CORDERO v. WARREN

Filing 90

OPINION. Signed by Chief Judge Jose L. Linares on 2/21/2019. (dam, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MISAEL CORDERO,
Civil Action No. 11-6114 (JLL)

Petitioner,
v.

OPINION

:

CHARLES E. WARREN, et ctl.,
Respondents.

LINARES, Chief District Judge:

Presently before the Court are the plea-related ineffective assistance of counsel claims of
Petitioner Misael Cordero’s petition for a writ of habeas corpus, which were remanded to this
Court by the Court of Appeals. See Cordero v. Warren, 673 F. App’x 254, 25$ (3d Cir. 2016).
Following a hearing in this matter, (see ECF No. $5), Petitioner filed a brief in support of his
claims, (ECF No. $9), and the state filed a brief in opposition, (ECF No. $7). The parties also
filed a joint stipulation of facts not in dispute.

(ECF No. $$).

For the following reasons,

Petitioner’s remaining claims are denied, and Petitioner is denied a certificate of appealability.
I.

BACKGROUND

Because this Court has previously summarized the background of Petitioner’s conviction
and trial in the Court’s previous opinion, (see ECF No. 35), this Court will only recount the fact

evinced at the evidentiary hearing on Petitioner’s sole remaining set of claims, i.e., his claims in
which he alleges that his trial counsel misadvised him as to several alleged plea agreements and

that the resulting ineffective assistance of counsel led to his turning down those agreements when
he otherwise would have pursued them. The parties are largely in agreement as to the background

facts of this matter other than whether a plea offer was ever made, and have stipulated to many of

these facts. (See ECF No. $8).
Petitioner, Misael Cordero, was sentenced in September 1993 to ten years imprisonment
for possession with intent to distribute a controlled substance in a school zone.

2).

(ECF No. 88 at

¶

Petitioner was thereafter convicted in June 1994 of further drug distribution related offenses

which resulted in his receipt of a forty-year extended-term sentence. (Id. at ¶ 3). Over six years
later, following the coming forward of certain witnesses, Petitioner was indicted on three sets of
homicide charges in three separate indictments.

(Id.

at

¶ 4-5).

Petitioner was also indicted on

several underlying robbery and weapons charges related to one of those homicides. (Id. at

¶ 4).

Petitioner was tried and convicted of all charges of the relevant indictment in this matter, including
the homicide charges, robbery charges, and weapons offenses.

(id.

at

¶ 6).

Petitioner received

a life sentence on the homicide counts, to run concurrent with his prior convictions, with a thirty—
year parole disqualifier. (Ic!.). Petitioner’s non-homicide charges. however, were dismissed at
sentencing as the trial court found them barred by the relevant statcite of limitations. (Id.). The
parties agree that, because the murders were committed before the drug charges resulting in
Petitioner’s 1994 conviction, Petitioner was entitled at sentencing to 3,247 days of gap time credit,
which would have reduced Petitioner’s overall sentence had he not received a life sentence, but
would

not

have reduced any period of parole ineligibility. (Id. atl 17-19). Because Petitioner

received a life sentence, however, that gap time was of no benefit to Petitioner following his
conviction at trial.

(id.).

Petitioner was initially represented by William Fitzsimmons, who was then a member of
the Public Defender’s Office, while this matter was prosecuted by now retired prosecutor Edward

-3

Gordon.

(id.

at ¶f 7—8). Mr. Gordon was assigned, however, to all three of Petitioner’s homicide

indictments, and tried the two that went to trial.

(id.

at

¶ 7).

In August 2001, Mr. Fitzsimmons

left the Public Defender’s Office. and Petitioner’s case was reassigned to John McMahon, who
was then the chief trial attorney for the Essex Region of the Public Defender’s Office. (Ic!. atl] 910). Mr. McMahon represented Petitioner through his trial and sentencing. (Ic!.).
All three attorneys who testified at Petitioner’s evidentiary hearing generally agreed as to
the way the Essex County Prosecutor’s Office handled plea negotiations and offers at the time
Petitioner was tried. As Mr. Gordon explained,
Sometimes, not in every case[, s]ometimes depending on the
defense attorney, [the defense attorney] would suggest something,
anti if [the prosecutor] thought it was something that [the
prosecutor’s] supervisors could live with and the prosecutor
would go speak to the supervisor, the chief prosecutor, and then [the
prosecutor] would complete a recommendation
for [a] plea
disposition. And [the prosecutor] would have that signed
[by
his] supervisor[.] Even if [thc proseccitor was] a director [he would
have] had a sLipervisor, and it would go to the deputy chief [I]n
homicide cases,
the [district attorney] may’ have signed off on
most of all of those, and then [the prosecutor] would present it
to the defense attorney, and he and his client
would discuss it,
and if the plea was accepted, [the parties] would execute the plea.
...

...

.

.

.

.

(Id. at

¶

11).

.

.

Any plea to be proposed by the prosecutor would apparently also have to be

discussed with the victim’s family before it would be approved by the prosecutor’s office. (Id. at

¶

12). The Petitioner’s trial counsel agreed that, as the state was not “looking to negotiate itself’

anti would not “want to waste time” seeking necessary approvals unless he knew a deal would be
accepted. the state would generally not make written plea offers but instead would wait for an offer
from the defense before seeking approvals and reducing the offer to writing. (Id. at

¶

12—13).

The State would apparently occasionally ask the defense whether the petitioner was interested in

3

a plea to begin discussions, but generally offers began with the defrnse attorney proposing an

agreement to the state. (Id. at ¶[ 11- 13). No agreement “would ever be written up until [the
parties] actually came to an agreement, and then [the prosecutor] would write ft up, and then...
go through their chain ofcommand” lbr the necessary approvals. (Id. at ¶13). The parties agree
that, in this matter, neither the prosecutor’s nor public defender’s offices contain “any files relevant
to plea negotiations or discussions other than” a letter from the state rejecting a proposed plea
which would exculpate one of Petitioner’s co-defendants and the actual plea agreements oftwo of
Petitioner’s co-defendants. (Id. at ¶ 24). There is thus no documentary evidence of any plea
offer or agreement in the record ofthis matter.
At the hearing in this matter, Petitioner first called his initial trial counsel, William
Fftzsimmons, to testify. As relevant to these habeas proceedings, Mr. Fitzsimmons testified that
he was initially appointed to represent Petitioner by the spring of 2001 and represented Petitioner
until he departed the public defender’s office in August 2001. (ECF No.85 at 34:23—35:95). Mr.
Fitzsimmons was then aware that Petitioner was in prison, although he did not think he would have
necessarily had Petitioner’s judgment of conviction fir his prior offenses on file. (Id. at 36:11—
19). Mr. Fitzsimmons admitted that he failed to recognize the statute of limitations issue or
discuss it with Petitioner while he represented him, and likewise admitted that he never discussed
the gap time issue with Petitioner. (Id. at 38:23-40:8). Although Mr. Fitzsimmons remembered
his dealings with Petitioner, he could not recall “ever having significant plea discussions with”
Petitioner, and did not “remember being involved in.

.

.

plea negotiations” in Petitioners case.

(Id. at 40:16—18, 43:18—21, 52:9—11). Mr. Fitzsimmons also did not recall ever receiving a plea
offer from the state, although he suggested his file, which could not be located at the time of the

4

hearing, would have had notifications had there been any plea discussions. (Id. at 40:19-41:14).
Mr. Fitzsimmons further testified on cross examination that “there would be no reason to” discuss
gap time with Petitioner unless a plea offer had been made, suggesting that the issue may not have
been discussed because no agreement had been offered. (Id. at 47:2-6). Mr. Fitzsimmons
clarified, however, that he had no recollection of any plea offer being made, but that did not
foreclose the possibility that one had been extended that he had forgotten. (IS at 56:3-13).
Petitioner next called John McMahon, who represented Petitioner after Mr. Fitzsimmons
left the public defender’s office and throughout his trial and sentencing. (Id. at 58:13). Mr.
McMthon admitted, as had Mr. Fitzsimmons, that he failed to recognize the gap time and statute
of limitations issues prior to trial, and that he thus failed to advise Petitioner as to those issues
during the time when plea negotiations could have taken place. (See Id. at 58-92). As to a plea,
Mr. McMahon testified that he didn’t “have any recollection at all of discussing pleas.” (Id. at
95:16—18). When presented with the letter in which the state refused to discuss any plea deal in

which Petitioner exculpated one of his co-defendants, Mr. McMahon recalled Petitioner’s desire
to exculpate the co-defendant and admitted that the letter ‘refiected that there were some [plea]
negotiations,” but he still could not recall any plea offer being made. (Id. at 95:4—98:16). Mr.
McMahon acknowledged that the matter may have been more easily resolved via a plea had he

advised Petitioner of the gap time or statute of limitations issues, but he could remember no plea
offers which could have led to such a resolution.

(Id. at 98:16-22).

Mr. McMahon also

acknowledged that he could not remember the extent ofplea discussions or how long they extended

through the pre-Mal process. (See Id. at I 00).
Petitioner testified that his attorneys never

Petitioner also testified at the hearing.

5

informed him of the gap time

or

statute of limitations issues, and that had they done so he wotild

have been inclined to plead guilty.
received multiple plea offers

from

(id. at 1 09:23 -1 1:22).

Petitioner testified that he had

the state. (Id. at 112:10, 114:19—20, 117:21--22, 119:20—22).

In the first alleged deal, Petitioner stated that Mr. McMahon told him that the state had asked if he
would be “willing to take a 15-year plea consecutive” to his prior drug crime sentences. (Id.).
Petitioner stated that he refused this deal because he was likely to serve the maximum time on his
drug sentences, and would not be able to spend an additional fifteen years in prison.

(Id.).

Petitioner further testified that had he been told that gap time would have reduced the fifteen years
to approximately half that amount of time, he would have been willing to take such a plea. (Id.
at 113:18—14:1 8). Petitioner also testified that he thereafter received a second plea offer which
would have required him to plead guilty to all three homicide indictments and receive a ten-year
sentence on each homicide, totaling thirty years, which would run concurrent to his drug sentences.
(id. at 114:19—15:5).

Petitioner testified, however, that this deal would also have required him to

plead guilty to the time barred weapons charges, which he was unwilling to do as he believed
himself innocent of those charges. (Id. at 115:7—17:8).

Petitioner then testified that a third plea

was offered, but would have required him to testify against his co-defendant, which he was also
unwilling to do.

(Id. at 117:21—19:21). Petitioner also stated that Mr. McMahon had requested

a plea offer where murder charges against his co-defendant and weapon charges against himself
would be dropped, which apparently failed to gain prosecutorial approval.

(Ic!. at 119:1—13).

Petitioner then stated that the state reoffered the first two plea deals again, and he again refused
for the same reasons as he had done previously

—

he was unwilling to plead to weapons offenses

and was not willing to take a consecutive fifteen-year sentence. (Id. at 11 9:23—20:2).

6

Petitioner

did eventually take five-year pica on

one of

his two other homicide indictments after he was

convicted of all charges at trial. (Id. at 1 20:3—-5). Petitioner testiliecl that the last of the three
indictments was tried, and Petitionet “won” that case and was acquitted of those charges. (Ic!. at
121 :6—10). Although Petitioner stated that the thirty—year concurrent plea would have required
that he plead guilty to some of the weapons charges, Petitioner provided no further details as to
which charges he would have had to plead guilty to in order to take these alleged pleas. (See

general/v Id. at 111—22).

Petitioner further testified that he brought these issues to his post-

conviction relief (“PCR”) counsel’s attention, but his PCR counsel refused to raise them. (Id. at
124:2—25:25).

Petitioner also testified at length as to his belief that PCR counsel failed to

adequately represent him or raise his claims. (See genercith Id. at 124—38).
The final witness at t he evidentiary hearing in this matter was Edward Gordon, the retired
prosecutor who represented the state in Petitioner’s criminal matter.

(Id. at 160:1 7).

After

describing the prosecutor’s office’s plea procedure as outlined above, Mr. Gordon testified that he
did not recall ever making a plea offer to Petitioner, nor any real discussion of a Plea with
Petitioner’s trial attorney.

(id. at 162:1—63:9).

Mr. Gordon admitted that there had been “some

conversation” regarding Petitioner’s potential interest in a plea in which he exculpated a co
defendant, that Mr. Gordon had rejected, but stated that he could remember no serious discussion
of a plea that Mr. Gordon considered actual negotiation. (Id. at 165:5—6).

Mr. Gordon then

stated that his goal in prosecuting Petitioner was ensuring that “the net restLlt” was Petitioner’s
further “incarceration for the homicide” charges.

(Id. at 164:8—15).

I—Ic clarified that he

“wouldn’t have” considered any plea which was to run concurrent with the drug conviction
sentence Petitioner was already serving. (Id.

at

165:17—20).

7

On cross examination, Mr. Gordon reiterated that he had

any plea.”

at 167:25).

(id.

“no

recollection of ever offering

When Petitioner’s habeas counsel sciggesteci this meant Mr. Gordon

couldn’t remember one way or the other whether a plea was offered, Mr. Gordon refuted that
assertion. and again asserted that he remembered no plea offer being given, and thus to the extent
he could recall there was no plea offer.

(id.

at 168: 1—12). When asked whether the fact that

Petitioner’s was a cold case would have suggested that he should offer a plea, IVIr. Gordon refuted
that assertion, stating that he was “comfortable with [his] proofs.”

(Ic!. at 174:19—23).

Mr.

Gordon explained that he had no interest in a plea deal because he already had witnesses who had
already been given guilty pleas inciLiding “the shooter, the actual shooter [who] told detectives
about this incident,” and the guy who dug the hole across the street. who was told that he was
digging a hole for a bond.” (LU. at 174:19—75:10).
II.
A.

DISCUSSION

Legal Standard

As this Court has previously determined, (ECF No. 72 at

¶ 6),

Petitioner’s current claims

are procedurally defaulted because they were not raised in the state courts. See Cord/ceo, 673 F.
App’x at 257.

He would therefore only he able to obtain relief in this Court based on those claims

if he can establish that his claims meet one of the exceptions which would permit this Court to
hear such a claim. Id.

In this case, Petitioner argues that his claims should not be barred by his

procedural default because those claims were not raised due to ineffective assistance of postconviction relief counsel. SeeMctriinezv. Ri’an, 566 U.S. 1,9(2012); Trevino v. Thcdcr, 569 U.S.
413, 429 (2013).

Under the Aictrtine: standard, a petitioner establishes cause and actctal prejudice

sufficient to overcome his proccdciral default where he can show that “his underlying ineffective—

8

assistance-of-trial-counsel claim has some merit and that his state post-conviction counsel’s
performance fell below an objective standard of reasonableness.” Workman

i

Superintendent

Albion SC!, 908 F.3d 896, 906 (3d Cfr. 2018). A petitioner will generally meet this standard
where he shows that he had a potentially meritorious ineffective assistance of counsel claim which

his post-conviction relief attorney ignored or failed to recognize while pursuing weaker claims.
Id. Where a petitioner shows sufficient cause and prejudice to overcome his procedural default
in the state courts, a court sifting in habeas review will decide his claim “de novo because the state

court did not consider the claim on the merits.” Id. at 908 (quoting Bey v. Superintendent Greene
SC!, 856 F.3d 230,236 (3d Cir. 2017)). Because Petitioner’s current claims, if proven, would be
“substantial” claims of ineffective assistance of trial counsel, and as the parties have presented
little evidence to suggest that Petitioner’s PCR counsel provided objectively reasonable
performance, this Court assumes for the sake of this opinion that Petitioner’s claims meet the

requirements of Martinez and addresses Petitioner’s plea-related claims de novo. Id.
B. Credibility Findings
Having held an evidentiary hearing in this matter and having had the opportunity to observe
the demeanor and testimony of the witnesses at that hearing, this Court makes the following

credibility determinations. This Court finds the testimony of Petitioner’s trial attorneys, John
McMahon and William Pitzsimmons generally credible. Both attorneys candidly admitted their

failure to recognize and discuss with Petitioner certain issues—specifically gap time and the statute
of limitations for Petitioner’s non-homicide charges—prior to trial. Both attorneys also were
forthcoming in their admission that while they would have expected that plea negotiations would
have occurred in this case, neither attorney could recall any specific plea deal being offered and

9

thus could not say one way or another that a plea offer was or was not made. This Court thus
finds both attorneys’ testimony credible.
This Court also finds highly credible the testimony of retired prosecutor Edward Gordon.
Mr. Gordon was forthright and responsive to questioning and admitted that he did not have a
complete recollection of Petitioner’s prosecution after the passage of many yeai-s.

This Court

specifically ciedits Mr. Gordon’s testimony that: (1) he did not recall ever offering a plea deal to
Petitioner; (2) he was comfortable with the proofs against Petitioner and thus had little impetus to
offer a plea deal; and (3) he admitted that some discussion of a plea deal may have occurred, but
that he could never recall reaching a point where an actual plea offer was contemplated or made.

This Court thus finds Mr. Gordon’s testimony highly credible, and to the extent that

it

conflicts

with Petitioner’s testimony, credits Mr. Gordon’s testimony over that of Petitioner.
Turning to Petitioner, this Court found Petitioner’s testimony as to his lawyer’s failure to
advise him as to gap time and the statute of limitations issues credible as that testimony is well
supported by both his former attorney’s testimony and the record.

This Court found Petitioner’s

testimony as to plea negotiations, however, less credible than that of Mr. Gordon or Petitioner’s

former attorneys, none of whom could recall any of the proposed pleas Petitioner claims were
offered. This Court specifically foctnd Petitioner to lack credibility in his testimony regarding the
alleged plea deals. Although Petitioner was largely responsive to questioning, his demeanor on
cross-examination as to the alleged deals was considerably more combative and less forthcoming
than his testimony as to the importance of the gap time or statute of limitations issues on direct
examination. That Petitioner did not assert his statute of limitations related plea claim

Ltntil

afier

the remand by the Third Circuit further raised questions about whether any deal involving the time

10

barred weapons charges was ever offered, and this Court specifically finds that Petitioner’s
testimony on that issue at the hearing lacked sufficient credibility to establish that any such plea
offer was ever extended by the State. Ultimately, given his demeanor and responses to the
questions posed, this Court finds Petitioner the least credible of the witnesscs presented and
discounts Ms testimony accordingly to the extent it conflicts with that ofthe other three witnesses.
C. Petitioner’s Ineffective Assistance of Plea Counsel Claims
In Ms current claims, Petitioner alleges that Ms trial attorneys proved ineffective in advising
Mm in regards to several alleged plea agreements by either failing to inform Mm that he may have
been entitled to nearly nine years of gap time credit or by failing to advise Mm that certain nonhomicide charges on which he had been indicted were time barred, and that he therefore turned
down plea agreements to wMch he otherwise would have agreed. “The [Supreme] Court has
[]emphasized that ‘[d]efendants have a Sixth Amendment right to counsel, a right that extends to
the plea-bargaining process.” United Stales i Bid, 795 F.3d 363,366-67 (3d Cir. 2015) (quoting
Lqfler v. Cooper, 566 U.S. 156, 162(2012)). This right requires counsel to provide a defrndant

with “enough information to make a reasonably informed decision whether to accept a plea offer,”
wfflch generally requires a discussion of comparative sentencing exposure.

Id. (internal

quotations and citations omitted). Although a criminal defendant is entitled to adequate advice of
counsel as to any offered plea, defendants “have no right to be offered a plea,” nor a federally
guaranteed right to a judge accepting any plea deal. Lqfler, 566 U.S. at 168 (quoting Missouri it
Frye, 566 U.S. 134, 148 (2012)).

Where a petitioner can show that counsel failed to adequately advise Mm as to a proposed
plea agreement, he will still not be entitled to relief unless he can show that he was prejudiced by

11

that failing,

This requires a petitioner to show that “there is a reasonable probability that, bctt for

counsel’s unprofessional errors, the result of the proceeding would have been different

.

.

.

[which

i]n the context of pleas [requires] a [petitioner] show the outcome of the plea process would have
been different with competent advice.”

id.

at 163.

A petitioner will therefore succeed in

establishing prejudice where he shows that a plea agreement was offered, that he would have
accepted the proposed plea agreement absent counsel’s deficient advice, that the deal in question

would not have been withdrawn by the Government, and that the sentence received pursuant to the
offered plea would have been less severe than the result of his trial. Id. at 164.
Because Petitioner’s trial attorneys admitted that they failed to discuss the gap time and
statute of limitations issues with Petitioner prior to trial, because Petitioner’s trial
acknowledged that they should have recognized those

issues

attorneys

also

during the plea negotiation stage and

discussed them with Petitioner, and because Petitioner has alleged that he would have accepted the
alleged pleas had these

issues

been discussed, the testimony at the hearing held in this matter is

more than sufficient to establish that Petitioner’s trial attorneys provided him with deficient

performance, provided that Petitioner can establish that there was a plea agreement for them to
discuss with him. As both of Petitioner’s attorneys testified, Petitioner was clearly entitled to a

significant quantity of gap time which could have reduced any over-all sentence of less than life
imprisonment. information which surely would have been vital to any decision to accept or reject
an offered plea deal.

of which

Likewise, that some of the charged counts—including the weapons charges

Petitioner contends

he was innocent—surely was information that would have been

important to Petitioner in choosing whether to accept a plea deal had one been offered.

Petitioner could establish the

existence of

Thus, if

an offered plea deal, the testimony at the hearing held

12

in this matter would clearly establish deficient performance.
Because Petitioner’s uncontested testimony at the hearing suggests that Petitioner would
have taken any of the deals he alleges he was offered had he been properly advised as to the gap
time and statute of limitations issues, Petitioner’s entitlement to relief relies entirely on his ability
to establish that there was in fact an offered plea agreement, rather than mere discussions. See
Lafler, 566 U.S. at 163—64. The record of this matter contains no documentary evidence of an
offered plea agreement; instead, the only documentary evidence related to plea discussions

between the prosecutor and Petitioner is a letter from the prosecutor which specifically rejects a
plea proposal made by Petitioner’s counsel prior to trial. (See Joint Stipulated Findings of Fact,
ECF No. 28 at ¶ 24; see also ECF No. 59-8). Instead, the record contains only one source of
information which suggests that any actual plea offer, as opposed to mere negotiations, was ever
extended—Petitioner’s own testimony. Neither of Petitioner’s trial attorneys could recall a plea
offer being extended by the prosecutor’s office, and the assigned prosecutor credibly testified that
he could recall no “serious discussion concerning a plea,” that he had “no recollection of making
a plea offer,” and was not inclined to seek a plea as he was “comfortable with [his] prooA” in light
of the multiple witnesses against Petitioner whose testimony had already been secured, including

“the actual shooter.” (ECF No. 85 at 168, 172, 174—75).
Although this Court does not doubt that Petitioner and his counsel may have discussed the
potential fir a plea agreement, and may even have discussed their with to seek deals which could
have included terms such as a fifteen year sentence or three ten year terms to run concurrent with
his prior sentence, this Court finds Petitioner’s assertion that any such plea deal was ever offered
by the State lacking in credibility. Petitioner has failed to present sufficient credible evidence in

13

support of his assertion that a plea deal was offered by the state, and this Court finds that what
evidence has been presentecl———including the letter in the record and the testimony of the three
attorneys at the hearing in this matter—supports a contrary conclusion. Based on the evidence in
the record, and this Court’s credibility deteiminations as outlined above, Petitioner has failed to
show that an actual plea offer was ever extended to him by the state.

Petitioner has therefore

failed to meet his burden of showing that there was a plea deal which was offered by the state, and
thus cannot show that there was an available deal he would have taken had his trial counsel more
adequately advised him to the gap time and statute of limitations issues. Petitioner thus cannot
establish Strickicind prejudice, and his plea-related ineffective assistance of counsel claims must
fail in light of this Court’s credibility findings. See La/lee, 566 U.S.

at

163—64.

Petitioner is

therefore not entitled to habeas relief as to his remaining ineffective assistance of plea counsel

claims.
In so concluding, this Court does not wish to diminish the failures of trial counsel in this
matter. Their failure to advise Petitioner as to two important issues——Petitioner’s entitlement to
gap time credit and the fact that the non-homicide charges Petitioner faced were time barred——is
considerable, and this

opinion

should not be read to excuse or condone those failings. Cocinsel’s

deficient performance alone, however, is not sufficient to warrant habeas relief, only with a
showing

of prejudice

could Petitioner prevail, and it is there that his claims stumble. Ultimately,

Petitioner’s claims fail solely because the evidence presented viewed in light of this Court’s
credibility findings did not convince this Court that any plea offer was actually extended to
Petitioner, and as Petitioner has no right to be offered a plea deal, he cannot show the required
Strickland prejudice. See La/lee, 566 U.S. at 16$ (stating that where “no plea offer is made” the

14

“issue [of ineffective assistance of counsel in advising a petitioner as to a plea] simply does not
arise”). Indeed, any non-plea related prejudice as to the gap time issue was essentially erased by
Petitioner’s life sentence—as the parties agree gap time cannot reduce a life sentence-—-and any
non—plea related prejudice as to the statute of limitations issues was essentially diffused when the
time barred charges were dismissed at Petitioner’s sentencing. As stated above, Petitioner has
failed to show that there was a plea offer extended to him, and the evidence presented instead leads
this Court to conclude that no such offer was extended.

Petitioner therefore cannot establish that

he was prejudiced by the failings of counsel in this matter, and it is for that reason that his claims
must fail.
111.

CERTIFiCATE OF APPEALABILITY

A etitioner may not appeal from a final order in a habeas proceeding where that
petitioner’s detention arises out of a state court proceeding unless he has “made a substantial

showing of the denial of a constitutional right.” 2$ U.S.C. §2253(c). “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 that the issues presented here are adequate
to deserve encouragement to proceed fctrther.” Miller-El v Cockrell, 537 U.S. 322, 327 (2003).
In light of this Cocn-t’s credibility determinations and the lack of credible evidence of a plea offer
having been made in this case, Petitioner’s ineffective assistance of plea counsel claims are without

merit and Petitioner has therefore failed to make a substantial showing of the denial of a
constitutional right.

Petitioner is therefore denied a certificate of appealability.
IV.

CONCLUSION

For the reasons set forth above. Petitioner’s remaining ineffective assistance of plea

15

_____,2019.

counsel claims are denied, and Petitioner is denied a certificate of appealability.
Order follows this

An appropriate

Opinion.

Dated: February

911ief Judge, United States District Court

16