UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CAYLIN PATRICK BLACK, )

)

Petitioner, )

) 

v. ) Case No. 2:14-CV-423

)

SUPERINTENDENT, )

)

Respondent. )

OPINION AND ORDER

Caylin Patrick Black, a pro se prisoner, filed a petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his

conviction and 40 year sentence by the Grant Superior Court on

September 1, 2009, under cause number 27D02-0802-FA-14. (DE 1.) 

BACKGROUND

In deciding this habeas petition, the Court must presume the

facts set forth by the state courts are correct. 28 U.S.C. §

2254(e)(1). It is Black’s burden to rebut this presumption with

clear and convincing evidence. Id. On direct appeal, the Indiana

Court of Appeals set forth the facts surrounding Black’s offense as

follows:

On September 25, 2007, the Grant County JEAN team

drug task force conducted a controlled buy of cocaine

from Black. Marion Police Department Detective Ross Allen

was the lead detective, while Marion Police Department

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Detective Sergeant Mark Stefanatos and Grant County

Sheriff’s Department Lieutenant Michael Andru also

participated in the operation. They used a confidential

informant, Maurice Rogers, to select the dealer. Rogers

was working with the police in exchange for the dismissal

of three class B felony cocaine delivery charges. The

officers equipped Rogers with a camera and a listening

device, searched him prior to the buy, provided him with

five hundred dollars of buy money, and dropped Rogers off

in Black’s neighborhood. Rogers had telephoned Black in

advance to arrange the buy. Once there, Rogers met with

Black, went inside Black’s home, gave him the buy money,

and Black gave Rogers the cocaine. The cocaine weighed

6.94 grams. The transaction was recorded. 

The State charged Black with one count of dealing in

cocaine as a class A felony and filed an habitual

offender enhancement. A jury found Black guilty of

dealing in cocaine as a class A felony and the State

dismissed the habitual offender enhancement. The trial

court sentenced Black to a term of forty years executed. 

Black v. State, Cause No. 27A04-0909-CR-501 (Ind. Ct. App. June 10,

2008); DE 8-5. 

After his conviction, Black appealed, arguing: (1) his right

to a speedy trial was violated; (2) the trial court improperly

limited cross-examination of the confidential informant; (3) the

prosecutor improperly withheld impeachment evidence violating due

process; and (4) trial counsel was ineffective for failing to

object to the admission of the cocaine. (DE 8-3.) The Indiana Court

of Appeals affirmed Black’s conviction and sentence. (DE 8-5.)

Black then sought transfer from the Indiana Supreme Court, arguing:

(1) the State violated Indiana Criminal Rule 4; (2) the trial court

improperly limited cross-examination of the confidential informant;

(3) the court of appeals erred when it found Black’s claim under

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Brady v. Maryland to be waived; and (5) trial counsel was

ineffective for failing to object to the admission of the cocaine.

(DE 8-6.) The Indiana Supreme Court denied transfer.

On March 23, 2012, Black filed an amended petition for postconviction relief in State court. (DE 8-7; 8-8.) After a hearing,

the post-conviction court denied Black’s request for postconviction relief. (DE 6-1; DE 8-8.) Black appealed, arguing that:

(1) the State failed to disclose the confidential informant’s prior

theft conviction; (2) newly discovered evidence that the

confidential informant had a mental illness warrants a new trial;

(3) the trial court improperly limited cross examination of the

confidential informant. (DE 8-9; 8-10.) The Indiana Court of

Appeals denied Black’s appeal. (DE 8-9; 8-12.) Black sought

transfer to the Indiana Supreme Court, claiming: (1) the trial

court improperly limited cross examination of the confidential

informant; and (2) the State failed to disclose a prior theft

conviction of the confidential informant in violation of Brady v.

Maryland. (DE 8-13.) The Indiana Supreme Court denied transfer. (DE

8-9.)

On November 17, 2014, Black filed this federal habeas petition

challenging his conviction and sentence, arguing that: (1) the

trial court improperly limited cross-examination of the

confidential informant; (2) the trial court violated his speedy

trial right under Indiana Criminal Rule 4(A); (3) the State

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improperly delayed disclosure of the confidential informant’s

criminal history; (4) the State failed to disclose the confidential

informant’s past theft conviction; (5) trial counsel was

ineffective for failing to object to the admission of the cocaine;

(6) trial counsel was ineffective for failing to investigate the

confidential informant’s mental health history; and (7) trial

counsel was ineffective for conceding Black’s guilt during closing

argument. (DE 1.)

DISCUSSION

 Black’s petition is governed by the provisions of the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA allows a

district court to issue a writ of habeas corpus on behalf of a

person in custody pursuant to a state court judgment “only on the

ground that he is in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a). The

court can grant an application for habeas relief if it meets the

requirements of 28 U.S.C. § 2254(d), which provides:

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

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unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). 

[This] standard is intentionally difficult to meet. We

have explained that clearly established Federal law for

purposes of §2254(d)(1) includes only the holdings, as

opposed to the dicta, of this Court’s decisions. And an

unreasonable application of those holdings must be

objectively unreasonable, not merely wrong; even clear

error will not suffice. To satisfy this high bar, a

habeas petitioner is required to show that the state

court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an

error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.

Woods v. Donald, 575 U.S. __, __; 135 S.Ct. 1372, 1376 (2015).

(quotation marks and citations omitted).

Ground One

Black claims that he was denied his Sixth Amendment right to

confront witnesses when the trial court limited his cross

examination of the confidential informant, Maurice Rogers. He

argues that the trial court should have allowed him to ask Rogers

about the possible penalties Rogers would have faced - including

with his habitual offender status - had he not entered into an

agreement with the State to act as a confidential informant. Black

claims the jury could have had a different impression of Rogers’

credibility had they been told about these potential penalties.

The Sixth Amendment to the United States Constitution

guarantees the right of an accused in a criminal prosecution to be

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confronted by the witnesses against him. Davis v. Alaska, 415 U.S.

308, 315 (1974) (citing U.S. Const. amend VI). The right to

confront includes the opportunity of cross-examination. Delaware v.

Van Arsdall, 475 U.S. 673, 678-79 (1986). Exposing a witness’

motivation in testifying is an “important function” of cross

examination. Id. Yet, “trial judges retain wide latitude insofar as

the confrontation clause is concerned to impose reasonable limits

on . . . cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only

marginally relevant.” Id. at 679. 

The Indiana Court of Appeals determined that Black’s challenge

to the limits the trial court placed on his cross-examination of

Rogers had no merit.

Further, the trial court did not abuse its discretion by

limiting Black’s ability to introduce evidence of

Rogers’s potential sentencing exposure had he not chosen

to work for the State as a confidential informant. The

sentence Rogers potentially faced could have been

anything ranging between six and sixty years without

consideration of an habitual offender enhancement. Black

had already established Rogers’s bias and his desire to

help the State in order to avoid a prison sentence. Even

if we were to conclude that the trial court abused its

discretion by so limiting Black’s cross-examination of

Rogers, a conclusion we do not reach here, any error

would be harmless given the strength of the State’s case

against Black. 

(DE 8-5 at 8).

The Indiana Court of Appeals’ decision was neither contrary

to, nor involved an unreasonable application of, clearly

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established federal law. As the court of appeals noted, and

consistent with Supreme Court precedent, the trial court has wide

latitude to impose reasonable limits on cross-examination. The

court of appeals analyzed the decision of the trial court and

determined that the trial court allowed cross examination in a

manner that exposed Rogers’ bias and comported with Black’s

confrontation rights. The court of appeals noted that the trial

court decided to limit the cross examination because it was

speculative and because bias had already been established. The

reasons given were all consisted with established federal law.

Moreover, the trial court’s decision to limit cross

examination is supported by the facts of the case. At trial,

defense counsel questioned Rogers regarding the potential penalties

he faced before agreeing to be a confidential informant. The jury

heard that Rogers faced three felony drug charges and that he was

required to assist the police in Black’s arrest in exchange for

dismissal of those charges. (Tr. 318-19; 366-383). It is unclear

what further probative value would be achieved in providing the

jury with additional information regarding maximum penalties faced

for being a habitual offender. As a result, the court cannot say

the that limitation on cross examination was improper or a basis

for habeas relief.

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Ground Two

Black claims that his Sixth Amendment right to a speedy trial

was violated when the court took over seventeen months after his

arrest to be tried.1 A Sixth Amendment Speedy trial claim is

evaluated by applying a balancing test:

That four-part test considers: whether delay before trial

was uncommonly long, whether the government or the

criminal defendant is more to blame for that delay,

whether, in due course, the defendant asserted his right

to a speedy trial, and whether he suffered prejudice as

the delay's result.

Ashburn v. Korte, 761 F.3d 741, 751-752 (7th Cir. Ill. 2014)

(citations and quotations omitted). A delay of more than one year

is presumptively prejudicial, Doggett v. United States, 505 U.S.

647, 651 (1992), but depending on the circumstances, delays of more

than five years may not be a denial of a defendant’s constitutional

right to a speedy trial. Barker v. Wingo, 407 U.S. 530 (1972).

The Indiana Court of Appeals, citing to above the four-part

test, determined that no speedy trial violation occurred:

Our review of the record before us leads to the

conclusion that Black’s constitutional right to a speedy

trial was not violated. The delay between the time of

Black’s arrest and his trial is attributable to

congestion of the court’s calendar and Black’s own

request for a continuance. The prosecution had no reason

for delay. Black did not object to the August 10, 2009

trial date until July 6, 2009. Further, Black has failed

1 To the extent Black argues that his speedy trial rights under Rule

4(A) were violated, that is not cognizable. Federal habeas relief is only

available to a person in custody in violation of federal law. 28 U.S.C. §

2254(a). Federal habeas relief is unavailable to remedy errors of state law.

Dellinger v. Brown, 301 F.3d 758, 764 (7th Cir. 2002).

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to establish prejudice. We conclude that Black has failed

to show that his constitutional right to a speedy trial

was violated.

(DE 8-5 at 6.)

The Indiana Court of Appeals’ decision was neither contrary

to, nor involved an unreasonable application of, clearly

established federal law. As the court of appeals noted, and

consistent with Supreme Court precedent, the speedy trial analysis

is a fluid test. In analyzing this test, the court of appeals

considered the length of the delay, the defendant’s late assertion

of his right to a speedy trial, the fact that the government was

not to blame for the delay and the absence of any prejudice

suffered by the defendant. The reasons given were all consisted

with established federal law. Black has provided nothing to refute

the court of appeals decision. Therefore, there is no basis to

grant habeas relief.

Ground Three

Black argues that the State violated his due process rights

when it did not provide him with Rogers’ criminal history until ten

days before trial. Such a delay, Black contends, is violative of

the constitution.

“When the government deliberately or inadvertently withholds

evidence that is material and favorable to the defense, it violates

the defendant’s right to a fair trial, which is guaranteed by due

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process.” Ben-Yisrayl v. Buss, 540 F.3d 542, 552 (7th Cir. 2008)

(citing Brady v. Maryland, 373 U.S. 83 (1963).) The government has

a duty to disclose impeaching or exculpatory information,

regardless of whether it is specifically requested by the

defendant. Id. This includes information about an agreement, either

express or tacit, between the prosecution and a state witness.

Wisehart v. Davis, 408 F.3d 321, 324 (7th Cir. 2008). 

The Indiana Court of Appeals found that Black waived this

claim. Nevertheless, it went on and properly identified these

governing principles in resolving Black’s Brady claim and

determined no Brady violation existed. (DE 8-5 at 9-10.) 

The defense not only knew about the existence of Rogers’s

prior criminal history before trial, but attempted to

have Rogers’s entire criminal history introduced as

Defendant Exhibit E.

The record presented to us on appeal fails to establish

that the State suppressed or failed to disclose Rogers’s

criminal record. The record shows that the State filed

discovery notices and turned over discovery, although

what items were included in that discovery is not clear.

Nonetheless, assuming without deciding that the State

possessed the criminal records, but did not disclose

them, Black has failed to establish a Brady violation. If

favorable evidence becomes known to the defendant before

or during the course of a trial, Brady is not implicated.

(DE 8-5 at 10.) (citations omitted.) The Indiana Court of Appeals’

decision was neither contrary to, nor involved an unreasonable

application of, clearly established federal law. Indeed, here,

Black’s Brady claim - premised on not receiving the confidential

informant’s criminal history until ten days before trial - is not

a Brady violation at all. See e.g. United States v. Kelly, 14 F.3d

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1169, 1176 (7th Cir. 1994) (finding that the prosecutor disclosing

Brady material before the conclusion of the government’s case-inchief does not violate due process). Therefore, this claim is not

a basis for habeas relief.

Fourth Claim

Black raises a second Brady claim based on the State’s failure

to disclose Rogers’ 1999 conviction for theft. To prevail on a

Brady claim, a defendant must establish: (1)that the evidence was

suppressed by the prosecution; (2) that the evidence was favorable

to the defense; and (3) that the evidence was material to an issue

at trial. United States v. Grintjes, 237 F.3d 876, 880 (7th Cir.

2001) To be material to an issue, “there must be a reasonable

probability that, had the evidence been disclosed, the result of

the proceeding would have been different.” United States v. Bagley,

473 U.S. 667, 682 (1985).

 The Indiana Court of Appeals correctly set out the applicable

legal standards. (DE 8-5 at 9). In doing so, the court determined

that: 

Black has also failed to show that the 1999 theft

conviction was material to an issue at trial. It

reasoned that Black was allowed to cross-examine Rogers,

within reasonable limits, about his criminal history and

that he was facing three class B felony charges when he

decided to work as a confidential informant for the

State. . .. There was no Brady violation here.

(DE 8-5 at 10.) Thus, the court concluded that even if defense

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counsel could have questioned Rogers on a ten year old theft

conviction, the outcome would not have been different. 

The Indiana Court of Appeals’ decision was neither contrary

to, nor involved an unreasonable application of, clearly

established federal law. Although Black claims that attacking

Rogers’ credibility with the theft conviction was necessary, the

jury was presented with significant information challenging

Rogers’s credibility. As the Respondent correctly notes, at trial

the defense pointed out:

(1) that the informant faced “serious” charges before

working as a confidential informant (Tr. 383); (2) that

the informant was doing what he had to do to avoid prison

time, in that he “desperately” did not want to go to

prison (Tr. 383); (3) that the informant is a heroin user

and / or heroin addict (Tr. 336); (4) that the informant

was required to assist in the arrest of Petitioner in

exchange for a reduction or dismissal of the charges he

faced (Tr. 337); (5) that the informant, and not the

police, selected the dealers he would buy from as a

confidential informant (Tr. 340); (6) that charges

against the confidential informant were indeed dismissed

(Tr. 340); and (7) that the confidential informant had

worked another time as a confidential informant, thus

establishing the inference of a lengthier criminal

history than the one established by the latter plea

agreement alone (Tr. 358, 362, 363). 

(DE 8 at 19). Even without the 1999 theft conviction, Rogers’

credibility was sufficiently challenged. Thus, the court can not

say that further attacking Rogers’ credibility with the 1999 theft

conviction would have altered the outcome.

Moreover, while Black argues that his conviction rises and

falls on Rogers’ credibility, there is more evidence of Black’s

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guilt in this case than just Rogers’ testimony. Law enforcement

equipped Rogers with a camera and a listening device to record a

drug purchase from Caylin Black. (Tr. 281-286). Officers also strip

searched him prior to the buy and provided Rogers with five hundred

dollars ($500) of buy money and dropped him off in Black’s

neighborhood. (Tr. 318-327, 385-389, 392-402). After the police

dropped Rogers off near the site of the delivery, Rogers met with

Black outside of Black’s home, they then went inside the home. (Ex.

1) Rogers gave Black the $500 and Black gave Rogers cocaine. (Ex.

1; Tr. 324). Officers then picked Rogers up before he interacted

with anyone else. Even though the drug transaction itself was not

caught on camera, it is obvious that it took place. Rogers went

into Black’s home with $500 and no cocaine. He came out of Black’s

home with cocaine and no money. Because of this additional

evidence, Black’s conviction did not hinge on Rogers’ credibility

alone. Thus, the admission of Rogers’ 1999 theft conviction would

not have altered the outcome of the trial and this ground is not a

basis for habeas relief.

Ground Five

Black contends that he received ineffective assistance of

counsel because trial counsel failed to challenge the weight of the

cocaine. Under the Sixth Amendment, a criminal defendant is

entitled to “effective assistance of counsel—that is,

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representation that does not fall below an objective standard of

reasonableness in light of prevailing professional norms.” Bobby v.

Van Hook, 558 U.S. 4, 16 (2009). To prevail on such a claim, the

petitioner must show that counsel’s performance was deficient and

that the deficient performance prejudiced him. Strickland v.

Washington, 466 U.S. 668 (1984). 

The Indiana Court of Appeals cited this standard and, upon

examining the record, found that

[D]uring the testimony of Detective Ross Allen, the State

moved to admit State’s Exhibit 3, the cocaine, and

Exhibit 5, the evidence sheet. Black’s trial counsel

objected to their admission on chain of custody grounds,

a discrepancy regarding the weight of the cocaine, and

the lack of evidence that the laboratory scales used to

weight the cocaine were certified. Black’s counsel made

the very argument that Black claims his counsel failed to

make. Trial counsel simply made the argument during the

State’s attempt to admit the evidence, and not earlier.

We conclude that Black has failed to establish that he

received ineffective assistance of counsel.

(DE 8-5 at 12.)

The Indiana Court of Appeals’ decision was correct. Black’s

counsel did object to the admission of cocaine based upon a

discrepancy of its weight. (Tr. 407-409). Because his counsel did

precisely what Black claims he did not do, this claim fails.

Grounds Six and Seven

In his final two grounds, Black alleges his trial counsel was

ineffective in two ways: (1) for failing to investigate Rogers’

mental health records; and (2) for admitting Black’s guilty during

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closing arguments. The respondent argues that both of these claims

are procedurally defaulted.

Before considering the merits of a habeas petition, a federal

court must ensure that the petitioner has exhausted all available

remedies in state court. 28 U.S.C. § 2254(b)(1)(A); Lewis v.

Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). The exhaustion

requirement is premised on concerns of comity; the state courts

must be given the first opportunity to address and correct

violations of their prisoner’s federal rights. O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999); Perruquet v. Briley, 390 F.3d

505, 514 (7th Cir. 2004). For that opportunity to be meaningful,

the petitioner must fairly present his constitutional claims in one

complete round of state review. Baldwin v. Reese, 541 U.S. 27,

30-31 (2004); Boerckel, 526 U.S. at 845.

The companion procedural default doctrine, also rooted in

comity concerns, precludes a federal court from reaching the merits

of a habeas petition when either: (1) the claim was presented to

the state courts and was denied on the basis of an adequate and

independent state procedural ground; or (2) the claim was not

presented to the state courts and it is clear those courts would

now find the claim procedurally barred under state law. Coleman v.

Thompson, 501 U.S. 722, 735 (1991); Perruquet, 390 F.3d at 514.

When a habeas petitioner fails to fairly present his claim to the

state courts and the opportunity to raise that claim has now

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passed, the claim is procedurally defaulted. Boerckel, 526 U.S. at

853-54.

The respondent claims that Black has not presented either of

these claims in one complete round of state review. In his

traverse, Black admits that these claims are procedurally

defaulted. (DE 15-1 at 39). Black filed a 52-page traverse in

support of his petition, but he does not assert any basis for this

court to excuse his procedural default concerning his ineffective

assistance claim against his attorney for conceding his guilt

during closing arguments. (See DE 15-1.) He does, however, seek to

be excused from not raising his ineffective assistance claim for

failing to investigate Rogers’ mental health records. (Id. at 39-

51.) Black claims that he did not have enough information to raise

this issue on direct appeal. (Id. at 41). This does not explain,

however, why Black did not raise and exhaust the issue during his

post conviction proceedings. Indeed, he had these materials during

his post-conviction proceeding. Thus, he seemingly could have

raised the issue there. That is typically when such claims arise

anyway.

Assuming arguendo that Black could overcome the procedural

default of his claim pertaining to counsel’s ineffectiveness for

failing to investigate Rogers’ mental health history, the claim

would fail on the merits. Black must show there is a reasonable

probability that “but for counsel’s unprofessional errors, the

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result of the proceeding would have been different.” Strickland,

466 U.S. at 694. A reasonable probability is a probability

“sufficient to undermine confidence in the outcome,” and it is not

enough “to show that the errors had some conceivable effect on the

outcome of the proceeding.” Id. at 693. Instead, counsel’s errors

must be “so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id. at 687. Where it is expedient

to do so, the Court may resolve an ineffective assistance claim

solely on the prejudice prong, because if the petitioner cannot

establish prejudice, there is no need to “grade” counsel’s

performance. Id. at 697.

Here, Black claims that his counsel failed to investigate and

discover Rogers’ mental health records, which could have been used

to impeach Rogers’ testimony and establish that he was not

credible. To the extent Rogers had shortcomings as a witness, the

jury was made aware of many of them. Rogers acknowledged during

cross-examination that he was a former heroin addict. (Tr. 336.) He

also admitted to having been working as a confidential informant in

exchange for having his drug charges dismissed. (Tr. 337.) Rogers

also admit that he had made prior inconsistent statements

throughout this case. (Tr. 346-349.) And, defense counsel also

established that Rogers had some memory issues. (Tr. 347.) Despite

the evidence negatively impacting Rogers’ credibility, the jurors,

who had the opportunity to see and hear her testimony first-hand,

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chose to believe him.

Black believes if the jury would have heard about Rogers’

mental health history, which included drug and alcohol dependency

and a diagnosis of being mildly mentally retarded, the jury would

not have believed his testimony and Black would not have been

convicted. This Court disagrees. To the extent the mental health

records would further diminish Rogers’ credibility as a witness,

the jury was already fully aware of many issues impacting his

credibility. The jury nevertheless chose to credit Rogers’

testimony. This is likely in large part due to corroborating

testimony from officers and the electronic surveillance. 

This Court cannot make a probabilistic determination that a

reasonable jury would reach a different result if it heard about

Rogers’ mental health history. See Whitlock v. Godinez, 51 F.3d 59,

64 (7th Cir. 1995) (petitioner did not establish actual innocence

based on new evidence that “add[ed] to the baggage” of the state’s

two principal witnesses, since the jury had been “well aware of

serious attacks upon the credibility” of these witness at trial).

While this type of circumstantial evidence might be “somewhat

probative,” it is not “direct evidence” of Black’s innocence like

eyewitness testimony or reliable physical evidence. See Whitlock,

51 F.3d at 64; Holmes v. Hardy, 608 F.3d 963, 968 (7th Cir. 2010)

(“troubling” new evidence impugning the credibility of state’s

witness did not establish actual innocence, since at best it

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established a “mere possibility” that a jury presented with the

evidence would have exonerated the petitioner, “not a probability,

as is required.”). Thus, this is not a ground for habeas relief.

Certificate of Appealability

As a final matter, pursuant to RULE 11 of the RULES GOVERNING

SECTION 2254 CASES, the Court must either issue or deny a certificate

of appealability in all cases where it enters a final order adverse

to the petitioner. To obtain a certificate of appealability, the

petitioner must make a substantial showing of the denial of a

constitutional right by establishing “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks and citation omitted). For the reasons fully

explained above, some of Black’s claims are procedurally defaulted,

and he has not provided any meritorious basis for excusing his

default. As to his non-defaulted claims, Black has not made a

substantial showing of the denial of a constitutional right, nor

could jurists of reason debate the outcome of the petition or find

a reason to encourage him to proceed further. Accordingly, the

Court declines to issue Black a certificate of appealability.

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CONCLUSION

For the reasons set forth above, the Court:

(1) DENIES the petition (DE 1); and

(2) DENIES the petitioner a certificate of appealability.

DATED: May 17, 2016 /s/RUDY LOZANO, Judge

United States District Court

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