McCray v. Phelps et al

Filing 24

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/21/2016. (cna)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

KEVIN F. MCClL!\Y,
Petitioner,
Civ. Act. No. 13-123-LPS

v.

DAVID PIERCE, Warden, and
ATIORNEY GENERAL OF THE
STATE OF DEU\WARE,
Respondents. 1

Kevin McCray. Pro se Petitioner.
Karen V. Sullivan, Deputy Attorney General of the Delaware Department ofJustice, Wilmington,
Delaware. Attorney for Respondents.

MEMORANDUM OPINION

March 21, 2016
Wilmington, Delaware

lWarden David Pierce replaced Warden Perry Phelps, an original party to this case. See Fed. R.
Civ. P. 25(d).

I.

INTRODUCTION
Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28

U.S.c. § 2254 ("Petition") filed by Petitioner Kevm F. McCray ("Petitioner"). (D.!.3) For the
reasons discussed, the Court will dismiss the Petition as time-barred by the limitations period
prescribed in 28 U .S.c. § 2244.

II.

BACKGROUND
Petitioner was arrested on August 28, 2002 and subsequently indicted on four counts of first

degree robbery, four counts of possession of a firearm during the commission of a felony
("PFDCF"), two counts of second degree burglary, attempted robbery, attempted burglary,
kidnaping, and a variety of related offenses. (D.L 19 at 1) In July 2003, Petitioner pled guilty to
three counts of first degree robbery and one count of PFDCF. (D.L 19 at 2) The presentence
investigation revealed that Petitioner had prior convictions necessitating mandatory sentence
enhancements for both the robbery and weapon charges. Consequently, during the sentencing
hearing on December 5, 2003, and pursuant to a revised Plea Agreement, the Superior Court
allowed Petitioner to withdraw his guilty plea to one count of first degree robbery. The Superior
Court conducted a further colloquy to make certain that Petitioner understood the increased
penalties he faced on the remaining two counts of first degree robbery and one count of PFDCF,
and determined that Petitioner's guilty plea to those charges remained knowing, voluntary, and
intelligent. The Delaware Superior Court then sentenced Petitioner to an aggregate of thirty-eight
years at Level V incarceration, suspended after twenty-six years and decreasing levels of supervision.
Petitioner did not appeal his 2003 conviction and sentence. (D.I. 19 at 2)

While Petitioner was being prosecuted in Delaware, he was also facing federal charges
stemming from robberies at three check cashing stores in New Jersey. As those case came to trial in
New Jersey in December 2004, Petitioner's trial counsel reported to the District Court of New
Jersey that Petitioner's mental condition had "deteriorated." It was reported that Petitioner had
been in a mental institution at some point. In January 2005, the federal trial was haIted, and
Petitioner was evaluated by a psychiatrist. In July 2006, the mental health professionals concluded
that Petitioner had an antisocial character and that there were signs of malingering as to cognitive
intellectual limitations. They recommended anti-psychotics to restore Petitioner to competence,
which Petitioner refused to take. In January 2007, the District Court for the District of New Jersey
issued a decision refusing to order involuntary forced medication.
Meanwhile, back in Delaware, on August 5, 2005, Petitioner filed his first motion for post­
conviction relief pursuant to Delaware Superior Court Criminal Rule 61 (Rule 61 Motion"). The
Delaware Superior Court denied the Rule 61 Motion on August 18,2005, and Petitioner did not
appeal that decision. (D.L 19 at 3) Petitioner filed a second Rule 61 Motion on October 27, 2005,
which the Superior Court summarily dismissed on December 19,2005 as repetitive under Rule
61 (i) (2). Petitioner did not appeal that decision. (D.L 19 at 3)
Petitioner, with the help of another inmate, flied a Motion to Withdraw Guilty Plea on
December 28, 2005, asserting his guilty plea was invalid due to mental illness. After noting that the
United States District Court for the District of New Jersey had declared Petitioner incompetent to
stand trial for charges pending before it, the Superior Court dismissed the Motion without prejudice
on February 15,2006. (D.L 19 at 3) The Superior Court indicated that Petitioner could refile the
Rule 61 Motion "after he is restored to competence." !d.

2

On April 3, 2007, Petitioner filed a § 2254 petition in this Court. See McCrqy v. Oxla', Civ. A­
No.07-191-JJF. The State filed an Answer, asking the Court to dismiss the Petition as untimely or
to dismiss the Petition without prejudice for failure to exhaust state court remedies. On May 14,
2008, the Honorable Joseph J. Farnan, Jr. issued an Opinion concluding that the petition was not
time-barred because the limitations period was tolled from December 2,2003 (33 days before
AEDPA's limitation period would have expired) until "such time that Petitioner is restored to
competency." McCrqy v.

Ox/~y,

553 F. Supp. 2d 368, 375 (D. Del. 2008). Judge Farnan also deferred

deciding the exhaustion issue, and ordered the State to provide additional state court records, an
update on Petitioner's mental state, and any additional proceeding in state court that might affect the
exhaustion analysis. !d. at 376-77. The State submitted the additional materials, and Judge Farnan
dismissed the petition without prejudice for failure to exhaust state remedies on September

See A1cCrqy v. Oxlry, Civ. A- No. 07-191

2008.

at D.l. 34.

On September 23, 2008, Petitioner filed in the Delaware Superior Court motions for
appointment of counsel and for a publicly funded psychiatric evaluation and competency analysis.
The Superior Court denied the motions on October 3, 2008 because Petitioner had not provided
reasons for either motion. Petitioner appealed the decision to the Delaware Supreme Court, which
remanded the case with instructions that the Superior Court appoint counsel and order a psychiatric
evaluation. The Superior Court ordered both on February 24, 2009.
In the meantime, while his appeal of the order denying appointment of counsel and funding
for a competency exam was pending, Petitioner filed a Rule 61 motion on October 15, 2008; a
motion to amend his motion on October 27,2008; a motion to set aside his sentence on November
18, 2008; and motion for correction of illegal sentence. On December 4 and 19, 2008, the Superior
Court denied these motions based on lack of jurisdiction because of Petitioner's then-pending
3

appeal from the Superior Court's October 3, 2008 Order. However, after counsel had been
appointed and the current and retrospective psychiatric evaluation was completed, the Superior
Court ultimately considered the October 15, 2008 Rule 61 motion on its merits. The Superior Court
denied the Rule 61 motion on November 22, 2011, and the Delaware Supreme Court affinned that
decision. See i\1cCrqy, 2011 WL 7144243; McCrqy v. State, 2012 WL 1569787 (Del. May 3, 2012).
Thereafter, Petitioner filed a new 2254 Petition asserting the sole claim that counsel provided
ineffective assistance by failing to have him evaluated in 2003 to determine if he was competent to
enter the plea agreement. The State filed an Answer, asserting that the Petition should be dismissed
as time-barred or, alternatively, because the claims asserted therein are procedurally barred or
meritless. (D.I. 13)

III.

GOVERNING LEGAL PRINCIPLES
A. One Year Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law

on April 23, 1996. 28 U.S.c. § 2244(d)(1). AEDPA prescribes a one-year period of limitations for
the filing of habeas petitions by state prisoners, which begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created
bv State action in violation of the Constitution or laws of the Cnited
States is removed, if the applicant was prevented from filing by such
State action;
.'

(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
4

28 U.s.c. § 2244(d)(1). AEDPA's limitations period is subject to statutory and equitable tolling. See

Holland v. Florida, 560 L.S. 631, 645 (2010) (equitable tolling); 28 U.S.c. § 2244(d)(2) (statutory
tolling).
Pursuant to the statutory tolling doctrine under § 2244(d) (2), a properly filed state postconviction motion tolls AEDPA's limitations period during the time the action is pending in the
state courts, including any post-conviction appeals, provided that the motion was filed and pending
before the expiration of AEDPA's limitations period. See Swartz v. Meyers, 204 F.3d 417, 420-24 (3d
Cir. 2000); Price v. Tqylor, 2002 WL 31107363, at "'2 (D. Del. Sept. 23, 2002).
In turn, AEDPA's limitations period may be tolled for equitable reasons in appropriate
cases. See Holland, 130 S.Ct. at 2560. A petitioner can only qualify for equitable tolling by
demonstrating "(1) that he has been pursuing his rights diligently, and (2) some extraordinary
circumstance stood in his way and prevented timely filing;,,2 mere excusable neglect is insufficient.

Schlueter fl. Varner, 384 F.3d 69,

(3d Cir. 2004). Consistent with these principles, the Third Circuit

has specifically limited the equitable tolling of AEDPA's limitations period to the following
circumstances:
(1) where the defendant (or the court) actively misled the plaintiff;
(2) where the plaintiff was in some extraordinary way prevented from
asserting his rights; or
(3) where the plaintiff timely asserted his rights mistakenly in the
wrong forum.

jones, 195 F.3d at 159; see also Thomas v. Snyder, 2001 WL 1555239, at "'3-4 (D. Del. Nov. 28,2001).

2Holland, 130 S.Ct. at 2562.
5

B. Standard of Review
When a state's highest court has adjudicated a federal habeas claim on the merits, the federal
court must review the claim under the deferential standard contained in 28 U.S.c. § 2254(d). A
claim has been "adjudicated on the merits" for the purposes of 28 U.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. See Thomas I'. Horn, 570 F.3d 105, 115 (3d Cir. 2009).
Pursuant to 28 USc. § 2254(d), federal habeas relief may only be granted if the state court's
decision was "contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States," or the state court's decision was an
unreasonable determination of the facts based on the evidence adduced in the trial. 28 U .S.c.

§ 2254(d)(1) & (2); see also Williams v. Tqylor, 529 U.S. 362, 412 (2000); Appel I'. Horn, 250 F.3d 203,
210 (3d Cir. 2001). Tbis 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 "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, 562 U.S. 86, 98-99 (2011).
Finally, when reviewing a habeas claim under § 2254(d), a federal court must presume that
the state court's determinations of factual issues are correct. See 28 U.S.c. § 2254(e)(1); Appel, 250
F.3d at 210. 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. See 28 U.S.c. § 2254(e)(1);

Campbell v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000). The Supreme Court has "not defined the
precise relationship between § 2254(d)(2) and § 2254(e)(1)." Burt v. Titlow, 134 S.Ct. 10, 15 (2013).

6

IV.

DISCUSSION
A. Timeliness
Petitioner's § 2254 Petition, filed in 2013, is subject to the one-year limitations period

contained in § 2244(d)(1). See Lindh v.

Mutp~y,

521 U.S. 320,336 (1997). Petitioner does not allege,

and the Court cannot discern, any facts triggering the application of§ 2244(d) (1)(B), (C), or (D).
Given these circumstances, the one-year period of limitations began to run when Petitioner's
conviction became flnal under § 2244(d)(1)(A).
Pursuant to § 2244(d)(1)(A), if a state prisoner does not appeal a state court judgment, the
judgment of conviction becomes final, and the one-year period begins to run, upon expiration of the
time period allowed for seeking direct review. See Kapral 1). United StateJ, 166 F.3d 565, 575, 578 (3d
Cir. 1999); JoneJ v. Aiorton, 195 F.3d 153, 158 (3d Cir. 1999).

the Delaware Superior Court

sentenced Petitioner for his fIrst degree robbery conviction on December 4,2003, and he did not
appeal. Therefore, his judgment of conviction became final on January 5, 2004. Applying the one­
year limitations period to that date, Petitioner had until January 5, 2005 to timely file his Petition. See

Wtlson

t'.

Beard, 426 F.3d 653 (3d Cir. 2005) (holding that former Federal Rule of Civil Procedure 6(a)

and (e) applies to federal habeas petitions); Fed. R. Civ. P. 6 (a) (1) (the day of the event that triggers
the period is excluded when computing time periods).
As previously determined by Judge Farnan, Petitioner's Motion to Withdraw Guilty Plea and
his Rule 61 Motions did not have any statutory tolling effect because they were filed after AEDPA's
limitations period expired on January 5, 2004. IIowever, Judge Farnan held that AEDPA's
limitations period was equitably tolled from December 2,2004, the date on which the United States
District Court for the District Court of New Jersey began its inquiry into Petitioner's competency to
stand trial for a proceeding pending before it, until such time that Petitioner's competency would be
7

restored. As of December 2, 2004, there were 33 days remaining in the limitations period. Thus,
pursuant to Judge Farnan's earlier decision, upon being restored to competency Petitioner had 33
days to file a habeas petition.
The record in this case demonstrates that Petitioner was restored to competency as of July 7,
2011, the date on which Petitioner's counsel wrote to the Delaware Superior Court that Petitioner's
Rule 61 motion from 2008 was "now ripe for decision."3 Adding 33 days to July 7, 2011 leaves
August 9, 2011 as the last day on which Petitioner could have timely filed the instant Petition.
Petitioner, however, did not file the instant Petition until January 15, 2013, more than 17 months
too late.
Even if the Court were to view the limitations period as remaining tolled until after the
Delaware Supreme Court issued its May 3, 2012 Order afftrming the Superior Court's denial of his
2008 Rule 61 motion, adding 33 days to that date demonstrates that Petitioner needed to file his
Petition by June 5, 2012 to be timely, which he did not. Petitioner does not assert, and the Court
cannot discern, that any extraordinary circumstance prevented him from filing the instant Petition by
June 5, 2012. To the extent Petitioner's untimely filing of the Petition was due to a lack oflegal
knowledge or the result of a miscalculation regarding the one-year filing period, such factors do not
warrant equitably tolling the limitations period. See Tqylorl}. Carroll, 2004 WL 1151552, at *5-6 (D.
Del. May 14,2004). Thus, the Court concludes that the equitable tolling doctrine does not apply in
this case.

3In a psychiatric report dated April 13, 2011, Dr. Robert G. Thompson opined that Petitioner was
competent to assist in his Delaware postconviction proceedings. The Superior Court sent a copy of
this report to Petitioner's post-conviction counsel and to the State, along with a letter asking the
parties to advise whether further psychiatric evaluation was necessary or whether the Superior Court
could proceed with the 2008 Rule 61 motion. Petitioner's counsel responded with a letter stating
that the matter was "now ripe for decision."
8

In short, Petitioner's filing on January 15, 2013 is more than seven months too late.
Accordingly, the Court ",'ill dismiss the Petition as untimely.4

B. Merits
Even if the Petition were timely, the Court wouId deny as meridess Petitioner's sole claim:
that the attorney who represented him during his 2003 criminal proceeding provided ineffective
assistance by failing to have a formal psychiatric evaluation performed to determine if Petitioner was
competent to enter a guilty plea. The Court's evaluation of this claim requires consideration of the
clearly-established federal law governing the issue of a defendant's competency as well as the clearlyestablished federal law governing the issue of a counsel's effective assistance.
To begin, the Due Process Clause prohibits the prosecution of a criminal defendant who is
not competent to stand triaL See Drape v. MiJSol/n, 420 C.S. 12, 171 (1975). A defendant is
incompetent if he lacks "sufficient present ability to consuIt with his lawyer with a reasonable degree
of rational understanding" or "a rational as well as factual understanding of the proceedings against

him." Dusky v. United States, 362 C.S. 402 (1960)). "Competence to stand trial is rudimentary, for
upon it depends the main part of those rights deemed essential to a fair trial, including the right of
effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses,
and the right to testify on one's own behalf or to remain silent without penalty for doing so."

Coopertl. Oklahoma, 517 U.S. 348, 354 (1996). I:-Iowever, the Supreme Court has not "prescribe[d] a
general standard with respect to the nature or quantum of evidence necessary to require resort to an

4Having determined that the Petition is time-barred, the Court need not address the State's other
reason for dismissaL Nevertheless, the Court alternatively concludes that the Delaware Supreme
Court reasonably applied Strickland in holding that Petitioner's defense counsel did not provide
ineffective assistance by failing to have Petitioner evaluated to determine his competency to enter a
guilty plea.
9

adequate procedure" for determining competency. Drope, 420 U.S. at 172. Instead, it has explained
that:
evidence of a defendant's irrational behavior, his demeanor at trial, and
any prior medical opinion on competence to stand trial are all relevant
in determining whether further inquiry is required, but that even one
of these factors standing alone may, in some circumstances, be
sufficient. There are, of course, no fixed or immutable signs which
invariably indicate the need for further inquiry to detennine fitness to
proceed; the question is often a difficult one in which a wide range of
manifestations and subtle nuances are implicated. That they are
difficult to evaluate is suggested by the varying opinions trained
psychiatrists can entertain on the same facts.

Drope, 420 U.S. at 180.
In tum, the Supreme Court precedent governing ineffective assistance of counsel claims is
the two-pronged standard enunciated by Strickland v. Washington, 466 U

668 (1984), and its

progeny. See Wz@nJ lJ. Smith, 539 L.S. 510 (2003). Under the first Strideland prong, a petitioner must
demonstrate that "counsel's representation fell below an objective standard of reasonableness," with
reasonableness being judged under professional norms prevailing at the time counsel rendered
assistance. Strickland, 466 L.S. at 688. Under the second Strickland prong, a petitioner must
demonstrate "there is a reasonable probability that, but for counsel's error the result would have
been different." !d. at 687-96. A reasonable probability is a "probability sufficient to undermine
confidence in the outcome." Id. at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must make
concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See ij7ellJ v.

PctJock, 941 F.2d 253,259-260 (3d Cir. 1991). Although not insurmountable, the Strickland standard
is highly demanding and leads to a "strong presumption that the representation was professionally
reasonable." Strickland,466 U.S. at 689.

10

In this case, although the Delaware Supreme Court did not review Petitioner's instant
contention within the framework established by Strickland, the Court concludes that its decision to
affIrm the Superior Court's denial of the instant contention as raised Petitioner's third Rule 61
motion does not warrant habeas relief. Notably, after reviewing the evidence in the case along with
the April 13, 2011 Forensic Mental Health Examination Report issued by Dr. Robert G. Thompson
of the Delaware Psychiatric Center, the Delaware Supreme Court specifIcally found that Petitioner
was competent when he entered his guilty plea in 2003. The Delaware Supreme Court's
determination of competency is a factual fmding which the Court must accept as correct unless
rebutted by clear and convincing evidence. See Nara v. Frank, 488 F.3d 187,201 (3d Cir. 2007);
ThompJon

ii.

Keohane, 516 U.S. 99, 111 (1995). Petitioner contends that the Court should disregard

Dr. Thompson's 2011 conclusion that Petitioner was competent during his 2003 plea proceeding
and, instead, rely on the "Federal Bureau of Prison's mental health evaluations that were conducted
[in January 2005 and July 2006] after [he] was transferred to their custody for prosecution on
offenses [in the State of New Jersey] similar to those that were pleaded to in the State of Delaware,"
and rely on the Forensic Mental Health Examination Report issued by Dr. Charlotte Selig of the
Delaware Psychiatric Center in April 2009, because a "more accurate look into [his] mental
competency would have come from the early evaluations [performed in January 2005 and July 2006]
rather than the [evaluation performed in 2011 ]." (D.l. 4 at 8- 9)
Having carefully re,,'":iewed the state court record, the Court concludes that Petitioner has
failed to overcome the presumption of correctness the Court must afford to the Delaware Supreme
Court's fInding of competency. Notably, Dr. Thompson considered the two competency
evaluations that the Federal Bureau of Prisons performed in 2005 and 2006 when fInding that there
was "no compelling evidence to suggest that [petitioner] was incompetent when he entered guilty
11

plea in 2003." (D.1. 15, Ans. to Appellant's Op. Br. in McCrcry v. State, No. 677,2011, Exh. C at 8)
Specifically, Dr. Thompson explained,
[r]ecords indicate that, in 2005 and 2006, [petitioner] underwent
competency evaluations while facing charges in Federal COutt.
Clinicians opined that he was mentally ill at the time. His attorney
during those proceedings indicated that the Coutt considered him
incompetent to stand trial and un-restorable. However, it is not clear
whether those findings have relevance to events that happened in
2003, which occutred two to three years earlier. To my knowledge, no
medical records from the year 2003 exist, so it is not possible to know
whether active mental illness might have affected [petitioner's]
competency at the time.
!d. at 7.

Moreover, the judges who authored the 2011 Superior Court decision denying Petitioner's
third Rule 61 motion (and, therefore, also denied Petitioner's assertion that he had been
incompetent when he pled guilty in 2003) were the same judges who presided over Petitioner's guilty
plea colloquy (Judge Peggy L Ableman) and the judge who presided over Petitioner's sentencing
(Judge Fred S. Silverman). (D.1. 15, Ans. to Appellant's Op. Br. in McCrcry v. State, No. 677,2011,
Exh. A. at 8; D.1. 19 at 23, 28) The two judges explained, in relevant part,
[w]hen [petitioner] pleaded guilty in 2003, the court conducted a
colloquy including direct questioning. The court concluded the plea
was knowing, voluntary, and intelligent.
In his pre-sentence interview, [petitioner] was lucid and responsive.
He blamed his crimes on drugs. He made no mention of mental health
treatment, much less a prior admission to a mental health facility.
[petitioner] gave no one - the police, his law-yer, the pre-sentence
officer, the judge who took his plea, nor the judge who sentenced him
reason to suspect that he had mental health issues, much less that he
was incompetent at the time of the offenses or when he pleaded guilty.
In fact, at the sentencing hearing, there was further colloquy. Because
the 1985 robbery was a sentencing aggravator, the coutt offered to let
[petitioner] withdraw his guilty plea. After the further colloquy, the
court, again, found the plea knowing, voluntary, and intentional. Thus,
it can be said [petitioner's] guilty pleas were accepted by two judges,
12

on two occasions. (Because of this unique procedural wrinkle, the
judge who first accepted the plea the judge who reconsidered the plea
have both reviewed the record and agree on the outcome here).

McCrqy, 2011 WL 7144243, at *1. These two Superior Court judges "witnessed" first hand
Petitioner's demeanor in 2003 and found that he knowingly, intelligently, and willingly entered his
guilty plea.
The Court has also reviewed the transcripts of the plea and sentencing colloquies, and they
reveal that Petitioner understood the charges against him, he was able to consult \-vith his attorney,
and he did not engage in any inappropriate behavior. In turn, Petitioner's defense counsel, who
knew about Petitioner's time as a patient in a mental hospital sometime around 1988, stated that he
did not see any evidence of mental illness, and determined that Petitioner understood the process,
was able to assist in his defense, and asked cogent questions. (D.L 19 at 23) Finally, as noted by
Dr. Thompson, the fact that Petitioner was deemed mentally ill and incompetent to stand trial in
2005 in no way affected or reflected Petitioner's competency to stand trial in 2003. Thus, based on
the foregoing, the Court accepts as correct the Delaware Supreme Court's factual determination
that Petitioner was competent to enter his guilty pleas in 2003.
Having determined that Petitioner was competent to enter his guilty pleas in 2003, Petitioner
cannot demonstrate any reasonable probability that his guilty plea would not have been accepted but
for defense counsel's failure to have his competency evaluated in 2003. Accordingly, the Court will
alternatively deny the Petition as meritless.

V.

PENDING MOTION
During the pendency of this proceeding, Petitioner filed a Motion To Appoint Counsel.

(D.l. 22) The Court has concluded that the Petition must dismissed as time-barred or meritless.
Therefore, the Court will deny this Motion as moot.
13

VI.

CERTIFICATE OF APPEALABILITY
A district court issuing a [mal order denying a § 2254 petition must also decide whether to

issue a certificate of appealability. Jee 3d Cir. L.A.R. 22.2 (2011); 28 U.S.c. § 2253 (c) (2). A federal
court denying a habeas petition on procedural grounds 'without reaching the underlying
constitutional claims is not required to issue a certificate of appealability unless the petitioner
demonstrates that jurists of reason would find it debatable: (1) whether the petition states a valid
claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural
ruling. Jee Jlack v. AlcDaniel, 529 U.S. 473,484 (2000).
The Court has concluded that Petitioner's habeas Petition does not warrant relief because it
is time-barred or, alternatively, meritless. Reasonable jurists would not find this conclusion to be
debatable. Accordingly, the Court declines to issue a certificate of appealability.

VII.

CONCLUSION
For the reasons discussed, Petitioner's Application For A Writ Of Habeas Corpus Pursuant

To 28 U.S.c. § 2254 is DENIED. An appropriate Order will be entered.

14