United States District Court, Eastern District of Pennsylvania
June 27, 2000
BEVERLY LANGSTON, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Anita B. Brody, District Judge.
Beverly Langston ("Langston") brings this motion pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct her sentence. For
the following reasons, I will deny Langston's motion.
On May 28, 1997, Langston was indicted by a federal grand jury
on charges of conspiracy to distribute and possession with intent
to distribute cocaine base in violation of 21 U.S.C. § 846 and
distribution of cocaine base in violation of 21 U.S.C. § 841
(a)(1) and 18 U.S.C. § 2. On June 12, 1997, Langston entered a
plea of not guilty to the counts in which she was charged. On
July 31, 1997, Magistrate Judge Smith ordered that Langston's
conditions of bail include drug counseling and/or treatment.
On September 10, 1997, the government filed a motion for a
psychiatric examination of Langston. On September 12, 1997, Judge
Gawthrop ordered that Langston undergo a prompt psychiatric
examination to determine if she was competent to understand the
nature and consequences of the proceedings against her and to
assist in her defense. On the same day, Judge Gawthrop severed
Langston's case from her co-defendants' cases. On September 25,
1997, pursuant to the Court's order that Langston undergo a
competency examination, Russell E. Phillips, M.D., conducted a
psychiatric evaluation of Langston. In an October 2, 1997 report,
Dr. Phillips opined that "Ms. Langston is competent to stand
trial. She understands the charges against her, understands the
consequences of conviction on these charges, and is capable of
assisting her attorney in her own defense."
On November 5, 1997, Langston was placed at Eagleville
Hospital, a residential drug treatment program, and she was
discharged on December 12, 1997. After her discharge from
Eagleville Hospital, Langston was placed in a halfway house.
Judge Gawthrop's order that Langston was to remain at the halfway
house for a minimum of ninety days, Langston left the halfway
house after one night. On February 6, 1998, Langston's trial
counsel, Doloras Troiani, Esq. ("Troiani"), petitioned the court
to withdraw as counsel. On the same day, after a conference call,
Judge Gawthrop ordered that Troiani's motion to withdraw was
On February 10, 1998, the government requested a second
psychiatric examination of Langston and on February 11, 1998,
Judge Gawthrop ordered a second examination. Pursuant to the
Court's order, on February 13, 1998, John S. O'Brien II, M.D.,
J.D., completed a psychiatric and substance abuse evaluation of
Langston. In a February 16, 1998 report, Dr. O'Brien, concluded
that Langston "is able to understand the nature and object of the
proceedings against her and to participate and assist in her own
defense. It is therefore my opinion that she is currently
competent to stand trial."
Prior to jury selection, the government's counsel noted on the
record that Langston was found competent after a psychiatric
evaluation. Additionally, government's counsel confirmed that
Troiani believed her client was prepared to proceed, Troiani was
able to consult with Langston and Langston was able to assist in
her own defense. See Tr. Feb. 18, 1998 at 3.
On February 23, 1998, a jury found Langston guilty on both
counts (conspiracy to distribute and possession with intent to
distribute cocaine base in violation of 21 U.S.C. § 846 and
distribution of cocaine base in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2). On May 21, 1998, Langston was
sentenced by Judge Gawthrop to 100 months imprisonment, five
years of supervised release, and a special assessment of $200.00.
On June 1, 1998, Langston filed a notice of appeal. On January
11, 1999, the Third Circuit affirmed the judgment of the district
court. On March 8, 1999, Langston filed a pro se motion for a
new trial pursuant to Federal Rule of Criminal Procedure 33.
After the untimely death of Judge Gawthrop, this case was
reassigned to my docket. On November 16, 1999, I appointed
counsel to represent Langston.
On February 25, 2000, I held oral argument on Langston's motion
for a new trial with appointed counsel for Langston and counsel
for the government present. At oral argument the parties agreed,
on the record, that Langston's pro se motion for a new trial
would be considered a § 2255 motion to vacate, set aside, or
correct her sentence. See Tr. at 3. Langston's counsel argued
that Langston's prior counsel was ineffective as she did not
request a full competency hearing before trial and Langston was
denied due process because of this failure to conduct a pre-trial
competency hearing. See Tr. at 4-6. Langston's counsel argued
only the issue regarding Langston's competency and left the court
to evaluate Langston's additional claims, raised in her pro se
motion for a new trial, on the papers filed by Langston and the
government. See Tr. at 4. On April 10, 2000, I ordered the
parties to submit additional briefing.
Section 2255 allows federal courts to vacate, set aside or
correct a sentence of a prisoner:
in custody under sentence of a court established by
Act of Congress claiming the right to be released
upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is
otherwise subject to collateral attack . . .
28 U.S.C. § 2255.
Langston alleges that she is entitled to relief pursuant to §
2255 because: (A)(1)
her substantive due process rights were violated because she was
incompetent to stand trial, (2) her procedural due process rights
were violated because the district court failed to conduct a full
competency hearing, and (3) she had ineffective assistance of
counsel because her counsel failed to request a full competency
hearing pursuant to 18 U.S.C. § 4241; (B) counsel was ineffective
for a variety of additional reasons (including failure to:
subpoena certain witnesses, obtain discovery, file discovery
motions, file pretrial motions, obtain all transcripts of
testimony before the grand jury, and file an appeal); and (C) her
due process rights were violated because the government withheld
evidence in violation of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). I will address each of
Langston's grounds for relief.
Langston's first set of claims and the only claims asserted by
her counsel involve her competency. Langston states in her pro
se motion that during and preceding the trial she was "heavily
abus[ing] drugs and alcohol." Langston Mot. at 10-11.
1. Substantive due process
Langston asserts that her substantive due process rights were
violated because she was incompetent to stand trial.*fn2 The
conviction of a legally incompetent defendant violates due
process. See Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836,
15 L.Ed.2d 815 (1966); see also United States v. Leggett,
162 F.3d 237, 241 (3rd Cir. 1998), cert. denied, ___ U.S. ___, 120
S.Ct. 167, 145 L.Ed.2d 141 (1999). A defendant is competent to
stand trial if "(1) the defendant has the present ability to
consult with [defense counsel] with a reasonable degree of
rational understanding and (2) the defendant has a rational as
well as factual understanding of the proceedings." Leggett, 162
F.3d at 242 (internal quotations omitted).
In general, "a person seeking to vacate his conviction bears
the burden of proof upon each ground presented for relief."
Walden v. United States, 418 F. Supp. 386, 388 (E.D.Pa. 1976);
see also United States v. Abbott, 975 F. Supp. 703, 705 (E.D.Pa.
1997); Cf. United States v. Hollis, 569 F.2d 199, 205 (3rd Cir.
1977) (explaining that "in habeas cases the general rule is that
the petitioner himself bears the burden of proving that his
conviction is illegal."). In cases raising mental incompetency,
however, the burden of proof may be on the government. See
Hollis, 569 F.2d at 207 (finding an exception to the general
rule that the burden is on the petitioner because "of the
inconsistency of expecting a defendant like Hollis who asserts
that he is incompetent to demonstrate that he does suffer from
mental incapacity, and since the issue was raised but was not
litigated prior to conviction through no fault of the accused, it
would not be appropriate for the burden of proof to be placed
upon Hollis." But noting that "[t]he exception adduced here . . .
is designedly a limited one confined to the facts of this
case."); but see Martin v. United States, 463 F.2d 220, 221
(3rd Cir. 1972) (reasoning that "[t]he burden rested on the
petitioner to establish by evidence his asserted mental
incompetence at the time of trial and sentencing."); United
States v. Riddick, 15 F. Supp.2d 673, 678 (E.D.Pa. 1998) (Van
Antwerpen, J.) (explaining that while petitioner has a
substantive due process
right not to be tried and convicted while incompetent, "it is up
to him to prove by the preponderance of the evidence that he was
incompetent at the time of trial.") (citations omitted); Kramm
v. United States, No. 95-CV-5280, 1996 WL 705962, at *3 (E.D.Pa.
Dec.2, 1996) (Huyett, J.) (holding that a defendant raising
actual incompetency in a § 2255 motion is entitled to an
evidentiary hearing if he or she alleges facts that, if proved at
the hearing, would entitle him or her to relief) (citation
omitted). I need not resolve the issue of which party bears the
burden of proof because even if the government has the burden,
Langston's motion fails. The evidence conclusively shows Langston
was competent to stand trial.
Langston has produced no evidence that she was incompetent at
the time of the trial. Langston relies on the bald allegation
that because she was abusing drugs and alcohol at the time of
trial she was incompetent to stand trial. The government, on the
other hand, has come forward with evidence that Langston was
fully competent at the time of trial. Prior to trial, Judge
Gawthrop ordered two psychiatric examinations of Langston
pursuant to 18 U.S.C. § 4241(b).*fn3 One competency examination
was held on September 25, 1997 and a second evaluation was
conducted almost five months later on February 13, 1998. The
psychiatric examinations were conducted by two separate
psychiatrists and both confirmed that Langston was competent to
stand trial. Additionally, the second psychiatric evaluation was
conducted just six days before trial commenced. On February 18,
1998, before Langston's trial began, the government's counsel
stated on the record that she discussed this matter with
Langston's counsel, Troiani, and Troiani "believes that Miss
Langston is ready to proceed." Tr. Feb. 18, 1998 at 3. The
government's counsel then confirmed on the record that Troiani
"has been able to consult with [Langston] and [Langston is] ready
to assist during the course of the trial." Id.
If a defendant's mere allegation that she was incompetent to
stand trial were enough to warrant an evidentiary hearing, an
evidentiary hearing would be required in every § 2255 case in
which competency was raised.*fn4 Langston fails to point to any
evidence in the record demonstrating that she was incompetent at
the time of the trial. Therefore, I will deny Langston's claim
that her substantive due process rights were violated without an
2. Procedural due process
Next, Langston asserts that her procedural due process rights
were violated because the district court failed to conduct a full
competency hearing, commonly referred to as a Pate
hearing.*fn5 See Pate, 383 U.S. at 385, 86 S.Ct. 836.
Langston fails to present enough evidence to warrant an
evidentiary hearing regarding the court's failure to conduct a
Pate hearing. Section 4241(a) of Title 18 provides:
At any time after the commencement of a prosecution
for an offense and prior to the sentencing of the
defendant, the defendant or the attorney for the
Government may file a motion for a hearing to
determine the mental competency of the defendant. The
court shall grant the motion, or shall order such a
hearing on its own motion, if there is reasonable
cause to believe that the defendant may presently be
suffering from a mental disease or defect rendering
him mentally incompetent to the extent that he is
unable to understand the nature and consequences of
the proceedings against him or to assist properly in
18 U.S.C. § 4241(a). In Leggett, the Third Circuit analyzed the
application of 18 U.S.C. § 4241(a). The Third Circuit noted that
"[i]f neither the defendant nor the government moves for such a
[competency] hearing, the trial court may do so on its own motion
. . . To do so, however, the trial court must have `reasonable
cause' to believe that the defendant is `presently' suffering
from an impairment resulting in mental incompetency." Leggett,
162 F.3d at 241. The Third Circuit reasoned that "[t]here is no
predetermined formula for making a finding of reasonable cause"
necessitating a competency hearing. Id. at 242. The Leggett
court explained that, "[a] court must simply look at the unique
circumstances of the case and decide whether the defendant (1)
has the capacity to assist in her or his own defense and (2)
comprehends the nature and possible consequences of trial. If
either prong is not met, a court has reasonable cause to order a
competency hearing." Id.
Leggett was a direct appeal and therefore, did not address
the petitioner's burden of proof on collateral attack.*fn6 As
stated previously, in § 2255 cases, the burden is generally on
the petitioner to prove her conviction was illegal. Cf. Medina
v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995) (in a habeas
corpus case the court held that "[t]o prevail on the procedural
claim, a petitioner must establish that the state trial judge
ignored facts raising a bona fide doubt regarding the
petitioner's competency to stand trial . . .") (internal
quotations omitted); James v. Gibson, 211 F.3d 543, 551 (10th
Cir. 2000) (explaining in a habeas corpus case that "[i]n order
to prevail on a procedural competency claim, a petitioner must
establish a bona fide doubt as to his competency at the time of
trial.") (internal quotations omitted). Even if the burden was on
the government to prove that Judge Gawthrop did not have
"reasonable cause" to believe that Langston was presently
suffering from an impairment resulting in mental incompetency,
the government would prevail.
As discussed above, two psychiatric evaluations confirmed that
Langston was competent to stand trial and the government
confirmed on the record that counsel agreed that Langston was
competent to stand trial. Thus, the trial judge did not have
cause to conduct a competency hearing and Langston's claim will
be denied without an evidentiary hearing.
3. Ineffective assistance of counsel
Langston further contends that her trial counsel's failure to
move for a competency hearing amounts to ineffective assistance
of counsel. In United States v. Dawson, 857 F.2d 923 (3rd Cir.
1988), the Third Circuit established criteria for determining
whether a hearing should be held on a claim for ineffective
assistance of counsel raised in a § 2255 motion. See id. at
927-28; see also United States v. Simms, Nos. Crim. 92-671-3,
Civ.A. 97-2981, 2000 WL 190572, at * 6 (E.D.Pa. Feb.3, 2000). In
Dawson, the Third Circuit reasoned that:
First, we must determine whether the district court
considered as true all appellant's
nonfrivolous factual claims. This step requires that
we review whether the district court properly found
certain allegations frivolous. Second, we must
determine whether, on the existing record, those
claims that are nonfrivolous conclusively fail to
show ineffective assistance of counsel. To evaluate
claims under this second step, we must turn to both
prongs of the Strickland test. If a nonfrivolous
claim clearly fails to demonstrate either deficiency
of counsel's performance or prejudice to the
defendant, then the claim does not merit a hearing.
857 F.2d at 927-28. The Supreme Court in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
set forth the standard for a finding of ineffective assistance of
counsel. The Strickland analysis consists of two separate
parts, both of which must be satisfied in order to find
ineffective assistance of counsel: (1) trial counsel's
representation must fall below an objective standard of
reasonableness; and (2) a reasonable probability must exist that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different. See id. at 687-88, 694,
104 S.Ct. 2052. In order to satisfy the second Strickland
prong, the court must assess whether "there is a reasonable
probability that . . . [the petitioner] would have been found
incompetent to stand trial if not for the deficient performance
of his [or her] attorney." Hull v. Kyler, 190 F.3d 88, 106 (3rd
Langston's assertion that her attorney was ineffective for
failing to request a competency hearing is not frivolous.
Nevertheless, a reasonable probability does not exist that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different. Even if counsel had moved for a
competency hearing a reasonable probability does not exist that
Langston would have been found incompetent to stand trial. As
discussed above, Langston had two psychiatric evaluations before
her trial began and both psychiatric reports concluded that she
was competent to stand trial. Therefore, I find that the second
prong of Strickland is dispositive here and on the record
before me Langston's claim conclusively fails to show ineffective
assistance of counsel.
B. Additional ineffective assistance of counsel claims
Langston's additional claims of ineffective assistance of
counsel, raised in her pro se motion for a new trial, do not
meet the threshold requirement of nonfrivolous factual claims.
"It is well settled that conclusory allegations are insufficient
to entitle a petitioner to relief under § 2255." See Sepulveda
v. United States, 69 F. Supp.2d 633, 639-40 (D.N.J. 1999) (citing
Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52
L.Ed.2d 136 (1977); Machibroda v. United States, 368 U.S. 487,
495-96, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Zettlemoyer v.
Fulcomer, 923 F.2d 284, 298 (3rd Cir. 1991); United States v.
Dawson, 857 F.2d 923, 928 (3rd Cir. 1988)). For example, in
Dawson, the Third Circuit held that "[t]he district court
correctly declined to consider the unelaborated statement that
[an alleged witness] saw [a witness against defendant]
`manufacture evidence.' Appellant has yet to indicate what the
evidence was, much less how it was being `manufactured.'"
Dawson, 857 F.2d at 928. Therefore, Langston's failure to
provide factual support for her allegations provides grounds to
dismiss these claims.
Langston asserts that her trial counsel failed to: subpoena
certain witnesses, obtain discovery, file discovery motions, file
pretrial motions, obtain all transcripts of testimony before the
grand jury, and file an appeal. Langston contends that had she
been aware of her rights at the time of her trial she "would have
insisted counsel subpoena Tamika Woods into court and others who
would have substantiated" her defense. Langston Mot. at 14.
Langston claims that Tamika Woods and others would have
a) Tamika Woods was in the apartment when the bust
b) Tamika Woods had a person; [sic] (sexual)
relationship with James Mackie
c) Tamika Woods and [Langston] look similar in
d) Tamika Woods routinely "worked the door" because
it was a known fact that Mackie did not trust Lanston
[sic] or her drug habit with his money or "product"
as he testified at Emma Mackie's trial.
Id. Langston also asserts that she "did not know that she had a
reasonable right to discovery. Now, after trial, [Langston]
realizes the she had not received any witness statements or
police reports . . .". Id. Langston states that "[c]ounsel did
not inform [her] that she had the ability to subpoena witnesses
(Tamika Woods) and abandoned defendant, filing a frivolous
Anders v. California [brief] . . .". Id. at 23.
The government's response to Langston's motion for a new trial
states in part that:
Despite [Langston's] claims, police reports,
investigative reports, arrest records and witness
statements were produced in discovery. While Langston
claims that she did not receive police and
investigative reports, these reports, in fact, were
relied upon by defense counsel during the
cross-examination of witnesses. Defense counsel
conducted substantial cross-examination relating to
the criminal records of the cooperating defendants,
James Mackie and James Mason. Prior statements,
including testimony in the proceedings in U.S. v.
Emma Mackie, Crim. No. 97-236-4, were also available
to the defense.
Gov't Resp. at 2-3. The government attaches defense counsel's
request for discovery in the form of a letter dated May 5, 1997
from Troiani to the Assistant United States Attorney. See Gov't
Supplemental Resp. at 2, Ex. A. Additionally, the government
attaches letters from the Assistant United States Attorney to
Troiani indicating that various discovery was enclosed. See id.
at Ex. B E. For example, a letter to Troiani from the Assistant
United States Attorney, dated June 19, 1997, states in part that
"[p]ursuant to Rule 16 of the Federal Rules of Criminal
Procedure, the government is providing you with copies of the
following documents and additional information [followed by a
list of documents]." Id. at Ex. B. Additionally, the government
provides copies of portions of the transcript from Langston's
trial in which defense counsel made use of transcripts of the
testimony in the separate trial of Langston's co-defendant, Emma
Mackie. See id. at 2-3. The government also responds to
Langston's assertion that her defense of mistaken identity was
not presented to the jury. The government cites portions of the
transcript where Troiani illicited testimony in support of
Langston's defense that Tamika Wood's sold illicit drugs to the
undercover agent not Langston. For example, one of Langston's
daughters testified that Tamika Woods and her mother were like
sisters and that they looked alike and styled their hair in a
similar manner. See id. at 4. Moreover, defense counsel knew
that Langston had met with the government in an off-the record
proffer and that the proffer agreement had been signed. See id.
Based upon the terms of the proffer, Langston's statements were
admissible if representations were made during the trial that
were inconsistent with her proffer. See id. at 5.
Aside from conclusory allegations, Langston provides no
evidence that her trial counsel, Troiani, failed to subpoena
certain witnesses, obtain discovery, file discovery motions, file
pretrial motions, obtain transcripts of testimony before the
grand jury, or file an appeal. As the government's statement
above indicates, discovery was produced by the government for
Langston's defense. Even affording the necessary deference to
Langston's pro se submission, she still fails to set forth a
claim of ineffective assistance of counsel. See Royce v. Hahn,
151 F.3d 116, 118 (3d Cir. 1998) (citing United States ex rel.
Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969)
(petition prepared by a prisoner may be inartfully drawn and
should be read "with a measure
of tolerance")). For example, Langston's assertion that Troiani
submitted an Anders brief improperly is patently incorrect.
After filing a notice of appeal, Troiani submitted an Anders
brief to the Third Circuit. See Anders v. California,
386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (explaining that
if counsel finds his client's appeal "to be wholly frivolous,
after a conscientious examination of it, he should so advise the
court and request permission to withdraw."). The Third Circuit,
in an unpublished decision, affirmed Langston's conviction and
granted Troiani's Anders motion. See United States v.
Langston, No. 98-1461 at 5 (3rd Cir. Dec.18, 1998). The Third
Circuit reasoned that "[p]ursuant to Anders, we have conducted
an independent examination of the record to determine whether it
presents any issues that would justify further review. We agree
with counsel that it does not. Accordingly, we shall grant
counsel's motion and affirm the district court's judgment."
Langston, No. 98-1461 at 5. Additionally, even if Troiani
failed to subpoena certain witnesses, to obtain certain discovery
or to file motions, Langston provided no evidence that but for
Troiani's deficiencies the result of Langston's trial would have
been different. Because Langston's claims conclusively fail to
show ineffective assistance of counsel, I will deny her motion
without an evidentiary hearing.
C. Brady violation
Langston also claims that the government failed to turn over
evidence to her in violation of Brady v. Maryland. The Supreme
Court in Brady held that "the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. Recently,
the Supreme Court explained that "[t]here are three components of
a true Brady violation: The evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it
is impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct.
1936, 144 L.Ed.2d 286 (1999).
Here, Langston asserts that she "did not have any discovery
from which to build a proper defense because she received
absolutely no discovery." Langston Mot. at 25. Langston claims
that she was:
interested in the police report filed by Officer
Crystal Spann and the physical description noted of
the person she bought cocaine from. [Langston] was
also interested in the police reports filed by
officers in charge of the warrant . . . and why
officers . . . only arrested Langston, James Mackie,
James Mason and Emma Mackie; when Tamika Woods and
another unidentified adult female were allowed to go
Id. at 23-24. Additionally, Langston contends that "[a]t the
very least, the Brady analysis applies because of material
evidence that was exculpatory, was in the possession of
government agents and agencies involved in the prosecution, was
not disclosed and was in fact, buried." Id. at 26. In
conclusion, Langston requests an evidentiary hearing.
The government responds that discovery was produced. The
government notes that "police reports, investigative reports,
arrest records and witness statements were produced in discovery.
. . . [and] these reports . . . were relied upon by defense
counsel during cross-examination of government witnesses. Defense
counsel conducted substantial cross-examination relating to the
criminal records of the cooperating defendants . . .". Gov't
Resp. at 2-3. Langston provides no support for her assertion that
the government failed to produce exculpatory evidence. Aside from
the conclusory allegations above, Langston fails to demonstrate
that the relevant evidence at issue was favorable to her, that
evidence was suppressed by the government or that prejudice must
have ensued. Therefore, I find that Langston has failed
to demonstrate that a Brady violation exists and I will dismiss
this claim without an evidentiary hearing.
For all of the foregoing reasons, I will deny Langston's § 2255
motion. An appropriate order follows.
AND NOW, this 27th day of June, 2000, I ORDER that Beverly
Langston's motion, pursuant to 28 U.S.C. § 2255, to vacate, set
aside or correct her sentence, (docket entry # 146), filed as a
motion for a new trial, (docket entry # 135) is DENIED and
DISMISSED without an evidentiary hearing.
A certificate of appealability is denied for the reasons stated
in the foregoing Memorandum. Petitioner has not made a
substantial showing of the denial of a constitutional right.
See 28 U.S.C. § 2253(c)(2).