Graham v. Wingard
MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 10/12/17. (ma)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TREVOR A. WINGARD, et al.,
On May 11, 2016, Petitioner Robert Graham, an inmate at the State
Correctional Institution at Somerset, Pennsylvania, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges a sentence of
11 to 22 years imposed on May 30, 2012, by the Court of Common Pleas of
Lycoming County, Pennsylvania, after being found guilty by a jury, inter alia, of
robbery. (Doc. No. 1.)
The Court on May 16, 2016, issued and Administrative Order informing
Graham of the limitations upon his right to file another habeas petition in the future
if his current petition was considered on the merits by the Court. (Doc. No. 3.) On
May 25, 2016, Graham returned the notice election in which he stated that he
desired that the Court rule on his petition as filed. (Doc. No. 4.) Respondents have
subsequently responded to the petition. (Doc. No. 18.) For the reasons that follow,
the petition will be denied.
The procedural and factual background of this case has been aptly set forth
by the Pennsylvania Superior Court in its decision affirming the Post Conviction
Relief Act (“PCRA”) court as follows:
In the early morning hours of June 22, 2009, a man in
dark sunglasses and a hooded camouflage sweatshirt held
up the Uni-Mart convenient store on West Fourth Street
in Williamsport. Brandishing a firearm, the robber
ordered the clerk to open the register, grabbed $117 in
case, threatened to shoot the clerk, and demanded she
open the store safe. When the clerk informed the robber
that she was unable to open it, the perpetrator stole five
cartons of cigarettes and fled the scene.
In their subsequent investigation of the robbery, officers
were able to obtain latent fingerprints from the cash
drawer and two other cartons of cigarettes. After the
fingerprints were sent to a Pennsylvania State Police
laboratory, Sergeant Floyd Bowen determined that one of
the fingerprints on the cash drawer matched [Petitioner’s]
left thumbprint. Approximately ten months after the
robbery, the Uni-Mart clerk contacted police after she
recognized [Petitioner] in a newspaper photo as the
individual who robbed her.
[Petitioner] was charged with two counts of robbery,
theft by unlawful taking, receiving stolen property,
terroristic threats, and possessing an instrument of crime.
[Petitioner] filed a pretrial motion, requesting a Frye
hearing to challenge the admissibility of the
Commonwealth’s expert testimony with respect to the
latent fingerprints found in this case. The trial court
denied this pretrial motion.
[Petitioner] proceeded to a jury trial and was convicted of
all the aforementioned offenses. The trial court imposed
an aggregate sentence of eleven to twenty-two years
imprisonment. [Petitioner] filed a post-sentence motion,
which the trial court denied. On October 30, 2013, this
Court affirmed [Petitioner’s] judgment of sentence. See
Commonwealth v. Graham, 1714 MDA 2012 (Pa. Super.
Unpublished memorandum filed Oct. 30, 2013).
On January 8, 2014, [Petitioner] filed a pro se PCRA
petition … The PCRA court notified [Petitioner] of its
intent to dismiss his petition without a hearing pursuant
to Pennsylvania Rule of Criminal Procedure 907 … In
response, [Petitioner] filed an amended petition raising
additional issues. After further review, the PCRA court
dismissed the petition without a hearing.
Commonwealth v. Graham, 2163 MDA 2014 (Pa. Super. Jan. 28, 2016). The
Superior Court subsequently affirmed the PCRA court’s decision. Id.
Issues germane to the instant petition that were raised by Graham on direct
appeal were: (1) whether the court erred in the denial of a Frye hearing regarding
expert testimony in fingerprinting, and (2) whether the court erred in determining
that … no Batson claim existed after the Commonwealth struck the only AfricanAmerican juror in the jury panel. (Doc. No. 18-1, at 46.) Relevant issues raised by
Petitioner in his PCRA petition were: (1) whether PCRA counsel was ineffective
for failing to raise a layered ineffectiveness of trial counsel’s failure to raise
prosecutorial misconduct related to the admissibility of evidence with regard to the
fingerprint evidence, and (2) failure to argue a Batson claim. (Doc. No. 18-1 at
While Graham filed this habeas petition on May 11, 2016 raising four
grounds, he subsequently filed a motion to correct illegal sentence on August 2,
2016 with the Court of Common Pleas of Lycoming County. (Doc. No. 18-1, at
168-169.) The county court, treating the motion as a petition filed under the
PCRA, dismissed the petition as untimely. (Id. at 171-74.) A review of the record
and an independent search of the publicly available records of this case by this
Court does not indicate that Graham ever appealed this decision.
It is first necessary to determine whether Graham’s claims presented in his
habeas petition have been adequately exhausted in the state courts and, if not,
whether the circumstances of his case are sufficient to excuse his procedural
default. The claims raised by Graham as grounds for relief are: (1) the
Commonwealth violated Batson1 when it exercised a peremptory challenge to
strike the sole African American juror on the panel; (2) he was denied a Frye2
hearing to challenge to validity of the fingerprint evidence; (3) his conviction
should be reversed because it was based on contaminated evidence; and (4) the
prosecutor presented fingerprint testimony when the prosecutor knew that no
Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the United States Supreme Court
reaffirmed the principle that the government denies a defendant equal protection of the laws
when it “puts him on trial before a jury from which members of his race have been purposefully
excluded.” Id. at 85.
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye tests is the standard which
governs the admissibility of scientifically-adduced expert evidence in Pennsylvania courts.
fingerprint examiner could legitimately identify the fingerprint. (Doc. No. 1.) In
their answer to Graham’s petition, Respondents contend that there was no Batson
violation because the decision to strike the sole African American juror was made
before the juror had entered the court room and without knowledge of the race of
the juror. (Doc. No. 18.) Moreover, the prosecutor had provided a race-neutral
reason for striking the juror. (Id.) Respondents also contend that there was no
error by the county court in finding that fingerprint evidence was admissible
without the necessity of a Frye hearing, and that to the extent Petitioner is raising
issues in grounds two through four that are unrelated to the failure to conduct a
Frye hearing, these issues have been procedurally defaulted. (Id.)
A. Exhaustion and Procedural Default
The provisions of the federal habeas corpus statute at 28 U.S.C.
§ 2254(b) require a state prisoner to exhaust available state court remedies before
seeking federal habeas corpus relief. To comply with the exhaustion requirement,
a state prisoner first must have fairly presented his constitutional and federal law
issues to the state courts through direct appeal, collateral review, state habeas
proceedings, mandamus proceedings, or other available procedures for judicial
review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351(1989); Doctor v.
Walters, 96 F.3d 675, 678 (3d Cir. 1996), abrogated on other grounds by Beard v.
Kindler, 558 U.S. 53 (2009); Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996).
Moreover, a petitioner must present every claim raised in the federal petition to the
state’s trial court, intermediate appellate court, and highest court before exhaustion
will be considered satisfied. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
The petitioner has the burden of establishing that the exhaustion requirement has
been met. Ross v. Petsock, 868 F.2d 639, 643 (3d Cir. 1989); O’Halloran v.
Ryan, 835 F.2d 506, 508 (3d Cir. 1987).
Exhaustion is not a jurisdictional limitation, however, and federal courts
may review the merits of a state petitioner’s claim prior to exhaustion when no
appropriate state remedy exists. Christy v. Horn, 115 F.3d 201, 206 (3d Cir.
1997); Doctor, 96 F.3d at 681; Carter v. Vaughn, 62 F.3d 591, 594 (3d Cir. 1995).
Nevertheless, a petitioner shall not be deemed to have exhausted state remedies if
he has the right to raise his claims by any available state procedure. 28 U.S.C.
Turning to procedural default, if a petitioner presents unexhausted habeas
claims to a federal court, but state procedural rules bar further state court review,
the federal court will excuse the failure to exhaust and treat the claims as
exhausted. Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001); Lines v.
Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 29798 (1989). Although deemed exhausted, such claims are considered procedurally
defaulted. Coleman v. Thompson, 501 U.S. 722, 749 (1991); Lines, 208 F.3d at
A federal habeas court cannot review the merits of procedurally defaulted
claims unless the petitioner demonstrates either: (1) “cause” for the procedural
default and “actual prejudice” as a result of the alleged violation of federal law; or
(2) failure to consider the claims will result in a “fundamental miscarriage of
justice.” See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman,
501 U.S. at 750; Caswell v. Ryan, 953 F.2d 853, 857, 861-62 (3d Cir. 1992). To
satisfy the first exception, a petitioner must show: (1) cause for his failure to raise
his claim in state court; and (2) prejudice to his case as a result of that failure.
Coleman, 501 U.S. at 750. To demonstrate “cause” for a procedural default, the
petitioner must show that something “external” to the defense impeded the
petitioner’s efforts to comply with the state’s procedural rule. Murray v.
Carrier, 477 U.S. 478, 488 (1986). Once “cause” has been successfully
demonstrated, a petitioner must then prove “prejudice.” “Prejudice” must be
something that “worked to [petitioner’s] actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” Id. at 494.
Alternatively, a federal court may excuse a procedural default when the petitioner
establishes that failure to review the claim will result in a fundamental miscarriage
of justice. See Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000).
B. Claims Presented in the Habeas Petition
1. Claim One – Batson Violation
Graham first argues that the Commonwealth discriminated against him by
picking an all-white jury and striking the sole African American from the jury
pool. (Doc. No. 1 at 9.) The Equal Protection Clause of the Fourteenth
Amendment provides that “No State shall ... deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST., AMEND. XIV, § 1.
In Batson v. Kentucky, 476 U.S. 79, 86–88 (1986), the Supreme Court held that a
prosecutor’s use of a peremptory challenge to exclude an individual from jury
service based on his or her race constitutes a violation of the Equal Protection
Clause. This type of discriminatory use of a peremptory challenge violates the
constitutional rights of the prospective juror as well as the constitutional rights of
the defendant tried before the eventual jury. Batson, 476 U.S. at 86 (“Purposeful
racial discrimination in selection of the venire violates a defendant’s right to equal
protection because it denies him the protection that a trial by jury is intended to
secure.”). Because the race-based exclusion of prospective jurors from a jury
panel constitutes a “structural” error that fundamentally undermines public
confidence in the criminal justice system, a finding that such an exclusion has
occurred in a particular criminal case warrants the automatic reversal of the
defendant’s conviction. Rivera v. Illinois, 556 U.S. 148, 159-161 (2009).
In order to demonstrate a Batson violation,
an appellant must generally demonstrate his particular
factual situation satisfies the well[-]established test laid out
by the United States Supreme Court’s opinion in that case:
First, the defendant must make a prima facie showing that
the prosecutor has exercised peremptory challenges on the
basis of race. Second, if the requisite showing has been
made, the burden shifts to the prosecutor to articulate a
race-neutral explanation for his peremptory challenges.
Finally, the trial court must determine whether the
defendant has carried his burden of proving purposeful
Commonwealth v. Simpson, 66 A.3d 253, 261 (Pa. 2013.)
Here, the record is undisputed that the Commonwealth struck the only
African American juror in the jury pool and that Graham raised a timely objection.
(Doc. 18-1, at 60, 144.) The prosecutor articulated that he intended to strike the
juror before the jury pool ever entered the courtroom and was based on the fact that
the juror had been previously charged with, but not convicted of, indecent assault.
(Id. at 144.) The prosecutor stated:
I don’t want to take a juror who’s been charged with
certain types of crimes. Don’t get me wrong, I don’t strike
DUI’s and things like that in general, but other crimes,
serious crimes where they’re charged and the charges
result in a dismissal, they may feel they’re treated unfairly
by the system so I intend to strike.
(Id.) This was confirmed by another prosecutor that verified that the decision to
strike the juror was made prior to the juror entering the courtroom at the time when
the prosecutor was unaware of the race of the juror. (Id.)
A defendant’s burden under Batson’s first step requires a defendant to show
“more than the bare fact that the minority venire-person was struck by peremptory
challenge.” Soria v. Johnson, 207 F.3d 232, 239 (5th Cir. 2000) (internal
quotations and citation omitted). “Where the only evidence is that a black
prospective juror was struck, a prima facie Batson claim does not arise. United
States v. Branch, 989 F.2d 752, 755 (5th Cir. 1993). Moreover, “the ultimate
burden of persuasion regarding racial motivation rests with, and never shifts from,
the opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 768 (1995). Rather, it
is the opponent of the strike that must prove purposeful discrimination under
Here, Graham’s showing goes no further than arguing that the prosecution
used its peremptory strike against the sole African American on the jury pool.
While the burden remains on Graham to prove purposeful discrimination, Graham
does not make any credible allegation that this individual was stricken on account
of his race. Moreover, the trial court found the prosecutor’s statement that he
lacked knowledge about the juror’s race prior to deciding to strike that juror to be
credible as well as the race-neutral reason for the strike. Accordingly, the Court
will deny Graham’s Batson claim.
2. Claim Two – Denial of Frye Hearing
In his second claim for habeas relief, Graham claims that he was denied a
Frye hearing3 to challenge the validity of the fingerprint evidence. (Doc. No. 1 at
12.) Respondent argues that this claim does not provide a basis for federal habeas
relief because it is a matter of the admissibility of evidence pursuant to state law.
(Doc. No. 18 at 11.) The Court agrees. The purpose of a Frye hearing is only to
determine whether expert testimony and evidence has gained general acceptance in
the scientific community and is therefore admissible under Pennsylvania law. See
Commonwealth v. Walker, 92 A.3d 766, 780 (Pa. 2014); Perez v. Graham, No. 13CV-1428, 2014 WL 523409, at *9 (S.D.N.Y. Feb. 5, 2014), report and
recommendation adopted, 2014 WL 805958 (S.D.N.Y. Feb. 28, 2014).
Petitioner’s second claim is a state evidentiary matter wholly separate from the
question of whether the admission of such evidence violates the federal
Generally, mere errors of state evidentiary law are not cognizable on habeas
review. See 28 U.S.C. § 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 68
(1991) (“In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United
A Frye hearing is used by the Pennsylvania Courts to determine the admissibility of expert
testimony, utilizing the “general acceptance” standard accounted in Frye v. United States, 293 F.
1013 (B.C. Cir. 1923). While that standard has been replaced in the federal courts by the one
accounts in Daubert v. United States, 509 U.S. 579 (1993), Pennsylvania continues to apply it.
Commonwealth v. Crews, 640 A.2d 394 (Pa. 1994).
States.” (citations omitted)). For this claim to be cognizable in this habeas
proceeding, Graham would have to demonstrate not only that the trial court’s
decision to admit fingerprint evidence without conducting a Frye hearing was
erroneous, but also that this error violated an identifiable constitutional right and
deprived him of a “fundamentally fair trial.” See Zarvela v. Artuz, 364 F.3d 415,
418 (2d Cir. 2004) (quoting Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir.
1988)). As such, Graham would “bear a heavy burden because evidentiary errors
generally do not rise to constitutional magnitude.” Copes v. Schriver, No. 97-CV2284, 1997 WL 659096, at *3 (S.D.N.Y. Oct. 22, 1997) (citation omitted).
Because Graham fails to identify any federal constitutional right that was
violated by the trial court’s failure to conduct a Frye hearing, the alleged state-law
error is not cognizable on federal habeas review and Graham’s second claim for
habeas relief will be denied.
3. Claim Three – Contaminated Evidence
Graham’s third claim for habeas relief is that his conviction should not stand
because Sgt. Floyd Bowen and Lt. Duck contaminated the fingerprint evidence
because of their mishandling it. (Doc. No. 1 at 14.) This claim is different than
those raised by Graham on his direct appeal and PCRA petition. The issue raised
on direct appeal was “whether the Commonwealth failed to provide sufficient
evidence to prove [Graham’s] guilt since the cash drawer was never sent for proper
fingerprint analysis….” (Doc. No. 18-1 at 46.) In his PCRA petition, the issue
raised was “whether PCRA counsel was ineffective for failing to raise all prior
[counsel’s] ineffectiveness reaching back to trial counsel’s ineffectiveness for
failing to request [an] interlocutory appeal of [the] trial court’s denial of [a] Frye
hearing, where [a] hearing was determinative of methodology used to identify
[Graham’s] partial thumbprint on [a] cash drawer by IAFIS4 search, without this
evidence cause would not have existed to arrest [Graham]. (Id. at 136.) Neither of
these allegations include a claim of contaminating the fingerprint evidence.
Therefore, this claim is unexhausted as well as procedurally defaulted, as it appears
that any subsequent PCRA petition filed by Graham would be untimely. See Pa.
Cons. Stat. Ann. § 9545(b) (petition must be filed within one year of the date
judgment becomes final).
Turning to whether procedural default can be excused, Graham presents no
argument to support either cause and actual prejudice, or a fundamental
miscarriage of justice, so as to excuse procedural default of this issue. See
McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). Accordingly, Graham’s
third claim for relief will be denied.
To the extent that Graham contends that the verdict was against the weight
of the evidence, a federal habeas court has no power to grant habeas relief because
Integrated Automated Fingerprint Identification System.
it finds that the state conviction is against the weight of the evidence. Marshall v.
Lonberger, 459 U.S. 422, 432 (1983); Young v. Kemp, 760 F.2d 1097, 1105 (11th
Cir. 1985); Dove v. York County, Pa, Civ. No. 3:12-1517, 2013 WL 6055226, at
*18 (M.D. Pa. Nov. 15, 2013). A weight of the evidence claim concerns a
determination by the fact finder that certain evidence was more credible than other
evidence. Dove, 2013 WL 6055226, at * 18. “Title 28 U.S.C. § 2254(d) gives
federal habeas courts no license to redetermine credibility of witnesses who
demeanor has been observed by the state trial court, but not by them.” Marshall,
459 U.S. at 434.
4. Claim Four – Prosecutorial Misconduct
In Graham’s final claim for relief, he alleges prosecutorial misconduct in
that the prosecutor used tainted/contaminated evidence in the form of a fingerprint
in pursuing its case against him. (Doc. No. 1 at 16.) It also appears that Graham
alleges prosecutorial misconduct when the prosecutor presented the testimony of
the victim of the Uni-Mart who identified Petitioner at trial as the person who
robbed her because her testimony was inconsistent. (Id.) While the Court notes
that these specific prosecutorial misconduct claims do not appear to have been
raised in the state courts, the substance of the latter part of Graham’s fourth claim
appears to have been. (See Doc. No. 18-1 at 49.)
The first part of Graham’s contention, i.e., that the fingerprint evidence was
contaminated, has been addressed infra, and the Court will dismiss this portion of
Graham’s fourth ground for those same reasons as set forth above. Indeed,
Graham’s argument, distilled down to its essence, is that the jury should have
found his expert more credible than the Commonwealth’s expert with regard to the
fingerprint evidence. This Court has “no license to redetermine credibility of
witnesses who demeanor has been observed by the state trial court….” Marshall,
459 U.S. at 434.
With regard to the latter part of Graham’s contention, i.e., the prosecutor
engaged in misconduct by presenting the testimony of the Uni-Mart victim who
identified at trial the Petitioner as the person who robbed her, the Pennsylvania
Superior Court provided the following analysis:
[T]he Uni-Mart clerk … first identified [Graham] upon
observing his photograph in a newspaper eleven months
after the robbery. The photograph was attached to a story
caption with the headline, “city man jailed on charges of
armed robbery.” [Graham] contends that these facts
compromised [the Uni-Mart clerk’s] identification, and he
also argues that [her] testimony was inconsistent…
The trial court determined that the inconsistencies in [her]
testimony were not materially different from her previous
testimony and, further, that whatever inconsistencies existed
were matters of credibility left for the jury’s determination.
At the preliminary hearing [the Uni-Mart clerk] indicated
that the perpetrator was a few inches taller than she was, her
height being 5’ 4”. At trial, she indicated that the
perpetrator was approximately 5’ 9”. At the preliminary
hearing, [she] testified that she was not sure if the robber
was wearing a hat or hood. At trial, she said the robber was
wearing a hood and sunglasses. At the preliminary hearing,
she said the robber was in the store for approximately five
minutes. At trial, it was specifically determined by
videotape evidence that the robber was in the store for just
over one minute. Finally, [she] only identified [Graham]
after seeing his picture in the newspaper article headline,
“City Man Jailed on Armed Robbery Charges.” [The UniMart clerk] testified that she was able to recognize [Graham]
from the bottom half of his face that was visible underneath
his hood and sunglasses. She said she did not notice the
headline or read the accompanying article when she saw
All of these matters were brought to the attention of the jury
during [Graham’s] cross-examination of [the Uni-Mart
clerk]. We find no error in the trial court’s determination
that the jury’s credibility assessments on these matters did
not shock the conscience of the trial court. There were no
facts in this case contradicting the verdict that were of such
undeniably great weight that the trial court could rationally
conclude that justice had been obviously denied by
(Doc. No. 18-1 at 49-52.)
The Court will treat this claim as one challenging the prosecutor’s elicitation
of false testimony from the Uni-Mart clerk given that Graham argues “how can
[the Uni-Mart clerk] all of a sudden identify [him] from a newspaper when she
never [saw] the face of the person that robbed her 10 months previously.” (Doc.
No. 1 at 17.)
In order to sustain a claim of constitutional error resulting from prosecutorial
misconduct in the use of false testimony, the petitioner must establish that the
witness actually perjured herself, and that the “prosecutor knowingly used perjured
testimony, or failed to correct what he subsequently learned was false testimony.”
Prosdocimo v. Sec’y, Pa. Dep’t of Corr., 458 F. App’x 141, 147 n. 5 (3d Cir. 2012)
(quoting United States v. McNair, 605 F.3d 1152, 1208 (11th Cir. 2010)). “[M]ere
inconsistencies in testimony fall short of establishing perjury and most certainly do
not establish that the [prosecutor] knowingly utilized perjured testimony.” Jones v.
Kyler, Civ. No. 02-09510, 2005 WL 5121659, at *8 (E.D. Pa. Aug. 3, 2005) report
and recommendation adopted, Civ. No. 02-9510, 2007 WL 187689 (E.D. Pa. Jan.
22, 2007) (quoting United States v. Thompson, 117 F.3d 1033, 1035 (7th Cir.
1997) (citation and internal quotation marks omitted); United States v. Mershon,
No. 10-1861, 2010 WL 4104665, at *8 (E.D. Pa. Oct. 19, 2010) (“The mere
presence of inconsistent statements … does not establish that the prosecutor
willfully presented perjured testimony.”) In fact, “[t]here are many reasons
testimony may be inconsistent; perjury is only one possible reason.” Lambert v.
Blackwell, 387 F.3d 210, 249 (3d Cir. 2004).
The Court finds that the few discrepancies between the witnesses’ testimony
during the preliminary hearing and at trial does not establish that the testimony
offered by the Uni-Mart clerk was actually perjured. Moreover, as observed by the
Pennsylvania Superior Court, these issues were “brought to the attention of the jury
during [Graham’s] cross-examination of the [Uni-Mart clerk].” (Doc. No. 18-1 at
51.) See Jones, 2005 WL 5121659, at *9 (providing that there is a “wellestablished truth-telling vehicle of cross examination to highlight … perceived …
inconsistenc[ies].”). Accordingly, the Court does not find any prosecutorial
misconduct and will dismiss this final ground of Graham’s petition.
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). In
the instant matter, jurists of reasons would not find the disposition of Petitioner’s
petition debatable. As such, no COA will issue.
For the foregoing reasons, Graham’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 will be denied and a COA will not issue. An
appropriate Order follows.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: October 12, 2017
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