Opinion
1:17-cv-239
05-03-2021
TYWAN ADAMS, Petitioner v. ERIC TICE, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and DISTRICT ATTORNEY OF ERIE COUNTY, Respondents
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 38]
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
I. Recommendation
For the reasons set forth herein, it is respectfully recommended that the petition for a writ of habeas corpus, ECF No. 38, be denied and that no certificate of appealability issue.
II. Report
A. Background
Before the Court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Petitioner Tywan Adams. ECF No. 38. At the time of the filing of the petition, Petitioner was incarcerated at the State Correctional Institution at Smithfield, serving a sentence of imprisonment imposed by the Court of Common Pleas of Erie County, Pennsylvania.
Petitioner has since been transferred to the State Correctional Institution at Greene.
A review of the record and the criminal docket sheet for Petitioner's underlying convictions in Commonwealth v. Adams, No. CP-25-CR-0000350-2014 (Erie Cnty. Com. Pl.), discloses the following relevant facts.
The criminal docket is available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-25-CR-0000350-2014&dnh=CYnpicxHAQCAjpI%2B4WvRrg%3D%3D (last visited April 20, 2021).
Petitioner was convicted, at a non-jury trial, of two violations of the Pennsylvania Uniform Firearms Act: possession of a firearm by person not to possess and firearms not to be carried without a license. He was sentenced to an aggregate term of 8½ to 17 years' imprisonment. Petitioner appealed. In the memorandum opinion for that appeal, the Pennsylvania Superior Court set forth the facts underlying Petitioner's convictions:
On October 11, 2013, Patrol Officer Ira Bush of the City of Erie Bureau of Police was dispatched to 142 East 31st Street in Erie, Pennsylvania to investigate a domestic disturbance involving a man with a gun. While en route to the incident, Patrol Officer Bush received instructions from other officers to stop a sports utility vehicle that was departing from the scene. Patrol Officer Bush performed the stop and encountered three vehicle occupants. Selena Clark was the driver, Simon Odom was the front seat passenger, and [Petitioner] was the only passenger in the back seat.
All three individuals exited the vehicle and Clark, the owner, gave Patrol Officer Bush her consent to conduct a search. In a rear compartment of the vehicle, directly behind the location where [Petitioner] had been seated, Patrol Officer Bush recovered a mesh lawn chair bag that contained a Hi-Point, model 995, 9 mm semiautomatic rifle. [Petitioner], who was handcuffed by this point, attempted to jump over a fence when he observed Patrol Officer Bush recover the mesh bag.Commonwealth v. Adams, 2015 Pa. Super. Unpub. LEXIS 1965, at *1-2 (Pa. Super. 2015).
Ms. Clark's first name appears in the record as both “Selena” and “Salena.”
Petitioner's judgment of sentence was affirmed on appeal. Id. The Pennsylvania Supreme Court denied his petition for allowance of appeal. Commonwealth v. Adams, 130 A.3d 1285 (Pa. 2015).
Petitioner subsequently filed a petition for relief pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. The PCRA petition was dismissed and the dismissal was affirmed on appeal on August 17, 2017. Commonwealth v. Adams, 2017 Pa. Super. Unpub. LEXIS 3115 (Pa. Super. 2017).
Petitioner lodged a petition for a writ of habeas corpus in this Court on August 31, 2017. ECF No. 1. The case was administratively closed until Petitioner paid the filing fee, which he did on October 17, 2017. ECF Nos. 2, 3. The case was reopened, and the petition was served on Respondents. ECF No. 5. The case proceeded until May 3, 2018, when the Court stayed it while Petitioner exhausted his state-court remedies. ECF No. 33. The case was reopened on November 1, 2019, and Petitioner filed the operative amended petition on November 25, 2019. ECF Nos. 37, 38. Respondents filed a Response. ECF No. 44. Petitioner filed a Traverse. ECF No. 46. The petition is now ripe for review.
B. Analysis
1. Ground One: Ineffective assistance of trial counsel in failing to object to testimony of Selena Clark
Petitioner sets forth four grounds for relief in the instant petition. In Ground One, he asserts that his trial counsel was ineffective for failing to object to the admission of testimony from Selena Clark. ECF No. 38 at 5. He asserts that the prosecution offered Clark's testimony - that she saw him place the bag containing the rifle in her car - without proper notice to the defense. Id. Petitioner represents that he raised this claim in his PCRA petition. Id. at 6.
In disposing of this claim in the PCRA appeal, the Pennsylvania Superior Court held:
Next, [Petitioner] claims trial counsel was ineffective for failing to object to an alleged Brady [v. Maryland, 373 U.S. 83 (1963)] violation. [Petitioner] contends that counsel should have objected to Salena Clark's testimony identifying [him] as the individual who placed a bag containing a gun in her car. [Petitioner] contends that because Ms. Clark originally gave a statement indicating she did not see [Petitioner] put the gun in her car, the Commonwealth committed a discovery violation by failing to disclose this change in testimony.
Brady requires, and Pa.R.Crim.P. 573 (B)(1)(a) mandates, that the Commonwealth permit the defendant to inspect any evidence favorable to the accused that is material to guilt or punishment. See Pa.R.Crim.[P.] 573 (B)(1)(a). To establish a violation of this rule, a defendant must establish that: “(1) the evidence was suppressed by the Commonwealth, either willfully or inadvertently; (2) the evidence was favorable to the defendant; and (3) the evidence was material, in that its omission resulted in prejudice to the defendant.” Commonwealth v. Haskins, 2012 PA Super 223, 60 A.3d 538, 545 (Pa. Super. 2012). The burden rests with the defendant to prove by reference to the record that evidence was withheld or suppressed. Id. Further, the evidence must have been in the exclusive control of the prosecution. Id. No Brady violation occurs where the defendant knew or with reasonable diligence could have discovered the evidence in question, or where the evidence was available to the defense from a non-governmental source. Id.
Ms. Clark's testimony was not favorable to [Petitioner]. Thus, there was no Brady violation, and [his] claim is without arguable merit. Counsel cannot be deemed ineffective for failing to raise a meritless claim. [Commonwealth v.] Fears, 86 A.3d [795, ] at 804 [(Pa. 2014)].Commonwealth v. Adams, 2017 Pa. Super. Unpub. LEXIS 3115, at *8-9 (footnote and citations to appellate brief omitted).
Because the state court reviewed this claim and rejected it on its merits, the following standard is applicable:
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996, if a state court rejects a claimed federal violation on the merits, to obtain habeas relief a petitioner must show that the ruling:
(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). See also Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004); Thomas v. Horn, 570 F.3d 105 (3d Cir. 2009).
An unreasonable application of federal law focuses on whether the state court unreasonably applied relevant Supreme Court holdings. White v. Woodall, 572 U.S. 415, 419-20, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014). A petitioner must show an error so egregious “that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 102-03, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). An unreasonable determination of the facts is one where the petitioner proves by clear and convincing evidence, see 28 U.S.C. § 2254(e)(1), that the conclusion drawn from the evidence by the state court is so improbable that it “blinks reality.” See Miller-El v. Dretke, 545 U.S. 231, 266, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); This is a high bar to clear: as long as reasonable minds might disagree about the correctness of a factual determination, a federal habeas court must defer to the state court's determination. See Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).Allen v. Kerestes, 2019 U.S. Dist. LEXIS 193970, at *2-4 (W.D. Pa. Nov. 4, 2019).
In his Traverse, Petitioner argues that the state court's adjudication of this claim 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. ECF No. 46 at 15-16. Petitioner argues that, although Ms. Clark's testimony was not exculpatory, it was material and thus was required to be disclosed under Brady. Id. at 15. He fails set forth any Supreme Court case that supports his argument, nor can he. Brady concerns only evidence “favorable to an accused.” Brady, 373 U.S. at 87. However material the evidence may be, if it is not favorable to the accused, there can be no Brady violation for its nondisclosure. Counsel was not ineffective for failure to raise a meritless claim. Petitioner is not entitled to relief on this ground.
2. Ground Two: Ineffective assistance of trial counsel in failing to move to suppress firearm
In Ground Two, Petitioner asserts that his trial counsel was ineffective for failing to move to suppress the firearm found in the vehicle. ECF No. 38 at 7. He asserts that there was insufficient cause to stop the vehicle because the prosecution did not present at trial testimony from the officers who stopped him or from the alleged complainant, Ms. Moyer. Id. Petitioner represents that he raised this claim in his PCRA petition. Id.
In disposing of this claim in the PCRA appeal, the Pennsylvania Superior Court held:
... [Petitioner] claims counsel was ineffective for failing to file a motion to suppress the firearm. According to [Petitioner], the police stop of Ms. Clark's vehicle was supported by neither reasonable suspicion nor probable cause, as the Commonwealth did not produce the complainant to testify at trial. Thus, [Petitioner] concludes, the seizure of the gun was in violation of his Fourth Amendment rights.
[Petitioner] does not cite to any authority to support this position. Accordingly, we find that [he] has waived his arguments on appeal. See Pa.R.A.P. 2119(a)-(c); see also Commonwealth v. Knox, 2012 PA Super 147, 50 A.3d 732, 748 (Pa. Super. 2012) (“[T]he argument portion of an appellate brief must be developed with a pertinent discussion of the point which includes citations to the relevant authority.”).
Absent the waiver, this claim is meritless for two reasons.
This Court has previously found that failure to file a motion under some circumstances may be evidence of ineffective assistance of counsel. However if the grounds underpinning that motion are without merit, counsel will not be deemed ineffective for failing to so move. The defendant must establish that there was no reasonable basis for not pursing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable.
Commonwealth v. Watley, 2016 PA Super 311, 153 A.3d 1034, 1044 (Pa. Super. 2016) (internal citations and quotations omitted).
First, a complainant need not testify at trial to establish that police seized evidence in accordance with a defendant's constitutional rights. See Pa.R.Crim.P. 581(H) (placing the burden of proof upon the Commonwealth to establish the search was legally performed but not requiring testimony of complainant).
Furthermore, the stop of Ms. Clark's vehicle was appropriate.
[T]he forcible stop of a vehicle constitutes an investigative detention such that there must be reasonable suspicion that illegal activity is occurring. Police are justified in stopping a vehicle when relying on information transmitted by a valid police bulletin. Moreover, even where the officer who performs the stop does not have reasonable suspicion, the stop is nonetheless valid if the radio officer requesting the stop has reasonable suspicion.
See Commonwealth v. Washington, 2013 PA Super 51, 63 A.3d 797, 802 (Pa. Super. 2013).
Based upon the facts set forth in the police report, the vehicle stop was clearly supported by reasonable suspicion. According to the police report, Ms. Moyer told an officer that she and [Petitioner] had gotten into a fight and that he had a gun. Ms. Moyer further told the officer [Petitioner] left in a vehicle that just passed them. The officer then radioed to a fellow officer to stop that vehicle.
Accordingly, the stop was made relying upon information transmitted by a valid police bulletin and there was reasonable suspicion for the stop. See Washington, 63 A.3d at 802. Counsel cannot be deemed ineffective for failing to raise a meritless claim. Fears, 86 A.3d at 795, 804.Commonwealth v. Adams, 2017 Pa. Super. Unpub. LEXIS 3115, at *11-13 (citations to appellate brief omitted).
Because Petitioner failed to raise this claim in state court in compliance with Pennsylvania's procedural rules, it is technically procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). However, because the state court addressed the claim on its merits, this Court will do so as well.
In his Traverse, Petitioner argues the Superior Court's holding was based on an unreasonable determination of the facts in light of the evidence presented. ECF No. 46 at 16-22. Specifically, Petitioner objects to the Superior Court's reliance on the facts set forth in the police report, which, he argues constitutes “inadmissible uncorroborated hearsay evidence and alleged facts that can not be found within the record simply because they are not in the record.” Id. at 18.
Petitioner's argument is based on an implicit (but unsupported) belief that the Superior Court's scope of review for this claim was limited to evidence admitted and/or admissible at trial. In evaluating trial counsel's pre-trial exercise of judgment, it was not so limited. The Superior Court properly relied on facts within the scope of its review, and the determination it drew thereupon was not unreasonable. Petitioner is not entitled to habeas relief on this claim.
3. Ground Three: Ineffective assistance of trial counsel in failing to move to demur charge for firearms not to be carried without a license
In Ground Three, Petitioner asserts that his trial counsel was ineffective for failing to move to demur the charge for firearms not to be carried without a license on the basis that no license is required for the firearm in question. ECF No. 38 at 8-9. Petitioner concedes that he did not raise this claim in state court. Id. at 10.
Because Petitioner did not raise this claim in states court, the claim has not been exhausted. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). When a petitioner has failed to fairly present his claim to the state courts, but state procedural rules, such as the time limitations in the PCRA, see 42 Pa.C.S. § 9545(b), now bar him from doing so the exhaustion requirement is excused; however, the claims are considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d 153, 162-66 (3d Cir. 2000). A petitioner can overcome procedural default by demonstrating “cause for the default and actual prejudice as a result of the alleged violation of federal law[.]” Coleman v. Thompson, 501 U.S.722, 750 (1991). In an effort to overcome his procedural default of this claim, Petitioner baldly asserts that the failure to raise the claim before the state court was due to PCRA counsel's ineffectiveness. ECF No. 38 at 10.
The relevant law is as follows:
The general rule is that, because there is no federal constitutional right to counsel in a PCRA proceeding, a petitioner cannot rely upon PCRA counsel's ineffectiveness to overcome the default of a federal habeas claim. See, e.g., Coleman, 501 U.S. at 752-54; Davila v. Davis, 137 S.Ct. 2058, 2062, 198 L.Ed.2d 603 (2017) (“An attorney error does not qualify as ‘cause' to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default.”). In Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), the Supreme Court announced a limited, but significant, exception to this rule. Under Martinez, a Pennsylvania prisoner may argue that his PCRA counsel “caused” the default of a claim that trial counsel was ineffective. 566 U.S. at 9; Workman v. Sup't Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019). The holding in Martinez is limited to defaulted ineffective-assistance-of-trial-counsel claims. See, e.g., Davila, 137 S.Ct. at 2062-70. It does not apply to any other type of claim. Id.
Under Martinez, in order to avoid the default of an ineffective-assistance-of-trial-counsel claim, Petitioner must establish two things: (1) the ineffective-assistance-of-trial-counsel claim is “substantial”; and (2) [PCRA counsel] was ineffective within the meaning of Strickland [v. Washington, 466 U.S. 668 (1984)]. Martinez, 566 U.S. at 14; Workman, 915 F.3d at 937....
The Court of Appeals has explained that an ineffective-assistance-of-trial-counsel claim is “substantial” if it has “some merit.” Workman, 915 F.3d at 938. The evaluation of whether a claim has “some merit” is the same one that a federal court undertakes when it considers whether to grant a certificate of appealability. Id. Thus, Petitioner “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Workman, 915 F.3d at 938 (a petitioner “must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should be resolved in a different manner of that the issues presented were adequate to deserve encouragement to proceed further.'”), quoting Martinez, 566 U.S. at 14, which cited Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).Hensley v. Cappoza, 2019 U.S. Dist. LEXIS 185175, at *14-16 (W.D. Pa. Oct. 24, 2019).
The Strickland test is explained as follows:
Ineffective assistance of counsel claims are governed by the familiar standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance under Strickland, the Petitioner has the burden of establishing that his trial “counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 688. “This requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. Importantly, the Supreme Court emphasized that “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]'” Burt v. Titlow, - U.S. -, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013) (quoting Strickland, 466 U.S. at 690). See also Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.”) (quoting Strickland, 466 U.S. at 689).
The Supreme Court also instructed:
“Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive posttrial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S. at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.
Richter, 562 U.S. at 105.
Strickland also requires that the Petitioner demonstrate that he was prejudiced by his trial counsel's alleged deficient performance. This places the burden on him to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, ” the result of his trial “would have been different.” Strickland, 466 U.S. at 694. As the United States Court of Appeals for the Third Circuit explained:
[The Petitioner] “need not show that counsel's deficient performance ‘more likely than not altered the outcome of the case' - rather, he must show only ‘a probability sufficient to undermine confidence in the outcome.'” Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 69394). On the other hand, it is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” [Richter], 131 S.Ct. at 787 (citing Strickland, 466 U.S. at 693). Counsel's errors must be “so serious as to deprive the defendant of a fair trial.” Id. at 787-88 (citing Strickland, 466 U.S. at 687). The likelihood of a different result must be substantial, not just conceivable. Id.
Brown v. Wenerowicz, 663 F.3d 619, 630 (3d Cir. 2011).Howard v. Delbalso, 2017 U.S. Dist. LEXIS 126581, at *5-7 (W.D. Pa. Aug. 10, 2017) (footnote omitted).
Petitioner's argument in support of this claim is difficult to discern. He baldly asserts that “a rifle does not require a license, ” and thus 18 Pa.C.S. § 6106(a)(1), the statute under which he was convicted for firearms not to be carried without a license, does not apply to his possession of the firearm in question. ECF No. 46 at 22. However, he offers no support for this claim, citing only to another subsection of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S. § 6106.1, entitled “Carrying loaded weapons other than firearms, ” which prohibits anyone from carrying in a vehicle, inter alia, a loaded rifle which qualifies as other than a firearm as defined in 18 Pa.C.S. § 6102. ECF No. 46 at 23.
18 Pa.C.S. § 6016(a)(1) provides that “any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.”
Petitioner does not assert that the weapon in question did not meet the statutory definition of “firearm, ” set forth in 18 Pa.C.S. § 6102, which includes: “[a]ny pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches.” He also does not assert that he had a license to carry the weapon. Those are the only two elements of the crime of which Petitioner was convicted.
Because Petitioner has not demonstrated that the claim of ineffectiveness has any merit, he has failed to sustain his burden that to overcome the procedural default of this claim. He is thus entitled to no relief thereupon.
4. Ground Four: Ineffective assistance of trial counsel in failing to assert Petitioner's right to confront Ms. Moyer
In Ground Four, Petitioner asserts that his trial counsel was ineffective for failing to assert Petitioner's right to confront Ms. Moyer. ECF No. 38 at 10. Petitioner represents that he raised this claim in his direct appeal. Id.
In that direct appeal, the Pennsylvania Superior Court addressed this claim as follows:
[Petitioner's] next claim asserts that his right to confront adverse witnesses was violated when Patrol Officer Bush “testified” that [Petitioner'] girlfriend said that she saw him with a gun. This claim immediately fails. Our review of the notes of testimony from [Petitioner's] trial reveals no such testimony coming from Patrol Officer Bush. In addition, [Petitioner] has not directed our attention to any part of the record in which such testimony appears. Since Patrol Officer Bush did not testify about an out-of-court statement uttered by [Petitioner's] girlfriend, [his] right to confront adverse witnesses was not implicated in this case.Commonwealth v. Adams, 2015 Pa. Super. Unpub. LEXIS 1965, at *8.
In his Traverse, Petitioner's argument in support of this claim reiterates some of the other claims he makes in the instant petition and veers off in multiple directions. ECF No. 46 at 24-31. However, a fair reading reveals that his argument essentially is this: the Superior Court's 2015 holding on direct appeal was based on an unreasonable determination of the facts in light of the evidence presented because the Superior Court later (in the 2017 PCRA appeal) relied on the statements of Ms. Moyer; thus, Ms. Moyer was an adverse witness against him. This argument defies logic and is contrary to law.
The Superior Court's decision in 2015, which this Court reviews in light of the evidence presented to that Court, cannot be found to be unreasonable in light of events occurring in 2017. Further, Petitioner fails to appreciate that, in 2017, the Superior Court did not cite Ms. Moyer's statements for the truth of the matter asserted therein, i.e., as evidence supporting Petitioner's guilt, but only to complete the narrative of the sequence of events leading to the stop of the vehicle. The Court's reliance on the existence of her statements could not and did not render her an adverse witness against Petitioner.
The Superior Court's 2015 determination of the facts was not unreasonable. Petitioner is not entitled to habeas relief on this claim.
C. 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 Petitioner's claims should be denied for the reasons given herein. Accordingly, no certificate of appealability should issue.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).