Cassidy v. Ryan

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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TIMOTHY CASSIDY, )

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Petitioner, )

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v. ) Civil No.: 16-cv-10468-DJC

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KELLY RYAN, )

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Respondent. )

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__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. February 5, 2019

I. Introduction

Petitioner Timothy Cassidy (“Cassidy”), acting pro se, has filed a petition seeking a writ

of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. D. 1. Respondent Kelly Ryan

(“Ryan”), the Superintendent of MCI-Shirley, opposes the Petition on the basis that Cassidy’s

grounds for habeas relief are procedurally defaulted or fail on the merits. D. 21. For the reasons

stated below, the Court DENIES the Petition, D. 1.

II. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this Court

may grant a writ of habeas corpus if the state court adjudication “resulted in a decision that 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). “AEDPA erects

a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in

state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013).

A state court decision is “contrary to” clearly established federal law “if the state court

either ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases,’ or

‘confronts a set of facts that are materially indistinguishable from’” a Supreme Court precedent

and arrives at an opposite conclusion. Penry v. Johnson, 532 U.S. 782, 792 (2001) (quoting

Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A state court decision is an “unreasonable

application” of clearly established federal law “if it correctly identifies the governing legal rule

but applies that rule unreasonably to the facts of a particular prisoner’s case.” White v. Woodall,

572 U.S. 415, 426 (2014). In sum, “a state prisoner must show that the state court’s ruling on the

claim being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

III. Relevant Factual and Procedural Background

A. Charge and Cassidy’s Trial

In February 2008, a grand jury sitting in Bristol County charged Cassidy with first degree

murder. S.A.1 8; Commonwealth v. Cassidy, 470 Mass. 201, 202 (2014). These charges arose

out of the events of November 20, 2007. Cassidy, 470 Mass. at 203. Cassidy and his best friend,

James Madonna, traveled in separate cars to play poker at a hotel in Taunton. Id. Another player

saw the two men leave together around 8:15 p.m. Id. Cassidy returned to his residence between

10:30 and 11 p.m.; Madonna never arrived home. Id. When Madonna did not return home, his

1 The Court refers to the contents of the manual filing of Defendant’s Supplemental Answer, D.

12, as “S.A.”

family searched for him and engaged Cassidy in the search. Id. The following morning, while

accompanying Madonna’s son on the search, Cassidy directed him to drive to a parking lot in an

industrial area near the hotel. Id. There, they came upon Madonna’s car, still running. Id.

Madonna, shot once in the neck and four times in the back, was dead. Id. at 204. Evidence from

the scene, including DNA from a cigarette butt, tied Cassidy to the scene. Id. During his

subsequent interviews with police, Cassidy provided suspicious information about his

whereabouts about leaving the hotel with the victim, failed to mention his .40 caliber pistol (the

firearm used in the murder) in the accounting of his firearms and did not admit, until confronted,

that he had borrowed a substantial amount of money from Madonna. Id. at 206-07. (The jury

would later hear evidence that, at the time of the murder, Cassidy “was experiencing significant

financial trouble,” id. at 205, and that Madonna’s wife had threatened Cassidy that if he did not

pay them back by November 19th, the day before the murder, she would tell Cassidy’s wife who

was unaware of his situation. Id.).

During their investigation, Cassidy also reported to police that a third party, Kevin Hayes,

had threatened him with a shotgun. Id. at 207. Police had separately learned that Cassidy, with

Hayes’ assistance, had borrowed money from a loan shark. Id. at 206. After police confronted

him about the loan from Madonna, he agreed to return for more questioning. Id. at 207. He did

not return and instead fled the Commonwealth. Id. The police apprehended Cassidy in Georgia

in December 2007 and he was held in custody pending trial. Id. Later, in 2009, while Cassidy

remained in pretrial custody awaiting trial, Cassidy attempted to get his stepfather to move a

container holding the pistol from Cassidy’s residence and put it under the shed at a particular

residence or under the driver’s seat of a Lincoln automobile, believed that to be of Hayes. Id. at

205 n.6. The scheme was thwarted and the police recovered Cassidy’s pistol. Id. The government

produced a firearms identification witness at trial who opined that, although he could not make

such determination about the recovered projectiles, the .40 caliber discharged cartridge casings

recovered from the crime scene had been fired from Cassidy’s pistol. Id. at 205.

Cassidy’s trial began on January 9, 2012. S.A. 4. During the trial, Cassidy testified, among

other things, that the victim had been delivering cocaine for a motorcycle gang and that when a

package of drugs that he had delivered to one of Cassidy’s stores went missing, they became

indebted to the gang. Cassidy, 470 Mass. at 207. As a result, Cassidy had taken money from his

stores and gotten the loan shark’s loan with Hayes’ help. Id. On the night of murder, Cassidy

claims that he, Madonna and Hayes were in the process of arranging a drug deal and that he

witnessed Hayes shoot Madonna. Id. at 208. Cassidy further testified that Hayes had threatened

him and his family if he “opened his mouth,” and admitted that he had “lied from the beginning,”

but only “because he was afraid and because he wanted to expose Hayes as the killer.” Id.

On January 27, 2012, the jury found Cassidy guilty of first-degree murder on the theory

of extreme atrocity or cruelty. S.A. 10; Cassidy, 470 Mass. at 202. The trial court sentenced him

to life imprisonment. S.A. 10.

In his direct appeal to the Supreme Judicial Court, Cassidy raised numerous claims

regarding certain evidentiary rules by the trial court which allegedly deprived him of due process

and fundamental fairness under the U.S. Constitution and the Massachusetts Declaration of Rights;

the trial court’s response to the jury’s question about whether Cassidy could have called Hayes as

a witness; and misstatement of the evidence by his counsel during closing arguments. S.A. 18.

On December 16, 2014, the Supreme Judicial Court denied his claims and affirmed his conviction,

S.A. 234, and, on March 2, 2015, denied his motion for re-hearing. S.A. 14.

B. This Petition

Cassidy has now filed this Petition. D. 1. The Petition is based on the following grounds:

(1) deprivation of his right to present a defense in violation of due process and fundamental

fairness, D. 1-2 at 3-5; (2) violation of his right to confrontation (based upon the same alleged

errors as Cassidy’s first ground), D. 1-2 at 5-6; and (3) denial of due process and fundamental

fairness when the judge’s response to a jury question about whether Cassidy could have called

Hayes as a witness improperly shifted the burden of proof. D. 1-2 at 6.

IV. Discussion

A. Numerous of the Grounds Asserted in the Petition are Procedurally Defaulted

Among the grounds for the Petition, Cassidy alleges a due process violation arising from

the trial court’s refusal to allow him to call the victim’s brother (“Joe”) as a witness where Cassidy

proffered that he would testify about the victim’s drug dealing and from the government’s

statements arguing that the jury should reject Cassidy’s contention that Hayes was the true culprit.

As an initial matter, these grounds are not cognizable here because Cassidy failed to comply with

a state procedural requirement. “In all cases in which a state prisoner has defaulted his federal

claims in state court pursuant to an independent and adequate state procedural rule, federal habeas

review of the claims is barred . . . .” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

The Massachusetts contemporaneous objection rule, which requires a party to make their

objection known at the time of the ruling, Mass. R. Crim. P. 22, is an independent and adequate

state procedural rule barring federal habeas review. See Janosky v. St. Amand, 594 F.3d 39, 44

(1st Cir. 2010). “The [Supreme Judicial Court] regularly enforces the rule that a claim not raised

is waived.” Gunter v. Maloney, 291 F.3d 74, 79 (1st Cir. 2002); see Janosky, 594 F.3d at 44

(stating that “[w]e have held, with a regularity bordering on the monotonous, that the

Massachusetts requirement for contemporaneous objections is an independent and adequate state

procedural ground, firmly established in the state’s jurisprudence and regularly followed in its

courts”). As to calling the victim’s brother as a witness, Cassidy’s trial counsel objected to the

exclusion of same on the basis that such information should have led the police to investigation,

but not on the grounds that it bore on the inadequacy of the police’s investigation (which would

have bore on Cassidy’s Bowden defense discussed below). The Supreme Judicial Court noted as

much and applied the “substantial likelihood of a miscarriage of justice” standard to this

unpreserved objection in rejecting it in Cassidy’s direct appeal. Similarly, since defense counsel

did not object to the portions of the prosecutor’s closing argument upon which he now relies, the

Supreme Judicial Court also applied the miscarriage of justice standard in rejecting this basis of

his appeal. As a result, Cassidy has procedurally defaulted on these claims and did not preserve

them for a habeas petition. See, e.g., Horton v. Allen, 370 F.3d 75, 80-83 (1st Cir. 2004)

(concluding that because “[d]efense counsel did not object to conducting the individual voir dire

in the anteroom” the claim was not preserved for a habeas petition); see Rodriguez v. Russo, 495

F. Supp. 2d 158, 169-70 (D. Mass. 2007) (concluding that the alleged grounds for habeas relief

were not properly preserved because petitioner failed to contemporaneously object).

A procedural default may be excused, however, if the “petitioner can demonstrate cause

for the default and actual prejudice.” Janosky, 594 F.3d at 44. “The general requirement for cause

for a procedural default is that the prisoner must show ‘that some objective factor external to the

defense impeded counsel’s efforts to comply with the State’s procedural rule.’” Gunter, 291 F.3d

at 81 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). A petitioner can also excuse the

default if he can show there was a “fundamental miscarriage of justice.” Id. The Court does not

find that either exception is applicable here. An external factor that constitutes an impediment to

counsel can be “a showing that the factual or legal basis for a claim was not reasonably available

to counsel, or that ‘some interference by officials’ made compliance impracticable.” Murray, 477

U.S. at 488 (quoting Brown v. Allen, 344 U.S. 443, 486 (1953)) (internal citations omitted). Acting

pro se is not an external factor that qualifies as cause for a procedural default. See, e.g., Forte v.

Medeiros, 239 F. Supp. 3d 310, 322 (D. Mass. 2017) (concluding there was no cause for

petitioner’s failure to object even though he was acting pro se). Cassidy has shown no such cause.

Moreover, even if Cassidy could demonstrate cause, he would also need to show actual

prejudice. Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994). To prove actual prejudice, the

“petitioner must demonstrate ‘not merely that the errors at . . . trial created a possibility of

prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial

with error of constitutional dimensions.’” Id. (quoting United States v. Frady, 456 U.S. 152, 170

(1982)). “The federal habeas court must ask whether, if the allegedly incompetent act had not

been committed, ‘it is reasonably likely the result would have been different.’” Pacheco v. Roden,

No. 09-10304-DPW, 2011 WL 6140996, at *5 (D. Mass. Dec. 8, 2011) (quoting Harrington, 562

U.S. at 111). Nothing in the record suggests any actual prejudice as to either ground. As to the

exclusion of “Joe” as a witness, as the Supreme Judicial Court found, there could be no substantial

likelihood of a miscarriage of justice for such exclusion “because the information had already

come out at trial through other witnesses and would have been cumulative,” Cassidy, 470 Mass.

at 212. The same is true as to not amounting to actual prejudice since this Court cannot reasonably

conclude that the trial outcome would have been different given that Cassidy’s defense theory was

squarely before the jury to accept or reject. As to the now challenged statements in the prosecutor’s

closing, in light of Cassidy’s own trial testimony accusing Hayes of Madonna’s murder, the

Supreme Judicial Court concluded they “were a proper reflection on the weakness of the

defendant’s case.” Id. at 277. This commentary on the weakness of the defense Cassidy mounted,

coupled with the court’s repeated instructions that the Commonwealth bore the burden of proof

and the defendant, presumed innocent, had no such burden, did not amount to actual prejudice.2

B. The Remainder of the Grounds Asserted in the Petition Also Fail on the Merits

To trigger habeas relief under 28 U.S.C. § 2254(d)(1), the petitioner must show 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).

Federal law, for the purposes of an AEDPA analysis, is defined as Supreme Court holdings and

excludes dicta. White, 572 U.S. at 419. “An unreasonable application of federal law” is not the

same as “an incorrect application of federal law.” Scott v. Gelb, 810 F.3d 94, 101 (1st Cir. 2016).

Habeas relief is not warranted if ‘“fairminded jurists could disagree’ on the correctness of the state

court’s decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652,

664 (2004)). Not even clear error will establish an objectively unreasonable conclusion. White,

572 U.S. at 419.

The merits of the remaining grounds that Cassidy raises fail since none of them show that

the state court’s rulings were contrary to, or “an unreasonable application of, clearly established

Federal law” or involved an unreasonable determination of the facts as required for the Petition.3

2 Cassidy has also failed to show “actual innocence” to excuse his procedural default where such

a showing requires “factual innocence” which, on this record, has not been shown. See Gaskins

v. Duval, 640 F.3d 443, 454 (1st Cir. 2011).

3 As an initial matter, the Court rejects Cassidy’s suggestion that the Supreme Judicial Court did

not address his constitutional claims as a matter of federal law. D. 20 at 32. The Supreme Judicial

Court expressly noted same in summarizing that Cassidy alleged that the “trial judge committed

numerous evidentiary errors that undermined the defendant’s right to present his defenses and

deprived him of due process and fundamental fairness under the United States Constitution and

the Massachusetts Declaration of Rights.” Cassidy, 470 Mass. at 202. Even “where there is no

explicit discussion of the articulated federal constitutional issue amidst the discussion of issues in

the state court opinion, the federal court must presume the federal claim was adjudicated on the

merits.” Jenkins v. Bergeron, 824 F.3d 148, 152 (1st Cir. 2016). That is, where “the state court’s

holding squarely addressed the merits” of corresponding state and federal claims, “it would elevate

Moreover, to the extent that Cassidy, in essence, is challenging the state court’s factual findings,

this Court “must presume that the state court’s factual findings are correct unless the petitioner

rebuts this ‘presumption of correctness’ with ‘clear convincing evidence’ to the contrary.”

Whitney v. Spencer, 475 Fed. App’x 771, 772 (1st Cir. 2012) (quoting 28 U.S.C. 2254(e)(1)).

Cassidy has failed to rebut that presumption and this Court presumes the correctness of the factual

findings supporting the state court determinations here.

1. The State Court Reasonably Rejected Cassidy’s Challenge to the Limitation on

his Testimony About His State of Mind

The state court’s exclusion of certain evidence proffered by Cassidy for his state of mind

as to the scheme to plant his firearm on Hayes was not contrary to clearly established law. At trial,

Cassidy attempted to rebut the inculpatory nature of the scheme by contending that he engaged in

same to “put [the firearm] back to where it belonged.” Cassidy, 470 Mass. 219-20. He was

permitted to testify to this effect. Id. The trial court, however, excluded certain other evidence

that he proffered—including a letter he had written to his stepfather and his testimony about his

belief about who possessed about the firearm and how he had learned of the emergence of the

gun—on evidentiary grounds. Although Cassidy cites to certain federal case law, he neither

explains how the state court’s rulings were contrary to the relevant federal law nor shows how the

exclusion of such evidence amounts to a denial of his constitutional right to present a defense.

This is particularly true where the defense theory as to Hayes, not Cassidy, being the shooter and

the scheme being the means by which Cassidy hope to inculpate the true shooter, were before the

jury. Accordingly, this ground of the Petition fails.

form over substance to impose some sort of requirement that busy state judges provide case

citations to federal law . . . before federal courts will give deference to state court reasoning.”

Hodge v. Mendonsa, 739 F.3d 34, 41 (1st Cir. 2013) (internal citation and quotation marks

omitted). Such as is the case here.

2. The State Court Reasonably Rejected Cassidy’s Claim Regarding Certain Third-

Party Culprit Evidence

Similarly, Cassidy’s claim regarding the exclusion of certain third-party culprit evidence

does not merit habeas relief. Under state law, a trial court may allow a defendant to mount a third-

party culprit defense at trial, but only upon certain showing. First, “because the evidence is offered

for the truth of the matter asserted—that a third party is the true culprit—[the court] have permitted

hearsay evidence that does not fall within a hearsay exception only if, in the judge’s discretion,

‘the evidence is otherwise relevant, will not tend to prejudice or confuse the jury,’ and there are

other ‘substantial connecting links to the crime.’” Commonwealth v. Smith, 461 Mass. 438, 445

(2012) (internal citation omitted). Second, such evidence, “even if it is not hearsay, ‘must have a

rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or

speculative.’” Id. (internal citation omitted). Here, upon consideration of a motion in limine in

regard to such proffered evidence, the trial court ruled that no third-party culprit evidence would

be admitted in the absence of a showing of such substantial link of Hayes to the crime (which did

not occur until Cassidy testified in the defense case that Hayes was the shooter). S.A. 247. Even

with Cassidy’s testimony, the exclusion of certain “layered” hearsay testimony (in which Cassidy

proffered to testify about what an unknown person had said Hayes and another said) and certain

speculative evidence (in which Cassidy, who was already in pre-trial custody at that time, proffered

to opine about the whereabouts of the firearm after the murder), were properly excluded under this

legal standard. Even as the Supreme Judicial Court ruled that Cassidy should have been allowed

to testify about his telephone call with Hayes on the morning Cassidy fled, the error was harmless

where Cassidy had been permitted to put sufficient evidence before the jury about Hayes allegedly

being the shooter and Cassidy fleeing in fear of retaliation from Hayes against him and his family.

Cassidy, 470 Mass. at 215-16. None of these rulings, singularly or cumulatively, amount to a

ruling contrary to clearly established federal law and Cassidy does not explain how it does. Neither

Cassidy’s reliance on Supreme Court precedent regarding the constitutional right of a defendant

to mount a defense, Crane v. Kentucky, 476 U.S. 683, 691 (1986) (ruling that state court erred in

excluding evidence of the environment in which the police secured the defendant’s confession

where such evidence was “indispensable to any chance of [defense] succeeding” and where the

state court record had not advanced “any rational justification for the wholesale exclusion of this

body of potentially exculpatory evidence”) nor Chambers v. Mississippi, 410 U.S. 284, 294, 303

(1973) (holding that “under the facts and circumstances of this case the ruling of the trial court

deprived [the defendant] of a fair trial” where a third party confessed to the murder with which

petitioner had been charged to several others, under circumstances indicating the trustworthiness

of the statements and where state rule did not permit defendant to call and cross examine such third

party) support his claim of a constitutional violation in this case. Here, the state court’s application

to its own precedent in excluding certain third-party culprit evidence did not amount to a due

process violation, particularly where the theory of Hayes-as-the-shooter was squarely presented to

their jury and Hayes was permitted offer other evidence, including his own testimony, regarding

this defense. For all of these reasons, this ground of the Petition does not merit habeas relief.

3. The State Court’s Evidentiary Rulings Regarding His Bowden Defense Were Not

Unreasonable

The evidentiary rulings that the state court made regarding Cassidy’s evidence in support

of a Bowden defense did not amount to grounds for habeas relief. Under state law, a defendant is

permitted to put on a Bowden defense; that is, to present evidence that “certain police procedures

were not followed [that] could raise a reasonable doubt as to the defendant’s guilt” and a court

may not remove this issue from the jury’s consideration. Commonwealth v. Bowden, 379 Mass.

472, 486 (1980). Cassidy’s Bowden defense centered around the victim’s alleged drug activity as

motivation of why he may have been murdered and, accordingly, he contends that the exclusion

of certain evidence bearing upon this issue violated his federal constitutional right to mount a

defense. Without recounting all of the challenged evidentiary rulings, D. 21 at 30-36, the Court

concludes that none of these alleged errors, either singularly or cumulatively, amount to a

constitutional violation. The right to present a defense is not unlimited. Evans v. Verdini, 466

F.3d 141, 148 (1st Cir. 2006). This is particularly true where the rulings were based upon the

application of evidentiary rules, see Cassidy, 470 Mass. at 210-11, and they were neither arbitrary

nor disproportionate to the purposes they were designed to serve. Id. For all of these reasons,

this ground for the Petition also fails.

4. The State Court’s Rulings Excluding Cassidy’s Testimony About His Financial

Relationship with the Victim Did Not Amount to a Denial of Due Process

The state court’s exclusion of certain of Cassidy’s testimony regarding his financial

relationship with the victim also did not amount to a federal due process violation. As is clear

from the state court’s fact finding, this line of inquiry was allowed before the jury, but the trial

excluded certain testimony as non-responsive to the questions asked by the Commonwealth on

cross examination or inadmissible hearsay. Cassidy, 470 Mass. at 221-22. Neither ruling, either

in isolation or together, amounts to a constitutional violation where such cannot be reasonably said

to have infringed Cassidy’s ability to mount a defense. See Evans, 466 F.3d at 147 (noting that

“[a]s long as they are not ‘arbitrary or disproportionate to the purposes they are designed to serve,’

limitations on the admissibility of evidence do not violate a defendant’s right to present a defense”)

(internal citations omitted). As to these alleged errors, and those alleged above as to third-party

culprit evidence and the Bowden defense, even if any of these rulings were error, such errors were

harmless in light of the evidence allowed by the trial court as to his defenses and the government’s

evidence of his guilty such that this Court cannot conclude that they had a “substantial and

injurious effect or influence in determining the jury’s verdict.” Delaney v. Bartee, 522 F.3d 100,

105 (1st Cir. 2008) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)). Accordingly, this

ground also does not support the habeas relief that Cassidy seeks here.

5. The State Court Reasonably Rejected Cassidy’s Claim that the Trial Court’s

Answer to a Jury Question Shifted the Burden of Proof to Him

Lastly, the state court’s ruling regarding the response to the jury’s question does not

warrant habeas relief. The deliberating jury asked whether the defense could have called Hayes

as a witness. Cassidy, 470 Mass. at 223. After consulting with counsel (and over Cassidy’s

objection), the trial court responded that “if available, a witness can be called by either party.

However, a defendant is not required to produce evidence, as the burden of proof is on the

Commonwealth, the prosecution.” Id. Although the Supreme Judicial Court concluded that the

better practice would have been to add an instruction that the jury was not to draw inferences from

the defendant’s failure to call a witness, the jury’s instructions would not lead a reasonable juror

to draw such inference, particularly where the jury was not informed about whether Hayes was

available. Moreover, in light of this and the entirety of the charge, the Supreme Judicial Court

found no prejudicial error. Id. at 223-25. On this record, this Court does not conclude that this

ruling was contrary to or an unreasonable application of federal law. Given the substance of the

response and the entirety of the charge to jury, particularly as to the burden of proof, the Court

does not conclude that this response shifted the burden of proof or otherwise constituted a due

process violation. See Farley v. Bissonnette, 544 F.3d 344, 347 (1st Cir. 2008). Given this context,

this alleged error also was not “made more potent,” as Cassidy contends, D. 20 at 54, when coupled

with the Commonwealth’s closing argument, which, for the reasons, discussed above, was not

improper. Accordingly, this ground does not support the Petition.

V. Conclusion and Certificate of Appealability

For the foregoing reasons, the Court DENIES the Petition for a writ of habeas corpus, D. 1.

Cassidy may receive a certificate of appealability only if he “has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A certificate of

appealability is appropriate when “reasonable jurists would find the district court's assessment of

the constitutional claim debatable or wrong.” Miller–El v. Cockrell, 537 U.S. 322, 338 (2003)

(internal quotations omitted). Based upon the analysis of the record and the applicable law in this

Memorandum and Order, the Court does not, at this juncture, conclude that reasonable jurists

would find its conclusion, denying the Petition both on procedural and substantive grounds,

debatable or wrong. The Court, therefore, is not inclined to issue a certificate of appealability, but

will give Cassidy until February 26, 2019 to file a memorandum, if he seeks to address the issue

of whether a certificate of appealability is warranted as to the Petition.

So Ordered.

/s/ Denise J. Casper

United States District Judge