Holmes v. Metzger et al

Filing 21

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 3/9/2021. (nms)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CORY J. HOLMES,
Petitioner,
v.
ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1

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Civil Action No. 18-385-RGA

MEMORANDUM OPINION
Cory J. Holmes. Pro se Petitioner.
Matthew C. Bloom, Deputy Attorney General of the Delaware Department of Justice,
Wilmington, Delaware. Attorney for Respondents.

March 9, 2021
Wilmington, Delaware

1

Warden Robert May has replaced former Warden G.R. Johnson, an original party to the case.
See Fed. R. Civ. P. 25(d).

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/s/ Richard G. Andrews
ANDREWS, UNITED STATES DISTRICT JUDGE:
Presently pending before the Court is Petitioner Cory J. Holmes’ Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Petition”). (D.I. 3; D.I.6) The State filed an
Answer in opposition, to which Petitioner filed a Reply. (D.I. 12; D.I. 17) For the reasons
discussed, the Court will dismiss the Petition.
I.

BACKGROUND
While driving his mother's car in New Castle, Resean Freeman saw
a man that he recognized on the side of the road. It was snowing,
and Freeman offered the man, [Petitioner], a ride. After [Petitioner]
indicated his preferred destination, Freeman testified that
[Petitioner] “pull[ed] a gun out and sa[id], ‘Get the fuck out the car
you bitch ass.’” Freeman testified that [Petitioner] was wearing a
“black skull cap, a black car jacket, 2 dark blue pants.” After
Freeman exited the vehicle, [Petitioner] drove away with the car.
Later that evening, [Petitioner] called Freeman and informed him of
the location of the car. Approximately one week later, after seeing
[Petitioner’s] picture in a newspaper article, Freeman identified his
assailant as [Petitioner] and notified the police.
Later on that same evening that Freeman encountered [Petitioner],
Madinah Elder and Harry Smith were at home and heard a knock on
the door. Before opening the door, Smith asked, “who is it?”, and a
voice replied, “WPD.” Smith testified that he then opened the door,
and that the visitor pointed a gun at his waist, and exclaimed, “[w]ho
the fuck is staying here?”, and demanded money. First, Elder gave
the man twenty dollars. Elder then gave the man an additional one
hundred dollars. Elder testified that immediately thereafter, the man
“clicked the gun and said, ‘Bitch, stop playing.’” Elder then
retrieved another one hundred dollars and gave it to the man.
When the man's attention was temporarily distracted, Elder ran out
of the house. Subsequently, Smith fled the house too. Shortly
thereafter, the police were notified of the incident. Elder and Smith
testified that the man was wearing a black skull cap, a black Carhartt
jacket, and dark pants.

2

It seems probable that the testimony was “Carhartt jacket,” not “car jacket.”

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Police arrived at the scene. After following footprints in the snow
that began at Elder[‘s] home, Officer Ryan Dorsey observed a man
scaling the fence of a nearby home. After the man ignored Dorsey's
demand to stop and attempted to scale another fence and kick in a
door, Dorsey tasered the man, who turned out to be [Petitioner].
When police arrested [Petitioner], he was wearing a white T-shirt.
The police recovered a black jacket nearby, but never recovered a
gun. [Petitioner] was charged by indictment with carjacking first
degree, five counts of PFDCF, two counts of robbery first degree,
burglary first degree, attempted robbery first degree, PDWPP, and
resisting arrest.
Holmes v. State, 11 A.3d 227 (Table), 2010 WL 5043910, at *1 (Del. 2010) (footnote added).
On November 2, 2009, a Delaware Superior Court jury found Petitioner guilty of first
degree carjacking, two counts of first degree robbery, attempted first degree robbery, first degree
burglary, five counts of possession of a firearm during the commission of a felony, and
possession of a deadly weapon by a person prohibited. See id. at *3-4. On November 20, 2009,
the Superior Court sentenced Petitioner to forty-two years in prison, suspended after thirty-seven
years for eighteen months of probation. See id. at *4. The Delaware Supreme Court affirmed
Petitioner’s conviction on December 9, 2010. See id. at *4
In October 2011, Petitioner filed a pro se motion for post-conviction relief pursuant to
Delaware Superior Court Criminal Rule 61 and a motion for the appointment of counsel. (D.I.
12 at 10; D.I. 18-18) The Superior Court denied both motions in June 2012. (D.I. 12 at 10)
Petitioner appealed, and the Delaware Supreme Court reversed and remanded the case back to
the Superior Court to appoint counsel for Petitioner in order to pursue his Rule 61 motion. (Id.)
On remand, Petitioner’s appointed counsel filed an amended Rule 61 motion (“2013 Rule
61 motion”). (D.I. 18-13 at 16-67) On April 17, 2015, a Superior Court Commissioner issued a
report recommending the denial of the 2013 Rule 61 motion. (D.I. 13-18 at 41-58) On July 23,
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2015, the Superior Court adopted the Report and Recommendation and denied the 2013 Rule 61
motion. See Holmes v. State, 135 A.3d 79 (Table), 2016 WL 1055050, at *4 (Del. Mar. 14,
2016); (D.I. 13-18 at 59-60) Petitioner appealed (D.I. 13-18), and the Delaware Supreme Court
affirmed the Superior Court’s judgment on March 14, 2016. See Holmes, 2016 WL 1055050, at
*6.
Petitioner filed a second pro se Rule 61 motion on April 7, 2016 (“2016 Rule 61
motion”). (D.I. 13-28 at 79-115) The Superior Court summarily denied the 2016 Rule 61
motion as procedurally barred under Rule 61(d)(2) because it was successive. (D.I. 13-40)
Petitioner appealed, and the Delaware Supreme Court affirmed the Superior Court’s decision.
See Holmes v. State, 2018 WL 637312, at *1 (Del. Jan. 30, 2018).
II.

GOVERNING LEGAL PRINCIPLES
A. Exhaustion and Procedural Default
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the

petitioner has exhausted all means of available relief under state law. See 28 U.S.C. § 2254(b);
O’Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275
(1971). The AEDPA states, in pertinent 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 unless it appears that –
(A) the applicant has exhausted the remedies available in the courts
of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
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The exhaustion requirement is based on principles of comity, requiring a petitioner to
give “state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at
844-45; see Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
exhaustion requirement by demonstrating that the habeas claims were “fairly presented” to the
state’s highest court, either on direct appeal or in a post-conviction proceeding, in a procedural
manner permitting the court to consider the claims on their merits. Bell v. Cone, 543 U.S. 447,
451 n.3 (2005); Castille v. Peoples, 489 U.S. 346, 351 (1989). A federal legal claim is “fairly
presented” to state courts when there is: “(1) reliance on pertinent federal cases employing
constitutional analysis; (2) reliance on state cases employing constitutional analysis in like fact
situations; (3) assertion of the claim in terms so particular as to call to mind a specific right
protected by the Constitution; [or] (4) allegation of a pattern of facts that is well within the
mainstream of constitutional litigation.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.
1999).
A petitioner’s failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. See Lines v. Larkins, 208 F.3d 153, 160
(3d Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically
exhausted, such claims are nonetheless procedurally defaulted. See Lines, 208 F.3d at 160;
Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas
claim to the state’s highest court, but that court “clearly and expressly” refuses to review the
merits of the claim due to an independent and adequate state procedural rule, the claim is

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exhausted but procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S.
255, 260-64 (1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will result if the court does not review the
claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at
750-51. To demonstrate cause for a procedural default, a petitioner must show that “some
objective factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual
prejudice, a petitioner must show “that [the errors at trial] worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner
demonstrates that failure to review the claim will result in a fundamental miscarriage of justice.
See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d
Cir. 2001). A petitioner demonstrates a miscarriage of justice by showing a “constitutional
violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477
U.S. at 496. Actual innocence means factual innocence, not legal insufficiency. See Bousley v.
United States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner
must present new reliable evidence – not presented at trial – that demonstrates “it is more likely
than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
House v. Bell, 547 U.S. 518, 537-38 (2006); see Sweger v. Chesney, 294 F.3d 506, 522-24 (3d
Cir. 2002).
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B. Standard of Review
If a state’s highest court 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).
Pursuant to 28 U.S.C. § 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. Taylor, 529 U.S. 362, 412 (2000); Appel v. Horn, 250
F.3d 203, 210 (3d Cir. 2001). 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 v. Horn, 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.”
Harrington v. Richter, 562 U.S. 86, 98 (2011). As 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.” Id. at 99.
Finally, when reviewing a habeas claim, a federal court must presume that the state
court's determinations of factual issues are correct. See 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. See 28 U.S.C. § 2254(e)(1);
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Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-El 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 “decisions”).
III.

DISCUSSION
Petitioner’s timely filed § 2254 Petition asserts the following five Claims: (1) defense

counsel provided ineffective assistance by failing present phone record evidence that supported
Petitioner’s version of the events and discredited the version provided by the State’s witnesses;
(2) the trial court violated Petitioner’s constitutional right to confront his accuser and his right to
due process by admitting a newspaper article into evidence at trial; (3) the police elicited
statements from Petitioner about the robbery offense in violation of his Sixth Amendment right
to counsel, and the State’s admission of his recorded statement at trial violated Petitioner’s due
process rights; (4) the Superior Court violated Petitioner’s rights under the Fifth, Sixth, and
Fourteenth Amendments by interrupting defense counsel’s closing argument and instructing the
jury that a choice-of-evils-defense was not available; and (5) cumulative error. (D.I. 6-1 at 5556)
A. Claim One: Ineffective Assistance of Counsel With Respect to Phone Records
In his first Claim, Petitioner contends that defense counsel provided ineffective assistance
by failing to utilize certain cell phone records at trial. According to Petitioner, the phone records
would have discredited State witnesses Freeman, Elder, and Smith, because the phone calls
supported his version of the events, namely, that he and the State’s witnesses knew each other
from previous drug deals, and the witnesses “conspired to set him up for revenge for their drug
losses.” (D.I. 13-28 at 95-96)
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The record reveals that Petitioner did not exhaust state remedies for Claim One.
Although Petitioner presented the instant argument in his original pro se Rule 61 motion filed in
2011 (D.I. 18-18), he did not re-assert the Claim in his 2013 Rule 61 motion after the case was
remanded to the Superior Court (D.I. 18-13 at 16-67). He also failed to present Claim One to the
Delaware Supreme Court when he appealed the Superior Court’s denial of his 2013 Rule 61
motion. While Petitioner did present Claim One in his pro se 2016 Rule 61 motion and in his
subsequent Rule 61 appeal concerning the pro se 2016 Rule 61 motion, that presentation did not
act to exhaust state remedies because the Delaware state courts denied the pro se 2016 Rule 61
motion as procedurally barred under Rule 61(d)(2).
At this juncture, any attempt by Petitioner to raise Claim One in a new Rule 61 motion
would be barred as untimely under Delaware Superior Court Criminal Rule 61(i)(1). See
DeAngelo v. Johnson, 2014 WL 4079357, at *12 (D. Del. Aug. 15, 2014). Although Rule
61(i)(1) provides for an exception to the one-year time limitation if the untimely Rule 61 motion
“asserts a retroactively applicable right that is newly recognized after the judgment of conviction
is final,” no such right is implicated in the instant Claim. Similarly, the exceptions to Rule
61(i)(1)’s time-bar contained in Rule 61(i)(5) and (d)(2) do not apply to Petitioner’s case,
because he does not allege actual innocence, lack of jurisdiction, or that a new rule of
constitutional law applies to this Claim.
Since Petitioner is precluded from exhausting state remedies for Claim One at this point,
the Court must treat the Claim as technically exhausted but procedurally defaulted.
Consequently, the Court Court cannot review the merits of Claim One absent a showing of cause

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for the default, and prejudice resulting therefrom, or upon a showing that a miscarriage of justice
will occur if the Claim is not reviewed.
Petitioner asserts that his default should be excused pursuant to Martinez v. Ryan, 566
U.S. 1 (2012), because his appointed post-conviction counsel failed to include Claim One in his
2013 Rule 61 motion that was filed after remand. (D.I. 17 at 1-6) In Martinez, the Supreme
Court held for the first time that inadequate assistance of counsel during an initial-review state
collateral proceeding may establish cause for a petitioner=s procedural default of a claim of
ineffective assistance of trial counsel. Id. at 16-17. In order to obtain relief under Martinez, a
petitioner must demonstrate that the state post-conviction attorney in his first state collateral
proceeding was ineffective under the standards established in Strickland v. Washington, 466 U.S.
668 (1984), that the underlying ineffective assistance of trial counsel claim is substantial, and
that petitioner was prejudiced. Id. at 9-10, 16-17. A “substantial@ ineffective assistance of trial
counsel claim is one that has “some merit@ which, given the Martinez Court’s citation to MillerEl v. Cockrell, 537 U.S. 322 (2003), appears to be governed by the standards applicable to
certificates of appealability. Id. at 14-15.
The Third Circuit recently explained the application of Martinez in habeas cases:
Martinez recognizes a narrow exception to the doctrine of
procedural default: “Inadequate assistance of counsel at initialreview collateral proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance at trial.” This
exception is available to a petitioner who can show that: 1) his
procedurally defaulted ineffective assistance of trial counsel claim
has “some merit,” and that 2) his state-post conviction counsel was
“ineffective under the standards of Strickland v. Washington.”
Workman v. Sup’t Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019). “To demonstrate that his claim
has some merit, a petitioner must ‘show that reasonable jurists could debate whether (or, for that
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matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.’” Id. at 938 (quoting
Miller-El, 537 U.S. at 336). To demonstrate that post-conviction counsel’s ineffectiveness
caused the procedural default, a petitioner must show that post-conviction counsel’s performance
was deficient under the first prong of the Strickland standard, i.e., “that his state post-conviction
counsel’s performance fell below an objective standard of reasonableness.” Workman, 915 F.3d
at 941.
Here, Petitioner has failed to demonstrate that the underlying ineffective assistance of
defense counsel argument in Claim One has “some merit” under the standard contemplated by
Martinez and Workman. Petitioner asserts that the cell-phone records would have corroborated
various portions of his story and also would have impeached the State’s witnesses, leading the
jury to weigh their testimonies differently. But as defense counsel explained in an affidavit
responding to Petitioner’s original pro se Rule 61 Motion filed in 2011: (i) the records reflected
that Freeman called 911, which substantiated the State’s allegation that he was carjacked; (ii) the
records substantiated Freeman, Elder, and Smith’s familiarity with Petitioner and bolstered their
identifications of him by showing that they had prior contact; and (iii) even if the records could
support Petitioner’s claim that Freeman, Elder, and Smith were drug dealers and impeach them
on this point, establishing that fact would also tend to prove Petitioner’s motive, plan, and
criminal intent: drug dealers are targets for robbery because they are known to carry a lot of cash
and generally unwilling to call the police. (D.I. 13-10 at 62-73) What Petitioner fails to
acknowledge, but which defense counsel recognized in his Rule 61 affidavit, is that the phone
records contained evidence that would have corroborated the State’s witnesses testimony and
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could have been more damaging than helpful to Petitioner. (See D.I. 13-10 at 70-71) In other
words, Petitioner’s claims about how the jury would have received and weighed the evidence are
unsupported and entirely speculative.
Based on the foregoing, Petitioner has failed to establish that the underlying ineffective
assistance of counsel claim has some merit, or that post-conviction counsel’s failure to present
that claim in his 2013 Rule 61 motion fell below an objective standard of reasonableness. Thus,
Petitioner’s attempt to establish cause under Martinez is unavailing.
In the absence of cause, the Court will not address the issue of prejudice. Additionally,
Petitioner has not satisfied the miscarriage of justice exception to the procedural default doctrine
because he has not provided new reliable evidence of his actual innocence. Accordingly, the
Court will deny Claim One as procedurally barred from federal habeas review.
B. Claim Two: Admission of Newspaper Article Violated State Evidentiary Law
and Petitioner’s Federal Confrontation and Due Process Rights
During Petitioner’s criminal jury trial, Freeman testified that he contacted the police after
he recognized his assailant in a newspaper story. See Holmes, 2010 WL 5043910, at *2. The
article summarized the home invasion that Petitioner committed in Wilmington and his capture
by police who followed his footprints in the snow. Id. at *2-3. The article also contained
Petitioner’s photograph. Id. Freeman, the victim of Petitioner’s carjacking earlier on January
27, 2009, had reported the crime to police immediately, but was unable to identify his assailant
by name. After Freeman saw the Delaware Online article, he contacted Detective Seth Polk and
told him that Petitioner had committed the carjacking against him. When the State initially
offered the Delaware Online article for identification, it was to be a redacted version that

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contained the date, headline, and Petitioner’s photograph and name. Id. During a sidebar
conference, the State made the following statement:
Right now I'm going to ask [that the article] be marked for
identification and show it to him; ask him if that's the article, if that's
what he read, if that's the article he saw later on. When you hear all
the evidence, what's in here's almost-it's one hundred percent
consistent with what the witness testified, and if it needs to be
redacted then I'll redact it. My primary concern is the picture.
Holmes, 2010 WL 5043910, at *2. Later in the trial, Petitioner testified that he had read the
newspaper article. Thereafter, the State sought to introduce the entire article into evidence,
arguing as follows:
It's not being offered for truthfulness. First of all, it's in [Petitioner’s]
statement. He makes reference to it. I cross examined him about it.
He admitted that he had information about it, and that he actually
read it.... We're not offering it for the truth or veracity, we're offering
it to show a motive, intent, his state-of-mind with regard to his
credibility and the issue of recent fabrication.... Now taking into
consideration the nature of [Petitioner’s] statement where he gives
at least three different versions in there, and all the inconsistencies
and admitted lies, I think there is a strong argument that he used this
article, which he admits that he saw, in an attempt to fabricate his
story, either to the Detective or in court when he testified. Again,
it's not being offered for its truth or veracity.
Id. at *3. Defendant objected to the article’s admission. The.Superior Court overruled
the objection, explaining:
So I've read the article, and most of what's said or I shouldn't say
most of what's said-everything that's said in here has been the
subject of testimony. There's been a witness who has testified to it
and the jury may or may not believe that witness, and this, and the
news story makes clear it's reporting a statement of a witness.
Id. The Court did not instruct the jury on the limited purpose for which the article was admitted.
Id..
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In Claim Two of his form Petition, Petitioner asserts:
Trial court violated [Petitioner’s] Sixth Amendment right to
confront his accuser when it allowed admission of newspaper article
into trial (see memorandum). Trial court’s allowance of newspaper
article into trial violated [Petitioner’s] due process Fourteenth
Amendment rights.
(D.I. 6 at 7) In addition, Claim Two in Petitioner’s Memorandum in Support challenges the
admission of the newspaper article on the grounds that it constituted hearsay under Delaware
evidentiary rules and was highly prejudicial. (D.I. 6-1 at 14-18) Petitioner’s presentation of
Claim Two in his Memorandum in Support consists of the relevant pages from his opening brief
on direct appeal. (Id.)
To the extent Claim Two challenges the admission of the newspaper article as hearsay
and for being prejudicial, Petitioner presented this argument to the Delaware Supreme Court on
direct appeal. (D.I. 13-2 at 13-17) The Delaware Supreme Court analyzed the issue under
Delaware Rule of Evidence 801(c), which defines “hearsay” as a “statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Holmes, 2010 WL 5043910, at *4. The Delaware Supreme Court
concluded that the State sought to admit the article for a reason other than to prove the truth of its
content, namely, to argue that Petitioner used the article to fabricate his story. See id. In other
words, as a matter of Delaware evidentiary law, the newspaper article did not constitute hearsay.
However, the Delaware Supreme Court also concluded that the trial court erred by not giving a
jury instruction on the limited purpose for the article’s admission, but that the error was harmless

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beyond a reasonable doubt “[b]ecause the other, admissible evidence against [Petitioner] was
sufficient to sustain his convictions.” Id. at *5.
On habeas review, the Court must accept the Delaware Supreme Court’s interpretation of
Delaware’s hearsay exceptions and rules. See Scott v. Johnson, 2014 WL 4955704, at *6 (D.
Del. Sept. 9, 2014). Consequently, to the extent Claim Two challenges the Delaware Supreme
Court’s conclusion that the newspaper article did not constitute hearsay, Petitioner has failed to
present an issue cognizable on federal habeas review.
Petitioner also asserts that the admission of the newspaper article violated his due process
and confrontation rights under the Constitution. The Court perceives two ways of viewing this
argument, both of which lead to same conclusion of procedural default. First, to the extent
Petitioner is asserting “freestanding” arguments that the admission of the newspaper article
violated his due process and confrontation rights under the Constitution, the record reveals that
Petitioner did not exhaust state remedies for these allegations because he did not fairly present 3
the instant federal constitutional contentions in the argument he raised to the Delaware Supreme
Court on direct appeal. Second, given the Court’s obligation to liberally construe pro se filings,
it would be reasonable for the Court to construe Petitioner’s arguments concerning his
“If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him
the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in
federal court, but in state court.” Duncan v. Henry, 513 U.S. 364, 366 (1995). Although the last
sentence of Petitioner’s appellate argument stated that the article’s admission “deprived” him of
“fair trial,” (D.I. 13-2 at 16-17), Petitioner did not mention his confrontation rights, or cite any
federal constitutional provision or standard. Consequently, the cursory “fair trial” reference in
Petitioner’s appellate brief was insufficient to put the Delaware Supreme Court on notice that he
was asserting a federal constitutional claim. See Gray v. Netherland, 518 U.S. 152, 16 (1996);
McLaughlin v. Carroll, 270 F. Supp. 2d 490, 514 (D. Del. 2003) (“A petitioner’s use of broad
concepts such as ‘due process’ and ‘fair trial’ does not provide sufficient notice to a state court
that a petitioner is asserting a federal constitutional claim.”)

3

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confrontation and due process rights as a challenge to the Delaware Supreme Court’s additional
holding that the trial court’s failure to provide a limiting instruction only amounted to harmless
error, rather than as independent free standing challenges to the admission of the newspaper
article. Stated another way, Petitioner purportedly is alleging that the Delaware Supreme Court
erred in ruling that the lack of a limiting instruction was harmless because the admission of the
newspaper article violated his due process and confrontation rights. Petitioner, however, did not
exhaust state remedies for this constitutional challenge to the Delaware Supreme Court’s
harmless error holding, because he did not present the challenge to the Delaware Supreme Court
in his Rule 61 appeals. 4
Since Petitioner would be time-barred from raising either version of the federal
constitutional arguments in Claim Two in a new Rule 61 motion, the Court treats both versions
as technically exhausted but procedurally defaulted. Consequently, the Court cannot review the
merits of the due process/confrontation arguments in Claim Two absent a showing of cause for
the default, and prejudice resulting therefrom, or upon a showing that a miscarriage of justice
will occur if the Claim is not reviewed.

The Court acknowledges that Petitioner did challenge the prejudice caused by the lack of a
limiting instruction within an ineffective assistance of counsel claim that he raised in his original
pro se Rule 61 motion filed in 2011, stating:
Abuse of Trial Judge Discretion
Misleading jury instructions/ineffective assistance of counsel failed
to request curative/limited instruction/appointed counsel failed to
argue on appeal.
(D.I. 18-18 at 9) However, unlike the response he filed with respect to the default of Claim One,
Petitioner does not assert that his post-conviction counsel’s failure to raise this variation of Claim
Two in his 2013 Rule 61 motion should act to excuse his default under Martinez. (See D.I. 17)
As such, the Court engages in the “typical” cause-and-prejudice analysis applicable to default
situations.
15

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Petitioner does not provide an explanation for not presenting his due
process/confrontation arguments concerning the newspaper article to the Delaware Supreme
Court on post-conviction appeal. The failure to demonstrate cause obviates the Court’s
requirement to address prejudice. Nevertheless, Petitioner cannot demonstrate actual prejudice
stemming from the admission of the newspaper article, because he cannot show that the
admission “worked to his actual and substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.” Murray, 477 U.S. at 494. To begin, the admission of the article
did not violate his confrontation rights. The Confrontation Clause of the Sixth Amendment bars
“admission of testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination.”
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The threshold question is whether the
statement is testimonial. See Miller v. Metzger, 2017 WL 3727316, at *4 (D. Del. Aug. 29,
2017). A newspaper article is not a testimonial statement, and its admission does not violate the
Confrontation Clause, when it is offered for some purpose other than to prove the truth of its
contents. See Gonzalez-Lauzan v. United States, 2008 WL 343492, at *14–15 (S.D. Fla. Feb. 5,
2008) (holding that admission of a newspaper article for purposes other than to prove the truth of
the matters asserted therein did not violate confrontation rights). In Petitioner’s case, the State
offered the article to demonstrate recent fabrication, not prove the truth of the matters asserted
therein, and thus its admission did not implicate the Confrontation Clause. In addition, the
witnesses who supplied the facts recounted within the article testified and were subject to crossexamination. (D.I. 18-4)

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Petitioner also cannot show that the admission of the newspaper article violated his due
process rights. First, the Supreme Court has not held that the admission of the type of evidence
at issue here – a non-testimonial newspaper article – violates due process. Second, the state
submitted the text of the article in its rebuttal case, not its case-in-chief, and offered it to
challenge the credibility of Petitioner’s testimony rather than to prove the elements of any
offense charged. (D.I 18-3 at 18) The article constituted cumulative evidence because it “did
not include any information of which the jury was not otherwise fully informed through
admissible evidence introduced at the trial.” Holmes, 2010 WL 5043910, at *5. And finally, as
found by the Delaware Supreme Court and supported by the overall record in this case, the other
admissible evidence against Petitioner was sufficient to sustain his convictions. See id.
Petitioner also has not satisfied the miscarriage of justice exception to the procedural
default doctrine because he has not provided new reliable evidence of his actual innocence.
Accordingly, the Court will deny Claim Two as procedurally barred from federal habeas review.
C. Claim Three: Petitioner’s February 19, 2009 Police Statement
[Petitioner] was charged with offenses related to the robbery. On
February 4, 2009, [Petitioner] was appointed counsel and a
preliminary hearing was held.
In the meantime, Freeman identified [Petitioner] as the person who
took his car. The police interrogated [Petitioner] regarding this
incident on February 19, 2009. After reading the Miranda rights,
the officer asked [Petitioner] if he understood them. [Petitioner]
replied, “Yes.” [Petitioner] then asked if he had charges, and the
officer clarified that he was informing [Petitioner] of his rights
before he talked to him. The officer asked [Petitioner] again if he
was willing to talk about what happened. [Petitioner] responded: “I
don't know what's goin [sic] on yet.” The officer explained again
that he had questions about a carjacking. Ultimately, [Petitioner]
agreed to speak with the officer and signed a written waiver of his
Miranda rights.
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[Petitioner] discussed the carjacking with the officer and also
volunteered statements regarding the robbery. He told the officer
that he did not rob Elder and was at her home to purchase drugs. He
told the officer that he knew Freeman and had contacted him to
purchase drugs as well. According to [Petitioner], Freeman picked
him up so that the two men could go retrieve the drugs. [Petitioner]
then told the officer that he became uncomfortable and asked
Freeman to drive him home. At this point, the following exchange
occurred:
[Petitioner]: I think I'm gonna need lawyer or
something man because I don't know what ...
Officer: Listen, here's the deal. You have a right to
get a lawyer. I told you that in the beginning. You
have the right . . .
[Petitioner]: I don't know how people can just say
I done something.
Officer: Well that's why I'm here to talk to you.
[Petitioner]: But, I'm already charged with that.
Officer: You're already charged with it, but, this has
a long process to go through, alright. There is a long
process. I still have to talk to the Attorney General’s
Office about all this and tell them my case. Then
they're going to look at it and decide whether to keep
going with the charges or not.
[Petitioner]: Please help me man. Please help me.
Although the officer repeated [Petitioner’s] right to counsel,
[Petitioner] did not invoke that right. As [Petitioner] continued
talking with the officer, he admitted that he met with Freeman to
purchase drugs but ultimately stole the drugs and left in Freeman's
car. He also said that he called Freeman later to let him know where
to pick up his car. After the interview, [Petitioner] was charged with
offenses related to the carjacking. Those charges were then
consolidated with the robbery charges.

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At trial, as part of the State's case, Freeman testified that he saw
[Petitioner] walking on the side of the road and offered to give him
a ride. Freeman then testified that, once in the car, [Petitioner]
pulled out a gun and said, “Get ... out of the car you bitch ass.”
Freeman complied and [Petitioner] drove off. The State also called
Elder and Smith. Both testified that [Petitioner] knocked on their
door and entered with a gun. Elder testified that she was able to flee
the home while [Petitioner] was distracted.
In his defense, [Petitioner] testified that he intended to meet
Freeman to purchase drugs but when they met, he took the drugs
from Freeman. He then said that Freeman was coming for him, so
he took Freeman’s car without his permission. He also testified that
he went to Elder’s home to purchase drugs. He stated that Elder had
shorted him on the amount, so he took the drugs without paying.
Throughout his testimony, [Petitioner] denied having a weapon
during either incident.
Holmes, 2016 WL 1055050, at *1-2. The State cross-examined Petitioner about his February 19,
2009 statement. (D.I. 18-13 at 45) After the defense rested, the State introduced the February
19, 2009 statement through the officer’s testimony. (Id. at 46) A forty-five minute audio portion
of the statement was played and then entered into evidence for the jury to review during
deliberations. (Id.) Since Petitioner had mentioned in his testimony that he had offered to help
police in exchange for help in his case, the State was permitted to play a five minute audio of
another portion of the statement on that topic. (Id.) This five minute audio segment was also
entered into evidence for the jury to review during deliberations. (Id.)
On post-conviction appeal, Petitioner challenged the admission of his February 19, 2009,
statement, arguing,
[T]he admission of his February 19, 2009 statement to the police
violated his rights under both the Fifth and Sixth Amendments of
the U.S. Constitution and the corresponding provisions of the
Delaware Constitution. “Under the Delaware Constitution, ... ‘if a
suspect attempts to invoke [his or her] Miranda rights during an
interrogation, but does not do so unequivocally, the police must
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clarify the suspect's intention before continuing with the
interrogation.’” “[A] finding of ambiguity rests on the totality of the
circumstances....” The waiver must be “the product of a free and
deliberate choice rather than intimidation, coercion, or deception ...
[and] must have been made with a full awareness of both the nature
of the right being abandoned and the consequences of the decision
to abandon it.”
Holmes v. State, 2016 WL 1055050, at *4 (internal citations omitted). On post-conviction
appeal, the Delaware Supreme Court summarized the issue presented and applicable law as
follows:
[Petitioner] claims that the admission of his February 19, 2009
statement to the police violated his rights under both the Fifth and
Sixth Amendments of the U.S. Constitution and the corresponding
provisions of the Delaware Constitution. “Under the Delaware
Constitution, ... ‘if a suspect attempts to invoke [his or her] Miranda
rights during an interrogation, but does not do so unequivocally, the
police must clarify the suspect's intention before continuing with the
interrogation.’” [Garvey v. State, 873 A.2d 291, 296 (Del. 2005)]
“[A] finding of ambiguity rests on the totality of the
circumstances....” [Id. at 297] The waiver must be “the product of a
free and deliberate choice rather than intimidation, coercion, or
deception ... [and] must have been made with a full awareness of
both the nature of the right being abandoned and the consequences
of the decision to abandon it.” [Hubbard v. State, 16 A.3d 912, 913
(Del. 2011)]
Id. The Delaware Supreme Court rejected Petitioner’s argument that the police violated his
right to counsel under the Fifth and Sixth Amendments, opining:
[Petitioner] was read his Miranda rights on the audio recording of
the interrogation. The officer then asks, “Understand all that? That's
a yes?” to which [Petitioner] replies, “Yes.” [Petitioner] then tells
the officer that he “do[esn]'t know what's goin [sic] on yet,” and the
officer tells him the questions are about a carjacking. After
[Petitioner] claims his innocence, the officer again asks, “Are you
willing to talk to me then?” [Petitioner] replied affirmatively.
[Petitioner] points to no evidence of coercion, intimidation, or
deception by the police in obtaining this explicit waiver.
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Further, the police attempted to clarify [Petitioner’s] intentions after
he said, “I think I'm gonna need a lawyer or something man because
I don't know what ...” The officer stopped questioning [Petitioner]
and stated: “Listen, here's the deal. You have a right to get a lawyer.
I told you in the beginning. You have the right....” [Petitioner] then
interrupted the officer and said, “I don't know how people can just
say I done something.” Here, [Petitioner] did not unequivocally
invoke his right to an attorney, but the officer still sought
clarification by reminding [Petitioner] of his right to counsel.
[Petitioner] cut the officer's reminder short and continued to talk.
The totality of the circumstances clearly show that [Petitioner] knew
of, and chose not to invoke, his Miranda rights.
[Petitioner] also contends that his Sixth Amendment right to counsel
was violated when he was questioned by the officer because he had
already been appointed counsel at his preliminary hearing regarding
the charges relating to the robbery. “[A]n accused who is
admonished with the [ Miranda ] warnings ... has been sufficiently
apprised of the nature of his Sixth Amendment rights, and of the
consequences of abandoning those rights, so that his waiver on this
basis will be considered a knowing and intelligent one.” First, the
officer approached [Petitioner] regarding the carjacking, a crime
with which [Petitioner] had not been charged. After waiving his
Miranda rights, [Petitioner] volunteered information related to the
robbery, which acted as a waiver of his Sixth Amendment right to
counsel regarding the robbery charges.
Id. at *4-5.
In Claim Three, Petitioner raises three complaints about his February 19, 2009 statement
to the police. First, he contends that the police elicited his statement about the robbery offense in
violation of his right to counsel under the Sixth Amendment. Although Petitioner explicitly
mentions his right to counsel under the Sixth Amendment, when viewed in conjunction with his
Rule 61 filings, it appears that he is also alleging a violation of his right to counsel under the
Fifth Amendment. Next, he contends that the State failed to comply with the Delaware Rules of
Evidence in how it admitted and used the February 19, 2009 statement at trial. Third, Petitioner
asserts that defense counsel provided ineffective assistance by failing to file a motion to suppress
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the February 19, 2009 statement and, even if the statement was admissible for the limited
purpose of impeaching Petitioner’s trial testimony, for not requesting a limiting instruction.
Petitioner presented Claim Three to the Superior Court in his 2013 Rule 61 motion and then to
the Delaware Supreme Court in his post-conviction appeal from the denial of the 2013 Rule 61
motion. Therefore, Petitioner will not be entitled to habeas relief unless the Delaware state
Supreme Court’s decision was either contrary to, or an unreasonable application of clearly
established Federal law.
1.

Free-Standing Right-To-Counsel Argument

The clearly established federal law governing a person’s Fifth Amendment right to
counsel during a custodial interrogation is the standard articulated in Miranda v. Arizona, 384
U.S. 436 (1966) and its progeny. In Miranda, the Supreme Court held that statements made by a
defendant during a custodial interrogation must be suppressed unless he was informed of and
waived his right to counsel or his right to remain silent. See id. at 477-79; see Colorado v.
Connelly, 479 U.S. 157, 168 (1986). The defendant must invoke his right to counsel clearly and
unambiguously, 5 and the invocation must be made when he is approached for a custodial
interrogation, not anticipatorily in some other context. See Davis v. United States, 512 U.S. 452,
461-62 (1994). If the defendant “clearly invokes” his right to counsel, the police may not
interrogate him unless counsel is made available or the defendant initiates the contact. See
Edwards v. Arizona, 451 U.S. 477, 485-87 (1981). A defendant may waive his right to counsel
but, in order for a waiver of Miranda rights to be valid: (1) “the relinquishment of the right must
have been voluntary in the sense that it was the product of a free and deliberate choice rather

5

See Miranda, 384 U.S. at 444.

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than intimidation, coercion, or deception”; and (2) “the waiver must have been made with a full
awareness of both the nature of the right being abandoned and the consequences of the decision
to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).
Under the Sixth Amendment, a defendant may not be convicted of a crime unless he has
first been afforded the assistance of counsel. See Johnson v. Zerbst, 304 U.S. 458, 467–68
(1938) (“Since the Sixth Amendment constitutionally entitles one charged with crime to the
assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional
prerequisite to a federal court's authority to deprive an accused of his life or liberty.”) “[T]he
Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages
of the criminal proceedings” and “[i]nterrogation by the State is such a stage.” Montejo v.
Louisiana, 556 U.S. 778 (2009). The Sixth Amendment right, however, “is offense specific ...
[and] cannot be invoked once for all future prosecutions, for it does not attach until a prosecution
is commenced.” McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). Accordingly, “[i]ncriminating
statements pertaining to other crimes, as to which the Sixth Amendment right has not yet
attached, are ... admissible at a trial of those offenses.” Maine v. Moulton, 474 U.S. 159, 176, n.
16 (1985). Typically, when a defendant is read his Miranda rights and agrees to waive them,
that Miranda waiver also suffices to waive the Sixth Amendment right to counsel. See Montejo,
556 U.S. at 786. In Montejo, the United States Supreme Court expressly overruled the
“prophylactic rule” from Michigan v. Jackson, 475 U.S. 625 (1986), which presumed that any
subsequent waiver of a defendant’s right to counsel is invalid. See Montejo, 556 U.S. at 787,
797.

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A police statement, however, can be involuntary even if it is made after the defendant
was advised of, and waived, his Miranda rights. A court determines if a statement was
voluntarily made by evaluating the “totality of the circumstances surrounding the interrogation”
to determine if the defendant made an uncoerced choice and had the requisite level of
comprehension. See Fare v. Michael C., 442 U.S. 707, 725 (1979); Miller v. Fenton, 796 F.2d
598, 604 (3d Cir. 1986). “[C]oercive police activity is a necessary predicate to the finding that a
statement is not ‘voluntary.’” Connelly, 479 U.S. at 167. “[C]oercion can be mental as well as
physical.” Blackburn v. Alabama, 361 U.S. 199, 206 (1960). When determining voluntariness
under the totality of the circumstances standard, courts must consider a number of factors in
addition to “the crucial element of police coercion,” such as “the length of the interrogation, its
location, its continuity, the defendant's maturity, education, physical condition, and mental
health” and the failure of police to advise the defendant of his Miranda rights. Withrow v.
Williams, 507 U.S. 680, 693–94 (1993); see also Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973) (discussing factors). If a defendant was advised of his Miranda rights and voluntarily
waived them, it will be difficult to claim that his statement was nonetheless involuntary. See
Missouri v. Seibert, 542 U.S. 600, 609 (2004) (noting that “maintaining that a statement is
involuntary even though given after warnings and voluntary waiver of rights requires unusual
stamina”); see also Berkemer v. McCarty, 468 U.S. 420, 433 n. 20 (1984) (“[C]ases in which a
defendant can make a colorable argument that a self-incriminating statement was ‘compelled’
despite the fact that the law enforcement authorities adhered to the dictates of Miranda are
rare.”). Notably, even if the government uses psychological tactics to obtain a statement from a

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suspect, a statement is still considered voluntary as long as the suspect's decision to confess is a
“product of the suspect's own balancing of competing considerations.” Miller, 796 F.2d at 604.
Significantly, on collateral review, the issue of the voluntariness of a petitioner’s
statement to police is a legal question that is not entitled to the presumption of correctness
afforded to a state court's factual findings. See Miller v. Fenton, 474 U.S. 104, 112 (1985).
Instead, a court must examine the record and make an independent determination as to whether
the state court's legal determination of voluntariness was contrary to, or an unreasonable
application of, Supreme Court precedent. See id. (“the ultimate question whether, under totality
of the circumstances, the challenged confession was obtained in a manner compatible with the
requirements of the Constitution is a matter for independent federal determination.”); see also
Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir. 2002) (“[U]nder the AEDPA habeas standard, [a
court is] required to determine whether the state court's legal determination of voluntariness was
contrary to or an unreasonable application of Supreme Court precedent.”). In contrast, statecourt findings related to “subsidiary questions, such as the length and circumstances of the
interrogation, the defendant's prior experience with the legal process, and familiarity with the
Miranda warnings,” are entitled to the presumption of factual correctness in § 2254. Miller, 474
U.S. at 117 (identifying the pre-1996 version of § 2254(d) as the applicable statutory section);
see also Sweet v. Tennis, 386 F. App'x 342, 345 (3d Cir. 2010) (identifying § 2254(e)(1) as the
appropriate statutory section). If the state court's “account of the evidence is plausible in light of
the record viewed in its entirety, the [reviewing court] may not reverse it.” Anderson v.
Bessemer City, 470 U.S. 564, 573-74 (1985) (describing clearly-erroneous review generally).

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Turning to the inquiry under § 2254(d) in this case, the Delaware Supreme Court did not
cite clearly established federal law when considering the issues of ambiguity, voluntariness, and
waiver with respect to Petitioner’s February 19, 2009 statement. However, the Delaware
Supreme Court’s decision is not contrary to clearly established federal law, because the
Delaware cases to which it cited articulated the aforementioned applicable federal standards. See
Fahy v. Horn, 516 F.3d 169, 196 (3d Cir. 2008) (Supreme Court of Pennsylvania's decision was
not “contrary to” clearly established federal law because it appropriately relied on its own state
court cases, which articulated the proper standard derived from Supreme Court precedent).
The Court must also determine whether the Delaware Supreme Court’s denial of the
instant argument was based on a reasonable application of clearly established federal law.
Petitioner does not deny that he was given a Miranda warning concerning the carjacking offense
at the start of his interrogation, or that he waived his Miranda rights by agreeing to speak with
police without counsel after being so informed. Petitioner’s signed written waiver of his
Miranda rights supports these facts. See Holmes, 2016 WL 1055050, at *1. Instead, Petitioner
contends that he later invoked his right to counsel during the interrogation, as demonstrated by
the statement he made to the police officer that “I think I’m gonna need lawyer [sic] or
something man because I don’t know what . . . “ (D.I. 13-18 at 14) The police officer attempted
to clarify Petitioner’s statement, and started to repeat Petitioner’s Miranda rights, but Petitioner
cut him off and continued the conversation. See Holmes, 2016 WL 1055050, at *5.
In his post-conviction appeal, the Delaware Supreme Court found that Petitioner’s
reference to a lawyer was not a clear and unambiguous invocation of his right to counsel. After
reviewing the totality of the circumstances, the Court concludes that the Delaware Supreme
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Court’s finding that Petitioner did not clearly and unambiguously invoke his right to counsel was
based on a reasonable determination of facts. For instance, Petitioner’s prior involvement with
the criminal justice system demonstrates his familiarity with his Miranda rights. When the
interrogation took place in February 2009, Petitioner had already been arrested forty-seven times
for felonies and misdemeanors, as well as twenty-one times for various other offenses. (D.I. 1318 at 47-48) In fact, by the time he was sixteen years old, Petitioner had been convicted of first
degree possession of a deadly weapon by a person prohibited. (Id.) Additionally, after saying,
“I think I’m gonna need lawyer [sic] or something man because I don’t know what . . .,”
Petitioner continued to answer the officer’s questions and denied possession of a weapon. (D.I.
13-18 at 48) Petitioner even attempted to get reduced charges by offering to provide information
about other crimes in Wilmington. (D.I. 4 at 24; D.I. 13-18 at 49) This conduct demonstrates a
waiver of any intention to seek counsel.
Petitioner also contends that his waiver of his right to counsel was not knowing and
intelligent because the officer misled him. (D.I. 6-1 at 27) Petitioner asked the officer if he
should talk to him about the robbery offense, because the robbery offense was not the officer’s
case. (D.I. 6-1 at 22) The officer told Petitioner it did not matter because the carjacking offense
and the robbery offense were committed on the same day and were “running together.” (D.I. 6-1
at 22) Petitioner argues that this “deception” caused him to waive his right to counsel. (D.I. 6-1
at 27)
Petitioner did not present this specific instance of alleged police deception as an
independent challenge to the admission of his statement during his Rule 61 proceeding. To the
extent the Delaware Supreme Court considered the “running together” statement when it held
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that there was “no evidence of coercion, intimidation, or deception by the police in obtaining
[Petitioner’s] explicit waiver” of his right to counsel, the Court concludes that the Delaware
Supreme Court’s holding withstands the totality of the circumstances test and was not an
unreasonable application of clearly established federal law.
“Coercive police activity” is a “necessary predicate” to holding a confession
constitutionally involuntary. See Connelly, 479 U.S. at 167. However, there is a distinction
between police trickery as a means of coercion and police trickery as mere strategic deception;
“[p]loys to mislead a suspect or lull him into a false sense of security that do not rise to the level
of compulsion or coercion to speak are not within Miranda’s concerns.” Illinois v. Perkins, 496
U.S. 292, 297 (1990). In other words, a law enforcement agent may use some psychological
tactics or even actively mislead a defendant in order to obtain a confession, provided that a
rational decision remains possible. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (stating police
misrepresentation that co-defendant had confessed did not render otherwise voluntary confession
inadmissible). As a general rule, police can lie to a suspect about the extent of the evidence
against the suspect or feign friendship with the suspect without fear of rendering the resulting
confession involuntary. See id. at 731, 737–39. “Subtle pressures may be as telling as coarse and
vulgar ones. The question is whether the accused was deprived of his free choice to admit, to
deny, or to refuse to answer.” Garrity v. State of N.J., 385 U.S. 493, 496 (1967); see also
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (stating test for determining voluntariness
of confession is whether, in light of all surrounding circumstances, defendant's will was
overborne).

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Here, having already been advised of his Miranda rights, Petitioner was aware that any
statements made would be used against him in a court of law. Although a knowing and
voluntary Miranda waiver does not necessarily demonstrate that a subsequent statement was
voluntary, it does show that Petitioner knew he had the right to remain silent, yet he still
provided a statement. See Oregon v. Elstad , 470 U.S. 298, 318 (1985) (acknowledging that
suspect's choice to speak after receiving Miranda warnings is highly probative of voluntariness).
Consequently, the precise issue is whether the officer’s statement about the carjacking offense
and the robbery offense “running together” so seriously changed the circumstances such that
Petitioner's answers were no longer voluntary, or Petitioner was no longer making a knowing and
intelligent relinquishment of his rights. See Wyrick v. Fields, 459 U.S. 42, 47 (1982).
After reviewing the totality of the circumstances, the Court concludes that neither the
words spoken by the police officer nor the context in which they were spoken amounted to
coercive police activity impairing Petitioner’s ability to make a knowing relinquishment of his
Miranda rights. The officer’s statement that the offenses were “running together” occurred after
the officer had read Petitioner his Miranda rights, after Petitioner signed the Miranda waiver,
after the police officer’s clarification of Petitioner’s Miranda rights, and after Petitioner had
already volunteered information about the robbery offense. The Court rejects Petitioner’s
contention that the officer’s statement misled him into waiving his already waived Miranda
rights.
Finally, Petitioner asserts that he did not intend the scope of his Miranda waiver to
include discussion of the robbery offense. He states that his Sixth Amendment right to counsel
had already “attached to the robbery charges” at the time of the February 19, 2009 interrogation
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and, “simply by initiating contact with [Petitioner] and discussing the robbery charge police
violated his Sixth Amendment right to have counsel represent him during any discussion of the
robbery charges.” (D.I. 4 at 25) The Court is not persuaded. “As a general proposition, the law
can presume that an individual who, with a full understanding of his or her rights, acts in a
manner inconsistent with their exercise has made a deliberate choice to relinquish the protection
those rights afford.” Berghuis v. Thompkins, 560 U.S. 370, 385 (2010). As the Delaware
Supreme Court found, and as demonstrated by the Court’s preceding discussion, “[Petitioner]
volunteered information related to the robbery, which acted as a waiver of his Sixth Amendment
right to counsel regarding the robbery charges.” Holmes, 2016 WL 1055050, at *5.
For the reasons set forth above, the Delaware Supreme Court’s determination that
Petitioner’s incriminating recorded statement was voluntary was not contrary to, or an
unreasonable application of, clearly established federal law, nor was it an unreasonable
application of the facts. See 28 U.S.C. § 2254(d). Accordingly, the Court will deny this portion
of Claim Three as meritless.
2.

Evidentiary Argument

Next, Petitioner contends that, even if his recorded statement was admissible under
federal constitutional law, the State failed to comply with the Delaware Rules of Evidence in
how it admitted and used the statement at trial because: (1) it admitted his statement only as
impeachment evidence under D.R.E. 613 but referred to it as affirmative evidence in closing
arguments (D.I. 6-1 at 30-32); and (2) the Superior Court erred by not giving a limiting
instruction on this point. (D.I. 6-1 at 31)

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As a general rule, state court evidentiary rulings are not cognizable on federal habeas
review unless the petitioner shows the admission of evidence caused a fundamental unfairness at
trial in violation of his due process rights. See Estelle v. McGuire, 502 U.S. 62, 68 (1991). This
portion of Claim Three asserts an error of Delaware law, and Petitioner has failed to demonstrate
any related deprivation of a due process right. Therefore, the Court will deny the Delaware
evidentiary challenge for failing to assert an issue cognizable on federal habeas review.
3. Ineffective Assistance
Petitioner contends that defense counsel provided ineffective assistance for not filing a
motion to suppress his recorded statement or, if it was admissible for impeachment purposes, for
not seeking a limiting instruction. The Delaware Supreme Court denied this argument as
meritless. Therefore, the Court must review the Delaware Supreme Court’s decision under §
2254(d) to determine if this portion of Claim Three warrants habeas relief.
The clearly established Supreme Court precedent governing ineffective assistance of
counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S.
668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510 (2003). Under the first
Strickland 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. See Strickland, 466 U.S. at 688.
Under the second Strickland prong, a petitioner must demonstrate “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 a “probability sufficient to undermine
confidence in the outcome.” Id.
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Finally, 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 Wells v. Petsock, 941 F.2d 253, 259-60 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885,
891-92 (3d Cir. 1987). Although not insurmountable, the Strickland standard is highly
demanding and leads to a strong presumption that the representation was professionally
reasonable. See Strickland, 466 U.S. at 689.
Turning to the first prong of the § 2254(d)(1) inquiry, the Court notes that the Delaware
Supreme Court correctly identified the Strickland standard applicable to Petitioner’s ineffective
assistance of counsel allegation. Consequently, the Delaware Supreme Court’s decision was not
contrary to clearly established federal law. See Williams, 529 U.S. at 406 (“[A] run-of-the-mill
state-court decision applying the correct legal rule from [Supreme Court] cases to the facts of a
prisoner’s case [does] not fit comfortably within § 2254(d)(1)’s ‘contrary to’ clause”).
The Court also concludes that the Delaware Supreme Court reasonably applied the
Strickland standard to the facts of Petitioner’s case. The Delaware Supreme Court held that
defense counsel did not perform deficiently by not filing a motion to suppress the February 19,
2009 statement because the statement was not obtained in violation of Petitioner’s Miranda
rights. Relatedly, given the absence of a Miranda violation, the Delaware Supreme Court found
that defense counsel reasonably determined there was no reason to request a limiting instruction.
Given the Court’s own determination that Petitioner’s Miranda challenge to the February 19,
2009 statement lacks merit, the Court concludes that the Delaware Supreme Court reasonably
applied Strickland in holding that defense counsel’s decision not to challenge the admission of
the statement or to request a limiting instruction was reasonable.
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In turn, the Delaware Supreme Court reasonably applied Strickland in concluding that
Petitioner was not prejudiced by defense counsel’s actions. Since Petitioner testified at trial and
admitted to taking Freeman’s car and taking drugs from Elder’s home, the only issue was
whether Petitioner had a weapon during the carjacking and robbery. Given Petitioner’s repeated
and consistent assertions during the February 19, 2009 statement that he did not have any type of
weapon during the carjacking, he cannot demonstrate a reasonable probability that suppressing
the statement or giving a limiting instruction would have changed the outcome of the trial.
Accordingly, the Court concludes that Petitioner’s ineffective assistance of counsel claim fails to
satisfy § 2254(d).
For all of these reasons, the Court will deny Claim Three in its entirety.
D. Claim Four: Interruption of Closing Argument
At the end of Petitioner’s trial, defense counsel was attempting to argue for a lesserincluded offense. See Holmes, 2016 WL 1055050, at *5. The State objected on the mistaken
belief that defense counsel was making a choice-of-evils argument, even though defense counsel
had not submitted a proposed instruction for it. Id. at *2. The Superior Court sustained the
objection and instructed the jury that the “concept [of choice of evils] is simply not in this case,”
so the jury “may not consider that the defendant was in some kind of bind, and just had to do
what he did with regard to taking the car.” Id. at *3. The Superior Court elaborated, stating,
“We discussed it among counsel yesterday . . . and I told [defense counsel] that if he wanted an
instruction on that defense . . . that he should present a written request in writing for an
instruction which he declined to do.” Id.
In Claim Four, Petitioner argues that the Superior Court violated his Fifth, Sixth,
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and Fourteenth Amendment rights by interrupting defense counsel’s closing argument and
instructing the jury that a choice-of-evils defense was not available. Petitioner contends that the
Superior Court’s comments mischaracterized and discredited his defense, misled the jury,
excluded his testimony from the jury’s consideration, prevented him from arguing his version of
the facts, and demeaned counsel in front of the jury. He further argues that defense counsel was
ineffective for failing to object or to move for a mistrial when the alleged error occurred.
On direct appeal, Petitioner argued that the Superior Court’s instruction mischaracterized
his defense and criticized defense counsel in front of the jury, but he presented this argument
without invoking or relying on any federal constitutional provision or legal standard. The
Delaware Supreme Court, as it later acknowledged, misconstrued Petitioner’s argument on direct
appeal. See Holmes, 2016 WL 1055050, at *3. The Delaware Supreme Court understood
Petitioner to be arguing that he was entitled to a choice-of-evils instruction and rejected the
claim. See Holmes, 2010 WL 5043910, at *5.
In his 2013 Rule 61 motion, Petitioner presented all of the claims underlying Claim Four,
except for the argument that he was denied the right to testify on his own behalf. The Superior
Court denied his 2013 Rule 61 motion, and the Delaware Supreme Court affirmed that decision,
this time adjudicating the arguments in Claim Four on their merits. See Holmes, 2016 WL
1055050, at *4-6.
1.

Petitioner’s right to testify on his own behalf

Petitioner contends that the Superior Court’s comments on choice-of-evils denied him his
right to testify on his own behalf under the Fifth, Sixth, and Fourteenth Amendments. Despite
the fact that he actually did testify, Petitioner argues that the Superior Court’s comments
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prevented the jury from considering some or all of his testimony, effectively depriving him of
that right.
Petitioner did not exhaust state remedies for the instant argument because he did not
present it to the Delaware Supreme Court on direct or postconviction appeal. At this point in
time, Petitioner cannot return to the Delaware state courts to exhaust state remedies because
a third postconviction motion would be barred as untimely under Rule 61(i)(1) and as successive
under Rule 61(i)(2). Petitioner does not attempt to invoke either exception to the procedural bars
by pointing to new evidence suggesting that he is actually innocent or a new rule of
constitutional law with retroactive application. See Del. Super. Ct. R. 61(d)(2), (i)(5). Given
these circumstances, the Court must treat the argument as technically exhausted but procedurally
defaulted, meaning that the Court cannot reach its merits unless Petitioner demonstrates cause
and prejudice or a miscarriage of justice.
In an attempt to establish cause, Petitioner asserts the ineffective assistance of postconviction counsel for failing to assert this claim in his 2013 Rule 61 motion and subsequent
post-conviction appeal. By mentioning post-conviction counsel’s performance, the Court
presumes Petitioner is attempting to establish cause under the limited Martinez exception to
procedural default. However, since the argument concerning the denial of Petitioner’s right to
testify on his own behalf is not asserted as part of an ineffective assistance of trial counsel claim,
the limited Martinez exception is inapplicable to establish cause here.
Petitioner’s failure to establish cause obviates the Court’s need to address the issue of
prejudice. Nevertheless, Petitioner cannot show that the alleged violation of his rights “worked
to his actual and substantial disadvantage, infecting his entire trial with error of constitutional
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dimensions.” Murray, 477 U.S. at 494. Significantly, Petitioner actually testified in his own
defense at trial. Even though Petitioner argues that the jury was not free to consider his
testimony, the Delaware Supreme Court found differently: “A fair reading of the record indicates
that before and after the interruption, [Petitioner’s] counsel was able to fully argue [Petitioner’s]
version of events—specifically, that [Petitioner] had no weapon and took the car to get away
from Freeman’s threatening behavior—and that if the jury embraced that, it should acquit him on
the more serious charges.” Holmes, 2016 WL 1055050, at *6. The Superior Court instructed the
jury on the availability of lesser-included offenses, 6 and the jury is presumed to have followed
that instruction. See Murray, 477 U.S. at 496.
Petitioner also fails to demonstrate that his procedural default should be excused under
the miscarriage-of-justice exception, because he offers no new reliable evidence of his actual
innocence. Consequently, the Court will deny the instant portion of Claim Four as procedurally
barred.
2. Prejudicial effect of Superior Court’s interruption of closing argument
In Claim Four, Petitioner also argues that the Superior Court’s comments
mischaracterized and discredited his defense, misled the jury, prevented him from arguing his
version of the facts, and demeaned defense counsel in front of the jury. The Delaware Supreme
Court adjudicated these arguments on the merits during Petitioner’s post-conviction appeal from
the Superior Court’s denial of his 2013 Rule 61 motion. Consequently, Petitioner will only be
entitled to federal habeas relief if the Delaware Supreme Court’s decision was either contrary to,
or an unreasonable application of, clearly established federal law.

6

Holmes, 2016 WL 1055050, at *6.

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In essence, Petitioner argues that he suffered various forms of prejudice from an alleged
error committed by the Superior Court during his closing argument. The clearly established
federal law applicable to assessing the prejudicial impact of a constitutional error during a state
criminal trial is the harmless error standard of review set forth in Brecht v. Abrahamson, 507
U.S. 298 (1993). Under the standard articulated in Brecht, a court must determine whether the
trial error at issue “had substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 637.
As a general rule, on direct appeal, a trial judge’s comments or interruptions during
defense counsel’s closing argument will only warrant reversal if the trial judge’s conduct,
measured by the evidence presented and the result of the trial, was clearly prejudicial to the
defendant. See United States v. Simpson, 337 F.3d 905, 908 (7th Cir. 2003); United States v.
Hammer, 25 F. Supp. 2d 518, 533 (M.D. Pa. 1998). The relevant question is not whether the
trial judge's conduct left something to be desired, but “whether his behavior was so prejudicial
that it denied ... [the defendant][] a fair, as distinguished from a perfect, trial.” United States v.
Robinson, 635 F.2d 981, 984 (2d Cir. 1980); see also United States v. Wilensky, 757 F.2d 594,
598 (3d Cir. 1985) (“Although a few isolated, allegedly prejudicial comments by the trial judge
are not sufficient to warrant a reversal, a balancing process must be employed to determine
whether the trial judge's comments have pervaded the overall fairness of the proceeding.”). “The
main concern is whether the comments or interruptions “impress[ed] on the jury a belief of the
defendant’s guilt or a view about the credibility of the defendant or any of the witnesses.”
United States v. Taylor, 802 F. App’x 604, 609 (2d Cir. 2020) (analyzing whether the trial
court’s interruption of defense counsel’s cross-examination in front of the jury violated
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defendant’s constitutional right to a fair trial). Significantly, “[g]ood faith mistakes of judgment
or misapplication of the proper rules of law by the [trial] court are acts which do not reflect great
bias on the part of the trial judge.” Wilensky, 757 F.2d at 598.
On post-conviction appeal of the 2013 Rule 61 motion, the Delaware Supreme Court
rejected Petitioner’s instant allegations of error, explaining:
Although we agree with [Petitioner] that his counsel's argument was
confused by the trial court and then by this Court on direct appeal,
we nonetheless find no basis for relief. A fair reading of the record
indicates that before and after the interruption, [Petitioner’s] counsel
was able to fully argue [Petitioner’s] version of events—
specifically, that [Petitioner] had no weapon and took the car to get
away from Freeman's threatening behavior—and that if the jury
embraced that, it should acquit him on the more serious charges.
Furthermore, the trial court gave an instruction on the lesserincluded charges. Given these realities, we find no basis to conclude
that [Petitioner] was prejudiced by the trial court's interruption and
admonishment based on the State's objection.
Holmes, 2016 WL 1055050, at *6.
The Delaware Supreme Court did not cite any clearly established federal law in its
decision. Nevertheless, for the following reasons, the Court concludes that its decision is neither
contrary to, nor based on an unreasonable application of, Brecht’s “harmless error” standard.
As an initial matter, the Court notes that the Superior Court’s comments during closing
argument did not actually prevent Petitioner’s defense counsel from presenting his defense or
arguing his version of the facts to the jury. See Holmes, 2016 WL 1055050, at *6. In addition,
the Superior Court instructed the jury that it was to consider lesser-included offenses (D.I. 13-3
at 149, 150) and that it was to consider only the evidence in the case and determine the facts (D.I.
13-3 at 148, 149). The jury is presumed to have followed these instructions. See Richardson v.
Marsh, 481 U.S. 200, 206 (1987).
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Moreover, even if the Superior Court’s comment limited or hampered defense counsel’s
argument, the error was harmless. First, the Superior Court interrupted defense counsel due to its
mistaken assumption that defense counsel was going to request a choice-of-evils instruction, and
not as a result of bias. Second, as the Delaware Supreme Court found on direct appeal and again
on post-conviction appeal, the “evidence against [Petitioner] was sufficient to sustain his
convictions,” and Petitioner’s counsel was able to fully argue his defense. See Holmes, 2016 WL
1055050, at *6; Holmes, 2010 WL 5043910, at *5. See also Moreno v. Valenzuela, 2017 WL
1534276, at *8 (E.D. Cal. Apr. 28, 2017) (finding that the state trial court’s act of barring
defendant’s trial counsel from arguing that California’s wiretapping statute requires proof that
the communication was intercepted “while it is in transit” did not warrant habeas relief because
the evidence was sufficient to sustain his convictions and defendant suffered no prejudice under
Brecht.). Third, the Superior Court instructed the jury that it was to consider lesser-included
offenses and that it was to consider only the evidence in the case and determine the facts. The
jury is presumed to have followed those instructions, and such instructions helped to lessen any
prejudice to Petitioner. Finally, it does not appear that the Superior Court’s statement conveyed
to the jury any impression of the court’s belief in Petitioner’s guilt. See, e.g,, United States v.
Pisani, 773 F.2d 397, 402 (2d Cir. 1985) (“If we conclude that the conduct of the trial had so
impressed the jury with the trial judge's partiality to the prosecution that this became a factor in
determining the defendant's guilt, then the convictions should be reversed.”). Given this record,
the Court concludes that the Superior Court’s interruption of defense counsel’s closing argument
did not have a substantial and injurious effect or influence in determining the jury’s verdict.

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Petitioner also contends that the Superior Court disparaged defense counsel in front of the
jury, undermining his credibility and the defense. “A state trial judge’s conduct in a criminal
trial would have to reach a significant extent and be adverse to the defendant to a substantial
degree before the risk of either impaired functioning of the jury or lack of the appearance of a
neutral judge conducting a fair trial exceeded constitutional limits.” Jones v. Spitzer, 2003 WL
1563780, at *42 (S.D.N.Y. Mar. 26, 2003). The Superior Court’s comments regarding the
choice-of-evil instruction were not so substantial as to impair the functioning of the jury or to
tarnish or destroy the court’s appearance of neutrality.
Petitioner’s contention that the Superior Court’s comments implied that his counsel was
not diligent is similarly unavailing. Even if the jury interpreted the Superior Court’s comment in
that manner, similar or more egregious conduct by trial judges in other cases have not warranted
relief. For example, in United States v. Maceo, 947 F.2d 1191, 1200 (5th Cir. 1991), the trial
judge accused trial counsel of misstating the law. The Fifth Circuit held that defendant’s claim
that the trial judge’s accusation violated defendant’s rights to counsel and a fair trial was
“overstated” and “plainly lack[ed] merit.” Id. The Sixth Circuit held that the trial judge’s
admonishment to the jury to ignore certain comments by defense counsel and its warning to
defense counsel about his use of the term “Arabs” did not create an unfair trial. See United States
v. Foster, 2000 WL 977345, at *4 (6th Cir. July 7, 2000). In United States v. Pisani, the Second
Circuit held that the trial judge’s frequent comments that defense counsel’s remarks were
improper or meritless, that defense counsel was mumbling, that his line of questioning was
boring and a waste of time, and that he was misleading the jury, did not deprive the defendant of
a fair trial. See Pisani, 773 F.2d at 403-04. After comparing the Superior Court’s interruption of
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defense counsel’s closing with the instances of trial court error in the aforementioned cases, the
Court concludes that the Delaware Supreme Court reasonably applied the underlying principles
of the Brecht standard in holding that Petitioner was not prejudiced by the Superior Court’s
interruption.
3. Ineffective assistance of counsel
Petitioner also asserts that defense counsel provided ineffective assistance for not
objecting to the Superior Court’s interruption of his closing argument or for not moving for a
mistrial. The Delaware Supreme Court adjudicated the merits of this argument under the correct
Strickland standard. Consequently, Petitioner will only be entitled to relief if the Delaware
Supreme Court’s decision was based on an unreasonable application of Strickland.
The Delaware Supreme Court concluded that Petitioner did not suffer any prejudice from
the allegedly deficient performance of his trial counsel because, despite the Superior Court’s
interruption, “[Petitioner’s] counsel was able to fully argue [Petitioner’s] version of events —
specifically, that [Petitioner] had no weapon and took the car to get away from Freeman's
threatening behavior—and that if the jury embraced that, it should acquit him on the more
serious charges. Holmes, 2016 WL 1055050, at *6. In addition, “the trial court gave an
instruction on the lesser-included charges.” Id.
The record supports the Delaware Supreme Court’s determination that defense counsel
was able to fully present Petitioner’s defense despite the Superior Court’s interruption. As a
result, Petitioner cannot demonstrate a reasonable probability that the outcome of his trial would
have been different but for defense counsel’s failure to object to the interruption or counsel’s

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failure to move for a mistrial. Accordingly, the Court will deny the ineffective assistance portion
of Claim Four for failing to satisfy § 2254(d).
E. Claim Five: Cumulative Error
In his final Claim, Petitioner contends that the cumulative effective from defense
counsel’s failure to seek suppression of his recorded February 19, 2009 statement and to object
when the Superior Court interrupted his closing argument deprived him of his due process rights.
Petitioner presented this argument to the Delaware Supreme Court on post-conviction appeal,
which denied the argument as meritless. Therefore, Claim Five will only warrant habeas relief if
the Delaware Supreme Court’s decision was either contrary to, or an unreasonable application of,
clearly established federal law.
The Third Circuit has recognized the cumulative error doctrine on habeas review, holding
that “a cumulative error argument constitutes a stand-alone constitutional claim subject to
exhaustion and procedural default.” Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d 528, 542 (3d
Cir. 2014). 7 Pursuant to the cumulative error doctrine,
Individual errors that do not entitle a petitioner to relief may do so
when combined, if cumulatively the prejudice resulting from them
undermined the fundamental fairness of his trial and denied him his
constitutional right to due process. Cumulative errors are not
harmless if they had a substantial and injurious effect or influence
in determining the jury's verdict, which means that a habeas
petitioner is not entitled to relief based on cumulative errors unless
he can establish actual prejudice.

The Tenth Circuit has stated that the United States Supreme Court has not recognized the
concept of cumulative error. See Bush v. Carpenter, 926 F.3d 644, 686 n.16 (10th Cir. 2019). If
there is no clearly established federal law with respect to a cumulative error argument, it would
appear that the Court's § 2254(d) analysis should end there.
7

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Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008). Given the Third Circuit's recognition of the
cumulative error doctrine in habeas proceedings, the Court will review Claim Five.
Here, the Delaware Supreme Court reviewed and rejected each of the two underlying
errors on their merits, and also rejected Petitioner's cumulative error argument because he failed
to establish defense counsel was ineffective in either of the subsidiary claims. See Holmes, 2016
WL 1055050, at *6. This Court has also concluded that the underlying errors and related
ineffective assistance of counsel claims lack merit and did not cause any prejudice. Since
Petitioner has not provided anything to demonstrate “actual prejudice” even when the two
Claims are considered together, the Court will deny Claim Five as meritless.
IV.

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

to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U.S.C. § 2253(c)(2). A
certificate of appealability is appropriate when a petitioner makes a “substantial showing of the
denial of a constitutional right” by demonstrating “that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court has concluded that the instant Petition does not warrant relief. Reasonable
jurists would not find this conclusion to be debatable. Accordingly, the Court will not issue a
certificate of appealability.
V.

CONCLUSION
For the reasons discussed, the Court will deny the Petition without holding an evidentiary

hearing. An appropriate Order will be entered.
43