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WRIGHT v. VAUGHN

United States District Court, E.D. Pennsylvania


July 26, 2004.

ANDRE WRIGHT Petitioner,
v.
DONALD VAUGHN, THE DISTRICT ATTORNEY FOR THE COUNTY OF PHILADELPHIA THE ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA Respondents.

The opinion of the court was delivered by: JAN DuBOIS, District Judge

MEMORANDUM

Currently before the Court is a counseled petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by petitioner, Andre Wright, who is incarcerated in the State Correctional Institution at Graterford, Pennsylvania ("SCI Graterford"). For the reasons set forth below, the petition is denied and dismissed without an evidentiary hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

  In 1981 petitioner was convicted in the Philadelphia Court of Common Pleas of murder in the second degree, robbery, criminal conspiracy and possession of an instrument of crime. These charges arose out of the robbery and murder of Maurice Wilson by petitioner and his co-defendants Mark Garrick and Eughenia Jones.*fn1 Post-trial motions were denied on March 15, 1983. On that date the court sentenced petitioner to a mandatory term of life imprisonment without parole.

  On July 12, 1985, the Superior Court vacated petitioner's robbery conviction on the ground that it merged with the murder in the second degree conviction, but affirmed the judgment of sentence with respect to the other charges. Commonwealth v. Wright, 501 A.2d 294 (Pa. Super. 1985). A petition for allowance of appeal to the Supreme Court of Pennsylvania was denied on September 25, 1986. Commonwealth v. Wright, 966 E.D. Alloc. Dkt. 1985.

  Petitioner filed a Writ of Habeas Corpus in the United States District Court for the Eastern District of Pennsylvania on October 1, 1986. By leave of court, this petition was withdrawn without prejudice on February 10, 1987 to allow for exhaustion of state remedies.

  On May 15, 1989, petitioner filed a pro se petition for collateral relief pursuant to the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541, et seq., ("PCRA"). The PCRA court appointed counsel and held an evidentiary hearing on June 30, 1997. At that hearing, the court heard testimony from two witnesses, Joanne Turner and Baseemah Henry, who had not been called at petitioner's trial. Petitioner argued that the failure to call these witnesses at trial amounted to ineffective assistance of counsel. Ms. Turner, offered as an alibi witness, testified at the PCRA hearing that petitioner had been with her continuously from the afternoon of July 7, 1995, through noon the following day, well after the murder of the decedent. (N.T. 6/26/96, pp. 8-43). Ms. Henry's testimony was offered in support of defendant's theory that Esther Jones, a Commonwealth witness, was a drug dealer who stood to take over the decedent's drug business upon his death and, as a result, was unwilling to identify the true perpetrator(s) for fear of retaliation. At the hearing Ms. Henry explained that she was a drug user who had purchased drugs on numerous occasions from Esther Jones. (N.T. 6/26/96, pp. 46-49, 57-58).

  Petitioner filed the present Amended Petition for a Writ of Habeas Corpus on July 26, 2000 ("Amended Petition"). The Amended Petition contains three categories of alleged constitutional violations: (1) Sixth Amendment Confrontation Clause and Fourteenth Amendment Due Process violations arising from trial court evidentiary rulings on defense counsel's ability to question witnesses about the motives of others, especially Esther Jones, to kill the decedent; (2) violations of petitioner's Fourteenth Amendment Due Process rights arising from prosecutorial misconduct; and (3) violations of petitioner's constitutional right to effective assistance of counsel.*fn2 In addition, petitioner argues that all procedurally defaulted claims should be considered under the cause and prejudice and actual innocence doctrines. Murray v. Carrier, 477 U.S. 478 (1986).

  The matter was referred to Magistrate Judge Charles B. Smith for a report and recommendation. Magistrate Judge Smith issued a Report and Recommendation on February 25, 2003, recommending that petitioner's claims be denied. Petitioner filed Objections to the Report and Recommendation on February 28, 2003.

  Petitioner asserts eight objections to the Report and Recommendation: two objections relate to petitioner's Confrontation Clause and Due Process claims; one objection relates to his prosecutorial misconduct claim; four objections relate to his ineffective assistance of counsel claim (both as a substantive claim and as an excuse to the procedural default bar under the cause and prejudice doctrine) and one objection addresses the actual innocence exception as an excuse to the procedural default bar. The Court writes at this time to address these objections.

  I. STANDARD OF REVIEW

  The Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 ("ADEPA"), circumscribes a federal habeas court's review of a state court conviction. Section 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
  As the Court explained in Lockyer v. Andrande, 538 U.S. 63, 70-71 (2003), "clearly established Federal law" under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Id.; Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is contrary to or an unreasonable application of federal law if the state court applies a rule that contradicts the governing law set forth in Supreme Court cases 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. Lockyer, 538 at 71; Williams v. Taylor, 529 U.S. at 405-406.

  "[T]he unreasonable determination clause applies most readily to situations where petitioner challenges the state court's findings based entirely on the state record. Such a challenge may be based on the claim that the finding is unsupported by sufficient evidence, that the process employed by the state court is defective, or that no finding was made by the state court at all." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (citations ommitted).

  Pursuant to 28 U.S.C.A. § 636(b)(1)(C) the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate."

  II. DISCUSSION

  A. CONFRONTATION CLAUSE AND DUE PROCESS CLAIMS (OBJECTIONS ONE AND TWO)

  In the Amended Petition, Wright asserts a violation of the Sixth Amendment arising from the state trial court's claimed denial of the opportunity to cross-examine Commonwealth witnesses Esther Jones and Earlene Gates (1) concerning Esther Jones motive to kill the decedent based on petitioner's argument that she stood to take over the decedent's drug business and (2) about rivalries between decedent, his customers and other drug dealers and their motives to kill the decedent.*fn3 As the Magistrate Judge correctly concluded, in one instance the trial court took the legally erroneous position that the motive and opportunity of individuals other than the defendant to kill the decedent were not relevant.*fn4 (N.T. 10/16/81, pp. 120-123). However, reviewing this issue on direct appeal, the state court found that the trial judge had permitted extensive inquiry into Jones' and decedent's drug history and concluded that the trial court's limitations on certain lines of inquiry did not affect petitioner's case.*fn5 The Magistrate Judge in the Report and Recommendation determined this ruling was neither contrary to nor an unreasonable application of federal law. Report and Recommendation 37. This Court agrees with the recommendation of the Magistrate Judge's on this issue.

  Petitioner raises two objections to the Report and Recommendation that are distinct from the underlying arguments raised in the Amended Petition on this issue. In his first objection, petitioner faults the Magistrate Judge for not addressing the "undeniable fact" that the "limited cross-examination permitted by the trial court was sufficient only to support an inference that Jones could have had a motive to kill" the decedent and that the "cross-examination excluded, by contrast, would have much more strongly and directly established that fact." Obj. at 32. The Court rejects this argument.

  As the Magistrate Judge noted, the Sixth Amendment does not guarantee "cross-examination that is effective in whatever way and to whatever extent the defense might wish." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (quotation ommitted); United States v. McGlory, 968 F.2d 309 (3d Cir.), cert. denied, 506 U.S. 956 (1992). Under federal law, the scope and extent of cross-examination is within the sound discretion of the trial judge, United States v. Rockwell, 781 F.2d 985, 988 (3d Cir. 1986). Federal law authorizes the trial court to limit defense counsel's cross-examination, "based on concerns a about, among other things, harassment, prejudice, confusion of the issues, witness' safety, or interrogation that is repetitive, or only marginally relevant." Van Ardsdall, 475 U.S. at 679. The Magistrate Judge correctly concluded that the ruling of the trial court on this issue was not contrary to nor an unreasonable application of federal law.

  In his second objection, petitioner argues that the Magistrate Judge dismissed petitioner's confrontation clause claims "based on a belief that the trial judge enjoyed discretion to avoid a "sub-trial" on the issue of motive. Obj. at 36. Petitioner asserts that "constitutional jurisprudence" requires admission of "evidence concerning the motives of persons other than the defendant to have committed the crime charged." Id. The Court disagrees.

  The Constitution does not require courts to admit motive evidence of persons other than the defendants as petitioner asserts. Under both Pennsylvania and federal law, evidence showing the commission of a crime by someone other than defendant is admissible. Commonwealth v. Chamberlain, 731 A.2d 593, 597 (Pa. 1999); Commonwealth v. McGowan, 635 A.2d 113, 115 ( Pa. 1993); see also, United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir. 1996) ("[f]undamental standards of relevancy . . . require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.") (quotations ommitted). However, under federal law evidence as to the motives of others, like all relevant evidence, "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Civ.Proc. 403. Thus, action by a trial judge to avoid a "sub-trial on the issue of motive" of others is neither contrary to nor an unreasonable application of Federal Rule of Evidence 403 and related case law. The Magistrate Judge correctly concluded that courts have the discretion to avoid a "sub-trial" on the motive of others to kill a decedent.

  B. PROSECUTORIAL MISCONDUCT CLAIMS (OBJECTION THREE)

  In the Amended Petition, Wright argues that "his entire trial was infected with pervasive misconduct on the part of the prosecutor." Obj. at 37. Petitioner raised some but not all of these instances of misconduct in state court. The Magistrate Judge considered only those instances of misconduct that had been exhausted and were, therefore, not procedurally defaulted.*fn6 The Court agrees with the report and recommendation as to these issues.

  In his third objection, petitioner argues that the Magistrate Judge should have addressed all instances of prosecutorial misconduct, including those claims that were procedurally defaulted, in determining whether the prosecutor's actions violated the Due Process Clause. In support of this argument, petitioner cites the Third Circuit decision in Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001) for the rule that "the reviewing court must examine the prosecutor's offensive actions in context and in light of the entire trial . . ."

  Petitioner misunderstands the law. In Moore, the Third Circuit only addressed those instances of prosecutorial misconduct that had been properly exhausted in state court. Moore, 255 F.3d at 103 n. 7. It did not adopt an exception to the exhaustion requirement for prosecutorial misconduct claims. Courts may only consider those instances of alleged prosecutorial misconduct in "light of the entire trial" that are properly presented. The Magistrate Judge addressed this issue and cited the relevant portion of the Moore opinion. Report and Recommendation at 13 n. 6, 69. Pursuant to Moore, the Magistrate Judge properly considered only those instances of prosecutorial misconduct that were exhausted in state court.

  C. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS (OBJECTIONS FOUR, FIVE, SIX AND SEVEN)

  In the Amended Petition petitioner raises four claims of ineffective assistance of counsel both as substantive claims and to excuse procedural default: (1) trial counsel was ineffective for failing to call Joanne Turner as a witness at trial (the "Turner claim"); (2) post-trial/appellate counsel was ineffective for failing to properly present the Turner claim on direct appeal; (3) trial counsel was ineffective for failing to call Debra Baseemah Henry as a witness at trial (the "Henry claim"); and (4) post-trial/appellate counsel was ineffective for failing to raise the Henry claim on direct appeal and in the PCRA proceedings. Petitioner raised these claims at various stages in state court proceedings prior to filing the Amended Petition. The Magistrate Judge in the Report and Recommendation addressed each claim in its proper context. Without repeating the long procedural history of these claims, the Court will address the four objections raised by petitioner.

  Before addressing petitioner's three specific objections to the Report and Recommendation, objections five, six and seven, the Court will turn to a general objection, the petitioner's fourth objection, that stems from his confusion about the procedural history of this case. Petitioner argues that his ineffective assistance of counsel claims have "never been heard on the merits" because Ms. Turner and Ms. Henry did not testify when petitioner's claims were on direct appeal Obj. at 68. As described above, both the Turner and Henry claims were procedurally defaulted but for different reasons. The Turner claim was rejected on direct appeal and the Henry claim was deemed waived by the PCRA Court because it was not raised on direct appeal, 42 Pa.C.S.A. § 9544(d).*fn7 Report and Recommendation at 15. Moreover, notwithstanding the fact that both claims were procedurally defaulted, both Ms. Turner and Ms. Henry testified at the PCRA hearing and the PCRA Court concluded that their testimony lacked credibility.*fn8

  1. Ineffective Assistance of Counsel as a Substantive Claim (Objections Five and Six)

  In his fifth objection, petitioner challenges the Magistrate Judge's conclusion that the Turner claim was previously litigated. Obj. at 68. A review of the state court proceedings reveals, however, that petitioner is incorrect. Petitioner's post-trial/appellate counsel argued on direct appeal that petitioner's trial counsel was ineffective for failing to call Ms. Turner as an alibi witnesses at trial. However, post-trial/appellate counsel on direct appeal failed to allege that Ms. Turner would have been willing to testify at trial and failed to explain how her testimony would have benefitted petitioner. Id. Without such representations, the Superior Court denied petitioner's claim on the merits on direct appeal.*fn9 Id. These rulings were neither contrary to nor an unreasonable application of federal law. Thus, as the Magistrate Judge correctly concluded, that claim was procedurally defaulted for purposes of federal habeas review.

  In his sixth objection, petitioner asserts that the Magistrate Judge erroneously concluded that an appellate ineffectiveness claim is functionally the same as a trial level ineffectiveness claim. Obj. at 68. The Magistrate Judge made no such determination. Both of petitioner's claims of trial counsel ineffectiveness, the Turner claim and the Henry claim, were procedurally defaulted as described above. Petitioner's post-trial/appellate counsel ineffectiveness claims were not. In evaluating the appellate counsel claims, the PCRA Court addressed the question whether trial counsel's failure to call Joanne Turner and Debra Baseemah Henry prejudiced defendant.*fn10 Evaluating Ms. Henry's evidentiary hearing testimony during the PCRA proceedings, the Superior Court found her to be "incredible and irrelevant." Commonwealth v. Wright, No. 33343 PHL. No. 3113, 7 (Pa. Super. December 18, 1997). The Superior Court noted that her testimony would not have undermined the evidence against petitioner. Id. Moreover, it determined that, due to her criminal history of five convictions for theft and forgery crimes, her credibility would have been seriously impeached at trial. Id. at 7-8. Similarly, the PCRA court found Ms. Turner's testimony to lack all credibility. The Magistrate Judge concluded that the state courts' conclusions were neither contrary to nor unreasonable applications of federal law citing 28 U.S.C. § 2254(d)(1).

  This Court believes that 28 U.S.C. § 2254(d)(2) provides the correct standard to evaluate the rulings of the state courts relating to Ms. Turner and Ms. Henry because these determinations — that Ms. Turner's testimony would not have undermined the evidence against petitioner and that due to her criminal history she would have been impeached at trial and the ruling of the PCRA Court that both Ms. Turner and Ms. Henry lacked credibility — are factual determinations. The Court concludes that these factual determinations were not "unreasonable determination[s] of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).

  2. Ineffective Assistance of Counsel as an Excuse to Procedural Default Under the Cause and Prejudice Standard (Objection Seven)

  Petitioner also argues that ineffective assistance of counsel should excuse procedural default under the cause and prejudice doctrine. The cause and prejudice analysis embraces two separate elements. A demonstration of cause sufficient to survive dismissal "must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's efforts to comply with the state procedural rule. Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir.), cert denied, 504 U.S. 944 (1992). Prejudice means that the error at trial "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Murray v. Carrier, 477 U.S. 478, 488 (1986). Thus, petitioner argues the court should consider his procedurally defaulted claims on the merits because his counsel's ineffectiveness is the cause of the procedural default and he was prejudiced by counsel's ineffectiveness.

  The Magistrate Judge in his Report and Recommendation analyzed petitioner's claim under Commonwealth v. Holloway, 739 So.2d 1039, 1048 (Pa. 1999). In Holloway, the Pennsylvania Supreme Court held that to prove that counsel was ineffective for failing to call a witness, petitioner must show that: (1) the witness existed; (2) the witness was available to testify; (3) counsel knew or would have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the witness was so prejudicial as to have denied petitioner a fair trial. The Magistrate Judge cited the PCRA Court's conclusion that Ms. Turner and Ms. Henry lacked credibility and concluded that petitioner had failed to meet the fifth Holloway prong. Report and Recommendation 30.

  In his seventh objection, petitioner argues that the fifth Holloway prong conflicts with the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 reh'g denied, 467 U.S. 1267 (1984), which, according to petitioner, requires only that the outcome of a defendant's trial "would reasonably likely have been difference absent [counsel's] errors. Obj. at 69. The gravamen of petitioner's argument is that the Magistrate Judge erred in applying Holloway because it requires a higher degree of prejudice than Strickland. The Court rejects this argument. The Court concludes that the fifth prong of Holloway does not conflict with the prejudice prong of Strickland. Holloway is a refinement of the principles announced in Strickland specifically applied to the situation where counsel fails to call a witness. Both Strickland and Holloway require a party to show prejudice. The Court disagrees with petitioner's argument that Holloway requires a party to show greater prejudice than Strickland.

  Strickland, like Holloway, is concerned with fundamental fairness. As the Supreme Court ruled in Strickland:

A number of practical considerations are important for the application of standards we have outlined. Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although these principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceedings whose result is being challenged . . . An ineffectiveness claim, however, as our articulation of the standards that govern decision of such claims makes clear, is an attack on the fundamental fairness of the proceeding whose result is challenged.
Strickland, 466 U.S. at 696-698. Although the two cases use different language to articulate the prejudice requirement, they cannot be read to be in tension.

  D. ACTUAL INNOCENCE EXCEPTION (OBJECTION EIGHT)

  Finally, in his eighth objection, petitioner argues that the Magistrate Judge misapplied the standard set forth in Schlup v. Delo, 513 U.S. 298 (1995) and in so doing incorrectly concluded that petitioner has failed to meet the "actual innocence" and "miscarriage of justice" standard for excusing procedural default. Obj. at 70. The Court rejects this position.

  To establish actual innocence, "petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 327 (1995); see also Whitney v. Horn, No. 00-9003, 2002 WL 181342, at (3d Cir. Feb. 5, 2002) (explaining Schlup standard); Glass v. Vaughn, 65 F.3d 13, 16 (3d Cir. 1995) (same). Petitioner must also "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324. In evaluating petitioner's assertions of actual innocence, the Court considers all relevant evidence, regardless of whether it "was either excluded or unavailable at trial." Id. at 328.5 It is not, however, this Court's "independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do." Id. at 329. The Court must ask, then, whether "in light of the new evidence, no juror, acting reasonably, would have voted to find [petitioner] guilty beyond a reasonable doubt." Id.

  Petitioner offers three affidavits as new evidence of his actual innocence — the November 2, 2002 affidavit of Abdul Hadid, the October 30, 2002 affidavit of Diane Fryer and the November 2, 2002 affidavit of Idi Amin Muhammed. Petitioner argues that these affidavits "destroy the credibility of Esther Jones" and "clearly depict" that before decedent's death she was working to transfer his drug business to her new boyfriend.

  The Magistrate Judge disagreed with petitioner's characterization of the evidence. The Magistrate Judge reasoned that even if the three affidavits were entirely true, they do not exculpate petitioner. Specifically, the Magistrate Judge determined that the affidavits do not undermine the eyewitness testimony of Earlene Gates, one of the Commonwealth's key witnesses. Gates identified petitioner as pointing his gun at her two-year old daughter's nose while the other defendants demanded "money, drugs and jewelry" from the decedent. N.T. 10/5/81, pp. 129-130; N.T. 10/6/81, p. 11. The Magistrate Judge further noted that nothing in the affidavits explains the corroborating physical evidence, including bloody clothing and photographs of the three defendants, discovered at co-defendant Garrick's house the day after the murder. The Court agrees with the Magistrate Judge's conclusion and similarly determines that petitioner has failed to establish actual innocence.

  E. EVIDENTIARY HEARING

  The Court concludes it need not hold an evidentiary hearing on any of petitioner's claims in the Amended Petition. The AEDPA constrains the Court from holding an evidentiary hearing to develop facts that were not originally presented in state court. 28 U.S.C. § 2254 (e)(2) provides in pertinent part:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant show that:
(A) the claims relies on —
(I) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
  Petitioner does not meet the standard established by the AEDPA. He does not rely upon a new rule of constitutional law or newly discovered factual predicate or demonstrate that "no reasonable fact finder would have found [him] guilty of the underlying offense." Id. Accordingly, the Court concludes that an evidentiary hearing is not required.

  F. CERTIFICATE OF APPEALABILITY

  A habeas petitioner seeking to appeal must obtain a certificate of appealability from the district court in order for the court of appeals to have jurisdiction. See 28 U.S.C. § 2253(c)(1)(A) ("Unless a circuit justice or judge issues a certificate of appealability, an ap-peal 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"); United States v. Williams, F.3d 736, 741 (3d Cir. 1998) ("[A] certificate of appealability is required for this appeal to go forward. . . ."); see also, Fed.R.App.P. 22(b)(1) (providing that a district judge may also issue a certificate of appealability).

  The law permits the issuance of a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to establish the denial of a constitutional right, the mere allegation of a constitutional wrong, such as deprivation of the rights to effective counsel, is insufficient; the petitioner must make a substantial showing of such an error in order to present an appeal. Santana v. United States, 98 F.3d 752, 757 (3d Cir. 1996). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

  For the reasons set forth in this Memorandum, petitioner has not made the requisite showing of a denial of a constitutional right. Therefore, the Court declines to issue a certificate of appealability.

  III. CONCLUSION

  For the reasons set forth above and in the Report and Recommendation of Magistrate Judge Charles B. Smith, the Court overrules petitioner's objections to the Report and Recommendation. The Court approves and adopts the Report and Recommendation and denies and dismisses the Amended Petition without an evidentiary hearing. Because petitioner has not established a substantial denial of a constitutional right, the Court will not issue a certificate of appealability.

  An appropriate order follows. ORDER

  AND NOW, this 26th day of July, 2004, upon consideration of Andrew Wright's Amended Petition for Writ of Habeas Corpus (Docket No. 33, filed January 14, 2002), Response to Petition for Writ of Habeas Corpus (Docket No. 44, filed June 21, 2002), Traverse Brief in Support of Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Docket No. 55, filed January 24, 2003), Response to Traverse Brief in Support of Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Docket No. 56, filed February 10, 2003), Report and Recommendation of United States Magistrate Judge Charles B. Smith (Docket No. 29 filed February 25, 2003) and Objections to and Memorandum of Law in Support to Report and Recommendation of U.S. Magistrate Judge Charles B. Smith (Docket No. 61, filed March 28, 2003), for the reasons set forth in the following Memorandum and the Report and Recommendation of U.S. Magistrate Judge Charles B. Smith dated February 25, 2003, IT IS ORDERED as follows:

  1. The Report and Recommendation of United States Magistrate Judge Charles B. Smith dated February 25, 2003 is APPROVED and ADOPTED;

  2. Plaintiff's Objections to the Report and Recommendation of United States Magistrate Charles B. Smith are OVERRULED;

  3. Plaintiff's Petition for Writ of Habeas Corpus is DENIED AND DISMISSED WITHOUT AN EVIDENTIARY HEARING; and

  4. Because petitioner has failed to make a substantial showing of the denial of a constitutional right, there is no basis for issuing a certificate of appealability.


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