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Justia Dockets & Filings Sixth Circuit Michigan Eastern District Edwards v. Curtin Filing 14
Edwards v. Curtin
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JULIAN LEIGH EDWARDS, #504232, Petitioner, v. CASE NO. 2:13-CV-10220 HONORABLE VICTORIA A. ROBERTS JEFFREY WOODS, Respondent. ________________________________/ OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL I. Introduction This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Julian Leigh Edwards ("Petitioner") was convicted of first-degree murder, assault with intent to commit murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony following a jury trial in the Wayne County Circuit Court. He was sentenced to life in prison without parole on the murder conviction, a concurrent term of 15 to 60 years in prison on the assault conviction, time served on the felon in possession conviction, and a consecutive term of two years in prison on the felony firearm conviction in 2010. In his pro se pleadings, Petitioner raises claims concerning the jury instructions, the sufficiency of the evidence, the admission of alleged hearsay and trial counsel's failure to object, and the effectiveness of trial counsel as to a plea offer. For the reasons set forth, the Court denies habeas relief. The Court also denies a certificate of appealability and denies Petitioner leave to proceed in forma pauperis on appeal. II. Facts and Procedural History Petitioner's convictions arise from a a shooting incident at an apartment in Detroit, Michigan on May 28, 2009. The Michigan Court of Appeals described the underlying facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows: This case arises from the shooting death of Antoine Brown and gunshot injuries suffered by Babe Franklin that occurred on May 28, 2009. On that date, defendant was living in a one-bedroom apartment with his girlfriend, Jenae Willis, who had a young daughter fathered by Brown during a prior relationship. Franklin testified that Brown had been informed by Willis's sister that defendant was allegedly abusing Brown's child and that Child Protective Services (CPS) had become involved in the matter. Brown communicated this information to Franklin, and Brown indicated that he wanted to talk to defendant. In numerous phone calls between Willis and Brown on the day of the shootings, Willis told Brown that the accusations of child abuse made against defendant were fabrications. As reflected in the testimony by Willis and Franklin, Brown initially did not know Willis's address, and he kept calling Willis demanding the address. Eventually, Willis's sister gave Brown the address, and Brown asked Franklin to accompany him to the apartment. Franklin claimed that he suggested to Brown that, if defendant was present at the apartment, they simply talk to defendant to discover the truth before doing anything rash. Brown was described by police as being a heavyset man, weighing between 270 and 300 pounds. At around 9:00 p.m. on May 28, 2009, defendant returned to his apartment with his brother Christopher Edwards (hereafter Edwards) after the two had spent the afternoon together. Edwards indicated that defendant was acting normal and did not appear upset about anything. Willis and her friend Ashley Scott were at the apartment when the brothers arrived, and about five to ten minutes later there were loud knocks on the door. According to Edwards, defendant opened the door just slightly after first peering through the peephole, at which point Brown or Franklin shoved the door wide open and they both barged into the apartment. Edwards testified that defendant was not carrying any weapons when he answered the door, nor did Edwards have knowledge of any weapons being kept in the apartment. Willis testified that she kept a 20–gauge shotgun behind her bedroom door, which belonged to her. Edwards claimed that, upon gaining entry to the apartment, Franklin and Brown physically attacked defendant and that the tussle carried into the apartment's sole bedroom. Edwards did not observe Franklin or Brown carrying any weapons, and Edwards, fearing for his own life, immediately left the apartment. On fleeing, Edwards heard gunshots coming from the apartment building, and he called 911 out of concern for defendant. Edwards never witnessed the shootings inside the 2 apartment. Willis also testified that she did not witness the shootings. She had been in the bedroom sleeping at the time that Franklin and Brown burst into the apartment. Defendant and Franklin came running into the bedroom and were fighting, and Willis immediately got up and locked herself in a bathroom. In a statement to police, Willis indicated that she heard defendant exclaim, "I told you all not to come up in here." At trial, she denied that defendant made the statement. Willis testified that she had not informed defendant about the phone calls between her and Brown. Willis claimed that she did not observe anyone carrying a weapon that evening, and she denied that defendant kept any weapons in the apartment. Defendant did not testify at trial and the only eyewitness testimony concerning the actual shootings came from Franklin, the surviving victim. Franklin testified that when he and Brown arrived at defendant's apartment complex, another man was leaving the complex, which allowed them to make entry without "buzzing" in. Franklin stated that he and Brown were not carrying any weapons, as they only wanted to speak to defendant; Brown was calm and not irate. Once they reached defendant's and Willis's apartment unit, Brown stood behind Franklin as Franklin knocked on the door. When defendant started to open the door, Franklin asked for Willis and defendant asked "who the f* * * are you?" Brown and Franklin then entered the apartment. According to Franklin, defendant proceeded to run toward the bedroom, carrying a shotgun. Franklin had testified at the preliminary examination that he noticed defendant carrying the shotgun when defendant first opened the apartment door. Brown chased defendant into the bedroom and Franklin followed close behind. Upon entering the bedroom, Franklin observed Brown and defendant wrestling over control of the shotgun that defendant had been carrying. Defendant's hands were on the trigger and the barrel of the gun, while Brown's hands were grasping the middle of the shotgun. Just moments after Franklin entered the bedroom, the shotgun discharged, striking Franklin in the left hand and chest. Franklin fell to the floor and then heard the shotgun discharge again, followed by a yell from Brown. Franklin saw defendant push Brown to the floor, and then defendant proceeded to leave the bedroom. Brown had been shot but was still alive. Defendant, however, soon reentered the bedroom, pointed the shotgun at Brown, and then shot him for the second time. According to Franklin, defendant pulled the trigger again while pointing the gun at Brown, but the gun just clicked and did not fire. Defendant then turned the shotgun on Franklin and pulled the trigger, but the gun did not fire. Defendant instead struck Franklin a couple of times with the barrel of the gun. Franklin was able to stand up, and he started running toward the front door of the apartment. Franklin, however, was then shot in the back with what he believed was a handgun based on the sound of the weapon. He slumped against a wall in the living room and ended up on the ground next to a closet. Franklin observed defendant return to the bedroom, and he then heard the handgun being fired. The forensic pathologist who conducted Brown's autopsy testified that Brown had been shot three times—a shotgun wound to the chest, a shotgun wound to the 3 abdomen, and a handgun wound to the right flank. Franklin testified that defendant then came out of the bedroom and began pacing around the apartment and ranting. Franklin heard defendant yell, "I told you. I told you on the phone if you came over here I was killing somebody." Defendant then made a phone call, telling the person on the other end of the line, "I just shot these two n* * * * *s. Get over here." Franklin testified that defendant proceeded to leave the premises, taking a handgun with him but not a shotgun. Franklin then called 911. He had to step outside the apartment in order to identify the address for the 911 operator, at which point the police had already arrived in light of Edwards' earlier 911 call. Willis testified that she came out of the bathroom when the gunshots ended, and she saw defendant in the hallway and a man lying in the living room bleeding from the chest. Willis told police in a statement that she observed defendant holding a shotgun after she emerged from the bathroom, but at trial she denied ever seeing defendant holding a gun. Franklin testified that he saw Willis leave the apartment and that he believed that Willis should have recognized Franklin, given that they had met numerous times in the past. Willis had denied recognizing Franklin in the apartment. The police discovered Brown in a hallway in the apartment, bleeding from his chest but still alive. No weapons were found on Brown, who later perished after being taken by EMS to the hospital. Police testimony indicated that there was blood everywhere in the apartment and that the place looked like a scuffle had occurred. The police did not find any weapons on Franklin, and he informed police that he had been shot by "Moochie," which was defendant's nickname. Nearly three months after the shooting, the police pulled over a car driven by defendant. He was placed into custody for not having a license, and the police later discovered that there was an outstanding homicide warrant for defendant's arrest. Defendant gave police several incorrect names. At trial, the jury, as to the issue of homicide, was instructed on the offenses of first-degree and second-degree murder, but the court declined the prosecutor's request for a manslaughter instruction. The trial court opined that a voluntary manslaughter instruction would be so similar to the second-degree murder instruction that it would cause juror confusion. The jury was instructed on self-defense, as requested by defendant. People v. Edwards, No. 296127, 2011 WL 1446074, *1-3 (Mich. Ct. App. April 14, 2011) (unpublished) (footnotes omitted). Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims concerning the jury instructions, the admission of alleged 4 hearsay, and trial counsel's failure to object to that alleged hearsay. The court denied relief on those claims and affirmed Petitioner's convictions. Id. at *3-8. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Edwards, 490 Mich. 874, 803 N.W.2d 338 (2011). Petitioner then filed an initial Habeas Petition with this Court raising the same claims presented on direct appeal, as well as additional claims concerning the sufficiency of the evidence and ineffective assistance of trial counsel relative to a plea offer. The Court determined that the new claims were unexhausted and stayed and administratively closed the case so that Petitioner could return to the state courts and fully exhaust his remedies. Petitioner returned to the state trial court and filed a motion for relief from judgment raising his unexhausted claims. The trial court denied relief in part based upon Michigan Court Rule 6.508(D)(2) and on the merits. People v. Edwards, No. 90-21356 (Wayne Co. Cir. Ct. Jan. 7, 2014). Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals raising the same claims. The Michigan Court of Appeals denied relief pursuant to Michigan Court Rule 6.508(D)(3) because Petitioner alleged grounds for relief which could have been raised on direct appeal and failed to establish good cause for failing to previously raise the issues. People v. Edwards, No. 321132 (Mich. Ct. App. May 6, 2014). Petitioner then filed an application for leave to appeal which the Michigan Supreme Court, which was denied pursuant to Michigan Court Rule 6.508(D). People v. Edwards, 497 Mich. 981, 861 N.W.2d 26 (2015). Petitioner thereafter moved to reopen this case and proceed on his habeas claims. The court granted his request and reopened this case. Respondent filed an Answer to the Habeas Petition 5 contending that it should be denied because the claims are procedurally defaulted and/or lack merit. Petitioner filed a Reply to that Answer. III. Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part: 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) (1996). "A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "[T]he 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] 6 Court but unreasonably applies that principle to the facts of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). The United States Supreme Court has held that "a state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). A habeas court "must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. Thus, in order to obtain federal habeas relief, a state prisoner must show that the state court's rejection of a claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id.; see also White v. Woodall, _ U.S. _, 134 S. Ct. 1697, 1702 (2014). Federal judges "are required to afford state courts due 7 respect by overturning their decisions only when there could be no reasonable dispute that they were wrong." Woods v. Donald, _ U.S. _, 135 S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016). Section 2254(d)(1) limits a federal court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court "has held on numerous occasions that it is not 'an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court") (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d) "does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington, 562 U.S. at 100. Furthermore, it "does not require citation of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. The requirements of "clearly established law" are to be determined solely by Supreme Court precedent. Thus, "circuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court,'" and "[i]t therefore cannot form the basis for habeas relief under AEDPA." Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam); see also Lopez v. Smith, _ U.S. _, 135 S. Ct. 1, 2 (2014) (per curiam). The decisions of lower federal courts may be useful in assessing the reasonableness of the state court's decision. Stewart v. Erwin, 503 F.3d 488, 8 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich. 2002). Lastly, a state court's factual determinations are presumed correct on federal habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Habeas review is also "limited to the record that was before the state court." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). IV. Discussion A. Jury Instruction Claim Petitioner first asserts that he is entitled to habeas relief because the trial court failed to instruct the jury on the lesser offense of voluntary manslaughter. Respondent contends that this claim is waived, procedurally defaulted, and lacks merit. The Michigan Court of Appeals denied relief on this claim finding that Petitioner waived the claim by consenting to the instructions as given and not expressing agreement when the prosecution requested a manslaughter instruction (which the trial court denied). The court further determined that even if an error occurred, it was harmless because the jury convicted Petitioner of first-degree murder and rejected a verdict on the lesser offense of second-degree murder. Edwards, 2011 WL 1446074 at *3-5. Federal habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. Wainwright v. Sykes, 433 U.S. 72, 8587 (1977). The doctrine of procedural default is applicable when a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is "adequate and independent." White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006); Howard v. 9 Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). "A procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court judgment should be used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id. Here, the Michigan Court of Appeals rendered the last reasoned opinion. In denying relief on this claim, the court relied upon a state procedural bar – Petitioner's agreement to the jury instructions as given – which the court found to constitute a waiver of this issue. Edwards, 2011 WL 1446074 at *4-5. The failure to make a contemporaneous objection or request is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999); People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994); see also Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Moreover, a state court does not waive a procedural default by looking beyond the default to determine if there are circumstances warranting review on the merits. Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989). Plain error review does not constitute a waiver of state procedural default rules. Girts v. Yanai, 501 F.3d 743, 755 (6th Cir. 2007); Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000). Nor does a state court fail to sufficiently rely upon a procedural default by ruling on the merits in the alternative. McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In this case, the Michigan Court of Appeals denied relief based on Petitioner's acceptance of the jury instructions, i.e., his failure to object at 10 trial. A state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). Petitioner neither alleges nor establishes cause to excuse this procedural default. A federal habeas court need not address the issue of prejudice when a petitioner fails to establish cause to excuse a procedural default. Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983). Nonetheless, the Court notes that Petitioner cannot establish prejudice (or that he is otherwise entitled to habeas relief on the merits of this claim) because, as explained by the Michigan Court of Appeals, any error in failing to instruct the jury on manslaughter was harmless error given that the jury convicted him of first-degree murder and rejected the lesser verdict of second-degree murder. See Abdus-Samad v. Bell, 420 F.3d 614, 628 (6th Cir. 2005) (jury's decision to convict the petitioner of first-degree felony murder even though the jury was also instructed on the lesser-included offense of second-degree murder "strongly suggests" that the trial court's failure to instruct the jury on the lesser offenses of voluntary and involuntary manslaughter was at most harmless error). In other words, because the jury chose first-degree murder over second-degree murder and rejected Petitioner's defense, there is no basis to believe that it would have opted for the lesser offense of voluntary manslaughter over first-degree murder. The failure to instruct on voluntary manslaughter thus did not have had a "substantial and injurious effect or 11 influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). This jury instruction claim lacks merit. Petitioner also fails to establish that a fundamental miscarriage of justice occurred. The miscarriage of justice exception requires a showing that a constitutional violation probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995). "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 624 (1998). "To be credible, [a claim of actual innocence] 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. Petitioner makes no such showing. This claim is thus barred by procedural default, otherwise lacks merit, and does not warrant habeas relief. B. Sufficiency of the Evidence Claim Petitioner next asserts that he is entitled to habeas relief because the prosecution presented insufficient evidence of malice to support his first-degree murder conviction. Respondent contends that this claim is barred by procedural default and that it lacks merit. As noted, federal habeas relief is precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. Wainwright, 433 U.S. at 85-87. The doctrine of procedural default is applicable when a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is "adequate and independent." White, 431 F.3d at 524 ; see also Howard, 405 F.3d at 477; Coleman, 244 F.3d at 539. The last explained state court judgment should be used to make this determination. Ylst, 501 12 U.S. at 803-05. If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id. Petitioner first presented this claim in his motion for relief from judgment on state collateral review. The Michigan Supreme Court, the last state court to rule on the matter, denied leave to appeal pursuant to Michigan Court Rule 6.508(D). That rule provides, in part, that a court may not grant relief to a defendant if the motion for relief from judgment alleges grounds for relief which could have been raised on direct appeal, absent a showing of good cause for the failure to raise such grounds previously and actual prejudice resulting therefrom. MICH. CT. R. 6.508(D)(3). The United States Court of Appeals for the Sixth Circuit has held that the form order used by the Michigan Supreme Court to deny leave to appeal in this case is unexplained because its citation to Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a rejection on the merits. Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc). Consequently, under Guilmette, the Court must "look through" the unexplained order of the Michigan Supreme Court to the lower court's decision to determine the basis for the denial of state post-conviction relief. The Michigan Court of Appeals denied relief on this claim on procedural grounds by finding that Petitioner could have raised the claim on direct appeal and that he failed to establish good cause under Michigan Court Rule 6.508(D)(3) for his failure to do so. Edwards, No. 321132 at *1. The state court thus clearly relied upon a procedural default to deny Petitioner relief on this claim. Accordingly, this claim is procedurally defaulted. Again, as discussed, a state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual 13 prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 750-51; Gravley, 87 F.3d at 784-85. Petitioner neither alleges nor establishes cause to excuse this procedural default. Consequently, this Court need not address the issue of prejudice on habeas review. Smith, 477 U.S. at 533; Long, 722 F.2d at 289. The Court further finds, however, that Petitioner cannot establish actual prejudice as this claim lacks merit. The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). The question on a sufficiency of the evidence claim is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). A federal court views this standard through the framework of 28 U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Under the AEDPA, challenges to the sufficiency of the evidence "must survive two layers of deference to groups who might view facts differently" than a reviewing court on habeas review – the factfinder at trial and the state court on appellate review – as long as those determinations are reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). "[I]t is the responsibility of the jury – not the court – to decide what conclusions should be drawn from the evidence admitted at trial." Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). "A reviewing court does not re-weigh the evidence or re-determine the credibility of the witnesses whose demeanor has been observed by the trial court." Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). Accordingly, the "mere existence of sufficient evidence to convict . . . defeats a petitioner's claim." Matthews, 319 F.3d at 788-89. 14 Under Michigan law, first-degree premeditated murder requires proof that the defendant intentionally killed the victim and that the killing was premeditated and deliberate. People v. Kelly, 231 Mich. App. 627, 642, 588 N.W.2d 480 (1998); MICH. COMP. LAWS § 750.316. Premeditation and deliberation may be established by evidence showing: "(1) the prior relationship of the parties; (2) the defendant's actions before the killing; (3) the circumstances of the killing itself; and (4) the defendant's conduct after the homicide." People v. Schollaert, 194 Mich. App. 158, 170, 486 N.W.2d 312 (1992); see also People v. Abraham, 234 Mich. App. 640, 656, 599 N.W.2d 736 (1999). Some time span between the initial homicidal intent and the ultimate killing is necessary to establish premeditation and deliberation, People v. Gonzalez, 468 Mich. 636, 641, 664 N.W.2d 159 (2003), but the time required need only be long enough "to allow the defendant to take a second look." Schollaert, 194 Mich. App. at 170. An interval of a few seconds can be sufficient to create a jury question on the issue of premeditation. People v. Tilley, 405 Mich. 38, 45, 273 N.W.2d 471 (1979). Premeditation and deliberation may be inferred from the type of weapon used and the location of the wounds inflicted. People v. Berry, 198 Mich. App. 123, 128, 497 N.W.2d 202 (1993). Use of a lethal weapon supports an inference of an intent to kill. People v. Turner, 62 Mich. App. 467, 470, 233 N.W.2d 617 (1975). Under Michigan law, "[t]he degree of provocation required to mitigate a killing from murder to manslaughter is that which causes the defendant to act out of passion rather than reason." People v Tierney, 266 Mich. App. 687, 714-15, 703 N.W.2d 204 (2005). For provocation to be adequate, it must be "that which would cause a reasonable person to lose control." Id. at 715. Words alone are generally inadequate provocation. People v Pouncey, 437 Mich. 382, 391, 471 N.W.2d 346 (1991). Additionally, if a defendant had a sufficient "cooling-off period," he cannot 15 demonstrate the necessary "heat of passion" to mitigate murder to manslaughter. Id. at 392 (30 seconds was a sufficient cooling-off period). Direct or circumstantial evidence and reasonable inferences arising from that evidence may constitute satisfactory proof of the elements of an offense, People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993), including the defendant's intent or state of mind. People v. Dumas, 454 Mich. 390, 398, 563 N.W.2d 31 (1997); see also People v. Nowack, 462 Mich. 392, 402-03, 614 N.W.2d 78 (2000). In this case, the prosecution presented sufficient evidence to support Petitioner's first-degree murder conviction. The evidence at trial indicated that Petitioner and the deceased victim, Brown, had a dispute over Petitioner's treatment of Brown's child. Brown and the surviving victim, Franklin, went to Petitioner's apartment to discuss the matter. Franklin's testimony indicated that Petitioner answered the door armed with a shotgun. When Brown and Franklin pushed their way into the apartment, Petitioner ran into the bedroom chased by Brown and followed by Franklin. Petitioner and Brown struggled over the shotgun. During the struggle, Petitioner fired the gun striking Franklin in the hand and chest and then striking Brown. Petitioner then left the bedroom, returned, and unsuccessfully attempted to shoot Franklin and Brown again with the shotgun. Petitioner struck Franklin with the butt of the gun. Franklin stood up and began to flee, but was shot in the back with what sounded like a handgun. Franklin saw Petitioner return to the bedroom and heard another handgun shot. Medical testimony confirmed that Brown had been shot twice with a shotgun and once with a handgun and that he died from those wounds. Franklin's testimony, and reasonable inferences therefrom, provided sufficient evidence of Petitioner's intent to kill, as well as premeditation and deliberation, and showed that, at a minimum, 16 Petitioner had sufficient time between the initial shootings with the shotgun during the struggle and the secondary shootings with the handgun to "cool off," take a second look, and consider his actions. A victim's testimony alone can be constitutionally sufficient to sustain a conviction. See Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (citing cases). Petitioner challenges the inferences the jury drew from the testimony presented at trial. However, it is the job of the fact-finder at trial, not a federal habeas court, to resolve evidentiary conflicts. Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) ("A federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume – even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution."). The jury's verdict was reasonable. The evidence presented at trial, viewed in a light favorable to the prosecution, established beyond a reasonable doubt that Petitioner committed first-degree murder. This claim lacks merit. Additionally, as discussed, Petitioner fails to establish that a fundamental miscarriage of justice occurred as he fails to present new reliable evidence of his actual innocence. Bousley, 523 U.S. at 624; Schlup, 513 U.S. at 324-27. This claim is thus barred by procedural default, otherwise lacks merit, and does not warrant habeas relief. C. Admission of Alleged Hearsay/Effectiveness of Trial Counsel Claim Petitioner also asserts that he is entitled to habeas relief because the trial court erred in admitting alleged hearsay testimony and because trial counsel was ineffective for failing to object to the admission of that testimony. Respondent contends that the hearsay claim is waived and/or procedurally defaulted and that both claims lack merit. 17 As noted, federal habeas relief is precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. Wainwright, 433 U.S. at 85-87. The doctrine of procedural default is applicable when a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is "adequate and independent." White, 431 F.3d at 524 ; see also Howard, 405 F.3d at 477; Coleman, 244 F.3d at 539. The last explained state court judgment should be used to make this determination. Ylst, 501 U.S. at 803-05. If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id. In this case, the Michigan Court of Appeals rendered the last reasoned opinion. In denying relief on the hearsay claim, the court relied upon a state procedural bar – the failure to object at trial. Edwards, 2011 WL 1446074 at *6.1 As discussed, the failure to make a contemporaneous objection or request is a recognized and firmly-established independent and adequate state law ground for refusing to review trial errors. Carines, 460 Mich. at 763; Stanaway, 446 Mich. at 687; see also Coleman, 501 U.S. at 750-51. A state court does not waive a procedural default by looking beyond the default to determine if there are circumstances warranting review on the merits. Paprocki, 869 F.2d at 285. Plain error review does not constitute a waiver of state procedural default rules. Girts, 501 F.3d at 755; Hinkle, 271 F.3d at 244; Seymour, 224 F.3d at 557. Nor does a state court fail to sufficiently rely upon a procedural default by ruling on the merits in the alternative. McBee, 929 F.2d at 267. In this case, the Michigan Court of Appeals denied relief based on Petitioner's failure to object to the alleged hearsay testimony at trial. 1 The court also noted that the issue could be seen as waived because trial counsel "spent considerable time" cross-examining Franklin on the matter to elicit that Brown was angry with Petitioner. Id. at n. 6. 18 Again, a state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 753; Gravley, 87 F.3d at 784-85. Petitioner alleges that trial counsel was ineffective for failing to object to the alleged hearsay. Petitioner, however, cannot establish that counsel erred or that he was prejudiced by counsel's conduct so as to establish cause, nor can he establish actual prejudice, because the underlying hearsay claim lacks merit. Petitioner asserts that the trial court violated state law evidentiary rules, his confrontation rights, and his due process rights by admitting Franklin's testimony relaying Brown's concerns about Petitioner's alleged abuse of Brown's child. A federal court may only grant habeas relief to a person who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Alleged trial court errors in the application of state evidentiary law are generally not cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). "Trial court errors in state procedure or evidentiary law do not rise to the level of federal constitutional claims warranting relief in a habeas action, unless the error renders the proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment." McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (quoting Estelle, 502 U.S. at 69-70); see also Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007)); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Thus, to the extent that Petitioner contests the state court's decision under the Michigan 19 Rules of Evidence and its interpretation of state law, he is not entitled to relief. It is well-settled that "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting on habeas review." Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). State courts are the final arbiters of state law and federal courts will not intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987). Habeas relief does not lie for perceived errors of state law. Estelle, 502 U.S. at 67-68. Petitioner fails to state a claim upon which relief may be granted as to any state law issue. Petitioner also fails to establish a due process violation. The admission of the disputed testimony did not render his trial fundamentally unfair. First, the statements were not hearsay under Michigan Rule of Evidence 801(c) given that they were not offered for the truth of the matter asserted (that Petitioner abused Brown's child). Rather, they were used to explain why Brown and Franklin went to Petitioner's apartment. Second, the statements were relevant, admissible, and not unduly prejudicial under Michigan Rules of Evidence 401, 402, and 403 to provide the jury with a complete picture of what led to the confrontation between Petitioner and the victims and to provide a context for the shootings. The admission of the evidence was thus appropriate under state law and did not deprive Petitioner of a fundamentally fair trial. Lastly, Petitioner fails to establish a violation of his confrontation rights. The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. Davis v. Alaska, 415 U.S. 308, 315 (1973). The Sixth Amendment protections are not so broad, however, as to exclude the admission of certain hearsay statements against a criminal defendant despite his or her inability to confront the declarant at trial. Maryland v. Craig, 497 U.S. 20 836, 847-48 (1990). In Crawford v. Washington, 541 U.S. 36, 54 (2004), the Supreme Court held that the testimonial statement of a witness who does not appear at trial is inadmissible unless the witness is unavailable to testify and the defendant has had a prior opportunity to cross-examine the witness. Testimonial statements include grand jury testimony, preliminary hearing testimony, and prior trial testimony, as well as statements made during police interrogations. Id. at 54. Testimonial statements do not include remarks made to family members or acquaintances, business records, or statements made in furtherance of a conspiracy. Id. at 51-52, 56; United States v. Martinez, 430 F.3d 317, 328-29 (6th Cir. 2005). The Confrontation Clause is not implicated, and thus need not be considered, when non-testimonial hearsay is at issue. Davis v. Washington, 547 U.S. 813, 823-26 (2006); Desai v. Booker, 538 F.3d 424, 425-26 (6th Cir. 2008); see also Whorton v. Bockting, 549 U.S. 406, 420 (2007) (noting that the Confrontation Clause "has no application to such statements and therefore permits their admission even if they lack indicia of reliability"). Such is the case here. Brown's statements to Franklin were non-testimonial such that the Confrontation Clause is not implicated. Accordingly, Petitioner's hearsay claim lacks merit. Additionally, as discussed, Petitioner fails to establish that a fundamental miscarriage of justice occurred as he fails to present new reliable evidence of his actual innocence. Bousley, 523 U.S. at 624; Schlup, 513 U.S. at 324-27. Petitioner's hearsay claim is thus barred by procedural default, otherwise lacks merit, and does not warrant habeas relief. Petitioner also raises an independent claim that trial counsel was ineffective for failing to object to the admission of the alleged hearsay testimony at trial. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two- 21 prong test for determining whether a habeas petitioner received ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner must establish that counsel's deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id. To satisfy the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance." Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. There is a strong presumption that trial counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690. The petitioner bears the burden of overcoming the presumption that the challenged actions were sound trial strategy. As to the prejudice prong, a petitioner must show that "there is 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 one that is sufficient to undermine confidence in the outcome of the proceeding. Id. "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. A federal court's consideration of ineffective assistance of counsel claims arising from state criminal proceedings is quite limited on habeas review due to the deference accorded trial attorneys and state appellate courts reviewing their performance. "The standards created by Strickland and 22 § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Harrington, 562 U.S. at 105 (internal and end citations omitted). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. Citing the Strickland standard, the Michigan Court of Appeals denied relief on this claim because the underlying claim lacks merit. The court further explained that counsel's decision not to object and to instead use the testimony to support Petitioner's self-defense claim was reasonable trial strategy and that Petitioner failed to show that he was prejudiced by counsel's conduct. Edwards, 2011 WL 1446074 at *7-8. The state court's decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. Given the state court's determination, as well as this Court's ruling, that the underlying hearsay claim lacks merit, Petitioner cannot establish that trial counsel erred or that he was prejudiced by counsel's conduct. Counsel cannot be deemed deficient for failing to make a meritless argument or a futile objection. See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) ("Omitting meritless arguments is neither professionally unreasonable nor prejudicial."); United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000). Moreover, the Court agrees with the Michigan Court of Appeals that trial counsel's conduct was reasonable because the disputed testimony supported Petitioner's self-defense claim and its admission did not unduly prejudice the defense or affect the outcome at trial. Petitioner fails to establish that trial counsel was ineffective under the Strickland standard. Habeas relief is not warranted on this claim. D. Effectiveness of Trial Counsel as to Plea Offer Lastly, Petitioner asserts that trial counsel was ineffective for advising him to reject a plea 23 offer for voluntary manslaughter with a sentence of 10 to 20 years plus two years in prison. He alleges that counsel did not understand the law of self-defense and advised him that she could beat the prosecution's case. Respondent contends that this claim is barred by procedural default and that it lacks merit. Again, as noted, federal habeas relief is precluded on claims that a petitioner has not presented to the state courts in accordance with the state's procedural rules. Wainwright, 433 U.S. at 85-87. The doctrine of procedural default is applicable when a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is "adequate and independent." White, 431 F.3d at 524 ; see also Howard, 405 F.3d at 477; Coleman, 244 F.3d at 539. The last explained state court judgment should be used to make this determination. Ylst, 501 U.S. at 803-05. If the last state judgment is a silent or unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id. Petitioner first presented this claim in his motion for relief from judgment on state collateral review. The Michigan Supreme Court, the last state court to rule on the matter, denied leave to appeal pursuant to Michigan Court Rule 6.508(D). That rule provides, in part, that a court may not grant relief to a defendant if the motion for relief from judgment alleges grounds for relief which could have been raised on direct appeal, absent a showing of good cause for the failure to raise such grounds previously and actual prejudice resulting therefrom. MICH. CT. R. 6.508(D)(3). The form order used by the Michigan Supreme Court to deny leave to appeal in this case is unexplained because its citation to Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a rejection on the merits. Guilmette, 624 F.3d at 291-92. Consequently, under Guilmette, the Court must "look through" the unexplained order of the Michigan Supreme 24 Court to the lower court's decision to determine the basis for the denial of state post-conviction relief. The Michigan Court of Appeals denied relief on this claim on procedural grounds by finding that Petitioner could have raised the claim on direct appeal and that he failed to establish good cause under Michigan Court Rule 6.508(D)(3) for his failure to do so. Edwards, No. 321132 at *1. The state court thus clearly relied upon a procedural default to deny Petitioner relief on this claim. Accordingly, this claim is procedurally defaulted. Again, as discussed, a state prisoner who fails to comply with a state's procedural rules waives the right to federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. Coleman, 501 U.S. at 750-51; Gravley, 87 F.3d at 784-85. Petitioner neither alleges nor establishes cause to excuse this procedural default. Consequently, this Court need not address the issue of prejudice on habeas review. Smith, 477 U.S. at 533; Long, 722 F.2d at 289. The Court nonetheless finds that Petitioner cannot establish actual prejudice as this claim lacks merit. As previously discussed, in Strickland v. Washington, the Supreme Court set forth a two-prong test for determining whether a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must show that counsel's performance was deficient. Second, the petitioner must show that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. The Strickland standard applies to plea negotiations, including claims involving counsel's advice about a plea offer. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012). In this case, the record belies Petitioner's claim that trial counsel advised him to reject the plea offer. Petitioner first raised this issue in a letter to the trial court after trial but before 25 sentencing. 1/5/10 Sent. Tr., p. 3. At the sentencing hearing, defense counsel explained that the prosecutor initially offered Petitioner a plea bargain which would have resulted in a (minimum) sentence of 16 years plus two years in prison, which Petitioner rejected. Id. at p. 5. Trial counsel continued to negotiate with the prosecutor. The prosecutor ultimately made a final plea offer on the day of trial which reduced the first-degree murder charge to voluntary manslaughter with a sentence of 10 to 15 years plus two years in prison and reduced the assault with intent to commit murder charge to assault with intent to do great bodily harm. Id. at 6. Petitioner obviously did not accept the plea offer. Trial counsel denied ever promising Petitioner that she would beat his case. Id. at 13. During the discussion at the sentencing hearing, the court essentially determined that Petitioner's claim that counsel coerced him into rejecting the plea and going to trial was false. The court stated in relevant part: And I don't know why this is, but we have been able to hear, even today -- I don't know what goes on with you guys back there in the bullpen, but we were able to hear during the trial, counsel, the day of trial, talking with him and trying to get a plea. So, you know, and she had to really talk loud for us to be able to hear it out here. So, I just want to say, I know that's not true. *** Now he says here, 'I was willing to take the plea agreement that I was offered, which was ten plus two to twenty, and the charge was going to reduce from first degree to second degree murder. But my counsel told me that she can and will beat it, which she is not allowed to do.' Now, I happen to know that counsel is very -- we could hear you shouting, talking to him back there. So, I'm just saying, you know, I get really concerned when I see these kinds of lies.... *** Now, you know, I'm just hearing lie after lie. 26 Id. at 3-4, 6-7, 13. Thus, contrary to Petitioner's claim, the record indicates that trial counsel did not promise Petitioner that she could win his case and that she was trying to convince Petitioner to accept the prosecutor's plea offer, not to reject it. Petitioner offers no evidence, other than his own assertions, for his claim that trial counsel advised him to reject the plea offer. Conclusory allegations, without evidentiary support, do not provide a basis for habeas relief. Cross v. Stovall, 238 F. App'x 32, 39-40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (conclusory allegations of ineffective assistance of counsel do not justify federal habeas relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and conclusory allegations do not provide sufficient basis for an evidentiary hearing in habeas proceedings). Moreover, the decision about whether to accept or reject a plea offer ultimately rests with the defendant, not trial counsel. Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003). Petitioner fails to show that trial counsel's performance with respect to the plea offer was deficient. He thus fails to establish that trial counsel was ineffective under the Strickland standard. Lastly, as discussed, Petitioner fails to establish that a fundamental miscarriage of justice occurred because he fails to present new reliable evidence that he is actually, factually innocent of the crime. Bousley, 523 U.S. at 624; Schlup, 513 U.S. at 324-27. This claim is thus barred by procedural default, lacks merit, and does not warrant habeas relief. V. Conclusion For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas relief on his claims. Accordingly, the Court DENIES and DISMISSES WITH PREJUDICE the Petition for a Writ of Habeas Corpus. 27 Before Petitioner may appeal the Court's decision, a certificate of appealability ("COA") must issue. 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A federal court may issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a district court denies relief on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the court's assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 48485 (2000). "A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When a district court denies relief on procedural grounds, a COA should issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484-85. Having considered the matter, the Court concludes that Petitioner fails to make a substantial showing of the denial of a constitutional right as to his habeas claims and that reasonable jurists could not debate the correctness of the Court's procedural rulings. Accordingly, the Court DENIES a COA. The Court also DENIES Petitioner leave to proceed in forma pauperis on appeal as an appeal cannot be taken in good faith. FED. R. APP. P. 24(a). IT IS SO ORDERED. S/Victoria A. Roberts VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE Dated: November 6, 2017 28


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Did Hedge Funds Drop The Ball On Presidio, Inc. (PSDO) ?
The elite funds run by legendary investors such as David Tepper and Dan Loeb make hundreds of millions of dollars for themselves and their investors by spending enormous resources doing research on small cap stocks that big investment banks don't follow. Because of their pay structures, they have strong incentives to do the research necessary to beat the market. That's why we pay close attention to what they think in small cap stocks. In this article, we take a closer look at Presidio, Inc. (NASDAQ:PSDO) from the perspective of those elite funds.
Presidio, Inc. (NASDAQ:PSDO) was in 19 hedge funds' portfolios at the end of the second quarter of 2019. PSDO investors should be aware of a decrease in enthusiasm from smart money of late. There were 25 hedge funds in our database with PSDO positions at the end of the previous quarter. Our calculations also showed that PSDO isn't among the 30 most popular stocks among hedge funds (see the video below).
Hedge funds' reputation as shrewd investors has been tarnished in the last decade as their hedged returns couldn't keep up with the unhedged returns of the market indices. Our research has shown that hedge funds' large-cap stock picks indeed failed to beat the market between 1999 and 2016. However, we were able to identify in advance a select group of hedge fund holdings that outperformed the market by 40 percentage points since May 2014 through May 30, 2019 (see the details here). We were also able to identify in advance a select group of hedge fund holdings that'll significantly underperform the market. We have been tracking and sharing the list of these stocks since February 2017 and they lost 25.7% through September 30, 2019. That's why we believe hedge fund sentiment is an extremely useful indicator that investors should pay attention to.
Unlike former hedge manager, Dr. Steve Sjuggerud, who is convinced Dow will soar past 40000, our long-short investment strategy doesn't rely on bull markets to deliver double digit returns. We only rely on hedge fund buy/sell signals. We're going to check out the fresh hedge fund action regarding Presidio, Inc. (NASDAQ:PSDO).
What have hedge funds been doing with Presidio, Inc. (NASDAQ:PSDO)?
At the end of the second quarter, a total of 19 of the hedge funds tracked by Insider Monkey held long positions in this stock, a change of -24% from the first quarter of 2019. Below, you can check out the change in hedge fund sentiment towards PSDO over the last 16 quarters. With hedgies' sentiment swirling, there exists an "upper tier" of notable hedge fund managers who were adding to their stakes substantially (or already accumulated large positions).
Of the funds tracked by Insider Monkey, Peter Rathjens, Bruce Clarke and John Campbell's Arrowstreet Capital has the largest position in Presidio, Inc. (NASDAQ:PSDO), worth close to $12.1 million, amounting to less than 0.1%% of its total 13F portfolio. The second most bullish fund manager is Marshall Wace LLP, led by Paul Marshall and Ian Wace, holding a $5.3 million position; less than 0.1%% of its 13F portfolio is allocated to the stock. Some other peers that hold long positions encompass D. E. Shaw's D E Shaw, Joseph Samuels's Islet Management and Renaissance Technologies.
Since Presidio, Inc. (NASDAQ:PSDO) has experienced a decline in interest from the entirety of the hedge funds we track, we can see that there lies a certain "tier" of hedge funds who sold off their entire stakes last quarter. Intriguingly, Jonathan Barrett and Paul Segal's Luminus Management cut the largest stake of the 750 funds followed by Insider Monkey, totaling close to $7.8 million in stock. Andrew Feldstein and Stephen Siderow's fund, Blue Mountain Capital, also dropped its stock, about $3 million worth. These moves are intriguing to say the least, as aggregate hedge fund interest fell by 6 funds last quarter.
Let's now take a look at hedge fund activity in other stocks – not necessarily in the same industry as Presidio, Inc. (NASDAQ:PSDO) but similarly valued. We will take a look at Patrick Industries, Inc. (NASDAQ:PATK), Wesco Aircraft Holdings Inc (NYSE:WAIR), Boise Cascade Company (NYSE:BCC), and Enterprise Financial Services Corp (NASDAQ:EFSC). This group of stocks' market caps are closest to PSDO's market cap.
PATK 15 86609 -2
WAIR 21 252203 -1
BCC 11 50811 -2
EFSC 13 52710 -2
Average 15 110583 -1.75
As you can see these stocks had an average of 15 hedge funds with bullish positions and the average amount invested in these stocks was $111 million. That figure was $34 million in PSDO's case. Wesco Aircraft Holdings Inc (NYSE:WAIR) is the most popular stock in this table. On the other hand Boise Cascade Company (NYSE:BCC) is the least popular one with only 11 bullish hedge fund positions. Presidio, Inc. (NASDAQ:PSDO) is not the most popular stock in this group but hedge fund interest is still above average. Our calculations showed that top 20 most popular stocks among hedge funds returned 24.4% in 2019 through September 30th and outperformed the S&P 500 ETF (SPY) by 4 percentage points. Hedge funds were also right about betting on PSDO as the stock returned 23.9% during the third quarter and outperformed the market. Hedge funds were rewarded for their relative bullishness.
Is PSDO A Good Investment Right Now?Is PSDO A Good Stock To Buy?NASDAQ:PSDOYahoo Finance
Presidio, Inc. (PSDO): Are Hedge Funds Right About This Stock? Here's What Hedge Funds Think About Presidio, Inc. (PSDO)
Were Hedge Funds Right About Flocking Into Presidio, Inc. (PSDO) ?

redpajama_set_name: RedPajamaCommonCrawl


A striking bright golden yellow floret with a large full opening semi-star shaped bloom. The Gold Star Rose is a gorgeous and pleasing yellow blossom.
Globalrose.com produces year round in the best climate available in the world. All our Gold Star roses are grown in greenhouses, using the latest technology offered, so we can guarantee quality every single day. Your Gold Star Roses are shipped absolutely fresh, direct from the greenhouses to you via FedEx. Globalrose sells at prices that are usually lower than most local wholesalers. All our products are cut specially for you, your loved one or special event (wedding, party, fundraising event, birthday or holiday), 3 days before they are delivered to your door.


Dodge 6″ Backcountry 2.0 System – 2003-2013 Diesel – Carli Suspension, Inc.
Signature Shock Tuning for the 3rd and 4th Generation, Diesel Equipped Ram trucks. 2.0″ Remote Reservoir Shocks provide users with a comfortable, entry-level off-road capability paired with a controlled, vastly improved on-road ride.
The Backcountry 2.0 system is designed for people seeking the best ride on and off-road on a budget; perfect for those that want to have a little dirt-road fun in their 8,500lb truck without losing the on-road ride quality or usability for which the truck was designed. You're no longer limited to the highway while gravel roads become uninteresting as you can drive them at speed with one hand on the wheel. Utilizing Fox 2.0" Remote Reservoir Shocks, we've developed a shock tune that delivers all around comfort and ride quality designed for on-road, in town, highway, towing/hauling as well as slow to mid speed off road use. The Fox 2.0s boast extruded aluminum construction with a hard anodizing for corrosion resistance, are fully rebuildable and are built with hour-glass bushings in the rod-ends. Fox builds these shocks with their legendary red shock oil that flows well down to -55* F. This system was tuned and rides best with the Full Progressive Leaf Springs.
The Details: The Carli 6" Systems are an entirely different animal than the 3" offerings. There is no entry level; every system is equipped with a custom tuned shock package and Radius Arm Conversion. The longer, flatter links cycle more linear travel and offer a superior ride quality over extending a short arm to work with a 6" front lift. Complete with an axle control shock, Carli radius arms allow the axle to roll as to not bind during articulation; think of it as the strength of a radius arm and articulation capability of a 4-Link. Further, the drop brackets that affix the radius arms to the frame bolt on with no modification to the existing, factory control arm brackets (ensuring the truck can be returned to stock). The arms themselves boast "X" bracing internal to their gusseted, clam-shell structure and are constructed with 3" Currie Johnny Joints and an internally gusseted, 2-piece Crossmember making them both serviceable and nearly indestructible.
Your truck will sit 6" higher in the front with 60% more suspension travel than the factory platform thanks to the taller, lighter rate coil springs. The rear is lifted 4" via the customer's choice of a Progressive Add-A-Pack/2" Billet Block or Full Progressive Leaf Pack. The Progressive Add-A-Pack replaces the factory overload with a 5-Leaf, progressive pack that changes the final rate of the spring pack keeping the rear planted while increasing traction and predictability. This is then paired with a 2" Billet Carli Block to achieve the 4" rear lift height.
The optional Full Progressive Leaf Pack replaces the entire factory leaf spring assembly and eliminates the need for a block to achieve the 4" rear lift height while increasing travel and drastically increasing comfort throughout the entire usable travel stroke at the cost of a 15% payload reduction from a standard 2500. This payload reduction can be supplemented back to factory capacity with the addition of the Long Travel Airbags (with optional spacer for 6" systems) for the best of both worlds; ride quality and payload capacity/load control.
Carli's optional Torsion sway bar removes the entire factory sway bar assembly replacing it with a torsion bar supported by fabricated drop brackets and delrin bushings. Fabricated sway bar arms and dual 5/8" FK heim end links round off the package. This is the single best bang for the buck, ride-quality upgrade offered by Carli Suspension (in close competition with the full progressive leaf spring upgrade).


As the tide rose again last night there was a sharp crunching, cracking noise, which might or might not have come from my own barge. Any small oversight – a mooring rope left too tight – can have disastrous results.
I went on deck, to find my neighbour on the opposite bank tussling with a tree, into which his narrowboat was slowly rising. We shone lamps across the river to illuminate his struggle, which was fortunately successful.
Next to him, a deserted plastic boat was rocking ominously in the water, sending out waves that flashed in the light from the beaming full moon, the distant source of the trouble.
In the midst of all this, the pleasure boat cruised by, oblivious to the drama, lights blaring, carefree young people dancing inside, a full-body tiger costume at the helm.
This morning I discovered that a small boat had been tipped on its side and was on the verge of sinking. A group of cursing men, two of them swimming around in wet suits, was attempting in vain to lift the boat up. Several hours and many more curses later, it's still in the same state.
Then, an ominous hammering noise, getting louder. Was some ravenous underwater predator, carried in from the sea on the tide perhaps, trying to get inside my hull?
No. A dragon boat. The dozen or so male paddlers were being kept in time, and up to the mark, by a bored-looking young woman beating a large drum in the bow.
The river parade just keeps on coming. Yesterday a pedalo, powered by two exhausted middle-aged women, dragging a canoe laden with bags and advertising the website of a bookshop, zig-zagged upstream without any obvious destination in mind.
They were followed by three Canadians dressed in battle fatigues, paddling with such intensity that they must surely have been on their way around the world.


The National Corn Growers Association President Kevin Skunes told US Secretary of Agriculture Sonny Perdue this morning that proposed changes to the Renewable Fuel Standard would trigger significant losses in farm income and in rural jobs. Skunes asked the Secretary to work with President Trump to ensure the President understands the economic challenges farmers are facing today.
NCGA is opposed to an oil industry proposal that would cap the price of Renewable Identification Numbers (RINs). According to a study released this week by Iowa State University, a RIN cap would reduce ethanol demand by more than 750 million gallons and cost corn farmers as much as 25-cents/bushel.
"We've made our case to the Secretary and the President that there are options that can provide a win-win to farmers, ethanol, and oil—namely, fixing existing Reid Vapor Pressure (RVP) regulations to allow year-round use of fuel blends above 10 percent ethanol. Unfortunately, the oil industry continues to insist those changes are not enough. Three years ago, NCGA took the Obama Administration to court over decisions that violated the Renewable Fuel Standard. We are hopeful that the President is willing to consider an RVP fix as the best solution, but we will continue to oppose any deal that includes a RIN cap or waiver credits.


text:
Westminster Dog Show
King the wire fox terrier named Westminster's best in show – as it happened
King the wire fox terrier named America's top dog in New York
Schipperke disqualified from Best in Show over conflict of interest
Pooch pizzas and pet psychics: life as a dog concierge at Westminster
2019 Westminster Kennel Club dog show – in pictures
King, the wire fox terrier, won best in show at the 143rd Westminster Kennel Club dog show. Photograph: Anadolu Agency/Getty Images
Bryan Armen Graham at Madison Square Garden
@bryanagraham
Tue 12 Feb 2019 23.08 EST First published on Tue 12 Feb 2019 18.30 EST
10.53pm EST 22:53 King the Wire Fox Terrier wins Best in Show!
10.50pm EST 22:50 Reserve Best in Show winner: Bono the Havanese!
10.21pm EST 22:21 The final six
10.11pm EST 22:11 Terrier group winner: King the Wire Fox Terrier!
9.10pm EST 21:10 Working group winner: Wilma the Boxer!
8.15pm EST 20:15 Sporting group winner: Bean the Sussex Spaniel!
7.38pm EST 19:38 Colton the Schipperke has been ruled ineligible!
11.08pm EST 23:08
What a night! What drama! Yet in the end it was an unsurprising winner as the King becomes the 15th of his breed to be named America's top dog. He was shown by Gabriel Rangel, who is now a three-time best in show winner as a handler. That's one short of the all-time record of four shared by … Peter J Green, who made tonight's final decision.
That's all for now. Thanks as always for following along with us and be sure to check a full report of the night here.
King for a lifetime: Wire fox terrier named Westminster's best in show
Updated at 1.09am EST
King the Wire Fox Terrier wins Best in Show!
A bit of a tepid reaction from the crowd as this building was ready to explode if either Burns or Bean was named the winner. Instead it's King, who becomes the 15th Wire Fox Terrier to win the top prize. That's most of any breed … by far. The next closest is the Scottish Terrier with eight.
FS1 (@FS1)
IT'S THE WIRE FOX TERRIER!
"KING" is the 2019 #WKCDogShow Best in Show! @ProPlan pic.twitter.com/UuOHUwgfTy
Updated at 10.59pm EST
Reserve Best in Show winner: Bono the Havanese!
Bono the Havanese wins Reserve Best in Show! And there's only one thing left to decide ...
Green has made his decision and he's heading to the officials' table to notify them before letting the handlers and spectators know. First the Reserve Best in Show will be announced ... sort of a runner up. Then the big prize.
"They all look beautiful," a microphone catches him saying.
The dogs and their handlers step forward and Green is having a final look. The crowd is buzzing. They come alive as he moves in front of the Longhaired Dachshund. And he's going to send them around again, one by one: first the Bouvier Des Flandres, then the Boxer, then the Sussex Spaniel, then the Dachshund (big pop!), then the Wire Fox Terrier and finally the Havanese.
Green continues down the line. The biggest crowd reaction is clearly for Bean the Sussex Spaniel and Burns the Longhaired Dachshund, who can break a centuries-spanning hoodoo if he wins. No Dachshund of any variety has ever won Best in Show.
The final assessment begins. First to make the circuit is Baby Lars the Bouvier Des Flandres, followed by Wilma the Boxer and the others. Finally, the public-address announcer reveals the conflict of interest and that Colton the Schipperke – but only after he's given his lap of honor.
Amy B Wang (@amybwang)
Omg COLTON. #WKCDogShow pic.twitter.com/LzI3GDc7N5
The lights go down, the crowd swells and seven group winners are announced into the arena one by one. The biggest crowd reaction is for Bean the Sussex Spaniel, who enters third and struts onto the Madison Square Garden floor to cascades of applause from the upper reaches of the arena. Burns the Longhaired Dachshund is right behind him, though.
Indeed, Colton the Schipperke is introduced seventh despite being ineligible for Best in Show (even though no one in the crowd has been made aware unless they've been checking the news on their phones). I guess they're letting him trot.
Nearly 2,800 dogs from 203 breeds and varieties and 50 different states and 14 foreign countries came to New York with a dream, but only one will come away with the title of Best in Show. The moment of truth is here as Green steps forward to inspect the septet.
The judge tasked with conferring Best in Show honors to one of these magnificent six dogs is Mr Peter J Green of Bowmansville, Pennsylvania. A native of Wales with more than 60 years of experience as an owner, breeder and professional handler, Green will make the final decision (though his unclear role in Colton's abrupt ineligibility will no doubt be a talking point in tonight's aftermath).
Green, who emigrated to the US permanently in 1963, is regarded by many as the most accomplished dog handler in the sport today. He's helmed a record-tying four Best in Show winners at Westminster (1968, 1977, 1994, and 1998) and another a Crufts (2005), making him one of only two handlers to steer a dog to the top prize at both prestigious events. He's also a nine-time winner at the vererable Montgomery County Kennel Club Terrier Show in Pennsylvania.
He began his judging career after retiring from the ring in 2006. And with tonight's assignment Green will make even more history: he will become the first person ever to have handled and judged a Best in Show winner at Westminster and Crufts. How's that for a pub trivia trump card?
The final six
King the Wire Fox Terrier wins the Terrier group and the final field of six for Best in Show is set. They are ...
Burns the Longhaired Dachshund, winner of the Hound group
Bono the Havanese, winner of the Toy group
Baby Lars the Bouvier Des Flandres, winner of the Herding group
Bean the Sussex Spaniel, winner of the Sporting group
Wilma the Boxer, winner of the Working group
King the Wire Fox Terrier, winner of the Terrier group
Oddly enough, there's a placard for the Schipperke on the floor. They've made no public announcement of Colton's disqualification. Will be interesting to see how this is handled.
Bryan Armen Graham (@BryanAGraham)
They're setting up for Best in Show in MSG, where no public announcement of Colton the Schipperke's disqualification has been made, and there's a Schipperke placard on the floor. pic.twitter.com/dfFJc5fgVj
Terrier group winner: King the Wire Fox Terrier!
And King wins the Terrier group, continuing the breed's longtime supremacy at Westminster!
Westminster Dog Show (@WKCDOGS)
The winner of the #Terrier group is King the Wire Fox Terrier! #WKCDogShow pic.twitter.com/NUVdXkmZnN
Ms Christine Erickson will judge the Terrier group. She's handpicked a large group with lots of variety and quality including the Wire Fox, Jack Russell, American Staffordshire, Scottie, Wheaton, Skye and a few others I can't quite spot from press row. They circle the ring once … and again …
Great work by Amy B Wang of the Washington Post in tracking down a Facebook post from Colton's handler, shedding light on his disqualification. Read the entire thing here. Meanwhile, the Terrier group is finished and we'll have a winner shortly.
A hearty reception for Carmen the Scottish Terrier. This breed, aside from being the most popular US presidential pet, is the second most decorated breed in Westminster's 142-year annals with eight Best in Shows. An even bigger reaction moments later for Crawford, a beautiful Soft Coated Wheaton Terrier.
9.53pm EST 21:53
Big pop for Isaac the Norwich Terrier. Probably the biggest reaction of this group from the crowd, whose energy has seemed to dip over the last half hour.
Norwich Terriers are alert, curious, and affectionate. #WKCDogShow pic.twitter.com/VWMIn93U3p
So many good girls and good boys in this group! The Wire Fox Terrier, Glen of Imaal Terrier, Irish Terrier and Kerry Blue Terrier take us into a commercial break. One last run after we return, after which we'll have our Terrier group winner ... and our completed field of six for Best in Show.
After a few more here's the Debit the Smooth Fox Terrier. Herbert Hoover owned two of them. The breed has won Best in Show four times but none since 1910. And it's a bit deceiving considering the same Smooth Fox – Ch Warren Remedy – accounts for three of them. In fact, that lovely canine remains the only dog to win Best in Show three times at Westminster.
We're breezing through the Terriers now: Bedlington Terrier, Border Terrier, Colored Bull Terrier, White Bull Terrier and Cairn Terrier. You might remember the latter from The Wizard of Oz.
The Cairn Terrier are cheerful, alert and busy. #WKCDogShow pic.twitter.com/k7YkUvY1kd
We're off and running in the final group. It's the Airedale Terrier, the American Hairless Terrier, the American Staffordshire Terrier, then a gorgeous Australian Terrier named Bacon, who won the highly competitive Montgomery County Kennel Club Terrier Show in Pennsylvania.
The Australian Terrier is the first Australian-bred dog to be recognized and shown in Australia. #WKCDogShow pic.twitter.com/tNGDeZZygr
Now it's the Terrier group, the group that's produced the most Best in Show winners in Westminster history by quite a bit. Ms Christine Erickson (Mesa, Arizona) will judge. Here's what the AKC has to say about these fine animals:
People familiar with this group invariably comment on the distinctive terrier personality. These are feisty, energetic dogs whose sizes range from fairly small, as in the Norfolk, Cairn or West Highland White Terrier, to the grand Airedale Terrier. Terriers typically have little tolerance for other animals, including other dogs. Their ancestors were bred to hunt and kill vermin. Many continue to project the attitude that they're always eager for a spirited argument. Most terriers have wiry coats that require special grooming known as stripping in order to maintain a characteristic appearance. In general, they make engaging pets, but require owners with the determination to match their dogs' lively characters.
May we have the #Terrier group! #WKCDogShow pic.twitter.com/7hgYnkwh7T
Updated at 9.27pm EST
So here's where things stand. Five of the six dogs who will compete for Best in Show have been chosen.
All that remains to fill out the field of six is the winner of the Terrier group, which is coming up next.
This guy is sitting in the front row, dead center. I have so many questions.
What is life? Photograph: FS1
Working group winner: Wilma the Boxer!
And the Boxer bitch takes it! Wilma wins the Working group. She's won 57 Best in Shows in her career, but none would be bigger than tonight. It's the third time the breed has won the group in the last four years. Says handler Michael Shepherd: "It's the stuff you dream of."
Wilma the Boxer bitch is one step closer to Best in Show after winning the Working group. Photograph: Frank Franklin II/AP
The winner of the Working group is Wonderful Wilma the Boxer! #WKCDogShow pic.twitter.com/SzQjiBJbKe
And now Mr James Moses will judge. He's picked out the Akita, the Cane Corso, the Pyrenees, the Rottweiler, the Siberian Husky, the Portuguese Water Dog … a few others. Oh boy. The tension is high!
Swells of applause from the crowd for Aristo the St Bernard, a New Jersey dog with hometown support. One to keep an eye on. Nick the Siberian Husky, the top-ranked in his breed, also prompts a big reaction. After Bolt the Standard Schnauzer and Joanah the English Setter, it's going to be in the hands of the judge ....
After Peyton the Great Pyrenees and Beatrice the Greater Swiss Mountain Dog, it's Addison the Komondor! This mop-looking dog, an ancient breed regarded as the king of the Hungarian livestock guardians, is always a crowd favorite and tonight is no exception. Moments later it's another lusty roar for Maximus, the Neapolitan Mastiff who tips the scales at 165lbs and whose favorite snack is filet mignon. He's perfectly named and certainly one to watch ...
The #Komondor is dignified, brave and loyal. #WKCDogShow pic.twitter.com/7M8O42gNby
Another commercial break as we pause at the halfway point of the Working group. And it seems the Westminster Kennel Club has released an official statement addressing Colton's disqualification.
Here's Westminster's official statement on Colton the Schipperke being disqualified bc of a judge's conflict of interest. Unfortunately, runner-ups don't compete in Best in Show even in an event like this. More here #WKCDogShow https://t.co/5aAPZdl7z3 pic.twitter.com/LZBJQMT8jK
After the Black Russian Terrier and Boerboel ... it's Wilma the Boxer from Aubrey, Texas! She takes the arena to hearty cheers. The breed has done quite well at Westminster in recent years, most recently when a beauty named Devlin won the group in 2017 and finished second one year earlier.
First it's Nick the Akita, who is retiring today as the winningest Akita in history. He's followed by the Alaskan Malamute and Anatolian Shepherd Dog. Then a swell of applause for the Damon the Bernese Mountain Dog! What a good boy!
The Bernese Mountain Dog is good-natured, calm and strong. #WKCDogShow pic.twitter.com/3eeEHLpeL1
Now it's the Working group. They will be judged by Mr James Moses (Wentzville, Missouri). Here's what the American Kennel Club has to say about these fine, fine canines:
Dogs of the Working group were bred to perform such jobs as guarding property, pulling sleds and performing water rescues. They have been invaluable assets to man throughout the ages. The Doberman Pinscher, Siberian Husky and Great Dane are included in this group, to name just a few. Quick to learn, these intelligent, capable animals make solid companions. Their considerable dimensions and strength alone, however, make many working dogs unsuitable as pets for average families. And again, by virtue of their size alone, these dogs must be properly trained.
May we have the #Working group in the ring! #WKCDogShow pic.twitter.com/FBCZWv9fXi
So here's where things stand. Four of the six dogs who will compete for Best in Show have been determined. Let it be said: the Killer B's are on the swarm!
All that remains to fill out that field are the winners of the Working group and the Terrier group.
If you're joining us late and wondering what happened to Colton the Schipperke, last night's winner of the Non-Sporting group, he was ruled ineligible shortly before tonight's group judging due to an ownership conflict. Scandal!
Sporting group winner: Bean the Sussex Spaniel!
Bean the Sussex Spaniel wins the Sporting group for the second year in a row! The crowd goes wild! We have our first winner of the night and handler Per Ingar Rismyhr couldn't be more thrilled.
"BEAN" Advances!
The Sussex Spaniel wins the Sporting Group and will compete for Best in Show at the #WKCDogShow! pic.twitter.com/RtHnV1x6NQ
The winner of the Sporting Group is Bean the Sussex Spaniel! #WKCDogShow pic.twitter.com/VbRNHCchrv
Mr Douglas Johnson is narrowing the field. I'm seeing the English Setter, the Irish Setter, the American Water Spaniel, the Springer Spaniel, the Black Cocker Spaniel and the Sussex, who is clearly the crowd favorite.
After the Spinone Italiano, it's the Vizsla. This particular Vizsla is apparently part-owned by Gary Dell'Abate (a/k/a Baba Booey) of Howard Stern Show fame. And after the Weimaraner, Wirehaired Pointing Griffon and Wirehaired Vizsla ... we're down to crunch time.
Spaniel run! The Clumber, Black Cocker, Ascob Cocker, Parti-Color Cocker, English Cocker, English Springer, Field, Irish Water, Sussex and Water Springer. Spaniels have historically enjoyed great success at Westminster ever since a Parti-Color called Ch Midkiff Miracle Man won the group in the first year it was judged in 1924.
Big cheers for the seven-year-old Sussex Spaniel named Bean, who won the Sporting group last year and is looking to repeat ... and perhaps go one step further to Best in Show.
Here's Bean! #WKCDogShow pic.twitter.com/99HGObLiNU
Notably, English Springer Spaniels have won the group 15 times, most recently in 2015.
We're back from a commercial break midway through the Sporting group. Next up is the American Water Spaniel, one of the few original American breeds and a versatile hunting dog, not to mention the official state dog of Wisconsin.
Now the Setters: English, Gordon, Irish and Irish Red & White, all of whom get warm receptions. The Irish Setter holds the competition record for most group placements (55) and most consecutive group placements (12, from 1933-44). Interestingly, however, an Irish Setter has never won Best in Show in 142 previous years.
Fun fact: famous English setter owners include Clark Gable, Brigitte Bardot and Annie Oakley.
No official word on tonight's attendance but the entire lower bowl and most of the upper tiers looks appear nearly full, creating a terrific atmosphere for these fine, fine animals.
The English #Setter is over 400 years old. #WKCDogShow pic.twitter.com/Q51rFWHQ8a
Biggest pop of the night so far is for the Golden Retriever. Goldens are the third most popular breed in the United States according to AKC registration. Alas, despite their popularity, a Golden Retriever has never won Westminster.
Next up is a trio of retrievers: the Chesapeake Bay, the Curly-Coated and the Flat-Coated. None of the three have ever been named Best in Show despite having been entered in the competition since 1877, 1926 and 1926, respectively (though a Flat-Coated Retriever did make the Best in Show finals once in 2001).
The Flat-Goat Retriever is named for it's flat-lying coat! #WKCDogShow pic.twitter.com/Qp9kG1Va6e
The first five to show are the Brittany, Lagotti Romagnoli, Pointer and German Shorthaired Pointer and German Wirehaired Pointer. The German Shorthaired Pointer has been entered in the competition since 1935, three times winning Best in Show (in 1974, 2005 and 2016).
Colton the Schipperke has been ruled ineligible!
Strike the above! Colton the Schipperke has been ruled ineligible due to an ownership conflict with Peter Green, the Best in Show judge. This is not entriely unusual in the dog show world, though it's rare at this level. It doesn't take away from Colton's Best of Breed or Best of Group win, but he won't be advancing to the final round tonight. That means only six dogs will be competing for Best in Show later tonight rather than the usual seven.
Scandal! Colton the Schipperke has been ruled ineligible after last night's Best of Group win and will not be competing for Best in Show. Photograph: Caitlin Ochs/Reuters
First up tonight is the Sporting group. They will be judged by Mr Douglas Johnson of Bloomington, Indiana. This group has produced a total of 20 Best in Show winners through the years – second only to the Terrier group (46) – most recently the German shorthand pointer named CJ in 2016.
Here's what the American Kennel Club has to say about the Sporting Group:
Naturally active and alert, Sporting dogs make likeable, well-rounded companions. Members of the group include pointers, retrievers, setters and spaniels. Remarkable for their instincts in water and woods, many of these breeds actively continue to participate in hunting and other field activities. Potential owners of Sporting dogs need to realize that most require regular, invigorating exercise.
There's already a bit of history in the offing tonight. Specifically, none of the four breeds that have advanced to the final seven have ever won Best in Show.
Dachshunds, for all their popularity, have yet to bring home the top prize in the 142 years they've entered. Burns, the winningest longhaired dachshund in history, is only the second of his breed to even win the Hound group. The other? His great-grandfather Ben in 1998.
Schipperkes have been entered since 1891, but Colton's surprise win on Monday marked the first time the small Belgian breed has ever won the group and reached the final round.
The Bouvier des Flandres has done slightly better with three appearances in the final septet, most recently in 2007. And no Havanese has ever won, though the national dog of Cuba didn't first enter until 2000.
Four of the seven group winners who will compete for the title of Best in Show were decided on Monday night. The remaining three groups (Sporting, Working and Terrier) will be judged tonight in advance of the final round.
Burns the Longhaired Dachshund won the Hound group ...
The winner of the #Hound Group is Burns the Longhaired Dachshund! #WKCDogShow pic.twitter.com/R291EpFFLr
... Bono the Havanese won the Toy group ...
The winner of the #Toy group is Bono the Havanese! #WKCDogShow pic.twitter.com/2iZGxVoJRv
... Colton the Schipperke won the Non-Sporting group ...
The winner of the #NonSporting group is Colton the Schipperke! #WKCDogShow pic.twitter.com/TeNPSTdwPO
... and Baby Lars the Bouvier Des Flandres won the Herding group.
The winner of the #Herding group is Baby Lars the Bouvier des Flandres! #WKCDogShow pic.twitter.com/puB9DwNmS5
Hello and welcome to New York for the final night of Westminster! We're ringside at Madison Square Garden for the 143rd edition of the nation's most prestigious dog show, the oldest continuously held sporting event in the United States after the Kentucky Derby, and there's an unmistakable electricity in the air as the title of America's top dog will be chosen from the nearly 2,800 canines from 203 different breeds and varieties hailing from all 50 states and 14 other countries, including Russia, Mexico, Brazil, Canada and Japan.
Tonight one will emerge from the pack. Last year it was Flynn, the Bichon Frise. Who will bring home the hardware in 2019?
Bryan will be here shortly. While you wait, here's his story on the Hotel Pennsylvania, the 100-year-old landmark across the street from Madison Square Garden which becomes a veritable hotel for dogs during Westminster week.
Pooch pizzas and pet psychics: life as a dog concierge at the Westminster Show


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