Opinion
Civil Action No. 03-954.
February 26, 2004
MEMORANDUM OPINION AND ORDER
Presently before the Court are Scott Stocklin's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and a Motion for Appointment of Counsel. Magistrate Judge Diane M. Welsh issued a June 30, 2003 Report and Recommendation ("R R") advising that the Petition should be denied and dismissed and that no certificate of appealability be issued. For the reasons below, the Court will adopt and approve Judge Welsh's R R subject to some additional observations and deny the Motion for Appointment of Counsel.
BACKGROUND AND PROCEDURAL HISTORY
On June 23, 1997, after pleading guilty to murder generally, Petitioner Scott Stocklin was found guilty in the Court of Common Pleas of Bucks County of third degree murder, conspiracy and possessing an instrument of crime. R R at 2. On August 1, 1997, Petitioner was sentenced to twelve and one-half to twenty-five years in prison. Id. Petitioner filed a timely appeal to the Superior Court of Pennsylvania, but his appeal was dismissed on November 19, 1998 for failure to file an appellate brief. Id.
In the following months Petitioner engaged counsel, Tim Lucas, Esq., to file a petition pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-46. 1/26/01 N.T. 15-16, 58-59. On November 9, 1999, Mr. Lucas told Petitioner that a PCRA petition had been filed. See Commonwealth v. Stocklin, No. 2874 EDA 2001, slip opinion at 4 (Pa.Super.Ct. June 17, 2002) ("6/17/02 Opinion"). However, on February 15, 2001, the clerk of courts' office informed Petitioner that no PCRA petition was ever filed. Accordingly, on April 12, 2001, Petitioner filed a pro se PCRA petition seeking reinstatement of his appellate rights and asserting ineffective assistance of direct appellate and PCRA counsel. Id. On the merits, Petitioner claimed that (1) his guilty plea was induced unlawfully by trial counsel's promise that he would receive a sentence of five to ten years imprisonment and (2) the sentencing court abused its discretion in imposing a sentence that exceeded the guidelines. 6/17/02 Opinion at 2 n. 1. After a hearing the trial court granted Petitioner's right to appeal nunc pro tunc from the August 1, 1997 judgment of sentence and denied relief on the merits.Id. at 2; 9/26/01 N.T. at 79.
Petitioner faulted direct appellate counsel for his failure to file an appellate brief, which resulted in dismissal of his appeal on November 19, 1998. See 6/17/02 Opinion at 2. Petitioner faulted PCRA counsel for telling Petitioner that he had filed a timely PCRA petition when in fact, as Petitioner learned on February 15, 2001, no petition had been filed. Id.
Petitioner appealed to the Superior Court of Pennsylvania. The Superior Court, in an unpublished opinion dated June 17, 2002, quashed Petitioner's appeal on the ground that his PCRA petition was untimely filed under 42 Pa. Cons. Stat. Ann. § 9545(b)(1).Id. at 3-7. The Supreme Court of Pennsylvania denied allowance of appeal on December 10, 2002. RR at 2; see Commonwealth v. Stocklin, 806 A.2d 466 (Pa.Super.Ct.) (Table), allo. denied, 813 A.2d 841 (Pa. 2002) (Table).
THE PETITION FOR HABEAS CORPUS UNDER 28 U.S.C. § 2254
Petitioner filed the instant habeas petition on February20, 2003 alleging the following grounds for relief: (1) his guilty plea was unlawfully induced by trial counsel; (2) ineffective assistance of appellate counsel; and (3) denial of his right to a direct appeal since his appeal was quashed based on the ineffective assistance of PCRA counsel. See R R at 3. On June 30, 2003, Magistrate Judge Diane M. Welsh issued her R R and recommended that the petition be denied and dismissed and that a certificate of appealability not issue.As explained in greater detail in the R R and infra at 6-8, the Superior Court of Pennsylvania quashed Petitioner's appeal because his pro se PCRA petition was untimely filed. See R R at 4-5. Petitioner failed to file his first PCRA petition within one year from December 10, 1998 — the date his judgment of sentence became final. See 42 Pa. Cons. Stat. Ann. § 9545(b)(1) ("Any petition under this subchapter . . . shall be filed within one year of the date the judgment becomes final. . . ."). Petitioner's PCRA deadline was December 10, 1999, but he did not file his first PCRA petition until April 12, 2001. Therefore, his federal claims are procedurally defaulted in the Pennsylvania courts and he is barred from presenting those claims in federal court. See Cristin v. Brennan, 281 F.3d 404, 409-10 (3d Cir.), cert. denied, 537 U.S. 897 (2002); R R at 4-5.
Petitioner concedes that his federal claims are procedurally defaulted, see Mem. in Support of Petition for Writ of Habeas Corpus at 4a, but seeks to avail himself of three exceptions to the procedural default doctrine. Defaulted claims may still be heard in federal court if the petitioner can demonstrate that any of the following three circumstances apply: (1) the state procedural rule relied upon by the state court is not "independent" and "adequate"; (2) cause for the procedural default and prejudice resulting therefrom; or (3) the failure to consider his claims will result in a fundamental miscarriage of justice. See Cristin, 281 F.3d at 412; Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996); Porter v. Horn, 276 F. Supp. 2d 278, 292 (E.D. Pa. 2003). The R R correctly concludes that no exceptions are satisfied. See R R at 5.
First, Petitioner contends that direct appeal and PCRA's counsels' respective failures to file appropriate, timely briefs resulted in a "miscarriage of justice" that warrants federal habeas review. This argument has no merit. "To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime . . . by presenting new evidence of innocence." Cristin, 281 F.3d at 412 (quotations and citation omitted). Petitioner does not claim actual innocence, so this exception does not apply.
Second, Petitioner argues that the cause and prejudice exception applies. "The `cause' required to excuse a procedural default must result from circumstances that are `external to the petitioner, something that cannot fairly be attributed to him.'"Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000) (quotingColeman v. Thompson, 501 U.S. 722, 753 (1991)); see also Murray v. Carrier, 477 U.S. 478, 488 (1986) ("We think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule."). In advancing this argument, Petitioner contends that there is sufficient cause to excuse his failure to file a timely PCRA petition because (1) his direct appeal counsel failed to file the requisite brief in support, which resulted in dismissal of his direct appeal, and (2) his PCRA counsel failed to file a timely PCRA petition and misrepresented to Petitioner that it had been filed.
These arguments are also without merit. As for appellate counsel's failure to file a brief in support of Petitioner's direct appeal, such failure has no connection to Petitioner's failure to comply with the one-year deadline for filing a PCRA petition. Petitioner testified at the PCRA hearing that he engaged Tim Lucas, Esq. as PCRA counsel after he learned that the Superior Court had dismissed his appeal. See 9/26/01 N.T. at 14-15; see also Letter of 8/17/99 from Lucas to Herne (engagement letter) (attached as Ex. D-4 to 9/26/01 N.T.). Petitioner engaged PCRA counsel well before the one-year deadline was due to expire on December 10, 1999. Accordingly, it cannot be said that appellate counsel's actions "impeded [Petitioner's] efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488.
Petitioner's claim that PCRA counsel's failure to file a timely PCRA petition constitutes cause also must fail. There is no constitutional right to counsel in state collateral relief proceedings, so any error committed by PCRA counsel cannot constitute "cause" to excuse Petitioner's procedural default.See Coleman, 501 U.S. at 757 ("Because Coleman had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of Coleman's claims in state court cannot constitute cause to excuse the default in federal habeas."); Cristin, 281 F.3d at 420 ("Because Cristin had no Sixth Amendment right to representation at his PCRA hearing . . . his counsel's alleged ineffective assistance cannot establish cause for Cristin's procedural default.") (internal citation omitted). Accordingly, Petitioner's arguments for "cause" and "prejudice" must be rejected.
Finally, Petitioner argues in his petition and in his objections to the R R that the rule relied upon by the Superior Court is not an "adequate" state rule and thus cannot bar federal habeas review. The Supreme Court of the United States has observed that "only a `firmly established and regularly followed state practice' may be interposed by a state to prevent subsequent review by this Court of a federal constitutional claim." Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (citation omitted). A state rule is adequate only if it is "consistently and regularly applied." Johnson v. Mississippi, 486 U.S. 578, 587 (1988). That is, the rule should be applied "evenhandedly to all similar claims," Hathorn v. Lovorn, 457 U.S. 255, 263 (1982), in the "vast majority of cases." Dugger v. Adams, 489 U.S. 401, 410 n. 6 (1989); see also Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir. 2001) ("A procedural rule is adequate only if it is firmly established, readily ascertainable, and regularly followed.").
To bar federal review, a state procedural rule must be both "adequate" and "independent." See Doctor, 96 F.3d at 683. A state rule is not "independent" if "resolution of the state procedural law question depends on a federal constitutional ruling." Ake v. Oklahoma, 470 U.S. 68, 75 (1985). Petitioner does not question that the state rule at issue in this case is "independent" of federal law.
The Third Circuit has established a three-step analysis for determining the adequacy of a state rule. A state rule is adequate if: "(1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions." Doctor, 96 F.3d at 683-84.
The first step in this analysis is to define the state rule relied upon by the Superior Court and determine whether it "speaks in unmistakable terms." Id. at 684. In its June 17, 2002 opinion, the Superior Court relied upon 42 Pa. Cons. Stat. Ann. § 9545(b)(1), which requires that "[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final," unless one of three exceptions apply. 6/17/02 Opinion at 3-4. Petitioner cited the after-discovered evidence exception to this rule and argued that ineffective assistance of appellate and PCRA counsel justified an exception to the one-year PCRA filing requirement. The Superior Court rejected this argument. First, it noted that a petition seeking reinstatement of appellate rights must be sought in a timely PCRA petition, which Petitioner had failed to do. Id. at 4-5. Second, it noted that the after-discovered evidence exception cannot apply because "the facts upon which [Petitioner] sought PCRA relief, an improperly induced guilty plea and an improper sentence, were in existence in 1997, when [Petitioner] entered his guilty plea and was sentenced." Id. at 5. It rejected Petitioner's argument that the exception applies because he did not discover that Mr. Lucas failed to file a timely PCRA petition until after December 10, 1999. "[Petitioner] is interweaving facts relating to the filing of his PCRA petitions with the discovery of claims forming the basis for PCRA relief. [The after-discovered evidence exception] applies to the latter concept and not to the former." Id. Therefore, it concluded, Petitioner could not meet the after-discovered evidence exception. Id. It agreed that Mr. Lucas "arguably was ineffective for failing to file a petition that he prepared and then failed to file," but concluded that "we may not ignore the filing requirements of the PCRA, even if appellate counsel and prior PCRA counsel were ineffective." Id. at 5-6. Accordingly, it ruled, the trial court was without jurisdiction and impermissibly reached the merits of the untimely petition.Id. at 2-3, 6-7 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000) ("PCRA's timeliness requirements are mandatory and jurisdictional in nature, [and] no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner.")).
The statute excepts instances where the petitioner proves that (1) failure to file a timely petition is due to interference by government officials, (2) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained upon the exercise of due diligence, or (3) the right asserted is a constitutional right recognized by the Pennsylvania or United States Supreme Courts after the petitioner's conviction became final and was held to have retroactive effect. See 42 Pa. Cons. Stat. Ann. § 9545(b)(i)-(iii).
The second exception, also known as the "after-discovered evidence" exception, see, e.g., Commonwealth v. Breakiron, 781 A.2d 94, 99 (Pa. 2001), provides, in relevant part:
(b) Time for Filing Petition:
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
. . .
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence. . . .
42 Pa. Cons. Stat. Ann. § 9545(b)(1)(ii).
From the face of the opinion, it appears that the Superior Court relied on the following rule in quashing Petitioner's appeal: a court is without jurisdiction to examine the merits of a PCRA petition that was filed in an untimely manner and fails to meet any of the statutory exceptions. This bright-line rule "speaks in unmistakable terms." Doctor, 96 F.3d at 683. It is beyond dispute that only one appellate court reviewed this case, and it refused to consider Petitioner's claims on the merits. See 6/17/02 Opinion. Therefore, the first two requirements of the Doctor adequacy test are satisfied. 96 F.3d at 683.
Although not reasserted in his Objections, Petitioner argues in his petition that the rule does not "speak in unmistakable terms" because the "Superior Court made a clearlysubjective analysis of what constitutes `due diligence' on the part of an appellant who legitimately presumes his direct appeal was filed." Mem. in Support of Petition for Writ of Habeas Corpus at 5a (emphasis in original). This argument ignores the fact that the Superior Court also found the exception inapplicable because it relates to "discovery of claims forming the basis for PCRA relief" and not to disco very of "facts relating to the filing of his PCRA petitions." 6/17/02 Opinion at 5. Accordingly, Petitioner's argument fails to disturb the clarity of the rule.
Petitioner's primary argument goes to the third prong of theDoctor test, i.e., that the rule relied upon by the Superior Court is not consistently and regularly applied. See id. at 683-84. Petitioner argues that the Superior Court has "frequently carved a narrow exception to the PCRA's one-year statute of limitations," but declined (in aberrant fashion) to do so in his case. Objections to R R at 1. "In each of the cases cited by [Petitioner] the Superior Court set aside the one-year statute of limitations where: (1) the petitioner had previously filed a timely appeal, [and] (2) the appeal was dismissed for reasons not directly attributable to the petitioner himself,e.g., failure to file an appellant's brief." Id. In support of this argument Petitioner cites Commonwealth v. Leasa, 759 A.2d 941 (Pa.Super.Ct. 2000), Commonwealth v. Peterson, 756 A.2d 687 (Pa.Super.Ct. 2000), Commonwealth v. Tedford, 781 A.2d 1167 (Pa. 2001), Commonwealth v. Williams, 814 A.2d 739 (Pa.Super.Ct. 2002), and Commonwealth v. Rivera, 816 A.2d 282 (Pa.Super.Ct.), allo. denied, 828 A.2d 282 (Pa. 2003).
The relevant time frame for determining adequacy is "not . . . when the Superior Court relied on it, but rather as of the date of the waiver that allegedly occurred." Doctor, 96 F.3d at 684. Here, the relevant time frame is when Petitioner violated this state procedural rule, i.e., December 10, 1999, when the one-year period expired for Petitioner to file a timely PCRA petition. Accordingly, to determine whether, as Petitioner contends, the Superior Court of Pennsylvania has "frequently carved a narrow exception to the PCRA's one-year statute of limitations," the Court must look to state law as it stood on December 10, 1999.
The cases cited by Petitioner were all issued after December 10, 1999 and thus cannot themselves be authority for the proposition that as of December 10, 1999, the Superior Court recognized the exception claimed by Petitioner to the PCRA one-year filing deadline. See cases citations supra.
Moreover, none of these cases support Petitioner's argument in the case at bar. In Leasa, 759 A.2d 941, and Peterson, 756 A.2d 687, the Superior Court construed a second, untimely PCRA petition as if it were an "extension" of a petitioner's first PCRA petition where that first petition was timely filed, dismissed on the merits by the trial court, appealed, and dismissed without prejudice on appeal for failure to file an appellate brief. This is simply not the procedural posture of the case at bar. Petitioner never filed a timely PCRA petition in the first instance. Petitioner proposes that the Court create a fiction whereby his direct appeal, which was timely filed and dismissed for failure to file an appellate brief, is transformed into his first PCRA petition. Then, his first PCRA petition, which was untimely filed, becomes his second PCRA petition which, under the rubric of Leasa and Peterson, could have been viewed by the Superior Court as an "extension" of his first timely filed PCRA petition, and thus eligible for the "exception" Petitioner claims was "frequently" utilized by the Superior Court. Even if the theory devised in Leasa and Peterson existed on December 10, 1999, which it did not, there is no basis in law or reason to believe that the Superior Court would have or could have conflated Petitioner's direct appeal and PCRA processes in such a manner so as to reach the result pressed by Petitioner.
In October 2003, the Supreme Court of Pennsylvania specifically disapproved of this theory in Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003), so Leasa and Peterson are no longer good law.
The Supreme Court of Pennsylvania noted in its opinion inRobinson that the Leasa and Peterson courts "devised" this theory anew. 837 A.2d at 1158.
The other cases cited by Petitioner are similarly distinguishable and thus provide no support for Petitioner's argument. See, e.g., Tedford, 781 A.2d 1167 (finding that where a court dismisses a first, timely pro se PCRA petition prior to appointment of counsel, a subsequent counseled petition may not be treated as an untimely second petition, but rather must be treated as an amended first petition); Rivera, 816 A.2d at 286-87 (construing appeal of second, untimely PCRA petition as an appeal of the dismissal of petitioner's first, timely pro se PCRA petition where petitioner was never advised of his right to appeal dismissal of his first petition); Williams, 814 A.2d 739 (second, untimely PCRA petition treated as first petition where first PCRA counsel labored under a conflict of interest).
The court in Williams relied in part on the "extension" theory of Leasa, 759 A.2d 94 1, so in light of the Supreme Court's disap proval of Leasa in Robinson, 837 A.2d 1157,Williams' precedential value is questionable.
A review of the relevant case law reveals that the jurisdictional nature of the one-year time-bar was clearly established on December 10, 1999, and that only the exceptions enumerated in the statute may excuse an untimely PCRA petition. On March 2, 1999, in Commonwealth v. Banks, 726 A.2d 374 (Pa. 1999), the Supreme Court of Pennsylvania confirmed that the one-year time limit for filing of PCRA petitions is jurisdictional and subject only to the exceptions enumerated in the PCRA. Cf. Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001) ("[T]he Pennsylvania Supreme Court did not clarify that the state PCRA statute was jurisdictional and not waivable until 1999 in Commonwealth v. Banks. . . ."). Other courts in this district have concluded in the context of an adequacy analysis that this rule was clearly established by the Banks decision. See, e.g., Yarris v. Horn, 230 F. Supp. 2d 577, 582-83 (E.D. Pa. 2002) (Giles, C.J.) (agreeing with the "many district courts in the third circuit which have been confronted with the issue of the PCRA time bar . . . [and] have decided that it was not an independent and adequate state ground to bar federal review until [Banks] was decided March 2, 1999") (collecting cases);Bronshtein v. Horn, No. Civ.A.99-2186, 2001 WL 767593, at *8 (E.D. Pa. July 5, 2001) (Reed, S.J.) ("It was not until [Banks] that there was a clearly established rule in Pennsylvania that nothing . . . would save a late-filed PCRA petition from dismissal.") (emphasis added).
In addition to being clearly established, a review of relevant case law reveals that this rule was regularly applied to late-filed PCRA petitions before and up to December 10, 1999.See, e.g., Commonwealth v. Beasley, 741 A.2d 1258 (Pa. 1999) (finding no jurisdiction to entertain untimely PCRA petition where no exception applies); Commonwealth v. Yarris, 731 A.2d 581 (Pa. 1999) (same); Commonwealth v. Cross, 726 A.2d 333 (Pa. 1999) (same); Commonwealth v. Crider, 735 A.2d 730 (Pa.Super.Ct. 1999) (same); Commonwealth v. Johnson, 732 A.2d 639 (Pa.Super.Ct. 1999) (same);Commonwealth v. DiVentura, 734 A.2d 397 (Pa.Super.Ct. 1999) (same). Accordingly, the rule relied upon by the Superior Court was both clearly established and regularly applied, thus making it an adequate state rule that precludes federal review of defaulted claims. See Doctor, 96 F.3d at 683.
NO CERTIFICATE OF APPEALABILITY SHOULD ISSUE
As the R R correctly notes at pp. 6-7, Local Appellate Rule 22.2 requires that when a district court denies a habeas corpus petition, it must make a simultaneous determination as to whether a certificate of appealability ("COA") should issue. No COA should issue unless the petitioner can show "that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citation and internal quotations omitted).
When, as here, a district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, "a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to proceed further. In such a circumstance, no appeal would be warranted."Id. As explained supra, Petitioner's federal claims are procedurally defaulted in the Pennsylvania courts and none of the exceptions to the procedural default doctrine apply. No reasonable jurist would debate the conclusion that Petitioner's claims are barred by the procedural default doctrine, nor would any reasonable jurist debate the disposition of Petitioner's arguments to the contrary. Accordingly, no COA will issue.
THE MOTION FOR APPOINTMENT OF COUNSEL
By letter addressed to Magistrate Judge Welsh, dated January 12, 2004, Petitioner requested appointment of counsel. Consistent with the Court's obligation to construe pro se pleadings liberally, the Court will view the letter as a motion for appointment of counsel, and it will be docketed as such. See Lewis v. Attorney General, 878 F.2d 714, 722 (3d Cir. 1989) (pro se pleadings are subject to less stringent standards).
There is no constitutional right to counsel in federal habeas corpus proceedings. Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991). The Court may, in its discretion, appoint counsel to represent a habeas petitioner if it "determines that the interests of justice so require" and that the petitioner is financially unable to obtain adequate representation. 18 U.S.C. § 3006A(a)(2). "Factors influencing a court's decision include the complexity of the factual and legal issues in the case, as well as the pro se petitioner's ability to investigate facts and present claims." Reese, 946 F.2d at 264.
In the case at bar, Petitioner has demonstrated a good understanding of the issues and the ability to present "forcefully and coherently" his contentions. Id. His petition and his objections present sophisticated legal arguments in a thoughtful, articulate manner. Accordingly, the interests of justice do not require appointment of counsel. The motion is denied.
CONCLUSION
Petitioner's federal claims are procedurally defaulted in the Pennsylvania courts and none of the exceptions to the procedural default doctrine apply. Accordingly, he is barred from presenting those claims in federal court. The R R is adopted and approved subject to the additional observations made in this Memorandum Opinion, and the Petition for Habeas Corpus filed by Scott Stocklin is denied and dismissed. No certificate of appealability will issue. Because the Court is satisfied that Petitioner has adequately represented himself without the assistance of counsel, the motion for appointment of counsel is denied.
An appropriate Order follows.
ORDER
AND NOW, this 26th day of February, 2004, upon consideration of the Petition for Writ of Habeas Corpus [Doc. # 1], the Answer thereto [Doc. # 7], the Report and Recommendation of United States Magistrate Judge Diane M. Welsh [Doc. # 9], and for the reasons set forth in the attached Memorandum Opinion, it is hereby ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED, subject to the additional observations contained in the attached Memorandum Opinion;
2. The Petition for Writ of Habeas Corpus is DENIED and DISMISSED;
3. A certificate of appealability shall not issue for the reasons set forth in the Report and Recommendation and the Memorandum Opinion.
It is further ORDERED that the Clerk of Court is hereby directed to file the attached Letter of 1/12/04 from Scott Stocklin to Magistrate Judge Diane Welsh (together with the Letter of 12/16/03 from Paul J. Killion to Scott Stocklin, attached thereto), onto the above-referenced case docket. The Court shall construe the letter as a motion for appointment of counsel.
Upon consideration of the motion for appointment of counsel, and for the reasons set forth in the attached Memorandum Opinion, it is hereby ORDERED that the motion is DENIED.
It is so ORDERED.