Laboy v. PA State Attorney General

Filing 11

MEMORANDUM re Petition for Writ of Habeas Corpus 1 filed by Roberto Laboy (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 12/7/17. (ma)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERTO LABOY,
Petitioner

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vs.
PA STATE ATTORNEY
GENERAL, et al.,
Respondents

No. 1:16-CV-01951
(Judge Rambo)

MEMORANDUM
On September 26, 2016, the Court received and docketed a petition for a
writ of habeas corpus submitted pursuant to 28 U.S.C. § 2254, by Petitioner
Roberto Laboy. (Doc. No. 1.) Laboy is currently incarcerated at the Albion State
Prison. Respondents filed a response to the petition on March 3, 2017 (Doc. No.
10), after being directed by this Court. Petitioner has not filed a traverse and his
time to do so has passed. Accordingly, this matter is ripe for disposition. For the
reasons set forth below, the petition will be denied.
I.

Statement of the Case
A. Procedural History
On May 10, 2011, after the conclusion of a jury trial, the jury found Laboy

guilty of, inter alia, murder in the second degree and conspiracy to commit
robbery. Commonwealth of Pa. v. Laboy, No. CP-38-CR-979-2006 (C.C.P.
Lebanon Cnty.); (Doc. No. 10-3; 10-13). On July 27, 2011, the trial court
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sentenced Laboy to life imprisonment without parole plus a concurrent term of ten
to twenty years based upon these two convictions. Commonwealth of Pa. v.
Laboy, CP-38-CR-979-2006 (C.C.P. Lebanon Cnty.); (Doc. No. 10-4). Laboy
filed post-sentence motions, arguing that there was insufficient evidence to sustain
his convictions and in the alternative, the Commonwealth committed a Brady
violation. (Doc. No. 10-8). The trial court denied his post-sentence motions on
January 6, 2012. (Id.)
Laboy appealed the July 27, 2011 judgment of sentence to the Superior
Court of Pennsylvania, raising two issues: (1) Whether a Brady violation was
committed by the Commonwealth at trial when the Commonwealth failed to
provide an expert report and witness cooperation information to the defendant; and
(2) Whether the defendant should be acquitted because the evidence was
insufficient to prove beyond a reasonable doubt that he took part in the assault for
which he was convicted. (Doc. No. 10-13.) On September 11, 2012, the Superior
Court affirmed Laboy’s judgment of sentence. Commonwealth of Pa. v. Laboy,
No. 211 MDA 2012 (Pa. Super. Ct.); (Doc. No. 10-13.)
Laboy then sought an allowance of appeal with the Supreme Court of
Pennsylvania which was denied on March 14, 2013. Commonwealth of Pa. v.
Laboy, No. 778 MAL 2012 (Pa.); (Doc. No. 10-15.) On May 7, 2013, Laboy filed
a petition for Post-Conviction Relief pursuant to the Post-Conviction Relief Act
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(“PCRA”), 42 Pa.C.S.A. § 9541 et seq. (Doc. No. 10-16.) In his PCRA petition,
Laboy alleged ineffective assistance of trial counsel because: (1) trial counsel
prevented him from testifying at his jury trial; (2) trial counsel failed to fully
investigate [his co-defendant’s] statements prior to trial and failed to attempt to
have the murder weapon retrieved from the quarry; and (3) trial counsel failed to
seek removal of two jurors who were familiar with certain individuals potentially
involved in the case. Commonwealth of Pa. v. Laboy, No. CP-38-CR-979-2006
(C.C.P. Lebanon Cnty.); (Doc. No. 10-22.) After hearings on the PCRA petition
were conducted on April 28, 2014 and May 12, 2014, the PCRA court denied
Laboy’s petition on November 20, 2014. Id. Laboy appealed the denial of his
PCRA petition to the Superior Court which was denied on October 21, 2015.
Commonwealth of Pa. v. Laboy, No. 2166 MDA 2014 (Pa. Super. Ct.); (Doc. No.
10-27.) Laboy’s subsequent petition for allowance of appeal to the Supreme Court
of Pennsylvania was denied on March 22, 2016. Commonwealth of Pa. v. Laboy,
No. 872 MAL 2015 (Pa.); (Doc. No. 10-29.) Laboy’s instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 followed.
B. Habeas Claims Presented
Laboy’s petition raises the following claims:
1. Whether the Commonwealth committed a Brady violation;
2. Whether Laboy’s convictions were based upon sufficient evidence;
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3. Whether trial counsel was ineffective for failing to investigate his
co-defendant’s statements, failing to investigate two jurors, and
providing erroneous legal advice;
4. Whether the verdict was against the weight of the evidence;
5. Ineffective assistance of appellate counsel; and
6. Violation of Sixth Amendment right to effective assistance of
counsel by PCRA counsel for failing to raise ineffective assistance
of trial counsel claims at his PCRA proceeding.
(Doc. No. 1.)
II.

Standard of Review
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper

mechanism for a prisoner to challenge the “fact or duration” of his confinement.
Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). “[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas
review is restricted to claims based “on the ground that [petitioner] is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a); Estelle, 502 U.S. at 67-68; see also Pulley v. Harris, 465 U.S. 37, 41
(1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
III.

Background

It is first necessary to determine whether Laboy’s claims presented in his
habeas petition are cognizable in a federal habeas proceeding and whether they
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have been exhausted in the state courts and, if not, whether the circumstances of
his case are sufficient to excuse his procedural default.
A. Claim 4 - Non-Cognizable
In Laboy’s fourth claim, he alleges that the verdict was against the weight of
the evidence. (Doc. No. 1.) Laboy did not raise this claim on direct appeal.
The United States Supreme Court recognizes that a challenge to
the sufficiency of the evidence supporting a conviction implicates the Due Process
Clause. See Jackson v. Virginia, 443 U.S. 307 (1979) (establishing standard).
Inasmuch as a sufficiency of the evidence claim implicates a federal constitutional
right, it provides a potential basis for federal habeas relief under 28 U.S.C. § 2254.
An assertion that a state conviction is against the weight of the evidence adduced at
trial, however, does not implicate the Constitution in the same manner. As the
Supreme Court explored in Tibbs v. Florida, 457 U.S. 31 (1982), a reviewing court
hearing such a claim sits as a “thirteenth juror” and disagrees with the jury’s
resolution of the conflicting testimony. It has long been established that the federal
courts have no authority to grant habeas relief based on such grounds inasmuch as
weight claims infringe upon the prerogative of the jury to assess credibility.
In Marshall v. Lonberger, 459 U.S. 422 (1983), the Supreme Court declared that
“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine

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credibility of witnesses whose demeanor has been observed by the state trial court,
but not by them.” Marshall, 459 U.S. at 434.
In accordance with the above, federal courts on 2254 review have routinely
dismissed “weight of the evidence” claims as non-cognizable. See Young v.
Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) (observing that “[a] federal habeas
court has no power to grant habeas corpus relief because it finds that the state
conviction is against the ‘weight’ of the evidence.”); Carter v. Parker, Civ. No. 134260, 2014 WL 3964924, at *38 (E.D. Pa. Aug. 12, 2014) (quoting Young v.
Kemp for this proposition); Middleton v. Tennis, Civ. No. 10-548, 2011 WL
6224626, n.2 (E.D. Pa. Dec. 13, 2011); Wright v. Pennsylvania, Civ. No. 10-264,
2011 WL 10582593, *5 (E.D. Pa. Jan. 4, 2011); Hatcher v. DiGuglielmo, Civ. No.
08-3572, 2009 WL 3467957, *4 (E.D. Pa. Oct. 26, 2009); Willis v. Varner, Civ.
No. 03-1692, 2004 WL 1109780, *10 (E.D. Pa. May 13, 2004).
Accordingly, the Court must conclude that habeas relief is not available as to
Laboy’s weight of the evidence claim and this claim will be denied.
B. 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
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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.
§ 2254(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,
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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
160.
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,
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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).
1. Claim 5 – Ineffective Assistance of Appellate Counsel
In claim five of his petition, Laboy contends that his direct appellate counsel
was ineffective for failing to thoroughly “investigate [his] case in [its] entirety and
[to] submit a thorough substantial brief to the appellant courts.” (Doc. No. 1.) To
comply with the exhaustion requirement of 28 U.S.C. § 2254, Laboy was required
to present all of his federal habeas claims to the Pennsylvania courts in his direct
appeal or in his PCRA proceeding. He has not done so with regard to claim five.
Accordingly, this Court must now determine whether Laboy has any other
available state court remedy through which he can present his unexhausted claims
to the Pennsylvania courts.
Under the PCRA, a petitioner may bring a second PCRA petition only if it is
filed within one year of the date the judgment becomes final unless the petition
alleges facts that meet one of the requirements set forth in § 9545(b)(1), which
Laboy has not. See 42 Pa. Cons. Stat. § 9545(b)(1). The Supreme Court of
Pennsylvania has held that the PCRA’s timeliness requirements are mandatory and
jurisdictional in nature; thus, no court may properly disregard or alter them in order
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to reach the merits of the claims raised in a PCRA petition that is filed in an
untimely manner. See, e.g., Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa.
2000).
Consequently, Laboy is precluded from presenting his unexhausted claim in
a second PCRA petition based on the time limitations set forth in the PCRA.
These time limitations are an independent and adequate state law ground sufficient
to invoke the procedural default doctrine for purposes of federal court review. See
Lines v. Larkin, 208 F.3d 153, 165 (3d Cir. 2000). As set forth above, this Court
may not review Laboy’s defaulted claim unless he demonstrates cause and
prejudice for his default or establishes a fundamental miscarriage of justice.
McCandless, 172 F.3d at 260. Laboy neither argues cause and prejudice, nor the
existence of a fundamental miscarriage of justice in his petition. Consequently, he
is not entitled to habeas corpus relief with respect to his ineffective assistance of
appellate counsel claim.
2. Claim 6 – Ineffective Assistance of PCRA Counsel
In his sixth claim found in the “addendum” to his petition, Laboy argues that
trial counsel was ineffective for: failing to request a specific jury instruction;
failing to impeach witnesses; failing to challenge the Commonwealth’s expert or to
hire an expert; and failing to challenge sufficiency on the grounds that the murder
was a fight and not an attempted robbery. (Doc. No. 1 at 21-22.) Respondents
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argue that these claims have not been exhausted in the state courts and that Laboy
is now raising these arguments for the first time in his habeas petition. As such,
Respondents contend that Laboy is not entitled to relief on his claim six.
It does not appear to the Court that Laboy is raising a freestanding claim of
ineffective assistance of PCRA counsel in claim six. See Pennsylvania v. Finley,
481 U.S. 551, 555-56 (1987) (no constitutional right to counsel in collateral postconviction proceedings); Coleman v. Thompson, 501 U.S. 722, 755 (1991) (no
constitutional right to counsel on appeal from initial collateral post-conviction
proceedings). Indeed, under the Coleman standard, Laboy would not have a
cognizable claim that his PCRA counsel was ineffective. Rather, given Laboy’s
citation to Martinez v. Ryan, 566 U.S. 1 (2012), and liberally construing his
petition, it appears that he attempts to argue that the failure of PCRA counsel to
advance his ineffective assistance of trial counsel claims in his initial PCRA
proceedings constitutes ineffective assistance of counsel. (Doc. No. 1 at 21.)
The United States Supreme Court has recognized that, under certain
circumstances, the procedural default of an ineffective assistance of trial counsel
claim may be excused where the default was caused by ineffective assistance of
counsel in post-conviction collateral proceedings. See Martinez, 566 U.S. at 6-18.
Specifically, the Martinez Court held that:
[A] procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance
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at trial if, in the [state] initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Martinez, 566 U.S. at 17.
The Martinez Court limited its holding to cases where “under state law,
claims of ineffective assistance of trial counsel must be raised in an initial-review
collateral proceeding….” Id. Shortly thereafter, the Supreme Court revisited its
Martinez holding, extending it to apply not only to cases where state procedural
law expressly prohibited ineffective assistance claims on direct appeal, but also
where “state procedural framework, by reason of its design and operation, makes it
highly unlikely in a typical case that a defendant will have a meaningful
opportunity to raise a claim of ineffective assistance of trial counsel on direct
appeal.” Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013). The Third Circuit has
subsequently examined Pennsylvania procedural law and found that Martinez
applies in Pennsylvania. Cox v. Horn, 757 F.3d 113, 124 n.8 (3d Cir. 2014).
To the extent that Laboy seeks relief on the ground that his PCRA counsel
was ineffective, such relief is not cognizable and is denied. However, to the extent
Laboy seeks to use PCRA counsel’s alleged ineffectiveness as “cause” to excuse
his procedural default of these unexhausted ineffective assistance claims, he has
not met his burden of proof. Under Martinez, the failure of a federal habeas
petitioner’s counsel to raise a claim in an initial-review collateral proceeding can
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constitute cause if: (1) PCRA counsel’s failure itself constituted ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 688, 687 (1984);
and (2) the underlying ineffective assistance of trial counsel claim is “a substantial
one.” Martinez, 566 U.S. at 14.
“Under Strickland, courts are precluded from finding that counsel was
ineffective unless they find both that counsel’s performance fell below an
objectively unreasonable standard, and that the defendant was prejudiced by that
performance.” Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). A
petitioner must overcome the strong presumption that his trial counsel’s conduct
fell “within the wide range of reasonable professional assistance” and that counsel
“made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. Even if a petitioner demonstrates that his
attorney’s performance fell below prevailing professional norms, habeas relief will
only be available if he further demonstrates that this deficient performance
prejudiced his defense. A petitioner must show that there is “reasonable
probability that, but for the counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The court is
permitted to deny an ineffective assistance of counsel claim solely upon a
petitioner’s failure to make a sufficient showing under either prong. Id. at 687,
697.
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Although Martinez serves as a potential basis for establishing “cause” to
excuse Laboy’s procedural default, the default can only be overcome if Laboy
demonstrates “that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the claim
has some merit.” Martinez, 566 U.S. at 14. Laboy has not made that showing
here. Indeed, the bald invocation to Martinez, without any facts or argument to
support its applicability in this context simply does not satisfy the high burden of
showing that the underlying constitutional claims have merit, as counsel is
“strongly presumed to have rendered adequate assistance and made all significant
decision in the exercise of reasonable professional judgment.” Burt v. Titlow, 134
S. Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690); see also Jones v.
Delbalso, Civ. No. 16-1265, 2017 WL 221780, at *8 (E.D. Pa. Jan. 18, 2017). The
Court cannot grant relief based on such vague and conclusory allegations. See
Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (Petitioner cannot meet
his burden to show that counsel made errors so serious that his representation fell
below an objective standard of reasonableness based on vague and conclusory
allegations). Accordingly, these claims are denied.
C. Merits
Once a court has determined that the exhaustion requirement is met, and
therefore that review on the merits of the issues presented in a habeas petition is
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warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). That
section states, in relevant part, that exhausted claims that have been adjudicated on
the merits by the state courts are subject to review under the standard of whether
they are “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” § 2254(d)(2). AEDPA places the burden on the petitioner
to make this showing. Williams v. Taylor, 529 U.S. 362 (2000).
The “contrary to” and “unreasonable application” clauses of § 2254 have
independent meaning. Bell v. Cone, 535 U.S. 685, 694 (2002). A state court
judgment is “contrary to” federal law when it is “diametrically different, opposite
in character or nature, or mutually opposed” to “clearly established” decisions of
the United States Supreme Court. Williams, 529 U.S. at 405. This may occur if
“the state court ignores or misapprehends clear precedent or it ‘confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [Supreme Court] precedent.’
” Wilkerson v. Klem, 412 F.3d 449, 452 (3d Cir. 2005) (quoting Williams, 529
U.S. at 406). Alternatively, “[a]n ‘unreasonable application’ occurs when a state
court ‘identifies the correct governing legal principle from [the Supreme] Court’s
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decisions but unreasonably applies that principle to the facts[ ] of petitioner’s
case.” Rompilla v. Beard, 545 U.S. 374, 380 (2005)(quoting Wiggins v.
Smith, 539 U.S. 510, 519, 520 (2003)). For the purposes of § 2254(d)(1), “[i]t is
not enough that a federal habeas court, in its independent review of the legal
question, is left with a firm conviction that the state court was erroneous.”
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citations omitted).
“Under § 2254(d)(1)’s ‘unreasonable application’ clause ... a federal habeas court
may not issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly.” Id. at 75-76 (quoting Williams, 529 U.S. at
411). Rather, “[t]he state court’s application of clearly established law must be
objectively unreasonable” before a federal court may grant the writ. Andrade, 538
U.S. at 75.
By its terms, § 2254(d)(1) limits a federal habeas court’s review to a
determination of whether the state court’s decision comports with “clearly
established federal law as determined by the Supreme Court.” Thus, §
2254(d)(1)’s “clearly established Federal law” signifies the holdings, not the dicta,
of Supreme Court decisions. Howes v. Fields, 565 U.S. 499, 504 (2012).
Specifically, only Supreme Court law established at the time of the state court’s
decision can be a basis for habeas relief under AEDPA. See Greene v. Fisher, 565
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U.S. 34, 39 (2011) (“ § 2254(d)(1) requires federal courts to ‘focu[s] on what a
state court knew and did,’ and to measure state-court decisions ‘against this
Court’s precedents as of ‘the time the state court renders its decision.’ ”)
(quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). Finally, “under the
AEDPA standard, the ‘[s]tate court[s’] relevant factual determinations are
presumed to be correct unless the petitioner rebuts [that] presumption by clear and
convincing evidence.’ ” McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92,
101 (3d Cir. 2012) (quoting Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir.
2012)) (citing 28 U.S.C. § 2254(e)(1)).
Turning to § 2254(d)(2), the test for the “unreasonable determination of
facts” clause is whether the petitioner has demonstrated by “clear and convincing
evidence,” § 2254(e)(1), that the state court’s determination of the facts was
unreasonable in light of the record. Rountree v. Balicki, 640 F.3d 530, 537 (3d
Cir. 2011) (citing Rice v. Collins, 546 U.S. 333, 338-39 (2006) (“State-court
factual findings, moreover, are presumed correct; the petitioner has the burden of
rebutting the presumption by ‘clear and convincing evidence.’ ”)); see
also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (“Under the § 2254
standard, a district court is bound to presume that the state court’s factual findings
are correct, with the burden on the petitioner to rebut those findings by clear and
convincing evidence.”). Further, as with § 2254(d)(1), the evidence against which
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a federal court measures the reasonableness of the state court’s factual findings is
the record evidence at the time of the state court’s adjudication. Rountree, 640 F.3d
at 538.
“If this standard is difficult to meet, that is because it was meant to
be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). Section 2254(d) “preserves
authority to issue the writ in cases where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with [Supreme Court]
precedents. It goes no farther.” Id. Further, it was designed to be difficult “to
ensure that state-court judgments are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our system of federalism.”
Martinez, 566 U.S. at 9.
Finally, AEDPA scrutiny is applicable only if the state court adjudicated the
petitioner’s claims “on the merits.” 28 U.S.C. § 2254(d); see Appel v. Horn, 250
F.3d 203, 210 (3d Cir. 2001). “An ‘adjudication on the merits’ has a well settled
meaning: a decision finally resolving the parties’ claims, with res judicata effect,
that is based on the substance of the claim advanced, rather than on a procedural,
or other, ground.” Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004), rev’d on
other grounds, Rompilla v. Beard, 545 U.S. 374 (2005) (quoting Sellan v.
Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). Further, an “adjudication on the
merits” can occur at any level of state court. Thomas v. Horn, 570 F.3d 105, 115
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(3d Cir. 2009). However, “to qualify as an ‘adjudication on the merits,’ the state
court decision must finally resolve the claim. This means that the state court’s
resolution of the claim must have preclusive effect.” Id. (citing Rompilla, 355 F.3d
at 247 (quoting Sellan, 261 F.3d at 311)). Where a state court has not reached the
merits of a claim thereafter presented to a federal habeas court, the deferential
AEDPA standards do not apply, and the federal court must exercise de novo
review over pure legal questions and mixed questions of law and fact. Simmons v.
Beard, 581 F.3d 158, 165 (3d Cir. 2009) (citing Appel, 250 F.3d at 210).
However, the state court’s factual determinations are still presumed to be correct,
rebuttable upon a showing of clear and convincing evidence. Simmons, 581 F.3d
at 165 (citing Appel, 250 F.3d at 210).
1. Claim 1 – Brady Violation
While Laboy alleges that the Commonwealth committed a Brady1 violation,
he does not specify what particular violation he is alleging. The Court presumes he
is alleging the Brady violation raised on direct appeal which challenged the
testimony of the Commonwealth’s pathologist, Dr. Bollinger. Petitioner argued
that a Brady violation was committed by the Commonwealth at trial when the
Commonwealth failed to provide an expert report and witness cooperation
information to him. (Doc. No. 10-13 at 2.)

1

Brady v. Maryland, 373 U.S. 83 (1963)
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In Brady, the Supreme Court held that the due process rights of a defendant
are violated when the prosecution withholds favorable, material evidence from the
defense. Brady, 373 U.S. 83. To prove a Brady violation, the petitioner bears the
burden of demonstrating that: “(1) the prosecutor suppressed evidence; (2) the
evidence, whether exculpatory or impeaching, was helpful to the [petitioner;] and
(3) the suppression prejudiced the [petitioner].” Commonwealth v. Collins, 888
A.2d 564, 577-78 (Pa. 2005) (citing Brady, 373 U.S. at 83). To establish
prejudice, the petitioner must prove that there is “a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Commonwealth v. Paddy, 15 A.3d 431, 450 (Pa.
2011).
Based on these standards, the Superior Court examined Laboy’s first
contention of a Brady violation when he alleged that the Commonwealth failed to
provide an expert report for Dr. Barbara Bollinger. (Doc. No. 10-13 at 4.) The
Superior Court noted, however, that the record showed that Dr. Bollinger’s autopsy
report was indeed entered into the record at trial and without objection from
Laboy. (Id.) Moreover, the Superior Court noted that to the extent that Dr.
Bollinger’s testimony exceeded the scope of the autopsy report, Laboy made no
timely objections and as such, waived this issue. However, even if he did not
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waive this issue, the Superior Court noted that Laboy’s failure to identify any
specific objectionable testimony was fatal to any claim that he was prejudiced. (Id.
at 4, 5.)
Laboy’s second failure to disclose argument surrounds a potential agreement
between the witness to the murder, Tina Garcia, and the prosecutors to provide
Garcia a benefit during her sentencing on an unrelated crime in exchange for her
testimony in Laboy’s case. (Id. at 5.) Garcia had been charged with Forgery prior
to the homicide occurring and the disposition of her case was continued until after
Laboy’s case. (Doc. No. 10-1 at 14.) The existence of Garcia’s prior criminal
charges were disclosed by the Commonwealth and Laboy was aware that Garcia’s
case had been continued because of her testimony in his case. (Id.) Furthermore,
the Superior Court noted that there was no evidence in the record that any such
agreement existed. (Doc. No. 10-13 at 5.) In fact, Laboy was given the
opportunity to question Garcia as well as other witnesses to establish the existence
of such an agreement, but did not do so. (Id.) In the absence of any evidence to
support a finding that an agreement existed, the Superior Court concluded that the
Commonwealth did not violate Brady by failing to disclose such an agreement.
(Id.)
Upon review of the record, Laboy has not presented any evidence that the
Commonwealth withheld or failed to disclose any such evidence or agreement, and
21

accordingly, the Court agrees with the Superior Court’s denial of Laboy’s Brady
violation claims. This Court cannot say that the state courts’ decision was contrary
to, or involved an unreasonable application of clearly established federal law as
determined by the Supreme Court of the United States. Further, it was not based
on an unreasonable determination of the facts in light of the evidence. This claim
will be denied.
2. Claim 2 – Sufficiency of the Evidence
Laboy asserts that the Commonwealth failed to prove beyond a reasonable
doubt that he was responsible for the death and robbery of the victim. (Doc. No.
1). A sufficiency of evidence claim requires an inquiry into whether, upon the
evidence presented in a state criminal proceeding, a “rational trier of fact could
have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979).
A criminal defendant may be convicted only “upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court provided
the federal standard for determining the sufficiency of the evidence to support a
conviction in Jackson v. Virginia, 443 U.S. 307 (1979). Although direct evidence
may be more probative of a fact, circumstantial evidence alone may suffice for a
finding of guilt beyond a reasonable doubt. Id. at 324-25; see also Fed. Power
22

Comm’n v. Fla. Power & Light Co., 404 U.S. 453, 469 & n. 21 (1972) (“[E]ven in
criminal cases, guilt beyond a reasonable doubt often can be established by
circumstantial evidence.”) (quoting Ind. & Mich. Elec. Co. v. Fed. Power
Comm’n, 365 F.2d 180, 184 (7th Cir. 1966)).
Pursuant to Jackson, a federal court is to determine whether “after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Id. at 319. Federal review of a sufficiency of the evidence claim under Jackson
must be based upon state law, that is, the substantive elements of the crime as
defined by applicable state law. Id. at 324 n. 16. The credibility of witnesses, the
resolution of conflicts of evidence, and the drawing of reasonable inferences from
proven facts all fall within the exclusive province of the fact finder and, therefore,
are beyond the scope of federal habeas review. Id. at 309; see also Johnson v.
Mechling, 541 F. Supp. 2d 651, 666-67 (M.D. Pa. 2008).
It appears that Laboy challenges two elements of his convictions in his
instant petition: (1) there was no evidence to support a finding that he stabbed the
victim; and (2) the evidence at trial was insufficient to establish that the victim was
killed during the course of a robbery. (Doc. No. 1); (Doc. No. 10-13). These
issues were raised by Laboy on direct appeal and denied by the trial court and
affirmed by the Superior Court. (Doc. No. 10-13).
23

i.

Evidence supports Laboy stabbed the victim

To the first challenge that there was no evidence capable of supporting a
finding that he stabbed the victim, Laboy points to the fact that there was no direct
evidence that he stabbed the victim. In affirming the trial court’s decision, the
Superior Court provided that there was “sufficient circumstantial evidence to allow
a fact-finder to infer that Laboy had in fact stabbed [the victim].” (Doc. No. 10-13
at 6.) Specifically, the court pointed to the fact that Garcia testified that Laboy was
the assailant who was assaulting the victim the night he died; that she specifically
observed Laboy punching the victim “in the area of his chest”; Laboy’s codefendant, Hower, also testified that he observed Laboy striking the victim in his
chest and stomach area and that after he and Laboy fled the scene of the assault, he
noticed that his shoes were leaving bloody footprints. (Id.) Hower also observed
Laboy wiping a 4-inch pocketknife with a paper towel. (Id. at 7.) Finally, Dr.
Bollinger, the Commonwealth’s expert, opined that the cause of the victim’s death
was multiple stab wounds, consistent with a 4-inch pocketknife to the chest. (Id.)
Taking this testimony as a whole, the court found it sufficient to allow a
fact-finder to infer that Laboy stabbed the victim in the chest with a pocketknife
during the assault and that the wounds caused by the stabbing caused the victim’s
death. (Id.) This Court cannot say that the state court’s decision was contrary to,
or involved an unreasonable application of clearly established federal law as
24

determined by the Supreme Court of the United States. Further, it was not based
on an unreasonable determination of the facts in light of the evidence.
Accordingly, Laboy’s sufficiency of the evidence claim fails with respect to the
finding that he stabbed the victim.
ii.

Evidence supports that the victim was killed during course
of robbery

A defendant is guilty of robbery if, in the course of committing a theft, “he
(i) inflicts serious bodily injury upon another; (ii) threatens another with or
intentionally puts him in fear of immediate serious bodily injury…” 18 Pa.C.S.A.
§ 3701(a)(1)(i), (ii). An act can be inferred to be in the course of committing a
theft if it is found to occur during an attempt to commit theft. Commonwealth v.
Orr, 38 A.3d 868 (Pa. Super. 2011).
Here, the court provided that Garcia testified that she heard Laboy ask the
victim for his money and wallet on the night of the incident, and that when the
victim refused, Laboy pursued the victim and “beat the crap out of him.” (Doc.
No. 10-13 at 7.) Garcia further testified that while Laboy and the co-defendant
were following her and the victim, the victim feared that “there’s going to be a
problem.” (Id. at 8.) The court found that this evidence was sufficient to allow a
fact-finder to infer that Laboy intended to rob the victim on the night of the
incident, and that the subsequent assault on the victim was in reaction to the
victim’s refusal to hand over his money or his wallet. (Id.)
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Upon review of the above, this Court does not find that the state court’s
decision was contrary to, or involved an unreasonable application of clearly
established federal law as determined by the Supreme Court of the United States.
Further, it was not based on an unreasonable determination of the facts in light of
the evidence. Accordingly, Laboy’s sufficiency of the evidence claim fails with
respect to the finding that the victim was killed in the course of a robbery.
3. Claim 3 – Ineffective Assistance of Trial Counsel
In Laboy’s final claims, he alleges that his trial counsel was: (1) ineffective
for failing to fully investigate his co-defendant’s statements prior to trial and failed
to attempt to have the murder weapon retrieved from the quarry; (2) ineffective for
preventing him from testifying at his jury trial; and (3) ineffective for failing to
seek the removal of two jurors who were familiar with certain individuals
potentially involved in the case. (Doc. No. 1.)
Prior to discussing these exhausted claims, the Court will provide the
ineffective assistance of counsel standard as set forth in Strickland v. Washginton,
466 U.S. 668 (1984). In Strickland, the Supreme Court explained that there are
two components to demonstrating a violation of the right to effective assistance of
counsel. First, the petitioner must show that counsel’s performance was deficient.
This requires showing that “counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688; see also Williams v. Taylor, 529 U.S. 362,
26

390 - 91 (2000). Second, the petitioner must show that he was prejudiced by the
deficient performance. “This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687. To establish prejudice, 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 Strickland test is conjunctive and a habeas petitioner must establish both
the deficiency in the performance prong and the prejudice prong. See Strickland,
466 U.S. at 687; Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir.1987), cert. denied,
484 U.S. 863 (1987). As a result, if a petitioner fails on either prong, his claim
fails. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both
parts of the test must be satisfied in order to show a violation of the Sixth
Amendment, the court need not address the performance prong if the defendant
cannot meet the prejudice prong, or vice versa.”) (citation omitted); Foster v.
Ward, 182 F.3d 1177, 1184 (10th Cir. 1999) (“This court may address the
performance and prejudice components in any order, but need not address both if
Mr. Foster fails to make a sufficient showing of one .”).

27

The two-pronged test established in Strickland “qualifies as ‘clearly
established Federal law’ ” for purposes of the AEDPA. Rainey v. Varner, 603
F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 391
(2000).2 Therefore, under § 2254(d)(1), the relevant inquiry in assessing
ineffectiveness claims that have been adjudicated on the merits is whether the state
court’s decision involved an unreasonable application of Strickland or are based on
an unreasonable determination of the facts. Jacobs v. Horn, 395 F.3d 92, 107 n.9
(3d Cir. 2005).
i.

Counsel’s failure to fully investigate co-defendant’s
statements and failure to attempt to have murder weapon
retrieved

Laboy claims that trial counsel was ineffective for failing to investigation his
co-defendant’s statements about the murder weapon. (Doc. No. 1.) Upon review,
the Court finds that Laboy is not entitled to habeas relief on this claim.
The background of this claim is as follows. Laboy asserts that:
Co-Defendant’s statements regarding the location of the
alleged murder weapon [were] a key piece of evidence in
the Commonwealth’s case in chief. Although [T]rial
[C]ounsel did not know whether the knife could be found
in the quarry, [he] did not visit the … quarry or conduct
an independent investigation. Although a great deal of
time had elapsed between the time the knife was
allegedly disposed in the quarry and Co-Defendant’s
statements, at a minimum, it would have been prudent to
2

The standard under Pennsylvania law for ineffective assistance of counsel is consistent with the
two-prong Strickland analysis.
28

consider the possibility based upon [Laboy’s] request.
The knife may have shed light on who was actually
responsible for [the victim] Mr. Kern’s death, potentially
to the detriment of the Commonwealth’s case. Also, an
investigation may have … render[ed] Co-Defendant’s
statements unreliable or inconsistent.
Commonwealth v. Laboy, No. 2166 MDA 2014 (Pa. Super.) (internal citations
omitted) (emphasis original); (Doc. No. 10-27 at 8-9.)
The Superior Court, in affirming the PCRA court’s denial of this claim
provided that:
[Laboy] avers only the possibility that an investigation
would have yielded favorable information or evidence,
without explaining what the new information would be.
Likewise, at the PCRA hearing, [Laboy] testified, “It’s
possible [an investigation] could have led to whether
[Co-Defendant’s] claims [were] reliable or if [CoDefendant] was, in fact, deceiving authorities. Recovery
of the knife … possibly may have shed light on who
actually was responsible for Mr. Kern’s homicide.”
Trial Counsel, on the other hand, testified at the PCRA
hearing as follows. He did not investigate the truth of
Co-Defendant’s statements or the location of the knife.
He opined, “I don’t see how it would have advanced his
cause whatsoever,” and that an investigation “would only
corroborate [Co-Defendant’s] story.” Instead, Trial
Counsel reasoned, “by leaving [the whereabouts of the
knife] as an open-ended question, I think that was a
question for the jury to consider.” Furthermore, Trial
Counsel “cross examine[d Co-Defendant] vigorously …
and pointed out in closing [arguments] that the police
didn’t attempt to retrieve the weapon.”
In denying relief, the PCRA court found Trial Counsel
“articulated a reasonable basis for his failure to conduct
29

this investigation,” and that successful retrieval of the
knife “would have only reinforced [Co-Defendant’s]
credibility to the jury.” The court further agreed with
counsel’s doubt “that physical examination of the knife,
after it sat in the quarry for several years, would offer
anything useful in exonerating” [Laboy]. The court also
found Trial Counsel’s strategy, “that it was better to
leave the question open in the minds of the jurors as to
why the Commonwealth had not recovered the knife,”
“had a much greater likelihood of casting the shadow of
doubt over [Co-Defendant’s] testimony and was
appropriate under these circumstances.” We find no
error in the court’s analysis.
Commonwealth v. Laboy, No. 2166 MDA 2014 (Pa. Super.); (Doc. No. 10-27 at 910.
In reviewing this claim, Laboy has offered nothing more than bald assertions
of the possibility that an investigation would have yielded favorable information or
evidence. Laboy has failed to establish that the absence of an investigation as to
the knife prejudiced him so as to deny him a fair trial. Without a specific,
affirmative showing as to how this piece of evidence would have produced a
different result, Laboy has not established an ineffective assistance of counsel
claim here and is not entitled to habeas relief on this claim. See Patel v. United
States, 19 F.3d 1231, 1237 (7th Cir. 1994).
ii.

Counsel prevented Laboy from testifying at his jury trial

Laboy contends that his trial counsel was ineffective for failing to call him to
the stand so that he could bring clarity to his involvement in the homicide and
30

robbery charges. (Doc. No. 1.) He avers that had he been allowed to testify, “there
is an excellent chance that [he] would have been acquitted of criminal homicide
2nd degree and robbery.” (Id.)
At the PCRA hearings, Laboy testified to the following:
Prior to trial, he and Trial Counsel discussed whether he
should testify and discussed “the fact that if [he testified
he would be] subject to being cross examined by the
District Attorney and that it could be a bad decision.”
[Laboy] decided on the last day of trial to testify and told
Trial Counsel. Counsel responded “it wasn’t a wise
decision.” [Laboy] “felt as though [he] had no say,” that
Trial Counsel’s “mind was very much made up” and that
counsel “rushed things.”
In response to the question of why testifying would have
benefited his case, [Laboy] stated: “I am not sure if it was
going to benefit anything, but I believe that I had every
right to sit on that stand and to fight for my life.” On
cross-examination, [Laboy] conceded that Trial Counsel
was concerned “from a strategy standpoint … about
subjecting [him] to cross-examination by the
Commonwealth.”
Trial Counsel confirmed he did not “think it would have
been a good idea for [Laboy] to testify” and that he
advised [Laboy] with his opinion.
Commonwealth v. Laboy, No. 2166 MDA 2014 (Pa. Super.); (Doc. No. 10-27 at 67.)
The PCRA court found that “[a]lthough [T]rial [C]ounsel did not feel that it
was a good idea for [Laboy] to testify, he never told [him] that he could not do so.”
(Id.) Instead, counsel merely “advised him that ‘it wasn’t a wise decision.’ ” (Id.)
31

The PCRA court further found that Trial Counsel “had a reasonable basis for
advising [Laboy] that it would not be a wise decision for him to testify at trial[,]”
(id.), holding that “the avoidance of opening up [Laboy] for cross-examination in a
capital murder case was sound advice and was reasonable trial strategy under the
circumstances.” (Id.) The Superior Court affirmed, providing that the PCRA
court’s ruling was supported by the record an free from legal error. (Id.)
After reviewing the record, this Court concludes that the disposition of
Laboy’s instant claim did not result in a decision contrary to, or involving an
unreasonable application of, clearly established federal law and did not result in a
decision based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Given that Laboy’s taking the
stand could have opened him up for cross-examination in a capital murder case, it
was sound advice for counsel to give to Laboy not to exercise his right to testify.
See Jones v. Folino, No. 4:06-CV-102, 2006 WL 1892713 (M.D. Pa. July 10,
2006). Accordingly, the state courts’ finding that trial counsel did not provide
ineffective assistance was not an unreasonable application of federal law and
Laboy is not entitled to habeas relief on this claim.
iii.

Counsel’s failure to seek the removal of two jurors

Laboy contends that Trial counsel was ineffective when he failed to properly
investigate the relationships of Jurors number 3 and 11 to two witnesses at his trial.
32

(Doc. No. 1.) The Superior Court summarized the background of the PCRA
hearing as follows:
Per the agreement of the parties, all guilt-phase witnesses
were sequestered during the course of the trial, but
potential penalty-phase witnesses were not sequestered.
During [trial,] Juror 3 indicated that he recognized
someone sitting in the audience in the Courtroom…. At
that point, the jury was sent upstairs, Juror 3 was brought
back to the Courtroom, was sworn in and questioned by
the Court. The Court asked Juror 3 whether the presence
of the individual in the Courtroom during the guilt phase
of the trial would impact his decision in any way in the
event the person was to testify in the penalty phase of the
proceeding. Juror 3 answered that he would still be able
to be fair and impartial during the guilt phase. Neither
the Commonwealth or [T]rial [C]ounsel asked any
questions of Juror 3.
Later, Juror 11 related to the Court that she had gone to
high school with one of the witnesses who testified
during presentation of the Commonwealth’s case. Juror
11 advised the Court that she had never socialized with
the witness, the two were not close friends, and that they
had no contact for six years since graduation. Juror 11
noted that she had not recognized the witness’s name, but
had recognized her face when she was called to testify.
When the trial was reconvened, the Court called the
Commonwealth attorney and [T]rial [C]ounsel to sidebar
and notified them of the situation. We explained that
Juror 11 had indicated that she would be able to continue
as a fair and impartial juror despite her acquaintance with
the witness. Neither the Commonwealth or trial counsel
thought it necessary to question Juror 11 under the
circumstances. [Laboy] now claims that he requested
[T]rial [C]ounsel [t] seek removal of both jurors.

33

Commonwealth v. Laboy, No. 2166 MDA 2014 (Pa. Super.); (Doc. No. 10-27 at
10-11.)
At the PCRA hearing, Laboy testified that he requested Trial Counsel to
seek Juror 3 and 11’s removal, stating, “I simply no longer wanted them on the
jury panel once they brought forth that they knew [a] possible [or] potential
witness.” (Id.) Trial Counsel testified that he did not remember whether Laboy
requested him to take action concerning the jurors, but that if Laboy did, he would
have complied. (Id.)
In finding no ineffectiveness, the PCRA court opined that:
Both jurors were appropriately questioned by the Court
and indicated that they would be able to remain fair and
impartial in their consideration of the evidence. [Laboy]
has not shown how his case was prejudiced by their
remaining on the jury or how the juror’s tenuous
connections with the individuals involved in the case
affected the outcome of the case.
(Id. at 12.) The Superior Court found no error in the PCRA court’s analysis and
affirmed. (Id.)
After reviewing the record, this Court concludes that the disposition of
Laboy’s instant claim did not result in a decision contrary to, or involving an
unreasonable application of, clearly established federal law and did not result in a
decision based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. Laboy has offered nothing to
34

show that trial counsel was wrong, let alone unreasonable, in the assessment of
both jurors. Laboy has not overcome the “strong presumption” that, given the
circumstances at the time, counsel’s decision not to seek the removal of either juror
was “sound trial strategy.” Moreover, Laboy has wholly failed to demonstrate how
the failure to seek the dismissal of either juror, even theoretically, has prejudiced
him. Accordingly, the state courts’ finding that trial counsel did not provide
ineffective assistance was not an unreasonable application of federal law and
Laboy is not entitled to habeas relief on this claim.
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). In
the instant matter, jurists of reasons would not find the disposition of Petitioner’s
petition debatable. As such, no COA will issue.

35

V.

Conclusion
For the foregoing reasons, Laboy’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: December 7, 2017

36