Walker v. Phelps et al
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 12/18/12. (dzb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JASON E. WALKER,
) Civ. No.1 0-83-SLR
Warden, and A TIORNEY
GENERAL OF THE STATE
Jason Walker. Pro se petitioner.
James T. Wakley, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for respondents.
December /8 ,2012
Presently before the court is Jason E. Walker's ("petitioner") amended
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (0.1. 1; 0.1. 8)
Petitioner is a Delaware inmate in custody at the James T. Vaughn Correctional Center,
Delaware. For the reasons that follow, the court will dismiss his application.
II. FACTUAL AND PROCEDURAL BACKGROUND1
On April 19, 2004, about ten minutes before closing at 8:00 p.m., two men
walked into Tull's Aquarium and Pet shop and walked directly to the fish room at the
rear of the store. Walker, 2007 WL 481957 at *1. Joseph Alexander was working at
the store with his uncle, Kenneth Tull. Alexander followed the two men to the fish room
and asked if they needed help. One of the men inquired about aggressive fish. After
an exchange of information, the man asked to purchase a red devil fish. Alexander
climbed a ladder to retrieve and bag the fish; when he turned around, one of the men
had a black, semiautomatic gun pointed in his face. The man told Alexander to get
down and the other started to duct tape Alexander's hands and feet together. While
this was being done, Alexander saw his uncle walking toward the fish room. He heard
the gunman yell, "Get down," and then Alexander heard two shots fired and the sound
of breaking glass. After the men ran out of the store, Alexander was able to free
himself. He found his uncle in the front of the store, bleeding, with a phone in his hand.
Kenneth Tull's 911 call was received at 7:58 in the evening. Tull died from his injuries
'The factual history is recounted from the Delaware Supreme Court's opinion in
Walkerv. State, 919 A.2d 562 (Table), 2007 WL 481957 (Del. 2007). The procedural
history is summarized from the State's answer (OJ. 14) and the state court record (D.1.
on April 30, 2004. Id.
Several witnesses who lived or worked near Tull's Aquarium and Pet Store were
able to give information to the police regarding two black men in an older model, black
Cadillac, which was seen speeding away from Tull's around 8 p.m. on April 19, 2004.
Id. at *2. One witness was able to give police a partial Delaware license tag number of
the Cadillac. Police arrested petitioner on April 30, 2004. That same evening, police
officers conducted a photographic line-up for eyewitness Joseph Alexander. Without
hesitation, Alexander identified petitioner as the perpetrator of his uncle's murder. Id.
In August 2004, petitioner was indicted and charged, inter alia, with two counts of
first degree capital murder. (D.1. 14) In July 2005, a Superior Court jury found
petitioner guilty on all counts. During the sentencing phase, the jury recommended that
petitioner be sentenced to life imprisonment. Id. The Superior Court imposed that
sentence shortly thereafter, and the Delaware Supreme Court affirmed petitioner's
convictions on direct appeal. See Walker, 2007 WL 481967, at *4.
In November 2007, petitioner filed a motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"). The Superior Court
denied the Rule 61 motion, and the Delaware Supreme Court affirmed that decision.
State v. Walker, 2009 WL 1451799 (Del. Super. 2009); Walker v. State, 2010 WL
376878 (Del. Mar. 31, 2010).
Petitioner timely filed his original and amended applications. 2 (D.I. 1; D.1. 8) The
2The court concurs with the State's conclusion that statutory tolling renders
petitioner's original application (D.1. 1) timely filed which, in turn, means that his
amended application (D.1. 8) is timely. (D.I. 14 at 3)
State filed its answer, contending that petitioner's sole claim must be denied for failing
to satisfy § 2254(d). (D.1. 14) Petitioner's application is ready for review.
III. GOVERNING LEGAL PRINCIPLES
A. The Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") "to reduce delays in the execution of state and federal criminal sentences
... and to further the principles of comity, finality, and federalism." Woodford v.
Garceau, 538 U.S. 202, 206 (2003). Pursuant to AEDPA, a federal court may consider
a habeas petition filed by a state prisoner only "on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §
2254(a). AEDPA also imposes procedural requirements and standards for analyzing
the merits of a habeas petition in order to "prevent federal habeas 'retrials' and to
ensure that state-court convictions are given effect to the extent possible under law."
Bell v. Cone, 535 U.S. 685, 693 (2002); see Woodford, 538 U.S. at 206.
One prerequisite to federal habeas review is that a petitioner must exhaust all
remedies available in the state courts. See 28 U.S.C. § 2254(b)(1). The exhaustion
requirement is grounded on principles of comity to ensure that state courts have the
initial opportunity to review federal constitutional challenges to state convictions. Welts
v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion
requirement by "fairly presenting" the substance of the federal habeas claims to the
state's highest court, either on direct appeal or in a post-conviction proceeding, and in a
procedural manner permitting the state courts to consider them on the merits. See
Duncan v. Henry, 513 U.S. 364, 365 (1995); Lambertv. Blackwell, 134 F.3d 506, 513
(3d Cir. 1997).
B. Standard of Review
When a state court has adjudicated a petitioner's habeas claim on the merits, a
federal district court can only grant habeas relief if the state court's adjudication of the
(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)(1), (2); Williams v. Taylor, 529 U.S. 362,412 (2000); Appel v.
Hom, 250 F.3d 203, 210 (3d Cir. 2001). Clearly established federal law for § 2254(d)(1)
purposes refers to Supreme Court holdings, rather than dicta, that were clearly
established at the time of the pertinent state court decision. See Greene v. Palakovich,
606 F.3d 85 (3d Cir. 2010). In turn, a claim has been "adjudicated on the merits" for the
purposes of 28 !J.S.C. § 2254(d) if the state court decision finally resolves the claim on
the basis of its substance, rather than on a procedural or some other ground. Thomas
v. Hom, 570 F.3d 105, 115 (3d Cir. 2009). The deferential standard of § 2254(d)
applies even "when a state court's order is unaccompanied by an opinion explaining the
reasons relief has been denied"; as recently explained by the Supreme Court, "it may
be presumed that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary." Harrington v. Richter,
_ U.S. _, 131 S.Ct. 770, 784-85 (2011).
Finally, when reviewing a habeas claim, a federal court must presume that the
state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1). This
presumption of correctness applies to both explicit and implicit findings of fact, and is
only rebutted by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1);
Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-EI v. Cockrell, 537 U.S.
322,341 (2003)(stating that the clear and convincing standard in § 2254(e)(1) applies
to factual issues, whereas the unreasonable application standard of § 2254(d)(2)
applies to factual decisions).
In his sole ground for relief, petitioner asserts that the Superior Court violated his
Sixth Amendment right to self-representation by denying his two requests to represent
himself. The Delaware Supreme Court denied this argument as meritless during
petitioner's direct appeal. Therefore, petitioner will only be entitled to habeas relief if
the court concludes that the Delaware Supreme Court's decision was either contrary to,
or an unreasonable application of, clearly established Federal law, or was based on an
unreasonable determination of the facts.
The clearly established federal law for claims alleging the denial of a defendant's
right to self-representation was articulated by the United States Supreme Court in
Faretta v. California, 422 U.S. 806 (1975). Pursuant to Faretta, a defendant in a state
criminal case has a constitutional right to proceed without counsel when he voluntarily,
knowingly, and intelligently chooses to do so, and the state may not constitutionally
force a lawyer upon him. Id. at 834-35; Johnson v. Zerbst, 304 U.S. 458, 464-65
(1938). More specifically, U[t]he Sixth Amendment embodies two competing rights
because exercising the right to self-representation necessarily means waiving the right
to counsel." Buhl v. Cooksey, 233 F.3d 783, 789 (3d Cir. 2000).
Although a defendant's right to represent himself is fundamental in nature,
representation by counsel is the standard, not the exception, and there is a strong
presumption against the waiver of the right to counsel. Martinez v. Court of Appeal of
California, 528 U.S. 152, 161 (2000); Patterson v. II/inois, 487 U.S. 285, 307 (1988).
Consequently. unlike a criminal defendant's right to counsel. which stays in effect until
waived, a defendant's right to self-representation is not triggered until it is clearly,
unequivocally. and timely asserted. Faretta, 422 U.S. at 835. Once a defendant
unequivocally and timely asserts his constitutional right to self-representation, the trial
court must conduct a colloquy (UFaretta inquiry") with the defendant to determine that
his waiver of his right to counsel is knowing and voluntary. and inform him of the nature
of the charges against him, the possible penalties, and the dangers of self
representation. Buh/, 233 F.3d at 791. "This obligation [to conduct a Faretta inquiry]
arises under the Constitution, and it applies to state. as well as federal judges." Id. at
In this case, petitioner made two requests to represent himself. Petitioner filed
his first request on April 25, 2005 in a single-page pro se application seeking to
discharge his attorneys and represent himself. However, the trial court did not become
aware of petitioner's initial request until the eighth day of trial. when defense counsel
read a letter to the court expressing petitioner's wish to represent himself for the
remainder of the trial. Once defense counsel finished reading the letter, the trial judge
called a sidebar conference to address petitioner's request. Defense counsel then
informed the trial judge about petitioner's original written request filed on April 25, 2005,
stating that petitioner "may have sent something to the Court that got docketed back at
another time saying he wanted to represent himself. He never pursued it with us, so we
thought, let it be, because he's clearly better off with us than with himself." (0.1. 17,
State's An. Br. in Walker v. State, No. 517,2005 at 10)
After the side-bar conference, the trial judge conducted a colloquy with petitioner,
[a]nd the conversation we've just had at sidebar is - was nothing more than his
[defense counsel] reading this [petitioner's newest letter requesting to proceed
pro se] to me and indicating that he believes that some time ago, you may have
filed something with the Court. It's never been brought to my attention and the
attorneys didn't hear anything more from you about it and so nothing was done
about it, but there may be a paper in the file where you request the opportunity to
represent yourself. We are almost at the end of the State's case here. We
began this process last week, as you know, with jury selection Monday, Tuesday,
and Wednesday, and then it resumed on Monday of this week and then we
started the trial on Tuesday and it is now Friday morning. So any request to
represent yourself is just untimely. It comes way too late to make a change in
this trial. Okay?
(0.1.17, State's An. Br. in Walkerv. State, No. 517,2005 at 10-11)
On direct appeal, petitioner contended that the trial court violated his Sixth
Amendment right to self-representation by denying his two requests to proceed pro se.
The Delaware Supreme Court rejected petitioner's arguments and affirmed the trial
court's decision, holding that petitioner's actions constituted an abandonment of his first
request, and that his second request was untimely.
In reaching its decision, the Delaware Supreme Court specifically applied Faretta
and its progeny to petitioner's claim. Consequently, the Delaware Supreme Court's
decision was not contrary to Supreme Court precedent. See Fahy v. Hom, 516 F.3d
169, 196 (3d Cir. 2008)(Supreme Court of Pennsylvania's decision was not "contrary to"
clearly established Federal law because appropriately relied on its own state court
cases, which articulated the proper standard derived from Supreme Court precedent).
The court's inquiry is not over, however, because it must also determine whether
the Delaware Supreme Court's decision involved an unreasonable determination of
facts, or an unreasonable application of Supreme Court precedent to petitioner's case.
A. Petitioner's April 25, 2005 Request To Proceed Pro Se
"[I]n certain cases it may be appropriate to consider the decisions of inferior
federal courts as helpful amplifications of Supreme Court precedent." Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999). Consequently, the court
will analyze petitioner's Faretta claim pursuant to the three-pronged inquiry articulated
in Buhl v. Cooksey, which requires the court to: (1) determine if petitioner clearly and
unequivocally asserted his right to self-representation, thereby triggering the trial court's
obligation to conduct a Faretta inquiry; (2) determine if the trial court's Faretta inquiry
was adequate; and (3) consider what impact, if any, petitioner's subsequent conduct
had upon his previously asserted right to self-representation. 3 See Buhl, 233 F.3d at
791-800; United States v. Peppers, 302 F.3d 120, 132 (3d Cir. 2002); see also
Dorman v. Wainwright, 798 F.2d 1358,1366 (11 th cir. 1986).
31n Peppers, the Third Circuit identified an additional requirement that a trial court
must assure itself that the defendant is competent to stand trial. Peppers, 302 F.3d at
132. However, because the record does not indicate any question as to petitioner's
competency to waive his right to trial, the court has no reason to address this prong.
1. Did petitioner adequately assert his right to self-representation?
When the Delaware Supreme Court affirmed the trial court's decision on direct
appeal, it explicitly held that petitioner's "inaction can only be interpreted as an
abandonment of his initial April 25, 2005 request to represent himself." Walker,
2007 WL 481957, at *3 (emphasis added). Considering that petitioner's initial motion
was an unauthorized pro se filing by a represented defendant, the court could
reasonably conclude that petitioner did not "adequately" assert his right to self
representation. Nevertheless, in an exercise of prudence, the court liberally construes
the Delaware Supreme Court's statement as an implicit holding that petitioner's initial
request for self-representation was adequately asserted. Thus, the court will proceed to
the second step of the Buhl inquiry.
2. The trial court's failure to conduct a Faretta colloquy
It is undisputed that a trial court has a constitutional obligation to conduct a
Faretta inquiry on a defendant's unequivocal and timely motion for self-representation.
Buh/, 233 F.3d at 791. Pursuant to Faretta, a defendant who wishes to proceed pro se
at trial "should be made aware of the dangers and disadvantages of self-representation,
so that the record will establish that he knows what he is doing and his choice is made
with eyes open." Faretta, 422 U.S. at 835. A court is not required to follow any
particular script in order to satisfy the Faretta inquiry requirement. Iowa v. Tovar, 541
U.S. 77 (2004). Nevertheless, in recognition of Faretta's general requirement that a
waiver of the right to counsel "ought not [be] accept[ed] ... absent a penetrating and
comprehensive examination of all the circumstances," United States v. Stubbs, 281
F.3d 108, 118-19 (3d Cir. 2002), the Third Circuit has established a "useful framework"
of fourteen model questions for a court to ask when a defendant asserts a request to
proceed pro se. Peppers, 302 F.3d at 135; United States v. Jones, 452 F.3d 223, 234
(3d Cir. 2006).
In this case, the trial court did not conduct a Faretta hearing on petitioner's initial
motion to proceed pro se filed in April 2005. Therefore, its Faretta inquiry was clearly
inadequate. See Buhl, 233 F.3d at 799. The court now turns to the third prong of the
3. Did petitioner abandon his previously asserted right to self
In petitioner's case, the Delaware Supreme Court applied precedent from the
Third and Seventh Circuits, and held that petitioner's inaction following the filing of his
April 2005 request to proceed pro se constituted an abandonment of his right to selfrepresentation. Petitioner contends the Delaware Supreme Court's holding warrants
habeas relief for two reasons. First, petitioner alleges that the Delaware state courts
erred in holding that he had abandoned his right to proceed pro se because he did not
clearly and specifically waive his previously asserted right. (D.1. 8, at 14, citing Johnson
v. Zerbst, 304 U.S. at 464; Fuentes v. Shevin, 407 U.S. 57 (1972»). Second, petitioner
alleges that his acquiescence to counsel's representation did not amount to a waiver of
his right to proceed pro se because counsel informed him prior to trial that the trial court
had denied his initial request. In essence, petitioner alleges that defense counsel's
explanation prevented him from asserting a new request to represent himself.
Courts must indulge every reasonable presumption against a waiver of counsel.
See Johnson, 304 U.S. at 464. Consequently, the "right to self-representation  is
waived if not asserted, while the right to counsel is not. Since the right of self
representation is waived more easily than the right to counsel at the outset, before
assertion, it is reasonable to conclude that it is more easily waived at a later point, after
assertion." Brown v. Wainwright, 665 F.2d 607, 611 (11 th Cir. 1982). While the United
States Supreme Court has not explicitly considered whether a properly asserted Faretta
right may be waived, or abandoned, through subsequent conduct, the Supreme Court
has indicated that such a waiver may occur. For instance, in McKaskle v. Wiggins, 465
U.S. 168, 182-84 (1984), the Supreme Court opined that a defendant may waive his
Faretta rights even after he has been granted the right to proceed pro se and standby
counsel has been appointed, explaining that "[o]nce a pro se defendant invites or
agrees to any substantial participation by counsel, subsequent appearances by counsel
must be presumed to be with the defendant's acquiescence, at least until the defendant
expressly and unambiguously renews his request that standby counsel be silenced."
Similarly, as set forth in Fa retta , representation by unwanted counsel is constitutionally
impermissible "unless the accused has acquiesced in such representation." Faretta,
465 U.S. at 182.
After reviewing petitioner's arguments concerning his April 2005 request to
proceed pro se pursuant to the foregoing principles, the court concludes that both
arguments are unavailing. To begin, although the McKaskle Court opined that
"[p]articipation by counsel with a pro se defendant's express approval is, of course,
constitutionally unobjectionable," McKaskle, 465 U.S. at 182, the Supreme Court has
never held that a defendant's waiver of his right to self-representation can only be
effectuated by an explicit verbal or written retraction. Rather, it is a defendant's waiver
of the right to counsel that must be affirmative and on the record. See Michigan v.
Jackson, 475 U.S. 625, 633 (1986)(emphasis added). Therefore, the fact that
petitioner did not explicitly retract his previously asserted right to self-representation
does not demonstrate that the Delaware state court decisions warrant federal habeas
In turn, petitioner's argument that defense counsel prevented him from re
asserting his right to proceed pro se by telling him that the trial court had denied his
April 2005 request is equally unavailing. As an initial matter, the record does not
contain any indication that defense counsel informed petitioner that the trial court had
denied his initial request. Petitioner's defense attorneys explained to the trial judge on
July 22, 2005 that petitioner "never pursued" with them his initial request to represent
himself, so they "let it be." (D.I. 17, at 10) Given these circumstances, the court rejects
as factually baseless petitioner's contention that defense counsels' actions somehow
"prevented" him from re-asserting his request for self-representation.
Moreover, although a defendant "need not make fruitless motions" to "renew his
request to represent himself ... or forego cooperation with defense counsel" in order to
avoid waiver of a previously asserted right to self-representation when the trial court
denied that request,4 it appears that the same cannot be said when a defendant's
4Brown v. Wainwright, 665 F.2d 607,612 (5th Cir. 1982); see Buhl, 233 F.3d at
806; United States v. Arlt, 41 F.3d 516, 523 (9th Cir. 1994); Raulerson v. Wainwright,
request for self-representation has not been explicitly denied or ruled upon. For
instance, in cases involving judicial inaction on a defendant's request for selfrepresentation, at least two Federal circuit courts have explicitly held that a defendant
abandons his request to proceed pro se if he sits by in silence and lets counsel conduct
the defense without re-asserting the right at any juncture of trial. Rayford v. Johnson,
253 F.3d 706 (Table), 2001 WL 498712, at *2 (5 th Cir. Apr. 13, 2001)(per curiam);
United States v. Johnson, 223 F.3d 665, 668 (7th Cir. 2000). The Third Circuit recently
indicated agreement with these cases in an unpublished decision, Brathwaite v. Phelps,
418 F. App'x 142,147 (3d Cir. 2011).5
The court acknowledges that these Federal circuit cases do not constitute clearly
established Federal law for § 2254(d) purposes. Nevertheless, the court looks to these
cases for guidance in their amplification of the applicable Supreme Court precedent.
732 F.2d 803,809 (11th Cir. 1984).
51n Brathwaite, the trial court never ruled on the petitioner's request to proceed
pro se, but the petitioner incorrectly believed that his request had been denied and,
therefore, never reasserted his request for self-representation during counsel's defense
of his case. On direct appeal, the Delaware Supreme Court held that the trial court did
not violate petitioner's right to self-representation because petitioner abandoned the
right by failing to reassert it. Brathwaite v. State, 741 A.2d 1025 (Del. 1999). On
federal habeas review, the district court held that the Delaware Supreme Court's
decision involved a reasonable application of Supreme Court precedent. Brathwaite v.
Phelps, 2009 WL 3345595 (D. Del. Oct. 16,2009). In affirming the district court's
denial of habeas relief, the Third Circuit first noted that, while McKastie involved a
factual scenario different than the one before it, the McKastle Court "nonetheless
suggested that after a defendant asserts his right to self-representation, he may waive
that right without a specific colloquy with the trial court or similar formal procedure." Id.
The Third Circuit then held that "the Delaware Supreme Court's decision [that the
petitioner abandoned his right to self-representation by acquiescing to counsel's
appointment without either objecting to the appointment of counselor renewing his
request to represent himself] was  a reasonable application of Supreme Court
precedent under § 2254(d)." Id. at 148.
Turning back to petitioner's case, the court notes that: (1) the trial court never
expressly denied petitioner's initial April 2005 request to proceed pro se; (2) petitioner
stood silent while his attorneys filed pre-trial motions, represented him at office
conferences and oral arguments, and conducted the 'first eight days of trial; and (3)
petitioner's "silence" (or failure to pursue his right to self-representation) at critical
junctures cannot be attributed to any action on the part of defense counsel. In these
circumstances, the court concludes that the Delaware Supreme Court reasonably
determined the facts of the case in finding that petitioner acquiesced to defense
counsel's continued representation. Additionally, given the absence of any Supreme
Court precedent precluding a state court from holding that a defendant can abandon a
previously asserted right to self-representation by acquiescing to counsel's continued
representation, the court cannot conclude that the Delaware Supreme Court
unreasonably applied United States Supreme Court precedent in holding that petitioner
waived his right to self-representation by failing to re-raise the issue during the critical
junctures of trial.
B. Petitioner's Second Request To Proceed Pro Se
There is no Supreme Court precedent articulating an absolute right of self
representation after the defendant's trial begins, and the applicable Supreme Court
cases reflect the basic principle that a trial court has broad discretion in granting mid
trial requests to proceed pro se. The absence of clear direction from the Supreme
Court as to when a Faretta request is untimely means that courts are free to set the
timing element as long as their standards comply with Faretta's holding that a request
"weeks before trial" is timely. See Williams, 529 U.S. at 412-13. Significantly, the
majority of Federal courts considering the issue have concluded that the right of self
representation is curtailed "after trial has commenced - Le., at least after the jury has
been empaneled," meaning that "district courts have discretion to deny any untimely
request to proceed pro se after weighing the 'prejudice to the legitimate interests of the
defendant' against the 'potential disruption of the proceedings in progress already in
progress.'" United States v. Bankoff, 613 F.3d 358, 373 (3d Cir. 2010)(collecting
Here, the trial court explicitly denied petitioner's mid-trial request as untimely,
and the Delaware Supreme Court's statement - that the "potential disruption to the
proceedings in progress clearly outweighed any possible prejudice to [petitioner's]
legitimate interests"6 - shows that the Delaware Supreme Court also viewed the request
as untimely. Having already determined that petitioner abandoned his first request to
represent himself, the court views petitioner's mid-trial request as a new and completely
independent request to proceed pro se, rather than as a re-assertion of his initial
request. In these circumstances, and given the absence of any United States Supreme
Court precedent requiring a court to treat as timely a mid-trial request for self
representation, the court cannot conclude that the Delaware Supreme Court's decision
was based on an unreasonable determination of facts or involved an unreasonable
application of Supreme Court precedent.
Accordingly, the court rejects petitioner's argument that the trial court denied his
6Walker, 2007 WL 481957, at *2.
right to self-representation.
V. CERTIFICATE OF APPEALABILITY
Finally, the court must decide whether to issue a certificate of appealabilty. See
3d Cir. L.A.R. 22.2 (2011). The court may issue a certificate of appealability only when
a petitioner makes a "substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates "that
reasonable jurists would find the district court's assessment of the denial of a
constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484
For the reasons stated above, the court concludes that petitioner's habeas
application must be denied. Reasonable jurists would not find this conclusion
debatable. Consequently, petitioner has failed to make a substantial showing of the
denial of a constitutional right, and a certificate of appealability will not be issued.
For foregoing reasons, the court will deny petitioner's application for habeas
relief filed pursuant to 28 U.S.C. § 2254.
An appropriate order will be entered.
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