Opinion
04-CV-4421 (JG).
February 2, 2005
MARIO PEREZ, Sullivan Correctional Facility, Fallsburg, NY, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Amy Appelbaum, Assistant District Attorney, Attorneys for Respondent.
MEMORANDUM AND ORDER
Mario Perez petitions for a writ of habeas corpus, challenging his convictions in state court. I held oral argument on January 28, 2005, in which Perez participated by telephone. The petition is denied for the reasons set forth below.
BACKGROUND
The government's evidence at trial established that on February 26, 1986, at about 10:00 pm, Perez drove his car up behind Marlon Christie, a sixteen-year-old, who was walking across Central Avenue in Brooklyn. Perez stopped the car, got out, and yelled Christie's name. As soon as Christie turned around, Perez shot him in the chest, and then in the back. Christie died at the scene. Kim Terry, a seventeen-year-old, saw the shooting from a car across the street. Terry knew both Perez and Christie, and identified Perez to the police as the shooter.
Perez was charged with murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. On the verdict sheet given to the jury under the count for second degree murder, the words "Intentional Murder" appeared in parentheses. Defense counsel consented to the submission of this verdict sheet. (Tr. at 362.)
The jury found Perez guilty of second degree murder and second degree weapon possession. Perez was sentenced to concurrent terms of imprisonment of twenty-five years to life for the murder, and five to fifteen years for the weapons possession.
Perez, through counsel, appealed to the Appellate Division, Second Department. Appellate counsel alleged that: (1) Perez's rights to confront witnesses and to due process were violated by (a) direct and indirect bolstering of the eyewitness's testimony, and (b) the introduction of implicit hearsay testimony inculpating Perez; and (2) the prosecutor's remarks during summation violated Perez's right to a fair trial.
The Appellate Division rejected these challenges, and affirmed Perez's conviction on May 22, 1989. People v. Perez, 150 A.D. 2d 733 (2d Dep't 1989). The court found that (1) Perez's claim of implicit bolstering testimony was unpreserved for review; and (2) the admission of the bolstering testimony was erroneous, but did not warrant reversal. Id. The court reasoned that the strength of the identification evidence was so strong — the eyewitness knew Perez for seven years — that there was no issue with respect to the defendant's identity. Id. The court concluded that "[i]n light of the strong evidence of the defendant's identity and the overwhelming evidence of his guilt, we find that there is no significant probability that the jury would have acquitted him had it not been for the improper bolstering testimony." Id. In addition, the Appellate Division found that Perez's other claims were without merit. Id. The Court of Appeals denied Perez's application for leave to appeal on August 16, 1989. People v. Perez, 74 N.Y.2d 816 (1989) (Simons, J.).
On May 14, 2003, Perez moved in the Appellate Division for a writ of error coram nobis, claiming that he had received ineffective assistance of appellate counsel. Perez claimed that appellate counsel was ineffective because she failed to argue that Perez's trial counsel had been ineffective for failing to object to the annotated verdict sheet.
The Appellate Division denied the coram nobis motion by decision and order dated September 8, 2003, finding that Perez "had failed to establish that he was denied effective assistance of appellate counsel." The Court of Appeals denied Perez's application for leave to appeal on December 23, 2003 (Smith, J.).
Perez moved for reconsideration of the Court of Appeals denial of his application for leave to appeal the coram nobis motion. In support of the motion for reconsideration, Perez submitted an affidavit from his trial counsel, Howard H. Weiswasser, concerning Weiswasser's decision to consent to the verdict sheet. Weiswasser, noting his consent in the trial transcript, stated that he had no independent recollection concerning his decision. Further, Weiswasser stated that he could not say with certainty whether he was "aware of the state of the law with regards to the submission of annotated verdict sheets" on February 17, 1987 (the date on the verdict sheet). Finally, Weiswasser stated that "[i]n hindsight, based on the cases decided after February 1987 and the subsequent statutory amendments to CPL § 310.20(2), as there was only a single homicide count charged, it would seem the better course would have been to object to the annotation `Intentional Murder' as it cannot be determined what if any effect it had in the minds of the jurors in reaching their verdict."
N.Y. Crim. Proc. Law § 310.20(2) reads: "[Upon retiring to deliberate, the jurors may take with them:] [a] written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon. Whenever the court submits two or more counts charging a violation of the same section of a law defining an offense, the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to distinguish between the counts charging a violation of the same section of the law." The second sentence of this subsection was added by amendment in 1996.
The Court of Appeals granted Perez's motion for reconsideration, but again denied Perez's application for leave to appeal on February 27, 2004. People v. Perez, 1 N.Y.3d 632 (2004) (Smith, J.)
By pro se motion dated February 16, 2004, Perez moved in New York Supreme Court, Kings County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. Perez argued that his trial counsel was ineffective because he failed to object to the annotated verdict sheet.
The Kings County Supreme Court denied defendant's motion on March 29, 2004. The court held that (1) Perez's claim was procedurally barred because Perez had failed to raise the on-the-record claim on his direct appeal, see N.Y. Crim. Proc. Law § 440.10(2)(c); and (2) Perez received meaningful representation at trial, and his claim of ineffective assistance failed under the standards of both New York and federal law. The court reasoned that: "[t]he fact that Weiswasser consented to the verdict sheet presupposes he wanted the annotation to aid in the jury's deliberation. . . . Since the reason for the consent cannot be recalled by trial counsel we presume it was based on sound trial strategy and did not deprive defendant of a fair trial." (citing Strickland v. Washington, 466 U.S. 668 (1984); People v. Baldi, 54 N.Y.2d 137 (1981)). Further, the court noted that "[a]t the time of this trial the cases discussing the propriety of submitting annotated verdict sheets to the jury had not yet been decided." By decision and order, the Appellate Division denied Perez's application for leave to appeal on May 24, 2004 (Miller, J.).
N.Y. Crim. Pro. Law § 440.10(2)(c) reads, in pertinent part: [the court must deny a motion to vacate a judgment when] [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.
On September 30, 2004, Perez filed the instant petition for a writ of habeas corpus on the grounds that his trial counsel was ineffective for failing to object to the annotated verdict sheet.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
Under this standard, "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. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-521 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
B. Ineffective Assistance of Counsel
Perez contends that his trial counsel was ineffective because he failed to object to the verdict sheet containing the annotation "Intentional Murder" under the charge for murder in the second degree. Perez's claim fails because it is both untimely and without merit.
1. Timeliness
There is a one-year limitations period within which a habeas corpus petition challenging a state conviction must be filed. Ross v. Artuz, 150 F.3d 97, 99 (2d Cir. 1998); 28 U.S.C. § 2244(d)(1). Generally, the limitations period runs from the date on which the state judgment becomes final. Id. § 2244(d)(1)(A). However, for petitioners like Perez, whose judgments became final prior to the enactment of AEDPA, the limitations period expired on April 24, 1997, one year after AEDPA went into effect. Ross, 150 F.3d at 103. Here, Perez did not file his habeas petition until September 30, 2004, more than seven years after the limitations period expired.
Perez contends, however, that his petition is timely because it falls into the exception made for newly recognized, retroactively applicable constitutional rights. See 28 U.S.C. § 2244(d)(1)(C). Specifically, Perez argues that the Supreme Court recognized such a new right in Massaro v. United States, 538 U.S. 500 (2003), in which the Court held that an "ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." Id. at 504.
28 U.S.C. § 2244(d)(1) reads, in pertinent part: "The limitation period shall run from the latest of — . . . (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."
As an initial matter, the constitutional violation that Perez is asserting is ineffective assistance of counsel, which is not a newly recognized constitutional right. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984); cf. Sweet v. Bennett, 353 F.3d 135, 140 (2003) (" Massaro is not a constitutional decision"). More importantly, Massaro has no effect, retroactive or otherwise, on habeas petitions challenging state court convictions. See id. at 140-41 (explaining that Massaro applies to petitions challenging federal judgments under § 2255, and not petitions challenging state court judgments under § 2254: "Nothing in Massaro alters our view that it remains inappropriate and inefficient to allow state defendants to bypass state courts on the substance of state rules, and bring federal habeas challenges without the benefit of state decisions on those state rules.").
Perez's New York State judgment became final prior to the enactment of AEDPA, and thus the limitations period for his habeas petition ended on April 24, 1997. Ross, 150 F.3d at 103. The Supreme Court's decision in Massaro has no effect on the timeliness of his habeas petition. Perez has not established a newly recognized constitutional right that would extend the applicable limitations period, and his habeas petition, filed on September 30, 1994, is untimely.
Perez's contention that his motions for collateral relief in state court filed after the habeas limitations period expired render his petition timely is wrong. While 2244(d)(2) tolls the one-year limitations period while properly filed state collateral attacks are pending, such attacks do not reset the limitations period to zero. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). An alternate rule would, in essence, negate the one-year limitations period for habeas petitions by allowing petitioners to resurrect untimely petitions by simply filing a motion for collateral review in state court.
2. The Merits
In any event, Perez's claim of ineffective assistance of counsel is without merit and does not warrant habeas relief.
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. 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. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984).
Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688-89). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 521 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Perez argues that his trial counsel was ineffective because he failed to object to the annotated verdict sheet. In support, he attaches an affidavit from that counsel, Harold Weiswasser, dated December 31, 2003. Weiswasser states that he has no independent recollection of his thinking at the time concerning whether to object to the verdict sheet. Further, Weiswasser states that "[i]n hindsight, based on the cases decided after February 1987 and the subsequent statutory amendments to CPL § 310.20(2), as there was only a single homicide count charged, it would seem the better course would have been to object to the annotation "Intentional Murder" as it cannot be determined what if any effect it had in the minds of the jurors in reaching their verdict." After filing his habeas petition, Perez filed an Affirmation in Opposition to Motion to Dismiss, attached to which is an affirmation from Weiswasser dated November 18, 2004, in which Weiswasser states that "I cannot, as of today, state or recall any reason why I approved or would have approved the annotated verdict sheet herein as `trial strategy.'"
Weiswasser's affidavits do not lift Perez over Strickland's high hurdles. Under Strickland's first prong, a court assesses the reasonableness of counsel's action as seen from counsel's perspective at the time. Under current New York law, "it is reversible error for a trial court to give the jury a verdict sheet that, in addition to listing the counts, also lists some of the statutory elements of the counts" without the agreement of the parties. People v. Spivey, 81 NY.2d 356, 361-62 (1993). First, this principle, on which Perez relies for his ineffectiveness argument, was not articulated by the New York Court of Appeals until after Perez's trial. See People v. Nimmons, 72 N.Y.2d 830, 830-31 (1988). More importantly, the principle presupposes that there are situations where a defense counsel may agree to annotations of the verdict sheet. Cf. People v. Damiano, 87 N.Y.2d 477, 482-83 (1996) (explaining that Criminal Procedure Law § 310.30 "demands the parties' consent to references to statutory terms or elements on a verdict sheet, for it is trial counsel who are best positioned to assess the usefulness of such references in the deliberative process and/or the prejudice that may inure therefrom."). Under New York law, consenting to an annotated verdict sheet in 1987, or even today, is not deficient lawyering in and of itself.
N.Y. Crim Proc. Law § 310.30 reads, in relevant part: "With the consent of the parties and upon the request of the jury for further instruction with respect to a statute, the court may also give to the jury copies of the text of any statute."
There is no federal right to an unannotated verdict sheet. See Anderson v. Keane, 283 F. Supp. 2d 936, 942 (S.D.N.Y. 2003).
In assessing the reasonableness of Perez's counsel's decision to consent to the annotated verdict sheet, a reviewing court must indulge a strong presumption that the conduct might be considered sound trial strategy. See Strickland, 466 U.S. at 689. Weiswasser's representations that he can no longer recall why he consented, or cannot conceive in hindsight what his trial strategy may have been, does not overcome this presumption of reasonableness. Indeed, Weiswasser explicitly states that his current position that the "better course" may have been to object to the annotation is a position taken "[i]n hindsight, based on the cases decided [after Perez's trial] and . . . subsequent statutory amendments." Such a statement does not suggest that Mr. Weiswasser believes that his performance fell below an objective standard of reasonableness at the time. Even if he did so believe, it would not be determinative of the reasonableness of his decision. I find that under Strickland's highly deferential review, Perez counsel's performance was objectively reasonable under prevailing professional norms, and thus Perez cannot satisfy Strickland's first prong. At the very least, the state court's presumption that Weiswasser's decision "was based on sound trial strategy and did not deprive [Perez] of a fair trial" was not an unreasonable application of federal law.
Perez's ineffectiveness claim also fails Strickland's second prong, that is, that counsel's performance prejudiced the outcome of the proceeding. See Strickland, 466 U.S. at 687-88. Perez has failed to show that, but for the inclusion of the term "Intentional Murder" on the verdict sheet, there would be a reasonable probability that the result of the proceeding would have been different. Among other things, he states in his memorandum of law accompanying his petition that "without the `intentional murder' in parenthesis[,] there is a reasonable probability that the jury could have determined that defendant perceive [sic] the risk of harm and consciously disregarded it (manslaughter in the second degree)." There is no such reasonable probability. I flatly reject the contention that a notation on the verdict sheet signifying what a count charges somehow influences the jury in its decision whether the charge has been proved. Moreover, on the facts of Perez's case, no rational juror could even have considered a manslaughter charge. The only homicide charge he faced was murder in the second degree. This was the only appropriate charge because the evidence was that he drove his car behind the victim, got out of the car, called the victim's name and then shot the victim in the chest and back, killing him. The argument that the annotation on the verdict sheet prevented the jury from considering whether he committed a lesser grade of homicide that was neither charged not supported by the facts is without merit.
In sum, Perez has failed to establish a violation of his Sixth Amendment right to effective counsel under Strickland. At the very least, the state court's determination that Perez did not receive ineffective assistance is not an unreasonable application of clearly established Supreme Court precedent. Accordingly, Perez is not entitled to habeas relief on this claim.
Finally, Perez has requested an evidentiary hearing to determine whether trial counsel was ineffective. In support of this request, Perez relies on cases where a court is either on the fence or leaning towards a finding of ineffectiveness of counsel, and wants to give the assertedly ineffective counsel the opportunity to be heard. See, e.g., Eze v. Senkowski, 321 F.3d 110, 136 (2d Cir. 2003). That is not the case here, and the request for an evidentiary hearing is denied.
C. Perez's Additional Claims
In his opposition papers and at oral argument, Perez makes some additional arguments that are unavailing. First, he seeks relief from the statute of limitations on the ground that he claims to be actually innocent. Assuming arguendo that actual innocence constitutes an exception to AEDPA's limitations period, see Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003) (noting that the court has not determined whether such an exception exists), Perez has made no such showing here. To demonstrate actual innocence, "a petitioner must present `new reliable evidence that was not presented at trial' and `show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.'" Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000) (quoting Schlup v. Delo, 513 U.S. 298, 299, 327-28 (1995); see also Doe v. Menefee, 391 F.3d 147, 161-62 (2d Cir. 2004). Perez has made no such showing here. All he claims in his papers is that, but for the presence of the words "intentional murder" on the verdict sheet, the trial would have "resulted in a verdict of actual innocence." Perez's Aff. in Opp'n to Mot. to Dismiss, at 5. At oral argument, Perez made two new assertions concerning his innocence. First, that Terry (the eyewitness) perjured herself at trial because she wanted Perez to break up with Annette Guzman (the mother of Perez's children) and be her steady boyfriend. According to Perez, Terry told him that if she could not have him, no one else could. The crime thus gave Terry the opportunity to make good her threat by falsely inculpating Perez. Second, Perez stated that he had an alibi for the night in question: he was with Awanda Pacheco (with whom he was also having an affair) in her apartment. Perez stated that Pacheco was unwilling to testify on his behalf at trial because she feared retaliation from Guzman.
Perez has not offered any reliable evidence to support either assertion, nor does he offer any valid reason for failing to make these assertions earlier. Perez states that it was not until very recently, when he was moved to a new facility, that he learned from law-savvy inmates that a prisoner could claim that he was actually innocent. I reject this argument. One does not need to be well-versed in the law to recognize that if there is evidence establishing one's innocence, it should be brought before a court at the earliest opportunity.
Second, Perez argues that the recent case of Crawford v. Washington, 541 U.S. 36 (2004), affords him relief because the testimony of Detective Joseph Butta violated the principle established by Crawford. Butta testified on direct examination that after interviewing Terry (the eyewitness who implicated Perez) and Jean Pierre (who circled the crime scene twice in a Monte Carlo), he arrested Perez. Perez asserts that this testimony amounted to "implicit hearsay," that is, it told the jury that Pierre implicated Perez, thus violating his right to confront Pierre.
This claim fails for three reasons. First, in the factual context of the case, that Butta arrested Perez after speaking to Pierre did not necessarily imply to the jury that Pierre had inculpated Perez. Butta had also spoken to Terry, who informed Butta that she saw Perez murder the victim. In short, Butta was authorized to arrest Perez no matter what Pierre had said. Second, the details of what Pierre actually said to Butta (which in fact implicated Perez) were elicited from Butta by Perez's counsel on cross-examination. The obvious defense strategy was to cast Pierre, who after all was stopped because he was circling the crime scene, as the real murderer, who had falsely implicated Perez.
Third, the Second Circuit has held that Crawford is not retroactively applicable to claims on collateral review. See Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004).
At oral argument, Perez stated that he was withdrawing his Crawford claim but maintaining a claim of a Confrontation Clause violation. For the reasons stated above, the Confrontation Clause claim, whether grounded in Crawford or not, fails.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Perez has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.So Ordered.