Opinion
Civil Action No. 04-2371.
October 29, 2004
REPORT AND RECOMMENDATION
Presently before this court is a pro se petition for writ of habeas corpus, filed by Davoris Carter ("Petitioner") pursuant to 28 U.S.C. § 2254. Petitioner, a prisoner at the Pennsylvania State Correctional Institution in Coal Township, seeks relief alleging that his convictions were not supported by sufficient evidence and that he was denied effective assistance of counsel. The Honorable Clifford Scott Green referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). For the reasons set forth below, it is recommended that this petition be DENIED and DISMISSED.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts set forth in this section and procedural history were gleaned from the Petition for Writ of Habeas Corpus, the Commonwealth's Answer, inclusive of all exhibits thereto, and the state court record.
The facts, viewed in a light most favorable to the Commonwealth, as set forth by the Pennsylvania Superior Court are as follows:
[The record establishes that, at approximately 1:00 a.m. ono the 17th day of August, 1997, [Petitioner], in the company of his father-in-law (George Butler) and friends (e.g., Bernard), was seated on the front steps of Tara's home at 2556 North Myrtlewood Street in Philadelphia.
Tara asked Bernard not to sit on her steps. These remarks escalated into an argument wherein Bernard began cursing at Tara about being mistreated in the past and he was not going to tolerate this type of behavior any longer. Tara's reply was a verbal barrage which caused each actor to station themselves on opposite sides of the street. At one point in the exchange, Tara walked a short distance to her grandmother's home and returned with a machete.
[Petitioner] attempted to defuse the incident by talking to Bernard. After the passage of 5 to 10 minutes, [Petitioner] ran to his nearby house and retrieved a .38 revolver before rejoining Bernard and Tara, both of whom were still situated on opposite sides of the street.
George Butler recounted hearing a gunshot before seeing Tara cross the street and stand in front of her home. One of [Petitioner's] friends walked past Tara's house and yelled, "You don't have to take that shit." Tara responded with her own obscenities before starting across the street in the direction of her grandmother's home.
The next thing George Butler heard was someone shouting, "He just shot Tara." Butler came off his porch, walked toward Tara's body and [Petitioner] to ask, "What the hell did you do?" [Petitioner] replied: "Pop, I'll shoot you, too." Before the shooting, Butler remembered seeing the victim "walking towards . . . her grandmother's house or going that way." [Petitioner] was standing in front of her, approximately 10 to 15 feet away, and he was holding a pistol in his hand. When Tara was shot the pistol was pointed at the victim. A coroner's report, to which both sides stipulated, indicated that a bullet wound to the left chest caused death and there was no evidence that the shot was fired at close range.Commonwealth of Pennsylvania v. Carter, 724 EDA 2002 (Pa.Super. Sept. 3, 1998) (slip op.) at 1-3. Based upon the foregoing facts, Petitioner was convicted of third-degree murder, possession of an instrument of crime ("PIC"), and violation of the Uniform Firearms Act ("VUFA") at a bench trial before the Honorable Lisa A. Richette, on June 30, 1998. He was sentenced to 7½-15 years on the murder count and 2½ 5 years on the PIC count, an aggregate sentence of 10 to 20 years of imprisonment, as well as a suspended sentence on the VUFA conviction. See id. at 3; Pet. at 5.
Petitioner's appeal to the Superior Court of Pennsylvania was dismissed on August 25, 1999, for failure to file a brief. See Commonwealth v. Carter, 816 A.2d 325 (Pa.Super. 2002). On May 18, 2000, Petitioner sought and was granted a nunc pro tunc direct appeal, pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. On October 30, 2002, the Superior Court of Pennsylvania, based on sufficiency of the evidence assertions only, affirmed the judgment of sentence. See Commonwealth v. Carter, 816 A.2d 325. The Supreme Court of Pennsylvania denied Petitioner's request for Allowance of Appeal on June 3, 2003. See Commonwealth v. Carter, 825 A.2d 1259 (Pa. 2003).
On June 1, 2004, Petitioner filed this pro se petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. See Pet. at 1. The Commonwealth asserts, see Answer at 2, and this court finds, that Petitioner is not entitled to the relief he seeks, because his ineffective assistance of counsel claim is procedurally defaulted and his sufficiency of the evidence claim is not meritorious.
II. DISCUSSION
A. Exhaustion
A Federal Court, absent exceptional circumstances, will not grant a habeas corpus petition until the Petitioner has exhausted all means of available relief under state law. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993), aff'd. 30 F.3d 1488 (3d Cir. 1994). A claim is exhausted if it has been "fairly presented" once to the state's trial court, intermediate appellate court, and highest court. See 28 U.S.C. § 2254(b); see also Evans v. Ct. Com. Pl., Del. County, Pa., 959 F.2d 1227, 1230-31 (3d Cir. 1992) ( citing Picard v. Connor, 404 U.S. 270, 275 (1971)); Jones v. Frank, 28 F. Supp.2d 956, 960-961 (E.D. Pa. 1998).
28 U.S.C. § 2254 (b) states:
(1) 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 unless it appears that
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant . . .
(C) An applicant shall not be deem ed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The policy of this total exhaustion doctrine is rooted in the tradition of comity; the State must be given the "initial opportunity to pass upon and correct alleged violations of the Petitioner's Constitutional rights." See Picard v. Connor, 404 U.S. 275. Each Constitutional claim presented in a habeas corpus petition must be exhausted. See Tillet v. Freeman, 868 F.2d 106 (3d Cir. 1989). The District Court should not excuse Petitioner's failure to exhaust state remedies, unless state law unambiguously forecloses state review of the claim such that it would be futile to seek relief in that forum. See Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996).
B. Procedural Default
When an issue is unexhausted and further direct or collateral review in state court is foreclosed, the claim is deemed procedurally defaulted for purposes of federal review. See Coleman v. Thompson, 501 U.S. 722, 735n. 1 (1991); 28 U.S.C. § 2254(b)(1)(A); 42 Pa. C.S. § 9544(a)-(c). A federal court may review a procedurally defaulted claim where petitioner "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 claims would result in a fundamental miscarriage of justice." See Coleman v. Thompson, 501 U.S. 754. "Cause" sufficient to excuse procedural default requires a showing that some objective factor, outside the Petitioner's control, prevented compliance with Pennsylvania state procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986). "Actual prejudice" occurs when an error had caused the "actual and substantial disadvantage" of petitioner. U.S. v. Frady, 456 U.S. 152, 170 (1972). Fundamental injustice has been defined to encompass instances in which newly discovered evidence makes it more likely than not that a reasonable juror would find a petitioner not guilty. See Coleman, 501 U.S. at 750; Schlup v. Delo, 513 U.S. 298 (1995).
Collateral attack pursuant to the Pennsylvania Collateral Relief Act ("PCRA"), 42 Pa. C.S. § 9541, et seq. requires that 1) a claim has not been previously litigated or waived and 2) the previous failure to raise the issue was not the result of any rational, strategic or tactical decision of counsel. 42 Pa. C.S. § 9543 (a)(3)-(4). An issue is previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of tight has ruled on the merits of the issue" or "it has been raised and decided in a proceeding collaterally attacking conviction or sentence." 42 Pa. C.S. § 9544(a)(2)-(3). An issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post conviction proceeding. 42 Pa. C.S. § 9544(b).
C. Defaulted Ineffective Assistance of Counsel Claim
Petitioner claims that trial counsel was ineffective in that he failed to call four witnesses at trial. This claim has not been exhausted and Petitioner can no longer return to state court to present this claim. Petitioner's judgement of sentence became final on or about July 3, 2003, thirty days after the Pennsylvania Supreme Court denied allocatur. Hence, any petition for collateral review was required to be filed one year after that date or on or before July 3, 2004. See 42 Pa.C.S.A. § 9545(b). Petitioner's statutory year has passed, therefore, his return to the state courts is precluded, unless he can satisfy one of three narrow enumerated exceptions to the PCRA's one year jurisdictional deadline. See 42 PA. C.S. § 9545(b)(1)(i)-(iii).
42 Pa.C.S. § 9545(b) provides as follows:
(b) Time for filing petition —
(1) Any petition under this subchapter . . . shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts up on which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of Pennsylvania after the time period in this section and has been held by that court to apply retroactively.
Petitioner cannot meet these requirements. He does not assert recent discovery of exculpatory facts. Nor does he suggest that any recent federal Supreme Court ruling retroactively gives him new rights. Finally, no governmental interference precluded timely pursuit of his claim. In fact, PCRA court granted him the right to file a late direct appeal, because counsel failed to file the necessary brief. Also, since new counsel was appointed to pursue the appeal on behalf of Petitioner, any claims regarding ineffective assistance of trial counsel should have been raised during this direct appeal. Having failed to do so, Petitioner has waived his ineffective assistance of counsel claim. See 42 Pa.C.S. § 9543(a)(3)-(4). Thus, it is clear that any filing in state court on this issue is foreclosed. Furthermore, since this would be Petitioner's second PCRA filing, he likely would be required to make a "strong prima facie showing . . . [of] a miscarriage of justice . . . which no civilized society can tolerate." Comonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988). Petitioner has not shown such an injustice in this case, because he admits to the shooting. Accordingly, this claim is procedurally defaulted for federal habeas purposes. Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996).
Petitioner has failed to allege any "cause" for his failure to present his ineffective assistance of counsel claim in his nunc pro tunc appeal, thus prejudice is irrelevant. Likewise, he has not alleged the discovery of any new exculpatory evidence that would make it more likely than not that he would be found innocent by the state courts. One attempt already failed. Hence, Petitioner's default will not be excused and his claim should be dismissed.
If this claim were not procedurally defaulted, it, nevertheless, would fail on the merits. See 42 U.S.C. § 2254(b) (stating that an unexhausted claim may, nevertheless be denied). To prevail on his claim, Petitioner must satisfy the two-pronged standard established in Strickland v. Washington, 466 U.S. 668 (1984). See Hess v. Mazurkiewicz, 135 F.3d 905 (3d Cir. 1998). First Petitioner must demonstrate that counsel's performance was so deficient as to fall below an objective standard of "reasonableness under prevailing professional norms" and that the deficient assistance prejudiced the defense. See Strickland, 466 U.S. at 688. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. See id. This court indulges a strong presumption that the attorney's conduct fell within the wide range of reasonable professional assistance. See id.
For failure to call witnesses at trial to constitute ineffective assistance, Pennsylvania law required him to establish 1) that each witness existed, 2) that each witnesses was available to testify at trial, 3) that counsel was informed or should have know of the existence of these witnesses, 4) that each witness was prepared to cooperate and testify for appellant at trial, and 5) that the absence of the testimony prejudiced the appellant so as to deny him a fair trial. See Commonwealth v. Griffin, 515 A.2d 1382, 1387-1388 (1986); Commonwealth v. Ross, 416 A.2d 1092, 1094 (1979). While Petitioner has named the purported witnesses, he has not met any other aspect of this burden which comports with federal law. See Williams v. Taylor, 529 U.S. 362, 394-95 (2000).
He neither demonstrates availability of the witnesses nor alleges exculpatory facts these witnesses would have presented. Assuming ad arguendo that they would have corroborated his own self-defense related testimony, this court finds that counsel's failure to present these witnesses does not fall below any professional standard or outside the wide range of reasonable bench trial strategy. First, cumulative testimony is unnecessary or inadmissible. Second, the trial court expressly ruled that she would not entertain such a defense, under the circumstances presented. Hence, counsel would have been precluded from formulating an effective defense in this regard, irrespective of how many persons were paraded before the court. If these were character witnesses, based on the facts developed at trial, this court doubts that the result would have been different. Thus, the first prong of Strickland cannot be met. Moreover, Petitioner has failed to show that his defense was prejudiced under the second prong of Strickland. Petitioner admitted to shooting the victim, therefore, self-defense was his only chance of escaping conviction. See N.T., June 30, 1998 at 93. Judge Richette clearly articulated disbelief that petitioner's life was in danger and explicitly advised defense counsel that Petitioner could not succeed on a self-defense theory. See id at 110, 119-120. Additional testimony, based on this defense, would not have resulted in acquittal; therefore, counsel's failure to call more witnesses to testify on this point did not prejudice Petitioner's case. Thus, his ineffective assistance of counsel claim would fail on the merits.
D. Merits
1. Habeas Corpus Standard of Review
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." 28 U.S.C. § 2254(d)(1). The Supreme Court of the United States, in Williams v. Taylor, 529 U.S. 362 (2000), discussed the analysis required by § 2254(d)(1):
[Under the "contrary to" clause], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1498. The Third Circuit Court, consistent with the Williams v. Taylor interpretation, has set forth in Matteo v. Superintendent, SCI-Albion, 171 F.3d 877 (3d Cir. 1999), cert. denied 528 U.S. 824 (1999) a two tier approach to determining § 2254(d)(1) issues:
First, the federal habeas court must determine whether the state court decision was "contrary to" Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only if the petitioner shows that "Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." O'Brien [ v. Dubois], 145 F.3d [16], 24-25 [(1st Cir. 1998)]. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an "unreasonable application" of Supreme Court precedent; that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted.Id. at 891. The phrase "clearly established Federal law," as the term is used in Section 2254(d)(1), is restricted "to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 365. Under the "reasonable application" clause,
a federal habeas court may not grant relief 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.Id.
The 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). State factual determinations, presumptively correct, may be rebutted only upon presentation of clear and convincing evidence. 28 U.S.C. § 2254(c)(1).
2. Federal Sufficiency of the Evidence Standard
This Court will review the merits of Petitioner's sufficiency of the evidence claims, because they are fully exhausted, having been presented to all levels of the state court. Federal habeas corpus review of sufficiency of the evidence claims, is limited to determining whether or not "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" when viewing the evidence in a light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307 (1979). Notably, this is essentially the same standard that was applied by the state court in determining the sufficiency of the evidence that convicted Petitioner. See Evans v. Court of Common Pleas Delaware County, 959 F.2d 1227, 1233 (3d Cir. 1992).
3. Petitioner's Sufficiency of the Evidence Claims
The sole issue presented to the Pennsylvania Superior Court was whether any finder of fact could have found Petitioner guilty of third-degree murder and/or possession of an instrument of crime. After reviewing the specific elements of these crimes, the state courts found them to exist beyond a reasonable doubt, when viewing the evidence in a light most favorable to the prosecution. The written decision of the state court subject to habeas review follows:
Applying the sufficiency of the evidence standard, [citation omitted], we find that [Petitioner]'s use of a deadly weapon to shoot Tara in the chest is sufficient to prove malice, an element necessary to prove third-degree murder. [citations omitted]. [Petitioner] admitted on the stand that he shot the victim. N.T., 6/30/98, at 93. Even though his contention was that he acted in self-defense, it was for the trier-of-fact to weigh all the evidence in deciding whether the facts were sufficient, beyond a reasonable doubt, to establish guilt. [citation omitted]. We are not persuaded, from our review of the evidence against the backdrop of the applicable law, to reverse the trial court's decision. Ergo, [Petitioner]'s sufficiency of the evidence argument is found to be meritless.Commonwealth v. Carter, 724 EDA 2002 at 3-4. As explained below, this determination was appropriate.
a. Third-Degree Murder Conviction
The record leaves no reasonable doubt that Petitioner shot a gun and killed someone; he admitted to that fact during the trial. See N.T., June 30, 1998 at 93. The real controversy involves whether the homicide was an excusable killing, in defense of self, or third degree murder. Petitioner, in his Petition Ground One, see Pet. at 9, challenges the propriety of the court's statement, even prior to defendant's closing argument, admonishing defense counsel to "forget self-defense." (N.T. 6/30/98 at 110). A concomitant issue is whether or not the requisite intent for murder exists, beyond a reasonable doubt. The state court, as evident in the decision excerpted above, expressly upheld a finding of malicious intent.
A third-degree murder conviction requires three elements: 1) the unlawful killing of a human being, 2) by the accused, 3) with malice aforethought. See 18 Pa.C.S.A. § 2502. Petitioner urges this court to find that he was acting in self-defense when he shot the victim. The record, however, does not support his contention and the state court correctly found the killing to be unlawful. First, Petitioner entered his house (a place of safety) and came back out armed with a loaded gun. He was at least a car length away from the victim, a female who was wielding a machete at the time of the shooting, see id., at 46-47, and, therefore, could have retreated to his home in complete safety and without imminent danger to himself. See id. at 55, 94-95. Another relevant consideration in examining Petitioner's intent in using the gun is the fact that he interjected himself into a dispute that, initially, did not even involve him. Finally, the record shows that Petitioner shot the decedent in her chest, a part of the body where grievous harm would be expected to and did result. See id. at 68, 93. Malice may be inferred, as a matter of law, from such a close-range shooting towards vital organs. See e.g. Commonwealth v. Mercado, 649 A.2d 946, 955 (Pa.Super. 1993) (holding that malice could be inferred where appellant killed victim with a shot to the upper left chest). Based on the foregoing evidence, any reasonable fact-finder, not just the court making the determination, easily could have made the credibility assessment, as did the trial judge, that Petitioner intended to harm the victim and acted with malice and aforethought, thus satisfying the final element of third-degree murder.
Self-defense requires 1) the actor was free from fault in provoking the difficulty which resulted in the use of deadly force, 2) the actor reasonably believed that he was in imminent danger of death or serious bodily injury, 3) the actor reasonably believed that it was necessary to use deadly force in order to save himself or others and 4) the actor did not violate any duty to retreat or to avoid the danger. See 18 Pa.C.S.A. § 505.
The above factual scenario also permits a conclusion, when viewing the evidence in a light most favorable to the prosecutor, that Petitioner was not acting in self defense. Successful reliance upon this defense for using deadly force requires that the actor: a) was free from fault in provoking or continuing the altercation that resulted in the use of deadly force; b) reasonably believed that he was in imminent danger of death or serious bodily injury and that there was a necessity too use such force in order to save himself or others; and c) did not violate any duty to retreat or to avoid the danger. Commonwealth v. Harris, 542 Pa. 134, 665 A.2d 1172 (1995); 18 Pa.C.S. § 505. All three of these factors must be in place to sustain the self-defense strategy. See Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa.Super. 2000). Petitioner clearly helped to escalate the conflict. Moreover the trial court, who heard his testimony, did not find Plaintiff's life to be in any imminent danger. Judge Richette stated:
The record further suggests that no one else outside was in immediate danger either. See Facts, supra, at 1.
I don't believe that his life was in danger. I really don't. I think that girl was wielding that machete simply as a symbolic gesture. She was confronting these men who were disrespecting her and she just wanted to show them, look, you think I'm a woman, I'm powerless, I'm not.
N.T. 6/30/98, at 119-120. Petitioner has not presented clear and convincing evidence that this factual determination was erroneous. Hence, application of 28 USC § 2254(c)(1) and Williams, requires upholding the state court's determination. Furthermore, the facts, viewed most favorably to the prosecution support of finding that Petitioner failed to honor his duty to retreat.
This conviction, thus supported by sufficient evidence, was neither entered nor upheld in violation of clearly established federal law. Likewise, this court does not find that the state court's determination "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). This claim should, therefore, be denied.
b. Possession of an Instrument of Crime Conviction
The second ground for habeas relief raised by Petitioner is that the Commonwealth did not prove he "possessed an instrument of criminality with the intent to employ it criminally." Pet. at 10. A finding that Petitioner intended to use the gun in an unlawful manner is essential to sustaining Petitioner's PIC conviction. See 18 Pa. C.S.A. § 0907. Petitioner admitted to shooting the victim, therefore, he clearly possessed an instrument of crime (the gun). See N.T., June 30, 1998 at 98. Also, as indicated above, malice and intent to use the gun as a weapon can be inferred from this factual scenario. See id. at 68, 93; Mercando, 649 A.2d at 955. Hence, a reasonable fact-finder could have found the elements necessary to prove PIC beyond a reasonable doubt. See Commonwealth v. Weston, 561 Pa. 199 (2000) (evidence sufficient to convict Appellant of PIC where he mistakenly thought his use of deadly force was justified by self-defense). Since the state trial court correctly applied state law in inferring intent to Petitioner, the appellate court appropriately sustained the PIC conviction and no unreasonable application of federal law occurred. Similarly no unreasonable interpretation of the facts, in light of the totality of circumstances occurred.
III. CONCLUSION
Petitioner's claim of ineffective assistance of counsel must be dismissed, because it is procedurally defaulted and Petitioner has not shown a valid excuse for that default. Moreover, after a thorough review of the record, this court finds that both of Petitioner's convictions were adequately supported by evidence adduced at trial. Furthermore, this court does not find the factual conclusions of the state court to be objectively unreasonable. Since no federal constitutional irregularity occurred, these evidentiary claims must be denied on their merits. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 29th day of October, 2004, for the reasons contained in the foregoing report, it is hereby recommended that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED as to the ineffective assistance of counsel claim and DENIED as to the insufficient evidence claim, without an evidentiary hearing. Petitioner has failed to demonstrate a denial of any constitutional right that would warrant a certificate of appealability.
IT BE SO ORDERED