# Jones v. Commonwealth of PA

> District Court, M.D. Pennsylvania · January 11, 2022

URL: https://www.frixlaw.com/law-library/cases/10411252

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411252. Public record. Not legal advice.