Cabrera v. Medeiros

Filing 25

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES the Petition for a writ of habeas corpus, D. 1. Cabrera must demonstrate "a substantial showing of the denial of a constitutional right" to receive a ce rtificate of appealability. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To do so, he must "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claim s debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); Bly v. St. Amand, 9 F. Supp. 3d 137, 164-65 (D. Mass. 2014). Given the analysis of the factual record and the applicable law, the Court does not believe that rea sonable jurists could differ as to how the Petition should have been resolved. For this reason, the Court is not inclined to issue a certificate of appealability, but will give petitioner until June 29, 2017 to file a memorandum not to exceed five ( 5) pages that addresses whether a certificate of appealability is warranted. Pursuant to Rule 11(a) governing § 2254 proceedings, if no such memorandum is received the Court will issue a notice of denial of the certificate of appealability. (Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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JOSE CABRERA,
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Petitioner,
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v.
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Civil No.: 15-cv-13768-DJC
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SEAN MEDEIROS,
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Respondent.
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__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

June 8, 2017

Introduction
Petitioner Jose Cabrera (“Cabrera”) has filed a petition seeking a writ of habeas corpus

(“Petition”) pursuant to 28 U.S.C. § 2254 alleging various constitutional violations in connection
with his 2011 conviction for second-degree murder.

D. 1.

Respondent Sean Medeiros

(“Medeiros”), the Superintendent of MCI-Norfolk, opposes the Petition on the bases that Cabrera’s
grounds for habeas relief either have been waived or fail on the merits. D. 23 at 3. For the reasons
stated below, the Court DENIES Cabrera’s Petition, D. 1.
II.

Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal

court may grant a writ of habeas corpus if the state-court adjudication “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “A state court
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decision is contrary to clearly established federal law only if the state court ‘arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.’”
Restucci v. Spencer, 249 F. Supp. 2d 33, 42 (D. Mass. 2003) (alternations in original) (quoting
Williams v. Taylor, 529 U.S. 362, 413 (2000)). As the Supreme Court has clarified, this does not
requires that a state court “cite or even be aware of [the Supreme Court’s] cases.” Harrington v.
Richter, 562 U.S. 86, 98 (2011) (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). Rather,
a state-court decision is not susceptible to a habeas challenge “so long as neither the reasoning nor
the result of the state-court decision contradicts [Supreme Court precedent].” Early, 537 U.S. at 8.
A state court decision is an “unreasonable application” of federal law “if the state court
identifie[d] the correct governing legal rule from [the Supreme] Court's cases but unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams, 529 U.S. at 407.
Accordingly, a federal court may only grant habeas relief if “the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103. In sum, the AEDPA “erects a formidable barrier to
federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v.
Titlow, __ U.S. __, 134 S. Ct. 10, 16 (2013).
III.

Factual and Procedural Background
On November 1, 2008, Tony Pich (“Pich”) was killed in a gang-related shooting in Lynn,

Massachusetts. S.A. at 124-29.1 Two days after the shooting, on November 3, 2008, the Lynn

1

On March 21, 2016, Medeiros manually filed with the Court a Supplemental Answer
containing relevant documents from the state court proceedings. D. 16. The Court cites to the
documents contained in the Supplemental Answer as “S.A.”
2

Police interviewed eleven-year-old Randy Seang (“Seang”) who had been at the same house as
Pich at the time of the shooting. D. 2-1 at 2. During the interview, Seang identified Cabrera as
Pich’s shooter to Detective Stephen Withrow (“Detective Withrow”). Id. Seang told Detective
Withrow that he was “100 percent sure” that Cabrera had been the shooter and that he had also
heard from other individuals that Cabrera had been the shooter. Id. at 2-3. Three days later, on
November 6, 2008, Lynn Police interviewed Cabrera at the Lynn Police Department. S.A. at 6569. At the end of the interview, Lynn Police arrested Cabrera for the murder of Pich. Id. On
January 2, 2009, an Essex County grand jury indicted Cabrera for first-degree murder. S.A. 89.
Prior to trial, Cabrera moved to suppress certain evidence, including the statements he had
made to Lynn Police during the November 6, 2008 interview. Id. at 101-05. After a hearing that
spanned several days in July and August 2010, the Essex Superior Court (“trial court”) denied
Cabrera’s motion to suppress his statements to Lynn Police. Id. at 84, 118. His jury trial
commenced on January 4, 2011. S.A. at 93. At trial, Seang disavowed his prior identification of
Cabrera as Pich’s shooter. D. 2-1 at 2. Seang not only provided a different account of his
whereabouts at the time of the shooting, but he claimed that he did not remember the interview he
gave to Lynn Police on November 3, 2008. Id. Over the objection of Cabrera’s trial counsel,
Detective Withrow subsequently testified to Seang’s prior identification of Cabrera as the shooter,
including Seang’s claim that he was “100 percent sure” it had been Cabrera. Id. Detective
Withrow also testified to Seang’s prior claim that he had heard from other individuals in the
community that Cabrera had been Pich’s shooter. Id. at 3. Cabrera’s trial counsel objected to this
particular statement as inadmissible hearsay and simultaneously moved for a mistrial. Id. The
trial court sustained the objection and instructed the jury to disregard that piece of testimony, but
ultimately denied Cabrera’s motion for a mistrial. Id. On February 11, 2011, the jury found

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Cabrera guilty of the lesser included charge of second-degree murder and the trial court sentenced
Cabrera to life imprisonment. D. 1 at 1; S.A. at 99.
Cabrera filed a timely notice of appeal of his conviction with the Massachusetts Appeals
Court (“Appeals Court”). S.A. at 9, 11. On March 18, 2014, the Appeals Court upheld Cabrera’s
conviction. D. 1 at 2. Cabrera then filed an application for further appellate review with the
Massachusetts Supreme Judicial Court, but that court denied his application on July 30, 2014. Id.
Cabrera filed the instant Petition, challenging the state court conviction with this Court on October
26, 2015.2 D. 1. Medeiros opposes the Petition. D. 15, 23.

2

The Court notes that it appears that Cabrera filed the Petition nearly fifteen months
following the final ruling on his appeal in the state-court proceeding. For habeas corpus petitions,
there is ordinarily a one-year statute of limitations that runs, as is relevant here, from “the date on
which the judgment became final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(a);
see Delaney v. Matesanz, 264 F.3d 7, 16 (1st Cir. 2001). Because the parties do not raise a
challenge to timeliness and because the Court concludes that the Petition fails on the merits, the
Court does not reach a determination as to whether Cabrera’s petition is also time-barred.
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IV.

Discussion
A.

The Trial Court Did Not Violate Cabrera’s Right to Confrontation

Cabrera first asserts that he is entitled to habeas relief because the trial court violated his
right to confrontation by allowing Detective Withrow to testify as to Seang’s out-of-court
identification of Cabrera as Pich’s shooter. The Confrontation Clause of the Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause requires that
criminal defendants be provided “an adequate opportunity to cross-examine adverse witnesses.”
United States v. Owens, 484 U.S. 554, 557 (1988). In the instant case, Cabrera objects to Detective
Withrow’s testimony that Seang claimed to be “100 percent sure” that Cabrera was the shooter.
D. 1 at 5. Although Cabrera concedes that Seang testified at trial—and so was available to be
cross-examined—Cabrera argues that Seang’s conduct on the witness stand effectively precluded
his trial counsel from cross-examining Seang as to the identification, such that Detective
Withrow’s testimony should have been excluded because Seang was essentially “unavailable” for
cross-examination. D. 2 at 6 (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)).
The Appeals Court nevertheless affirmed the trial court’s decision to admit Detective
Withrow’s testimony, resting its decision on Commonwealth v. Cong Duc Le, 444 Mass. 431
(2005). Cong Duc Le presented a similar set of facts and the Supreme Judicial Court in that case
held that a prior identification is admissible even when the identifying witness subsequently denies
the prior identification.

Id. at 438.

Accordingly, the Appeals Court concluded that the

Confrontation Clause requires only an opportunity for a criminal defendant to cross-examine a
witness regarding his extrajudicial statement. D. 2-1 at 3. Because the trial court “did not limit
the scope of [Cabrera’s] cross-examination of Seang, nor was it impeded by the assertion of a

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privilege,” Cabrera’s confrontation right was not violated. Id. Indeed, as the Appeals Court
observed, “the most successful cross-examination at the time the prior statement was made could
hardly hope to accomplish more than ha[d] already been accomplished by the fact that the witness
is now telling a different, inconsistent story.” Id. (alteration in original) (quoting Commonwealth
v. Daye, 393 Mass. 55, 72 n.15 (1984)). The Court agrees with the reasoning of the Appeals Court
that Cabrera’s right to confrontation was not violated by the admission of Seang’ prior
identification because Seang was available for cross-examination at trial.
Cabrera contends, however, that the Confrontation Clause requires something more—“an
opportunity for ‘effective’ cross-examination.” D. 2 at 9 (quoting Kentucky v. Stincer, 482 U.S.
730, 739 (1987); citing Delaware v. Van Ardsall, 475 U.S. 673, 679 (1985)). In particular, Cabrera
directs the Court to United States v. Owens, 484 U.S. 554, 561 (1988), which required that for a
witness to be considered “subject to cross-examination” he must be “placed on the stand, under
oath, and respond[] ‘willingly’ to questions.” Id. at 561. In Cabrera’s view, Seang’s reluctance to
appear at trial and his denial of his prior identification made him an “unwilling” witness, shielding
him from effective cross-examination. D. 2 at 9-10. Yet, the Supreme Court’s ruling in Owens is
inapposite to Cabrera’s position. First, the Supreme Judicial Court in Cong Duc Le cited the same
language from Owens yet reached a contrary result. Cong Duc Le, 444 Mass. at 437-38 (citing
Owens, 484 U.S. at 561). Second, the quoted language notwithstanding, the Supreme Court
ultimately held in Owens that the Confrontation Clause is not “violated by admission of an
identification statement of a witness who is unable, because of a memory loss, to testify concerning
the basis for the identification.” Owens, 484 U.S. at 564. Lower federal courts have extended this
principle to also cover cases where the identifying witness disclaimed his prior identification at
trial. Cong Duc Le, 444 Mass. at 438-39 (collecting cases). Accordingly, the Court is not

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persuaded that the Confrontation Clause bars admission of a prior identification because the
identifying witness subsequently disclaimed the identification on the witness stand.

More

importantly, the Court cannot conclude that the trial court’s decision to admit Seang’s prior
identification of Cabrera as Pich’s shooter was contrary to “clearly established federal law” as
required by the AEDPA.
Cabrera also contends that the Appeals Court erred in relying on Massachusetts, rather than
federal, precedent in reaching its decision. D. 2 at 7-8. This argument is unavailing, however,
because there is no requirement that the state court cite directly to Supreme Court precedent.
Harrington, 562 U.S. at 98. Relatedly, Cabrera argues that the Appeals Court decision is in error
because it relies on Cong Duc Le, which in turn relies on pre-Crawford law. D. 2 at 8. However,
although Crawford overturned the Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56
(1980), Crawford did not disturb the Supreme Court’s case law related to what it means for a
declarant to be unavailable for cross-examination. See Crawford, 541 U.S at 61-62, 68-69. That
is, relying on pre-Crawford cases like Owens for establishing whether a declarant is considered
unavailable remains legally sound.
For the reasons discussed, Cabrera has not established that the admission of Detective
Withrow’s testimony is contrary to or an unreasonable application of Supreme Court precedent
and so his Confrontation Clause argument fails to provide a basis for habeas relief.

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B.

Cabrera’s Remaining Arguments Do Not Provide a Basis for Relief
1.

Cabrera’s Second and Third Bases for Relief Are Waived

Cabrera provides two additional bases for relief: first, he asserts that the trial court erred
in denying his motion for a mistrial based upon the testimony of Detective Withrow, D. 1 at 7, and
second, he asserts that the trial court erred in admitting statements that he made during his
November 6, 2008 interview with Lynn Police. Id. at 8.
Medeiros contends that Cabrera waived these additional grounds for habeas relief because
Cabrera failed to adequately develop either argument in his motion papers. D. 23 at 6-7. In the
First Circuit, “issues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990); see United States v. Sevilla-Oyola, 770 F.3d 1, 13-14 (1st Cir. 2014) (holding that defendant
waived his claim by providing only a brief argument with a single case citation); United States v.
Williams, 630 F.3d 44, 50 (1st Cir. 2010) (concluding that an argument amounting to “a single
three-sentence paragraph” was insufficient and, therefore, waived). This principle applies equally
in the context of a petition for a writ of habeas corpus. See Glacken v. Dickhaut, 585 F.3d 547,
551 (1st Cir. 2009); Williams v. Roden, No. 09-10237-JLT, 2010 WL 2428822, at *10 (D. Mass.
Apr. 6, 2010); cf. Holmes v. Spencer, 685 F.3d 51, 66 (1st Cir. 2012) (suggesting a habeas
petitioner’s brief must provide at least “the raw materials” of an argument for his claim not to be
waived).
The Court concludes that Cabrera has waived his second and third grounds for relief. First,
as Medeiros observes, the majority of Cabrera’s brief in support of the Petition is dedicated to
arguing his first ground for relief based on the Confrontation Clause. D. 23 at 6; see D. 2.
Although Cabrera suggests that his first and second grounds for relief are closely related, D. 2 at

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3, Cabrera still only addresses the merits of his second and third grounds for relief in a perfunctory
manner, id. at 12. Cabrera’s argument in support of his second and third grounds for relief amounts
to (1) an admission that they are “unexhausted and procedurally defaulted from review” and (2) a
request that the Court nevertheless “independently review the record . . . to determine if the State
court’s decision is objectively unreasonable.”3 Id. This is insufficient as it fails to provide even
the “raw materials” of an argument that Cabrera is entitled to habeas relief on his second and third
grounds. See Holmes, 685 F.3d at 66. In addition, the Court provided both parties with an
opportunity to provide additional briefing, D. 19 (instructing petitioner to file his brief on or before
June 15, 2016), but Cabrera neglected to use that opportunity to further develop his arguments. In
light of the foregoing, the Court determines that Cabrera has waived his second and third grounds
for relief.
2.

Cabrera’s Second and Third Bases for Relief Additionally Fail on the
Merits

Because Cabrera is a pro se petitioner, he is entitled to “some latitude in the interpretation
of his claims.” Restucci, 249 F. Supp. 2d at 40 n.3 (citing Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam); Prou v. United States, 199 F.3d 37, 42 (1st Cir. 1999)). Nevertheless, even

3

Cabrera cites two cases in support of his request that the Court “independently review the
record” to find support for the alleged constitutional violations, Early v. Packer, 537 U.S. 3 (2002)
(per curiam), and Himes v. Thompson, 336 F.3d 848 (9th Cir. 2003). In context, it is not clear
how Early and Himes support Cabrera’s position. In Early, the Supreme Court did not conduct an
independent review of the record. See Early, 537 U.S. at 8-9. And, although the Ninth Circuit in
Himes did conduct an “independent review of the record,” it did so only because it found that the
state court had failed to produce a reasoned decision. Himes, 336 F.3d at 853. Here, the Appeals
Court issued an opinion detailing the reasons for rejecting Cabrera’s direct appeal of his criminal
conviction. See D. 2-1. Moreover, the Himes court only reviewed the record to determine the
reasoning behind the state court’s decision—not to develop arguments on behalf of the habeas
petitioner. See Himes, 336 F.3d at 853. As a result, neither case changes the Court’s conclusion
that Cabrera has waived his second and third grounds for relief.
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if the Court were to credit Cabrera’s limited arguments as to his second and third grounds for relief,
the Court still concludes that there is no basis for granting the Petition on these grounds.
a)

The Trial Court’s Denial of Cabrera’s Motion for Mistrial Did Not
Violate His Right to a Fair Trial

Cabrera’s second ground for seeking habeas relief is based upon the objection that the trial
court erred in denying Cabrera’s motion for a mistrial. D. 1 at 7. Cabrera first argues that his
motion for a mistrial was grounded on the same Confrontation Clause issue that he developed as
his first ground for relief. Id.; D. 2 at 3. If that were the case, the argument would fail for the
reasons already discussed.4 According to the trial court and Appeals Court records, however,
Cabrera’s original motion for a mistrial was in fact grounded on a different argument altogether.
See D. 2-1 at 3. In the course of his testimony, Detective Withrow also testified that during the
November 3, 2008 interview Seang claimed that “he had heard” that Cabrera shot the victim. Id.
Cabrera’s trial counsel objected to the testimony and immediately moved for a mistrial, arguing
that there was no way to “unring this bell.” S.A. at 141. The trial court did not initially rule on
the mistrial motion but did contemporaneously instruct the jury not to consider this piece of
testimony. D. 2-1 at 3; S.A. at 142. The trial court later denied the mistrial motion. Id. at 2-3.
On appeal, Cabrera argued that the trial court abused its discretion in denying the motion for a
mistrial. Id. at 2-3. The Appeals Court, however, rejected this argument, observing that (1) the
trial court was entitled to rely on a curative instruction as a remedy, and (2) the hearsay statement
was not prejudicial to Cabrera because it was consistent with his theory of the case (i.e., that Seang

4

Cabrera also failed to raise this argument with the trial court or the Appeals Court and so
he has failed to exhaust the remedies available to him in state court as to this claim. 28 U.S.C. §
2254(b)(1). Nevertheless, “[a]n application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts
of the State.” Id. § 2254(b)(2).
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was not able to identify Cabrera, but instead based his identification on what he had heard from
other people). Id. at 3. In other words, Cabrera’s original argument for a mistrial, which he relied
upon in state court, was predicated on state law principles. Cabrera now asserts that the denial of
his motion for a mistrial, and his subsequent appeal, violated his constitutional right to a fair trial.
D. 1 at 7.
The Supreme Court has made clear that “federal habeas corpus relief does not lie for errors
of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764,
780 (1990)). To succeed on his second ground for habeas relief, then, Cabrera would need to show
not only that the Appeals Court erred, but also that its error rose to the level of a due process
violation. See Coningford v. Rhode Island, 640 F.3d 478, 484 (1st Cir. 2011) (noting that “a
misbegotten evidentiary ruling that results in a fundamentally unfair trial may violate due process
and, thus, ground federal habeas relief”). Yet, for an evidentiary ruling to constitute a due process
violation, it must offend “those fundamental conceptions of justice which lie at the base of our
civil and political institutions.” Dowling v. United States, 493 U.S. 342, 352-53 (1990) (internal
quotations omitted) (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)); see Garuti v.
Roden, 733 F.3d 18, 24 (1st Cir. 2013) (recognizing that to form the basis for habeas relief “an
improper ruling on an evidentiary issue in state court ‘must be so arbitrary and capricious as to
constitute an independent due process . . . violation’” (quoting Coningford, 640 F.3d at 484)).
Here, there is nothing in the record—and Cabrera offers no evidence or argument—to suggest that
the trial court, as affirmed by the Appeals Court, erred in denying a mistrial, much less that any
potential error was so egregious that it denied Cabrera his constitutional right to a fair trial. Indeed,
the record reflects that the trial court excluded the challenged testimony and instructed that the

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jurors were not to rely on that statement in reaching their decision. D. 2-1 at 3. For this reason,
Cabrera’s second ground for habeas relief fails.
b)

The Court Does Not Grant Habeas Relief Based upon the State
Court Decisions to Deny Cabrera’s Motion to Suppress

As his third and final ground for seeking habeas relief, Cabrera asserts that the trial court
erred in admitting the statements that Cabrera made to police officers during an interview on
November 6, 2008, immediately prior to his arrest for the murder of Pich. D. 1 at 8. During the
course of the interview, an attorney hired by Cabrera’s father had identified himself to the Lynn
Police as Cabrera’s attorney and had sought to speak with Cabrera. S.A. at 67-69. The police
officers did not inform Cabrera at any point prior to his arrest that his attorney was attempting to
contact him. See id. at 69-74. Cabrera’s trial counsel then sought to exclude the statements from
the interview on the authority of Commonwealth v. Mavredakis, 430 Mass. 848, 861 (2000), which
held that police officers have a duty to inform a suspect in a custodial interview of his attorney’s
efforts to provide legal advice under Article XII of the Massachusetts Declaration of Rights. The
trial court, however, declined to exclude the statements because it concluded that Cabrera gave
them during a non-custodial interview. D. 2-1 at 3-4. The Appeals Court affirmed the trial court’s
ruling. Id. at 4. Cabrera again challenges the trial court’s conclusion that the November 6, 2008
interview was non-custodial.
There is no requirement under federal law that a criminal suspect in either a custodial or
non-custodial interview be informed of his attorney’s attempts to contact him. Moran v. Burbine,
475 U.S. 412, 427-28 (1986) (declining to expand Fifth Amendment rights to “require the police
to keep [a] suspect abreast of the status of his legal representation”). The Supreme Judicial Court,
however, has interpreted Article XII of the Massachusetts Declaration of Rights to encompass
greater protections for criminal suspects than those under the Fifth Amendment. Mavredakis, 430
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Mass. at 859 (determining that Article XIII “requires a higher standard of protection than that
provided by Moran”). Specifically, under Massachusetts law, a suspect in a custodial interview—
but not a non-custodial interview—has the right to be kept apprised of his attorney’s attempts to
contact him. See id. at 861; Commonwealth v. DiGiambattista, 442 Mass. 423, 455 (2004) (citing
Mavredakis for this proposition). Accordingly, the determination of whether the Lynn Police’s
November 6, 2008 interview of Cabrera was custodial or non-custodial is significant as a matter
of state law. The Court may only grant a writ of habeas corpus if it determines that the state court
adjudication violated “clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Here, even if the
Court were to assume arguendo that the trial court was mistaken in determining that Cabrera’s
interview was non-custodial, its decision to admit Cabrera’s statements into evidence would still
not be contrary to federal law. Cabrera’s third ground, thus, does not provide a basis for this Court
to grant habeas relief.
V.

Conclusion and Certificate of Appealability
For the foregoing reasons, the Court DENIES the Petition for a writ of habeas corpus, D.

1.
Cabrera must demonstrate “a substantial showing of the denial of a constitutional right” to
receive a certificate of appealability. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). To do so, he must “demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000); Bly v. St. Amand, 9 F. Supp. 3d 137, 164-65 (D. Mass. 2014). Given the analysis of
the factual record and the applicable law, the Court does not believe that reasonable jurists could
differ as to how the Petition should have been resolved. For this reason, the Court is not inclined
to issue a certificate of appealability, but will give petitioner until June 29, 2017 to file a

13

memorandum not to exceed five (5) pages that addresses whether a certificate of appealability is
warranted. Pursuant to Rule 11(a) governing § 2254 proceedings, if no such memorandum is
received the Court will issue a notice of denial of the certificate of appealability.
So Ordered.
/s/ Denise J. Casper
United States District Judge

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