UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Christopher Legere
v. Case No. 10-cv-13-PB Opinion No. 2015 DNH 046 Edward Reilly, Warden, Northern New Hampshire Correctional Facility
MEMORANDUM AND ORDER
Before the court is respondent’s motion for summary
judgment (doc. no. 37), and supplemental brief related to that
motion (doc. no. 41), seeking judgment as a matter of law on all
claims asserted in Christopher Legere’s amended petition for a
writ of habeas corpus (doc. no. 27), filed pursuant to 28 U.S.C.
§ 2254. Legere objects. See Obj. (doc. no. 43). For the
reasons stated below, the motion for summary judgment (doc. no.
37) is granted, Legere’s amended § 2254 petition (doc. no. 27)
is denied, and the court declines to issue a certificate of
appealability. I. Background1
A. Facts Underlying Legere’s Conviction
1. The Shooting
In the late evening of June 24, 2006, and the early morning
hours of June 25, 2006, Christopher Legere was at Three Cousins,
a restaurant and bar in Manchester, New Hampshire. Legere’s
girlfriend, Amy Caswell, was working that night as a bartender
at Three Cousins, and Legere generally spent the evening there
when she was working. On June 24, 2006, Legere was at the bar
socializing and singing karaoke when something drew his
attention to the street outside of the bar.
At some point, John Denoncourt rode up on his motorcycle
and was talking to Tracy Beardsdell and William Hill outside
Three Cousins. Beardsdell and Hill were arguing because Hill
wanted to ride Denoncourt’s motorcycle, and Beardsdell felt that
Hill was too intoxicated. Although Denoncourt was not a member
of the Hells Angels Motorcycle Club, he was wearing a “Hells
Angels support shirt” that evening. Beardsdell and Hill told
1 The facts and procedural history upon which the court relies have been gleaned from the record before and decisions of the state courts involved in Legere’s trial, post-conviction litigation, and appeals. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”). 2 Denoncourt that he could not go into Three Cousins wearing a
Hells Angels shirt because Three Cousins had a policy against
its patrons wearing any apparel showing membership in or support
for any motorcycle club. Denoncourt indicated that he didn’t
care. Legere, who was a member of the Outlaws Motorcycle Club,
was wearing a black Outlaws shirt, but had covered the word
“Outlaws” with tape.
Legere went outside when he, and other Three Cousins
patrons, became aware of the commotion. A fight or struggle
ensued, involving a number of people, including Legere. During
that altercation, a number of people saw Legere being held back,
or struggling with, several people. In the end, Legere shot
Denoncourt in the chest. Denoncourt tried to leave, but,
approximately 340 feet from the altercation, fell and died from
the gunshot wound. Legere left the scene in a white sports
utility vehicle, and returned shortly thereafter on his
motorcycle, wearing a different shirt. Legere helped Caswell at
Three Cousins for a while, and then left. He was later charged
with Denoncourt’s murder.
A number of people present inside and outside Three Cousins
on the night of the shooting testified at Legere’s trial.
Daniel Nadeau, a Three Cousins patron, testified that he saw
3 Legere holding a small black gun, and shooting it as he jumped
over people. Nadeau stated that he saw Legere point and shoot
the gun at an individual running away from the scene. Nadeau
also testified that during the shooting, several people were
trying to hold Legere back and that one person screamed, “Stop,
Buster, Stop.” Other witnesses at trial testified that:
Legere’s nickname is “Buster”; Legere is a member of the
Outlaws; the shooter was wearing a black shirt; Legere was
wearing a black shirt at the time of the shooting; prior to the
shooting, Legere had a hard metal object in his waistband, under
his shirt; and after the shooting, someone yelled something to
the effect that “Buster shot a Hells Angel” and that everyone
should leave because the Hells Angels and/or the police were
going to be arriving.
2. Expert Testimony
The state called Maryland State Police Lt. Terry Katz as an
expert witness to testify about the history of the violent
rivalry between the Hells Angels and Outlaws motorcycle clubs,
particularly over territorial issues. Lt. Katz testified that
the Outlaws and Hells Angels have an antagonistic relationship
extending back decades, that has resulted in violence, including
gang fights, serious assaults, and homicides. He further
4 testified that intrusion on the territory of one of those clubs
by the other would result in a confrontation that could
ultimately turn violent. Lt. Katz explained that both the Hells
Angels and the Outlaws consider themselves to be “One
Percenters,” which Katz explained means that “they exist only by
their own rules, not society’s.” Katz also told the jury that
two of the Outlaws’ mottos are “God forgives, Outlaws don’t” and
“Snitches are a dying breed.”
B. Procedural History
1. State Court
In 2007, a jury convicted Legere of second degree murder,
and Legere was sentenced to serve 45-90 years in prison. See
State v. Legere, No. 06-S-1741, 1742 (N.H. Super. Ct.,
Hillsborough County N. (“HCSC”) May 10, 2007). The New
Hampshire Supreme Court (“NHSC”) affirmed Legere’s conviction.
See State v. Legere, 958 A.2d 969, 972 (N.H. 2008).
In 2010, Legere, through court-appointed post-conviction
counsel, filed a motion for a new trial (“MNT”) in the HCSC,
asserting that Legere’s trial attorney had failed to provide him
with effective assistance of counsel. The HCSC held an
evidentiary hearing on Legere’s motion, and Legere moved to
amend the MNT. The HCSC denied both the MNT and the motion to
5 amend. See State v. Legere, No. 06-S-1741, 1742 (HCSC Aug. 26,
2011) (“MNT Order”)). The NHSC accepted Legere’s discretionary
appeal of HCSC’s order. See State v. Legere, No. 2011-0687
(N.H. Feb. 3, 2012).
While the MNT appeal was pending, Legere filed a state
habeas petition in the Merrimack County Superior Court (“MCSC”),
which that court denied. See Legere v. Gerry, No. 217-2011-CV-
537 (N.H. Super. Ct., Merrimack County Nov. 9, 2011). The NHSC
accepted Legere’s appeal of the MCSC order, consolidated it with
the MNT appeal, appointed appellate counsel for Legere, and
denied Legere leave to file a supplemental pro se brief. See
Legere v. Warden, No. 2012-0074 (N.H. Apr. 2, 2012). On August
21, 2013, the NHSC affirmed both HCSC’s ruling on the MNT and
the MCSC order denying the state habeas petition. See State v.
Legere, No. 2011-0687 (N.H. Aug. 21, 2013) (“August 21 NHSC
Opinion”).
2. Federal Habeas Petition
Legere filed a petition for a writ of habeas corpus in this
court before the above-described state proceedings had ended.
This court stayed the petition to allow Legere to exhaust his
state remedies as to the claims in his petition. See Order
(doc. no. 6). The court lifted the stay in November 2013 and
6 directed service of Legere’s Amended Petition (doc. no. 27),
which is the operative pleading in this matter. See Order (doc.
no. 32). Respondent has filed a motion for summary judgment
(doc. no. 37) and a supplemental brief in support of that motion
(doc. no. 41). Legere objects (doc. no. 43).
Legere raises the following claims for relief:
1. At Legere’s trial, the prosecutor engaged in misconduct during his closing argument, which so infected the fundamental fairness of the proceedings as to violate Legere’s Fourteenth Amendment due process rights, as follows:
a. In his closing argument, the prosecutor improperly relied on facts that were not supported by the evidence at trial.
b. In his closing argument, the prosecutor improperly asserted his personal opinion as to: (i) the credibility of certain witnesses, (ii) Legere’s guilt, and (iii) the truth or falsity of certain evidence.
2. The trial court improperly admitted in evidence expert testimony from Maryland State Police Lt. Terry Katz, concerning the Hell’s Angels and Outlaws motorcycle clubs, in violation of Legere’s Fourteenth Amendment due process right to a fair trial.
3. Legere was denied his Sixth Amendment right to the effective assistance of counsel when his trial counsel:
a. failed to object to the prosecutor’s opening statement and closing arguments, to the extent the prosecutor: (i) relied on facts not supported by the trial evidence, and (ii) expressed his personal opinion as to witness credibility, Legere’s guilt, and the truth or falsity of certain evidence;
7 b. failed to object to the admission of expert testimony concerning the Hell’s Angels and Outlaws motorcycle clubs when that testimony exceeded the scope of the expert opinion that had been permitted by the trial court after a pretrial hearing; and
c. failed to request a limiting instruction concerning the appropriate use of the expert testimony concerning the Hell’s Angels and Outlaws.
See Amended Petition (doc. no. 27).
II. Discussion
A. Standard for Reviewing State Court Decisions
1. Rulings on the Merits of Federal Claims
A federal court may grant habeas corpus relief “only on the
ground that [a petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); see also Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011). When a prisoner brings a claim in federal
court that was adjudicated on the merits in State court
proceedings,
[f]ederal habeas relief may not be granted . . . unless it is shown that the earlier state court’s decision was contrary to federal law then clearly established in the holdings of th[e Supreme] Court; or that it involved an unreasonable application of such law; or that it was based on an unreasonable determination of the facts in light of the record before the state court.
8 Harrington v. Richter, 562 U.S. 86, 100 (2011) (internal
quotation marks and citations omitted) (citing 28 U.S.C. §
2254(d)).
A state court’s ruling is contrary to federal law either when it adopts a rule that contradicts the governing law set forth in the Supreme Court’s cases or when it reaches a different result from a Supreme Court decision under a set of facts that are materially indistinguishable. Even if the state court correctly identifies the law, it may unreasonably apply the law to the facts of the case. To be unreasonable . . . the application of federal law must be more than incorrect or erroneous. In other words, some increment of incorrectness beyond error is required. Finally, we only overturn state court factual determinations that are unreasonable in light of the record.
Rosenthal v. O’Brien, 713 F.3d 676, 683 (1st Cir. 2013), cert.
denied, 134 S. Ct. 434 (2013) (internal quotation marks and
citations omitted). The petitioner bears the burden both of
showing that the state court decision is contrary to established
federal law, and of rebutting the presumption of correctness of
state court factual findings by clear and convincing evidence.
See 28 U.S.C. § 2254(e)(1); Cullen, 131 S. Ct. at 1398.
2. Procedurally Defaulted Federal Claims
Respondent argues that certain claims in Legere’s petition
must be deemed procedurally defaulted. “A state court’s
invocation of a procedural rule to deny a prisoner’s claims
9 precludes federal review of the claims if, among other
requisites, the state procedural rule is a nonfederal ground
adequate to support the judgment and the rule is firmly
established and consistently followed.” Martinez v. Ryan, 132
S. Ct. 1309, 1316 (2012). A claim may be deemed procedurally
defaulted “if it was not presented to the state courts and it is
clear that those courts would have held the claim procedurally
barred.” Pike v. Guarino, 492 F.3d 61, 73 (1st Cir. 2007).
Respondent “bears the burden . . . of persuading the court that
the factual and legal prerequisites of a default . . . are
present.” Id. (internal quotation marks and citation omitted).
A federal court cannot review a procedurally defaulted
claim in a § 2254 petition, unless the petitioner demonstrates
either “actual innocence,” or “cause” and “prejudice.” Costa v.
Hall, 673 F.3d 16, 25 (1st Cir. 2012) (citation omitted); see
also Lee v. Corsini, 777 F.3d. 46, 58, 62 (1st Cir. 2015).
Cause “‘ordinarily turn[s] 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.’” Costa,
673 F.3d at 26 (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)). To prove prejudice, a petitioner must demonstrate that
the violations of federal law “‘worked to his actual and
10 substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.’” Id. (quoting Carrier, 477 U.S.
at 494) (emphasis in original).
Unexhausted claims of ineffective assistance of counsel
cannot serve as cause for the procedural default of a different
claim. See Lynch v. Ficco, 438 F.3d 35, 46 (1st Cir. 2006). A
petitioner who cannot show prejudice to establish a claim under
Strickland v. Washington, 466 U.S. 668 (1984), also cannot meet
the “cause and prejudice” standard to excuse a procedural
default. Lynch, 438 F.3d at 49-50.
Legere has raised ineffective assistance of counsel as
cause for any procedural defaults of his claims that may have
occurred in the state proceedings. Accordingly, I address
Legere’s ineffective assistance of counsel claims (Claims 3(a)-
(c)) before resolving any other claims that the respondent
alleges are procedurally defaulted.
B. Ineffective Assistance of Counsel (Claim 3)
Legere asserts that trial counsel provided him with
ineffective assistance by: failing to object to the prosecutor’s
allegedly improper closing argument (Claims 3(a)(i) and (ii)),
failing to object to improper expert testimony (Claim 3(b)), and
failing to request that the judge give the jury a limiting
11 instruction concerning the appropriate use of expert testimony
(Claim 3(c)). The HSCS rejected each of those claims on the
merits. See MNT Order. Legere raised each issue in his notice
of appeal of the MNT Order, but his court-appointed appellate
counsel chose to brief only Claims 3(a)(ii) and 3(c). As to
those claims -- challenging trial counsel’s failure to object to
the prosecution’s inclusion of personal opinions during closing
argument and failure to request a limiting instruction -- the
NHSC ruled in favor of the State. See August 21 NHSC Opinion.
1. Legal Standard – Ineffective Assistance of Counsel
To prove a Sixth Amendment violation based on the failings of defense counsel, a petitioner must demonstrate both (1) that counsel’s performance was deficient, meaning that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense.
Scoggins v. Hall, 765 F.3d 53, 56 (1st Cir. 2014) (internal
quotation marks and citations omitted), cert. denied, 135 S. Ct.
1007 (2015). Counsel is entitled to a “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Counsel
will only be found to have provided deficient assistance
“‘where, given the facts known [to counsel] at the time,
counsel’s choice was so patently unreasonable that no competent
12 attorney would have made it.’” Scoggins, 765 F.3d at 57
(quoting Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)). To
establish prejudice, petitioner must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
2. Claim 3(a)(ii)
As to trial counsel’s failure to object to the prosecutor’s
injection of his personal opinion into his closing argument, the
last reasoned state court decision is the August 21 NHSC
Opinion. The NHSC, applying a state standard equivalent to
Strickland, found that Legere could not demonstrate actual
prejudice based on personal opinion statements the prosecutor
may have made in closing argument, because “the evidence against
[Legere] was overwhelming.” MNT Order at 11. The NHSC’s
finding concerning the strength of the evidence of guilt is
amply supported by the record and is reasonable. Further, the
NHSC correctly applied the prejudice prong of the Strickland
standard in its ruling. Legere has failed to demonstrate that
the NHSC’s finding was contrary to, or involved an unreasonable
application of federal law, or that the NHSC unreasonably
determined the facts in the record. Therefore, Legere is not
13 entitled to habeas relief on Claim 3(a)(ii), and the motion for
summary judgment is granted on that claim.
3. Claim 3(c)
As to trial counsel’s failure to request a limiting
instruction concerning the expert evidence regarding motorcycle
gangs, the last reasoned state court decision is also the August
21 NHSC Opinion. Legere here argues that, without a limiting
instruction, the jury was free to consider the expert testimony
as evidence that Legere had a propensity for violence and
unlawfulness, or for other improper purposes. At the May 24,
2011, hearing in the HCSC on Legere’s MNT, defense counsel
testified that his decision not to request a limiting
instruction was strategic, and he explained his rationale. See
MNT Order at 6. The NHSC found that counsel’s explanation
“reflect[ed] a well-conceived balancing of the relative risks of
having the court issue the instruction against its possible
benefits,” and rejected Legere’s claim. See August 21 NHSC
Opinion at 3. The facts relied on by the NHSC on the issue of
counsel’s decision concerning a limiting instruction are
supported by the record and are reasonable. Further, the NHSC
correctly applied the Strickland standard to the question of
whether counsel’s actions were reasonable, and thus not of the
14 kind that would support an ineffective assistance of counsel
claim. Legere has failed to demonstrate that the NHSC’s
decision was contrary to, or involved an unreasonable
application of, established federal law, or that the NHSC
unreasonably determined the facts in the record. Accordingly,
Legere is not entitled to habeas relief on Claim 3(c), and
summary judgment on that claim is warranted.
4. Procedural Default of Claims 3(a)(i) and 3(b)
Legere claims that his trial counsel was ineffective for
failing to object to the prosecutor’s closing argument to the
extent the prosecutor relied on facts that Legere claims were
not supported by the trial evidence, and for failing to object
to both the admission and extent of the expert testimony. The
HCSC ruled against Legere on both issues in the MNT Order, but
Legere’s court-appointed appellate counsel chose not to brief
those issues, and the NHSC denied Legere’s motion to file a
supplemental brief addressing the issues.
Citing state court cases indicating that New Hampshire
courts consistently apply the rule that issues not briefed are
waived, see, e.g., State v. Blackmer, 816 A.2d 1014, 1016 (N.H.
2003), respondent argues here that Legere’s failure to brief
these two claims in the NHSC appeal should be treated as a
15 procedural default. See Pike, 492 F.3d at 73. Respondent has
carried his burden to demonstrate that the claims at issue have
been procedurally defaulted.
Legere points to appellate counsel’s failure to brief those
issues, coupled with the NHSC’s decision precluding him from
filing a supplemental pro se brief, as cause and prejudice for
the default. I examine this argument by first considering
whether Legere was prejudiced by his inability to brief his
claims in the NHSC.
In this instance, the HCSC provided the last reasoned state
court opinion on this claim, and that court determined that the
prosecutor’s summation, to the extent it relied on facts Legere
claims were not supported by the trial evidence, was, in fact,
fair argument. For reasons stated below with respect to Claim
1(a), this court must defer to that finding. Therefore, Legere
has not carried his burden of showing prejudice with respect to
the failure to brief Claim 3(a)(i) in the NHSC.
As to Claim 3(b), Legere has failed to show prejudice
because the NHSC determined in Legere’s direct appeal that the
expert testimony was admissible. Legere has not shown any
reasonable probability of a different result if Claim 3(b) had
been briefed in the appeal of the MNT Order. Legere has thus
16 failed to show prejudice with respect to those procedurally
defaulted claims. This court is thus precluded court from
granting relief on them, and summary judgment is properly
granted on Claims 3(a)(i) and 3(b).
C. Prosecutor’s Use of Facts Not in Evidence (Claim 1(a))
Respondent moves for summary judgment on Claim 1(a),
regarding the prosecutor’s reliance on facts not in evidence in
his closing argument, on the ground that the claim is
procedurally defaulted, thereby precluding federal habeas
relief. The HCSC cited trial counsel’s failure to object to the
prosecutor’s closing argument as to this issue, as an
independent ground for that court’s order rejecting Claim 1(a)
in the new trial proceedings. See MNT Order at 7-8. The NHSC
did not disturb that ruling on appeal, or otherwise rule on the
merits of Claim 1(a). The cases cited by the HCSC and
respondent, see, e.g., Broughton v. Proulx, 880 A.2d 388, 391-92
(N.H. 2005); State v. Ayer, 834 A.2d 277, 286 (N.H. 2003), show
that the waiver rule at issue was an independent and adequate
state ground for that court’s order rejecting Claim 1(a). See
MNT Order at 7, 15. Accordingly, respondent has shown that
Claim 1(a) was procedurally defaulted in the state courts.
17 Legere has argued that ineffective assistance of trial
counsel, in failing to object to the challenged argument, was
cause for the default, and resulted in prejudice. In the MNT
Order, however, the HCSC found that the challenged portions of
the prosecutor’s argument were fair statements based on the
evidence at trial and were thus proper. See MNT Order at 15.
The HCSC’s findings and conclusions of law on that issue are
entitled to deference, as they represent the last reasoned state
court decision on that issue, and are reasonable and supported
by the record in this case. See Rosenthal, 713 F.3d at 683.
Moreover, that court, applying a Strickland standard,
specifically rejected Legere’s ineffective assistance of counsel
claim arising out of the failure to object to that portion of
the prosecutor’s argument. I defer to that application of
Strickland to the state court record.
Accordingly, Legere has not shown cause and prejudice
arising out of his trial counsel’s failure to object to the
prosecutor’s reliance on facts not in evidence in closing
argument. Nothing in the record suggests any other basis upon
which to excuse the procedural default of this claim.
Petitioner, therefore, is not entitled to relief on Claim 1(a),
and summary judgment is warranted on Claim 1(a).
18 D. Prosecutor’s Personal Opinions (Claim 1(b))
Legere asserts that during closing argument, the prosecutor
expressed his personal opinion of: the credibility of certain
witnesses, Legere’s guilt, and of the truth or falsity of
certain evidence at trial. None of these allegedly improper
comments were objected to at trial, and were thus not preserved
for direct appeal. The claims are thus procedurally defaulted,
as discussed above. See Pike, 492 F.3d at 73 (claim may be
deemed procedurally defaulted “if it was not presented to the
state courts and it is clear that those courts would have held
the claim procedurally barred”).
Again, Legere asserts that the cause of the procedural
default was his attorney’s erroneous failure to object to the
improper argument at trial. For reasons set forth above with
respect to Claim 3(a)(ii), Legere has not shown that his
counsel’s performance was constitutionally deficient. Cf.
Lynch, 438 F.3d at 49-50 (petitioner who cannot show prejudice
to establish claim under Strickland also cannot meet the “cause
and prejudice” standard to excuse procedural default). Legere
cannot rely on trial counsel’s failure to object to the
prosecutor’s alleged expression of personal opinions in his
closing argument to demonstrate cause and prejudice for the
19 procedural default of Claim 1(b). Accordingly, petitioner is
not entitled to relief on that claim, and summary judgment is
proper on Claim 1(b).
E. Expert Testimony (Claim 2)
Legere challenges the admission at his trial of expert
testimony from Lt. Katz, concerning the Outlaws and Hells
Angels. Legere alleges that the admission of this testimony
violated his due process right to a fundamentally fair trial
under the Fourteenth Amendment.
Legere did not explicitly raise federal due process claims
concerning the admission of the testimony challenged in Claim 2,
either in the trial court, or on direct appeal. On direct
appeal, Legere challenged the admission of the expert testimony
under state law, alleging that the prejudicial effect of the
testimony outweighed its probative value. In its decision
affirming Legere’s conviction, the NHSC found that, under state
law, the testimony was properly admitted. See Legere, 958 A.2d
at 983-84.
As explained above in regard to Claim 1(b), Legere’s
federal due process claim concerning the Katz testimony is
procedurally defaulted, as it was not raised on direct appeal.
Further, Legere cannot demonstrate prejudice excusing the
20 procedural default, as the last state court to rule on whether
the evidence itself was prejudicial, the NHSC on direct appeal,
ruled that all of the expert testimony was properly admitted.
See id. In doing so, the NHSC found, as to the trial court’s
admission of the evidence, that “[w]hile this evidence was
prejudicial, we do not agree that the danger of unfair prejudice
substantially outweighed its probative value.” Id. at 982. The
MNT Court, following the NHSC’s opinion, found that Legere’s
trial counsel was not ineffective for failing to object to the
admissible testimony, as the evidence was admissible and the
objection would have been overruled. See MNT Order at 6-7.
That finding is neither unreasonable, nor contrary to federal
law.
Accordingly, Legere has failed to demonstrate “prejudice”
to excuse the procedural default of Claim 2. Legere, therefore,
is not entitled to relief on Claim 2, and the motion for summary
judgment is properly granted on that claim.
F. Certificate of Appealability
The Rules Governing Section 2254 Proceedings (Ҥ 2254
Rules”) require the court to “issue or deny a certificate of
appealability when it enters a final order adverse to the
party.” § 2254 Rule 11(a). The court will issue the
21 certificate “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Legere has failed to make such a showing.
Accordingly, the district judge should decline to issue a
certificate of appealability in this case.
III. Conclusion
For the foregoing reasons, the court orders:
1. Respondent’s motion for summary judgment (doc. no. 37)
is GRANTED.
2. The petition (doc. no. 27) is DENIED.
3. The court declines to issue a certificate of
appealability.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge March 10, 2015
cc: Christopher L. Legere Elizabeth C. Woodcock, Esq.