STARKS v. DAVIS et al

Filing 18

OPINION. Signed by Judge Susan D. Wigenton on 11/16/2020. (lag, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MUMEEN STARKS,

Civil Action No. 18-16525 (SDW)

Petitioner,
v.

OPINION

BRUCE DAVIS, et al.,
Respondents.

WIGENTON, District Judge:
Currently before the Court is the petition for a writ of habeas corpus (ECF No. 15) filed by
pro se Petitioner Mumeen Starks after his previous habeas petition was dismissed without
prejudice as an unexhausted mixed petition. (See ECF Nos. 13-14). Following an order to answer,
Respondents filed an answer to the petition. (ECF No. 17). Petitioner did not file a reply. For the
following reasons, Petitioner’s habeas petition is denied, and Petitioner is denied a certificate of
appealability.

I. BACKGROUND
In its opinion affirming Petitioner’s conviction, the Appellate Division summarized the
factual basis for Petitioner’s conviction as follows:
On April 18, 2008, [Petitioner] had a verbal altercation with
Tynesha Morris on a sidewalk in Newark. Following the clash of
words, Morris entered the vehicle of her cousin, Theo Stewart. As
Morris and Stewart sat in the car talking, [Petitioner] approached the
driver’s side door with a handgun and fired several shots into the
vehicle. Stewart pushed Morris out the passenger door and fell on
top of her. He was struck by two bullets and died as a result of his
wounds.
An Essex County Grand Jury returned a four-count
indictment charging Starks with first-degree murder[,] first-degree
attempted murder[,] second degree unlawful possession of a firearm
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without a permit[,] and second-degree possession of a weapon (a
firearm) for an unlawful purpose[.] Separately, [Petitioner] was
indicted for other crimes committed on April 23, 2008; in Newark,
including third-degree unlawful taking of a means of conveyance[,]
second-degree eluding police[,] and fourth-degree resisting arrest[.]
At the trial for homicide and related events, three witnesses
identified Starks as the shooter, 1 and he was convicted by a jury of
murder, aggravated assault as a lesser-included offense of attempted
murder, unlawful possession of a firearm without a permit, and
possession of a firearm for an unlawful purpose. Several defense
motions for a mistrial were denied during the proceedings, and the
trial court rejected Stark’s request to include a jury instruction on
passion/provocation manslaughter.
After the verdict, [Petitioner] entered a negotiated guilty plea
to the unlawful taking of a means of conveyance and eluding
[charges]. Thereafter, [Petitioner] was sentenced to an aggregate
term of life in prison[.]
(Document 9 attached to ECF No. 9 at 3-5). Petitioner appealed, and the Appellate Division
affirmed his conviction and sentence. (Id. at 5-19). The New Jersey Supreme Court thereafter
denied Petitioner’s petition for certification. (Document 10 attached to ECF No. 9).
Following the conclusion of his direct appeal, Petitioner filed a petition for post-conviction
relief in which he raised numerous ineffective assistance of counsel claims, including one in which
he asserted that counsel failed to pursue an alibi provided by Petitioner. Following an evidentiary
hearing, the PCR court denied that petition. (Documents 14-15 attached to ECF No. 9). In
affirming the denial of post-conviction relief, the Appellate Division summarized that hearing as
follows:

“At trial, the State presented eyewitness testimony from Morris, her cousin, Frank Parker, and
their mutual friend, Demetrius Heyward. Parker and Heyward testified to recognizing [Petitioner]
from the neighborhood. Heyward saw [Petitioner] pull out a gun and fire three to four shots within
two feet of him. Parker heard the gunshots and saw [Petitioner] running from the scene. Morris
observed [Petitioner] holding a gun immediately after the shots were fired. [Petitioner] was
described as wearing a black hoodie with a distinctive multi-colored design.” (See Document 20
attached to ECF No. 9 at 3-4).
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Six witnesses testified at the evidentiary hearing. Trial counsel and
his investigator testified for the State, and [Petitioner], his mother,
his sister, and his grandfather testified for the defense. [Petitioner]’s
mother, sister, and grandfather, all of whom resided with [Petitioner
at the time of the shooting], testified consistent with their respective
certifications that [Petitioner] was home on the night of the
homicide. [Petitioner]’s mother testified that [Petitioner] returned
home at approximately 7:00 p.m. and stayed home for the rest of the
night. She specifically recalled checking on him at approximately
11:00 p.m. and 2:00 a.m. and he was asleep with his one-year-old
daughter. Although she never provided the information to the
authorities when [Petitioner] was arrested and charged, she provided
the information to an investigator and expected to be called as a
witness at [Petitioner]’s trial. However, despite attending most of
the trial proceedings, she was never called to the stand.
[Petitioner]’s grandfather could not specify what time
[Petitioner] returned home. However, he testified that [Petitioner]
was home before dinner, which was usually about 7:00 p.m., and
stayed home with his daughter the rest of the night. Although he
never provided the information to the authorities and was never
interviewed, he too expected to testify at [Petitioner]’s trial and was
never called. [Petitioner]’s sister testified that she saw [Petitioner]
at home at 3:40 p.m. when she returned home from school. She
testified that [Petitioner] asked her to babysit his daughter, but she
refused. Although she could not specify exactly where [Petitioner]
was in the house between the hours of 10:00 p.m. and 11:00 p.m.,
she testified that [Petitioner] was home all day and night and she
wanted to testify to that effect but was never interviewed or called
as a witness. Nonetheless, she also acknowledged that she never
provided the information to the authorities once she became aware
of [Petitioner]’s arrest.
[Petitioner] testified that he told his trial attorney, William
Strauss, that he was at home at the time in question and that all the
members of his household could vouch for him being there.
[Petitioner] acknowledged that the notice of alibi and the defense
witness list included the names he provided. [Petitioner] testified
that he did not know that Strauss was not going to call the alibi
witnesses until Strauss began his summation. When he confronted
Strauss about it, Strauss responded that “he had won the case, he
didn’t need to call them.” In his supporting certification, [Petitioner]
averred that when he confronted Strauss about not calling the alibi
witnesses, Strauss stated that “because they were my family, the jury
would not believe them.”

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[Petitioner] also testified that he wanted to testify at trial.
However, rather than prepare him to testify or explain the
ramifications of testifying, Strauss simply “told [him] not to” and
[Petitioner] accepted it because he did not know that he could go
against his attorney’s advice. [Petitioner] conceded, however, that
during the trial, he answered in the affirmative when Judge Gardner
asked him whether his attorney had explained all the ramifications
of testifying or remaining silent and whether the decision to remain
silent was his choice.
[Petitioner] testified further that he did not become aware of
the trial stipulation agreed to by Strauss regarding the hoodie until
2012 when he was reading through his trial transcripts. According
to [Petitioner], he would not have agreed to such a stipulation. On
cross-examination, when [Petitioner] was asked whether he recalled
Strauss stating on the record during the trial that he was stipulating
to the hoodie to avoid the State calling the arresting officer to testify
that [Petitioner] was wearing the hoodie when he was arrested on
other charges, [Petitioner] denied hearing that colloquy despite
being present.
Strauss, an experienced defense attorney who tried over
sixty cases for the Public Defender’s Office over twenty-five years,
testified that he did in fact speak with [Petitioner] about his case on
multiple occasions, and that [Petitioner] advised him of several
family members with whom he resided as well as his girlfriend who
could provide the basis for an alibi defense. According to Strauss,
while the case was pending, he, [Petitioner]’s mother and three of
his sisters discussed providing an alibi for [Petitioner] in the
courthouse hallway after a status conference. In addition, Strauss
testified that he had weekly telephonic conversations with
[Petitioner]’s mother. Based on these conversations, Strauss filed a
notice of alibi in anticipation of cooperation by the family members
and requested his investigator, Michael Petrillo, to take statements
from the witnesses to support an alibi defense. To corroborate his
testimony, both the notice of intent to rely on alibi as a defense and
the request for investigation were admitted into evidence at the
hearing.
Petrillo confirmed that he was requested by Strauss to
interview [Petitioner]’s girlfriend and eight of [Petitioner]’s family
members, including [Petitioner]’s mother, grandfather and sister, to
support an alibi defense.
He obtained a statement from
[Petitioner]’s mother that [Petitioner] was home on the night in
question and that she checked on him repeatedly during the night.
Petrillo also spoke with [Petitioner]’s grandfather but did not take a
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statement from him. None of the other witnesses provided by
[Petitioner] responded or cooperated despite Petrillo’s and Strauss’
requests and representations by [Petitioner]’s mother and family
members that the witnesses would cooperate.
Strauss testified that when he started the trial, he intended to
call the alibi witnesses. However, he “felt that during the trial [he]
was making some headway with some of the [State’s] witnesses”
and he did not believe that the alibi witnesses would “help us win
the case.” Further, Strauss testified that because he did not have
statements from the alibi witnesses, other than [Petitioner]’s mother,
he was unable to assess whether there was consistency among them,
and was concerned that none of the purported alibi witnesses had
notified the authorities of [Petitioner]’s alibi when he was arrested
and charged. Regarding [Petitioner]’s mother, Strauss ultimately
decided against using her as an alibi witness. In addition to the fact
that she would be subject to impeachment based on her relationship
to [Petitioner], he had additional concerns about her credibility.
Specifically, her statement that it was impossible for [Petitioner] to
be out of the house on the night in question because he had a small
child was inconsistent with [Petitioner] being arrested a week later
driving his girlfriend’s car.
Strauss testified that “[h]aving a family member or a friend
testify to an alibi is not . . . airtight.” According to Strauss, in his
experience, “if you put on an alibi that has any weakness you risk
having the burden [of proof] shift from the State to the defendant”
because “the jury’s going to wonder . . . [w]hy are you putting on
this alibi that doesn’t really stand up?” Strauss believed that “you’re
better off attacking . . . why [the State] didn’t prove their case as
opposed to putting on an alibi and risk losing . . . credibility[.]”
Strauss testified that he explained to [Petitioner] why he was resting
without calling the alibi witnesses. When [Petitioner] protested that
he had eight witnesses compared to the State’s three witnesses,
Strauss “tried to explain to him that the number of witnesses doesn’t
overcome the credibility issues.” Strauss characterized his decision
to not present an alibi defense as a strategic one, explaining that
because there were three eyewitnesses who knew [Petitioner] from
the past and placed him at the scene, “it was almost irrefutable that
he was present at the scene. And to put on an alibi in the face of that
. . . , the jury would have not reacted well to that at all.”
Strauss testified further that he did explain to [Petitioner] the
advantages and disadvantages of testifying at the trial. Strauss
acknowledged that [Petitioner] had no prior criminal record, lived
approximately three miles away from the homicide scene, and
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would have denied being at the scene if he had testified. However,
he explained to [Petitioner] that since “[t]he strategy is to concede
that you were at the scene. . . . [I]f you get on the stand and testify
to an alibi when the strategy is that none of these people saw what
they claimed they saw then that just puts . . . our case at risk.
According to Strauss, his discussion with [Petitioner] was “very
civil” and [Petitioner] “agreed with” the strategy. Strauss testified
that nonetheless “prior to going out on the record [he] made it clear
to [Petitioner] it’s his decision whether to testify or not. It’s his
right. And based upon that he . . . had to come out in court and he
had to tell the court what his choice was.”
Regarding the hoodie, Strauss acknowledged entering into a
stipulation with the prosecutor that the hoodie admitted into
evidence at trial was the hoodie [Petitioner] was wearing at the time
of his arrest. Strauss explained that by agreeing to the stipulation,
he avoided any testimony by the arresting officer concerning the
circumstances of [Petitioner]’s arrest, including the location and the
ensuing eluding charge. Strauss testified that he told [Petitioner]
what he was doing and why he was doing it and [Petitioner] said
“fine.” However, instead of instructing the jury that the parties
agreed that the hoodie “was what [Petitioner] was wearing at the
time of his arrest[,]” the court erroneously instructed the jury that
[t]he parties agree[d] that this [was] the hoodie in this particular
case.” Strauss testified that although he was aware at the time that
the court had misread the stipulation, as a matter of trial strategy, he
did not object and call attention to the issue because he did not want
to “highlight over and over this [hoodie].” In addition, Strauss did
not request a curative instruction because “what the judge told the
jury, while we didn’t agree with that stipulation, was not
inconsistent with my argument to the jury that my client was merely
present at the time of the homicide.”
Following the evidentiary hearing, [the PCR judge] denied
[Petitioner]’s petition in a written opinion. Preliminarily, [the
judge] found the testimony of “trial counsel and his investigator . . .
to be credible and the facts testified to by [Petitioner] and his family
not to be consistent or credible.” [The judge] noted that while
Petrillo “testified consistently with . . . Strauss and corroborated trial
counsel’s version of how the investigation unfolded[,]”
[Petitioner]’s family members were neither “consistent” nor
“credible.”
(Document 20 attached to ECF No. 9 at 8-16). Based on these credibility determinations and the
testimony elicited at trial, the PCR judge denied all of Petitioner’s ineffective assistance claims,
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finding that counsel had adequately explained Petitioner’s right to choose whether to testify, a fact
confirmed by Petitioner’s colloquy on the subject at trial, and that counsel’s decisions as to the
stipulation and potential alibi were proper strategic decisions based on counsels’ experience and
interactions with the proposed alibi witnesses. (Id. at 16-19). Petitioner appealed, and the
Appellate Division affirmed the denial of PCR relief. (Id. at 20-27). The New Jersey Supreme
Court thereafter denied Petitioner’s petition for certification. (Document 21 attached to ECF No.
9).

II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2254(a), the 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.” The petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, --- U.S. ---, ---,132 S. Ct. 2148,
2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty
Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to the
determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73
(2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication

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(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)(1)-(2). Federal law is clearly established for the purposes of the statute where
it is clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United
States Supreme Court. See Woods v. Donald, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015). “When
reviewing state criminal convictions on collateral review, federal judges are required to afford state
courts due respect by overturning their decisions only when there could be no reasonable dispute
that they were wrong.”

Id.

Where a petitioner challenges an allegedly erroneous factual

determination of the state courts, “a determination of a factual issue made by a State court shall be
presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

B. Analysis
1. Petitioner’s mistrial claim
In his first claim, Petitioner asserts that the trial court denied him Due Process when it
denied his counsel’s motion for a mistrial after Heyward, on direct examination, testified that he
had been told that Petitioner was the shooter in the underlying incident before he ultimately
recognized Petitioner via a photo and suggested that he “guess[ed that the police] had an
informant.” (See ECF No. 17 at 25). This comment, which the state had apparently not expected,
drew an immediate objection and motion for a mistrial from defense counsel. The trial judge
sustained the objection, but denied the motion for a mistrial, and in turn instructed the jury that

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they were to disregard any suggestion that an informant was involved in this matter as that
statement was not part of the case and should not be considered during deliberations. (Id.). On
direct appeal, the Appellate Division rejected the argument that a mistrial should have been
granted, finding that the trial judge’s sustaining of the objection and issuing of a curative
instruction was “entirely appropriate and curative of any defect in the trial.” (Document 9 attached
to ECF No. 9). On habeas review, alleged errors of even a constitutional nature will be considered
harmless and insufficient to warrant relief “unless [the alleged errors]” had a substantial and
injurious effect or influence in determining the jury’s verdict.” Fry v. Piller, 551 U.S. 112, 116
(2007); see also Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). Here, a witness unexpectedly
made a statement in which he “guessed” that there may have been an informant, the trial court
immediately struck the statement from the record and instructed the jury to disregard it. In light
of the considerable evidence – including multiple eyewitnesses – of Petitioner’s guilt provided at
trial and the swift action of the trial judge to cure the improper speculation of the witness, this
alleged error was clearly incapable of having a substantial and injurious effect upon the outcome
of Petitioner’s trial, and was thus harmless. Petitioner is therefore not entitled to habeas relief on
this claim.

2. Petitioner’s ineffective assistance of counsel claims
In his remaining three claims, Petitioner asserts that his trial counsel proved ineffective in
relation to a proposed alibi defense, in his agreeing to and not objecting to errors in the trial court’s
recitation of a stipulation regarding Petitioner owning a sweatshirt matching that described by the
eye witnesses, and in advising him not to testify on his own behalf. The standard applicable to
such claims is well established:

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[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see also
United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To
succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial . . .
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick, 493
F.3d at 299.
In evaluating whether counsel was deficient, the “proper
standard for attorney performance is that of ‘reasonably effective
assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential . . . a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
Even where a petitioner is able to show that counsel’s
representation was deficient, he must still affirmatively demonstrate
that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. The petitioner must demonstrate that “there
is a reasonable probability, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694; see also Shedrick, 493 F.3d at 299. Where a
“petition contains no factual matter regarding Strickland’s prejudice
prong, and [only provides] . . . unadorned legal conclusion[s] . . .
without supporting factual allegations,” that petition is insufficient
to warrant an evidentiary hearing, and the petitioner has not shown
his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d
386, 395 (3d Cir. 2010). “Because failure to satisfy either prong
defeats an ineffective assistance claim, and because it is preferable
to avoid passing judgment on counsel’s performance when possible,
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[Strickland, 466 U.S. at 697-98],” courts should address the
prejudice prong first where it is dispositive of a petitioner’s claims.
United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).
Judge v. United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015).
Petitioner first argues that counsel was ineffective in failing to pursue an alibi defense. As
Petitioner has not shown that the PCR court’s factual and credibility findings were incorrect by
clear and convincing evidence, this Court is required to presume those findings to be accurate, and
thus must accept the PCR court’s credibility determinations. See, e.g., Dennis v. Sec’y, Penn.
Dep’t of Corr., 834 F.3d 263, 281 (3d Cir. 2016). Based on those findings, it is clear that trial
counsel and his investigator explored Petitioner’s proposed alibi, found his proposed alibi
witnesses to be weak in the face of the eyewitnesses and the defense he had chosen to pursue, and
as a matter of strategy declined to pursue the alibi after a thorough investigation. In light of the
PCR judge’s finding that Petitioner’s proposed alibi witnesses were not credible, that in hindsight
appears to have been a wise decision. Regardless, as a strategic decision made after a thorough
investigation, trial counsel’s decision to eschew the alibi defense in favor of arguing that Petitioner
had not been the shooter is “virtually unchallengeable,” and does not amount to deficient
performance. Strickland, 466 U.S. at 690-91. Likewise, in light of the PCR court’s credibility
findings, Petitioner has failed to show he was prejudiced as a weak alibi is likely to do more harm
than good. Petitioner’s first ineffective assistance claim thus fails to set forth a valid basis for
habeas relief.
Petitioner next argues that trial counsel proved ineffective in stipulating to the admission
that Petitioner owned the hoodie entered into evidence and in not attempting to correct the trial
court’s misreading of the stipulation. Given the PCR court’s credibility findings, and counsel’s
explanations for his strategic decision both to enter the stipulation – to avoid a police officer

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potentially being able to discuss having arrested or otherwise encountered Petitioner wearing it –
and in not objecting to the misreading of the stipulation – to avoid placing undue emphasis on the
hoodie and thus giving the jury more reason to consider its import to the eyewitnesses’
identification of Petitioner as the shooter – this Court once again concludes that trial counsel made
reasonable strategic decisions which do not amount to deficient performance. Likewise, Petitioner
was not ultimately prejudiced by the stipulation or the trial court’s misreading of that stipulation –
it avoided unnecessary police testimony regarding Petitioner’s ownership of the distinctive hoodie
and avoided the exact undue emphasis counsel identified, both of which could only have served to
weaken Petitioner’s case that he was present at the scene but had not been the actual shooter. The
entrance of the hoodie into evidence was essentially unavoidable and counsel acted as he did to
reduce the effect of that entrance as much as possible, and his decisions related to the stipulation
were therefore not ineffective assistance of counsel. Petitioner’s second ineffective assistance
claim thus fails to set forth a valid basis for habeas relief.
In his final claim, Petitioner contends that he was improperly denied the right to testify on
his own behalf and that counsel was ineffective in advising him in relation to his choice not to
testify. Based both on counsel’s credible testimony during PCR proceedings and Petitioner’s
colloquy with the trial court, the PCR courts rejected this claim, finding that counsel had
adequately explained Petitioner’s right to testify to him and that Petitioner, in light of counsel’s
adequate advice on the risks of testifying on his own behalf, had chosen not to take the stand and
had confirmed that fact to the trial court. Giving these factual and credibility findings deference
as this Court must in light of Petitioner’s failure to show that these findings were inaccurate or
unreasonable, see Dennis, 834 F.3d at 281, Petitioner has failed to show either that he was denied
his right to testify on his own behalf in light of his own informed decision to decline to testify, or

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that counsel proved ineffective as counsel did in fact advise him on the risks and advantages of
testifying and clearly told Petitioner that it was his decision, not counsel’s, whether he should
testify. As Petitioner has not shown that counsel was ineffective in light of the advice he was
given, and as it is clear that following this advice Petitioner specifically chose not to testify at trial,
he has failed to show any valid basis for habeas relief on his final set of claims. As Petitioner has
failed to show an entitlement to habeas relief on any of his claims, his habeas petition is denied.

III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner 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.” “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 further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
As Petitioner’s claims are without merit for the reasons discussed above, Petitioner has failed to
make a substantial showing of the denial of a constitutional right and he is denied a certificate of
appealability.

IV. CONCLUSION
For the reasons set forth above, Petitioner’s habeas petition (ECF No. 15) is DENIED, and
Petitioner is DENIED a certificate of appealability. An appropriate order follows.

Dated: November 16, 2020

s/Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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