DREW v. WETZEL

Filing 25

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 04/10/2017. 04/11/2017 ENTERED AND COPIES MAILED TO PRO SE LITIGANT AND E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THOMAS DREW,

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Petitioner,
v.
JOHN E. WETZEL, et al.,
Respondents.

CIVIL ACTION
NO. 15-2725

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

April 10, 2017

Petitioner Thomas Drew (“Petitioner”), who is
currently on parole, filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254, seeking habeas relief on
multiple grounds. Magistrate Judge Marilyn Heffley recommended
that the Court dismiss the petition, and Petitioner objected.
For the reasons set forth below, the Court will adopt Judge
Heffley’s Report and Recommendation, overrule Petitioner’s
objections, and deny the petition.
I.

BACKGROUND AND PROCEDURAL HISTORY
On November 8, 2005, Petitioner was arrested by

Philadelphia police during an investigation into suspected drug
sales. Report & Recommendation (“R&R”) at 1, ECF No. 21.
Petitioner was later charged with, inter alia, possession of a
controlled substance with intent to deliver and criminal use of

a communication facility. Id. Petitioner filed a pre-trial
motion to dismiss under the state’s “prompt trial” rule,
Pennsylvania Rule of Criminal Procedure 600 (“Rule 600”),1 but,
following a hearing, the state trial court denied this motion.
Id. at 1-2. Petitioner additionally filed a motion to suppress
certain physical evidence, but that motion was also denied. Id.
at 2.
On October 11, 2007, a jury convicted Petitioner of
possession with intent to deliver a controlled substance and
criminal use of a communication facility. Id. On November 21,
2007, Petitioner was sentenced to an aggregate seven and a half
to fifteen years in prison. Id. Petitioner timely filed a direct
appeal with the Pennsylvania Superior Court, which affirmed his
conviction. Id. The Superior Court summarized the facts
underlying Petitioner’s conviction as follows:
On November 8, 2005, using a confidential informant
(CI), police conducted a controlled buy of heroin at
[Petitioner’s] property at 743 N. 63rd St. in
Philadelphia. Immediately after the controlled buy,
[Petitioner] was arrested outside his residence while
in possession of the pre-recorded [buy] money. Using
[Petitioner’s] keys to the property, the police then
executed an anticipatory search warrant on the
premises. The warrant indicated that the place to be
searched was the second floor of the premises. Police
did not find contraband on the second floor. They did,
however, unlock a door on the second floor using
1

This rule generally requires that the Commonwealth
bring a defendant to trial within 365 days of the filing of the
criminal complaint. See Pa. R. Crim. P. 600(A)(2)(a).
2

[Petitioner’s] keys. That door opened onto a stairway
leading to a third-floor kitchen. Police recovered a
large quantity of heroin from a bucket in this
kitchen.
Id. (quoting Commonwealth v. Drew, No. 1300 EDA 2013, slip op.
at 1 (Pa. Super. Ct. Oct. 6, 2014)). On February 12, 2010,
Petitioner’s petition to the Pennsylvania Supreme Court for
allowance of appeal was denied. Id.
On May 17, 2010, Petitioner sought collateral relief
under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa.
Cons. Stat. §§ 9541-9551, by filing a pro se motion alleging
ineffective assistance of counsel. Id. Petitioner was appointed
two successive lawyers, each of whom withdrew. Id. Before later
withdrawing from the case for medical reasons, Petitioner’s
third court-appointed attorney filed a “Supplemental
Consolidated Amended Petition and Memorandum of Law” on July 27,
2012. Id. at 2-3. Finally, Petitioner moved to proceed pro se,
and, following a Grazier2 hearing on January 10, 2013, his
request to proceed pro se was granted. Id. at 3. Petitioner then
adopted the petition drafted by his prior counsel, but that
petition was dismissed by the PCRA court on April 12, 2013. Id.

2

See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.
1998) (requiring a determination on the record regarding the
voluntariness of waiver of counsel before denying a defendant’s
request to conduct a pro se appeal of the denial of postconviction relief).
3

Petitioner timely appealed the dismissal of his PCRA
petition and was appointed counsel. Id. On October 21, 2013, the
Superior Court granted a petition filed by Petitioner seeking
remand to the trial court to develop the record on the basis
that a transcript was missing from a hearing on Petitioner’s
pre-trial Rule 600 motion. Id. Four evidentiary hearings were
held to reconstruct the record of this hearing. Id. After
consulting with counsel, the trial court determined that
Petitioner’s presence was not required during these hearings.
Id. Instead, Petitioner’s trial counsel offered testimony, and
his PCRA counsel presented the court with a statement of
evidence pursuant to Pennsylvania Rule of Appellate Procedure
1923.3 Id. The Pennsylvania Superior Court ultimately affirmed
denial of post-conviction relief on October 6, 2014. Id. The
Pennsylvania Supreme Court denied Petitioner’s petition for
3

This rule provides in full as follows:
If no report of the evidence or proceedings at a
hearing or trial was made, or if a transcript is
unavailable, the appellant may prepare a statement of
the evidence or proceedings from the best available
means, including his recollection. The statement shall
be served on the appellee, who may serve objections or
propose amendments thereto within ten days after
service. Thereupon the statement and any objections or
proposed amendments shall be submitted to the lower
court for settlement and approval and as settled and
approved shall be included by the clerk of the lower
court in the record on appeal.

Pa. R. App. P. 1923 (emphasis added).
4

allowance of appeal on April 13, 2015. Id. (citing Commonwealth
v. Drew, No. 517 EAL 2014 (Pa. Apr. 13, 2015)).
On May 15, 2015, Petitioner filed the instant pro se
petition for a writ of habeas corpus. Pet., ECF No. 1. He stakes
his claim for habeas relief primarily on the following four
grounds: (1) the PCRA court improperly denied him an evidentiary
hearing and the trial court erroneously denied his Rule 600
motion, Pet. at 5; (2) the trial court erroneously denied him
the right to appeal nunc pro tunc, id. at 7; (3) he was
erroneously excluded from the hearings to reconstruct the
missing transcript of his pre-trial Rule 600 motion hearing, id.
at 9; and (4) the trial court erroneously denied his motion to
suppress and denied him his right to examine the confidential
informant, id. at 10-11, 17.
II.

LEGAL STANDARD
A court may refer an application for a writ of habeas

corpus to a United States magistrate judge for a report and
recommendation. See Rules Governing § 2254 Cases, R. 10 (“A
magistrate judge may perform the duties of a district judge
under these rules, as authorized under 28 U.S.C. § 636.”). A
prisoner may object to the magistrate judge’s report and
recommendation within fourteen days after being served with a
copy thereof. See 28 U.S.C. § 636(b)(1); E.D. Pa. R.

5

72.1(IV)(b). The court then “make[s] a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1).
On habeas review, a federal court must determine
whether the state court’s adjudication of the claims raised was
(1) contrary to, or an unreasonable application of, clearly
established federal law, or (2) based on an unreasonable
determination of the facts in light of the evidence presented.
28 U.S.C. § 2254(d). In conducting this review, the federal
court should bear in mind that “[a] habeas corpus petition
prepared by a prisoner without legal assistance may not be
skillfully drawn and should thus be read generously.” Rainey v.
Varner, 603 F.3d 189, 198 (3d Cir. 2010); see also U.S. ex rel.
Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (“It is
the policy of the courts to give a liberal construction to pro
se habeas petitions.”).
Ultimately, the court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). A court is not
required to review general objections. See Brown v. Astrue, 649
F.3d 193, 195 (3d Cir. 2011) (“We have provided that § 636(b)(1)
requires district courts to review such objections de novo

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unless the objection is ‘not timely or not specific.’” (emphasis
added) (quoting Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984)).
III. DISCUSSION
A.

Claims Sounding in State Law

Judge Heffley recommends that this Court find that the
following of Petitioner’s claims are not cognizable on habeas
review: (1) Petitioner’s claim that the PCRA court improperly
refused to hold an evidentiary hearing, see R&R at 7-8; (2)
Petitioner’s claim that the trial court erroneously denied his
Rule 600 motion, see id. at 8-11; (3) Petitioner’s claim that
the trial court erroneously denied him the opportunity to appeal
nunc pro tunc, see id. at 11-14; and (4) Petitioner’s Fourth
Amendment claim, see id. at 19-22.
The Court agrees with Judge Heffley’s analyses and
fully adopts her recommendations concerning these claims.
Petitioner’s claim that the PCRA court erred in declining to
hold an evidentiary hearing on counsel’s failure to raise a
speedy trial claim on direct appeal is a claim alleging state
law error, which is not cognizable on habeas review. See 28
U.S.C. § 2254(a) (“[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

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laws or treaties of the United States.” (emphasis added));
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize
that it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”).
The same is true for Petitioner’s claim that the trial court
erred in denying his Rule 600 motion, and also for his claim
that the trial court erred by not granting his request to appeal
nunc pro tunc. Finally, the Court agrees that Petitioner’s
Fourth Amendment claim is not cognizable on habeas review
because he “unquestionably had a full and fair opportunity to
litigate his Fourth Amendment claim--via both pre-trial motion
and direct appeal,” R&R at 21, and, “where the State has
provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal
habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial,”
Stone v. Powell, 428 U.S. 465, 494 (1976).
Petitioner grounds his objections in an argument that
these claims are cognizable on habeas review because each
invokes principles of federal constitutional law. He argues that
his claim regarding the denial of an evidentiary hearing on
counsel’s failure to raise a speedy trial claim on direct appeal
“is clearly a state claim that is a codification of federal
constitutional-law,” and similarly that the denial of his Rule
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600 motion “logically mounts to a violation of [the] federal
counterpart” to Rule 600 (i.e., the Sixth Amendment). Pet’r’s
Objs. 3-4, ECF No. 24. He contends generally that his claim
regarding the denial of his request to appeal nunc pro tunc is
cognizable on habeas review because this denial constitutes a
violation of the Fourteenth Amendment.
The Court finds no merit in Petitioner’s objections.
As Judge Heffley correctly observed, a federal court considering
a habeas petition “can take no cognizance of non-constitutional
harm to the defendant flowing from a state’s violation of its
own procedural rule, even if that rule is intended as a guide to
implement a federal constitutional guarantee.” Wells v. Petsock,
941 F.2d 253, 256 (3d Cir. 1991). Furthermore, the Third Circuit
has held specifically that Pennsylvania’s prompt trial rule
“does not define the contours of the federal constitutional
right to a speedy trial.” Id. at 256. The Court therefore
concludes that, despite Petitioner’s efforts to couch his claims
in terms of constitutional law, they are nevertheless state-law
error claims that are not cognizable on habeas review.4

4

Insofar as Petitioner objects that his Rule 600 claim
is based directly on his Sixth Amendment right to a speedy
trial, see Pet.’s Objs. at 4, the Court agrees with Judge
Heffley that any Sixth Amendment claim has been procedurally
defaulted. See infra Section III.B.
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B.

Procedurally Defaulted Claims

Judge Heffley recommends that this Court find that the
following of Petitioner’s claims have been procedurally
defaulted: (1) any Sixth Amendment speedy trial claim, see R&R
at 10-11; and (2) Petitioner’s claim that the trial court
erroneously denied him the right to confront the confidential
informant, see id. at 22-24. The Court again agrees with Judge
Heffley’s analyses of these claims and will adopt her
recommendations in full.
“It is axiomatic that a federal habeas court may not
grant a petition for a writ of habeas corpus filed by a person
incarcerated from a judgment of a state court unless the
petitioner has first exhausted the remedies available in the
state courts.” Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.
1997), as amended (Jan. 16, 1998) (citing 28 U.S.C.
§ 2254(b)(1)(A); Toulson v. Beyer, 987 F.2d 984, 986-87 (3d Cir.
1993)). The procedural default barrier also precludes federal
courts from reviewing a state petitioner’s habeas claims if the
state court decision is based on a violation of state procedural
law that is independent of the federal question and adequate to
support the judgment. Coleman v. Thompson, 501 U.S. 722, 729
(1991). Furthermore, “if the petitioner failed to exhaust state
remedies and the court to which the petitioner would be required
to present his claims in order to meet the exhaustion
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requirement would now find the claims procedurally barred . . .
there is a procedural default for purposes of federal habeas
regardless of the decision of the last state court to which the
petitioner actually presented his claims.” Id. at 735 n.1.
To overcome procedural default, a prisoner must
demonstrate “cause for the default and actual prejudice as a
result of the alleged violation of federal law” or that “failure
to consider the claims will result in a fundamental miscarriage
of justice.” Id. at 750.
For his part, Petitioner does not object to Judge
Heffley’s finding that his failure to raise a Sixth Amendment
claim on direct appeal or PCRA review constitutes a failure to
fairly present this claim to the state court and thus a
procedural default for purposes of habeas review. He does,
however, object generally to Judge Heffley’s finding that he
procedurally defaulted his claim that he was erroneously denied
his right to confront the confidential informant. See Pet.’s
Objs. at 8-9. Petitioner argues in his objections that his Sixth
Amendment confrontation right “is so important [that] the
Superior Court had the judicial responsibility to remand
[P]etitioner’s claim back to the trial court for the purposes of
an evidentiary hearing.” Id. at 9.
The Court finds that Petitioner’s generalized
objection has no merit. Petitioner does not address, either
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directly or indirectly, the Superior Court’s dismissal of this
claim on the basis of waiver, which is an independent and
adequate state law ground rendering the claim unavailable on
federal habeas review. See R&R at 24. Moreover, Petitioner does
not argue that he can overcome his procedural default by
demonstrating either “cause for the default and actual prejudice
as a result of the alleged violation of federal law” or that
“failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750. Instead, he
argues only that “[t]he failure of the state courts to perform
their judicial duties” warrants “an evidentiary hearing on this
claim.” Pet.’s Objs. at 9. Because this is not a ground on which
a petitioner can overcome procedural default, the Court will
overrule Petitioner’s objections regarding this claim.
C.

Claim Regarding Evidentiary Hearing to
Reconstruct the Record

Judge Heffley succinctly explains the background of
this claim as follows:
After [Petitioner] filed a pre-trial motion to dismiss
under Rule 600, the prompt trial rule, the trial court
held a hearing and denied the motion. The transcript
from that hearing became unavailable after the court
reporter died. As a result, when [Petitioner] later
appealed the denial of PCRA relief, the Pennsylvania
Superior Court ordered that evidentiary hearings be
held to reconstruct the record of the pre-trial Rule
600 hearing. These hearings were meant to enable the

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parties to construct a statement in lieu of the
missing records, pursuant to Pa. R. A[pp]. P. 1923.5
R&R at 15 (citations omitted).
Petitioner objects to Judge Heffley’s recommendation
regarding this claim on the basis that “failure of the trial
court to permit [P]etitioner to participate in the hearings to
compose statements of facts pertaining to the absent transcript
denied [Petitioner] his right of due process of law under the
14th Amendment of the United States Constitution.” Pet.’s Objs.
at 6. In support of his argument that he has “a right of
presence and representation,” he cites Commonwealth v. Johnson,
768 A.2d 1177 (Pa. Super. Ct. 2001), a case in which the
defendant argued that his absence during jury instructions
violated his constitutional right to be present at all stages of
the proceedings.
Petitioner further argues, albeit somewhat unclearly,
that he was prejudiced by his absence from the evidentiary
hearings in question because he also alleges ineffective
assistance of his counsel. Judge Heffley describes this
contention in her report and recommendation as an argument that
“because the claim [at issue in the evidentiary hearings] was
ineffective assistance of counsel, his absence from the hearings
ipso facto prejudiced him and is reversible error.” R&R at 18
5

For the full text of this rule, see supra n.3.
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n.14 (citing Pet.’s Reply at 5). In Judge Heffley’s view, this
argument does not save Petitioner’s claim because “[w]hat
[Petitioner] fails to do is explain how his claim of ineffective
assistance of counsel overcomes the state courts’ apparently
straightforward application of Stincer.”6 Id.
The Court agrees with Judge Heffley that the state
courts’ determinations that Petitioner’s presence was not
required at the evidentiary hearings was neither “contrary to,”
nor an “unreasonable application of,” “clearly established
6

This Court does not necessarily agree that Petitioner
has failed to provide this explanation because, construing the
pro se Petition liberally, it is apparent that Petitioner’s
basic point is that his presence would have contributed to the
fairness of the procedure by ensuring that his allegedly
ineffective counsel would not have continued to act
ineffectively at the evidentiary hearing. See Pet. at 6 (noting
that Petitioner did not raise an ineffectiveness claim related
to this issue on direct appeal because he was “represent[ed] by
Counsel who would have been unable to raise his
ineffectiveness”).
Nevertheless, the Court finds that, because the
purpose of the evidentiary hearings was to reconstruct the lost
transcript, and because Petitioner stated he did not recall
attending the first hearing--let alone what happened there--the
state courts correctly determined that Petitioner’s presence at
a hearing whose purpose was to reconstruct an earlier hearing
that Petitioner admittedly did not remember would be “useless,
or the benefit but a shadow.” Kentucky v. Stincer, 482 U.S. 730,
745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07
(1934)). Framed slightly differently, because the purpose of the
evidentiary hearings was not to consider the alleged
ineffectiveness of Petitioner’s counsel but instead was to
reconstruct the record of an earlier hearing on a Rule 600
motion, it was not unreasonable for the state courts to
determine that Petitioner’s presence could not have contributed
to the fairness of the proceedings in any manner.
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Federal law.” 28 U.S.C. § 2254(d)(1). Both the PCRA court and
the Superior Court correctly applied the Stincer standard to
consider whether Petitioner’s presence was required. See
Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (holding that “a
defendant is guaranteed the right to be present at any stage of
the criminal proceeding that is critical to its outcome if his
presence would contribute to the fairness of the procedure”).
Applying this standard, these courts determined that
Petitioner’s presence was not required because he had not
recalled being present during the initial Rule 600 hearing--and,
accordingly, “[Petitioner’s] presence at a series of listings
whose sole purpose was the reconstruction of the record of that
hearing would have in no way contributed to the fairness of the
procedure.” R&R at 16 (quoting Commonwealth v. Drew, No. 1300
EDA, slip op. at 11 (Pa. Super. Ct. Oct. 6, 2014)).
The Court further agrees with Judge Heffley that,
“even if [Petitioner] was erroneously excluded from these
hearings, the exclusion was, at worst, harmless error.” Id. at
19; see also Brecht v. Abrahamson, 507 U.S. 619, 637 (holding
that the harmless error standard that applies on habeas review
requires a showing of “actual prejudice” (quoting United States
v. Lane, 474 U.S. 438, 449 (1986)). The purpose of the
evidentiary hearings was to construct a statement in lieu of the
missing transcript from an earlier hearing on Petitioner’s Rule
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600 motion. Petitioner has not explained what or how he would
have contributed had he been present at these hearings, nor has
he explained how anything he might have contributed would have
altered the newly constructed statement that resulted from those
hearings. Accordingly, the Court finds that Petitioner has not
shown “actual prejudice” as required to obtain “habeas relief
based on trial error.” Brecht, 507 U.S. at 637.
D.

Ineffective Assistance of Counsel Claim

A § 2254 petition may be based upon a violation of the
Sixth Amendment right to effective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 686, 697 (1984). By
claiming his counsel was ineffective, a defendant attacks “the
fundamental fairness of the proceeding.” Id. at 697. Therefore,
as “fundamental fairness is the central concern of the writ of
habeas corpus,” “[t]he principles governing ineffectiveness
claims should apply in federal collateral proceedings as they do
on direct appeal or in motions for a new trial.” Id. Those
principles require a convicted defendant to establish both that
(1) his counsel’s performance was deficient, and (2) the
deficient performance prejudiced his defense. Id. at 687;
Holland v. Horn, 519 F.3d 107, 120 (3d Cir. 2008).
To prove deficient performance, a petitioner must show
that his “counsel’s representation of him fell below an

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objective standard of reasonableness.” Strickland, 466 U.S. at
687-88. The court’s “scrutiny of counsel’s performance must be
highly deferential.” Douglas v. Cathel, 456 F.3d 403, 420 (3d
Cir. 2006). Accordingly, there is a “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Grant v. Lockett, 709 F.3d 224, 234
(3d Cir. 2013) (quoting Strickland, 466 U.S. at 689). In raising
an ineffective assistance claim, the petitioner must first
identify the acts or omissions alleged not to be the result of
“reasonable professional judgment.” Strickland, 466 U.S. at 690.
Next, the court must determine whether those acts or omissions
fall outside of the “wide range of professionally competent
assistance.” Id.
To prove prejudice, a convicted defendant must
affirmatively prove that the alleged attorney errors “actually
had an adverse effect on the defense.” Id. at 693. “The
defendant must show that there is a reasonable probability that,
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 Court approves Judge Heffley’s recommendation that
Petitioner’s ineffective assistance claim be denied on the basis
that Petitioner’s underlying Rule 600 claim lacked arguable
17

merit. As Judge Heffley explains, Petitioner’s “sole argument”
as to why the trial court’s decision regarding his Rule 600
motion was erroneous is that “a second criminal complaint was
never filed.” R&R at 13. Accordingly, Petitioner’s argument that
his counsel was ineffective for failing to raise the Rule 600
issue on direct appeal rests exclusively on the premise that a
second criminal complaint was never filed (and thus that it was
at least arguably erroneous for the trial court to have denied
Petitioner’s Rule 600 motion).7
Because it is clear from the record that a second
criminal complaint was, in fact, filed (and also that the
Commonwealth acted with due diligence), the Court agrees with
Judge Heffley’s conclusion that “[t]he trial court, PCRA Court
and Pennsylvania Superior Court correctly found that
[Petitioner] was not entitled to relief under Rule 600,” and
therefore that “[a]ppellate counsel was not ineffective for
failing to raise a meritless claim.” R&R at 14 (citing Ross v.
Dist. Att’y, 672 F.3d 198, 211 n.9 (3d Cir. 2012) (“We have held
. . . that ‘counsel cannot be deemed ineffective for failing to

7

Relevant Pennsylvania law provides that, “[i]f the
prosecution was diligent, the applicable run date [under Rule
600] . . . is triggered when the Commonwealth files the second
complaint.” Commonwealth v. Peterson, 19 A.3d 1131, 1136 (Pa.
Super. Ct. 2011), aff’d, 615 Pa. 587, 44 A.3d 655 (2012).
18

raise a meritless claim.’” (quoting Werts v. Vaughn, 228 F.3d
178, 202 (3d Cir. 2000))).
In his objections, Petitioner does no more than
reiterate his claim that “the court erroneously denied [his]
Rule 600(G) motion under the false presumption that there had
been a second criminal complaint filed.” Pet.’s Objs. at 4. This
objection does not change the fact that a second criminal
complaint was, in fact, filed--and thus it does not save
Petitioner’s claim.

IV.

CERTIFICATE OF APPEALABILITY
A petitioner seeking a certificate of appealability

must demonstrate “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (“When the district court
denies a habeas petition on procedural grounds without reaching
the prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was
correct in its procedural ruling.”). “A petitioner satisfies
this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his
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constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Because Petitioner has not made a substantial showing
of the denial of his constitutional rights, the Court declines
to issue a certificate of appealability in this case.
V.

CONCLUSION
For the foregoing reasons, the Court will adopt Judge

Heffley’s Report & Recommendation, overrule Petitioner’s
objections thereto, and deny the Petition for a writ of habeas
corpus without an evidentiary hearing. The Court declines to
grant a certificate of appealability.

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