DOBSON v. BALICKI

Filing 19

OPINION. Signed by Chief Judge Jerome B. Simandle on 4/10/2014. (drw)n.m.

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
KAREN BALICKI,
:
:
Respondent.
:
_____________________________ :
WAYNE G. DOBSON,

Civil Action No. 11-2924 (JBS)
OPINION

APPEARANCES:
Wayne G. Dobson, Pro Se
437073
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
Robin A. Hamett, Assistant Prosecutor
Camden County Prosecutor’s Office
25 North Fifth Street
Camden, NJ 08102
Attorney for Respondent

SIMANDLE, Chief Judge
Petitioner, Wayne G. Dobson, submitted this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and
Respondent submitted an answer to the petition (Docket Item 13),
with the available state court record. For the following
reasons, the petition will be denied.

BACKGROUND
The relevant facts and procedural background are set forth
in the opinion of the Superior Court of New Jersey, Appellate
Division (“Appellate Division”), in Petitioner’s appeal of his
post-conviction relief (“PCR”) motion.1
The following facts are pertinent to our
decision. Defendant was charged under Camden County
Indictment No. 01-06-1802 with first degree murder,
N.J.S.A. 2C:11-3(a)(1) (counts one and two); first
degree robbery, N.J.S.A. 2C:15-1 (count three);
second degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a); and third degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
(count five). On September 6, 2002, defendant pled
guilty to count one, which was amended to charge first
degree aggravated manslaughter, N.J.S.A.
2C:11-4(a)(1).
At the plea hearing, the court asked defendant
if he understood that he had been charged with
recklessly causing the death of Louis Carter (Carter)
under circumstances manifesting extreme indifference
to the value of human life. Defendant said that he
understood the charge. Defendant stated that he had
discussed the plea with his attorney and his attorney
had answered all of defendant's questions. Defendant
additionally stated that he was satisfied with the
services that his attorney had provided to him.

1

Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.”
2

Defendant then provided the court with a factual
basis for his plea. He stated that on December 1, 2000,
he came in contact with Carter. Defendant
acknowledged that he was in possession of a handgun
and it discharged. He admitted that, in his encounter
with Carter, he acted recklessly, without regard to
the consequences of “who got hurt or what happened[.]”
Defendant stated that, when the gun was discharged,
Carter was struck by a bullet and died.
On December 6, 2002, the court sentenced
defendant. The court found aggravating factor three,
N.J.S.A. 2C:44-1(a)(3) (risk that defendant will
commit another offense); six, N.J.S.A. 2C:44-1(a)(6)
(extent of defendant's prior criminal record); and
nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant
and others from violating the law). The court also
found mitigating factor six, N.J.S.A. 2C:44-1(b)(6)
(defendant was willing to make restitution). The
court found that the aggravating factors
substantially outweighed the mitigating factors.
The court sentenced defendant in accordance with
his plea agreement to twenty-three years of
incarceration, with a period of parole ineligibility,
pursuant to the No Early Release Act, N.J.S.A.
2C:43-7.2. The court ordered that the sentence be
served concurrently with a sentence previously
imposed under Camden County Indictment No.
01-06-1898.
Defendant appealed from the judgment of
conviction and challenged his sentence. The appeal
was heard on our excessive sentence calendar. We
affirmed defendant's sentence. State v. Dobson, No.
A-4513-02 (App. Div. Sept. 17, 2003). Defendant
thereafter sought review of our judgment by filing a
petition for certification with the Supreme Court.
The Court denied the petition. State v. Dobson, 179
N.J. 309, 845 A.2d 134 (2004).
(Ra 25, State v. Dobson, A-5120-06T4 (May 4, 2010), at pp. 2-4).

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Petitioner filed a motion for post-conviction relief
(“PCR”), which was denied in a written opinion dated February
6, 2007, by the trial court. The Appellate Division affirmed the
denial of PCR on May 4, 2010 (Ra 25) and the New Jersey Supreme
Court denied certification on July 19, 2010 (Ra 29).
Petitioner filed this habeas petition thereafter, and was
informed of his rights pursuant to Mason v. Meyers, 208 F.3d 414
(3d Cir. 2000). Respondent answered the petition and filed the
relevant state court record. This Court has reviewed all
submissions.
PETITIONER’S CLAIMS
In his petition (Docket Item 1), Petitioner sets forth
three grounds for habeas relief: (1) denial of due process
where plea was not voluntary and there was no adequate factual
basis; (2) ineffective assistance of counsel; and (3)
unconstitutional sentence imposed in violation of the Sixth
Amendment. (Petition, ¶ 12).
Respondent argues that Petitioner procedurally defaulted
on Grounds One and Three, and that he failed to exhaust.
Alternatively, Respondent argues that as to the merits of his
petition, Petitioner is not entitled to habeas relief. (Answer,
Docket Item 13).

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DISCUSSION
A.

Section 2254 Cases
As amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
part:
The Supreme Court, a Justice thereof, a circuit judge, or
a district court shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the ground that
he is in custody in violation of the Constitution or laws
or treaties of the United States.
28 U.S.C. § 2254(a).
With respect to any claim adjudicated on the merits in state
court proceedings, the writ shall not issue unless the
adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d).
A state court decision is “contrary to” Supreme Court
precedent “if the state court applies a rule that contradicts
the governing law set forth in [Supreme Court] cases,” or “if
the state court confronts a set of facts that are materially

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indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [the Court's]
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000)
(O'Connor, J., for the Court, Part II). A state court decision
“involve[s] an unreasonable application” of federal law “if the
state court identifies the correct governing legal rule from
[the Supreme] Court's cases but unreasonably applies it to the
facts of the particular state prisoner's case,” and may involve
an “unreasonable application” of federal law “if the state court
either unreasonably extends a legal principle from [the Supreme
Court's] precedent to a new context where it should not apply
or unreasonably refuses to extend that principle to a new context
where it should apply,” (although the Supreme Court expressly
declined to decide the latter). Id. at 407–09. To be an
“unreasonable application” of clearly established federal law,
the state court's application must be objectively unreasonable.
See id. at 409. In determining whether the state court's
application of Supreme Court precedent was objectively
unreasonable, a habeas court may consider the decisions of
inferior federal courts. See Matteo v. Superintendent, 171 F.3d
877, 890 (3d Cir. 1999).

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The deference required by § 2254(d) applies without regard
to whether the state court cites to Supreme Court or other
federal caselaw, “as long as the reasoning of the state court
does not contradict relevant Supreme Court precedent.” Priester
v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v.
Packer, 537 U.S. 3 (2002); Woodford v. Visciotti, 537 U.S. 19
(2002)), cert. denied, 543 U.S. 1093 (2005).
Further, “Habeas corpus petitions must meet heightened
pleading requirements.” McFarland v. Scott, 512 U.S. 849, 856
(1994). A petition must “specify all the grounds for relief” and
set forth “facts supporting each of the grounds thus specified.”
See 28 U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004).
B.

Ground One
In Ground One of his petition, Petitioner argues that the

trial court violated his constitutional rights by accepting his
“plea of guilty to the amended count of aggravated manslaughter,
where there was no adequate factual basis established to
substantiate the elements under that offense, and where the plea
was not voluntarily and intelligently made with sufficient
awareness of the relevant circumstances and likely
consequences.” (Petition, ¶ 12).

7

Petitioner raised this claim in his PCR motion. The PCR
court found that Petitioner’s claim was nothing more than a “bald
assertion,” and noted that “Petitioner admitted in open Court
he understood the consequences of his plea and was pleading
guilty voluntarily.” (Ra 14 at p. 14). Later, the court found
that “Petitioner admitted that he caused the death of the victim
and acted recklessly with the handgun in doing so, to the point
of manifesting extreme indifference for human life. Those are
the elements of aggravated manslaughter.” (Ra 14 at p. 43).
The standard for determining the validity of a guilty plea
is “whether the plea represents a voluntary intelligent choice
among the alternative courses open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970); see also Boykin v.
Alabama, 395 U.S. 238, 242 (1969) (a guilty plea is invalid only
if it is not the result of the defendant's knowing and voluntary
waiver of his/her rights or if the offered plea has no factual
basis). “Several federal constitutional rights are involved in
a waiver that takes place when a plea of guilty is entered in
a state criminal trial[,]” including the defendant's privilege
against compulsory self-incrimination, his right to trial by
jury, and his right to confront his accusers. Boykin, 395 U.S.
at 243. The voluntariness of a plea “can be determined only by

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considering all of the relevant circumstances surrounding it.”
Brady v. United States, 397 U.S. 742, 749 (1970). Relevant
circumstances include the petitioner's statements during the
plea colloquy:
[T]he representations of the defendant, his lawyer,
and the prosecutor at [the plea] hearing, as well as
any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open
court carry a strong presumption of verity. The
subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary
dismissal, as are contentions that in the face of the
record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73–74 (1977).
In this case, Petitioner’s plea, as summarized in the PCR
court’s Opinion denying relief (Ra 15), is reproduced below, in
relevant part:
THE COURT: Sir, you are charged under Count One, on
December l, 2000, in the City of Camden with
recklessly causing the death of Louis Carter under
circumstances manifesting extrerne indifference to
the value of human life and that's contrary to New
Jersey Statute 2C:11-4a(1). Sir, do you understand
what you are charged with?
DEFENDANT: Yes.
THE COURT: Have you had enough time to discuss the
case with your attorney?
DEFENDANT: Yes.
THE COURT: Has he answered all of your questions?
DEFENDANT: Yes.
THE COURT: And are you satisfied with his services
to you, sir?
DEFENDANT: Yes.
***
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THE COURT: Again sir, has anyone forced you to plead
guilty?
DEFENDANT: No.
THE COURT: Anybody threaten you in anyway, sir?
DEFENDANT: No.
THE COURT: Have you taken any medication, any drugs
or alcohol or anything that would affect your ability
to think clearly here today?
DEFENDANT: No
TIIE COURT: In other words, you understand exactly
what you're doing by pleading guilty, sir?
DEFENDANT: Yes.
(Ra 15 at pp. 13-14, Rta 1 at 8:9-25; 16:25, 17:1-12).
A review of the plea transcript reveals that the state
courts were not unreasonable in their determination that
Petitioner’s plea was voluntary and intelligently submitted.
Petitioner thoughtfully considered the judge’s questions and
understood to what he was pleading guilty. This Court sees no
reason to upset the findings of the state court in accepting the
plea, and finds no violation of Petitioner’s constitutional
rights. He has not demonstrated that the state courts'
acceptance of his plea was contrary to, or involved an
unreasonable application of, clearly established federal law,
or based upon an unreasonable determination of the facts in light
of the evidence presented. Petitioner is not entitled to relief
on this claim.

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C.

Ground Two
1.

Standard for Ineffective Assistance of Counsel

The Counsel Clause of the Sixth Amendment provides that a
criminal defendant “shall enjoy the right ... to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI.
The right to counsel is “the right to effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)
(emphasis added).
To prevail on a claim of ineffective assistance of counsel,
a habeas petitioner must show both that his counsel's
performance fell below an objective standard of reasonable
professional assistance and that there is a reasonable
probability that, but for counsel's unprofessional errors, the
outcome would have been different.

See Strickland v.

Washington, 466 U.S. 668, 687, 694 (1984). A “reasonable
probability” is “a probability sufficient to undermine
confidence in the outcome.” Id. Counsel's errors must have been
“so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. at 687. “When a defendant
challenges a conviction, the question is whether there is a
reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” Id. at 695.

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The performance and prejudice prongs of Strickland may be
addressed in either order, and “[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice ... that course should be followed.” Id. at 697.
There is “a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. As a general matter, strategic
choices made by counsel after a thorough investigation of the
facts and law are “virtually unchallengeable,” though strategic
choices “made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at
690–91. If counsel has been deficient in any way, however, the
habeas court must determine whether the cumulative effect of
counsel's errors prejudiced the defendant within the meaning of
Strickland. See Berryman v. Morton, 100 F.3d 1089, 1101–02 (3d
Cir. 1996).
The Strickland two-part standard applies to ineffective
assistance claims arising out of the guilty plea process. See
Hill v. Lockhart, 474 U.S. 52, 57–9 (1985). In the context of
guilty pleas, the first element of the Strickland test remains
“nothing more than a restatement of the standard of attorney

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competence.” Hill, 474 U.S. at 58. The “prejudice” requirement,
“on the other hand, focuses on whether counsel's
constitutionally ineffective performance affected the outcome
of the plea process. In other words, in order to satisfy the
‘prejudice’ requirement, the defendant must show that there is
a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going
to trial.” Hill, 474 U.S. at 59. See also Weeks v. Snyder, 219
F.3d 245, 257 (3d Cir.), cert. denied, 531 U.S. 1003 (2000).
2.

Petitioner’s Claims

Petitioner argues in his petition that he was denied the
effective assistance of counsel when: (1) counsel failed to
consult adequately with the defendant in preparing his case, and
failed to investigate and pursue a passion provocation defense;
(2) counsel failed to investigate and pursue a defense based on
imperfect self-defense; (3) counsel failed to contact a key
witness who could have aided in the defense; and (4) counsel
failed because he did not argue for mitigating factor four at
the time of sentencing. (Petition, ¶ 12).
These claims were raised in Petitioner’s PCR motion. Citing
and summarizing Strickland, the PCR court found that Petitioner

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did not have ineffective assistance of counsel (Ra 15 at p. 15).
The PCR court’s written opinion, sets forth the reasoning:
In his pro se brief, Petitioner alleges he thinks
trial counsel should have investigated the potential
defenses of passion/provocation manslaughter,
claiming there was an altercation between him and the
victim. Again, Petitioner did not include an
affidavit supporting this assertion. Also, while
trial counsel has a duty to make reasonable
investigations, he was not required to pursue
everything Petitioner alleged. If trial counsel
believed Petitioner's self-proclaimed account of
self-defense would not be helpful to the defense
strategy, he was not obliged to pursue it. The record
indicates that Petitioner initiated the altercation
with the victim, followed the victim to the victim's
front porch, and escalated the altercation by pulling
out a handgun. Petitioner would have had to testify
at trial to raise the defense of self-defense. Trial
counsel may have thought that a jury would not find
Petitioner's testimony credible, since by
testifying, the jury would find out that Petitioner
had a prior conviction of aggravated assault and
robbery along with the fact that his testimony would
have been self-serving. Looking at the totality of the
circumstances, without the advantage of hindsight,
trial counsel appears to have made a reasonable
professional judgment in not pursuing a self-defense
theory or seeking a passion/provocation plea.
Petitioner also asserts in his pro se brief,
trial counsel should have investigated and
interviewed certain witnesses that would have helped
his theory of self-defense. However, Petitioner did
not attach any affidavits from those witnesses,
explaining what they would have said. Petitioner
asserts in his brief that Mark Wise would have said
Mr. Adams (victims' friend) told Mr. Wise, after the
homicide, he had drugs on him and that was why he gave
a statement alleging Petitioner robbed the victim.
Also, Petitioner alleges further investigation of Ms.
Campbell should have been done, since she said in her
statement to police the victim was using drugs at the
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time of his homicide. Petitioner asserts this is
relevant as to whether he could have asserted
self-defense. Again, trial counsel is not required to
pursue what he believes are fruitless stories. Since
Ms. Campbell gave a statement that is contained in the
discovery, trial counsel most likely read it and made
a strategic decision that it was not strong enough to
support a valid defense.
The lack of affidavits coupled with the strong
presumption trial counsel rendered adequate
assistance and to have made all significant decisions
in the exercise of reasonable professional judgment,
Petitioner cannot show that counsel made a "gross
error." In fact, the record shows that in large part,
counsel's recommendation was a wise choice, since the
Petitioner was facing significantly more prison time
if he went to trial and was convicted. The plea bargain
called for a concurrent sentence to the sentence he
was already serving, and increased his sentence only
four years for the crime of aggravated manslaughter.
Additionally, the record shows that during the
plea hearing, through its own inquiry, the Court
assured that Petitioner's trial attorney had answered
all of Petitioner's questions and that Petitioner was
satisfied with his legal representation. This would
have been an opportune time for Petitioner to express
his displeasure with his trial counsel. Petitioner
did not express he did not understand the implications
of pleading, nor did he express that he wished to go
to trial. Also, the Court specifically questioned
Petitioner about his satisfaction with the assistance
provided to him by counsel. The plea transcript
indicates that Petitioner was satisfied with his
counsel . . . .
(Ra 15 at pp. 18-20). The Appellate Division affirmed the PCR
court’s “thorough and comprehensive opinion,” and citing
Strickland, added “defendant failed to establish that his
attorney conducted an inadequate investigation of the matter,
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thereby denying him the effective assistance of counsel.” (Ra
25 at p. 8).
This Court finds no reason to upset the plea entered by
Petitioner based on ineffective assistance of counsel. Besides
the examination conducted by the state courts as to Petitioner’s
arguments, Petitioner himself stated at his plea that he was
“satisfied with [his attorney’s] services” and that his attorney
answered all of his questions. (Rta 1 at 8:18-25 - 9:1). Further,
Petitioner has not shown that counsel’s decisions in handling
his case as to defenses and witnesses were anything other than
sound trial strategy. Finally, this Court agrees that Petitioner
has not demonstrated a reasonable probability that he wouldn’t
have pled guilty had counsel performed differently, especially
considering the sentencing consequences that he faced had he
gone to trial.
The Court is satisfied that none of the ineffective
assistance of counsel claims presented by Petitioner in Ground
Two of his petition are sufficient to warrant habeas relief. As
the state courts correctly relied on Strickland, the state
courts' decisions were neither contrary to, nor involved an
unreasonable application of, clearly established federal law.
An examination of the record also reveals no evidence that they

16

were based on an unreasonable determination of the facts
presented in the state court proceedings. Petitioner is not
entitled to relief on this ground.
D.

Ground Three
In Ground Three of his petition, Petitioner argues that he

is entitled to habeas relief because the sentencing court
“increased his sentence beyond the prescribed statutory maximum
solely upon facts that were not admitted by the defendant or
submitted to a jury and, as such, violates defendant’s Sixth
Amendment right to a jury trial.” (Petition, ¶ 12).
This Court notes from the onset that a federal court's
ability to review state sentences is limited to challenges based
upon “proscribed federal grounds such as being cruel and
unusual, racially or ethnically motivated, or enhanced by
indigencies.” See Grecco v. O'Lone, 661 F. Supp. 408, 415 (D.N.J.
1987) (citation omitted). Thus, a challenge to a state court's
discretion at sentencing is not reviewable in a federal habeas
proceeding unless it violates a separate federal constitutional
limitation. See Pringle v. Court of Common Pleas, 744 F.2d 297,
300 (3d Cir. 1984); see also 28 U.S.C. § 2254(a); Estelle v.
McGuire, 502 U.S. 62, 67 (1991); Lewis v. Jeffers, 497 U.S. 764,
780 (1990).

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Here, Petitioner was sentenced in accordance with state law
pursuant to his plea agreement. Petitioner has not provided this
Court with any justification to grant habeas relief and upset
the state court proceedings.
However, to address Petitioner's claims more fully, this
Court notes that in Apprendi v. New Jersey, 530 U.S. 466, 471,
490 (2000), pursuant to the Sixth Amendment right to trial by
jury, the Supreme Court held that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” In Blakely v.
Washington, 542 U.S. 296 (2004), the Supreme Court overturned
a sentence imposed under Washington state's sentencing system,
explaining that “the relevant statutory maximum is not the
maximum sentence a judge may impose after finding additional
facts, but the maximum he may impose without any additional
findings.” 542 U.S. at 302 (internal quotations omitted).
In State v. Natale (“Natale II”), 184 N.J. 458 (2005), the
New Jersey Supreme Court evaluated the constitutionality of the
New Jersey sentencing scheme in light of the Apprendi line of
cases, and found:

18

Our Code provisions make clear that, before any
judicial factfinding, the maximum sentence that can
be imposed based on a jury verdict or guilty plea is
the presumptive term. Accordingly, the “statutory
maximum” for Blakely and Booker purposes is the
presumptive sentence.
Natale, 184 N.J. at 484 (emphasis added). Because the Code's
system allowed for sentencing beyond the statutory maximum
presumptive term, the New Jersey Supreme Court found the system
unconstitutional and determined that the appropriate remedy
would be to follow the lead of Booker and abolish the presumptive
terms. “Without presumptive terms, the ‘statutory maximum’
authorized by the jury verdict or the facts admitted by a
defendant at his guilty plea is the top of the sentencing range
for the crime charged, e.g., ten years for a second-degree
offense.” Natale II, 184 N.J. at 487 (citation omitted)
(emphasis added).
The Court of Appeals for the Third Circuit generally has
held that the rules announced in the Apprendi line of cases are
not applicable retroactively to cases on collateral review. See
generally, United States v. Swinton, 333 F.3d 481 (3d Cir.),
cert. denied, 540 U.S. 977 (2003) (holding that Apprendi does
not apply retroactively to cases on collateral review).
Similarly, the New Jersey Supreme Court has held that the rule
it announced in Natale II is applicable retroactively only to
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cases in the direct appeal pipeline as of the date of that
decision. See Natale II, 184 N.J. at 494 (holding that “’Pipeline
retroactivity'-applying our holding to defendants with cases on
direct appeal as of the date of this decision and to those
defendants who raised Blakely claims at trial or on direct
appeal-best balances principles of fairness and repose”).
In this case, Petitioner's direct appeal concluded in 2004,
prior to the decision in Natale II. See State v. Dobson, 179 N.J.
309, 845 A.2d 134 (2004). Thus, his claim that his sentence
violated the mandates of Blakely is meritless, as Blakely would
not apply to his case, which was not in the direct appeal
“pipeline” as of the Natale II decision.

Petitioner is not

entitled to habeas relief on this claim.
E.

Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice

or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254. A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his

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constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003).
Here, Petitioner has failed to make a substantial showing
of the denial of a constitutional right.

No certificate of

appealability shall issue.
CONCLUSION
For the reasons set forth above, the Petition for a Writ
of Habeas Corpus is denied. No certificate of appealability will
issue.
An appropriate Order follows.

s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:

April 10, 2014

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