POPE v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 14

OPINION filed. Signed by Judge Brian R. Martinotti on 01/10/2020. (jdb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
TYSHAUN POPE,
:
:
Petitioner,
:
Civ. No. 3:16-cv-8893 (BRM)
:
v.
:
:
THE ATTORNEY GENERAL OF THE
:
OPINION
STATE OF NEW JERSEY, et al.,
:
:
Respondents.
:
_________________________________________ :
MARTINOTTI, DISTRICT JUDGE
Before this Court is a writ of habeas corpus filed by Petitioner Tyshaun Pope (“Petitioner”),
a state prisoner proceeding pro se with a petition filed pursuant to 28 U.S.C. § 2254. For the reasons
set forth below, the petition is DENIED and a certificate of appealability shall not issue.
I.

BACKGROUND
On September 14, 2009, Petitioner conspired with Terrell Majette (“Majette”) to steal

cocaine from another individual named Herman Neely. See ECF No. 8-5 at 13-14. During his plea
colloquy, Petitioner stated he had been armed with a gun and that he intended to use it to place the
victim in fear during the commission of the crime. See id. at 16-17. Although the robbery never
occurred, Petitioner was ultimately still apprehended by law enforcement and he provided a
statement indicating his role in conspiracy. See id. at 18. Petitioner and Majette were subsequently
indicted, under Indictment Number 10-05-0894, for: conspiracy, in violation of N.J. Stat. Ann. §
2C:5-2 and § 2C:15-1; unlawful possession of a weapon, in violation of N.J. Stat. Ann. § 2C:395b; possession of a weapon for an unlawful purpose, in violation of N.J. Stat. Ann. § 2C:39-4a;
attempted armed robbery, in violation of N.J. Stat. Ann. § 2C:15-1 and § 2C:5-1; attempted
possession of a controlled dangerous substance, in violation of N.J. Stat. Ann. § 2C:5-1 and

§ 2C:23-10a(1); obstructing the administration of law or other governmental function, in violation
of N.J. Stat. Ann. § 2C:29-1; and certain persons not to have weapons, in violation of N.J. Stat.
Ann. § 2C:39-7b(1). See ECF No. 8-3.
A few months later, on December 12, 2009, Petitioner was in Neptune Township, New
Jersey, when two police officers observed Petitioner making a hand-to-hand drug transaction with
another individual. See ECF No. 8-24 at 9. When the officers approached Petitioner and indicated
they believed he may have an outstanding warrant, Petitioner admitted, “I know I do.” See id. One
of the officers, Officer Byham, then told Petitioner that if the warrant was confirmed, “[Petitioner]
better not have any drugs on him.” See id. Petitioner immediately confessed to having a “package”
between his buttocks. See id. Petitioner was arrested and transported to police headquarters where
he was strip searched. See id. During the strip search, when Petitioner was asked to remove his
pants, a plastic bag containing eighteen (18) bags of cocaine fell to the ground. See id. Petitioner
was subsequently indicted, under Indictment Number 10-03-0437, for: possession of a controlled
dangerous substance, in violation of N.J. Stat. Ann. § 2C:35-10a(1); possession of a controlled
dangerous substance with intent to distribute, in violation of N.J. Stat. Ann. § 2C:35-5b(3); and
possession of a controlled dangerous substance on or within 1,000 feet of school property with
intent to distribute, in violation of N.J. Stat. Ann. § 2C:35-7. See ECF No. 8-2.
On July 19, 2010, Petitioner entered into a plea agreement with the State. See ECF Nos. 84, 8-5. Under Indictment Number 10-03-0437, Petitioner pleaded guilty to possession of cocaine
with intent to distribute within 1,000 feet of school property, and under Indictment Number 1003-0894, Petitioner pleaded guilty to conspiracy to commit armed robbery and certain persons not
to have firearms. See ECF No. 8-4 at 1. The State agreed to dismiss the remaining counts charged
in the indictments and to recommend an aggregate term of ten (10) years imprisonment, subject to

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an eight-and-one-half (8 ½) year period of parole ineligibility. See id. at 3. Petitioner’s sentencing
recommendation was contingent upon his truthful testimony at the trial of his co-conspirator,
Majette. See id.
Although Petitioner testified at the trial of Majette, he failed to provide truthful testimony.
See ECF No. 8-9 at 6-7, 26-27. Majette’s trial ended in a hung jury. See ECF No. 8 at 10. Petitioner
thereafter filed a motion to withdraw his guilty plea, based upon the fact that the prosecutor
believed he had provided untruthful testimony at Majette’s trial and based upon Petitioner’s belief
that he had provided an inadequate factual basis for his crimes during his plea colloquy. See ECF
Nos. 8-6, 8-7. The sentencing court ultimately denied Petitioner’s motion to withdraw his guilty
plea and sentenced him to an aggregate term of ten (10) years in prison, subject to an eight-andone-half (8 ½) year period of parole ineligibility, as well as various fines and penalties. See ECF
No. 8-9 at 26, 33-35.
II.

PROCEDURAL HISTORY
On appeal to the New Jersey Appellate Division, Petitioner challenged only his ten (10)

year sentence. See ECF No. 8-23 at 45. On August 1, 2012, the Appellate Division denied
Petitioner’s appeal, and held that the sentence was not “manifestly excessive or unduly punitive
and does not constitute an abuse of discretion.” See id. Petitioner thereafter filed a petition for
certification to the New Jersey Supreme Court. See id. at 46. Petitioner’s certification was denied.
See id.
On May 29, 2013, Petitioner filed a pro se petition for Post-Conviction Relief (“PCR”)
with the Superior Court of New Jersey, Law Division. See ECF No. 8-18. In his application,
Petitioner raised numerous claims, including several ineffective assistance of counsel claims. See
ECF No. 8-21. Following oral argument from both defense counsel and the State, the PCR court

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denied Petitioner’s application. See ECF Nos. 24, 25. Petitioner appealed the denial to the New
Jersey Appellate Division. See ECF No. 8-26. On March 29, 2016, the Appellate Division denied
Petitioner’s appeal, and affirmed the PCR court’s decision. See State v. Pope, A-1429-14T2, 2016
WL 1192616 (N.J. Super. Ct. App. Div. Mar. 29, 2016). Petitioner subsequently appealed to the
New Jersey Supreme Court. See ECF No. 8-32. His petition for certification was denied on June
24, 2016. See State v. Pope, 141 A.3d 229 (2016).
In November 2016, Petitioner filed the instant Petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. See ECF No. 1. Subsequent to this Court’s order directing Petitioner to
provide sufficient factual and contextual support for the claims he raised in his first petition,
Petitioner filed an amended Petition in April 2017. See ECF No. 5. On July 24, 2017, Respondent
filed an answer in opposition. See ECF No. 8. Petitioner thereafter filed a brief in reply. See ECF
No. 12.
III.

HABEAS CORPUS LEGAL STANDARD
An application for writ of habeas corpus by a person in custody under judgment of a state

court can only be granted for violations of the Constitution or laws or treaties of the United States.
See Engle v. Isaac, 456 U.S. 107, 119 (1982); see also Mason v. Myers, 208 F.3d 414, 415 n.1 (3d
Cir. 2000) (citing 28 U.S.C. § 2254). Petitioner filed this petition for writ of habeas corpus after
April 24, 1996, and therefore, the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. 104–132, 110 Stat. 1214 (Apr. 24, 1996), applies. See Lindh v. Murphy, 521
U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim
decided on the merits in state court proceedings unless the state court’s 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

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in a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in state court. See 28 U.S.C. § 2254(d).
As a threshold matter, a court must “first decide what constitutes ‘clearly established
Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade, 538
U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’ under §
2254(d)(1) is the governing legal principle set forth by the Supreme Court at the time the state
court renders its decision.” Id. (citations omitted). A federal habeas court making an unreasonable
application inquiry should ask whether the state court’s application of clearly established federal
law was “objectively unreasonable.” See Williams v. Taylor, 529 U.S. 362, 409 (2000). Therefore,
“a federal court may not issue a writ simply because the court concludes in its independent
judgment that the relevant state court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. Federal courts
may not characterize [] state-court factual determinations as
unreasonable ‘merely because [they] would have reached a different
conclusion in the first instance.’ [. . .] If ‘[r]easonable minds
reviewing the record might disagree’ about the finding in question,
‘on habeas review that does not suffice to supersede the trial court’s
. . . determination.’”
Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (alterations in original) (quoting Wood v. Allen,
558 U.S. 290, 301 (2010)).
The AEDPA standard under § 2254(d) is a “difficult” test to meet and is a “highly
deferential standard for evaluating state-court rulings, which demands that state-court decisions be
given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner
carries the burden of proof and with respect to review under § 2254(d)(1), that review “is limited
to the record that was before the state court that adjudicated the claim on the merits.” Id.

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In applying AEDPA’s standards, the relevant state court decision that is appropriate for
federal habeas corpus review is the last reasoned state court decision. See Bond v. Beard, 539 F.3d
256, 289–90 (3d Cir. 2008). Furthermore, “[w]here there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same
claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Dennis
v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 353 n.10 (3d Cir. 2016) (Jordan, J., concurring in part
and concurring in the judgment) (noting that while Ylst predates the passage of AEDPA, the Ylst
presumption that any subsequent unexplained orders upholding the judgment will be presumed to
rest upon the same ground is still valid). Additionally, AEDPA deference is not excused when
state courts issue summary rulings on claims as “[w]hen a federal claim has been presented to a
state court and the state court has denied relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or state-law procedural principles to the
contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S. 255, 265
(1989)).
IV.

DECISION
Petitioner’s habeas application raises two claims of ineffective assistance of trial counsel.

Under the Sixth Amendment of the United States Constitution, a defendant “[i]n all criminal
prosecutions, [] shall enjoy the right … to have the Assistance of Counsel for his defense.” U.S.
Cont. amend. VI. The Supreme Court has recognized that “the right to counsel is the right to the
effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To prevail on a claim of ineffective
assistance, a petitioner must establish that: 1) counsel’s performance was deficient; and 2) the
petitioner was prejudiced by counsel’s deficiency. See id. at 687. The first Strickland prong is an

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objective standard which 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. In
evaluating whether counsel was deficient, “the proper standard for attorney performance is that of
reasonably effective assistance.” Id. The Constitution requires a fair trial, not some higher quality
of legal representation. See id. at 688-89. Thus, the standard is highly deferential, and counsel is
“strongly presumed to have rendered adequate assistance” and to have used “reasonable
professional judgment.” Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016).
The second prong of the Strickland test requires that a petitioner 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. The petitioner bears the burden of demonstrating how he was
prejudiced. Thus, where a petition contains “no factual matter [. . .] 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.” Judge v.
United States, 119 F. Supp. 3d 270, 280-81 (D.N.J. 2015) (internal quotations and citations
omitted).
This two-prong test also governs ineffective assistance of counsel claims arising out of the
plea process. See Hill v. Lockhart, 474 U.S. 52, 57-59 (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 competence.” Id. at 58. The prejudice prong, on the other hand, requires that a petitioner
demonstrate 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.” Id. at 59. Moreover, where a
petitioner pleads guilty, he must show not only that he would not have pleaded guilty and would

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have instead proceeded to trial, but also that “a decision to reject the plea bargain would have been
rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
A. Failure to Investigate
Petitioner’s first ineffective assistance claim alleges that trial counsel failed to conduct an
adequate investigation into his case. See ECF No. 5 at 5. Specifically, Petitioner alleges that
counsel failed to interview the intended victim of Petitioner’s conspiracy to commit armed robbery
charge, Mr. Neely, before Petitioner entered into a plea agreement with the State. See id.; see also
ECF No. 8-21 at 11-15. Petitioner alleges that if trial counsel had interviewed Mr. Neely, Mr.
Neely would have testified that “no crime occurred.” See ECF No. 5 at 5. Petitioner alleges that
trial counsel could have then “moved for dismissal.” See id.
In denying this claim, the PCR court held that Petitioner’s argument was no more than a
bald assertion. The PCR court held, in relevant part:
When evaluating possible defenses to criminal charges counsel has
a duty to make a reasonable investigation or to make a reasonable
decision that makes particular investigations unnecessary. In any
effectiveness case a particular decision not to investigate must be
directly assessed for reasonableness in all circumstances applying a
heavy measure of deference to counsel’s judgments. State versus
Cooper, 410 NJ Super 43 at 58 (Appellate Division 2009)
certification denied 101 NJ 155 (2010) quoting Strickland at 466 US
pages 690 to 91.
To establish prejudice on the basis of an inadequate pretrial
investigation of potential witnesses a defendant “must assert the
facts that would have been revealed supported by affidavits or
certifications based upon the personal knowledge of the witness.”
State versus Petrozelli, 351 NJ Super 14 at 23 (Appellate Division
2002) quoting State versus Cummings, 321 NJ Super 154 at 170
(Appellate Division 1999) certification denied 162 NJ 199 (1999).
In the present case the defendant has not alleged what further
investigation of the victim would have revealed. See the defendant’s
brief, page 10 to 14.

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Additionally, the defendant has failed to set forth any credible
evidence in the form of affidavit or certification relating to what the
alleged victim would have testified to. Instead the defendant merely
speculates that if his counsel had sought out the victim then perhaps
the victim would have been unavailable to testify and thus the State
might have offered him a better plea deal or dismissed the charges.
See defendant’s brief, page 19.
Therefore the defendant’s claim is merely speculation and amounts
only to a bold assertion of innocence [sic]. As such the defendant’s
claim does not demonstrate that his trial counsel was unreasonable
or ineffective.
ECF No. 8-24 at 8-9.
On appeal, the Appellate Division summarily denied Petitioner’s claim, stating only that
Petitioner had “failed to present a prima facie case of ineffective assistance of counsel based on
his PCR petition” and that the PCR court had “correctly rejected defendant’s PCR petition for the
reasons stated in [the PCR court’s] opinion.” See Pope, 2016 WL 1192616, at *2.
Under federal law, a failure to investigate potentially exculpatory evidence or witnesses
may form the basis of ineffective assistance of counsel. See Strickland, 466 U.S. at 690-91; see
also Brown v. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.N.J. May 2, 2016). To
successfully establish this claim, a petitioner “must make a comprehensive showing as to what the
investigation would have produced. The focus of the inquiry must be on what information would
have been obtained ... and whether such information, assuming admissibility in court, would have
produced a different result.” See Brown, 2016 WL 1732377, at *5 (quoting United States v. Askew,
88 F.3d 1065, 1073 (D.C. Cir. 1996) (internal quotation marks omitted)). The petitioner must also
still demonstrate that he suffered prejudice. See Strickland, 466 U.S. at 690-91. But, where a
petitioner merely speculates as to what a witness might have said if interviewed by counsel and
does not present sworn testimony from that witness, a petitioner will not be able to establish the

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prejudice prong of Strickland. See Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir. 2001) (citing
United States v. Gray, 878 F.2d 702, 712 (3d Cir. 1989)).
Here, Petitioner has provided only a conclusory allegation that the intended victim would
have testified that “no crime occurred.” See ECF No. 5 at 5. Petitioner has not provided any sworn
testimony, affidavit, or certification from Mr. Neely. See id. Petitioner’s mere speculation
regarding Mr. Neely’s testimony is insufficient to establish prejudice. See Duncan, 256 F.3d at
201-02.
Significantly, even if trial counsel had spoken with Mr. Neely, Petitioner has not
demonstrated that Mr. Neely’s testimony, assuming admissibility in court, would have produced a
different result. See Brown, 2016 WL 1732377, at *5. Petitioner was indicted for the crime of
conspiracy to commit armed robbery, contrary to N.J. Stat. Ann. § 2C:5-2 and § 2C:15-1, not for
the completion of that crime. See ECF No. 8-3 at 1. Under New Jersey state law, inchoate criminal
behavior is “designed to culminate in the commission of a substantive offense but has … not yet
achieved its culmination because something remains to be done.” State v. Harmon, 516 A.2d 1047,
1054 (N.J. 1986) (emphasis added). Since Petitioner was not indicted the crime of armed robbery
itself, his intended victim’s testimony was not necessary for the State to prove each element of
conspiracy. Rather, the State needed only to prove that Petitioner agreed with another individual
that they would “engage in conduct which constitutes a crime”, and that Petitioner’s purpose in
doing so was to “promote or facilitate the commission of the crime.” See New Jersey Model Jury
Charges (Criminal), “Conspiracy (N.J.S.A. 2C:5-2)” (revised April 12, 2010). In fact, the State did
proceed to trial against Petitioner’s co-conspirator Majette without Mr. Neely’s testimony. See
ECF No. 8 at 26. Thus, even if trial counsel interviewed Mr. Neely and he stated that “no crime
occurred,” this would likely not have affected Petitioner’s charge for conspiracy.

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Accordingly, Petitioner cannot demonstrate that he was prejudiced by trial counsel’s
alleged failure to investigate the intended victim, nor can he demonstrate that the state court’s
adjudication was an unreasonable application of clearly established federal law. Petitioner is not
entitled to relief on this claim.
B. Failure to File Suppression Motion
Petitioner’s second claim of ineffective assistance alleges merely that his “[c]ounsel was
also ineffective for failing to file [a] suppression motion.” See ECF No. 5 at 5. Although Petitioner
does not elaborate further, it appears Petitioner is attempting to raise the same claim that he did
during his PCR proceedings – that trial counsel should have filed a motion to suppress the eighteen
(18) bags of crack cocaine that were discovered during a strip search of his person. See ECF No.
8-21 at 15; see also ECF No. 8-24 at 9.
In denying this claim, the PCR court held, in pertinent part:
In the present case the defendant was subject only to a strip search.
At the police headquarters the defendant was instructed to remove
his pants, at which time the bag containing 18 smaller bags of crack
cocaine fell to the floor. The officers never performed an inspection
of the defendant’s anal cavity, thus a strip search and not a body
cavity search was conducted upon the defendant.
Additionally, because the defendant admitted to having a “package”
between his buttocks the officers were justified in conducting the
strip search. Since a strip search is permissible when performed
pursuant to an arrest for a crime the search was constitutionally
proper. NJSA 2A:161A-3a.
Therefore, a motion to suppress the 18 bags of crack cocaine would
have been meritless. As such, the defendant’s trial counsel was not
ineffective for failing to file the motion to suppress the crack
cocaine.
ECF No. 8-24 at 10.

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On appeal from the PCR court’s denial, the Appellate Division stated simply that
Petitioner’s argument was “without sufficient merit to warrant discussion.” See Pope, 2016 WL
1192616, at *2. The court did comment, however, that Petitioner had failed to present a prima
facie case of ineffective assistance of counsel, and that the PCR court had correctly rejected
Petitioner’s PCR. See id.
Where a petitioner challenges counsel’s “failure to litigate a Fourth Amendment claim,”
such as the failure to file a suppression motion, a petitioner must prove not only both prongs of the
Strickland test, but he must also prove that his Fourth Amendment claim is meritorious. See
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). It is not considered objectively unreasonable
for counsel to have declined to bring a suppression motion where the motion is “plainly without
merit.” See Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005).
Under the Fourth Amendment, individuals are protected against “unreasonable searches
and seizures.” See U.S. Const. amend. IV. However, this rule is subject to certain well-delineated
exceptions, including searches conducted pursuant to a lawful arrest. See Arizona v. Gant, 556
U.S. 332, 338 (2009) (citing Weeks v. United States, 232 U.S. 383, 392 (1914)). A search incident
to a lawful arrest permits a full search of the person, which may “‘involve a relatively extensive
exploration of the person.’” See United States v. Robinson, 414 U.S. 218, 227 (1973) (quoting
Terry v. Ohio, 392 U.S. 1, 25-6 (1968)).
To determine whether a strip search has violated an individual’s Fourth Amendment right,
the proper inquiry is whether the search was reasonable under the circumstances. See Bell v.
Wolfish, 441 U.S. 520, 558-59 (1979) (“In each case it requires a balancing of the need for the
particular search against the invasion of personal rights that the search entails. Courts must
consider the scope of the particular intrusion, the manner in which it is conducted, the justification

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for initiating it, and the place in which it is conducted.”). Although “[n]o Supreme Court case
discusses the constitutionality of strip searches incident to arrest, which appear to fall between the
‘full searches’ considered by Robinson and the ‘intrusions beyond the body’s surface,’” several of
the Circuit Courts of Appeals have found that “to be reasonable under Wolfish, strip … searches
must be justified by at least a reasonable suspicion that the arrestee is concealing contraband.”
United States v. Clemons, Crim. No. 08-28, 2010 WL 597992, at *4 (W.D. Pa. Feb. 17, 2010),
aff’d, 499 F. App’x 207 (3d Cir. 2012). The standard for reasonable suspicion has been articulated
as “‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.”
See Ornelas v. United States, 517 U.S. 690, 695-96 (1996) (quoting United States v. Cortez, 449
U.S. 411, 417-18 (1981)). This is a lesser standard than probable cause which requires the “known
facts and circumstances” to be “sufficient to warrant a man of reasonable prudence in the belief
that contraband or evidence of a crime will be found.” See id.
Here, Officer Byham had more than sufficient reasonable suspicion that Petitioner was
hiding contraband. Not only did Officer Byham observe Petitioner make a hand-to-hand drug
transaction, but Petitioner also explicitly told Officer Byham that he was concealing drugs between
his buttocks. See ECF No. 8-23 at 56 (“Mr. Pope then confessed to [Officer Byham] that he was
holding a ‘package’ (unknown amounts of narcotics) in his ass.”). Such an admission was clearly
capable of producing more than adequate reasonable suspicion to justify Officer Byham’s search
of Petitioner. See Clemons, 2010 WL 597992, at *4. It must also be noted that Officer Byham did
not search Petitioner’s person until after Petitioner had already been arrested and taken to police
headquarters. See ECF No. 8-21 at 15. Accordingly, the strip search of Petitioner was a search
incident to a lawful arrest and was justified by Officer Byham’s reasonable suspicion that
Petitioner was concealing contraband. Consequently, Petitioner is unable to demonstrate that if

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his trial counsel had filed a motion to suppress the search of his person, that the motion would
have been meritorious. See Kimmelman, 477 U.S. at 375. Petitioner, likewise, cannot demonstrate
that the state courts’ adjudication of this claim was an unreasonable application of, or contrary to,
clearly established federal law. Petitioner is not entitled to relief on this claim.
V.

CERTIFICATE OF APPEALABILITY
Under 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 his state court conviction 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);
see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not
disagree with this Court’s conclusion that Petitioner fails to make a substantial showing of the
denial of a constitutional right, Petitioner’s habeas petition is inadequate to deserve encouragement
to proceed further. Accordingly, a certificate of appealability shall not issue.
VI.

CONCLUSION
For the reasons stated above, the Petition for habeas relief is DENIED, the motion for an

evidentiary hearing is DENIED, and a certificate of appealability shall not issue.

DATED: January 10, 2020

/s/Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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