UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

HENRY LEE SHELL, JR., 

 Petitioner, 

v. CAUSE NO.: 3:16-CV-127-RLM-MGG 

WARDEN, 

 Respondent. 

OPINION AND ORDER 

 Henry Lee Shell, Jr. a prisoner without a lawyer, filed a petition for writ of 

habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for 

dealing in methamphetamine and theft and his fourteen-year sentence by the 

Miami Circuit Court. 

BACKGROUND 

 A court deciding a habeas petition must presume the facts set forth by the 

state courts are correct. 28 U.S.C. § 2254(e)(1). It is Mr. Shell’s burden to rebut 

this presumption with clear and convincing evidence. Id. On appeal from the 

denial of post-conviction relief, the Indiana Court of Appeals set forth the facts 

surrounding Mr. Shell’s offenses as follows: 
2 

Crop Production Services, a Miami County company, requested 

police assistance regarding theft from its anhydrous ammonia 

tanks. The Indiana State Police established a surveillance team and 

posted officers throughout CPS's remotely located facility. There 

were approximately eight officers involved in this surveillance 

operation, which included the use of night-vision goggles and 

thermal imaging. 

A little after 1:00 a.m. on January 14, 2010, a pickup truck pulled 

up to CPS's anhydrous ammonia storage facility, and one person 

exited the truck. The officers did not see the person, who was 

wearing Carhartt-type clothing, carrying anything at this time. The 

person entered the fenced-in yard of the facility, quickly filled a 

pitcher with anhydrous ammonia, and ran out of the yard. The 

officers observed vapors rising from both the tank and the pitcher. 

The person then squatted down by a utility pole, set the pitcher 

down, and waited for a few minutes. The truck returned, picked up 

the person, and left. The officers followed and stopped the truck. 

There were four people inside the truck, including Shell. Shell, 

however, was the only person wearing Carhartt-type clothing, and 

an officer smelled a strong odor of anhydrous ammonia on his 

clothing. In addition, according to one of the occupants of the truck, 

they dropped off Shell at CPS's anhydrous ammonia storage facility 

and later returned to get him. Because no anhydrous ammonia was 

found in the truck, the officers returned to the utility pole where 

they had seen the person crouching and found the pitcher, which 

contained anhydrous ammonia and other ingredients used to 

manufacture methamphetamine, specifically, lithium and 

pseudoephedrine. The ingredients were in the beginning stages of 

manufacturing. The contents of the pitcher were later analyzed and 

determined to contain methamphetamine. Shell v. State, No. 52A04–

1107–CR–370, 2012 WT 1655164, at*1 (Ind.Ct.App. May 9, 2012), 

trans. denied.

The State charged Shell with Class B felony dealing in 

methamphetamine (manufacturing) and Class D felony theft. A jury 

trial was held in May 2011. During the trial, counsel unsuccessfully 

attempted to suppress all evidence resulting from the stop of the 

truck in which Shell was riding. Tr. p. 226–31. Also during the trial, 

Joni Espenschied, who was in the truck, high on methadone, and 

was arrested with Shell, testified that Shell got out of the truck and, 

after some time had passed, the truck stopped again to collect Shell 

from the side of the road. Id. at 269. She further testified that Shell 

was wearing a coat which matched the description given by the 

officers who observed the anhydrous ammonia theft. Id. at 275. 
3 

Shell was convicted as charged. The trial court sentenced Shell to 

fourteen years for dealing in methamphetamine and three years for 

theft, to be served concurrently. 

Shell v. State, No. 52A04-1107-CR-370, 2012 WL 1655164 (Ind. Ct. App. May 9, 

2012); See also Shell v. State, 43 N.E.3d 272 (Ind. Ct. App. Dec. 9, 2015) (table); 

(ECF 4-6; 4-13.) 

Mr. Shell argued on appeal that that there was insufficient evidence to 

support his conviction and that the trial court abused its discretion by refusing 

to give two jury instructions. The Indiana Court of Appeals affirmed Mr. Shell’s 

conviction and sentence. Shell v. State, 2012 WL 1655164, at *2. The Indiana 

Supreme Court, denied his petition for transfer. 

Mr. Shell filed a petition for post-conviction relief, later amended, in the 

Miami Circuit Court. (ECF 4-8.) After a hearing, the court denied Mr. Shell’s 

request for post-conviction relief. Mr. Shell appealed, arguing that he was denied 

the effective assistance of trial and appellate counsel. Shell v. State, 43 N.E.3d 

272. Mr. Shell argued that his trial counsel was ineffective because he didn’t 

move to suppress evidence gathered as a result of the stop of the truck and 

seizures of the pitcher, failed to impeach three different witnesses, and failed to 

timely tender preliminary jury instructions. Mr. Shell argued that his appellate 

counsel was ineffective because he didn’t argue that the initial stop of the truck 

and seizure of the pitcher were unconstitutional. The Court of Appeals of Indiana 

denied Mr. Shell’s appeal. Id. Mr. Shell sought transfer to the Indiana Supreme 

Court raising the same issues. The Indiana Supreme Court denied transfer. 
4 

Mr. Shell submitted this federal habeas petition challenging his 

convictions and sentence, arguing that: (1) he was arrested as a result of an 

unconstitutional search and seizure; (2) he received ineffective assistance of trial 

and appellate counsel; and (3) the state court proceedings on his post-conviction 

relief petition violated the Due Process Clause and Equal Protection Clause. 

DISCUSSION 

Procedural Default 

Before considering the merits of a habeas petition, the 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 

warden argues that procedural default bars two of Mr. Shell’s claims from review 

in federal court. “There are two distinct ways in which a state prisoner can 

procedurally default a federal claim.” Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 

2018). The first occurs in “cases where the state court declines to address a 

petitioner’s federal claims because the petitioner did not meet state procedural 

requirements.” Id. When a state procedural requirement hasn’t been met, “the 

state court judgment rests on an independent and adequate state ground and 

principles of comity and federalism dictate against upending the state-court 

conviction.” Thomas v. Williams, 822 F.3d 378, 384 (7th Cir. 2016) (citing 

Coleman v. Thompson, 501 U.S. 722, 729–30 (1991)). 

The second type of procedural default “stems from the requirement that a 

state prisoner must exhaust his remedies in state court before seeking relief in 
5 

federal court,” which requires the petitioner include his claims in “one complete 

round of the State’s established appellate review process.” Snow v. Pfister, 880 

F.3d at 864 (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). This 

means “the petitioner must raise the issue at each and every level in the state 

court system.” Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). A petitioner 

“who has exhausted his state court remedies without properly asserting his 

federal claim at each level of state review has procedurally defaulted that claim.” 

Id. at 1026. 

 Mr. Shell challenges the trial court’s admission of evidence resulting from 

the stop of the truck and seizure of the pitcher. Mr. Shell didn’t raise these 

arguments in his direct appeal. Shell v. State, 2012 WL 1655164, at *2. He tried 

to raise these arguments in his PCR, but the court of appeals declined to consider 

these arguments as freestanding claims because “[a] defendant in a 

postconviction proceeding may allege a claim of fundamental error only when 

asserting either (1) deprivation of the Sixth Amendment right to effective 

assistance of counsel, or (2) an issue demonstrably unavailable to the petitioner 

at the time of his or her trial and direct appeal.” Shell v. State, 43 N.E.3d 272 at 

n. 1 (quoting Lindsey v. State, 888 N.E.2d 319, 325 (Ind. Ct. App. 2008) (internal 

quotations, citations, and brackets omitted). Because the court of appeals 

disposed of Mr. Shell’s argument on an independent state law ground, this court 

can’t review the merits of this argument as a freestanding claim. Like the court 

of appeals, however, this court will address the arguments in the context of Mr. 

Shell’s ineffective assistance of counsel claims. 
6 

Mr. Shell also argues in his habeas petition that the state courts deprived 

him of his rights under the Due Process Clause and Equal Protection Clause by 

denying his PCR petition. He believes the denial of the petition was an abuse of 

discretion. The court of appeals found that this ground was waived because Mr. 

Shell didn’t make a cogent argument. Shell v. State, 43 N.E.3d 272 n. 4. The 

court of appeals also found that this argument appeared to be a derivative of his 

ineffective assistance claims, which were separately found to lack merit. Id.

Because Mr. Shell didn’t meet a state procedural requirement, the disposition of 

Mr. Shell’s claim that his rights under the Due Process Clause and Equal 

Protection Clause were violated rested on an adequate and independent state 

ground, meaning that this court can’t review it.1 

A habeas petitioner can overcome a procedural default by showing both 

cause for failing to abide by state procedural rules and a resulting prejudice from 

that failure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 

F.3d 804, 812 (7th Cir. 2008), cert. denied, 129 S. Ct. 2382 (2009). Cause 

sufficient to excuse procedural default is defined as “some objective factor 

external to the defense” which prevented a petitioner from pursuing his 

constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). 

A habeas petitioner can also overcome a procedural default by establishing that 

the court’s refusal to consider a defaulted claim would result in a fundamental 

 

1 Mr. Shell also believes that the Indiana Court of Appeals violated his Due Process rights by not 

deciding this argument on the merits, but Mr. Shell has no constitutional right to post-conviction process. 

See Flores-Ramirez v. Foster, 811 F.3d 861, 866 (7th Cir. 2016). 
7 

miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). To meet this 

exception, the petitioner must establish that “a constitutional violation has 

resulted in the conviction of one who is actually innocent of the crime.” Schlup 

v. Delo, 513 U.S. 298, 324 (1995). 

Mr. Shell doesn’t present any basis for excusing his procedural default on 

these claims. While not presented as a basis for overcoming procedural default, 

Mr. Shell argued that his appellate counsel erred by not challenging the 

admission of the evidence resulting from the stop of the truck and seizure of the 

pitcher. To the extent that Mr. Shell believes error by his appellate counsel 

excuses his procedural default, he’s wrong. Attorney error rising to the level of 

ineffective assistance of counsel can constitute cause to set aside a procedural 

default. Coleman v. Thompson, 501 U.S. 722, 753–54 (1991); Wrinkles v. Buss, 

537 F.3d 804, 812 (7th Cir. 2008). But as explained later in this order, Mr. Shell’s 

appellate counsel wasn’t ineffective for not raising these issues on appeal 

because they lack merit. This court can’t address these grounds on the merits. 

 

Ineffective Assistance of Counsel Claims 

 Mr. Shell’s ineffective assistance of counsel claims will be addressed on 

the merits. The provisions of the Anti-Terrorism and Effective Death Penalty Act 

of 1996 (“AEDPA”) govern Mr. Shell’s petition. 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 
8 

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 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, 135 S.Ct. 1372, 1376 (2015) (quotation marks and citations 

omitted). 

 To prevail on an ineffective assistance of counsel claim in the state courts, 

Mr. Shell had to show that counsel’s performance was deficient, and that the 

deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668 

(1984). The test for prejudice is whether there was a reasonable probability that 

“but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Id. at 694. A reasonable probability is a probability “sufficient to 

undermine confidence in the outcome.” Id. at 693. In assessing prejudice under 
9 

Strickland “[t]he likelihood of a different result must be substantial, not just 

conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). “On habeas review, 

[the] inquiry is now whether the state court unreasonably applied Strickland . . . 

.” McNary v. Lemke, 708 F.3d 905, 914 (7th Cir. 2013). In addition, “because the 

Strickland standard is a general standard, a state court has even more latitude 

to reasonably determine that a defendant has not satisfied that standard.” Id. 

(citing Youngblood v. Alvarado, 541 U.S. 652, 664 (2004)). This creates a “doubly 

deferential” standard of review in cases of this sort. Id. “Given this high standard, 

even ‘egregious’ failures of counsel do not always warrant relief.” McNary v. 

Lemke, 708 F.3d at 914. 

Trial Counsel 

 Mr. Shell argues that his trial counsel was ineffective because he failed to 

impeach2 three separate witnesses: Joni Espenschied, Officer Josh Maller,3 and 

Officer Robert Land. 

 The court of appeals determined that failure to impeach Ms. Espenschied 

didn’t constitute ineffective assistance of counsel. 

Beginning with Joni Espenschied, Shell contends that trial counsel 

failed to impeach her testimony during cross-examination by not 

forcing her to elaborate on her use of methadone. However, the fact 

that she was intoxicated at the time of the arrest was covered by the 

prosecutor during direct examination. “[W]ere you doing drugs that 

night?” Tr. p. 270. “I was under the influence of methadone. It's 

prescribed to me, but it's a large amount.” Id. Given that the jury 

heard she was under the influence of methadone at the time of the 

crime, there is not a reasonable probability that the jury would have 

 

2 Mr. Shell also argues that his trial counsel was ineffective because he failed to investigate 

adequately, but he has waived this argument by not developing it.. (ECF 1 at 3.) 

3 The PCR Court spelled Officer Maller’s name as Officer Mailer. This court uses the spelling used 

in the trial transcript, except when quoting the PCR court. 
10 

reached a different conclusion had that fact been repeated on crossexamination. 

Shell v. State, 43 N.E.3d 272 at *4. 

 This reflects a reasonable application of the Strickland standard. The jury 

heard that Ms. Espenschied was under the influence of a “large amount” of 

methadone at the time of Mr. Shell’s arrest. The Court of Appeals reasonably 

determined that there is not a reasonable probability that revisiting this on crossexamination would not have led to a different outcome for Mr. Shell.4 

 The court of pppeals also determined that failure to impeach Officer Josh 

Maller was not ineffective assistance of counsel. 

Shell next argues that the testimony of Indiana State Police Officer 

Josh Mailer, one of the officers who participated in the surveillance 

of the CPS facility and Shell's arrest, gave trial testimony that was 

inconsistent with other evidence and that trial counsel should have 

impeached him with the other evidence. Specifically, Officer Mailer 

testified at trial that the suspect ran “diagonally northeast from the 

fence directly to the pole described.” Id. at 222. He further testified 

at trial that he could not see which side of the truck the suspect got 

into, he “could just tell that he went up to the cab and entered it.” 

Id. at 223. Shell, once again, has failed to demonstrate a reasonable 

probability that, but for counsel's cross-examination on these two 

points, he would have been found not guilty. Officer Mailer testified 

that he saw a person dressed like Shell take the ammonia, run back 

to the road near the utility pole, and then a truck stopped near that 

location. Shell was subsequently found in that pick-up truck. He 

was the only one wearing similar clothing, and he smelled of 

ammonia. We see no reasonable probability that impeaching either 

of these details from Officer Mailer's testimony would have changed 

the verdict.2 

Shell v. State, 43 N.E.3d 272 at *4. 

 The court of appeals reasonably applied Strickland when it found that, in 

light of the description of the suspect’s clothes, the similarity of Mr. Shell’s 

 

4 Mr. Shell appears to concede this point. He indicates in his traverse that he will not address this 

issue. (ECF 12 at 25.) 
11 

clothes to the description, and the strong smell of ammonia coming from Mr. 

Shell, it wasn’t reasonably probable that efforts to impeach Officer Maller 

regarding the direction the suspect ran or his inability to see him enter the cab 

of the truck would have had an impact on the outcome of Mr. Shell’s trial. 

 The court of appeals also determined that failure to impeach Officer Land’s 

testimony didn’t amount to ineffective assistance of counsel. 

Finally, Shell argues that trial counsel was ineffective because he did 

not impeach Indiana State Police Sergeant Robert Land’s testimony 

about his distance from the scene by holding a ruler to the scaled 

picture and forcing Sergeant Land to calculate the distance more 

precisely. Sergeant Land, who was among the officers assigned to the 

surveillance of CPS on the night Shell was arrested, testified that he 

was approximately 150 yards from the anhydrous ammonia facility. 

Id. at 315. Trial counsel had another witness, who worked at CPS, 

use a ruler to calculate the distance to Officer Land’s position and he 

testified that Officer Land's location was closer to 3500 feet away from 

the facility. Id. at 161. Trial counsel highlighted this discrepancy in 

his closing argument. Id. at 352. Additionally, trial counsel elicited 

testimony on cross examination of Sergeant Land that he was too far 

away to see the person who got out of the truck clearly enough to offer 

a description or identification—whether that distance was 150 yards 

or 3500 feet. Id. at 316. Shell fails to explain how a different 

presentation of Officer Land’s location, or the dispute over the 

distance of Officer Land’s location from the anhydrous ammonia 

tank, would have led to a different result. 

Shell v. State, 43 N.E.3d 272 at *5. 

This conclusion also reflects a reasonable application of the Strickland 

standard. The jury knew that there was a discrepancy between Officer Land’s 

estimate of 150 yards and the distance that the other witness measured. The 

jury knew that, from his location, Officer Land could not describe or identify the 

suspect. Trial counsel highlighted the discrepancy regarding the distance in his 

closing argument. The court of appeals reasonably concluded that crossexamination of Officer Land on this issue wouldn’t have a reasonably probable 

impact on the outcome of this case. 
12 

 This court cannot make a probabilistic determination that a reasonable 

jury would reach a different result if trial counsel had impeached any of these 

witnesses as Mr. Shell suggests. See Whitlock v. Godinez, 51 F.3d 59, 64 (7th 

Cir. 1995); 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 established a “mere possibility” that a jury presented 

with the evidence would have exonerated the petitioner, “not a probability, as is 

required.”). 

 Mr. Shell didn’t argue in his petition that his trial counsel was ineffective 

for failure to suppress evidence obtained from the stop of the truck or the seizure 

of the pitcher, but he raised the argument in his reply brief. (ECF 12 at 17-20.) 

Even if he had raised the issue in his petition, he wouldn’t have prevailed. 

 The court of appeals concluded that the stop and search of the truck and 

the seizure of the pitcher were proper. Id. The court of appeals found that the 

stop of the truck was lawful pursuant to Terry v. Ohio, 392 U.S. 1 (1968). 

Here, officers stopped the truck Shell was riding in because, at a 

little after 1:00 in the morning, several police officers observed a 

person get out of a truck, run across a field, enter CPS’s property, 

remove anhydrous ammonia from a tank, and return to the road. A 

short time later, the truck returned and stopped, and it appeared 

that the person who had taken the anhydrous ammonia reentered 

the truck. These facts are sufficient to warrant a Terry stop of the 

truck under both the Fourth Amendment and the Indiana 

Constitution. 

Shell v. State, 43 N.E.3d 272 at *4. The pitcher, on the other hand, was 

abandoned, so it could be seized without a warrant. Id. The Indiana Court of 

Appeals noted that “[n]either the Fourth Amendment nor the Indiana 
13 

Constitution afford any protection for items abandoned in a public location.” Id.

(citing California v. Hodari D., 499 U.S. 621, 629 (1991); Gooch v. State, 834 

N.E. 2d 1052, 1053 (Ind. Ct. App. 2005)). The court of appeals concluded that 

this argument lacks merit, and counsel cannot be ineffective for failing to raise 

an issue that lacks merit. This, too, is a reasonable application of Strickland. 

 Mr. Shell argues that these errors demonstrate collectively that his trial 

counsel was ineffective. “[P]rejudice may be based on the cumulative effect of 

multiple errors. Although a specific error, standing alone, may be insufficient to 

undermine the court’s confidence in the outcome, multiple errors together may 

be sufficient.” Malone v. Walls, 538 F.3d 744 (7th Cir. 2008). After reviewing the 

record and considering Mr. Shell’s claims of ineffective assistance, this court 

can’t find that the State court’s determination regarding cumulative error was 

objectively unreasonable. The court of appeals noted that “irregularities which 

standing alone do not amount to error do not gain the stature of reversible error 

when taken together.” Shell v. State, 43 N.E.3d 272 at *5 (quoting Kubsch v. 

State, 934 N.E.2d 1138, 1154 (Ind. 2010)). The court of appeals then found that 

there was “no error, cumulative or otherwise, in trial counsel’s performance.” Id. 

This too is reasonable. This court cannot make a probabilistic determination that 

a reasonable jury would reach a different result if trial counsel had examined 

each of these witnesses as Mr. Shell would have liked. See Whitlock v. Godinez, 

51 F.3d at 64. Since none of counsel’s decisions were deficient, it’s hard to see 

how a cumulative streak of instances of effective assistance of counsel could 
14 

amount to a ground for relief. The claim regarding cumulative error is not a basis 

for habeas relief. 

Appellate Counsel 

 Mr. Shell contends his appellate counsel provided ineffective assistance by 

not challenging, on appeal, the stop of the truck and seizure of the pitcher. In 

rejecting this claim, the court of appeals cited the Strickland standard. Shell, 43 

N.E.3d 272 at *5. The court noted that, when challenging whether appellate 

counsel waived an issue, the court asks two questions. First, whether the issue 

that was not raised was significant and obvious from the face of the record. And, 

second, whether that issue is “clearly stronger” than the issue(s) that was/were 

raised. Id. The court of appeals determined that this claim was a derivative of 

his claim of ineffective assistance of trial counsel on the failure to challenge the 

admissibility of the evidence. Id. As already discussed, the court of appeals 

determined that both the stop of the truck and seizure of the pitcher were lawful. 

Thus, the court of appeals concluded that Mr. Shell couldn’t show that this issue 

is “clearly stronger” than the issues raised by appellate counsel. 

 Mr. Shell hasn’t explained how appellate counsel’s failure to raise the 

argument that the search and seizure were unlawful constitutes ineffective 

assistance of counsel under Strickland. Nor has he explained why he believes the 

court of appeals’ decision amounts to an unreasonable adjudication of this issue. 

This claim doesn’t warrant habeas relief. Appellate counsel can’t be ineffective 

for not raising a meritless issue. 

 
15 

CERTIFICATE OF APPEALABILITY 

 As a final matter, under 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, a 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, two of Mr. Shell’s claims are procedurally defaulted, and he hasn’t offered 

any meritorious basis for excusing his default. As to his non-defaulted claims, 

Mr. Shell hasn’t made a substantial showing of the denial of a constitutional 

right, and jurists of reason couldn’t debate the outcome of the petition or find a 

reason to encourage him to proceed further. Accordingly, the court declines to 

issue Mr. Shell a certificate of appealability. 

CONCLUSION 

 For the reasons set forth above, the court DENIES the petition (ECF 1) and 

DENIES the petitioner a certificate of appealability. 

 SO ORDERED on February 5, 2019 

/s/ Robert L. Miller, Jr. 

JUDGE 

UNITED STATES DISTRICT COURT