# Kuhn v. Gillmore

> District Court, M.D. Pennsylvania · December 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10409500

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409500

## How later opinions describe it (automated extraction)

- finding that court’s sentencing discretion was not cognizable in federal habeas petition

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL A. KUHN, :

Petitioner : CIVIL ACTION NO. 3:15-0015

v. : (JUDGE MANNION)

ROBERT GILLMORE, et al., :

Respondents :

MEMORANDUM

Petitioner, Michael A. Kuhn, an inmate confined in the Greene State
Correctional Institution, Waynesburg, Pennsylvania, filed the instant petition
for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He
challenges his conviction and sentence imposed in the Court of Common
Pleas of Centre County. Id. The petition is ripe for disposition. For the
reasons outlined below, the petition will be denied.
I. Factual and Procedural Background
The facts underlying Kuhn’s conviction are contained in the trial court’s
March 20, 2010 Opinion in response to matters complained of on appeal.
(Doc. 17-4 at 202). These facts are as follows:
In the early hours of July 4, 2007, Lisa Hundley returned home
to her second floor apartment located on 164 East McCormick
Avenue in downtown State College. Ms. Hundley had been out
with her friends that night and left the fire escape door open to
let in some fresh air. Her sleep was cut short by a man who stood
over her and growled, “Don’t fuckin’ move. I’m going to rob you.
I have a knife.” The man pushed Ms. Hundley’s face down on the
mattress and tied both her hands behind her head with tape and
electrical cord he severed from a nearby nightstand lamp. When
he was done securing Ms. Hundley’s arms he tied her ankles
together so that she could not move. Lying face down on the
mattress Ms. Hundley noticed for the first time that her pillow and
mattress had blood on them while the back of her head felt warm
and sticky. She could hear the man roaming her apartment while
speaking causally about what he was going to take. Ms. Hundley
pleaded with the man to take what he needed and to leave her
alone.

As she was pleading and crying the man came back into the
bedroom, pulled off the comforter covering Ms. Hundley and
asked, “Are you naked under there?” “Can I get a feel?” The man
inserted his fingers into her vagina. Ms. Hundley was able to
convince the man that she had to use the bathroom. The man
agreed to let her use the bathroom but refused to untie her. As
Lisa Hundley hobbled towards the bathroom she looked at the
man and saw his face. He appeared to be in his mid to late
twenties. He was white, dark brown hair, slight build and a
goatee. He was wearing wire-rim glasses, dark shirt, and a
baseball hat on backwards. Of particular importance were his
teeth. Ms. Hundley testified that his teeth were misshapen, and
yellow, crooked and it looked like some were missing. Ms.
Hundley’s description of the man’s teeth would later lead to Mr.
Kuhn’s arrest and the matching of his DNA which was collected
from Ms. Hundley after a rape kit was taken.

After Lisa Hundley finished in the bathroom Mr. Kuhn followed
her back to her bed and pushed her into the same position she
had been in and raped her. After raping Ms. Hundley, Mr. Kuhn
got up from the bed and started pacing the rooms of the
apartment saying, “What to steal? What to steal?” Ms. Hundley
testified that Mr. Kuhn repeated this behavior, raping her three
times by penetrating her vagina with his penis and also once
penetrating her anus with his penis. Before each rape Mr. Kuhn
would remove the cord around her legs and then retie the cord
when he was finished. He also checked to make sure her hands
were still tightly bound.

After the final rape Ms. Hundley was blindfolded with her own
shirt. Ms. Hundley was able to hear Mr. Kuhn rummaging through
a bag of metal tools he had brought with him. As Ms. Hundley
was face down on her mattress, with her hands bound and
unable to protect herself, Mr. Kuhn approached the bed and told
her, “Don’t fucking move, bitch.” Mr. Kuhn then struck Ms.
Hundley’s skull four or five times with what Ms. Hundley testified
felt like a steal two-by-four. When she regained consciousness,
she awoke in a puddle of her own blood which had saturated the
mattress to the point that it had started to pool. Ms. Hundley was
able to untie herself and get to her neighbor’s apartment and call
the police.

Id.
The following procedural background has been set forth in the
Pennsylvania Superior Court’s April 30, 2014, Memorandum Opinion,
affirming the denial of Petitioner’s Post Conviction Relief Act petition:
Following a jury trial on June 26, 2009, Kuhn was convicted of
criminal attempt – murder of the first degree, rape, involuntary
deviate sexual intercourse, burglary, aggravated assault,
terroristic threats, and false imprisonment. Kuhn was
subsequently sentenced on September 17, 2009, to an
aggregate term of 48 to 96 years’ imprisonment. Kuhn appealed
his judgment of sentence, which was affirmed by this Court on
December 20, 2010. Kuhn’s petition for allowance of appeal to
the Pennsylvania Supreme Court was denied on June 22, 2011.

On March 16, 2012, Kuhn filed a pro se PCRA petition. The
PCRA court appointed counsel and counsel then filed an
amended PCRA petition. Thereafter, PCRA counsel filed a
petition for leave to withdraw and a “no-merit” brief pursuant to
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988)(en banc).

After review of the “no-merit” brief, on June 6, 2013, the PCRA
court issued notice, pursuant to Pa.R.Crim.P. 907, of its intent to
dismiss Kuhn’s petition without a hearing. On that same date, the
PCRA court issued an order granting counsel’s petition to
withdraw.

Kuhn filed a response to the PCRA court’s Rule 907 notice. The
PCRA court subsequently dismissed Kuhn’s petition without a
hearing. This pro se appeal followed.

Kuhn raises the following issues for our review:

A. WHETHER THE LOWER COURT ERRED IN GRANTING
APPELLANT’S PRIOR PCRA COUNSEL LEAVE TO
WITHDRAW?
B. WHETHER THE LOWER COURT FAILED TO
APPROPRIATELY CONSIDER APPELLANT’S ISSUES
WHEN IT CONDUCTED ITS “INDEPENDENT REVIEW”
AND ALSO FOLLOWING APPELLANT’S PRO SE
RESPONSE TO THE COURTS NOTICE TO DISMISS?1
C. WHETHER THE LOWER COURT ERRED IN
DETERMINING THAT APPELLANT WAS NOT ENTITLED
TO RELIEF WITH REGARDS TO TRIAL COUNSEL’S
INEFFECTIVENESS?
D. WHETHER THE LOWER COURT ERRED IN
DETERMINING THAT APPELLANT’S SUPPRESSION

1 We can summarily dispose of this issue. In rendering its decision, the PCRA court,
conducted an independent review of Kuhn’s issues. It reviewed the entirety of the certified
record, including Kuhn’s PCRA petition, PCRA counsel’s no-merit brief, and Kuhn’s
responses filed thereto. See Order, 7/16/13. As such, this issue clearly lacks arguable
merit.
(footnote continued on next page)
ISSUES WERE NOT ENTITLED TO POST-CONVICTION
RELIEF?2

(Doc. 17-4 at 315-317, Pennsylvania Superior Court Memorandum Opinion).
On April 30, 2014, the Pennsylvania Superior Court affirmed the PCRA
court’s order dismissing Kuhn’s PCRA petition, finding that Kuhn’s issues
unmistakably lacked arguable merit. Id.
On January 6, 2015, Petitioner filed the instant petition for writ of

habeas corpus, in which he raises the following four issues for review:
1. Trial counsel was ineffective for failing to secure and/or utilize
a DNA expert during trial.

2. Trial counsel was ineffective for failing to order sentencing
transcripts from lower court on direct appeal, so appellate
court could not hear issue of excessive sentence on appeal.

3. Violation of Petitioner’s Fourth Amendment right against
illegal seizure when Petitioner’s illegal arrest in companion
case was used to hold him to investigate the instant case.

4. Trial counsel was ineffective for failing to object to Detective
Aston’s testimony during trial.

(Doc. 1, petition).

2 Kuhn’s suppression issue has been previously litigated and, as such, it is not eligible for
review under the PCRA. See 42 Pa.Cons.Stat.Ann. §9544(a)(2). On direct appeal, this
Court reviewed the propriety of the trial court’s denial of Kuhn’s suppression motion and
aptly determined that the police had sufficient probable cause to arrest Kuhn. See
Commonwealth v. Kuhn, 23 A.3d 587 (Pa. Super. 2010)(unpublished memorandum).
II. Legal Standards 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, 498-99 (1973). 28 U.S.C.
§2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States
....
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim—

(1) 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; or

(2) 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. Section 2254 sets limits on the power of a federal court to
grant an application for a writ of habeas corpus on behalf of a state prisoner.
Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d
402, 406 (3d Cir. 2014). A federal court may consider a habeas petition filed
by a state prisoner only “on the ground that he is in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a).
This limitation places a high threshold on the courts. Typically, habeas relief
will only be granted to state prisoners in those instances where the conduct

of state proceedings resulted in “a fundamental defect which inherently
results in a complete miscarriage of justice [or] an omission inconsistent with
the rudimentary demands of fair procedure.” Reed v. Farley, 512 U.S. 339,
348 (1994) (citations omitted).

Kuhn’s case is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996
(“AEDPA”).

III. Discussion
Under the AEDPA, federal courts reviewing a state prisoner’s
application for a writ of habeas corpus may not grant relief “with respect to

any claim that was adjudicated on the merits in State court proceedings”
unless the claim (1) “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” or (2) “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).
“[B]ecause the purpose of AEDPA is to ensure that federal habeas
relief functions as a guard against extreme malfunctions in the state criminal

justice systems, and not as a means of error correction,” Greene v. Fisher,
565 U.S. 34, 38 (2011) (internal quotations and citations omitted), “[t]his is a
difficult to meet and highly deferential standard . . . which demands that state-
court decisions be given the benefit of the doubt.” Cullen, 563 U.S. at 181

(internal quotation marks and citation omitted). The burden is on petitioner
to prove entitlement to the writ. Id.
Under 28 U.S.C. §2254(d)(1), a decision is “contrary to” federal law if

“the state court applies a rule that contradicts the governing law set forth in
[Supreme Court] cases” or “if the state court 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.”

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The test for §2254(d)(1)’s
“unreasonable application of” clause is as follows: “[a]n ‘unreasonable
application’ occurs when a state court ‘identifies the correct governing legal

principle from [the Supreme] Court’s 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)). “It 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 quotations 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.

The test for §2254(d)(2)’s “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. See Rice v. Collins, 546 U.S. 333, 338–

339 (2006) (“State-court factual findings, moreover, are presumed correct;
the petitioner has the burden of rebutting the presumption by ‘clear and
convincing evidence.’ ”) (quoting §2254(e)(1)) (citing Miller–El v. Dretke, 545

U.S. 231, 240, (2005)). Importantly, the evidence against which 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. Cullen, 563 U.S

at 185.
Finally, Section 2254(e) provides that “[i]n a proceeding instituted by
an application for a writ of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination of a factual issue shall be
presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§2254(e)(1).

Petitioner’s first three claims are based on trial counsel’s alleged
ineffectiveness and have been fully adjudicated on the merits during the state
court proceedings.

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 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.” See id.
at 688; see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000). Second,
under Strickland, 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.” See 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). As a result, if a petitioner fails on

either prong, he loses. See 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.”).
The two-pronged test established in Strickland “qualifies as ‘clearly
established Federal law’ ” for purposes of the AEDPA. See Rainey v. Varner,

603 F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362,
391 (2000)). 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. See Jacobs v.
Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005). Moreover, Pennsylvania’s three-

pronged test for ineffective assistance claims, see Commonwealth v Pierce,
515 Pa. 153, 527 A.2d 973, 975-77 (Pa. 1987), is not contrary to Strickland,
see Jacobs, 395 F.3d at 107 n.9.
A. “Trial counsel was ineffective for failing to secure and/or
utilize a DNA expert during trial.”

Petitioner claims that the trial court provided funds to hire a DNA
expert, and that “first counsel found an expert to help prepare the defense”3,
however, “when trial counsel took over, he was made aware of said expert”
and “trial counsel never spoke/used this expert.”4 (Doc. 1 at 5). Specifically,

3 In support of this, Petitioner relies on a May 19, 2014 letter from the Centre County
Chief Public Defender explaining that his case was being reassigned from Attorney
McGraw to Attorney Blanarik and that in going through Attorney McGraw’s notes and
calendar, he determined that on July 31, 2008, Attorney McGraw met with a Dr. Holland
from Penn State at his office to discuss the PSP Lab results of the DNA testing and
Attorney McGraw made the following note:
7-31-08 – met w/Dr. Mitchell Holland @ PSU – DNA is not exact
match, however, most likely due to abundance of caution @ PSP
lab – need raw data from lab.
(Doc. 21 at 56).
4 The Court notes that although Petitioner was initially represented by Attorney Sean P.
McGraw, once Mr. McGraw was no longer employed as a public defender, Petitioner’s
(footnote continued on next page)
he claims “[a] DNA expert would have helped Petitioner’s defense
preparation and testimony of things which were never brought up at trial such

as:
1) Why the Pennsylvania State Police DNA Report states
‘Genetic locus D13S317 was inconclusive due to an
insufficient amount of DNA’ or why ‘Genetic loci D13S317 and
Amelogenin were not used in the statistical calculations?5
2) Sperm degradation. At trial testimony was given that sperm
degrades after 26 hours (the head detached from the tail)(see
Trial Transcripts (T.T.), 6/25/09, pg. 335). So how could a

case was turned over to Attorney Edward S. Blanarik on September 10, 2008. (Doc. 21
at 56).
5 The portion of the DNA report that Petitioner challenges reads as follows:
The DNA profile obtained from the sperm fraction of the rectal swabs
(H07-07387-2, Item Q1M) is consistent with a mixture. Lisa Hundley
(H07-07387-2, Item K1) and Michael Kuhn (Item K3) cannot be
excluded as contributors to this DNA mixture profile in genetic loci
CSF1PO, D3S1358, D5S818, D7S820, D8S1179, D16S539, D18S51,
D21S11, FGA, Penta D, Penta E, TH01, TPOX, vWA, and Amelogenin.

Genetic locus D13S317 was inconclusive due to an insufficient amount
of DNA.

This combination of DNA types is 1 in 177 trillion more likely to have
originated from Lisa Hundley (H07-07387-2, Item K1) and Michael Kuhn
(Item K3) than from Lisa Hundley (H07-07387-2, Item K1) and another
individual in the unrelated Caucasian population; 1 in 3.8 quadrillion
times more likely than another individual in the unrelated African
American population; and 1 in 490 trillion times more likely than another
individual in the unrelated Hispanic population.

Genetic loci D13S317 and Amelogenin were not used in the statistical
calculations.

(Doc. 21 at 59).
sample taken within a few hours of the incident only have a
few sperm with tails?
3) Or how the characteristics in a body fluid mixture used by the
Commonwealth’s expert at trial to narrow the donor
population could have come from the victim which, was part
of the mixture, and thus be incorrectly used to suggest that
Petitioner was part of a donor population such as had
happened in Miller v. Anderson, 162 F. Supp.2d 1057 (D.C.
7th Cir. 2000), vac’d on other grounds, 255 F.3d 455 (7th Cir.
2001).”

(Doc. 21 at 13). Thus, Petitioner concludes that his due process was violated
when he was denied his right to an expert at his trial. Id.
In his No Merit Brief, addressed to the PCRA court, Petitioner’s PCRA
counsel claims that although funds were secured from the Court to enlist the
services of a DNA expert for the defense, trial counsel did not call such an
expert. (Doc. 17-4 at 222). He states that due to trial counsel’s unexpected
death, PCRA counsel was unable to consult with him. (Doc. 17-4 at 226).
However, PCRA counsel did have conversations with attendees of a DNA
evidence seminar, in an attempt to secure an expert, and was unable to find
an expert that would be willing to rebut the claims of those called by the
Commonwealth at trial, as the overwhelming response was that it would have
been a fruitless endeavor and thus, the decision not to call an expert was a
trial strategy on the part of trial counsel. Id.
By Order dated July 16, 2013, the PCRA court , after a thorough review
of the record and finding no genuine issues of fact, found that Petitioner was
not entitled to post-conviction relief and dismissed the PCRA petition. (Doc.
17-4 at 266).

The Pennsylvania Superior Court affirmed the PCRA Court’s rejection
of Petitioner’s claim, finding the following:
To obtain relief under the PCRA premised on a claim that
counsel was ineffective, a petitioner must establish by a
preponderance of the evidence that counsel’s
ineffectiveness so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. See Johnson, 600 Pa. at 346, 966
A.2d at 533. “Generally, counsel’s performance is
presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by
the petitioner.” Id. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable
merit; (2) counsel had no reasonable strategic basis for his
or her action or inaction; and (3) petitioner was prejudiced
by counsel’s act or omission. See id. A finding of
“prejudice” requires the petitioner to show “that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Id. Counsel cannot be deemed
ineffective for failing to pursue a meritless claim. See
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.
2003) (en banc). Likewise, a failure to satisfy any prong of
the test for ineffectiveness will require rejection of the
claim. Commonwealth of Washington, 592 Pa. 698, 712
927 A.2d 586, 594 (2007).

Moreover, in determining whether counsel’s actions was
reasonable, the court does not consider whether there
were other more logical actions counsel could have
pursued, but simply examines whether counsel’s decision
had any reasonable basis. See id. As our Supreme Court
emphasized, “[a] fair assessment of attorney performance
requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective” under the
law in existence at the time of counsel’s act or omission.
See Commonwealth v. Daniels, 600 Pa. 1, 34, 963 A.2d
409, 429 (2009). “[A] defendant is not entitled to relief
simply because the strategy is unsuccessful.”
Commonwealth v. Tippens, 598 A.2d 553, 556 (Pa.
Super. 1991) (en banc). “[I]neffectiveness occurs only
where the alternative not selected ‘offered a potential for
success substantially greater than the tactics used’.”
Commonwealth v. Clemmons, 505 Pa. 356, 361 479
A.2d 955, 957 (1984).

Here, PCRA counsel aptly sought leave from the PCRA
court to withdraw from representation of Kuhn as he
deemed Kuhn’s issues related to the ineffectiveness of trial
counsel lacked arguable merit. PCRA counsel
methodically reviewed the record and filed a proper
Turner/Finley brief after which the PCRA court
independently reviewed the issues Kuhn wished to raise
and suitably determined them to be without any merit. As
such, we can find no error in the PCRA court’s grant of
counsel’s petition to withdraw as we are in agreement that
Kuhn’s claims lack arguable merit.

Kuhn’s ineffectiveness claims are predicated upon
counsel’s trial strategy with respect to the calling of
witnesses, evidentiary challenges and trial stipulations.

Kuhn first argues that trial counsel was ineffective in failing
to call a DNA expert to rebut the Commonwealth’s DNA
evidence. To prevail on a claim of trial counsel’s
ineffectiveness for failure to call a witness, the defendant
must show: (1) that the witness existed; (2) that the witness
was available; (3) that counsel was informed of the
existence of the witness or should have known of the
witness’s existence; (4) that the witness was prepared to
cooperate and would have testified on appellant’s behalf;
and (5) that the absence of the testimony prejudiced
appellant. See Commonwealth v. Pursell, 555 Pa. 233,
258, 724 A.2d 293, 306 (1999). Kuhn must demonstrate
than an expert witness was available who would have
offered testimony designed to advance his cause. See
Commonwealth v. Wayne, 553 Pa. 614, 720 A.2d 456,
470-471 (Pa. 1998). “The mere failure to obtain an expert
rebuttal witness is not ineffectiveness.” Id. Additionally, trial
counsel will not be deemed ineffective for failing to call a
scientific expert merely to critically evaluate expert
testimony presented by the Commonwealth. See
Commonwealth v. Chmiel, 612 Pa. 333, 388, 30 A.3d
1111, 1143 (Pa. 2011).

Here, while the trial court allocated funds to defense
counsel to pay an expert to assist with Kuhn’s defense,
counsel was unable to find an expert willing to rebut the
Commonwealth’s claims as to the DNA evidence. Thus, it
is evidence that an expert witness was unavailable to
testify on Kuhn’s behalf. As such, trial counsel cannot be
deemed ineffective.

(Doc. 17-4 at 317-320, Superior Court Memorandum Opinion).
The Superior Court’s adjudication of this claim was neither an
unreasonable application of, nor contrary to, Strickland. The Superior Court
reasonably concluded that Petitioner’s claim failed because no expert would
be willing to rebut the Commonwealth’s claims as to the DNA evidence.
Defense attorneys do not always have to employ expert testimony; rather, “it
depends on the specific circumstances of the case.” Showers v. Beard, 635
F.3d 625, 633 (3d Cir. 2011). Prejudice resulting from counsel’s
ineffectiveness “cannot be based on mere speculation about the possibility
of finding an expert witness, nor can it be based on mere speculation about
the possible testimony.” Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir.
2001).

Moreover, Petitioner has failed to identify an expert witness or the
purported witness’ availability, which is fatal to his claim under governing
Pennsylvania law. Cf. Day v. Mahally, 230 F. Supp. 3d 420, 426 (E.D. Pa.

2017) (upholding state court’s rejection of ineffectiveness claim when, inter
alia, petitioner failed to identify an expert); Oliver v. Santiago, No. 14-1334,
2017 WL 2735409, at *13-*14 (D.N.J. June 23, 2017) (state court reasonably
rejected petitioner’s ineffectiveness claim when, inter alia, petitioner

“produced no report, certification, or affidavit from a potential expert who
would have testified [to what petitioner alleged]. It is sheer conjecture that
such an expert witness exists.”); Johnson v. United States, 759 F. Supp. 2d

534, 544 (D. Del. 2011).
B. “Trial counsel ineffective for failing to order sentencing
transcripts from lower court on direct appeal, so
appellate court could not hear issue of excessive
sentence on appeal.”

Petitioner states that “following trial sentencing, trial counsel failed to
order sentencing transcripts from the lower court on direct appeal so even
though trial counsel raised the excessiveness of Mr. Kuhn’s 48 to 96 year
sentence on direct appeal, by rule, the Appellate courts could not even hear
the issue due to trial counsel’s failure to order the needed transcripts for the
court to hear the appeal.” (Doc. 1 at 6).

The Superior Court found Petitioner’s claim waived, based on the
following:
Appellant’s final issue challenges his sentence as
manifestly excessive. Upon review, however, we conclude
that this issue is not reviewable. Appellate review is limited
to those facts which are contained in the certified record;
what is not contained in the certified record “does not exist
for purposes of our review.” Commonwealth v. O’Black,
897 A.2d 1234, 1240 (Pa. Super. 2006). As this Court
thoroughly summarized in Commonwealth v. Preston,
904 A.2d 1 (Pa. Super. 2006) (en banc), appeal denied,
591 Pa. 663, 916 A.2d 632 (2007):

The fundamental tool for appellate review is the
official record of the events that occurred in the trial
court.

***

This Court cannot meaningfully review claims
raised on appeal unless we are provided with a full
and complete certified record. This requirement is
not a mere ‘technicality’ nor is this a question of
whether we are empowered to complain sua
sponte of lacunae in the record. In the absence of
an adequate certified record, there is no support
for an appellant’s arguments and, thus, there is no
basis on which relief can be granted.

***

[T]he ultimate responsibility of ensuing that the
transmitted record is complete rests squarely upon
the appellant and not upon the appellate courts.
Pa.R.A.P.1931.

***

With regard to missing transcripts, the Rules of
Appellate Procedure require an appellant to order
and pay for any transcript necessary to permit
resolution of the issues raised on appeal.
Pa.R.A.P.1911(a). . . . When the appellant or
cross-appellant fails to conform to the
requirements of Rule 1911, any claims that cannot
be resolved in the absence of the necessary
transcript or transcripts must be deemed waived
for purpose of appellate review. It is not proper for
either the Pennsylvania Supreme Court or the
Superior Court to order transcripts nor is it the
responsibility of the appellate courts to obtain the
necessary transcripts.

Preston, 904 A.2d at 6-7 (some internal citations omitted).
An appellant’s failure to provide the reviewing court with a
complete record results in waiver of the claim. See
Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216
(2009) (“We decline to review this issue with an incomplete
record and consider the issue to be waived.”).

Here the Commonwealth and trial court point out, and a
review of the certified record confirms, that Appellant did
not request a transcript of the sentencing hearing. See
Certified Record No. 2 (“SPECIFIC HEARING DATE(S)
REQUESTED: June 25 & 26, 2009”). We acknowledge the
trial court’s efforts in reviewing “the audio tapes of the
sentencing hearing and transcrib[ing] the pertinent portions
of the sentencing hearing” in order to “fully address
[Appellant’s sentencing issues] and assist the Honorable
Superior Court.” Trial Court Opinion, 3/25/10, at 6. In doing
so, the trial court provided the reasons that it stated on the
record for its sentence on each count. Id. at 6-8 (quoting
transcribed statement of reasons for each sentence
imposed). Nevertheless, as the Commonwealth posits,
omission of the sentencing transcript deprives us of “a
complete account of everything that happened during
sentencing.” Commonwealth’s Brief at 37. Under such
circumstances, we are unable to conduct a thorough
review of Appellant’s sentencing claims. Therefore, they
are waived.

(Doc. 17-4 at 58-60, Superior Court Memorandum Opinion).
A federal court on a habeas petition will not address a claim under
federal law if, when the claim was presented to the state court, the court
rejected the claim on a ground that was both “independent” of the federal
issues and was “adequate” to support the state court's disposition. A state
court’s refusal to address a prisoner’s federal claims because he has not met
a state procedural requirement is both independent and adequate. See
Coleman v. Thompson, 501 U.S. 722, 729–30 (1991); Lambrix v. Singletary,
520 U.S. 518, 523 (1997) (“We have nonetheless held that the doctrine
applies to bar consideration on federal habeas of federal claims that have
been defaulted under state law.”). Thus, even though a prisoner may have
exhausted his federal claims in the state court without obtaining a decision

on the merits, he may be unable to obtain a decision on the merits in the
federal courts.
In this case, Kuhn failed to comply with Pa.R.A.P.1911(a), requiring an

appellant to order and pay for any transcript necessary to permit resolution
of the issues raised on appeal. As a result, the Superior Court found that
Petitioner’s failure to assume the responsibility of transmitting a complete

record to the appellate court, in accordance with Pa.R.A.P.1931, deemed his
issue of excessive sentence waived. The Superior Court’s sole reliance on
these two rules to dismiss Kuhn’s claim is adequate and independent of any

federal claim and bars this Court’s review of Kuhn’s excessive sentence
claim. See Tuten v. Tennis, Civ. No. 06-1872, 2007 WL 2221419, at *3 (E.D.
Pa. July 31, 2007) (Report & Recommendation, Restrepo, M.J.) (approved
and adopted Shapiro, J., Aug. 14, 2008) (failure to provide necessary

transcripts results in waiver in state court and default in federal court); Bowen
v. Blaine, 243 F. Supp.2d 296, 318 (E.D. Pa. Robreno, J. adopting Report &
Recommendation of Scuderi, M.J.) (rule requiring appellant to provide court

with transcripts consistently followed). Because Kuhn has failed to establish
cause and prejudice, his excessive sentence claim is procedurally defaulted.
The federal court may excuse a procedural default if the petitioner
establishes either cause for the default and prejudice resulting therefrom or

that a failure to consider the claim will result in a fundamental miscarriage of
justice. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). Here, Kuhn offers
no basis to excuse his defaults. Similarly, he does not claim nor does he offer
any evidence to suggest his actual innocence, nor is there any basis which
can be gleaned from the record.

Regardless of Petitioner’s default, Petitioner’s excessive sentence
claim is not cognizable on federal habeas review.
A writ of habeas corpus is available under 28 U.S.C. §2254(a) only on

the basis of some transgression of federal law binding on the state courts.
Engle v. Isaac, 456 U.S. 107, 119 (1982). Violations of state law, standing
alone, will not entitle a petitioner to federal habeas relief, absent a showing
that those violations are so great as to be of a constitutional dimension.

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (federal habeas courts are
not permitted to review questions of state law); Wainwright v. Sykes, 433
U.S. 72, 81 (1977) (questions of state substantive law not cognizable on

federal habeas review); Priester v. Vaughn, 382 F.3d 394, 401–02 (3d Cir.
2004) (same).
Kuhn’s claim that his sentence of 46 to 96 years of imprisonment was
unreasonable, given Pennsylvania’s applicable guideline range, does not

implicate the laws or the Constitution of the United States. In fact, habeas
challenges to a state court’s sentencing discretion are unreviewable by a
federal court provided that the sentence lies within the statutory guidelines,

is not based upon arbitrary considerations, and the defendant’s constitutional
rights were not violated. See Estelle, 502 U.S. at 67–68 (explaining that
federal habeas courts are not permitted to review questions of state law);

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (same); Wainwright v. Sykes, 433
U.S. 72, 81 (1977) (indicating that questions of state substantive law are not
cognizable on federal habeas review); Townsend v. Burke, 334 U.S. 736,

741 (1948) (stating that when a state “sentence [is] within the limits set by
the statute, its severity would not be grounds for [habeas] relief”); see also
Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 42–43 (3d
Cir. 1984) (finding that court’s sentencing discretion was not cognizable in

federal habeas petition); Smith v. Kerestes, Civ. A. No. 08–0061, 2009 WL
1676136, at *16 (E.D. Pa. June 15, 2009) (rejecting petitioner’s claim that his
state sentence was excessive because “absent a Constitutional violation, a

federal court has no power to review a sentence in a habeas corpus
proceeding unless it exceeds statutory limits”).
Kuhn’s sentence falls squarely within the applicable state sentencing
guidelines and was based upon facts specific to the offenses for which he

was convicted. Accordingly, his sentence was applied within the broad limits
established by the Constitution, and his claim concerning either the length,
or discretionary imposition, of his sentence fails to raise a cognizable claim

for federal habeas relief.
C. “Violation of Petitioner’s Fourth Amendment right
against illegal seizure when Petitioner’s illegal arrest in
companion case was used to hold him to investigate the
instant case.”

Petitioner claims that his “illegal arrest in a companion case is ‘fruit of
the poisonous tree” in the instant case” and a violation of his Due Process
and Fourth Amendment, “as this illegal arrest in the companion case was
found to violate PA law (due process) and a question remains for a 4th Amend
violation.” (Doc. 1 at 8).
The Pennsylvania Superior Court rejected this claim as follows:
Appellant first contends that the trial court erred in denying his
motion to suppress on the basis that his arrest had been
unlawful. Appellant’s Brief at 12. We note that Appellant is
resurrecting an issue recently disposed of by a panel of this Court
in the companion case of Commonwealth v. Kuhn, 820 MDA
2009, unpublished memorandum (Pa. Super. filed August 18,
2010):

Our standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether the
legal conclusions drawn from those facts are correct.
Because the Commonwealth prevailed before the
suppression court, we may consider only the
evidence of the Commonwealth and so much of the
evidence for the defense as remains uncontradicted
when read in the context of the record as a whole.
Where the suppression court’s factual findings are
supported by the record, we are bound by these
findings and may reverse only if the court’s legal
conclusions are erroneous. Commonwealth v.
Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003),
Where, as here, the appeal of the determination of
the suppression court turns on allegations of legal
error, the suppression court’s legal conclusions are
not binding on an appellate court, “whose duty it is to
determine if the suppression court properly applied
the law to the facts.” Commonwealth v. Mistler, 590
Pa. 390, 912 A.2d 1265, 1269 (2006) (quoting
Commonwealth v. Nester, 551 Pa. 157, 709 A.2d
879, 881 (1998)). Thus, the conclusions of law of the
court’s below are subject to our plenary review.
Mistler, supra; Commonwealth v. Morley, 545 Pa.
420, 681 A.2d 1254, 1256 n.2 (1996).

Commonwealth v. Jones, ___Pa.____, ____, 988
A.2d 649, 654 (2010), petition for certiorari filed, 78
USLW 3702 (May 17, 2010).

Appellant contends that the various items seized
from his person,6 his subsequent statements to
police, and the DNA swab performed on him, all
should have been suppressed as the fruit of the
poisonous tree,7 as they were all derived from an
unlawful arrest made without probable cause. We
disagree.

“Probable cause to arrest exists when the facts and
circumstances within the police officer’s knowledge
and of which the officer had reasonably trustworthy
information are sufficient in themselves to warrant a
person of reasonable caution in the belief that an
offense has been committed by the person to be
arrested.” Commonwealth v. Dommel, 885 A.2d
998, 1002 (Pa. Super. 2005), appeal denied, 591
Pa. 722, 920 A.2d 831 (2007) (quoting In re C.C.J.,

6 These items included a digital camera, an IPOD, a pair of glasses, a pack of
cigarettes, and a lighter. Appellant also complains that the search of his person also
revealed that the lining of his front pants pockets had been removed, which fact was
used against him at trial.
7 See Wong Sun v. U.S., 371 U.S. 471, 487-488 (1963).
799 A.2d 116, 121 (Pa. Super. 2002)). “Probable
cause justifying a warrantless arrest is determined by
the ‘totality of the circumstances’.” Id. (quoting
Commonwealth v. Myers, 728 A.2d 960, 962 (Pa.
Super. 1999)). Furthermore, “probable cause does
not involve certainties, but rather ‘the factual and
practical considerations of everyday life on which
reasonable and prudent [persons] act.’” Id. (quoting
Commonwealth v. Wright, 867 A.2d 1265, 1268
(Pa. Super. 2005), appeal denied, 583 Pa. 695, 879
A.2d 783 (2005), cert. denied, 546 U.S. 1104, 126
S.Ct. 1047, 163 L.Ed.2d 879 (2006)).

Commonwealth v. Williams, 941 A.2d 14, 27 (Pa.
Super. 2008).

The police had sufficient probable cause to arrest
appellant. The police had a report from a named
individual who indicated that a man was observed
peeking into her bedroom window in the early
morning hours. Where the informant is a named
person, as opposed to either a confidential informant
or a tip from an anonymous source, the information
is assumed to be trustworthy because the informant
risks prosecution for making false reports.
Commonwealth v. Barber, 889 A.2d 587, 593-594
(Pa. Super. 2005). The informant gave police a
detailed description of the suspect, which included
the fact that he was wearing a backward-fitting
Virginia Teck baseball cap and a long-sleeved shirt,
and was fleeing, headed in the direction of Pugh
Street. Less than a minute after the report, appellant
was seen by police emerging onto Pugh Street, from
bushes along the perimeter of the property that abuts
the victim’s residence.8 Appellant matched the
description of the suspect completely, including the
backward-fitting Virginia Teck baseball cap and the
long-sleeved shirt. Appellant was then taken into

8 Notes of testimony, 3/30/09 at 94 (Pugh Street property abuts victim’s residence).
custody. Under the totality of these circumstances,
we find that the police had adequate probable cause
to arrest appellant for loitering and prowling at night
time.

Finally, as a sub-issue, appellant also contends that
a warrantless arrest for a misdemeanor is only proper
where the offense is committed in the presence of the
police officer. Simply stated, in Commonwealth v.
Elliott, 599 A.2d 1335 (Pa. Super. 1991), this court
held that pursuant to 42 Pa.C.S.A. §8952,9 a police
officer can make a warrantless arrest for any offense,
including misdemeanors and summaries, even if not
committed in the officer’s presence, so long as the
officer has probable cause to believe that the offense
was committed in his or her jurisdiction. Thus, there
is no merit to appellant’s claim.

Kuhn, 820 MDA 2009, unpublished memorandum,
slip. op. at 5-8.

Upon review, we conclude that Appellant is estopped from
reasserting his suppression claim. See Commonwealth v.
Gant, 945 A.2d 228, 229 (Pa. Super. 2008) (instructing that
collateral estoppel applies when “(1) the issue decided in the
prior adjudication must be identical to the issue presented later;
(2) the party against whom estoppel is asserted must be a party,
or in privity with a party, to the prior adjudication; and (3) the party
against whom estoppel is asserted must have had a fair and full
opportunity to litigate the issue in the prior action.”). Here,
Appellant raises the same sufficiency challenge that was decided

9 §8952. Primary municipal police jurisdiction
Any duly employed municipal police officer shall have the power and authority to enforce
the laws of this Commonwealth or otherwise perform the functions of that office shall have
the power and authority to enforce the laws of this Commonwealth or otherwise perform
the functions of that office anywhere within this primary jurisdiction as to:
(1) Any offense which the officer views or otherwise has probable cause to
believe was committed within his jurisdiction.
42 Pa.C.S.A. §8952 (in pertinent part).
in the companion case and affirmed by this Court. Trial Court
Order, 5/14/09; Kuhn, 820 MDA 2009, unpublished
memorandum, slip op. at 5-8. Appellant had a fair and full
opportunity to litigate the issue in the prior suppression hearing
and does not present any new evidence or argument here.
Therefore, we decline further review.

(Doc. 17-4 at 48-53, Superior Court Memorandum Opinion).
The Supreme Court has held that a federal habeas court cannot review
a Fourth Amendment claim unless the petitioner was denied a full and fair
opportunity to litigate it in the state courts. See Stone v. Powell, 428 U.S.
465, 494 (1976). Generally, a petitioner has received a full and fair
opportunity to litigate a Fourth Amendment claim if the state has made
available a mechanism for requesting the suppression of evidence,
irrespective of whether the petitioner actually availed himself of that
mechanism. See Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir. 1980). A
petitioner has also had a full and fair opportunity to litigate his claim

regardless of whether the state courts properly resolved the claim. See
Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002). On the other hand, a
petitioner has not received a full and fair opportunity if the state’s system
contains a structural defect that prevented the state from fully and fairly

hearing the Fourth Amendment claim. See id.
Rules 578 and 581 of the Pennsylvania Rules of Criminal Procedure
permit a defendant to file a pre-trial motion to suppress evidence, thereby
providing a mechanism for presenting Fourth Amendment issues in the
Pennsylvania state courts. See Pa. R. Crim. P. 578, 581. Petitioner availed

himself of that mechanism. Moreover, as noted above, Petitioner raised his
claim in his direct appeal. The Superior Court, finding that Petitioner had a
full and fair opportunity to litigate his claim in the suppression hearing

conducted in his companion case, as well as on direct appeal, determined
that Petitioner was estopped from raising the claim again. Consequently, the
Superior Court declined further review.
Nothing in the record before this Court suggests that Petitioner did not

receive a full and fair litigation of his Fourth Amendment claim. See, e.g.,
Marshall, 307 F.3d at 82 (noting that whether a state court incorrectly
decided a petitioner’s Fourth Amendment claim is immaterial to the full and

fair opportunity analysis). Thus, the Court will deny Petitioner’s third ground
for relief as barred by Stone. See, e.g., Goins v. Warren, No. 13-4057 (DRD),
2015 WL 1292528, at *3-4 (D.N.J. Mar. 20, 2015) (concluding that habeas
petitioner’s challenge to the arrest warrant, based on a belief that police

officer forged the judge’s signature, was barred by Stone).
D. “Trial counsel was ineffective for failing to object to Detective
Aston’s testimony during trial.”

Petitioner claims that Detective Aston’s testimony at trial commented
on Petitioner’s criminal history, by using the word “pattern” and “no objection
was made” by Petitioner’s counsel. (Doc. 1 at 10).
Petitioner’s final issue of ineffective assistant of counsel, which was
raised in his PCRA petition, was argued by PCRA counsel as meritless, in
his “No Merit” brief as follows:

Petitioner claims his trial was prejudiced when Detective
Aston mentioned a link between the crime scene and the
Defendant was the “pattern” that he used although
Petitioner’s criminal history was not to be introduced to the
jury. (N.T. 274).

Specifically, Detective Aston was asked on cross-
examination by Petitioner’s attorney is there was anything
to link the Petitioner to the crime scene. In response,
Detective Aston stated the “manner of operation of how
that person performed in that apartment.” (N.T. 274). On
redirect, the Commonwealth asked Detective Aston to
elaborate on that comment which prompted him to say
“things that were done in that apartment by the suspect that
would link that suspect to a pattern that he used.” (N.T.
274).

Reference to the “pattern” is not admitting to the jury proof
of Petitioner’s criminal history. Furthermore, it was
Petitioner’s counsel who opened the door by asking if there
was anything that linked the crime scene to the Petitioner.

Lastly, if Petitioner’s trial counsel was ineffective for
opening the door, it is considered harmless error that did
not so undermine the truth telling process as to warrant a
new trial.

(Doc. 17-4 at 228). The PCRA court, after giving Petitioner an
opportunity to respond to counsel’s “No Merit” brief, (Doc. 17-4 at 242),
conducted a thorough review of the record, and found Petitioner was not
entitled to post-conviction collateral relief. (Doc. 17-4 at 266). The
Pennsylvania Superior Court subsequently found no error in the PCRA

court’s grant of counsels’ petition to withdraw and agreed that Kuhn’s claims
lacked arguable merit. (Doc. 17-4 at 319).
Petitioner has failed to show that the state courts’ rulings resulted in a
decision that was contrary to or, involved an unreasonable application of

clearly established federal law 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 proceedings.

The transcript reveals that Petitioner’s counsel initiated the questioning
linking Petitioner to the scene, to which the Commonwealth followed up on
redirect by asking Detective Aston to elaborate on the comment. While,
Defendant Aston stated that “things were done in that apartment by suspect

that would link that suspect to a pattern that he used,” there was no mention
or reference to Petitioner’s criminal record. Thus, there existed no
reasonable basis for counsel to object. As such, counsel’s performance did
not fall below an objective level of reasonableness, and Petitioner’s final
claim of ineffectiveness is meritless. Accordingly, the state court’s

determination that Petitioner’s underlying claim lacked arguable merit, and
that he failed to demonstrate that he was prejudiced by defense counsel’s
failure to object to Detective Aston’s testimony, is not contrary to, or an

unreasonable application of Strickland.

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). Petitioner fails to demonstrate that
a COA should issue.
The denial of a certificate of appealability does not prevent Kuhn from

appealing the order denying his petition so long as he seeks, and obtains, a
certificate of appealability from the Third Circuit Court of Appeals. See Fed.
R. App. P. 22(b)(1).

V. Conclusion
For the reasons set forth above, the petition for writ of habeas corpus
pursuant to 28 U.S.C. §2254 will be denied.

An appropriate order follows.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: December 3, 2020
15-0015-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409500. Public record. Not legal advice.