Jones v. Commonwealth of PA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOVON JONES, :

Petitioner : CIVIL ACTION NO. 3:16-1351

v. : (JUDGE MANNION)

COMM. OF PA, et al., :

Respondents :

MEMORANDUM

Petitioner, Jovon Jones, an inmate confined in the Forest State

Correctional Institution, Marienville, 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 York 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 Jones’ conviction, extracted from the

Pennsylvania Superior Court’s June 5, 2015 Memorandum Opinion,

affirming the trial Court’s denial of Jones’ Post-Conviction Relief Act petition,

are as follows:

The underlying facts of this matter involve the killing of Alesia

Martin, whose body was discovered in her home on May 16,

2011. Appellant lived in a row home next door to the victim.

Family members became concerned when they were unable to

contact Ms. Martin. One of her family members, Bryce Bennett,

entered into her home by going through a crawl space between

Appellant’s attic and the victim’s residence. Appellant allowed

Mr. Bennet to use the crawl space but did not accompany him.

Mr. Bennett found the victim in a state of undress in her bedroom

with blood on the walls. Her bed had been stripped of the bedding

and a large bloodstain was on the bed. Mr. Bennett opened the

front door and telephoned 911 with Appellant’s cell phone but

was too distraught to speak.

Appellant volunteered for an interview with police on May 18,

2011. Appellant initially indicated that, after Mr. Bennett opened

the door to the victim’s home, Appellant went upstairs into the

victim’s rooms. According to him, the 911 dispatcher asked him

to touch the body and see if it was cold. However, two other

family members of the victim who were at the house when the

body was discovered contacted police after seeing Appellant

provide media outlets with graphic descriptions of the scene.

These family members insisted that Appellant had not entered

the victim’s bedroom. Mr. Bennett also confirmed that Appellant

had not gone into the bedroom, as did several other witnesses

who had been present.

Based on this information, police secured a search warrant for

Appellant’s home, and requested Appellant to come in for a

second interview. Appellant did volunteer to be interviewed and

he was given Miranda warnings. The interview was both audio

and video recorded. Police interviewed Appellant from 10:51

p.m. until 5:31 a.m., with various breaks in between. Ultimately,

Appellant admitted to stealing the victim’s cell phone and

implicated himself in the killing. Police then arrested Appellant.

After a preliminary hearing, Appellant’s charges were amended

to include first-degree murder, third-degree murder, burglary,

theft by unlawful taking, abuse of corpse, tampering with

evidence, and unsworn falsification.

Appellant litigated a suppression motion and proceeded to trial.

The Commonwealth and defense counsel agreed that portions

of Appellant’s May 19-20 video interview would be redacted.

Defense counsel notified the prosecution via email of the portions

of the video he believed should be redacted. The parties agreed

that a portion of the video that referenced other burglary

allegations would not be played for the jury. However, during the

trial, the Commonwealth played that section before stopping the

video. The section of the video where Appellant admitted to being

inside the house had not yet been played. Defense counsel

requested a mistrial, which the trial court granted.

Following the mistrial, the Commonwealth obtained additional

DNA evidence implicating Appellant. The parties entered into

plea negotiations. The Commonwealth sought a plea to third-

degree murder and the other charges in exchange for a twenty-

five to fifty year sentence. Although represented by counsel,

Appellant filed with the court a pro se motion to dismiss based

on double jeopardy grounds. Defense counsel received that

motion but did not pursue it. Thereafter, Appellant entered a nolo

contender plea to third-degree murder, theft by unlawful taking,

abuse of corpse, tampering with evidence, and unsworn

falsification in exchange for a sentence of twenty-five to fifty

years. The Court imposed sentence on May 6, 2014.

Appellant, acting pro se, wrote to the court complaining of

counsel’s representation and requested new counsel. That

motion was docketed on May 21, 2014. A similar motion was

docketed on June 4, 2014. However, prior to that, the court, on

May 30, 2014 appointed new counsel. Counsel did not file a

directed appeal but submitted a petition for post-conviction relief.

Therein, Appellant asserted that counsel rendered ineffective

assistance by not moving to dismiss the charges on double

jeopardy grounds, which improperly induced him to enter the

guilty plea. The PCRA court conducted an evidentiary hearing on

July 14, 2014.

The PCRA court denied Appellant’s petition, and this timely

appeal ensued. The court directed Appellant to file and serve a

Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Appellant complied, and the PCRA court authored its

Rule 1925(a) decision. The matter is now ready for this Court’s

review. Appellant presents one issue for our consideration.

1. Whether the PCRA court erred in denying the Petition

for Post-Conviction Relief which argued that the

Appellant’s trial counsel rendered constitutionally

ineffective assistance of counsel in violation of the Sixth

and Fourteenth Amendments to the United States

Constitution, and under Article 1, Section 9 of the

Pennsylvania Constitution, by improperly inducing the

Appellant into entered a no contest plea on May 6, 2014

to the charges of Theft by Unlawful Taking, Murder of the

Third Degree, Abuse of Corpse, Tampering with

Physical Evidence, and Unsworn Falsification, by failing

to move to dismiss the charges because of a violation of

the Double Jeopardy clauses of the Fifth and Fourteenth

Amendments to the United States Constitution, and

under Article 1, Section 10 of the Pennsylvania

Constitution, following the mistrial declaration at the

conclusion of his June 2013 jury trial.

(Doc. 19-3 at 91-95, Memorandum Opinion).

By Memorandum Opinion dated June 5, 2015, the Pennsylvania

Superior Court affirmed the PCRA Court’s Order denying Jones’ PCRA

petition, finding that Jones’ claim of ineffective assistance of counsel lacked

arguable merit. Id.

On June 11, 2015, Petitioner filed a Petition for Allowance of Appeal to

the Pennsylvania Supreme Court, (Doc. 19-3 at 103-138). By Order dated

December 31, 2015, the Pennsylvania Supreme Court denied Jones’

Petition for Allowance of Appeal. Id. at 139.

After filing a second PCRA petition, which was dismissed as untimely

on June, 6, 2016, (Doc. 19-3 at 191), Petitioner filed the instant petition for

writ of habeas corpus on July 1, 2016, in which he raises the following issue

for review:

The Court erred in denying the Petitioner for post-conviction

relief which argued appellant’s trial attorney failed to move to

dismiss charges for violation of Double Jeopardy clause.

(Doc. 1, petition).

II. Legal Standard of Review

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

mechanism for a prisoner to challenge the “fact or duration” of his

confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (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).

Jones’ 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 claims that his federal constitutional rights were violated due

to an alleged error in the Pennsylvania Court ruling that denied Jones’ PCRA

petition, in which Petitioner alleged that counsel was ineffective for failing to

move for dismissal of Petitioner’s criminal case on the grounds of Double

Jeopardy. (Doc. 1).

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.

The Double Jeopardy Clause forbids “any person be subject for the

same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend.

V. The Double Jeopardy Clause “protects a criminal defendant from

repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S.

667, 671 (1982). “The Double Jeopardy Clause, however, does not offer a

guarantee to the defendant that the State will vindicate its societal interest in

the enforcement of the criminal laws in one proceeding.” Id. at 672.

In Kennedy, the Oregon Court of Appeals found the Double Jeopardy

Clause barred a retrial because the prosecutor’s misconduct in asking an

expert witness if the reason the witness had never done business with the

defendant was “because he is a crook” amounted to “overreaching,” even

though the trial court had determined it was not the prosecutor's intention to

cause a mistrial. Kennedy, 456 U.S. at 669. The Supreme Court held, where

the defendant moves for a mistrial, the Double Jeopardy Clause bars retrial

only where the prosecutor intended to provoke the defendant into seeking a

mistrial:

Prosecutorial conduct that might be viewed as harassment or

overreaching, even if sufficient to justify a mistrial on defendant's

motion, therefore, does not bar retrial absent intent on the part of

the prosecutor to subvert the protections afforded by the Double

Jeopardy Clause ... Only where the governmental conduct in

question is intended to “goad” the defendant into moving for a

mistrial may a defendant raise the bar of double jeopardy to a

second trial after having succeeded in aborting the first on his

own motion.

Kennedy, 456 U.S. at 675-76.

The Supreme Court held in Kennedy where the Oregon courts found

“the prosecutorial conduct culminating in the termination of the first trial ...

was not so intended by the prosecutor, that [was] the end of the matter for

purposes of the Double Jeopardy Clause[.]” Id. at 679.

The Pennsylvania Superior Court affirmed the PCRA Court’s denial of

Petitioner’s claim, reasoning:

Appellant argues that, based on Commonwealth v. Smith, 615

A.2d 321 (Pa. 1992), and Commonwealth v. Wood, 803 A.2d

217 (Pa. Super. 2002), the Commonwealth’s actions herein

should have precluded a retrial. In Smith, the defendant was

convicted of murdering a woman and her children but was

granted a new trial based upon the erroneous admission of

hearsay. After the award of the new trial, Smith discovered that

the Commonwealth deliberately withheld material exculpatory

evidence. Specifically, the prosecutor intentionally did not inform

the defendant about a plea agreement that it reached with its

chief witness, who had actually lied on the witness stand when

he denied that the Commonwealth had promised him favorable

treatment in return for his testimony. Furthermore, the district

attorney deliberately withheld physical evidence that he knew

was exculpatory to the defendant because it supported the

defendant’s theory of the case. Indeed, when a police officer

testified about the existence of the evidence, the prosecutor

presented testimony from other police witnesses suggesting that

the first officer was fabricating his testimony.

The Pennsylvania Supreme Court in Smith characterized the

action of the district attorney as egregious and clearly undertaken

in bad faith. It discharged the defendant and ruled that “the

double jeopardy clause bars retrial following intentional

prosecutorial misconduct designed to secure a conviction

through the concealment of exculpatory evidence” as well as

when a prosecutor intentionally induces a mistrial in order to

secure a second chance at conviction when a trial appears to be

headed toward acquittal. Id. at 322. It concluded that, when the

record demonstrates the presence of “prosecutorial misconduct

undertaken in bad faith to prejudice or harass the defendant,” as

opposed to “prosecutorial error,” double jeopardy prevents a

second trial because there is a “breakdown of the integrity of the

judicial proceeding[.]” Id. at 324. Under Smith, discharge is

warranted only when “the conduct of the prosecutor is

intentionally undertaken to prejudice the defendant to the point

of the denial of a fair trial.” Id. at 325.

In Wood, this Court remanded for an evidentiary hearing on the

defendant’s double jeopardy claim. Therein, the victim of a purse

snatching died as the result of injuries suffered during the

robbery. The trial court granted a mistrial after the defendant

alleged that the Commonwealth had failed to disclose both

exculpatory and inculpatory evidence. Specifically, the defendant

alleged that the prosecutor withheld witness identifications of

other potential assailants, conducted unconstitutional

identification procedures of Wood, and did not inform him of a

witness identification of him as the attacker until that person

testified in court. Prior to retrial, the defendant filed a double

jeopardy motion, which the trial court denied. As noted, this Court

did not resolve the merits of the double jeopardy claim.

In this case, the Commonwealth responds that the prosecutor

testified that the playing of the portion of the video that should

have been redacted was accidental, and the court credited that

testimony. In addition, the Commonwealth contends that trial

counsel provided a reasonable basis for not forwarding a double

jeopardy challenge. It maintains that counsel testified that he had

no basis to conclude the Commonwealth acted intentionally

since the strongest part of its case had yet to be presented.

Further, the Commonwealth posits that counsel set forth that

such a motion may have inhibited plea negotiations. Thus, it

argues that Appellant’s claim is meritless.

Prosecutorial misconduct can implicate the double jeopardy

clause. Under the federal constitution, the double jeopardy

clause prevents a defendant from being retried when a

prosecutor deliberately provokes the defendant into moving for a

mistrial. See Oregon v. Kennedy, 456 U.S. 667 (1982). In the

seminal Smith decision, our Supreme Court, pursuant to the

strictures of the Pennsylvania Constitution, expanded a

defendant’s double jeopardy protection. See Commonwealth v.

Simone, 712 A.2d 770, 773 (Pa. Super. 1998).

In Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999), the

Court applied the Smith standard and ruled that double jeopardy

prevented retrial of the defendants in that case. Therein, the

prosecutor engaged in misconduct intentionally undertaken to

prejudice defendants to the point of denial of a fair trial.

Specifically, during trial, the district attorney was “consistently

making references to evidence that the trial court had ruled

inadmissible, continually defying the trial court’s rulings on

objections, and, in a tactic that can only be described as

Machiavellian, repeatedly insisting that there was fingerprint

evidence linking [defendants] to the crime when the prosecutor

knew for a fact that no such evidence existed.” Id. at 1227. Thus,

our Supreme Court concluded that the defendants were entitled

to discharge under the precepts of Smith.

On the other hand, in Commonwealth v. Burke, 781 A.2d 1136

(Pa. 2001), our Supreme Court made it clear that prosecutorial

conduct does not warrant a new trial unless its deliberate and

egregious and that even gross negligence by the prosecutor

does not mandate dismissal of the charges against a defendant.

Therein, during the course of the defendant’s trial, the

Commonwealth learned of evidence in the file of a police

detective that was subject to mandatory pretrial discovery. The

materials included a statement that the defendant made to

police, which was subject to mandatory discovery under the rules

of criminal procedure, as well as a statement that the

Commonwealth’s chief witness had given to police that was

exculpatory to the defendant, which must also be automatically

revealed to a defendant under the due process clause pursuant

to Brady v. Maryland, 373 U.S. 83 (1963).

By the time the evidence was given to the defendant, the witness

in question had testified and was discharged. The trial court

noted that the prosecutor, with a minimal amount of effort, could

have uncovered the statements and concluded that the problem

was created by circumstances under the Commonwealth’s

control. The trial court dismissed the action. We reversed, and

the Supreme Court “granted allocator to clarify the duty of

prosecutors in securing discovery materials and to examine

whether and when dismissal is an appropriate sanction for a

discovery violation.” Id. at 1140.

In that case, the trial court found the Commonwealth to be

grossly negligent and lacking in due diligence in failing to uncover

the evidence. We concluded that since the district attorney asked

police for the evidence and the police claimed the evidence did

not exist, the prosecutor’s conduct was innocent. The Supreme

court ruled that, regardless of whether the prosecutor had

exhibited gross negligence, such conduct was insufficient to

warrant the remedy of dismissal under Smith standard. It

reaffirmed that discharge is permitted only when the prosecutor’s

conduct is deliberately designed to deprive the defendant of a

fair trial. See also Commonwealth v. Kearns, 70 A.3d 881 (Pa.

Super. 2013).

Here, the PCRA court determined that the prosecutor’s playing

of the tape was accidental. There is support in the record for that

position based on the prosecutor’s testimony that the PCRA

court deemed credible. Since the prosecution’s actions herein

were not the type of egregious misconduct that occurred in

Smith, supra or Martorano, supra, counsel cannot be

ineffective for failing to pursue a double jeopardy motion.

Appellant’s claim is without merit.

(Doc. 19-3 at 96-101).

The AEDPA requires this Court to presume the correctness of the state

court’s factual finding that there was no inexcusable neglect by the

prosecutor; Petitioner has not rebutted this presumption with clear and

convincing evidence. See 28 U.S.C. §2254(e)(1); Miller-El v. Dretke, 545

U.S. at 240 (a district court must “presume the [state] court’s factual findings

to be sound unless [petitioner] rebuts the ‘presumption of correctness by

clear and convincing evidence.’ ”). Petitioner has not shown this finding was

based on an unreasonable determination of the facts in light of the evidence

presented and he is not entitled to habeas relief under 28 U.S.C.

§2254(d)(2).

The Pennsylvania Superior Court did not unreasonably apply Kennedy

or other Supreme Court precedent when it affirmed the PCRA court’s denial

of Petitioner’s double jeopardy motion. See 28 U.S.C. §2254(d)(1) and

(d)(2); cf. United States v. Williams, 472 F.3d 81, 88 (3d Cir. 2007) (“Because

the applicable standard for a double jeopardy bar as a result of prosecutorial

misconduct requires a showing that the Government had in fact intended to

goad the defendant into requesting a mistrial, and there was no such

showing in this case, it was error to dismiss the indictment.”) Consequently,

trial counsel cannot be ineffective for declining to raise a meritless issue. See

Premo v. Moore, 562 U.S. 115, 124 (2011). Petitioner is not entitled to

habeas relief and his petition will be denied.

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 Jones 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: January 11, 2022

16-1351-01