Heleva v. Brooks et al

Filing 91

MEMORANDUM (Order to follow as separate docket entry) re: amended petition for writ of habeas corpus 35 filed by Daniel Arthur Heleva. (See memo for complete details.)Signed by Chief Judge Christopher C. Conner on 1/9/18. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL ARTHUR HELEVA,
Petitioner
v.
WARDEN MRS M. BROOKS, and
PA STATE ATTORNEY GENERAL,
Respondents

:
:
:
:
:
:
:
:
:
:

CIVIL NO. 1:07-CV-1398
(Chief Judge Conner)

MEMORANDUM
On August 1, 2007, petitioner Daniel Arthur Heleva (“Heleva”) filed his
original petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a
judgment and conviction imposed in the Court of Common Pleas of Monroe County.
(Doc. 1). He is presently proceeding via an amended petition for writ of habeas
corpus. (Doc. 35). For the reasons discussed below, the court will deny the
amended petition.
I.

Procedural History
As stated supra, Heleva filed his initial petition for writ of habeas corpus on

August 1, 2007. (Doc. 1). Respondents argued in their response that the petition
was subject to dismissal because Heleva “had not completed one full round of the
state‟s established review process before seeking federal review of the issues raised
in the instant petition.” (Doc. 7, at 5). On October 3, 2007, the court determined
that the stay and abeyance rule announced in Crews v. Horn, 360 F.3d 146, 151 (3d

Cir. 2004) was inapplicable because the petition was not a mixed petition, and
dismissed the petition for failure to exhaust state court remedies. (Doc. 19). Heleva
filed a timely notice of appeal. (Doc. 24).
On October 6, 2009, the United States Court of Appeals for the Third Circuit
issued a mandate vacating the October 3, 2007 order and “remand[ing] the matter
to the District Court for it to decide whether Heleva is eligible, under the good
cause test, for the stay-and-abeyance procedure set forth by the Supreme Court in
Rhines [v. Weber, 544 U.S. 269 (2005)] and endorsed in Pace [v. DiGuglielmo, 544
U.S. 408 (2005)] as governing just this type of situation.” (Doc. 31-2, at 3-4, n. 1). On
December 9, 2009, this court stayed the proceedings pending Heleva‟s exhaustion of
state court remedies. (Doc. 33).
On February 12, 2013, the court granted Heleva‟s motion to reopen the case.
(Doc. 41). However, because Heleva mistakenly represented that exhaustion was
complete, on October 18, 2013, the court again stayed the proceedings pending
Heleva‟s exhaustion of his claim that trial counsel was ineffective for failing to
assert a speedy trial violation, the sole issue before this court. (Doc. 66).
On July 20, 2016, after Heleva‟s compliance with the exhaustion requirement,
the action was reopened. (Doc. 76).
II.

State Court Proceedings
Following a jury trial, Heleva was convicted in the Court of Common Pleas of

Monroe County of first degree murder (accomplice liability), conspiracy to commit
aggravated assault, unlawful restraint, tampering with evidence, and four counts of
endangering the welfare of children. (Doc. 17, at 23). On March 4, 2005, he was
2

sentenced to a term of life imprisonment, and term prison sentences which were
ordered to run consecutive to the life term. (Id.)
Heleva pursued direct appeal proceedings. (Id. at 29; see also electronic
docket sheet for Commonwealth v. Heleva, Superior Court of Pennsylvania, 896
EDA 2005, found at http://ujsportal.pacourts.us). In a per curiam order dated
December 5, 2005, the Pennsylvania Superior Court dismissed Heleva‟s direct
appeal because he failed to file a brief.
On December 5, 2006, Heleva filed a petition for post-conviction collateral
relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 PA. CONS. STAT. §§
9541-46, claiming that his appellate counsel was ineffective for failing to file a brief
on direct appeal. (Doc. 17, at 42). On January 8, 2007, Heleva submitted a separate
filing wherein he alleged that his constitutional right to a speedy trial was violated
because his signature on a May 7, 2004 Rule 600 waiver form was forged. See
Commonwealth v. Heleva, 2016 WL 280461, *2 (Pa. Super. 2016). On April 16, 2010,
the PCRA court granted Heleva‟s PCRA petition, concluding that appellate counsel
was ineffective for failing to file an appellate brief. It restored his direct appeal
rights nunc pro tunc. Commonwealth v. Heleva, 26 A.3d 1177, 1255 EDA 2010 (Pa.
Super 2011), appeal denied, 30 A.3d 487 (Pa. 2011). The PCRA court denied relief
regarding Heleva‟s claim that the Rule 600 form was forged. Id.
On March 3, 2011, the Pennsylvania Superior Court affirmed Heleva‟s
judgment of sentence. See Commonwealth v. Heleva, 2016 WL 280461, at *2. The
Pennsylvania Supreme Court subsequently denied Heleva‟s petition for allowance
of appeal. Id.
3

On June 27, 2012, Heleva filed a second pro se PCRA petition asserting that
trial counsel was ineffective for failing to raise a Rule 600 defense. Id. Specifically,
Heleva asserted that his trial should have commenced by June 26, 2004, within 120
days after a panel of the Superior Court denied an interlocutory appeal on February
26, 2004, and that the Commonwealth failed to establish that it exercised due
diligence in bringing him to trial. Id. Counsel was appointed to represent Heleva,
and filed an amended petition on March 28, 2014. Id. On May 30, 2014 and July 28,
2014, PCRA evidentiary hearings were held. Id. On October 27, 2014, Heleva filed a
petition to waive counsel and proceed pro se. Id. The court granted Heleva‟s
request to proceed pro se and counsel was granted leave to withdraw. Id. On
December 1, 2014, Heleva filed a pro se brief, arguing that trial counsel failed to
raise a Rule 600 defense, that his May 7, 2004 Rule 600 waiver was involuntary or
fraudulent, and that the Commonwealth failed to meet its burden of proving the
exercise of due diligence in bringing him to trial. See (Doc. 78-5, PCRA Court
Opinion, dated March 13, 2015, at 6). On March 13, 2015, the PCRA court denied
Heleva‟s petition. Id. Heleva filed an appeal with the Pennsylvania Superior Court.
See (Doc. 78-6).
On January 22, 2016, the Pennsylvania Superior Court affirmed the PCRA
court‟s decision. Commonwealth v. Heleva, 2016 WL 280461. The Superior Court
adopted the “sound reasoning” of the PCRA court as follows:
The PCRA court has provided a well-reasoned discussion of its
disposition. See PCRA Court Opinion, 3/13/2015, at 7-23 (finding: (1)
counsel was not ineffective because Heleva had not met his burden in
proving that the May 7, 2004, waiver was either forged or unknowing
and involuntary, where he had signed two prior Rule 600 waivers, the
4

waiver at issue specifically referred to the petition for permission to
appeal nunc pro tunc he intended to file, trial counsel testified that
Heleva did sign the document, and Heleva‟s handwriting expert, Kittel,
could not testify to a reasonable degree of certainty whether Heleva‟s
signature was or was not genuine; (2) counsel was not ineffective for
failing to seek dismissal under Rule 600 because the court did not
violate Heleva‟s speedy trial rights where (a) the proper count was 365
days, and, (b) including all delays attributable to the defense, based
upon the waivers appearing of record, that period expired on July 26
2005, and Heleva‟s trial began on November 3, 2004; and (3) because
Heleva did not meet his burden of proof by a preponderance of the
evidence, his request for a second expert was not necessary).
Id. at *3 (footnote omitted).
III.

Discussion
Heleva contends that he was essentially denied the right to a speedy trial

based on counsel‟s failure to move for dismissal under Rule 600 and that the Rule
600 waiver forms were fraudulent.1 (Doc. 35, at 9-13). A collateral attack based on
the Sixth Amendment‟s guarantee of effective assistance of counsel is governed by
the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To
prevail on this claim, a defendant must demonstrate, first, that trial counsel‟s
representation fell below an objective level of reasonableness based upon prevailing
professional norms and, second, that the deficient representation prejudiced the
defendant. See id. at 687-88. A defendant must establish both elements to obtain
relief. See United States v. Washington, 869 F.3d 193, 204 (3d Cir. 2017).
Counsel‟s performance is deficient only if it falls below the wide range of
competence demanded of attorneys in criminal cases. Id. at 687-89. This requires a
Heleva‟s claims are somewhat difficult to decipher, and the court has made
every effort to view them broadly in light of his pro se status. See Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (noting that pro se pleadings are
to be liberally construed).
1

5

showing “that counsel made errors so serious that counsel was not functioning as
the „counsel‟ guaranteed the defendant by the Sixth Amendment.” Harrington v.
Richter, 562 U.S. 86, 104 (2001) (quoting Strickland, 466 U.S. at 687). When a federal
habeas petitioner advances an ineffective assistance of counsel claim that a state
court has already rejected on its merits, he is faced with “the doubly deferential
judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1)
standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Under this “doubly
deferential” standard, the court must “give[ ] both the state court and the defense
attorney the benefit of the doubt.” Burt v. Titlow, 134 S.Ct. 10, 13 (2013). Indeed, a
federal habeas court is “required not simply to give the attorney the benefit of the
doubt, but to affirmatively entertain the range of possible reasons petitioner‟s
counsel may have had for proceeding as he did.” Branch v. Sweeney, 758 F.3d 226,
235 (3d Cir. 2014) (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011))
(alterations omitted). With respect to the prejudice prong of the Strickland test, the
petitioner “must show that there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
The court first considers Heleva‟s potential claim under the state speedy trial
rule, PA. R. CRIM. P. 600. Criminal proceedings commenced when a criminal
complaint was filed against Heleva on November 26, 2001. See Commonwealth v.
Heleva, CP-45-CR-0000249-2002. Heleva‟s jury trial began on November 3, 2004. Id.
Heleva argues that his trial should have commenced no later than June 26, 2004,
within 120 days after a panel of the Superior Court denied an interlocutory appeal
6

on February 26, 2004. (Doc. 35, at 8). Specifically, he asserts a violation of the state
speedy trial rule, which requires a trial to commence within 120 days after the date
of remand. (Id.) (citing PA. R. CRIM. P. 600). Heleva further claims that trial
counsel forged his signature on the Rule 600 waiver form. (Doc. 35; Doc. 79, at 2).
The PCRA court considered Heleva‟s ineffectiveness claim with respect to his
Rule 600 speedy trial claim and his claim that the waiver was forged. (Doc. 78-5,
PCRA Court Opinion, dated March 13, 2015). The Pennsylvania Superior Court
adopted the reasoning of the PCRA court, and denied these claims on the merits,
finding:
(1) counsel was not ineffective because Heleva had not met his burden
in proving that the May 7, 2004, waiver was either forged or unknowing
and involuntary, where he had signed two prior Rule 600 waivers, the
waiver at issue specifically referred to the petition for permission to
appeal nunc pro tunc he intended to file, trial counsel testified that
Heleva did sign the document, and Heleva‟s handwriting expert, Kittel,
could not testify to a reasonable degree of certainty whether Heleva‟s
signature was or was not genuine; (2) counsel was not ineffective for
failing to seek dismissal under Rule 600 because the court did not
violate Heleva‟s speedy trial rights where (a) the proper count was 365
days, and, (b) including all delays attributable to the defense, based
upon the waivers appearing of record, that period expired on July 26
2005, and Heleva‟s trial began on November 3, 2004; and (3) because
Heleva did not meet his burden of proof by a preponderance of the
evidence, his request for a second expert was not necessary).
Commonwealth v. Heleva, 2016 WL 280461, at *3 (citing PCRA Court Opinion, dated
March 13, 2015, at 7-23).
The state PCRA court, whose reasoning was explicitly adopted by the
appellate court, also denied Heleva‟s claim that the Rule 600 waiver form was
forged or unknowing and involuntary, finding:

7

Mr. Heleva has not met his burden of proving that the May 7,
2004 waiver was forged or that it was not a knowing and voluntary
waiver. To review the evidence on this point, the Defendant was
charged with criminal homicide on November 26, 2001. He filed an
omnibus pretrial motion on May 1, 2002. Those proceedings excluded
141 days from the Rule 600 deadline.
The Commonwealth was prepared for trial in January, 2003,
which met Rule 600 requirements. Mr. Heleva retained Attorney
Fannick to represent him, who filed a motion for continuance, along
with Mr. Heleva‟s first written waiver of Rule 600 through June 30,
2003.
The Commonwealth obtained a status conference with the court
on June 30, 2003, the last day of Mr. Heleva‟s waiver. Mr. Heleva
signed a second Rule 600 waiver on June 30, 2003, again waiving his
right to speedy trial until October 3, 2003. Both of these continuances
were granted at Mr. Heleva‟s request to allow his counsel to prepare
for trial. The Commonwealth had been prepared for trial in January
and was requesting a trial date at the June, 2003 conference.
The court scheduled jury selection for September 29, 2003,
which was well within the Rule 600 deadline. On September 18, 2003,
Mr. Heleva filed a Motion to Quash Aggravating Factors, seeking to
remove the aggravating factor or torture from Mr. Heleva‟s capital
trial. This would have removed the possibility of the death penalty for
Mr. Heleva. The court addressed Mr. Heleva‟s motion on the day of
jury selection. The motion was denied, but Mr. Heleva‟s request for
leave to seek permission for an interlocutory appeal on the question
was granted. Mr. Heleva again waived his Rule 600 rights on the
record that day. 9/23/2003, NT, at 8. The jury was then released and
the matter was stayed pending appeal. Mr. Heleva‟s counsel did not
properly pursue the petition to the superior court, and on April 6, 2004,
the superior court transmitted the record back to this court.
The Commonwealth then filed a motion for a status conference
on May 5, 2004, again seeking a trial date for the third time. The
conference was scheduled by the court for May 10, 2004 but Mr. Heleva
filed the waiver before that date and the conference was cancelled.
Again, Mr. Heleva sought a delay of trial so he could pursue an
interlocutory appeal, now nunc pro tunc, of the court‟s denial of the
motion to quash torture as an aggravating circumstance. The court
allowed Mr. Heleva to pursue this new motion to the appellate court.
The third Rule 600 written waiver, signed by Mr. Heleva and his
counsel, was filed on May 7, 2004. The waiver specifically referred to
8

Mr. Heleva‟s Petition for Permission to Appeal, Nunc Pro Tunc. So
once more, Mr. Heleva sought to delay trial to attempt to exclude
consideration of the death penalty from the jury. The waiver was
directly to his benefit.
Mr. Heleva has testified that he did not sign the waiver.
However, his counsel has testified that he did. The circumstances
cited above indicate his counsel‟s testimony is more credible on this
point. It was to Mr. Heleva‟s significant benefit to overturn the trial
court‟s ruling on the aggravated circumstance of torture. It is
reasonable that Mr. Heleva would sign such a waiver at that time. Mr.
Heleva had the signatures reviewed by an expert; Mr. Kittel could not
testify to a reasonable degree of certainty that Mr. Heleva‟s signature
was or was not genuine.
As previously stated, Mr. Heleva did not meet his burden of
proof by a preponderance of the evidence on this question. Although
he asked for another expert, the court sees no necessity in the absence
of credible evidence, to allow him to keep looking for one. Attorney
Fannick had no reason to file a Rule 600 motion and he will not be
found to be ineffective because of a failure to do so.
(Doc. 78-5, PCRA Court Opinion, dated March 13, 2015, at 19-22).
As the Third Circuit has previously recognized:
Our review of a federal habeas corpus petition is limited to remedying
deprivations of a petitioner‟s federal constitutional rights. We 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); see also Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”). Accordingly, to the extent
Heleva asserts that the delay violated his rights under the state speedy trial rule,
this claim is simply not cognizable in a federal habeas proceeding.
However, Heleva‟s claim that he was denied a speedy trial in violation of the
Sixth Amendment is cognizable on federal habeas review. In Barker v. Wingo, 407
9

U.S. 514 (1972), the United States Supreme Court held that to determine whether a
person‟s constitutional right to a speedy trial had been violated, a court must
consider four factors: (1) the length of the delay, (2) the reason for the delay, (3) the
defendant‟s assertion of his right, and (4) the prejudice that resulted from the delay.
Barker, 407 U.S. at 530. See also Heiser v. Ryan, 15 F.3d 299 (3d Cir. 1994); Burkett
v. Cunningham, 826 F.2d 1208 (3d Cir. 1987).
The first factor, the length of the delay, is a threshold factor or “triggering
mechanism” for the vesting of a constitutional speedy trial right. Barker, 407 U.S.
at 530. If the delay is not “presumptively prejudicial,” then there is no need to even
consider the other factors that go into the balance because there is no speedy trial
claim. Id. “If the delay is sufficiently long, courts assess the extent to which the
delay was long enough to „intensify‟ the prejudice caused by the delay.” United
States v. Battis, 589 F.3d 673, 678 (3d Cir. 2009). “Longer delays can be tolerated,
for example, when the crime is very serious or complex.” Wells, 941 F.2d at 257. In
the present case, the criminal complaint was filed on November 26, 2001, and
Heleva‟s trial began on November 3, 2004. Given that Heleva‟s delay was roughly
three years, the court must weigh the remaining Barker factors. See, e.g., Hakeem
v. Beyer, 990 F.2d 750, 760 (3d Cir. 1993) (finding that a fourteen-and-one-half
month delay is sufficient to warrant inquiry into the other Barker factors).
The second factor, the reason for delay, is to be given different weight based
upon the nature of the reason. “A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily against the government.” Barker,
407 U.S. at 531. “A more neutral reason such as negligence or overcrowded courts
10

should be weighted less heavily but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the government
rather than with the defendant.” Id. “Finally, a valid reason, such as a missing
witness, should serve to justify appropriate delay.” Id. The government bears the
burden to justify the delay. Hakeem, 990 F.2d at 770. In the case at bar, Heleva
filed pretrial motions, obtained numerous continuances, and signed waivers of his
right to a speedy trial. (Doc. 78-1, N.T. May 30, 2014, at 33-44). These are
appropriate justifications for the delay, and thus weigh against Heleva‟s speedy trial
claim.
Heleva‟s allegations that the Rule 600 waivers were obtained fraudulently,
and that he did not knowingly waive his constitutional right to a speedy trial are
clearly undermined by the record.2 Notably, a hearing was held on September 29,
2003, the third time Heleva‟s trial was scheduled to commence. (Doc. 78-4). At this
hearing, Heleva waived his right to a speedy trial, and was informed of his Rule 600
rights as follows:
THE COURT:
He understands for purposes of the application of
Rule 600 this will count against him?
MR. FANNICK:
Yes, Your Honor. Maybe again for purposes of
clarification of the record I know that the Defendant had previously
signed a waiver of his rights pursuant to Rule 600, which I believe is
only until like the second week of October.

As stated supra, the state PCRA court and the Pennsylvania Superior
Court specifically addressed and rejected Heleva‟s claim that the May 7, 2004 Rule
600 waiver was either forged or unknowing and involuntary. See Commonwealth v.
Heleva, 2016 WL 280461, at *3 (citing PCRA Court Opinion, dated March 13, 2015, at
7-23).
2

11

MR. PAZUHANICH:
My recollection is that he agreed to waive
Rule 600 until October 6th.
MR. FANNICK:

Right. Something along those lines.

THE COURT:
Now, Mr. Heleva, you understand there won‟t be a
trial but your lawyer is asking for this court to certify this matter for
appeal with the appellate court. If that happens, there is no telling
when the appellate court will render a decision in the case. It could be
sometime in the future but it certainly won‟t be anytime within the
next few weeks because the normal process to filing the papers go
along with the appeal. You should understand that you will not have a
trial by October 7th. Do you understand that?
THE DEFENDANT:

I understand.

THE COURT:
I can‟t tell you when that will take place. It may be
six months; it may be a year from now. But you will be sitting the
entire time and won‟t be heard to complain about the fact that you
didn‟t have a speedy trial because there is a jury ready to be impaneled
in the next room at this time. If you want to go to trial, you can start
today.
THE DEFENDANT:
moment.
THE COURT:

I would like to confer with my lawyer for a

You may.

THE DEFENDANT:

I would like to waive my right, Your Honor.

THE COURT:
You agree that you will not raise any issue with
Rule 600 in the defense of the proceeding while it is pending on
appeal?
THE DEFENDANT:

I understand that.

(Doc. 78-4, N.T. September 29, 2003, at 7-8).
The record also contains Rule 600 waivers dated December 20, 2002, June 30,
2003, and May 7, 2004. (Doc. 78-1). The record further reflects that the
Commonwealth sought to bring Heleva‟s case to trial in January 2003, June 2003,
September 2003, May 2004, and July 2004. (Doc. 78-5, at 23). However, defense
12

requests for continuances were granted each time until July 2004. (Id.) The record
establishes that the vast majority of trial delays were attributable to defense
counsel, not the prosecution. Therefore, this factor weighs heavily against Heleva.
The third Barker factor, whether the defendant asserted his right to a speedy
trial, also weighs against Heleva. “[A] defendant‟s claim that the right is being
violated provides strong evidence that it actually was violated.” Battis, 589 F.3d at
681. Heleva‟s first assertion of this claim occurred post trial, in a pro se document
dated January 8, 2007, asserting that his constitutional right to a speedy trial was
violated because his signature on a Rule 600 waiver form was forged. The record
does not reflect that Heleva pursued this claim any further, and he did not file any
formal motions asserting a violation of his constitutional right to a speedy trial.
Rather, Heleva‟s second pro se PCRA petition only asserted a violation of his state
speedy trial right.
The fourth Barker factor is prejudice to the defendant. This final factor is
assessed “„in light of the interests . . . which the speedy trial right was designed to
protect.‟” Battis, 589 F.3d at 682 (quoting Barker, 407 U.S. at 532). The Barker
court identified three types of prejudice resulting from a prolonged trial date:
oppressive pretrial incarceration, anxiety and concern about the impending trial,
and possible impairment of the defense. Barker, 407 U.S. at 532. Heleva does not
claim that the “conditions of his confinement” made his pretrial incarceration
prejudicial, Hakeem, 990 F.2d at 761, he has made no allegations that would
establish any prejudice, and he offers no theory as to how the delay impaired his
defense. Specifically, he has not pointed to any witnesses or evidence that became
13

unavailable during the delay. Thus, Heleva failed to establish actual prejudice and
this factor does not weigh in his favor. See Vanlier v. Carroll, 384 F. App‟x 155 (3d
Cir. 2010) (upholding denial of speedy trial claim regarding more than two-year
delay for lack of prejudice).
Considering all of the Barker factors together, the court concludes that they
weigh against Heleva. As such, it follows that Heleva‟s trial counsel could have
reasonably concluded that a constitutional speedy trial motion would not likely be
successful. Heleva is therefore unable carry his burden under Strickland of
showing that his counsel‟s representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. Consequently, this claim will be
denied.
IV.

Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant has
made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court‟s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003).
“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
14

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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of
reason would not find the disposition of this case debatable. Accordingly, a COA
will not issue.
V.

Conclusion
For the reasons set forth above, the amended petition for writ of habeas

corpus will be denied. A separate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

January 9, 2018