TUSA v. FOLINO et al
Filing
19
MEMORANDUM AND OPINION re 1 Petition for Writ of Habeas Corpus filed by JOHNATHAN ROBERT TUSA, JR. dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 05/21/2013. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JONATHAN ROBERT TUSA, JR.,
Petitioner,
)
)
)
)
)
)
)
v.
LOUIS FOLINO, et al.,
Respondents.
2:12-cv-1881
MEMORANDUM and ORDER
Mitchell, M.J.:
Jonathan Robert Tusa, Jr., an inmate at the State Correctional Institution at Waynesburg
has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition
(ECF 1) will be dismissed and because reasonable jurists could not conclude that a basis for
appeal exists, a certificate of appealability will be denied.
Tusa is presently serving a life sentence imposed following his conviction by a jury of
first degree murder and first degree murder of an unborn child at No. CP-10-CR-138-2005 in the
Court of Common Pleas of Butler County, Pennsylvania. This sentence was imposed on October
24, 2006.1
An appeal was taken to the Superior Court in which the issues presented were:
1. Whether the trial court erred in failing to grant Tusa's Motion for Change of
Venue/Venire?
2. Whether the trial court erred in denying Tusa's motion in limine concerning
the testimony of the Commonwealth witnesses Giza and Tertmyer?
3. Whether the trial court erred in denying Tusa's motion in limine regarding the
autopsy photograph of the victim?
4. Whether the trial court erred in qualifying Corporal Burlingame as an expert
and then allowing him to testify as an expert on the subject of distances?
5. Whether the trial court erred in denying Tusa's motion for an instruction on
voluntary manslaughter?
1
See; Petition at ¶¶ 1-6.
1
6. Whether the trial court erred in not granting Tusa's motion for judgment of
acquittal at the conclusion of the Commonwealth's evidence?
7. Whether the trial court erred in finding the evidence sufficient to sustain a
verdict of guilty on the charge of first degree murder after the jury verdict?2
On September 2, 2008, the judgment of sentence was affirmed.3
A petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which
the issues presented were:
A. Did the Superior Court err in failing to address Tusa's properly preserved
issue regarding the failure of the trial court to give an instruction on voluntary
manslaughter?
B. Did the Superior Court err when it ruled that the trial court did not err in
denying Tusa's motion in limine regarding the testimony of the
Commonwealth witnesses, Giza and Tetmeyer?
C. Did the Superior Court err when it ruled that the trial court did not err in
qualifying PSP Corporal Burlingame as an expert and then permitting him to
testify as an expert on the subject of distances?4
Leave to appeal was denied by the Pennsylvania Supreme Court on February 24, 2009.5
On May 22, 2009, Tusa filed a post-conviction petition.6 Relief was denied on
November 19, 20107 and an appeal was filed in the Superior Court in which the issues
presented were:
1. Did the PCRA court commit an error of law when it determined that trial
counsel, Attorney Richard Goldinger and Charles Nedz were not ineffective
for failing to object to the improper jury instructions delivered by the
Honorable George Hancher when he failed to instruct on voluntary
intoxication when the jury had questions regarding the first and third degree
murder changes which prejudiced the defendant and led directly to his
conviction of first degree murder rather than to the reduced charge of third
degree murder?
2. Did the PCRA court commit an error of law when it determined that trial
counsel was not ineffective for failing to illicit proper testimony from Daniel
Tusa and for failing to call Bobette Tusa during the guilt phase of the trial?
2
3
4
5
6
7
See: Exhibit X to the answer at p.4.
See: Exhibit Z to the answer.
See: Exhibit BB to the answer at p.3.
See: Exhibit DD to the answer.
See: Exhibit A to the answer at p.40.
See: Exhibit JJ to the answer.
2
3. Did the PCRA court commit an error o[f] law when it determined that trial
counsel was not ineffective for failing to search for and/or call character
witnesses at the guilt phase of the trial?
4. Did the PCRA court commit an error of law when it determined that appellate
counsel, Alexander Lindsey was not ineffective for failing to include in the
defendant's appellate argument a best evidence issue regarding a letter
allegedly penned by the defendant but never produced at trial?8
On November 29, 2011, the denial of post-conviction relief was affirmed.9
A petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which
the questions presented were:
I.
Did the Superior Court err in finding that trial counsel was not ineffective
for failing to object to the re-read jury instructions and that the trial court
did not commit an abuse of discretion in failing to include the charge for
voluntary intoxication in the supplemental charges?
II.
Did the Superior Court err in finding that trial counsel was not ineffective
for failing to call character witnesses on behalf of Mr. Tusa?10
On May 1, 2012, the petition for allowance of appeal was denied.11
In the instant petition executed on December 13, 2012, Tusa contends he is entitled to
relief on the following grounds:
1. Trial counsel was ineffective in that after stating in opening argument that the
case was not a case of murder but involuntary manslaughter he asked the jury
in closing to return a verdict of third degree murder thereby conceding
petitioner's guilt. Counsel also failed to fully investigate the case, failed to
interview and call witnesses with relevant testimony and failed to comprehend
the forensic evidence submitted by the prosecution which conflicted with that
of a leading ballistics expert.
2. The court's erroneous admission of misleading testimony by an expert
witness, Corporal David J. Burlingame, and qualification of same witness to
testify to muzzle-to-target distance.
3. The court erroneously denied petitioner's request for jury instructions on
voluntary manslaughter.
8
See: Exhibit NN to the answer at p.4.
See: Exhibit PP to the answer.
10
See: Exhibit RR to the answer.
11
See: Exhibit TT to the answer.
9
3
4. The court erroneously admitted hearsay evidence from two witnesses who
testified that the petitioner's wife had told them that he had assaulted her on an
occasion in January 2003, two years prior to his wife's death.
5. The trial court erroneously denied a judgment of acquittal based on the
insufficiency of the evidence to support a first degree murder conviction.12
The background to this prosecution is set forth in the September 2, 2008, Memorandum
of the Superior Court:
On December 12, 2004, the Pennsylvania State Police (PSP) discovered the body
of Dawn Elizabeth Tusa, the victim and also Appellant's wife, along Winters
Road in Penn Township, Butler County, in a 2004 Honda Sedan. The victim had
died of a gunshot wound to her forehead, and her body laid between the driver's
side and the passenger's side of the front seat of the vehicle. From the position of
the vehicle and the victim's body, it had appeared to the police that the victim
drove the vehicle in haste away from the driveway of 195 Winters Road
(Appellant's and her residence) and struck a nearby hillside. The police
discovered three spent shell casings in the driveway of the residence, and, within
the unoccupied residence at 195 Winters Road, the police discovered several
semi-automatic weapons, including a TEC-9 9mm semi-automatic handgun.
The PSP investigation determined that the victim was pregnant at the time of the
shooting and that Appellant had fled from Pennsylvania to the State of Ohio. The
Smith Township Ohio Police Department arrested Appellant, and, while he was
detained, PSP Trooper Mark E. Bardzil and Corporal Raymond Melder conducted
an interview of Appellant. After being read his Miranda rights, Appellant told the
PSP officers that he and the victim were at a party on the evening of December
11, 2004, whereat he drank beer and used cocaine. After the two returned home in
the early morning hours of December 12, 2004, the victim thought that Appellant
was again using cocaine, and she threatened to leave him, telling him that he had
to make a choice between her and drug use. Appellant stated that the victim got
into her vehicle and started to back out of the driveway, whereupon he shot at her
vehicle with the TEC-9 to disable it. Appellant stated that the vehicle crashed into
the hillside, and he broke the window in an attempt to get the victim out of the
vehicle. Appellant also told the PSP that he shut the vehicle off at that time and
returned to his residence to use the telephone. At that point, Appellant
discontinued the interview and requested an attorney.
Based on the fruits of their investigation, the PSP arrested Appellant and charged
him via criminal complaint… Thereafter, the Commonwealth filed a criminal
information charging Appellant with first-degree murder and first--degree murder
of an unborn child, and it notified Appellant of its intent to seek the death penalty
via a notice of aggravating circumstances. The case proceeded through pre-trial
pleadings, and on October 16, 2006, trial commenced. At the conclusion of trial
12
See: Petition at ¶ 12.
4
on October 19, 2006, the jury convicted Appellant of first-degree murder and
first-degree murder of an unborn child. After the penalty phase concluded, the
jury recommended a sentence of life imprisonment.13
The first issue which the petitioner seeks to raise here is the alleged
ineffectiveness of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court explained that there are two components to demonstrating a violation of
the right to the 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, 390-91 (2000). Second, under Strickland, the
defendant 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, 104 S.Ct. 2052. 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 performance prong and the prejudice prong. See
Strickland, 466 U.S. at 687; Rainey v. Varner, 603 F.3d 189,197 (3d Cir.2010) cert.
denied 131 S.Ct. 1673 (2011). As a result, if a petitioner fails on either prong, he loses.
Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006).
Tusa specifically contends that counsel was ineffective for stating in his opening that the
case was not one of murder but rather of involuntary manslaughter and in his closing argument
asked the jury to return a third degree conviction thereby conceding the petitioner's guilt.
This claim was never raised in the Pennsylvania appellate courts. Since he can no
longer return to the state courts to raise this issue14a procedural default has occurred and
because there is no showing that petitioner was barred from raising this claim it is not
properly before this Court for review. Maples v. Thomas, 132 S.Ct. 912 (2012).
13
See; Exhibit Z to the answer at pp.1-3.
See: 42 Pa.C.S.A. § 9545(b)(1), permitting a one year period from the time in which the conviction becomes final
to raise an issue in a post-conviction proceedings.
14
5
Even if a procedural default had not occurred, this argument is meritless. Under
Pennsylvania law, involuntary manslaughter results from "doing an unlawful act in a
reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly
negligent manner" resulting in the death of another person. 18 Pa.C.S.A. § 2504(a). By
his own admission at trial, petitioner conceded he had shot at his wife's vehicle
(TT.10/19/2006 pp.62-64). As a matter of state law, the trial court concluded that there
was no legal basis for instructing the jury on involuntary manslaughter (TT. 10/19/2006,
p.23), and as such the matter is not properly subject to review here. Swarthout v. Cooke,
131 S.Ct. 859 (2011).
Petitioner next argues that counsel was ineffective for failing to fully investigate
his case; failing to interview and call witnesses with relevant testimony and failing to
comprehend the prosecution's forensic evidence. The challenges alleging failure to
investigate and call witnesses were presented to the Pennsylvania Superior Court as
Tusa's second and third post-conviction issues.
In the Superior Court Tusa contended that counsel was ineffective for not calling
his father Daniel Tusa to testify about the petitioner's condition when he arrived at his
father's house after the incident and his reaction when he learned of the death of his wife;
that counsel was ineffective for failing to call his grandmother, Bobette Tusa as a witness
regarding his happiness upon learning of his wife's pregnancy and that counsel was
ineffective for failing to inquire of his father and grandmother about his peaceful nature.15
At trial, petitioner's father testified about his general demeanor when he arrived at his
house and petitioner's reaction when he learned of his wife's death (TT. 10/14/2006 pp.208, 212,
219-220). In addition, while not called as a witness, his grandmother's testimony would merely
have been cumulative of other testimony, including his own, at learning of his wife's pregnancy.
Thus, these issues merely regard cumulative testimony and are without merit.
The petitioner also contends that counsel was ineffective for failing to introduce
testimony of his peaceful nature. At the post-conviction hearing, counsel testified upon
investigation he learned petitioner had a reputation for violence and as a strategic decision he
determined it best not to call those witness. (PCRA 4/20/2010, pp.28-32).
15
See: Exhibit PP at pp.8-10.
6
As a matter of sound trial strategy, this issue is not subject to review here. Rolan v. Vaughn, 445
F.3d 671 (3d Cir.2006).
Tusa also alleges that appellate counsel was ineffective for failing to raise a best evidence
issue regarding a letter allegedly written by petitioner but not produced at trial. As the Superior
Court observed, there was never a best evidence issue raised at trial and as a result appellate
counsel cannot be deemed to have been ineffective for failing to raise this matter.16 At the postconviction hearing appellate counsel testified that he had attempted to prioritize issues raised on
appeal; that a best evidence issue is a weak appellate issue and the issue was never raised by the
petitioner. (PCRA 4/20/2010 p.5). Thus, as a matter of appellate strategy, appellate counsel
cannot be faulted for failing to raise what he considered a losing argument. Rolan v. Vaughn,
supra.
Petitioner next contends that counsel was ineffective for failing to object to the trial
court's re-reading its jury instruction on the definitions of first and third degree murder and
failing to re-explain its voluntary intoxication instruction.
The Superior Court set forth this matter as follows:
Tusa's defense to the charge of first-degree murder was that he lacked the
requisite intent to kill his wife, as he was intoxicated due to cocaine and alcohol
usage. As such, at the conclusion of closing arguments in the guilt phase of the
trial, the trial court instructed the jury as to the elements of the crime for which
Tusa was charged [i.e. first and third degree murder]. A voluntary intoxication
instruction was part of this charge. Specifically, the trial court explained to the
jury, under Pennsylvania law, 18 Pa.Cons.Stat.Ann,. § 308, evidence of voluntary
intoxication may be offered by a defendant to reduce murder from first- to thirddegree. See N.T., Trial 10/19/06, at 115-116.
After approximately three hours of deliberation, the jury requested a copy of the
definitions of first- and third-degree murder from the Court. See Id., at 126-127.
The trial court aptly stated that, it could not provide the jury with a written copy
of anything that it had read. See id., at 128-129. However, the trial court offered
to re-read the instruction to the jury. See id., at 127-128. During an in chambers
conference, counsel for Tusa asked that the entire homicide charge, including
voluntary intoxication be re-read. See id., at 127. The Commonwealth objected
arguing that the jury's question only involved the definitions of first and third
degree murder. See id. Defense counsel adamantly advocated on behalf of Tusa,
for a re-reading of the voluntary intoxication charge claiming that "[the jury] can't
consider first and third without considering what they are supposed to do" and
that "voluntary intoxication goes hand in hand with first degree murder, Your
16
See: Exhibit PP at p.11.
7
Honor, as far as the consideration is concerned." Id. The trial court disagreed with
defense counsel's position, stating that [the jury] didn't ask me about that." Id.
The trial court then stated that it was "going to ask the foreperson who signed [the
question] does the jury want [it] to reread the charge for first degree murder and
third degree murder." Id., at 128.
In the presence of the jury, the trial court then queried the foreperson: "[d]oes the
jury want me to reread those two charges on first and third degree murder, Mr.
Foreman" … The foreperson replied "[y]es, Your Honor, we would like you to
reread them." Id. The trial court proceeded to re-read the definitions of first- and
third-degree murder to the jury. See id., at 129-132.17
This argument is clearly without merit. As the record demonstrate, when the jury
requested further instruction on first and third degree murder, defense counsel sought to have the
court include its instruction on the voluntary intoxication defense. Upon inquiry the court
concluded that the jury solely requested to be reinstructed on first and third degree murder and
the court proceeded accordingly. Defense counsel clearly argued this matter, was overruled by
the court and cannot be deemed to have been ineffective.
Additionally, Pennsylvania law holds that "the scope of supplemental instructions given
in response to a jury's request rests within the sound discretion of the trial judge…" Com. v.
Akers, 572 A.2d 746 (Pa.Super.1990). The issue which the petitioner seeks to raise here was
decided solely as a matter of Pennsylvania law, and for this reason is not subject to further
review here and for this additional reason does not provide a basis for relief. Swarthout v. Cooke,
supra.
Petitioner next contends that counsel was ineffective for failing to engage a forensic
expert to testify in a manner contrary to the prosecution's witness, Corporal David J. Burlingame
on October 16, 2006.18 Over vigorous objection by defense counsel, the court accepted
Burlingame as a ballistics expert specifically recognizing his ability to testify as to distance
between a weapon and an object shot by that weapon (TT. 10/16/2006 p.157). Petitioner now
argues that counsel was ineffective for failing to call a rebuttal ballistics expert. This issue was
never raised in the Pennsylvania appellate courts, is procedurally defaulted and for this reason
does not provide a basis for relief here.
17
18
See: Exhibit PP at pp. 5-7 citing to the transcript of October 19, 2006 which appears as Exhibit K.
Corporal Burlingame's testimony appears as Ex. E pp.129-191, Exhibit F pp.3-42.
8
As his second issue the petitioner contends that the court erred in admitting the expert
testimony of Burlingame. This issue was presented to the Superior Court on direct appeal where
it was concluded as a matter of state law that the officer was competent to testify as an expert19
and for this reason this allegation is not subject to review here. Swarthout v. Cooke, supra.
Furthermore as an evidentiary matter this issue is not subject to review here unless a fundamental
due process violation occurred. KIeller v. Larkins, 251 F.3d 408 (3d Cir.2001). No such showing
is made here.
Petitioner's third issue is that the trial court erred in not instructing the jury on voluntary
manslaughter. Although raised as an issue on direct appeal, it was not directly addressed by the
Superior Court.20 However, this failure at least permits the presumption that the issue was
rejected on its merits. Johnson v. Williams, 133 S.Ct. 1088 (2013).
Pennsylvania defines voluntary manslaughter as the killing of an individual when acting
under a sudden and intense passion resulting from serious provocation. 18 Pa.C.S.A. §2503(a).
At his trial, petitioner testified that after a dispute with his wife, she got into her car, he picked up
a gun and "shot a couple rounds at the car." (TT. 10/19/06 p.62-64).
A state trial court's jury instructions must be reviewed as a whole. Estelle v. McGuire,
502 U.S. 62 (1991, and the trial court is only required to charge on a lesser offense when such an
instruction is supported by the evidence. Estelle v. McGuire, 502 U.S. 62, 71-72 1991)("As we
have stated … the fact that the instruction was allegedly incorrect under state law is not a basis
for habeas relief.").
There was no allegation of sudden and intense passion or serious provocation which
might justify such an instruction, but rather the trial focused on petitioner's reaction to his wife's
attempt to leave their home. A jury instruction is warranted only when the evidence would
support such a verdict, and the trial court concluded as a matter of state law such an instruction
was not supported by the evidence and for this reason was inappropriate.21 Accordingly, this
determination is dispositive here, Swarthout v. Cooke, supra., and the claim does not provide a
basis for relief.
The petition contends in his forth issue that he is entitled to relief as a result of the trial
court erroneously admitted hearsay evidence. Alleged state court evidentiary errors do not
19
20
21
See: Exhibit Z at pp. 12-14.
See: Exhibit Z.
See: Exhibit T.
9
provide a basis for federal relief unless those errors rise to the level of a due process violation.
Keller v. Larkins, 251 F.3d 408 (3d Cir) cert.denied 534 U.S. 973 (2001).
In his forth issue Tusa contends that the trial court erred in admitting the testimony of two
witnesses who related that the decedent had told them that the petitioner had assaulted her in
January 2003. In analyzing this claim the Superior Court wrote:
Appellant asserts … that the evidence of spousal abuse in this case is not
admissible for its truth because the Commonwealth presented the evidence in this
case through hearsay testimony. Appellant's assertion is correct… However,
evidence that is not admissible for one purpose may be admissible for another …
As our Supreme Court explained … evidence of abuse may also be admitted
through hearsay statements to demonstrate the victim's state of mind regarding the
defendant when the defendant places the victim's state of mind at issue through a
defense theory of accidental death … while Appellant notes correctly that the
Commonwealth was unable to present the hearsay statements of the victim
regarding Appellant's instances of spousal abuse through the testimony of [the
two witnesses] for the statements' truth, the hearsay statements were admissible to
demonstrate the victim's state of mind, because Appellant placed her mental state
in issue through his proffered theory of accidental shooting death …
Consequently, the victim's statements were admissible to disprove Appellant's
theory of accidental death of the victim by demonstrating that she was in mortal
fear of him due to his previous actions. As such, Appellant's issue fails (citations
omitted)22.
Clearly, this issue was decided as one of state law and is not subject to review here.
Swarthout v. Cooke, supra. In addition, the petitioner was not denied his due process or
confrontation rights since the statements were not admitted as testimonial evidence but rather
were introduced to demonstrate the victim's state of mind giving rise to her subsequent conduct.
See: Michigan v. Bryant, 131 S.Ct. 1143 1155 (2011)("there may be other circumstances, aside
from ongoing emergencies, when a statement is not procured with a primary purpose of creating
an out-of-court substitute for trial testimony"). Because the testimony was not introduced for
purpose of proving spousal abuse but rather for the limited purpose of demonstrating the victim's
state of mind, this claim does not provide a basis for relief here.
Finally, Tusa contends he is entitled to relief on the grounds that the evidence presented
was insufficient to sustain a first degree murder conviction. In reviewing such a claim, a federal
court must determine whether the evidence was sufficient for any rational fact-finder to
determine guilt beyond a reasonable doubt. Coleman v. Johnson, 132 S.Ct. 2060 (2012).
22
See: Exhibit Z to the answer at pp.11-12.
10
The petitioner was convicted of first degree murder and first degree murder of an unborn
child. 23 The evidence as analyzed by the Superior Court which determined under state law that:
The jury convicted Appellant of first-degree murder and first-degree murder of an
unborn child. To convict a defendant of first-degree murder they jury must find
the following facts: (1) that he unlawfully killed a human being; and (2) that he
did so in an intentional, deliberate, and premeditated manner … it is the element
of a willful, premeditated, and deliberate intent to kill that distinguishes firstdegree murder from all other criminal homicide … The specific intent to kill may
be inferred from the defendant's use of a deadly weapon upon a vital part of the
victim's body … Similarly, to convict a defendant of first-degree murder of an
unborn child, the jury must find that the defendant unlawfully killed an unborn
child intentionally …
The facts presented at trial indicate that Appellant shot the victim, his wife, in the
forehead with a semi-automatic handgun and that both she and her child in utero
died as a result of the gunshot wound. The facts also indicate that Appellant was
aware that the victim was pregnant at the time of the shooting. Given that
Appellant shot the victim in the forehead, a vital part of the victim's body, and
given also that he did so with the knowledge that she was pregnant, we, as did the
jury, infer from the facts that Appellant intended specifically to kill both the
victim and her child in utero… We are unconvinced by Appellant's argument that
he shot merely at the victim's car to disable it; proof that a defendant used a
deadly weapon on a vital part of a victim's body is sufficient to support an
inference that the defendant possessed the specific intent to kill a victim… The
fact that Appellant did not precisely aim the handgun at a vital part of the victim's
body does not negate this inference … Further, Appellant testified and the jury
rejected his explanation of the shooting. Our standard of review precludes this
Court from usurping the jury's credibility-determining function.(citations and
footnotes omitted).24
Thus, the issue was determined as a matter of state law and as such is not subject to
review here. Coleman v. Johnson, supra. Additionally, since there clearly was sufficient evidence
presented to sustain the conviction, as a matter of federal law this issue does not provide a basis
for relief.
Accordingly, because there is no showing that the petitioner's conviction was secured in
any manner contrary to the laws of the United States as determined by the Supreme Court nor
involved an unreasonable application of those determinations, the petitioner's claims are without
23
Pennsylvania defines first degree murder as a homicide committed by an intentional killing. 18 Pa.C.S.A. §
2502(a). First degree murder of an unborn is defined as intentional, knowing, reckless or negligent causing the death
of an unborn child by an intentional act. 18 Pa.C.S.A. §§ 2603(a) and 2604(a)(1).
24
See: Exhibit Z to the answer at pp. 6-7.
11
merit and his petition will be dismissed. Additionally, be reasonable jurists could not conclude
that a basis for appeal exists, a certificate of appealability will be denied.
An appropriate Order will be entered.
12
ORDER
AND NOW, this 21st day of May, 2013, for the reasons set forth in the foregoing
Memorandum, the petition of Jonathan Robert Tusa, Jr. (ECF 1) is DISMISSED, and because
reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability is
DENIED.
s/ Robert C. Mitchell
United States Magistrate Judge
13
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