1

Not for Publication

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________________

:

LAWRENCE OLIVER PHILSON :

:

Petitioner : Civil Action No. 11-01884 (JAP)

:

v. : OPINION

:

:

SUPERINTENDENT, NEW JERSEY :

STATE PRISON :

:

Defendant :

:

_______________________________________ :

PISANO, District Judge:

This matter is before the Court pursuant to a Petition for a Writ of Habeas Corpus under 

28 U.S.C. § 2254 filed by petitioner Lawrence Philson. Petitioner challenges his 2002 

conviction in New Jersey Superior Court, alleging ineffective assistance of counsel, insufficiency 

of the evidence, prosecutorial misconduct, and the imposition of a sentence in violation of the 

due process and equal protection clauses of the Fourteenth Amendment. On April 18, 2012, 

Petitioner filed a Motion to Stay. For the reasons set forth below, the Motion to Stay will be 

denied, and the Court will proceed to decide the Petition. The Court finds that Philson’s Petition 

is both untimely and without merit, and will therefore be denied.

I. Procedural Background

Petitioner Lawrence Philson was charged in multiple counts in Essex County Indictment 

No. 2000-1-228, for offenses committed on September 28, 1999. Following a jury trial, 

Petitioner was convicted of second-degree conspiracy to commit robbery and kidnapping, 

N.J.S.A. 2C:15-1, 2C:13-1b(1) (count one); first-degree kidnapping, N.J.S.A. 2C:13-1b(1) 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 1 of 13 PageID: 1626
2

(count three); first-degree carjacking, N.J.S.A. 2C:15-2 (count four); first-degree armed robbery, 

N.J.S.A. 2C:15-1 (count five); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count seven); 

first-degree armed robbery, N.J.S.A. 2C:15-1 (count eight); third-degree aggravated assault of a 

police officer, N.J.S.A. 2C:12-1b(5)(a) (count fifteen); second degree aggravated assault, 

N.J.S.A. 2C:12-1b(1) (count sixteen); second-degree eluding, N.J.S.A. 2C:29-2b (count 

seventeen); third-degree possession of controlled dangerous substance, N.J.S.A. 2C:35-10a(1) 

(count eighteen); third-degree possession of a controlled dangerous substance with the intent to 

distribute, N.J.S.A. 2C:35-5b(3) (count nineteen); third-degree unlawful possession of a 

handgun, N.J.S.A. 2C:39-5b (count twenty); second-degree possession of a handgun for an 

unlawful purpose, N.J.S.A. 2C:39-4a (counts twenty-one and twenty-two); third-degree unlawful 

possession of a handgun, N.J.S.A. 2C:39-5b (count twenty-six); and fourth-degree possession of 

defaced firearm, N.J.S.A. 2C:39-3d (county twenty-seven). On May 28, 2002, Philson was 

sentenced to sixty years, with a fifty-one year parole disqualifier. 

On November 10, 2004, the State of New Jersey Appellate Division affirmed the 

conviction. The court rejected Philson’s claim that his sentence was excessive compared to that 

of his co-defendant, Clinton Martin, without prejudice to Philson’s right to raise the issue in the 

context of a post conviction relief (“PCR”) petition. On February 2, 2005, the New Jersey 

Supreme Court denied certification on direct appeal. On May 18, 2007, Philson filed a PCR 

petition alleging prosecutorial misconduct and an unfair disparity in sentencing, which was 

denied by order dated May 1, 2008. On August 5, 2009, the Appellate Division affirmed the 

order denying the PCR petition. On November 20, 2009, The New Jersey Supreme Court denied 

the petition for certification. Philson filed this Habeas Petition on April 4, 2011. 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 2 of 13 PageID: 1627
3

II. Factual Background

Pursuant to 28 U.S.C. § 2254(e)(1), the Court will defer to the factual determinations of 

the state court as set forth in the Appellate Division Opinion on Nov. 10, 2004. The Petitioner 

has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” 

Id. Petitioner does not challenge these facts. They are reproduced below:

Rajul Thomas was a drug dealer. When he arrived home in the evening of 

September 28, 1999, two men with guns confronted him. The men were later 

identified as defendant and his co-defendant, Clinton Martin. One man struck 

him in the head with the gun and removed his jewelry: a chain, a ring and a 

bracelet. The intruders took Thomas into the living room where they demanded 

money.

Thomas told the men where to find between $7000 and $8000 he kept in 

his closet. After they took it, they wanted more. They tied Thomas up, and told 

him to call someone to get more money. Thomas called two people, his friend 

“Ricky,” and his sister, Shearon Hollaway.

With the men still in his house, Thomas’s fiancée, Teisha Evans, returned 

home with their children. While pointing a gun at her, defendant grabbed Evans 

by her throat, took her chain, and threw her to the floor. One of the intruders told 

her to “shut the F up” and tell where the money was. After informing the men 

that it was in the closet, the intruder told her they already knew where that money 

was, but they wanted the rest. Evans told the intruder to call Thomas’s sister. 

After Evans begged defendant and Martin not to kill her and her children, she was 

taken into the living room with the children; they were placed on their stomachs, 

and covered with coats and clothing. Evans remained on the floor until the police 

arrived.

Meanwhile, defendant and Martin continued to demand money from 

Thomas, striking him with the gun. They threatened him with his, Evans’s and 

the children’s death unless he came up with more money.

The first person that Thomas called, “Ricky,” arrived. He approached the 

house, but did not enter, and left without bringing money. Thomas’s brother-inlaw, Joseph Hollaway, arrived with $7500. At the behest of the intruders, he 

placed the money in a black bag and passed it though the door. Then Hollaway 

left. Still not satisfied, the intruders directed Thomas to call his sister and tell her 

they were going to her house to get more money.

The men then forcibly took Thomas from his house; he was made to lie 

down in the back seat of a black Lexus. They drove to Thomas’s sister’s house. 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 3 of 13 PageID: 1628
4

When the men arrived, Hollaway went outside; he saw the black Lexus. At about 

that time, East Orange Police Officer Felix Torres drove by in a marked police 

cruiser. As he did, defendant, who had been driving the Lexus, changed places 

with Martin, who had been in the back of the car. As another police car 

approached, Martin, now driving, “gunned” the car, driving in reverse to get 

away, causing Torres to swerve to avoid it. As Martin drove, Thomas rolled out 

of the car.

Torres, with his siren and take-down lights activated, followed Martin. 

During the subsequent car chase, defendant, sitting in the back seat of the Lexus, 

leaned out the window and, holding the gun with two hands, fired at Torres. 

. . .

On cross examination, when asked what he was doing in response to being 

shot at, Torres replied: “I . . . looked, [and when shots were] fire[d], dipped.” He 

duck[ed] and . . . [took] evasive maneuvers.” Torres testified the chase lasted less 

than a minute and the cars were traveling about fifty miles per hour. He said 

defendant’s head popped out four or five times. When asked by defense counsel 

if he knew who the driver was, Torres replied that he did not, but, he said: “All I 

know is that the person that shot at me is this individual right here,” referring to 

defendant. 

When the Lexus struck a fence and came to a stop, the two men ran from 

the car. Torres, having radioed a description of the men and the direction of their 

flight, remained by the car, while other officers searched the area.

Martin was found in possession of a .380 caliber automatic handgun, 

several decks of heroin, and $2626 in cash. Another police officer found 

defendant, hiding in the bushes. Defendant had his right hand under his body and 

when he rolled over, the officer found a plastic bag containing 14,886 in cash, 

jewelry that had been taken from Evans and Thomas earlier that evening, and 

glassine packages containing cocaine and heroin. Several feet from where 

defendant was located, the officer found a .9 mm automatic handgun, as well as 

rounds and magazines, all wrapped in a t-shirt. The serial number on the handgun 

had been filed off. The next morning, a .45 caliber automatic handgun with a live 

round in the magazine was found in a nearby driveway, with spent shell casings 

nearby. 

Several days after the crimes, neither Thomas nor Evans was able to identify 

either of the two intruders out of photo arrays. The only person to identify 

defendant was Torres.

Defendant, who was tried without Martin, testified at trial. He admitted he 

was present in Thomas’s Lexus, but he denied he participated in the crimes. He 

said Martin, a former “associate” of his from a 1997 incarceration, told him he 

was going to see a friend about some money and defendant, with nothing else to 

do, went along for the ride. He testified Martin gave him a .45 caliber automatic 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 4 of 13 PageID: 1629
5

handgun to hold for him, but he denied entering Thomas’s apartment or firing the 

weapon during the police chase. According to defendant, Thomas was not 

“stressed” when he came out of his home with Martin, but defendant could not 

“comment” on whether Thomas was forced at gunpoint to lay down in the car.

Defendant testified that “two guys” approached the Lexus and fired shots, 

causing Martin to drive off. According to defendant, while the police were in 

pursuit, he ducked down and threw the gun he had been holding over the front 

seat to Martin. When the car stopped, at Martin’s request he grabbed a black bag 

when he ran from the car. He knew the bag contained money, but he did not 

know it contained drugs or jewelry.

New Jersey v. Philson, Crim. No. A-6501-01T4, *5-12 (N.J. App. Div. Nov. 10, 2004).

III.The Motion to Stay

Although represented by counsel in his initial Habeas Petition, Philson filed this Motion 

to Stay pro se. In it, he alleges that he should be given time to pursue a remedy in state court 

because he discovered “during the appellate process” that the State did not intend to call his codefendant as a witness at trial. Petitioner has not suggested how this might have prejudiced him, 

nor has he attempted to justify waiting until 2012 to seek relief. The state “appellate process” 

ended in 2009, when the New Jersey Supreme Court denied certification of the denial of 

Petitioner’s application for Post-Conviction Relief (“PCR”). Thus, the Petitioner has missed his 

opportunity to raise any issues discovered at that time either through the state PCR process or 

under the AEDPA. N.J. Court Rule 3:22-12(a)(2); 28 U.S.C. 2244(d)(2). Therefore, Petitioner’s 

Motion to Stay will be denied, and the Court will proceed to the underlying Petition.

IV.Timeliness

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year statute 

of limitations applies to an application for a writ of habeas corpus when a state-court judgment 

becomes final. 28 U.S.C. § 2241(d). A state court’s judgment becomes final upon conclusion of 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 5 of 13 PageID: 1630
6

direct review, including the ninety-day period for filing a petition for a writ of certiorari in the 

United States Supreme Court. Schwartz v. Meyers, 204 F.3rd 417, 419 (3d Cir. 2000). The New 

Jersey Supreme Court denied Philson’s petition for certification on February 2, 2005, and the 

judgment became final on May 3, 2005. Thus, Petitioner had until May 2, 2006 to file a PCR 

petition or a federal petition. He did not file a PCR petition until May 7, 2007, over one year 

beyond the statute of limitations. Petitioner admits that his application was late under 28 U.S.C. 

§ 2241(d). Pet’r’s Br. 18. However, he argues that he is entitled to equitable tolling because his 

counsel “gave him inaccurate advice about the deadline for filing a federal petition.” Pet’r’s Br. 

19. 

Equitable tolling is granted if (1) the petitioner has diligently pursued his rights, and (2) 

an “extraordinary circumstance” prevented timely filing. Holland v. Florida, 130 S.Ct. 2549, 

2562 (2010). The “extraordinary circumstance” prong requires gross attorney misconduct such 

as abandonment or blatant misrepresentation. Holland, 130 S.Ct. at 2565. See Seitzinger v. 

Reading Hosp. and Med. Ctr., 165 F.3d 236, 237 (3d Cir. 1999) (equitable tolling applied where 

“a diligent client persistently questioned the lawyer as to whether he had filed the complaint in 

time, and he affirmatively misrepresented to her that he had.”). This stands in contrast to what 

the court in Holland referred to as “garden variety” negligence. Holland, 130 S.Ct. at 2564. The 

Supreme Court has held that “counsel’s mistake in miscalculating the limitations period” does 

not constitute an “extraordinary circumstance.” Lawrence v. Florida, 549 U.S. 327 (2007). 

Here, the Petitioner argues that counsel “gave him inaccurate advice about the deadline.” Pet’r’s

Br. 19. As the Supreme Court made clear in Lawrence, this is not a sufficient excuse for late 

filing and therefore Petitioner is not entitled to equitable tolling. Nevertheless, the Court will 

evaluate the substance of Philson’s Petition.

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 6 of 13 PageID: 1631
7

V. Standard of Review

A federal court only has jurisdiction to hear a habeas petition that challenges a state 

conviction or sentence in violation of clearly established federal law. 28 U.S.C. § 2254(a). 

Thus, the prisoner must allege some deprivation of a federal right to qualify for review. Engle 

v. Isaac, 456 U.S. 107, 120 n. 19 (1982). In addition, the AEDPA requires the writ of habeas 

corpus to be denied unless 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,” or “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). 

AEDPA deference applies to claims that were “adjudicated on the merits in State Court 

proceedings.” 28 U.S.C. § 2254(d). This refers to claims that were determined on substantive, 

rather than procedural grounds. Rompilla v. Horn, 355 F3d 233, 247 (3d Cir. 2004). No 

discussion is required by state courts in rejecting a presented claim on the merits, and “where a 

state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still 

must be met by showing there was no reasonable basis for the state court to deny relief.” 

Harrington v. Richter, 131 S.Ct. 770, 784 (2011). “If the state court rejects the claim on 

procedural grounds, the claim is barred in federal court unless one of the exceptions to the 

doctrine of Wainwright v. Sykes, 433 U.S. 72, 82–84 (1977), applies.” Id. at 787. 

VI.Analysis

Even if the Court were to allow equitable tolling in this case, Petitioner’s claims fail on 

the merits. Philson raises four grounds for relief in his habeas petition: (1) the conviction was 

obtained and the sentence imposed in violation of the right to effective assistance of counsel; (2) 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 7 of 13 PageID: 1632
8

the evidence was insufficient to prove conspiracy or accomplice liability beyond a reasonable 

doubt; (3) the prosecutor committed misconduct by arguing during summation facts not in 

evidence; and (4) The sentence was imposed in violation of the due process and equal protection 

clauses of the Fourteenth Amendment.

A. Right to Effective Counsel

Philson asserts that he was denied effective assistance of counsel because his attorney did 

not move to suppress Officer Torres’s out-of-court identification, and never interviewed a 

particular witness. To establish an ineffective assistance of counsel claim, a defendant must 

show (1) that counsel’s performance was deficient and (2) that there was “a reasonable 

probability that but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires courts to 

determine counsel’s performance based on an objective standard of reasonableness. Strickland, 

466 U.S. at 687. The burden is on the petitioner to prove counsel constitutionally ineffective 

because there is a strong presumption of attorney competency. Id. 

The failure to file a motion to suppress Officer Torres’s identification did not constitute 

ineffective assistance of counsel. The issue of impermissibly suggestive identification arises 

when an in-court identification is the fruit of a pretrial lineup or photo array. United States v. 

Wade, 388 US 218, 219 (1967). While eyewitness identification may be potentially unreliable, 

the Court has held that “the fallibility of eyewitness evidence does not, without the taint of 

improper state conduct, warrant a due process rule requiring a trial court to screen the evidence 

for reliability before allowing the jury to assess its creditworthiness.” Perry v. New Hampshire, 

132 S.Ct. 716, 719 (2012). Here, Officer Torres’s identification occurred while in pursuit of the 

suspects, not as a result of a lineup or photo array, and thus the likelihood of improper state 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 8 of 13 PageID: 1633
9

action was minimal. Petitioner’s attorney was reasonable in his decision not to file a motion to 

suppress, because the motion would likely have been denied.

Petitioner’s claim that his counsel’s decision not to interview a particular witness 

constituted ineffective assistance of counsel also lacks merit. The Supreme Court has held that 

the complete failure to conduct any pretrial investigation may constitute ineffective assistance. 

Strickland, 466 U.S. at 691. However, counsel’s decision not to interview this witness was not a 

“complete failure to investigate” as Petitioner asserts. In United States v. Gray, 878 F.2d 702, 

710 (3d Cir. 1989), defense counsel had the names of multiple witnesses who observed the 

crime, but made no effort to contact them. The Third Circuit held that counsel was ineffective 

because the failure to investigate was “not based on tactical decisions but merely upon lack of 

diligence.” Gray, 878 F.2d at 712. Unlike the attorney in Gray, who made no effort to contact 

multiple witnesses who observed the crime, the attorney in this case interviewed most of the 

eyewitnesses, but did not interview the eight-year old daughter of one of the victims, “A.E.” 

A.E. testified on direct that she saw the two men who robbed the Thomas residence. It is unclear 

based on the record whether the decision not to interview or cross-examine this witness was a 

tactical decision by the attorney. However, the failure to interview one eight-year-old witness is 

not the type of utter failure to conduct an investigation contemplated by Strickland. Because of 

the strong presumption of attorney competency, the Court does not find counsel’s performance 

deficient. Even if counsel’s performance were deficient, Petitioner’s claim still fails under 

Strickland’s second prong. No evidence has been offered to suggest that, had this witness been 

interviewed in advance, she would have testified that Petitioner was not one of the men in the 

house at the time of the robbery. Therefore, Petitioner has not demonstrated any “reasonable 

probability” that the outcome of the trial would have been different.

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 9 of 13 PageID: 1634
10

B. Absence of Adequate Evidence to Prove Conspiracy

Petitioner asserts that the evidence was insufficient to prove conspiracy beyond a 

reasonable doubt. The Supreme Court recently held that a “twice-deferential standard” applies 

to sufficiency of the evidence challenges. Parker v. Matthews, 567 U. S. 574 (2012). First, the 

jury’s conclusions drawn from the evidence must be deferred to if “after viewing the evidence in 

the light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” Id. at 73 (citing Jackson v. 

Virginia, 443 U. S. 307, 319 (1979)). Second, the state court’s decision must be “objectively 

unreasonable” to be overturned. Id. at 74 (citing Cavazos v. Smith, 132 S.Ct. 2, 4 (2011)). A 

heavy burden is placed on Petitioner to show that no “rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307 

(1979). 

Petitioner claims that his conviction resulted from the “impermissible inference from the 

recent possession of stolen property that [he] was involved in the theft/robbery.” Pet’r’s Br. 31. 

However, Petitioner’s apprehension in possession of the stolen property was not the only 

evidence supporting conspiracy. New Jersey v. Philson, Crim. No. A-6501-01T4, *16 (N.J. App. 

Div. Nov. 10, 2004). The jury also relied on the testimony of Evans, Thomas and Torres. Id. 

While Evans was not able to identify the two men who broke into Thomas’s house, Thomas 

claimed that the two intruders were the same men who drove off in the Lexus. Torres then 

identified Petitioner as one of the men in the Lexus during the shooting. Id. From these facts, it 

was reasonable for the jury to infer that Petitioner was one of the intruders and that he acted in 

concert with Martin in committing the charged offenses. See U.S. v. Kapp, 781 F.2d 1008, 1010 

(3d Cir. 1986) (conspiracy may be proved entirely through circumstantial evidence as long as 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 10 of 13 PageID: 1635
11

reasonable inferences are drawn from related facts and circumstances); United States v. Ellis, 

595 F.3d 154, 160 (3d Cir. 1979) (same). 

C. Prosecutorial Misconduct

Petitioner’s claim of prosecutorial misconduct is unfounded. Petitioner asserts that the 

prosecutor argued facts not in evidence during his closing statement. This issue was raised 

during petitioner’s PCR hearing and the judge correctly denied it. According to “clearly 

established federal law,” a prosecutor’s statements only violate the Constitution if they “so 

infected the trial with unfairness as to make the resulting conviction a denial of due process.” 

Parker, 567 U.S. at 576 (citing Darden v. Wainwright, 477 U.S. 168 (1968) (quoting Donnelly v. 

DeChristoforo, 416 U.S. 637, 643 (1974)). 

Courts do not consider a prosecutor’s objectionable comments in isolation, but will view 

them in light of the whole proceeding and against the weight of the evidence supporting the 

conviction. United States v. Zehrbach, 47 F.3d 1252 (3d Cir. 1995). Prosecutorial misconduct 

may occur when the government misstates material facts or introduces facts not in evidence. 

Marshall v. Hendricks, 307 F.3d 36, 65 (3d Cir. 2002). In Marshall, the prosecutor 

mischaracterized the testimony of one of the witnesses and personally vouched for a witness’s

credibility. Id. The court deemed this conduct improper, but found that it was insignificant 

enough to not have the “capacity to affect the jury’s deliberative process.” Therefore, the court 

held that the prosecutor’s statements did not amount to a Constitutional violation. 

Petitioner claims that the prosecutor improperly argued that Philson alone fired a gun at 

Officer Torres. However, the record does not support this statement. There is no evidence that 

the prosecution stated that Philson was the sole shooter. Unlike in Marshall, where the 

prosecutor mischaracterized the testimony of a witness, in this case the prosecutor accurately 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 11 of 13 PageID: 1636
12

represented the testimony of Officer Torres in his closing argument, and based his theory of the 

case on this testimony. Therefore, Petitioner’s claim of prosecutorial misconduct is denied. 

D. Excessive Sentencing

Finally, Petitioner contends that the disparity in sentencing between him and his codefendant violated the due process clause of the Fourteenth Amendment. Philson was sentenced 

to sixty years while his co-defendant, Martin, was only sentenced to twelve years. The Supreme 

Court has held that gross disparity in sentencing alone is not sufficient to invoke due process or 

equal protection. Dorszynski v. United States, 418 U.S. 424 (1974). The disparity must be the 

result of discrimination based on race, sex, or similar ground. Yick Wo v. Hopkins, 118 U.S. 

356 (1886). Here, no evidence of impermissible discrimination in the sentencing of Mr. Philson 

is evident from the record. Petitioner was convicted of 16 criminal offenses compared to 

Martin’s 6 convictions. As the judge at the PCR hearing indicated, “there are numerous counts 

in which this defendant was found guilty by the jury, committing heinous acts that the defendant 

Martin did not plead guilty to, was not found guilty of, was not convicted of, and was not 

sentenced for.” PCR Hr’g Tr. 38:12-16, April 25, 2008 [docket entry no. 21 Ex. 3]. Therefore, 

Petitioner’s sentence was not imposed in violation of the Fourteenth Amendment. 

VII. Conclusion

The Court next must determine whether a certificate of appealability should issue. See

Third Circuit Local Appellate Rule 22.2. The Court may issue a certificate of appealability only 

if the Petitioner “has made a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason 

could disagree with the district court's resolution of his constitutional claims.” Miller–El v. 

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 12 of 13 PageID: 1637
13

Cockrell, 537 U.S. 322, 327 (2003). Here, Petitioner failed to make a showing of the denial of a 

constitutional right, and the Court believes jurists of reason would not disagree with this 

conclusion.

For the foregoing reasons, the Court dismisses the Petition as untimely and without merit 

and denies a certificate of appealability.

_/s/ Joel A. Pisano_______

JOEL A. PISANO 

United States District Judge

Dated: August 3, 2012

Case 3:11-cv-01884-JAP Document 27 Filed 08/03/12 Page 13 of 13 PageID: 1638