Opinion
Civil Action 2:22-cv-00417
06-02-2023
GERALD DAVIS, JR., Petitioner, v. THE DISTRICT ATTORNEY OF ALLEGHENY COUNTY, THE ATTORNEY GENERAL OF PENNSYLVANIA; and MARK CAPOZZA, SUPERINTENDENT, Respondents.
GERALD DAVIS, JR. KY5234 SCI FAYETTE RUSHEEN R. PETTIT OFFICE OF THE DISTRICT ATTORNEY (VIA ECF ELECTRONIC NOTIFICATION)
GERALD DAVIS, JR. KY5234 SCI FAYETTE RUSHEEN R. PETTIT OFFICE OF THE DISTRICT ATTORNEY (VIA ECF ELECTRONIC NOTIFICATION)
Joy Flowers Conti, Senior United States District Judge
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed .R. Civ. P. 72(b).
Cynthia Reed Eddy, United States Magistrate Judge
I. RECOMMENDATION
For the reasons set forth herein, it is respectfully submitted that the Petition for Writ of Habeas Corpus (ECF No. 1) be denied and that a certificate of appealability also be denied.
II. REPORT
Pending before the Court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 filed by Gerald Davis, Jr. (“Petitioner or “Davis”). Davis challenges the Order of Sentence - New Sentence entered on February 19, 2016, by the Court of Common Pleas of Allegheny County, Pennsylvania, at Criminal Case No. CP-02-CR-0004831-2012. For the following reasons, the Petition should be denied and a certificate of appealability also should be denied.
A. Jurisdiction
This 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 the 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). It is Davis's burden to prove that he is entitled to the writ. 28 U.S.C. § 2254(a) ; see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims. For example, the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (which is discussed below). But, ultimately, Davis cannot receive federal habeas relief unless he establishes that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
B. Relevant Factual and Procedural History
The PCRA Court recounted the factual summary of the case in its 1925(a) Opinion:
In 2012 Petitioner was arrested and charged with various offenses arising out of robberies committed at nine separate restaurants and convenience stores in Allegheny County. On August 29, 2012 Petitioner and his accomplice, Keith Fields, plead guilty to all the charges against them. Specifically, Davis plead guilty to six counts each of robbery, aggravated assault, REAP and terroristic threats as well as one count each of discharging a firearm into an occupied house, carrying a firearm without a license, theft by unlawful taking, receiving stolen property and criminal conspiracy. On January 18, 2013 Petitioner was sentenced to an aggregate sentence of 22 to 44 years' incarceration, which included a finding of guilt with no further penalty at Count 5 (REAP) and Count 23 (carrying a firearm without a license).
. . . The Superior Court affirmed the judgment of sentence [and] Petitioner's Petition for Allowance of Appeal was denied on November 25, 2014....
On April 28, 2015 Petitioner filed a timely PCRA Petition which included allegations that he had received a mandatory sentence for several of the robbery convictions that were rendered illegal by Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013).
After the Commonwealth acknowledged that Petitioner was entitled to relief on that issue, a resentencing hearing was held on February 19, 2016 at which Petitioner was sentenced to an aggregate term of 17 to 40 years' incarceration. The new sentencing scheme included a sentence of 1 to 2-year incarceration at Count 5 (REAP) and 1 to 2 years at Count 23 (carrying a firearm without a license).
Petitioner filed an appeal from the sentencing alleging that the Court did not have jurisdiction to resentence him at Count 5 and Count 23 . . . Petitioner's appeal was based on 42 Pa.C.S.A. § 9543(a)(1)(i) which provided that in order to be eligible for relief under the PCRA a petitioner must establish that he was “currently serving a sentence of imprisonment, probation or parole for the crime.” Petitioner asserted that he was ineligible for relief as to Counts 5 and 23, as he was not currently serving a sentence on those counts and, therefore, the Court lacked jurisdiction to impose the new sentences of 1 to 2 years at each of those counts.
In opinions filed on August 17, 2018, four Judges of the Superior Court En Panc Panel held that the issue of the lack of jurisdiction to resentence on counts for which he was not serving a sentence at the time PCRA relief was granted was waived because Petitioner appealed the judgment of sentence but not the order granting PCRA relief. The Court, however, reviewed the claim as a double jeopardy claim and found it meritless. Two Judges held that the issue was not waived, and that Petitioner properly appealed from the order resentencing him but nonetheless found the claim was meritless. In an opinion in support of reversal, three Judges held that the issue was not waived and, although the Court had jurisdiction to resentence, it did not have authority to do so. Commonwealth v. Davis, 197 A.3d 1217 (Pa. Super. 2018 en banc), 445 WDA 2016.
Petitioner then filed [a] PCRA petition in which he alleged that trial counsel was ineffective in failing to file a post-sentence motion to preserve the claim that the Court did not have jurisdiction under 42 Pa.C.S.A. § 9543(a)(1)(i); that appellate counsel was ineffective in failing to preserve any issue for appeal; that trial and appellate counsel were ineffective in failing to preserve a double jeopardy claim; that the Court lacked authority to impose the new sentence on February 19, 2016 when the prior sentence was not vacated by a separate order; and, that trial counsel and appellate counsel failed to preserve the claim that the Court lack authority to resentence him. After review of appointed counsel's Turner/Finley no merit letter and the response to notice of intent to dismiss filed by Petitioner's privately retained counsel and considering the entire record, the PCRA petition was dismissed.PCRA 1925(a) Opinion, 01/07/2021 at pp. 3-6 (ECF No. 1-1 at pp. 36-39). Petitioner, pro se, appealed the decision denying PCRA relief, raising the following two claims:
Whether the PCRA court erred by resentencing Appellant on 2/19/16, when the original sentencing order of 1/18/13 had not been vacated and was intact, and that PCRA and appellate counsel were ineffective in failing to raise or preserve this issue for appeal?
Whether the PCRA court erred in granting relief on count 5 (REAP) and count 23 ([carrying a firearm without a license]) where Appellant was not eligible to such relief under 42 Pa.C.S.A. § 9543(a)(1)(i), and where sentencing and appellate counsel were ineffective for not objecting to and raising this claim on appeal?On September 13, 2011, a three-judge panel of the Superior Court affirmed the order denying PCRA relief. Commonwealth v. Davis, No. 882 WDA 2020, No. 883 WDA 2020 (Pa. Super. Sept. 13, 2021) (ECF No. 1-1 at p. 12). In denying the first issue, the Superior Court found that “the record makes clear that the court verbally granted PCRA relief at the February 19, 2016 hearing in the form of vacating the original sentence, and then resentenced Appellant at the same proceeding.... The record simply belies Appellant's claim that the original sentence was still intact at the time the court resentenced him.” Id.
As to the second issue, Davis argued that the court lacked authority to resentence him on Count 5 and Count 23 because the court had originally sentenced him to serve no further penalty at both those counts. Davis argued that although he raised this claim on direct appeal from resentencing in the context of whether the court had jurisdiction, he was now asserting “an eligibility issue” - contending that he was ineligible under Section 9543 of the PCRA to receive any relief at the two counts for which he was not serving a sentence (Count 5 and Count 23) when the court granted PCRA relief. The Superior Court denied the claim on its merits, holding that “the sentencing court had the authority to vacate the entire original sentence, including those sentences for which the court had originally imposed no further penalty, prior to resentencing [Davis]. Id.
Having been denied relief in state court, on March 3, 2022, Davis filed the instant timely pro se federal habeas petition raising one claim. He again challenges the February 19, 2016, resentence as to Counts 5 and 23, but now has framed the issue as a constitutional violation:
1. Equal Protection Violation; Due Process Violation. Both under the Fourteenth Amendment.
I was originally sentenced to no further penalty at Counts 5 (REAP) & 23 (carry firearm w/o a license). I was granted relief on my mandatory minimums in the form of a complete vacancy of original sentence. At resentence hearing I was sentenced to 1-2 years at Counts 5 23. Under PCRA statute I am ineligible to seek relief on completed counts & the PCRA court are limited as to what they can & cannot grant relief to. Deeming the relief given was not proper contrary to PCRA statute.Pet., Ground One (ECF No. 1). Respondents filed an Answer on June 14, 2022. (ECF No. 11). The undersigned has reviewed the filings of the parties, as well as the state court record.
Respondents have attached to their Answer relevant state-court filings and decisions. (ECF No. 11). Respondents have also provided a hard copy of the original state court record for Davis's criminal case. (ECF No. 12).
C. The Standard for Habeas Relief under 28 U.S.C. § 2254
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Becker v. Sec'y Pennsylvania Dep't of Corr., 28 4th 459, 460 (3d Cir. 2022) (quoting 28 U.S.C. § 2254(d)(1)). The phrase “clearly established Federal law,” as the term is used in Section 2254(d)(1), is restricted “to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'” Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263, 280 (2016 (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (3d Cir. 2003)); Williams v. Taylor, 529 U.S. 362, 365 (2000).
Once the “clearly established Federal law, as determined by the Supreme Court of the United States,” is identified, this Court must determine whether the state court's adjudication of the claim was “contrary to” that law. Williams, 529 U.S. at 405 (explaining that the “contrary to” and “unreasonable application of” clauses of § 2254(d)(1) have independent meaning). There are two scenarios where a state court decision will fall into section 2254(d)(1)'s “contrary to” clause. First, a state court decision will be “contrary to” clearly established federal law when the court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” at Williams, 529 U.S. at 405, 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.” Id. at 406.
A “run-of-the-mill” state-court adjudication applying the correct legal rule from Supreme Court decisions to the facts of a particular case will not be “contrary to” Supreme Court precedent. Id. For that reason, the issue in most federal habeas cases is whether the adjudication by the state court survives review under the “unreasonable application” clause of § 2254(d)(1).
The Supreme Court has said that under the “unreasonable application” clause of 28 U.S.C. § 2254(d)(1), a state court decision involves an unreasonable application of Supreme Court precedent “if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Williams, 529 U.S. at 413; Dennis, 834 F.3d at 281 (quoting Williams, 529 U.S. at 413). To satisfy the burden, under § 2254(d)(1), a petitioner must do more than convince this Court that the state court's decision was incorrect. Dennis, 834 F.3d at 281. The petitioner must show that the state court's decision “was objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409) (emphasis added by Dennis). This means that a petitioner must prove that the state court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. As the Supreme Court noted:
It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See Lockyer, supra, at 75, 123 S.Ct. 1166. If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further.Id. at 102. If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent Graterford SCI, 677 Fed.Appx. 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007)) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[,] [a] federal court must then resolve the claim without the deference AEDPA otherwise requires.”).
AEDPA further provides for relief if an adjudication “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)(2). The standard of review set forth at § 2254(d)(2) applies when a petitioner “challenges the factual basis for” the state court's “decision rejecting a claim[.]” Burt v. Titlow, 571 U.S. 12, 18 (2013). “[A] state court decision is based on an ‘unreasonable determination of the facts' if the state court's factual findings are ‘objectively unreasonable in light of the evidence presented in the state-court proceeding,' which requires review of whether there was sufficient evidence to support the state court's factual findings.” Dennis, 834 F.3d at 281 (quoting § 2254(d)(2) and citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). “‘[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.' ” Titlow, 571 U.S. at 18 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)); see also Becker, 28 F.4th at 464 (stating that “close calls -decisions upon which reasonable minds might disagree - are essentially insulated from federal court reversal AEDPA, which requires federal judges to defer to the reasonable state trial court findings . . .). Here, § 2254(e)(1) comes into play, instructing that the state court's determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).
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).. Our 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.
D. Discussion
Davis contends he is entitled to habeas relief because he was subjected to an illegal sentence. Respondents argue that “this is a state law claim, attacking a state court's application and interpretation of state statute, and Petitioner's attempt to recharacterize this issue as a federal claim by baselessly invoking claims that his federal equal protection and due process rights were violated is unavailing.” Ans. at p. 42 (ECF No. 11).
While Davis has challenged his resentence on two prior occasions, on neither occasion did he claim his resentence violated his constitutional rights. As such, the claim as now presented in this federal habeas case has not been fairly presented to the state court and is now procedurally defaulted.
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. This “exhaustion” requirement is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). See also O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). In order to exhaust a claim, a petitioner must “fairly present” it to each level of the state courts. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citing 28 U.S.C. § 2254(b)); O'Sullivan, 526 U.S. at 848. In Pennsylvania, this requirement means that a petitioner in a non-capital case must have presented every federal constitutional claim raised in his habeas petition to the Common Pleas Court and then the Superior Court either on direct or PCRA appeal. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). If a petitioner has failed to properly exhaust the claim and can no longer return to state court to do so, the claim is defaulted in federal habeas corpus under the procedural default doctrine. See, e.g., Coleman, 501 U.S. at 730; O'Sullivan, 526 U.S. at 851-56 (Stevens, J. dissenting) (describing the history of the procedural default doctrine). Accordingly, because Davis can no longer return to state court to present this claim, the claim is now procedurally defaulted.
Federal courts may not consider procedurally defaulted claims unless “the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To show cause, a petitioner must demonstrate some objective factor external to the defense that prevented compliance with the state's procedural requirements. Id. at 753. To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime, McCleskey v. Zant, 499 U.S. 467, 494 (1991), by presenting new evidence of innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995). Davis does not argue cause and prejudice, nor does he argue that he is actually innocent and that failure to review the claim by this Court will constitute a fundamental miscarriage of justice. Consequently, the undersigned submits that the claim is procedurally defaulted and foreclosed from habeas review.
Nevertheless, despite the fact this this claim is procedurally defaulted, the claim is plainly without merit.
Generally, sentencing is a matter of state criminal procedure and does not fall within the purview of federal habeas corpus. Wooten v. Bomar, 361 U.S. 888, 80 S.Ct. 161, 4 L.Ed.2d 122 (1959). As such, a federal court normally will not review a state sentencing determination that falls within the statutory limit, Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984), as the severity of a sentence alone does not provide a basis for habeas relief. Smith v. Wainwright, 664 F.2d 1194 (11th Cir. 1981) (holding that a sentence imposed within the statutory limits cannot be attacked in habeas proceeding). Accord Gleason v. Welborn, 42 F.3d 1107, 1112 (7th Cir. 1994) (internal citation omitted), cert. denied, 514 U.S. 1109, 115 S.Ct. 1961, 131 L.Ed.2d 852 (1995); Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987), cert. denied, 488 U.S. 926, 109 S.Ct. 309, 102 L.Ed.2d 328 (1988); Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986); United States v. Myers, 374 F.2d 707 (3d Cir. 1967). Thus, unless an issue of constitutional dimension is implicated in a sentencing argument, this Court is without power to grant habeas relief. United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (noting that a criminal sentence was not subject to collateral attack unless the sentencing court lacked jurisdiction to impose it or committed a constitutional error that made the sentence or underlying conviction fundamentally unfair). Accord Colon v. Folino, 2008 WL 144212, at *9 (M.D. Pa. Jan. 11, 2008).Fuller v. Dist. Attorney of Fayette Cty., 2008 WL 3539905, at *9 (W.D. Pa. Aug. 13, 2008).
Here, Davis alleges his constitutional rights were violated when the PCRA court resentenced him to a term of imprisonment on Counts 5 and 23, when originally he had been sentenced on these Counts to a sentence of “no further penalty.” It is his burden to establish that his constitutional rights were violated. See Johnson v. Attorney General of Pennsylvania, 2022 WL 526134, *5 (W.D. Pa. Feb. 22, 2022) (citing Turner v. Coleman, 2016 WL 3999837, at *6 (W.D. Pa. July 26, 2016) (citing Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) (“On a petition for a writ of federal habeas corpus, the petitioner bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated.”)). Davis has not met his burden.
First, Davis is not entitled to habeas relief on his equal protection claim. The Equal Protection Clause of the Fourteenth Amendment provides that a state shall not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. 14. As such, the Equal Protection Clause requires that all persons “similarly situated” be treated alike by state actors. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). Davis has not alleged any facts to support a finding that his rights under the Equal Protection Clause were violated by his resentencing.
Nor is Davis entitled to relief on his due process claim, the exact nature of which is unclear. It appears Davis is claiming that his due process rights were violated because his resentence on Claims 5 and 23 was illegal. The record establishes otherwise. As the Superior Court explained,
if a trial court errs in its sentence on one count in a multi-count case, then all sentences for all counts will be vacated so the court can restructure its entire sentencing scheme.... [W]hen a defendant appeals a judgment of sentence, ‘he accepts the risk that the Commonwealth may seek a remand for resentencing thereon if the disposition in the appellate court upsets the original sentencing scheme of the trial court.' [Commonwealth v. Bartug, 732 A.2d 1287 Pa. Super., appeal denied, 561 Pa. 651(Pa. 1999))]. ...
As previously noted, at the resentencing hearing on February 19, 2016, the Commonwealth recognized that the effect of the Alleyne decision was to “disrupt the entire sentencing scheme.” [N.T. Hearing, 2/19/16, at 30.] In addition, [Appellant's] counsel stated, “He's just asking that you reconsider the sentence and you would consider imposing a sentence less than the 22 to 44 years ....” [Id. at 4]. The [c]ourt in this case had constructed a sentencing scheme on 3 counts
involving robbery, aggravated assault, terroristic threats, [REAP], firearms violations and conspiracy. [T]here was no error by the [c]ourt in restricting the total aggregate sentence to a lesser sentence, even though it involved sentences on two counts for which no further penalty had been imposed in the original sentence.
Here, the PCRA court had the authority to vacate the entire original sentence, including those sentences for which the court had original imposed no further penalty, prior to resentencing Appellant. See Bartug, supra.Super. Court Memo., 9/13/2021 (quoting PCRA Court Opinion at 11) (brackets added by Superior Court).
In this case, Davis was sentenced on a multi-count information. As noted by the Superior Court, “when a defendant appeals a judgment of sentence, ‘he accepts the risk that the Commonwealth may seek a remand for resentencing thereon if the disposition in the appellate court upsets the original sentencing scheme of the trial court.” Bartug, 732 A.2d 1287. That is exactly what occurred in this situation. The Supreme Court's decision in Alleyne affected the original sentences on Davis's robbery convictions and, as a result, impacted the entire original sentencing scheme. As a result, the sentencing court vacated Davis's entire original sentence prior resentencing Davis. Davis has not established a violation of his due process rights.
For these reasons, the undersigned recommends that this Petition be denied as the sole claim raised is procedurally defaulted and Davis has provided no grounds for excusing the default. Thus, the claim is foreclosed from habeas review. Alternatively, even if the default was excused, the claim lacks merit.
III. 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). When 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, the undersigned concludes that jurists of reason would not find it debatable that Davis's claim should be denied. For these reasons, it is recommended that a certificate of appealability not be issued.
IV. CONCLUSION
For all of the above reasons, it is respectfully recommended that the instant habeas petition for writ of habeas corpus be denied. It is also recommended that a certificate of appealability be denied.
Any party is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by June 21, 2023, and Respondents, because they are electronically registered parties, must file objections, if any, by June 16, 2023. The parties are cautioned that failure to file timely and specific objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).