JOHNSON v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 15

MEMORANDUM OPINION & ORDER re 3 Petition for Writ of Habeas Corpus filed by CHARLES JOHNSON. The Petition for Writ of Habeas Corpus and a Certificate of Appealability are denied. The Clerk is directed to mark this case closed. Petitioner has thirty (30) days in which to file a notice of appeal. Signed by Magistrate Judge Lisa Pupo Lenihan on September 19, 2017. (kcc) Modified on 9/19/2017 to reflect that a COA is also denied. (kcc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHARLES JOHNSON,
Petitioner,
v.
THE COMMONWEALTH OF
PENNSYLVANIA and THE
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

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Civil Action No. 15 – 174
Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION
Petitioner Charles Johnson (“Petitioner”) has filed a Petition for Writ of Habeas Corpus
by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”), seeking relief from his
February 16, 2006 judgement of sentence of one hundred twenty (120) months to two hundred
forty (240) months imprisonment for Aggravated Assault and Possession of Weapons or
Implements for Escape. For the following reasons, the Petition will be denied.
A. Facts of the Crime
As stated by the Court of Common Pleas of Fayette County, Pennsylvania, the facts of
the crime are as follows:
On December 22, 2004, the defendant, Charles Johnson, was a prison
inmate at the State Correctional Institution – Fayette located in Luzerne
Township, Fayette County, Pennsylvania. Around 7:00 P.M. in the evening, the
defendant was in the Day Room, an activity room in the institution, with
approximately fifty-three other inmates including the victim, Michael Smith. The
inmates in the Day Room were involved in activities such as watching television
and playing cards or checkers. Immediately prior to the incident, defendant was
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seated in the television area of the Day Room, and the victim was about 20 feet
away in the back of the Day room seated at a table playing checkers. The
inmates’ activities were being supervised by Corrections Officer Robert Klink
who was standing at a podium facing the tables.
Defendant rose from his seat and walked to the area where the individuals
were playing checkers. Defendant had in his possession a “shank” comprised of a
steel rod sharpened at one end with the other end wrapped with a cloth which was
in turn wrapped around defendant’s left hand. Defendant approached Michael
Smith from behind and wielding the “shank” stabbed Michael Smith in the left
side of the head. Corrections Officer Robert Klink yelled for the defendant to
stop and began running toward the location of the assault. As he approached
Officer Klink observed the defendant continue stabbing the victim on the side of
his head. The defendant backed away and placed the shank in his waistband
subsequently discarding it on the floor. Other officers were called and the
defendant was secured. The victim, Michael Smith, suffered several puncture
wounds to the side of his head and face and bled profusely from his wounds.
(Resp’t Ex. 7, ECF No. 13-7, pp. 2-3) (citations to record omitted).
B. Relevant Procedural Background
Petitioner was charged with Criminal Attempt to Commit Criminal Homicide,
Aggravated Assault, and Possession of Weapons or Implements of Escape. (Resp’t Ex. 1, ECF
No. 13-1, p.4.) On January 10, 2006, a jury acquitted Petitioner of the Attempt charge, but found
him guilty of the remaining charges of Aggravated Assault and Possession of Weapons or
Implements of Escape. (Resp’t Ex. 1, ECF No. 13-1, p.6.) On February 16, 2006, Petitioner was
sentenced to a term of incarceration no less than 120 months and no more than 240 months.
(Resp’t Ex. 1, ECF No. 13-1, pp.4, 6.) Petitioner filed a timely appeal to the Pennsylvania
Superior Court, (Resp’t Ex. 10, ECF No. 13-10), which affirmed Petitioner’s judgment of
sentence in a Memorandum dated June 7, 2007. (Resp’t Ex. 11, ECF No. 13-11.)
On November 4, 2007, Petitioner filed a timely pro se petition pursuant to Pennsylvania’s
Post Conviction Relief Act (“PCRA”). (Resp’t Ex. 12, ECF No. 13-12.) On January 4, 2008,
the PCRA court appointed Mark Matthew Mahalov, Esq., to represent Petitioner, and Attorney
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Mahalov subsequently filed an Amended PCRA petition, (Resp’t Ex. 13; ECF No. 13-13), and
Second Amended PCRA petition, (Resp’t Ex. 14, ECF No. 13-14), on Petitioner’s behalf, on
February 13, 2008 and February 14, 2003, respectively. (Resp’t Ex. 1, ECF No. 13-1, p.9.) A
hearing was held on February 14, 2008, on the issues raised in the PCRA petition. (Resp’t Ex. 6,
ECF No. 13-6.)
On August 18, 2009, Attorney Mahalov moved to withdraw as counsel, and the PCRA
court granted that request and appointed Brent Peck, Esq, to represent Petitioner on August 21,
2009. (Resp’t Ex. 1, ECF No. 13-1, p.9.) Subsequently, Attorney Peck moved to withdraw as
counsel on June 4, 2012. (Resp’t Ex. 1, ECF No. 13-1, p.10.) It appears that the PCRA court
granted that request, appointing Jeremy James Davis, Esq. in his place. (Resp’t Ex. 1, ECF No.
13-1, p.10.) The PCRA court ultimately denied Petitioner’s PCRA petition on August 5, 2013.
(Resp’t Ex. 8, ECF No. 13-8.)
Petitioner appealed the denial of his PCRA petition, represented by court-appointed
counsel James V. Natale, Esq. (Resp’t Ex. 1, ECF No. 13-1, p.11; Resp’t Exs. 17-18, ECF Nos.
13-17, 13-18.) The Superior Court of Pennsylvania affirmed the denial of PCRA relief in a
Memorandum dated March 18, 2014. (Resp’t Ex. 19, ECF No. 13-19.) Petitioner filed a Petition
for Allowance of Appeal (and a subsequent Amendment thereto) with the Supreme Court of
Pennsylvania, (Resp’t Exs. 20-21, ECF Nos. 13-20, 13-21), and that petition was denied by
Order dated December 30, 2014, (Resp’t Ex. 23, ECF No. 13-23).
Petitioner filed the instant pro se Petition for Writ of Habeas Corpus on February 6, 2015.
(ECF No. 1-1.) Respondents’ answered the petition on June 9, 2015. (ECF No. 13.)

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C. Standard of Review
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
federal habeas court may overturn a state court’s resolution of the merits of a constitutional issue
only if the state court decision was “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). The Supreme Court of the United States, in Williams v. Taylor, 529 U.S.
362 (2000), discussed the analysis required by § 2254(d)(1):
[Under the “contrary to” clause], a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Id. at 1498. The Third Circuit Court, consistent with the Williams v. Taylor interpretation, set
forth in Matteo v. Superintendent, SCI-Albion, 171 F.3d 877 (3d Cir. 1999), cert. denied 528
U.S. 824 (1999), a two-tier approach to reviewing § 2254(d)(1) issues:
First, the federal habeas court must determine whether the state court decision
was “contrary to” Supreme Court precedent that governs the petitioner’s claim.
Relief is appropriate only if the petitioner shows that “Supreme Court precedent
requires an outcome contrary to that reached by the relevant state court.” O’Brien
[v. Dubois], 145 F.3d [16], 24-25 [1st Cir. 1998)]. In the absence of such a
showing, the federal habeas court must ask whether the state court decision
represents an “unreasonable application” of Supreme Court precedent; that is,
whether the state court decision, evaluated objectively and on the merits, resulted
in an outcome that cannot reasonably be justified. If so, then the petition should
be granted.
Id. at 891. The phrase “clearly established Federal law,” as the term is used in Section
2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme

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Court] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 365.
Under the “reasonable application” clause,
a federal habeas court may not grant relief simply because that court concludes in
its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.
Id.
The AEDPA further provides for relief if an adjudication “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.” 28 U.S.C. § 2254(d)(2). Section 2254(d)(2) mandates the federal
habeas court to assess whether the state court’s determination was reasonable or unreasonable
given that evidence. If the state court’s decision based on such a determination is unreasonable
in light of the evidence presented in the state court proceeding, habeas relief is warranted.
Within this overarching standard, of course, a petitioner may attack specific factual
determinations that were made by the state court, and that are subsidiary to the ultimate decision.
Here, section 2254(e)(1) comes into play, instructing that the state court’s determination must be
afforded a presumption of correctness that the petitioner can rebut only by clear and convincing
evidence. Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).
D. Discussion
Petitioner asserts one ground for relief in his Petition for Writ of Habeas Corpus, set forth
as follows:
The witness lied on stand and said he seen me do it and that the victim had
five puncture wounds when I have the medical record that says otherwise. I had
witnesses that never testified at trial.

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(ECF No. 3, p.5.) Reviewing the grounds raised by Petitioner on direct appeal and during his
PCRA proceedings, it would appear that Petitioner’s ground for the instant petition is limited to
the issue of ineffective assistance of counsel—namely, that his counsel allegedly failed to present
witnesses on his behalf and failed to introduce the medical records of the victim at trial, and that
such actions prejudiced the outcome of his jury trial.
1. State court determinations
With respect to Petitioner’s allegation that his trial counsel failed to interview and present
witnesses on his behalf of fellow inmates Kareem Bryant, William Daniels, and Tyrone Hill, the
PCRA court convened a hearing on February 14, 2008, at which time Bryant, Daniels, and Hill
testified via a two-way video conferencing system. Additionally, Petitioner and his trial counsel,
Michael Garofalo, testified. The PCRA court summarized their testimony as follows:
Tyrone Hill testified that he observed an inmate known as T.B. (real name
unknown) strike the victim with a long blunt object in the eye. According to
Tyrone Hill, he never told anyone else what he had seen or about his knowledge
of the assault on Michael Smith. At no time prior to the defendant’s trial did he
say anything to anyone about his possible testimony. According to Hill, he had
no chance to talk with Petitioner after the incident. Hill indicated that he didn’t
tell anyone anything because he didn’t want to be labeled as an informant or a rat.
Kareem Bryant testified that he was an inmate on Delta Block at SCIFayette and that he was in the Day Room at the time of the incident. He testified
that he didn’t see the incident happen but stated that he saw a lot of commotion.
He testified that it couldn’t have been Petitioner who committed the assault
because Petitioner was about two feet away from Bryant at the time. He testified
that he never had an opportunity to talk with Petitioner since the time of the
incident and did not make Petitioner aware of what he had seen.
William Daniels testified that he was an inmate of SCI-Fayette and was in
the Day Room of the Delta Block at the time of the incident. He claims that at the
time of the incident Petitioner was “like over by us.” “I didn’t see C.J. doing
anything.” Daniels admits that he didn’t see anyone strike Michael Smith.
According to Daniels the commotion took place six to ten feet from where he was
located. When he became aware of the commotion, Petitioner was sitting
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approximately two feet from him. Prior to Petitioner’s trial Daniels never told
Petitioner what he had seen at the time of the assault on Michael Smith.
Petitioner was represented at the trial by Attorney Michael Garofalo.
According to trial counsel, Petitioner did not provide him with the names of any
of the three inmates to call as witnesses during the trial of his case. Counsel was
not made aware of the witnesses at trial or at any time leading up to the trial.
Petitioner made no request that Michael Garolfalo call the alleged witnesses to
testify at his trial nor did he provide counsel with a list of any prospective
witnesses. . . . .
Petitioner admitted on direct examination that prior to trial he had never
talked with the alleged witnesses following the assault on Michael Smith. The
witnesses also confirmed that they did not talk with [P]etitioner or anyone else to
indicate either their willingness to testify at Petitioner’s trial or that they had any
relevant evidence to contribute.
(Resp’t Ex. 8, ECF No. 13-8, pp.9-11) (citations to record omitted). In denying Petitioner’s
PCRA petition, the PCRA court credited the testimony of trial counsel and found that “counsel
was not informed of the possibility that these witnesses existed or that they could provide
testimony favorable to the Petitioner.” (Resp’t Ex. 8, ECF No. 13-8, p.11.) The PCRA court
further found that that the testimony of Petitioner’s three witnesses appeared to be lacking in
credibility, and noted that the Commonwealth witness, Officer Klink, who identified Petitioner
as the assailant, and “who was present as an observer to observe and monitor the activities of the
inmates in the Day Room,” had a clear view of Petitioner’s movements and actions. (Resp’t Ex.
8, ECF No. 13-8, pp.11-12.) As such, the PCRA court did not find that the absence of the
testimony of Petitioner’s proposed witnesses prejudiced Petitioner at trial. (Resp’t Ex. 8, ECF
No. 13-8, p.12.)
The Superior Court agreed on appeal, finding that the record disclosed ample support for
the PCRA court’s conclusion that Petitioner could not establish ineffective assistance of counsel.
(Resp’t Ex. 19, ECF No. 13-19, p.13.) The court also pointed out that none of Petitioner’s three
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witnesses could or would positively identify the assailant, despite testifying that they were in the
Day Room at the time of the attack. (Resp’t Ex. 19, p.13.) Additionally, the court noted that all
three witnesses testified that Petitioner was with or near them at the time of the attack,
approximately six to eight feet away from the victim, but Petitioner himself testified that he was
approximately one foot away from the victim at the time of the incident. (Resp’t Ex. 19, p.13.)
As such, the appellate court concluded that Petitioner could not establish prejudice by the
absence of his proposed witnesses’ testimony because the record supported the PCRA court’s
credibility and incredibility determinations and that Petitioner’s trial counsel was not informed of
the witnesses’ existence. (Resp’t Ex. 19, p.13.)
Regarding Petitioner’s claim that trial counsel failed to introduce the victim’s medical
records, which would have impeached Officer Klink’s testimony that multiple blows were
struck, the PCRA court stated:
. . . . A review of the medical incident/injury report Department of Corrections
Form DC-457 contained in the discovery materials reveals that there is a location
on the form for type of injury. The form lists six categories as follows: 1)
laceration; 2) hematoma; 3) abrasion; 4) burn; 5) non-apparent; 6) other.
Adjacent to each category is located a box to be checked. On the medical
incident/injury form for Michael Smith, the box checked is for laceration. Also
on the form is a location for initial illness/injury. In this space is written what
appears to be “0.5 centimeter by 1 centimeter laceration to L temporal area.”
Contrary to [Petitioner]’s contention, the report does not set forth a
number of puncture wounds but only lists the injury as “laceration.” The
Commonwealth did introduce as Commonwealth’s Exhibit #2 a photograph
showing the left temple of Michael Smith taken shortly after the wounds were
inflicted. According to Office Klink a view of the photograph reveals he could
ascertain at least three puncture wounds. The photograph was admitted into
evidence and was sent out with the jury to review during their deliberations.
Attorney Garofalo testified that as a matter of trial strategy he did not want
to admit the medical report into evidence. He believed that the wound mentioned
in the medical report could have been a laceration which was produced by one or
more types of impact actions by the shank. As noted by trial counsel the only
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testimony relative to the injury came from Officer Klink, since Inmate Smith, in
his testimony, did not recall having been assaulted.
The only physical evidence of the assault on inmate Smith was the
photograph and the observations of the officer. Counsel as a matter of strategy
did not want to further confirm the fact that there was an injury by introducing the
medical report.
(Resp’t Ex. 8, ECF No. 13-8, pp.17-18) (citations to record omitted). Under the circumstances
of this case, the PCRA court found that trial counsel’s strategy was reasonable and “was not the
result of sloth or ignorance of available alternatives.” (Resp’t Ex. 8, ECF No. 13-8, p.19.) On
appeal, the Superior Court found that Petitioner had waived this claim because he failed to
develop his argument and cite legal authority in support of his claim. (Resp’t Ex. 19, ECF No.
13-19, pp.18-19.) Alternatively, the Superior Court agreed with the PCRA court’s conclusion
that the strategy pursued by trial counsel was reasonable, specifically stating that “part of his
defense was to downplay the extent of the victim’s injury since the victim did not remember the
attack and the Commonwealth’s photographs did not appear to depict much of an injury.”
(Resp’t Ex. 19, ECF No.13-19, p.19, n.4.)
2. Application of 28 U.S.C. § 2254(d)
Because the state courts denied Petitioner’s claims on the merits, 1 this Court’s review of
it is very limited. It is not for this Court to decide whether the state courts’ decision was right or

While the Superior Court found that Petitioner waived his second claim regarding ineffective
assistance involving the victim’s medical report, it also examined the merits of Petitioner’s claim
and determined that it was without merit. In determining the appropriate standard of deference
to apply to the state court determination in this scenario, the Third Circuit has stated that federal
habeas courts should apply AEDPA deference to an alternative holding if the state court’s
consideration of the claim “provides an alternative and sufficient basis for the decision.” Rolan
v. Coleman, 680 F.3d 311, 321 (3d Cir. 2012). See also Lambert v. Blackwell, 387 F.3d 210,
239-40 (3d Cir. 2004) (applying AEDPA’s deferential standard of review to a state court
decision where the state court determined that it lacked jurisdiction but went on to address the
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wrong. Rather, under AEDPA’s standard of review, as codified in relevant part at 28 U.S.C. §
2254(d)(1), it is Petitioner’s burden to show that the state courts’ adjudication was “contrary to,
or involved an unreasonable application of clearly established Federal law as determined by the
Supreme Court of the United States,” or as codified in relevant part at 28 U.S.C. § 2254(d)(2),
was an “unreasonable determination of the facts in light of the evidence presented.” Petitioner
has not met his burden.
First, the “clearly established Federal law” in which to analyze Petitioner’s ineffective
assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a habeas petitioner must demonstrate that: (1) counsel’s representation fell
below an objective standard of reasonableness; and (2) there is a reasonable probability that, but
for counsel’s error, the result would have been different. 466 U.S. at 687. For the deficient
performance prong, “[t]he proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” Id. at 688. To establish prejudice, “[t]he
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.
At the outset, the Court notes that the state courts’ decision on Petitioner’s ineffective
assistance of counsel claims is not “contrary to” clearly established federal law because the state
courts properly identified and applied the reasonableness standard and standard for finding
prejudice as outlined by the Supreme Court in Strickland. See (Resp’t Ex. 19 Id. at pp. 6-7)

merits). The Superior Court’s consideration of the waived claim meets this standard and
therefore this Court will apply AEDPA’s deferential standard of review.
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(citing Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). 2 See also Werts, 228 F.3d at 202-04
(“[A] state court decision that applied the Pennsylvania [ineffective assistance of counsel] test
did not apply a rule of law that contradicted Strickland and thus was not ‘contrary to’ established
Supreme Court precedent.”). Furthermore, the state courts did not reach a different result from
that reached by the Supreme Court in a case with materially indistinguishable facts.
The inquiry thus becomes whether there was an “unreasonable application” of the law,
which is closely bound with the question of whether there was an “unreasonable determination of
facts,” and whether Petitioner has met the clear and convincing standard in presenting evidence
to rebut the presumption that the PCRA court’s fact-finding was correct. In order to overcome
AEDPA’s standard of review, Petitioner must show that the state courts’ decision was
“objectively unreasonable,” or in other words, “the state court decision, evaluated objectively
and on the merits, resulted in an outcome that cannot reasonably be justified under existing
Supreme Court precedent.” Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889-90 (3d
Cir. 1999). Here, the state courts’ disposition of Petitioner’s ineffectiveness claims was neither
an unreasonable application of Strickland, nor an unreasonable determination of the facts in light
of the evidence presented.
As the state courts noted with respect to Petitioner’s ineffective assistance of counsel
claim for failing to call as witnesses Bryant, Daniels, and Hill, it cannot be said that counsel’s
performance was deficient because counsel was never informed by Petitioner of the existence of
these witnesses, Petitioner admitted that he did not speak to them prior to trial and the witnesses
Although Pennsylvania courts typically articulate a three-prong test for gauging ineffective
assistance claims, and Strickland sets forth its test in two prongs, the legal evaluation is the same,
and the differences merely reflect a stylistic choice on the part of state courts. See Werts v.
Vaughn, 228 F.3d 178, 202-03 (2000).
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admitted that they did not speak to Petitioner or communicate their willingness to testify.
Counsel cannot be ineffective for failing to act upon facts that were unknown to him at the time
of trial. 3 See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (petitioner must allege
or offer evidence that “any such testimony was forthcoming or available upon reasonable
investigation”); United States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988) (finding dismissal of
ineffective assistance of counsel claims appropriate where petitioner never contended that his
trial counsel “was or should have been aware of . . . [the] testimony [of uncalled witnesses].”)
Furthermore, it cannot be said that there was a reasonable probability that the testimony of these
three witnesses would have changed the outcome of Petitioner’s trial because, as the state courts
noted, they did not have any relevant evidence to contribute, nor was it clear that they were even
prepared to cooperate at the time of trial.
With respect to Petitioner’s allegation that his counsel was ineffective for failing to admit
the victim’s medical report at trial, the state court noted that it was a matter of trial strategy for
counsel not to introduce the report. Despite Petitioner’s assertions to the contrary, the victim’s
medical report would not have impeached Officer Klink’s testimony that multiple blows were
struck, and counsel testified that he chose not to introduce the report because he believed that the

For counsel’s actions to constitute ineffective assistance, Pennsylvania law requires that a
petitioner establish 1) that the witness existed, 2) that the witness was available to testify at trial,
3) that counsel was informed or should have known of the existence of the witness, 4) that the
witness was prepared to cooperate and testify for the petitioner at trial, and 5) that the absence of
the testimony prejudice the petitioner so as to deny him a fair trial. Com. v. Pursell, 724 A.2d
293, 258 (Pa. 1999) (citing Com. v. Crawley, 663 A.2d 676, 679 (Pa. 1995)). This state standard
comports with federal law. See Williams, 529 U.S. at 394-95. See also, U.S. ex rel. Green v.
Rundle, 434 F.2d 1112, 1115 (3d Cir. 1970) (“[w]hen a habeas corpus petitioner alleges as a
ground for relief the failure of counsel to exercise normal competence in presenting specific trial
evidence it is reasonable, we think, to put on petitioner the burden of showing that the missing
evidence would be helpful.”)
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wound mentioned in the report could have been a laceration which was produced by one or more
types of impact actions by the shank. Counsel stated that as a matter of trial strategy he did not
want to confirm the fact that there was an injury by introducing the medical report since the only
physical evidence of the assault on inmate Smith was the photograph, which in his opinion did
not depict much of an injury. Counsel testified that he chose this course of action in order to
downplay the injury as much as possible. This was a strategic choice with a reasonable basis
designed to effectuate his client’s interests, and therefore was not inadequate representation. See
Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005) (“where it is shown that a particular
decision was, in fact, an adequately informed strategic choice, the presumption that the
attorney’s decision was objectively unreasonable becomes ‘virtually unchallengeable.’”)
E. Certificate of Appealability
A court should issue a Certificate of Appealability where a petitioner makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
petitioner meets this burden by showing that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). Petitioner has not made a substantial showing of the denial of a constitutional right.
Accordingly, the Court will not issue a Certificate of Appealability. A separate order follows.
Dated: September 19, 2017.
_________________________
Lisa Pupo Lenihan
United States Magistrate Judge
Cc: Charles Johnson
EK 9548
SCI Graterford
P.O. Box 244

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Graterford, PA 19426-0246
Via First Class Mail
Counsel for Respondents
Via CM/ECF Electronic Mail

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHARLES JOHNSON,
Petitioner,
v.
THE COMMONWEALTH OF
PENNSYLVANIA and THE
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

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Civil Action No. 15 – 174
Magistrate Judge Lisa Pupo Lenihan

ORDER
AND NOW, this 19th day of September, 2017, for the reasons stated in this
Court’s Memorandum Opinion filed contemporaneously herewith,
IT IS HEREBY ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
(ECF No. 3) and a Certificate of Appealability are DENIED.
IT IS HEREBY ORDERED that the Clerk is directed to mark this case
CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
_________________________
Lisa Pupo Lenihan
United States Magistrate Judge
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Cc: Charles Johnson
EK 9548
SCI Graterford
P.O. Box 244
Graterford, PA 19426-0246
Via First Class Mail
Counsel for Respondents
Via CM/ECF Electronic Mail

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