #1) is denied.
3. Petitioner's motion to appoint counsel (Dkt. #31) is denied.
4. The Clerk is directed to terminate this matter.