WHITTINGTON v. DELBALSO

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RYAN WHITTINGTON, )

)

Petitioner, ) Civil Action No. 2:19-cv-247

)

v. )

) Magistrate Judge Patricia L. Dodge

SUPERINTENDENT DELBALSO, et al., )

)

Respondents. )

MEMORANDUM

Pending before the Court1 is the Petition for a Writ of Habeas Corpus (ECF No. 1) filed by

state prisoner Ryan Whittington (“Petitioner”) pursuant to 28 U.S.C. § 2254. For the reasons set

forth below, the Court will deny the Petition and deny a certificate of appealability.

I. Introduction

Petitioner challenges the judgment of sentence imposed upon him by the Court of Common

Pleas of Allegheny County at criminal docket number CP-02-CR-986-2007. He raises two grounds

for relief. In Claim I, Petitioner contends that the trial court erred in denying his request to sever

his trial from that of his co-defendants, Steven Ashby and Taneesha Middleton. In Claim II, he

contends that the mandatory minimum sentences allegedly imposed upon him pursuant to

42 PA. CONS. STAT. § 9712 violated the rule of Alleyne v. United States, 570 U.S. 99 (2013)

because there was no finding by the jury that he used a firearm during the commission of a crime

by evidence beyond a reasonable doubt.

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to

have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a final judgment.

II. Relevant Background2

The joint jury trial of Petitioner, Ashby, and Middleton was held in June 2008. On the first

day of trial, Petitioner’s attorney made an oral motion that Petitioner’s trial be severed from

Middleton’s. Trial Tr. at 20-21.3 Rule 583 of the Pennsylvania Rules of Criminal Procedure

provides that a court “may order separate trials of offenses or defendants, or provide other

appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being

tried together.” Pa. R. Crim. P. 583. The prejudice must be “real, not fanciful, and must be

considered with the desirability of joint trials.” Commonwealth v. Lambert, 603 A.2d 568, 573 (Pa.

1992). Where a conspiracy is charged, joint trials of the defendants are advisable. See, e.g.,

Commonwealth v. Brown, 925 A.2d 147, 161 (Pa. 2007). However, if a defendant can show that

there is a strong probability of antagonistic defenses, the trial court should consider granting a

severance. “A claim of mere hostility between defendants, or that one defendant may try to

exonerate himself at the expense of the other, however, is an insufficient basis upon which to grant

a motion to sever….severance should be granted only where the defenses are so antagonistic that

they are irreconcilable—i.e., the jury essentially would be forced to disbelieve the testimony on

behalf of one defendant in order to believe the defense of his co-defendant.” Id. at 161-62 (citations

omitted).

The court denied Petitioner’s motion to sever, id. at 21, as well as the subsequent requests

for severance his counsel made during the trial. Id. at 172-77 (arguing that Petitioner and Ashby’s

2 Respondents submitted a hard copy of the state court record, including the transcripts. They also

electronically filed as exhibits to their Answer relevant parts of the state court record, including

the state court opinions cited herein.

3 Middleton had filed an unsuccessful pre-trial motion that her case be severed from her co-

defendants. Trial Tr. at 20-21. At the beginning of the trial, Petitioner’s counsel asked that

Petitioner be joined in that motion and requested that the court reconsider its previous ruling and

sever Petitioner and Ashby’s trial from Middleton’s. Id.

trial should be severed from Middleton’s because they were pursuing “two disparate theories of

defense”); id. at 321 (same); id. at 434 (arguing that Petitioner’s trial should be severed from

Ashby’s and Middleton’s because “there are three disparate theories of defense here.”)

The Superior Court of Pennsylvania summarized the evidence introduced at the trial as

follows:

[O]n October 17, 2006, Damien Graves was visiting the home of his girlfriend,

[P.M.]…where she resided with her two minor children. At approximately 9:00

p.m., co-defendant Taneesha Middleton knocked on the apartment door and asked

to borrow Graves’ cell phone. Middleton used the cell phone to place a phone call

in the hallway, after which, she returned the phone to Graves and left.

Approximately five minutes later, Middleton returned and again requested to use

Graves’ cell phone. At that time, two armed men, one of whom was masked, burst

into the apartment. The masked man was subsequently identified as [Petitioner];

the other as Steven Ashby.

The two men instructed Graves to lie down and demanded money. Ashby

then instructed [Petitioner] to retrieve [P.M.] from the bathroom, and subsequently

ordered her to remove her clothes. While [P.M.] removed her clothing, Ashby and

[Petitioner] took turns pistol whipping Graves in the face and head with their

weapons, as a result of which Graves suffered lacerations to his head and jaw.

After [P.M.] had stripped naked, [Petitioner] retrieved her minor children

from the rear bedroom. Ashby proceeded to put a gun to the head of one child and

threatened to kill him if more money was not turned over. Frustrated that no

additional money was found, [Petitioner] removed his mask and demanded that

Graves call someone to bring more money or else everyone would be killed.

Although Graves complied and called his brother to bring over extra money for

[Petitioner] and Ashby, Graves’ brother never arrived. While they waited, Ashby

and [Petitioner] took turns sexually assaulting [P.M.] in the bedroom.

[P.M.] eventually escaped from the apartment through an open window,

whereupon Ashby and [Petitioner] fled the premise. Approximately two weeks

later, Graves and [P.M.] went to the police to report the robbery. While at the police

station, Graves identified [Petitioner], Ashby, and Middleton as the individuals

involved in the burglary through a photo array.

Commonwealth v. Whittington, No. 1880 WDA 2008, slip op. at 1-3 (Pa. Super. Ct. Mar. 25, 2010)

(“Whittington I”) (footnotes omitted), Resp’s Ex. 21.

Graves and P.M. testified at the trial and made in-court identifications of Petitioner, Ashby,

and Middleton as the individuals involved in the October 17, 2006 incident.4 Trial Tr. at 64-66,

70-71, 189-90, 196-97. Each defendant maintained his or her innocence and contended that the

Commonwealth failed to produce evidence of guilt beyond a reasonable doubt. Middleton testified

in her own defense and stated that Ashby and Petitioner indicated to her that they merely wanted

to “chill” with P.M. Id. at 367-70. She denied observing any criminal conduct and stated that she

had no reason to know what Ashby and Petitioner were planning to Graves and P.M. Id. at 373.

Petitioner did not testify and presented no witnesses in his defense. In his closing

submission, his attorney urged the jurors not to credit the trial testimony of Grave, P.M. and

Middleton and pointed out reasons that they should find it unreliable. Id. at 444-67. Ashby also

presented an alibi defense. He and his girlfriend both testified that they were together at her

mother’s house at the time the crimes where committed. Id. at 323-35, 345.

The jury found Petitioner guilty of five counts of simple assault, two counts of robbery,

two counts of making terroristic threats, two counts of recklessly endangering another person,

burglary, aggravated assault, and criminal conspiracy. It convicted Ashby on all charges filed

against him, and acquitted Middleton of all charges. Id. at 4, n.14.

Prior to Petitioner’s sentencing, the Commonwealth filed a notice of intention to seek

application of the mandatory minimum sentencing provisions of 42 PA. CONS. STAT. § 9712 for

those crimes he committed with firearms. Resp’s Ex. 10. Petitioner’s sentencing hearing was held

4 P.M. testified that after she escaped from her apartment, she alerted a friend who then called the

police. Trial Tr. at 207-08. When the police arrived at her apartment, Graves refused to speak with

them or file a report. Id. at 88-90, 263-70. It was not until approximately two weeks after the

incident that Graves and P.M. reported to the police what had happened and provided them with a

description of their assailants. Id. at 273-75. Graves testified that he did not initially speak to the

police because he was raised in a manner where “you just don’t call the police.” Id. at 93.

on September 23 and 24, 2008. At its conclusion the court sentenced him to a series of consecutive

sentences, for a total aggregate term of imprisonment of 20 ½ to 46 years’ imprisonment. Resp’s

Exs. 11, 12; Whittington I, No. 1880 WDA 2008, slip op. at 4.

In his direct appeal to the Superior Court, Petitioner, through new counsel, contended that

the trial court’s decision denying him a severance violated state law, his right to a fair trial under

the Due Process Clause and his rights under the Confrontation Clause. Whittington I, No. 1880

WDA 2008, slip op. at 7-10. The Superior Court held that Petitioner waived his federal

constitutional claims because he did not raise them to the trial court when he moved for a

severance. Id. at 10. It denied Petitioner’s state-law claim on the merits, explaining:

…[Petitioner] argues that the trial court should have severed the cases because co-

defendant Middleton’s defense was “so conflicting and antagonistic that the jury

would have had to disbelieve her testimony in order to accept his defense.”

[Petitioner’s] Brief, at 28. In essence, [Petitioner] argues that his “passive defense,”

i.e., declining to testify at trial and instead relying on the Commonwealth’s burden

to establish guilt beyond a reasonable doubt and arguing mistaken identity, was

prejudicially undercut by Middleton’s defense that she was merely an unwitting

pawn in Ashby and [Petitioner’s] plot to gain entrance into [P.M.’s] apartment. Id.

at 27-28.

Although [Petitioner] was well within his right to rely upon reasonable

doubt as a defense tactic, we fail to see in what manner this more “passive” defense

was at all antagonistic to that offered by Middleton. Although [Petitioner] baldly

asserts that Middleton’s defense and trial testimony “inevitably devalued his own

passive defense in the eyes of the jury,” this assertion alone amounts more to mere

conjecture rather than a demonstration of actual prejudice. Moreover, we are not

convinced that Whittington and Middleton’s defenses were so antagonistic as to

prove mutually exclusive. Indeed, the jury could well have regarded both

Middleton’s defense that she was tricked by two men in order to gain access to the

apartment, and [Petitioner’s] defense that he was mistakenly identified. This

testimony, although conflicting, amounts to little more than mere finger pointing,

and is thus insufficient to warrant a separate trial. [Commonwealth v. Housman,

986 A.2d 822, 834 (Pa. 2009)] (citing Commonwealth v. Lambert, 603 A.2d 568,

574 (Pa. 1992)). Therefore, we find no abuse of discretion in the trial court’s refusal

to sever [Petitioner’s] case from that of his co-defendants’.

Id. at 7-9 (footnote committed).

The Superior Court denied all of Petitioner’s guilt-phase claims in Whittington I. However,

it remanded the case to the trial court because it concluded that two of Petitioner’s assault

convictions should have merged for sentencing purposes. Id. at 5-7. It expressly instructed that

“[b]ecause [its] finding may affect the sentencing scheme…we therefore vacate the judgment of

sentence for all convictions and remand for resentencing so that the trial court has the opportunity

to restructure its entire sentencing scheme.” Id. at 7.

The trial court resentenced Petitioner on July 6, 2011 to a series of consecutive sentences,

for a total aggregate term of imprisonment of 20 ½ to 44 years’ imprisonment. Prior to this

proceeding, the Commonwealth did not file a notice requesting the imposition of a mandatory

minimum sentence under § 9712.

Petitioner, through counsel, filed an appeal with the Superior Court in which he raised

sentencing claims that are not relevant to this federal habeas case. The Superior Court affirmed

Petitioner’s judgment of sentence in Commonwealth v. Whittington, No. 1820 WDA 2011, slip op.

(Pa. Super. Ct. Dec. 3, 2012) (“Whittington II”), Resp’s Ex. 35. The Supreme Court of

Pennsylvania denied a petition for allowance of appeal, Resp’s Ex. 39, and the United States

Supreme Court denied a petition for certiorari on January 13, 2014. That is the date Petitioner’s

judgment of sentence became final. See, e.g., Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (citing

Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1987)). Six months earlier, in June 2013, the Supreme

Court issued Alleyne, within which it held for the first time that any fact that increases the

mandatory minimum is an “element” that must be submitted to the jury and proven beyond a

reasonable doubt. 570 U.S. at 112.

In January 2015, Petitioner filed in state court a petition for collateral relief under

Pennsylvania’s Post Conviction Relief Act (“PCRA”). The trial court, now the PCRA court,

appointed new counsel to represent him and counsel filed two amendments to the PCRA. In this

PCRA proceeding, Petitioner argued, in relevant part, that the sentence imposed on his two robbery

conviction were illegal under Alleyne.

The PCRA court held a hearing on Petitioner’s Alleyne claim. Resp’s Ex. 47. The

Commonwealth’s position was that the trial court did not apply § 9712’s mandatory minimums

when it sentenced Petitioner and, therefore, the rule in Alleyne did not affect his sentence. Hr’g

Tr., 9/25/17, at 4-5. At the conclusion of the hearing, the PCRA court indicated that it would review

the record in order to determine whether any mandatory minimums had been applied when

Petitioner was sentenced. Id. at 7. On October 17, 2017, the PCRA court issued a final order

denying Petitioner’s Alleyne claim. Resp’s Ex. 48. It found as fact that “the Court did not invoke

any mandatory minimum” and that, as result, “[t]he sentences imposed at two counts of Robbery

were not illegal pursuant to Alleyne[.]” Id.

The Superior Court affirmed the PCRA court’s decision in Commonwealth v. Whittington,

No. 1643 WDA 2017, slip op. (Pa. Super. Ct. Oct. 15, 2018) (“Whittington III”), Resp’s Ex. 55. It

noted that the finding of fact made by the PCRA court. Id. at 5-6. The Superior Court further

explained:

The Commonwealth did not file notice of its intent to invoke the mandatory

minimum sentences prior to [Petitioner’s July 6, 2011] re-sentencing and the

mandatory minimums were never discussed at the re-sentencing. See generally

N.T., 7/6/11. Moreover, the trial court did not re-sentence [Petitioner] to the

mandatory minimums, i.e., five to ten years’ imprisonment at each robbery count.

Instead, the trial court sentenced [Petitioner] to 7 to 15 years’ imprisonment at each

count. This indicates that the trial court did not impose the mandatory minimum

sentences but instead carefully considered the statutory sentencing factors and

concluded that a sentence of 7 to 15 years’ imprisonment for each robbery

conviction was appropriate…. Combined, these facts show that the trial court did

not impose an illegal sentence and the PCRA court properly denied relief.

Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (“[T]he sentencing

court exceeded the mandatory minimum sentence when it applied the standard

guideline range sentence where a deadly weapon was used. Hence, the court did

not sentence the defendant based on the mandatory statute, and his sentence is not

illegal.”)

Id. at 5-6. The Supreme Court of Pennsylvania denied a petition for allowance of appeal on

April 15, 2019.

As set forth above, Petitioner contends in Claim I of this federal habeas petition that the

trial court erred in denying his motion to sever, and he contends in Claim II that his sentence is

illegal under Alleyne. In their Answer, ECF No. 10, Respondents maintain that to the extent that

Petitioner is raising any federal constitutional claim in Claim I, this Court must deny those claims

because Petitioner procedurally defaulted them. With respect to Claim II, Respondents assert that

this Court must deny it because the state courts found as fact that the trial court did not apply

§ 9712’s mandatory minimums when it sentence Petitioner.

Petitioner did not file a Reply. See Local Rule 2254(E)(2) (“the petitioner may file a Reply

(also known as ‘a Traverse’) within 30 days of the date the respondent files its Answer.”).

III. Discussion

A. Jurisdiction and Standard of Review

The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to

prisoners in custody pursuant to a state-court judgment. It permits a federal court to grant a state

prisoner a writ of habeas corpus “on the ground that he or she is in custody in violation of the

Constitution…of the United States.” 28 U.S.C. § 2254(a). Errors of state law are not cognizable.

Id.; see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). It is Petitioner’s burden to prove that

he is entitled to the writ. See, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-

49 (3d Cir. 2017).

In 1996, Congress made important amendments to the federal habeas statutes with the

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Among

other things, AEDPA “modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions

are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing

Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It reflects the view that habeas corpus is a “guard

against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary

error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal

quotations and citation omitted).

AEDPA put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d).

It applies “to any claim that was adjudicated on the merits” by the Superior Court and it prohibits

a federal habeas court from granting relief unless the petitioner established that the Superior

Court’s “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(d). For the purposes of § 2254(d), a claim has been “adjudicated on the merits

in State court proceedings” when the decision by the Superior Court resolved the claim based on

its substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. at 98-100; Robinson

v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).

Additionally, a finding of fact made by a state court always has been afforded considerable

deference in a federal habeas proceeding. AEDPA continued that deference and mandates that “a

determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C.

§ 2254(e)(1). Petitioner has the “burden of rebutting the presumption of correctness by clear and

convincing evidence.” Id.5

B. Claim I

Petitioner asserts in Claim I that the trial court erred when it denied his motion for

severance. To the extent that he is arguing that the trial court’s decision was an abuse of discretion,

that state-law claim is denied because it is not cognizable. See, e.g., Estelle, 502 U.S. at 67-68.

Petitioner does not expressly argue to this Court that the trial court’s decision violated any federal

constitutional right. However, to the extent that it is his intent to challenge the trial court’s decision

on the federal constitutional grounds he raised on direct appeal, those claims are procedurally

defaulted because the Superior Court in Whittington I determined he waived them by failing to

first raise them to the trial court.

The doctrine of procedural default, like the doctrine of exhaustion, is “grounded in

concerns of comity and federalism.” Coleman v. Thompson, 501 U.S. 722, 730 (1991). To

succinctly summarize it, it provides that a Pennsylvania state prisoner in a non-capital case defaults

a federal habeas claim if he: (a) failed to present it to the Superior Court and he cannot do so now

because the state courts would decline to address the claims on the merits because state procedural

rules bar such consideration; or (b) failed to comply with a state procedural rule when he presented

the claim to the state court, and for that reason the Superior Court declined to address the federal

claim on the merits. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451 (2000); O’Sullivan v.

5 Sections 2254(d)(2) and (e)(1) “express the same fundamental principle of deference to state

court findings[,]” and federal habeas courts “have tended to lump the two provisions together as

generally indicative of the deference AEDPA requires of state court factual determinations.”

Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004). The Court of Appeals has instructed that

§ 2254(d)(2), when it applies, provides the “overarching standard” that a petitioner must overcome

to receive habeas relief, while 2254(e)(1) applies to “specific factual determinations that were

made by the state court, and that are subsidiary to the ultimate decision.” Id.

Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting) (describing the history of the

procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72 (1977); Lines v. Larkins, 208 F.3d

153, 162-69 (3d Cir. 2000). The latter circumstance is what occurred in this case.

For the procedural default doctrine to apply here, the state waiver rule applied by the

Superior Court in Whittington I must have been “adequate,” id. at 729-30, meaning that it was

“firmly established and regularly followed” at the time that the procedural default occurred. Ford

v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51

(1984)); see, e.g., Shotts v. Wetzel, 724 F.3d 364, 370 (3d Cir. 2013); Nara v. Frank, 488 F.3d 187,

199 (3d Cir. 2007). See also Beard v. Kindler, 558 U.S. 53 (2009) (even discretionary state rules

can be “adequate”). The rule also must have been “independent” of federal law, meaning that the

rule did not depend for its resolution on answering any federal law question. See, e.g., Ake v.

Oklahoma, 470 U.S. 68, 75 (1985); Randy Hertz & James S. Liebman, FEDERAL HABEAS CORPUS

PRACTICE AND PROCEDURE, 7th Edition, § 26.2 (Matthew Bender).

Here, the waiver rule applied by the Superior Court in Whittington I was both “adequate”

and “independent.” Therefore, to the extent that Petitioner is raising in this habeas case the same

federal constitutional claims that he brought to the Superior Court on direct appeal, those claims

are procedurally defaulted.

When a claim is procedurally defaulted, a petitioner can overcome the default if he

demonstrates “cause for the default and actual prejudice as a result of the alleged violation of

federal law[.]” Coleman, 501 U.S. at 750. A petitioner may also overcome his default by

demonstrating “that failure to consider the claims will result in a fundamental miscarriage of

justice.” Id. This means that a procedural default may be excused if the case is one of the very rare

ones in which the petitioner has presented evidence of “actual innocence” that is “so strong that a

court cannot have confidence in the outcome of the trial unless the court is also satisfied that the

trial was free of nonharmless constitutional error[.]” Schlup v. Delo, 513 U.S. 298, 316 (1995).

Petitioner does not argue that he can overcome his default under either the “cause” and “actual

prejudice” or the “miscarriage of justice” exceptions.

Based upon all of the forgoing, Claim I is denied. To the extent that Petitioner is claiming

that the trial court’s decision to deny his motion for a severance violated his federal constitutional

rights, those claims are procedurally defaulted.

C. Claim II

When Petitioner litigated his Alleyne claim (Claim II) in his PCRA proceeding, the

Commonwealth acknowledged that if the trial court had imposed a mandatory minimum sentence

under § 9712 when it resentenced him on July 6, 2011, the rule of Alleyne would require that he

be resentenced for a second time. However, the Commonwealth asserted that the trial court did not

impose any mandatory minimum sentence, and the PCRA court and then Superior Court, in

Whittington III, found as fact that it did not. Because the state courts’ rejection of Petitioner’s

Alleyne claim was solely premised upon that factual determination, AEDPA requires that

Petitioner demonstrate that the Superior Court’s adjudication “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding[,]”

28 U.S.C. § 2254(d)(2), and he must produce “clear and convincing evidence” that the state courts’

finding was wrong. Id., § 2254(e)(1).

The state courts’ determinations withstand review under AEDPA’s deferential standards.

Petitioner contends that the trial court imposed a mandatory minimum sentence upon him, but he

does not direct the Court to any evidence to support that allegation, let alone the quantum of

evidence that is necessary to satisfy the burden imposed upon him §§ 2254(e)(1) and (d)(2).

Therefore, Claim II is denied on the merits.

D. Certificate of Appealability

AEDPA codified standards governing the issuance of a certificate of appealability for

appellate review of a district court’s disposition of a habeas petition. It provides that “[u]nless a

circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court

of appeals from…the final order in a habeas corpus proceeding in which the detention complained

of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that

“[a] certificate of appealability may issue...only if the applicant has made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). “When the district court denies a habeas

petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a

[certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has

rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable

jurists would find the district court's assessment of the constitutional claims debatable or wrong.”

Id.

Applying those standards here, jurists of reason would not find it debatable whether each

of Petitioner’s claims should be denied for the reasons given herein. Accordingly, the Court will

not issue a certificate of appealability on any of Petitioner’s grounds for relief.

IV. Conclusion

Based upon the foregoing, the Court concludes that Petitioner has not satisfied his burden

of demonstrating that he entitled to the writ of habeas corpus. The Court will deny his Petition and

it will deny a certificate of appealability.

An appropriate Order follows.

/s/ Patricia L. Dodge

Date: November 18, 2020 PATRICIA L. DODGE

United States Magistrate Judge