CORDERO v. WARREN
Filing
35
OPINION. Signed by Judge Jose L. Linares on 2/26/14. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MISAEL CORDERO,
Petitioner,
Civil Action No.
v.
GREG BARKOWSKI,
11-6114
(JLL)
OPINION
et al.,
Respondents.
APPEARANCES:
Misael Cordero, Pro Se
#257533
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
John Anderson
Essex County Prosecutor’s Office
50 West Market Street
Newark, NJ 07601
Attorney for Respondents
LINARES, District Judge
Petitioner Misael Cordero submitted this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court
conviction, and Respondents submitted an answer to the petition
(BCE
No. 11), with the available state court record. Petitioner also filed
a traverse to the answer
(ECF No.
the petition will be denied.
33)
.
For the following reasons,
BACKGROUND
The relevant facts are set forth in the opinion of the Superior
Court of New Jersey, Appellate Division (“Appellate Division”),
Petitioner’s direct appeal.’
See Respondents’
Exhibit
(“RE”)
in
6.
In late April or early May 1991, knowing that Elias
Lopez was going to be returning from Puerto Rico with a
large amount of cocaine, defendant and Santiago plotted to
kill him and to steal the cocaine. Defendant and Santiago
agreed that Santiago would kill Lopez in exchange for
$20,000, which would be paid after the drugs were sold. On
May 6, 1991, defendant and Santiago requested that Ruiz dig
a hole in the dirt floor of the premises at 133 Parker
Street, Newark, because they were “going to kill a guy.”
Ruiz agreed to dig the hole in exchange for $400.
On May 7, 1991, Lopez arrived at defendant’s apartment
at 126 Parker Street, Newark, to take part in a scheduled
drug sale. Inside defendant’s apartment were defendant and
his girlfriend, Cynthia Cordero. Santiago remained outside
the apartment. Having observed Lopez arrive, Santiago went
to the basement of 126 Parker Street, left a bag containing
$2,000 in cash and newspapers cut to resemble stacks of cash
on a table, and then joined the others upstairs in
defendant’s apartment. After defendant and Lopez “tested
the coke,” defendant and Santiago lured Lopez to the
basement where Lopez anticipated to be paid. As Lopez
proceeded into the basement, Santiago shot him in the back
of the head, killing him. Defendant took the money, drugs,
and Lopez’s car keys. After the murder, defendant and
Cynthia drove to her mother’s house, where defendant
showered and changed into new clothes purchased by Cynthia
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
with money provided by defendant. Defendant, after having
returned to 126 Parker Street with Jose Carrabollo, a
friend, directed Carrabollo to clean the basement and wrap
Lopez’s body. Defendant and Santiago left the basement in
order to dispose of Lopez’s car by abandoning it in East
Orange. Upon their return to the place of the murder,
Santiago and Carrabollo placed Lopez’ s body into the trunk
of defendant’ s car, drove it across the street to 133 Parker
Street, and buried it in the basement grave. At a later
date, cement was poured over the dirt floor in the basement
at 133 Parker Street.
In early 1999, when Cynthia Cordero was questioned as
part of an investigation into an unrelated homicide, she
provided a formal statement about Lopez’s murder. In April
1999, the police executed search warrants at 126 and 133
Parker Street. Lopez’s remains were recovered from the
basement of 133 Parker Street, after which an autopsy
confirmed the remains as being that of Lopez. The autopsy
further confirmed the entrance and exit wounds in the back
of the neck and forehead areas of Lopez’s skull. The cause
of death was determined to have been a gunshot wound to the
head.
(RE 6 at pp.
1-2).
On May 13, 2002, after a jury trial, Petitioner was found guilty
of first—degree murder,
first-degree robbery,
contrary to New Jersey state law.
31,
2002 to a life sentence,
ineligibility.
and other charges,
Petitioner was sentenced on July
with thirty years of parole
Petitioner’s sentence was upheld by the Appellate
Division on August 15, 2006 (RE 6)
On December 8, 2006, the New Jersey
.
Supreme Court denied Petitioner’ s petition for certification (RE 7B)
Petitioner filed a motion for post—conviction relief (“PCR”) in
the trial court which was denied on August 26,
2008
(RE 11)
denial was upheld by the Appellate Division on October 1,
3
.
2010
The
(RE
16)
.
On September 7,
2011,
the New Jersey Supreme Court denied
certification of Petitioner’s petition for review
(RE 20).
Petitioner filed this petition on or about October 17, 2011 (ECE
No.
1)
.
Respondents filed a Response and the relevant state court
record on June 1, 2012 (ECF Nos. 11—32), to which Petitioner replied
on August 20,
2012
(ECF No.
33)
In his petition before this Court, Petitioner seeks relief under
28 U.S.C. § 2254, arguing:
(1) he was denied his right to effective
assistance of counsel;
jury selection procedures resulted in a
(2)
denial of Petitioner’s constitutional rights; and
(3)
failure to
correct the testimony of a state witness through the use of an
interpreter violated Petitioner’s constitutional right to a fair
trial and due process
(Pet.,
¶ 13).
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
4
court proceedings, § 2254 further provides that the writ shall not
issue unless the adjudication of the claim:
(1) resulted inadecisjon 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 indistinguishable from a decision
of th[e] Court and nevertheless arrives at a result different from
[the Court’s] precedent.” Williams v.
(2000)
Taylor,
(O’Connor, J., for the Court, Part TI)
.
529 U.S. 362,
405—06
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.” Id. at 407—09.
1
To be an
“[A] state court adjudication fails the ‘unreasonable
application’ test only if the state court identified the correct
governing legal rule but unreasonably applied it to the particular
case or if the state court either unreasonably extended a legal
principle from Supreme Court precedent to a new context in which it
should not apply or where it unreasonably refused to extend such a
5
“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
Superintendent, 171 F.3d 877, 890
V.
(3d Cir. 1999); see also Williams
v. Ri cci, Civ. Action No. 09-1822 (DRD), 2012 WL 6554371, *14 (D.N.J.
Dec.
14,
2012) (slip copy) (citing Matteo)
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.” Pri ester 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).
Finally, a pro se pleading is held to less stringent standards
than more formal pleadings drafted by lawyers. See Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972)
A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance. See Rainey v.
principle to a new context in which it should apply.” Greene v.
Palakovich, 606 F.3d 85 104 n.14 (3d Cir. 2010) (quoting Fountain v.
Kyler, 420 F.3d 267, 273 (3d Cir. 2005))
6
Varner, 603 F.3d 189, 198 (3d Cir. 2010); Royce v. Hahn, 151 F.3d 116,
118
(3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721—22
(3d Cir.
B.
1989).
Petitioner’s Habeas Claims Will Be Denied.
1.
Ineffective Assistance of Counsel
Petitioner alleges that trial counsel was ineffective because
of lack of preparation and investigation, failure to object to false
testimony, failure to produce witnesses, and failure to consult with
Petitioner
(Pet.,
¶ 13A).
The Counsel Clause of the Sixth Amendment provides that a
criminal defendant “shall enjoy the right
of Counsel for his defence.” U.S.
Const.
...
to have the Assistance
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,
unprofessional errors,
but for counsel’s
the outcome would have been different.
Strickland v. Washington, 466 U.S. 668,
687, 694
See
(1984); McBride v.
Superintendent, SClHoutzdale, 687 F.3d92, 102 (3dCir. 2012) (citing
Strickland)
.
A “reasonable probability” is “a probability sufficient
7
to undermine confidence in the outcome.” Id. at 694. CounsePs 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. 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
Id.
...
that course should be followed.”
at 697.
An evidentiary hearing was held by the PCR court to assess
Petitioner’s ineffective assistance of counsel claims.
trial counsel, John McMahon, testified.
Defendant’s
He stated that he prepared
a defense for Petitioner attacking the credibility of the
co-defendants who were among the State’s witnesses
After hearing the testimony,
opinion
(RE 11)
.
(RE 43).
the PCR court issued a written
Citing Strickland,
the PCR judge fully examined
Petitioner’ s ineffective assistance of counsel claims and denied PCR
finding:
In sum, Cordero has failed to demonstrate by a
preponderance of the evidence that had appellate and trial
counsel raised the issues Cordero now asserts, the result
would have been different.
Among those issues were a jury
instruction regarding the co—defendants’ plea agreement,
investigation into defenses and witnesses, failure to move
for dismissal of the counts barred by the statute of
limitations, and failure to make objections to allegedly
8
inadmissible hearsay testimony and testimony about
religious beliefs.
Constitutionally defective
representation that affected the outcome must be proved,
and this Cordero has failed to do so [sic]
The record does
not support a fair inference that either McMahon or Blum’ s
performance was in any way inadequate or below a level of
reasonable competence.
The impact of Cordero’s claims of
error could not have had a prejudicial impact on the outcome
of the trial or appeal.
.
(RE 11 at pp.
8,
21)
The Appellate Division also considered the counsel claims on
appeal of the PCR decision and found:
We have considered the arguments raised by defense counsel
in Points I, II, and III of her brief and by defendant pro
se in Points I and II of his supplemental brief in light
of the record and applicable law. We are satisfied that none
of them are of sufficient merit to warrant discussion in
a written opinion. R. 2:11—3(e) (2). On those issues, we
affirm substantially for the reasons expressed by Judge
Goldman in his thoughtful written decision of August 26,
2008.
(RE 16)
Petitioner’ s claim that he could have had a better plea deal had
counsel reacted quicker to dismiss time barred charges does not
satisfy the Strickland standard, as the time barred charges did not
include the murder charge-- the charge to which Petitioner would
have
pled.
Although Petitioner argues in his traverse that he was
prejudiced because the time barred charges were not dismissed,
Traverse,
pp.
5—6),
(see
Petitioner has not demonstrated a reasonable
probability that the outcome would have been different had the time
9
barred charges been dismissed,
as found by the state court.
The Appellate Division found on direct appeal (RE 6 at pp. 2 6—33)
that the trial court did not err in failing to discover and dismiss
the time barred claims, and the PCR judge found no prejudice to satisfy
the second prong of Strickland (RE 11)
Petitioner has not shown prejudice.
.
This Court agrees that
Thus,
as Petitioner fails to
meet the prejudice prong of Strickland, performance does not have to
be addressed.
See Strickland, 466 U.S. at 697.
This claim does not
warrant habeas relief.
As to Petitioner’s claim that counsel failed to prepare
concerning an earlier investigation, the state courts accepted that
counsel’s use of the information concerning the earlier investigation
was to attack the credibility of a State witness and constituted trial
strategy (RE 44, 24T34—9 to 37—18). The state court’s finding after
the PCR hearing that counsel’s use of the information was trial
strategy was reasonable and therefore in accordance with Strickland.
Petitioner’s claim that trial counsel failed to object to
testimony concerning a witness’ religious beliefs was addressed at
the evidentiary hearing held by the state PCR court.
Counsel
testified that for strategic reasons he did not object to the
testimony because he thought it helped Petitioner
(RE 44,
43T26—21
to 25).
Likewise, counsel’s failure to call a witness who was serving
10
a sentence for double homicide and allegedly knew nothing about the
murder
(RE 11 at p.
12, was deemed trial strategy. The witness had
no personal knowledge of the murder. Everything he knew, which was
not much, he learned from one of petitioner’s co-defendants, Javier
Santiago.
He did not know the names of the alleged victim or the
co—conspirator. He did not even know when the murder occurred.
Moreover,
when asked,
he testified that he did not even believe
Santiago’s story was true. The PCR Court properly concluded that the
proposed witness would not have been beneficial to the petitioner.
(RE 11 at p.
12).
The record does not support Petitioner’s claims that trial
counsel failed to consult and prepare for trial.
As noted by the PCR
judge, “[t]he alleged failure of the trial counsel to investigate all
claims on his client’ s behalf and to produce all witnesses is far from
professional misconduct.”
(RE 11 at p.
13)
.
The PCR court found:
Many of the items complained of are minor details which
would not be useful in a “cold case.” Thus, it is
reasonable to see why McMahon made the judgments that he
did while proceeding with this case even though
substantial portions of the trial file, including
McMahon’ s trial notes were missing by the time of the PCR
hearing. His judgments are afforded heavy deference.
Furthermore, Cordero, himself, admits that he could only
speculate as to the additional evidence that would have
been produced had McMahon conducted the investigation he
now complains did not occur.
(RE 11 p 13)
Here, a review of the record, including the transcripts of trial
11
and the state court decisions, which cited the proper United States
Supreme Court precedent in Strickland, were neither contrary to, nor
involved an unreasonable application of, clearly established federal
law, nor were they based upon an unreasonable determination of the
facts in light of the evidence presented.
Thus,
Petitioner is not
entitled to relief on these claims.
2.
Claim Regarding Jury Selection
Petitioner alleges that the trial court erred in denying eight
challenges for cause,
“forcing defendant to spend peremptory
challenges on those jurors.”
(Pet.,
¶ 13B).
The trial court also
denied additional questioning to determine cause as to one juror, and
erred in denying Petitioner’s two motions to discharge the jury (Pet.,
¶ 133)
The Appellate Division explained these claims in detail in
Petitioner’s direct appeal:
Defendant argues that the trial judge erred by failing
to remove potential juror Bernard Carter for cause, thereby
forcing defendant to expend his last peremptory challenge
when removing the juror. Defendant contends that not only
because of the result of trial judge’s inaction, but also
because of his failure to grant defendant’s request for
additional peremptory challenges, defendant “was unable to
dismiss two other objectionable jurors, Audrey Reese and
Diane Guarino, who ultimately sat on the jury.”
*
*
*
At a sidebar conference during the voir dire, juror
Carter advised that “although [he did not] think it would
affect [his] judgment,” his thirty-five year old daughter
had been abducted and murdered by a serial killer in
12
Florida, fifteen months earlier. Having received that
advice from Carter, the judge asked Carter whether he was
“sure it wouldn’t have any impact on [his] ability to be
fair and impartial in this case[?]” to which Carter
responded, “[n]o, sir, it wouldn’t.” Following up on that
response, the judge asked “[w]ould having a case involving
a homicide in any way cause you pain, discomfort sitting
here listening to testimony perhaps about somebody being
killed and-and be a painful experience for you in light of
what—in light of your recent painful experience?” Carter
answered: “At this moment, no, I don’t think it would.”
Concerned about the impact that the Florida murder may have
had upon Carter, defendant requested the trial judge to
remove the juror for cause. The motion was denied.
Questioned again the following day, Carter maintained that
his daughter’s homicide would not affect his ability to be
fair and impartial. After defendant used peremptory
challenges to excuse thirteen other potential jurors,
defendant used his last peremptory challenge to excuse
Carter. Defendant had requested additional peremptory
challenges, but his request was denied.
State v.
**
Cordero, 2006 WL 2346306 (N.J. App. Div. Aug. 15, 2006)
at
34
The Appellate Division examined the claim, first, noting that
under the Sixth Amendment of the United States Constitution,
impartial jury is a necessary condition to a fair trial.”
(citations omitted)
.
“‘an
Id. at *4
The Court noted that under New Jersey law:
“A
trial judge’s decision whether to remove a juror for cause will not
be reversed unless there has been an abuse of discretion.”
at *5
See id.
(citation omitted)
For purposes of § 2254 review, the United States Supreme Court
has held:
“In reviewing claims of this type, the deference due to
[trial] courts is at its pinnacle: ‘A trial court’s findings of juror
13
impartiality may be overturned only for manifest error.’” Skilling
v.
United States,
(quoting Mu’Min v.
561 U.S.
358,
Virginia,
,
500 U.S.
130 S. Ct.
415,
428
2896,
2923
(2010)
(1991)).
The Appellate Division noted the trial judge’s observations:
On the following day, defendant raised the
possibility that by allowing Carter to sit on the jury,
there was a risk that Carter would sympathize with family
members of the victim when they testify, and perhaps would
be unable to adhere to his oath. Although this was a valid
concern, Carter expressed an ability to keep his personal
situation separate, and the judge was satisfied that he
would. The judge, finding Carter to be “intelligent,”
“straightforward,” “open,” and “honest,” stated: “I’m
satisfied beyond any reasonable doubt that this juror’s
discussion of his ability to be fair and impartial is
honest, truthful, and genuine in every respect.”
The judge concluded by saying:
Again, this is—this is really remote. And
when I take its remoteness on one hand-take the
remoteness of the criminal incident on the one
hand and I take the similarity, I also take the
fact the-the extenuation of the concept of
victim and I take all those factors into
consideration, the bottom line is—is that while
I appreciate the language in
[ Singletary j
and I agree that if I had any doubt at all, if
I had any doubt of this juror’s sense of fairness
or mental integrity, if I had the slightest iota
of doubt, if I was not convinced beyond a
reasonable doubt that this juror could and would
be fair, I would agree with you.
...
But if I[am] honestly convinced and
genuinely convinced that there is no basis and
that I[am] convinced beyond a reasonable doubt
based upon my evaluation of this juror’s
responses that he can and would and will be fair,
14
I can[not]
cause.
in good conscience excuse him for
Jurors have a constitutional right as well
to be jurors and not to be excused for [any]
reason at all. And I [am] satisfied this juror can
and should be a fair juror.
We are satisfied that the trial judge carefully considered
Carter’s ability to serve as a juror, and no abuse of
discretion existed in denying defendant’s request that
Carter be dismissed for cause.
Cordero,
2006 WL 2346306 at **5_6.
Here, as in Skilling, the trial judge “had looked [each of these
jurors] in the eye and
...
heard all [their answers and] found [their]
assertions of impartiality credible.” Id.
internal quotation marks omitted)
.
at 2924
(citations and
Under these circumstances, the
New Jersey courts’ adjudication of Petitioner’s inadequate voir dire
claim was not contrary to, or an unreasonable application of, Skilling
or other Supreme Court holdings. Petitioner is not entitled to relief
on this claim.
3.
Interpreter Claim
In Ground Three of his petition, Petitioner argues that a portion
of a state witnesses’ testimony was translated incorrectly, rendering
the trial unfair.
Specifically,
after review of the videotaped
testimony, “two Court appointed interpreters agreed that corrections
were needed,” however when it “came time to make such corrections,
15
the interpreters changed their minds and petitioner was denied the
opportunity to explain the correct meaning of the testimony to the
jury.”
(Pet.,
¶ 13C).
The Appellate Division examined this claim on direct appeal and
found it to be without merit to warrant discussion
WL 2346306
(N.J. App.
Div. Aug.
15,
Cordero,
2006
2006).
The transcripts of the trial reveal that Petitioner disagreed
with an interpretation that one of the courtroom interpreters stated
during the trial, in particular
the difference between “he” was going
to kill me versus “they” were going to kill me.
9)
.
Petitioner argues that:
“The incorrect translation accused
petitioner of threatening three state witnesses
keep them from talking,
11T21-1 to
(RE 31,
.
in order to
On the other hand, if the correction would
have been made the defendant would not have been branded as one of
the individuals who made the threats.”
(Pet.,
¶ 13(C)).
The interpreters supervisor explained at sidebar:
THE INTERPRETER: The reason why I asked to speak to
you for a moment outside the jury is because the topic of
controversy last Thursday was whether it was they were
going to kill me or he was going to kill me. TodayMiss Marte
[another interpreter] is confirming part of what I was
convinced I heard last Thursday, that the part of the answer
in question says he said that if I didn’t say anything to
anybody nothing was going to happen but if I talked, they
were going to kill me and Samuel Soto and Nereida, his wife.
So later in the question it does change to they were going
to kill me.
(RE 31,
11T15-9 to 16-17) (emphasis added).
16
____
___,
Defense counsel asked that Petitioner be permitted to interpret
what he believed said,
llTl7—20 to 23)
but the Court denied the request
(RE 31,
The interpreter reviewed her interpretation and
.
concluded that her initial interpretation was correct (RE 31, 11T18-4
to 14;
llT2l-l to 9)
Here, although Petitioner may disagree with the interpretation,
he does not establish that his constitutional rights were violated
by the examination of the interpretation,
occurred.
Certainly,
or that any wrongdoing
he has not established that the process in
figuring out the interpretation compromised the fairness of his
trial.
Nor has Petitioner established that the trial court’s actions
were an unreasonable application of clearly established federal
law,
as determined by the United States Supreme Court.
Tucker,
No.
,
2012 WL 7051038
(N.D.
Fla.
Cf.
Sept.
Kitchen v.
20,
2012)
(“Petitioner has pointed to no Supreme Court precedent, in his state
court pleadings or here, holding that a court—appointed interpreter’s
translation of witnesses’
examination under the circumstances
presented here violates a defendant’s federal constitutional
rights
to due process and confrontation. The undersigned has not
found any
such precedent.”);
see also Nguyen v.
839278, *j9 (N.D. Cal. Mar. 30, 2009)
Tilton,
No.
(“Petitioner
2009 WL
.
.
.
claims that
denying the prosecution’s witness an interpreter somehow
violates the
Petitioner’s constitutional rights
17
.
.
.
.
However,
there is no
clearly established federal law extending any such right to
witnesses.”)
C.
As such, this claim does not warrant habeas relief.
2
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 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.
Accordingly,
no certificate of
appealability shall issue.
2
Respondents’ Affirmative Defense that Petitioner’s case
is
time—barred is denied, as the time that the PCR is pending is
tolled
for purposes of the time limitations on habeas relief.
See 28 U.S.C.
§ 2244 (d) (2).
18
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CD
Di
Cl)
0
CD
0
hi
c-h
z
0
H
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