COMMONWEALTH OF PENNSYLVANIA v. BURTON

Filing 48

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 12/11/13. 12/11/13 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRANKIE GERALD BURTON,
Petitioner,

CIVIL ACTION
NO. 07-1359

v.
STEVEN R. GLUNT, et al.,
Respondents.
OPINION
Slomsky, J.
I.

December 11, 2013

INTRODUCTION
Before the Court are Objections to the Report and Recommendation of United States

Magistrate Judge Thomas J. Rueter recommending the denial of the revised Petition for a Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Frankie Gerald Burton (“Petitioner”).
(Doc. No. 47.) Petitioner seeks relief based on a variety of alleged constitutional violations.
Following a review of the filings by the parties and the pertinent record, the Magistrate
Judge issued a Report, recommending that the Petition for a Writ of Habeas Corpus be denied
and that a certificate of appealability not be issued. (Doc. No. 44.) As noted, Petitioner has filed
Objections to the Report and Recommendation. (Doc. No. 47.) For reasons that follow, the
Court will adopt the Magistrate Judge’s Report and Recommendation and deny the revised
Petition for a Writ of Habeas Corpus.1

1

For purposes of this Opinion, the Court has considered the following: the revised Petition for a
Writ of Habeas Corpus (Doc. No. 15), Memorandum of Law in Support of the Petition with
accompanying exhibits (Doc. Nos. 25-26), Respondents’ Response in Opposition (Doc. No. 38),
Petitioner’s Reply to the Response (Doc. No. 43), the Magistrate Judge’s Report and
Recommendation (Doc. No. 44), Petitioner’s Objections to the Report and Recommendation
(Doc. No. 47), and the relevant state court record.
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II.

BACKGROUND
On July 16, 1999, after a seven-day jury trial, Petitioner was convicted of multiple

offenses including robbery, indecent assault, aggravated assault, simple assault, theft of movable
property, receipt of stolen property, criminal trespass, criminal solicitation, terroristic threats,
burglary, attempted theft of a motor vehicle, and attempted kidnapping. Com. v. Burton, Nos.
6091-1998, 6875-1998, slip op. at 1 (C.P. Mtgy. Feb. 14, 2011). These charges stemmed from “a
series of offenses relating to a violent and terrorizing crime spree he engaged in on the night of
August 30, 1998.” Id. The trial court set forth the facts of that crime spree as follows:
On August 30, 1998, . . . a man on a bicycle approached [K.V.], then aged
thirteen, and asked her whether she liked a musical group named “Bones, Thugs
and Harmony.” He then asked if she “wanted to get it on,” blocked her path with
his bicycle and grabbed her buttocks. [K.V.] . . . identified that man as [appellant].
The time was approximately 6:47 p.m.
At 7:40, police learned of a woman [Diane Foreman] approximately one mile
away in Horsham Township who reported a man matching [appellant’s]
description, and riding a bicycle, approached her as she walked on the street,
talked to her and finally grabbed her buttocks. Although this victim was
approximately 30 years old, . . . her appearance resembled that of a teenage girl. .
. . [S]he wore shorts, a t-shirt, sneakers and a ponytail, and . . . [appellant] “kept
asking [her] how old [she] was.” She would also testify that [appellant] was
wearing a portable CD player on his waistband.
At approximately 8:20 p.m., in Hatboro, Morris Shatzkin, 76, was assaulted by a
man he identified as [appellant], who attempted to steal his automobile in the
parking lot of a fast-food restaurant. [Mr. Shatzkin testified] that [appellant]
“reeked of alcohol,” that [appellant] demanded his wallet, and that [appellant] told
him he ( [appellant] ) was in trouble and wanted Shatzkin to “take him
somewhere.” The location of this attempted robbery was approximately one mile
from the previous incident. Between 9:00 p.m. and 9:20 p.m., a man identified as
[appellant], and riding a blue Huffy mountain bike, approached [R.E.] and [C.A.],
aged 15 and 17, respectively, . . . and attempted to rob them of money. This
incident occurred less than one-quarter mile from the attempted carjacking.
At approximately 10:00 p.m., police received a report of an attempted burglary of
the McPeak residence, only fifty yards from the attempted robbery of [R.E.] and
[C.A.]. At approximately 10:15 p.m., police received a report of a burglary from
the Frieman residence, which abuts the back yard of the McPeak residence. For
both the McPeak and Frieman residences, children’s toys were in the yards, and
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were visible from the street. . . . [O]ne of the residents of the burgled homes had
seen [appellant] riding his bicycle through the neighborhood, looking down the
driveways, into the yards.
Finally, at 10:54 p.m., police received a report that a man matching [appellant’s]
description had broken into the Staples residence, less than one-quarter mile
away, and had attempted to abduct a girl before fleeing. The girl, [L.S.], was eight
years old at the time. She said that when she escaped from [appellant], she saw
her dog leap at [appellant] with his fangs bared, as if preparing to bite him on the
wrist. The police later investigated the crime scene at the Staples residence and
found a black glove that came from the Frieman residence. As with the McPeak
and Frieman residences, children’s toys in the back yard were visible from the
street.
As soon as they received the last report, police went to a park approximately 50 to
100 yards from the Staples residence. There they found a blue Huffy mountain
bike near the park entrance. Next to the bicycle was a woman’s purse, which
contained identification belonging to Lisa Frieman. Protruding from the purse
was a portable CD player. The officers then saw and apprehended [appellant]. He
exuded an odor of alcoholic beverage. A search of his pockets revealed a set of
automobile keys belonging to the Staples family. He also carried a CD by the
musical group “Bones, Thugs and Harmony.” He was bleeding from what
appeared to be puncture wounds on his wrists. He told the officers the bicycle was
his, and that he had stolen the purse by breaking through a screen and entering a
home. He also stated that he had cut his arm by punching through a glass pane to
burglarize another house, and had knocked a girl down a flight of steps during this
burglary.
Com. v. Burton, 770 A.2d 771, 775-76 (Pa. Super. Ct. 2001) (quoting Trial Court Opinion,
6/19/00, at 16-18 (alterations in original) (citations omitted)) (footnote omitted).
Following his conviction, Petitioner was sentenced to an aggregate term of incarceration
of forty-two to one-hundred-eighteen years. Burton, Nos. 6091-1998, 6875-1998, slip op at 1
(C.P. Mtgy. Feb. 14, 2011). On appeal, the Superior Court of Pennsylvania affirmed the
judgment of sentence, and the Supreme Court of Pennsylvania denied Petitioner’s request for
review on February 10, 2005. Id. at 1-2.
On January 12, 2006, petitioner filed a pro se petition pursuant to Pennsylvania’s Post
Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Id. at 2. Petitioner later

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obtained counsel who filed an amended PCRA petition on June 25, 2010. Id. A hearing was
conducted over the course of three days: August 19, October 25 and November 24, 2010. Id. On
November 11, 2010, prior to the conclusion of the PCRA hearing, Petitioner filed a motion to
proceed pro se and terminate the representation by his PCRA counsel.2 (Doc. No. 25 at 39.) On
December 30, 2010, the PCRA court denied the amended PCRA petition. Com. v. Burton, Nos.
6091-1998, 6875-1998, slip op. at 4 (C.P. Mtgy. Dec. 30, 2010). Petitioner appealed on January
11, 2011, and the Superior Court affirmed the decision of the PCRA court. Com. v. Burton, No.
255 EDA 2011, slip op. at 10-11 (Pa. Super. Ct. Feb. 8, 2012). The Supreme Court of
Pennsylvania subsequently denied Petitioner’s request for allowance of an appeal on June 27,
2012.
During the PCRA process, Petitioner brought the instant habeas litigation by filing a
Petition Seeking Abeyance of Stay in the Above Matter on Appeal in the Lower Court on April 3,
2007. (Doc. No. 1.) The Court granted the Motion and stayed Petitioner’s habeas case pending
exhaustion of his state court remedies. (Doc. No. 2.) After the Supreme Court of Pennsylvania
denied Petitioner’s request for allowance of an appeal from the PCRA court’s decision, Petitioner
filed a revised pro se Petition for a Writ of Habeas Corpus on August 20, 2012. (Doc. No. 15.)
The Petition contained seventeen claims for relief, some with subparts. (See id. at ¶ 12.) On
September 12, 2012, this Court referred the case to Judge Rueter for a Report and
Recommendation. (Doc. No. 18.) Judge Rueter issued his Report and Recommendation on

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On February 22, 2011, PCRA counsel filed a motion to withdraw as counsel in the case, and a
waiver of counsel hearing was held on May 11, 2011. (Doc. No. 25 at 40.) At that hearing,
“[P]etitioner voluntary [sic] and intelligently waived his right to representation, and his desire to
proceed pro se on appeal.” (Id.) The court granted PCRA counsel’s motion to withdraw, and
Petitioner was no longer represented by counsel.
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April 23, 2013 (Doc. No. 44), and Petitioner filed Objections to the Report on June 26, 2013
(Doc. No. 47). Those Objections are now before the Court.
III.

STANDARD OF REVIEW
A. 28 U.S.C. § 2254 Review
Pursuant to 28 U.S.C. § 2254(d), federal habeas relief is precluded on:
any claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal Law, as
determined by the Supreme Court of the United States, or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). This is a deferential standard of review. When the state court has not
adjudicated a petitioner’s claims on the merits, however, the federal court conducts de novo
review. Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010); see also Coombs v. Diguglielmo,
616 F.3d 255, 261 (3d Cir. 2010) (reviewing petitioner’s Batson v. Kentucky claim de novo since
state courts did not review it on the merits). Regardless of whether a petitioner’s claims were
adjudicated on the merits, factual determinations made by a state court are presumed correct
unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Palmer, 592
F.3d at 392 (quoting Simmons v. Beard, 581 F.3d 158, 165 (3d Cir. 2009)).
B. De Novo Review of Objections to Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1)(B) and the local rules of this Court, a district judge
may designate a magistrate judge to file proposed findings and recommendations. Any party
may file written objections in response to those findings. Id. § 636(b)(1)(C). In the Eastern
District of Pennsylvania, Local Rule 72.1.IV(b) governs Petitioner’s objections to the Magistrate
Judge’s Report and Recommendation. Under this Rule, Petitioner must “specifically identify the
portions of the proposed findings, recommendations or report to which objection is made and the
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basis for such objections . . . .” Savior v. Superintendent of Huntingdon SCI, No. 11-5639, 2012
WL 4206566, at *1 (E.D. Pa. Sept. 20, 2012) (quoting Local R. Civ. P. 72.1.IV(b)). With respect
to pro se litigants, however, this rule may be relaxed. See McCabe v. Pennsylvania, 419 F. Supp.
2d 692, 695 (E.D. Pa. 2006) (treating pro se litigant’s letter to court as objection triggering de
novo review, “[a]lthough Petitioner did not file formal objections to the Report and
Recommendation”).
Once objections are filed, the district judge “shall [then] make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which
objection is made. [The judge] may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C). The Third Circuit has
“assumed that the normal practice of the district judge is to give some reasoned consideration to
the magistrate’s report before adopting it as the decision of the court.” Henderson v. Carlson,
812 F.2d 874, 878 (3d Cir. 1987); see also Bolt v. Strada, No.12-1599, 2013 WL 4500466, at *1
(M.D. Pa. Aug. 21, 2013).
IV.

ANALYSIS
In his revised Petition for a Writ of Habeas Corpus, Petitioner raised seventeen claims for

relief, some with subparts. The Magistrate Judge reviewed all seventeen claims, and this Court
will now review Petitioner’s objections to the Report and Recommendation. Because the
Magistrate Judge found many of the claims procedurally defaulted, the Court will briefly discuss
the standard for determining when a claim is procedurally defaulted.
Under federal habeas corpus standards, the concepts of procedural default and exhaustion
go hand-in-hand. It is firmly established that a petitioner must present all of his claims to a
state’s intermediate court, as well as to its supreme court, before a federal district court may
entertain a petition for a writ of habeas corpus. See 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.
6

Boerckel, 526 U.S. 838, 845 (1999); Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012) cert.
denied, 133 S. Ct. 669 (2012); Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citations
omitted). To satisfy this exhaustion requirement, a petitioner must show that the claim raised in
the federal habeas petition was “fairly presented” to the state courts. Duncan v. Henry, 513 U.S.
364, 365-66 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). To demonstrate that a
claim has been fairly presented to the state courts, a petitioner must show that the claim is “the
substantial equivalent of that presented to the state courts. Both the legal theory and the facts
supporting a federal claim must have been submitted to the state courts.” Lesko v. Owens, 881
F.2d 44, 50 (3d Cir. 1989) (citations omitted).
When a petitioner cannot obtain state court review of his claims because of
noncompliance with state procedural rules,3 the doctrine of procedural default generally operates
to bar federal habeas review. See Coleman v. Thompson, 501 U.S. 722, 729-32 (1991).
According to the Third Circuit, “[p]rocedural default occurs when a claim has not been fairly
presented to the state courts (i.e., is unexhausted) and there are no additional state remedies
available to pursue . . . .” Rolan, 680 F.3d at 317 (citations omitted).4 Upon a finding of
procedural default, “federal habeas review of the claims is barred unless the [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 will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750.
3

The relevant state procedural rule here is 42 Pa. Cons. Stat. Ann. § 9545(b)(1), which mandates
that “[a]ny [PCRA] petition . . . shall be filed within one year of the date the judgment becomes
final[,]” unless an exception applies.
4

Procedural default may also occur “when an issue is properly asserted in the state system but
not addressed on the merits because of an independent and adequate state procedural rule . . . .”
Rolan, 680 F.3d at 317 (citations omitted)
7

Thus, procedural default will be excused if a petitioner can show cause, or a reason, for
the default and prejudice resulting from the alleged federal violation. “Cause” for default
“ordinarily requires a showing of some external impediment preventing counsel from
constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492 (1986). For example,
cause is shown when “the factual or legal basis for a claim was not reasonably available to
counsel, or . . . ‘some interference by officials,’ made compliance impracticable . . . .” Id. at 488
(internal citations omitted). On the other hand, “the mere fact that counsel failed to recognize the
factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not
constitute cause for a procedural default.” Id. at 486.
To demonstrate prejudice, Petitioner must show:
“[N]ot merely that the errors at . . . trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.” Such a showing of pervasive actual
prejudice can hardly be thought to constitute anything other than a showing that
the prisoner was denied “fundamental fairness” at trial.
Id. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). If both cause and
prejudice are successfully shown, procedural default will be excused, and the Court may review
the merits of the claim. Procedural default of a claim may also be excused if the petitioner
successfully demonstrates that failure to consider the claim will result in a fundamental
miscarriage of justice.
A. Petitioner’s Objection Regarding Claim One is Unavailing, As a Citation to a
Single Federal Case Does Not Make a Claim of Alleged Violations of State Law
Cognizable on Federal Habeas Review
Petitioner first objects to the Magistrate Judge’s finding that Petitioner’s claim―that the
trial court erred in granting the State’s motion to consolidate the charges and denying Petitioner’s
motion to sever the charges―is not cognizable on federal habeas review. (Doc. No. 47 at 1.)

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The Magistrate Judge found that Petitioner did not assert a federal constitutional violation in his
first claim, and therefore, the claim is not cognizable here because habeas relief cannot be
granted for alleged violations of state law. (Doc. No. 44 at 15-16.) Petitioner objects to the
Magistrate Judge’s finding and contends that his citation to Haley v. Blue Ridge Transfer Co.,
Inc., 802 F.2d 1532 (4th Cir. 1986) renders this claim cognizable. (Doc. No. 47 at 1.)
Petitioner’s objection is unavailing.
First, Petitioner did not rely on the Haley case in making his arguments. Instead, the case
is simply cited by the Supreme Court of Pennsylvania in Carter by Carter v. U.S. Steel Corp.,
529 Pa. 409 (1992), on which Petitioner relies. (Doc. No. 25 at 18.) Second, even if Petitioner
relied on Haley in his first claim, simply citing a single federal case does not establish that
Petitioner’s claim based on a federal constitutional violation. For these reasons, the Court agrees
with the Magistrate Judge’s finding that Petitioner’s first claim alleges violations of state law and
is therefore not cognizable on federal habeas review.
B. Petitioner’s Objections Regarding Claim Two are Not Persuasive, As He Failed
to Demonstrate that the Procedural Default of this Claim Should be Excused
For multiple reasons, Petitioner objects to the Magistrate Judge’s finding that his second
claim is procedurally defaulted. In his second claim, Petitioner alleged that the trial court erred
in allowing various witnesses to identify him in court after they failed to identify him in a pretrial
photo array. (Doc. No. 25 at 19-25.) The Magistrate Judge was not persuaded by Petitioner’s
arguments, and Petitioner now lodges various objections. First, Petitioner objects to the
Magistrate Judge’s finding that Petitioner’s claim regarding witness Morris Shatzkin is
procedurally defaulted. (Doc. No. 47 at 1-2.) Second, Petitioner objects to the Report for finding
that his claim regarding witness Angela Johnson is also procedurally defaulted. (Id. at 2.) Third,
Petitioner disagrees with the Magistrate Judge’s finding that Petitioner did not sufficiently allege
9

cause and prejudice to excuse the procedural default of his claim regarding witnesses Laura
Staples and Dave Frieman. (Id.) The Court will address each objection seriatim.5
First, Petitioner objects to the finding that his second claim relating to witness Morris
Shatzkin is procedurally defaulted. On direct appeal, the Superior Court of Pennsylvania
explained that “[b]ecause [Petitioner] raised the issue of whether the court erred in allowing
those witnesses that were unable to identify [Petitioner] in the photo array to identify him during
court proceedings, he preserved this issue as to Mr. Shatzkin only if Mr. Shatzkin was unable to
identify him in the photo array.” Burton, 770 A.2d at 780 (emphasis added). The Superior Court
reviewed the record and found that because Morris Shatzkin “was positive about his photo
identification[,]” this claim had been waived as it related to this specific witness. Id. Due to this
waiver, the Magistrate Judge concluded that the claim is procedurally defaulted. (Doc. No. 44 at
18.) Despite Petitioner’s contention that Morris Shatzkin was not sure about his photo
identification of Petitioner, a review of the record reveals otherwise. Morris Shatzkin’s relevant
testimony is as follows:
Q. [Trial Counsel] And when you went and viewed the photographs, you weren’t a
hundred percent sure at that time, correct?
A. [Morris Shatzkin] I was pretty sure when I saw the photographs.
Q. Were you a hundred percent sure?
A. Yes, I was, or I would not have identified him.
(N.T., June 17, 1999, 108:8-12.) Petitioner has failed to present clear and convincing evidence to
rebut the state court’s factual determination that Morris Shatzkin was sure about his photo
5

Petitioner makes no specific objection to the Report regarding witnesses Kathleen Veillet and
Jackie Werner. Instead, he simply states that he clearly set forth facts of record that establish that
these witnesses’ in-court identifications of Petitioner were unreliable. (Doc. No. 47 at 2.)
Because Petitioner did not make a specific objection to the Report’s finding regarding these two
witnesses, the Court will not review the claim further.
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identification of Petitioner. Thus, because the state court found this claim waived, the Magistrate
Judge was correct in finding it procedurally defaulted.
Second, Petitioner objects to the Magistrate Judge’s finding that his second claim relating
to witness Angela Johnson is also procedurally defaulted. (Doc. No. 47 at 2.) The Magistrate
Judge found this claim defaulted because it had not been raised before the state courts. (Doc.
No. 44 at 18.) Petitioner objects and contends that he raised this claim on direct appeal. (Doc.
No. 47 at 2.) Petitioner did not raise a claim about the trial court’s error in allowing Angela
Johnson to identify him in court. Instead, Petitioner argued on direct appeal that trial counsel
was ineffective for failing to call her as a witness for the defense. Burton, 770 A.2d at 788. The
claim about trial court error was not raised, and therefore, the Magistrate Judge was correct in
finding that this claim is procedurally defaulted and unreviewable here.
Third, Petitioner objects to the Report’s finding that he did not sufficiently allege cause
and prejudice to excuse the procedural default of his claim regarding witnesses Laura Staples and
Dave Frieman. (Doc. No. 47 at 2.) Petitioner contends that the asserted grounds for excusing
the procedural default of his fourth claim, infra, also operate to excuse the default of this second
claim as it relates to these two witnesses. (Id.) In his fourth claim, Petitioner alleged that trial
counsel was ineffective for failing to request live lineups prior to trial for Laura Staples and Dave
Frieman. (Doc. No. 25 at 25-27.) This argument differs from his second claim, in which he
contends that the trial court erred by allowing these two witnesses to identify him in court. (Id.
at 19-25.) Furthermore, Petitioner’s discussion of his fourth claim is devoid of any discussion of
cause and prejudice or a fundamental miscarriage of justice to excuse procedural default. (See
id. at 25-27.) Because this second claim regarding witnesses Laura Staples and Dave Frieman
was not raised before the state courts, the Magistrate Judge was correct in finding this claim

11

procedurally defaulted and unreviewable here. Petitioner failed to allege grounds to excuse the
procedural default of this claim.
C. Petitioner’s Objection Regarding Claim Three is Without Merit Because He Did
Not Present Clear and Convincing Evidence that the State Court’s Decision
Regarding the Photo Array was Based on an Unreasonable Determination of the
Facts in Light of the Evidence Presented
Petitioner also objects to the finding in the Magistrate’s Report that Petitioner’s claim that
the pre-trial photo lineup was unduly suggestive is without merit. (Doc. No. 15 at ¶ 12, Ground
Three.) Though Petitioner did not brief this issue in his supporting Memorandum of Law, the
Magistrate Judge nonetheless reviewed the claim in detail. In his third claim, Petitioner argued
that the photo array used in this case was unduly suggestive because he is a light skinned black
male, and the other individuals are all dark skinned black males or a light skinned Hispanic male.
(Doc. No. 15 at ¶ 12, Ground Three.) He also argued that the photo lineup was unduly
suggestive because he was the only person wearing a white t-shirt, while the other men wore
dark colored shirts, turtleneck shirts, high collared coats, jackets, or sweaters. (Id.)
Presumably because this third claim was not briefed in Petitioner’s supporting
Memorandum of Law, Respondents did not address it in their opposition papers. Petitioner
contends that because Respondents failed to object to this claim in their Response, the Magistrate
Judge should have deemed their argument waived and thus granted his prayer for relief on this
claim. (Doc. No. 47 at 2.) The Court disagrees. Because Respondents opposed every claim that
Petitioner briefed in his Memorandum of Law, it was reasonable for the Magistrate Judge to
proceed as if Respondents also opposed Petitioner’s third claim, which was not discussed in his
supporting Memorandum of Law. Similarly, the Court will not treat this claim as being
unopposed by Respondents.

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Petitioner objects to the Magistrate Judge’s findings regarding this claim and contends
that he “set forth clear and convincing evidence that the photo lineup was unduly suggestive,
violated his due process rights, and resulted in irreparable misidentification.” (Id.) In addition to
providing a copy of the photo array (Doc. No. 26, Exhibit A), Petitioner alleged the following in
his Petition:
The photographic array’s [sic] prominently emphasized petitioner. He was
singled out to the witnesses. Petitioner and one other individual are the only two
in the photo-lineup that resembles [sic] the varying descriptions giving [sic] by
the witnesses. Petitioner is a light skinned black male, and one other individual
appears to be a light skinned Hispanic male, while all other individuals are dark
skinned black males. Petitioner is the only person in the lineup wearing a white tshirt, while the other men are wearing dark colored shirts, turtle-neck shirts, high
collared coats, jackets or sweaters. This clothing was distinguished of the suspect
[sic], as described by the witnesses, where the crimes were committed at the end
of summer (August 30, 1998).
(Doc. No. 15 at ¶ 12, Ground Three.) Despite Petitioner’s contentions, this averment with a copy
of the photo array is not clear and convincing evidence sufficient to rebut the factual findings of
the state court, which concluded that the display was not unduly suggestive. See Burton, 770
A.2d at 782. The Court agrees with the Magistrate Judge that this claim is without merit and
should be denied.
D. Petitioner’s Objection Regarding Claim Four is Unfounded, As He Set Forth No
Grounds to Excuse the Procedural Default of this Ineffective Assistance of
Counsel Claim
Petitioner next objects to the Magistrate Judge’s finding that his fourth claim is
procedurally defaulted. In this claim, Petitioner alleged that trial counsel was ineffective for
failing to request a pre-trial lineup for witnesses Laura Staples, Morris Shatzkin, and Dave
Frieman. (Doc. No. 25 at 25-27.) The Magistrate Judge found this claim procedurally defaulted,
as this specific claim was not previously presented to the state courts. (Doc. No. 44 at 25.)

13

On direct appeal, Petitioner raised a claim of trial counsel’s ineffectiveness for failing to
request a live, pre-trial lineup after some witnesses allegedly could not identify Petitioner in a
photo array. Burton, 770 A.2d at 786. Petitioner did not specifically identify which witnesses he
was referring to, however, and the Superior Court presumed that he was referring to Amanda
Smith, Kathleen Veillet, and Jackie Werner.6 Id. at 786-87. The specific ineffective assistance of
counsel claim regarding trial counsel’s failure to request pre-trial lineups for Laura Staples,
Morris Shatzkin, and Dave Frieman was not presented to the state court on direct or collateral
appeal. The Magistrate Judge is correct that this claim is procedurally defaulted. Contrary to
Petitioner’s assertions, he has failed to set forth any evidence of a fundamental miscarriage of
justice that would excuse the procedural default of this claim. Rather, he simply states that “a
fundamental miscarriage of justice committed by the Superior Court on direct appeal for their
errs [sic] of raising and deciding upon the merits of this underlying claim that should have been
deemed defaulted or waived on appeal.” (Doc. No. 47 at 3.) This is not sufficient to excuse the
procedural default of this claim.7

6

The Superior Court did not explain why it focused on these three witnesses. However,
Petitioner specifically named these three witnesses in another claim in which Petitioner similarly
alleged that they could not identify him in a photo array. Burton, 770 A.2d at 779. The Superior
Court most likely understood the instant ineffective assistance of counsel claim to refer to the
same three witnesses, Amanda Smith, Kathleen Veillet, and Jackie Werner, because in this claim,
Petitioner similarly alleged that witnesses were unable to identify him in a photo array. (See
Doc. No. 25 at 25 (“[T]he Superior Court ‘presumed’ counsel was arguing the same three
‘unnamed’ witnesses raised in another matter.”).)
7

Both the Magistrate Judge and Respondents interpret Petitioner’s papers to simultaneously
argue that his appellate counsel was ineffective for failing to specifically name which witnesses
Petitioner was referring to on direct appeal. Upon review, however, Petitioner did not raise this
claim in his revised Petition. In his supporting Memorandum of Law, Petitioner states that his
appellate counsel failed to specifically name the witnesses he was referring to, but he does not
expand further or provide any ineffective assistance of counsel analysis as to appellate counsel.
(Doc. No. 25 at 25-27.) In his Objections, Petitioner explains that he “did not need to raise the
ineffective assistance of his appellate counsel, but did so as a cautionary matter.” (Doc. No. 47 at
14

E. Petitioner’s Objections Regarding Claim Five are Without Merit, As His Claim
That His Arrest Was Not Supported by Probable Cause is Not Cognizable Here,
and His Claim That He Was Questioned Without Being Given a Miranda
Warning is Without Merit
Petitioner’s Objections regarding his fifth claim are without merit. Petitioner’s fifth
claim was two-fold. First, he alleged that he was arrested without probable cause. (Doc. No. 25
at 28-31.) Second, he alleged that he was questioned by police without being given Miranda
warnings advising him of his rights. (Id. at 31.) The Magistrate Judge recommended that the
entire claim be denied, and Petitioner’s objections are discussed below.
1. Petitioner’s Fourth Amendment Claim
In his Petition, Petitioner alleged that his arrest was not supported by probable cause
because “the arresting officers had vague general descriptions of the suspect in some of the
crimes, and in others, descriptions that were totally inconsistent to [P]etitioner’s characteristics,
or the witnesses failed to give a description at all.” (Doc. No. 25 at 29.) In reviewing this claim,
the Magistrate Judge cited to Stone v. Powell, in which the Supreme Court held that Fourth
Amendment claims are barred on habeas review when the petitioner had a full and fair
opportunity to litigate those claims in front of the state court. 428 U.S. 465 (1976). “The Third
Circuit Court of Appeals has concluded that a habeas petition [sic] had an opportunity for full
and fair litigation where [1] the state court provided an opportunity for a pretrial suppression
motion and [2] the Superior Court considered the claim on appeal.” Carl v. Good, No. 05-0353,
2007 WL 4198417, *5 (M.D. Pa. Nov. 20, 2007) (citing Reinert v. Larkin, 211 F. Supp. 2d 589,
597 (E.D. Pa. 2002), aff’d, 379 F.3d 76 (3d Cir. 2004)).

3.) Contrary to Petitioner’s assertion, this claim was not raised in his habeas Petition or the
supporting Memorandum of Law. Therefore, the Court will not consider Petitioner’s objection
as it relates to his appellate counsel’s supposed ineffective assistance.
15

Here, the state courts rejected Petitioner’s Fourth Amendment claim after a suppression
hearing and on direct appeal. (Doc. No. 44 at 26.) Thus, Petitioner had a full and fair
opportunity to litigate this claim, and Stone bars the Court’s review of the claim now. In his
Objections, Petitioner states that “he does not have sufficient information and knowledge to
dispute the precedent cited by the [M]agistrate.” (Doc. No. 47 at 4.) Rather than specifically
identify the portion of the Magistrate Judge’s Report to which he objects and the basis for such
objections, Petitioner simply reiterates the same arguments he made in his Petition―arguments
that the Magistrate Judge deemed meritless. Because Petitioner failed to demonstrate that he did
not have a full and fair opportunity to litigate this Fourth Amendment claim in state court, the
Magistrate Judge is correct that this claim is barred from review here.
2. Petitioner’s Miranda Claim
Similar to the claim above, Petitioner does not specifically identify the portion of the
Report and Recommendation to which he objects and the basis for such objections. Instead,
Petitioner simply reiterates the same arguments found in his Petition and supporting
Memorandum of Law. In his Petition, Petitioner alleged that his constitutional rights were
violated when the arresting officer questioned Petitioner before giving him Miranda warnings.
(Doc. No. 25 at 31.) According to Petitioner, after he was placed under arrest, Officer John Carr
walked Petitioner to the spot in the park where a bicycle and a woman’s purse were found and
asked Petitioner whether the items belonged to him. (Id.) Petitioner also alleges that once he
was inside the police car, Officer Carr elicited more statements from him. (Id.) Petitioner
alleges that the incriminating statements he gave were then used against him at trial. (Id.)
According to Petitioner, it was only after he made those statements that Officer Carr gave him
his Miranda warnings. (Id.)

16

Petitioner raised this claim on direct appeal, and the Superior Court of Pennsylvania
concluded that the claim was meritless. Burton, 770 A.2d at 784. Although Petitioner does not
specifically object to the Magistrate Judge’s finding on this issue, he reiterates that the Superior
Court’s findings were based on conflicting testimony of the two officers who were on the scene
when Petitioner was arrested. (Doc. No. 47 at 4.) This Court has reviewed the relevant state
court record, which reveals that Officer William Krzemien seemingly contradicted both himself
and the testimony of the arresting officer, Officer Carr.8
Notwithstanding these contradictions in the record, the Superior Court’s decision on
PCRA appeal did not result from an unreasonable determination of the facts in light of the
evidence presented at the various state proceedings. As noted by the Magistrate Judge in his
Report, the police officer who actually arrested Petitioner and read him Miranda warnings
testified consistently that he read Petitioner the warnings before questioning him. Unlike Officer
Krzemien, Officer Carr was consistent in his testimony, and the trier of fact ultimately found his
testimony to be credible. Because Petitioner has failed to present clear and convincing evidence

8

The trial transcript from June 16, 1999 reveals that Officer Krzemien provided conflicting
testimony. On direct examination, Officer Krzemien testified that after Petitioner was arrested
by Officer Carr, Petitioner was placed in the back of the patrol car and read his Miranda rights.
(N.T., June 16, 1999, 78:20˗21.) Then, on cross examination, Officer Krzemien testified that
when the officers were walking back to the police car with Petitioner, Officer Carr asked
Petitioner whether the bike belonged to him, and Petitioner said the bike was his. (Id. at
138:2˗139:4.) Afterwards, Petitioner was placed in the car, and Officer Carr read his Miranda
rights to him. (Id. at 139:12-16.) On re-direct, however, Officer Krzemien testified that when
Petitioner stated that the bike was his, that statement was not in response to any question asked
by either officer on the scene. (Id. at 142:13˗143:3.) Officer Krzemien then explained that
Petitioner was not questioned by Officer Carr until he was placed in the police car and given
Miranda warnings. (Id. at 143:4˗18.) On re-cross, however, Officer Krzemien repeated his
earlier testimony and explained that Officer Carr asked Petitioner about the bike while they were
walking back to the police car. (Id. at 146:24˗148:14.)
17

that he was questioned without being read his Miranda rights, the Magistrate Judge was correct
to find this claim meritless.9
F. Petitioner’s Objection Regarding Claim Six is Unfounded, As Consideration of
Allegedly Contradictory Testimony of the Responding Officer Would Not Alter
the Magistrate Judge’s Analysis
Next, Petitioner objects to the Magistrate Judge’s treatment of his sixth claim, in which
Petitioner alleged that there was insufficient evidence to convict him of attempted burglary of the
McPeak residence. (Doc. No. 31-34.) The Magistrate Judge reviewed the Superior Court’s
analysis of this claim when Petitioner raised it on direct appeal. (Doc. No. 44 at 31.) After his
review, the Magistrate Judge found this claim to be without merit. (Id. at 32.) Petitioner objects
that the Magistrate Judge did not specifically consider the contradictory testimony given by
Officer Steven Plum when reviewing this claim. (Doc. No. 47 at 4.)
In reviewing this sixth claim, the Magistrate Judge considered whether the state court
made a reasonable determination of the facts in light of the evidence presented, and was neither
contrary to, nor an unreasonable application of, clearly established federal law. On direct appeal,
the Superior Court of Pennsylvania reviewed this claim and applied a standard that is “virtually
identical” to that required under federal law. (Doc. No. 44 at 31.) The Superior Court detailed
all of the evidence which supported Petitioner’s conviction of attempted burglary. A portion of
that evidence included observations and testimony by the responding police officer, Officer
Plum. In relevant part, the Superior Court noted:
Hatboro Police Officer Steven Plum, who processed the McPeak crime scene,
found a shoe impression on the seat of the chair under the window, which was
similar to the tread on the shoes [Petitioner] wore at the time of his arrest. Officer
9

Petitioner also objects to the Report and Recommendation because the Magistrate Judge did not
discuss grounds for cause and prejudice to excuse procedural default. (Doc. No. 47 at 4.) The
Magistrate Judge did not find this claim to be procedurally defaulted, and for this reason, the
Report need not discuss the cause and prejudice exception to excuse procedural default.
18

Plum also found mud in the impression on the seat, and [Petitioner] had grass and
mud in the tread of his shoe.
Burton, 770 A.2d at 785 (internal citations omitted) (emphasis added). These were the only facts
related to Officer Plum that the Superior Court relied on when considering whether there was
sufficient evidence to convict Petitioner of attempted burglary of the McPeak residence.
In his Petition, Petitioner alleged, inter alia, that Officer Plum offered contradictory
testimony regarding whether the tread of Petitioner’s shoe matched the imprint made on the chair
found beneath the McPeaks’ window. (Doc. No. 25 at 32-33.) According to Petitioner, Officer
Plum first testified that the impression left on the lawn chair was a “definite match” to the treads
on the bottom of Petitioner’s shoes. (Id. at 33.) He contends that Officer Plum later testified that
the tread was a “similar match,” rather than a definite one. (Id.) The Court has searched the
notes of testimony in the state court record and cannot locate any portion of Officer Plum’s
testimony where he describes the shoes’ tread as a “definite match” to the imprint on the chair.10
When evaluating the sufficiency of the evidence on direct appeal, the Superior Court relied on
Officer Plum’s testimony that the imprint and Petitioner’s shoes were similar, rather than an
exact match. Thus, the Magistrate Judge did not need to consider Officer Plum’s allegedly
contradictory testimony that the prints were a definite match, as claimed by Petitioner. Thus, on
this ground, Petitioner’s objection to the Report is unfounded.

10

In fact, the trial court was careful to ensure that Officer Plum did not testify in this manner.
Officer Plum was not testifying as an expert in the case, and the trial court did not want the jury
to interpret his testimony as such. The trial court repeatedly explained that whether the shoe
imprint matched Petitioner’s shoes was a fact to be determined by the jury. (N.T., July 12, 1999,
172:20˗183:21.)
19

G. Petitioner’s Objections Regarding Claim Seven are Unavailing, As He Did Not
Set Forth Valid Grounds to Excuse the Procedural Default of His Claim Relating
to Diane Valaski, and His Claim Relating to Dr. Paul Hoyer is Without Merit
Petitioner objects to the findings in the Report and Recommendation regarding his
seventh claim, in which he alleged that trial counsel was ineffective for failing to call two
additional witnesses at trial: 1) Diane Valaski, a Hatboro police dispatcher, and 2) Dr. Paul J.
Hoyer, a forensic pathologist. (Doc. No. 25 at 34-39.) Because Petitioner did not raise the claim
with respect to Diane Valaski on direct appeal or in his PCRA petition, the Magistrate Judge
correctly found that this claim is procedurally defaulted. The Magistrate Judge likewise did not
find any grounds for cause and prejudice which would excuse the procedural default of this
claim. In his Objections, Petitioner simply states “that his Memorandum indeed established
cause and prejudice to excuse the default regarding this witness.” (Doc. No. 47 at 5.) Upon
review of Petitioner’s Memorandum of Law (Doc. No. 25), the Court finds no discussion of
cause and prejudice to explain why Petitioner failed to present this claim to the state courts.
Thus, this claim, as it relates to Diane Valaski, remains procedurally defaulted and is not
appropriate for federal habeas review.
The claim regarding Dr. Paul Hoyer was not procedurally defaulted, however, and the
Magistrate Judge found that Petitioner failed to demonstrate that trial counsel was ineffective for
failing to call Dr. Hoyer as a witness. (Doc. No. 44 at 35-36.) According to Petitioner, Dr.
Hoyer would have been a favorable witness because he prepared a pre-trial expert report in
which he stated that “[i]t is also possible that a fall against debris containing nails caused the
injuries [to Petitioner’s wrist].” (Doc. No. 25 at 35; Doc. No. 26, Exhibit H.) In that same
report, however, Dr. Hoyer also found that “[i]t is possible that a dog bite produced the injuries.”

20

(Doc. No. 26, Exhibit H.) In his Objections to the Magistrate Judge’s Report, Petitioner
contends:
No matter which conclusion is held, the fact that no one has produced evidence as
to what Dr. Hoyer would have actually testified to, makes his expert opinion, as
noted in his report, a favorable defense witness, in rebuttal of the
Commonwealth’s allegations in this case.
(Doc. No. 47 at 7.) Petitioner has failed to present any evidence that Dr. Hoyer was available
and would have testified on Petitioner’s behalf. In fact, Petitioner concedes that “no one has
produced evidence as to what Dr. Hoyer would have actually testified to . . . .” (Id.) Petitioner
accuses trial counsel and the Magistrate Judge of speculating as to what Dr. Hoyer would have
testified to, yet in the same breath, Petitioner can also do no more than speculate as to how Dr.
Hoyer would have testified. As the Superior Court noted on direct appeal, Petitioner failed to
provide any affidavits to support his claim that Dr. Hoyer was ready and willing to testify on his
behalf at trial. Thus, the Magistrate Judge is correct that this claim also fails.
H. Petitioner’s Objection Regarding Claim Eight is Unavailing, As This Claim Does
Not Involve a Constitutional Violation and is Not Cognizable Here
Petitioner objects to the Magistrate Judge’s finding that his eighth claim is not cognizable
on federal habeas review because it is based on an alleged error of state law. In this claim,
Petitioner alleged “that the lower and appellate court’s [sic] violated its [sic] own procedural rule
pertaining to [P]etitioner acting as ‘co-counsel’ [hybrid representation], when he was still
represented by an attorney, and the relinquishing of that right to counsel.” (Doc. No. 25 at 39.)
The Magistrate Judge found that this claim is not cognizable on federal habeas review because
Petitioner alleged errors of state, rather than constitutional, law. (Doc. No. 44 at 37.) Petitioner
objects to this finding and further argues that the state court violated his Sixth Amendment right

21

to counsel by permitting Petitioner to terminate his PCRA counsel’s representation and proceed
pro se before conducting a hearing on the issue. (Doc. No. 47 at 7-8.)
Despite Petitioner’s contentions, it is a “long-established principle that there is no
[constitutional] right to counsel in post-conviction collateral proceedings.” Moore v.
DiGuglielmo, 489 F. App’x 618, 627 n.5 (3d Cir. 2012) cert. denied, 133 S. Ct. 622 (U.S. 2012)
(citing Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012); Pennsylvania v. Finley, 481 U.S. 551,
555 (1987); Dunn v. Colleran, 247 F.3d 450, 467 (3d Cir. 2001)). Because Petitioner did not
allege a constitutional violation in his eighth claim, the Magistrate Judge was correct to find that
this claim is not cognizable on federal habeas review.
I. Petitioner’s Objection Regarding Claim Nine is Unfounded Because He Has Not
Set Forth Valid Grounds for Cause and Prejudice to Excuse the Procedural
Default of the Underlying Claim
Petitioner objects to the finding in the Report that Petitioner’s ninth claim of PCRA court
error is procedurally defaulted. (Doc. No. 47 at 8.) In his ninth claim, Petitioner alleged:
[T]he PCRA court erred in failing to grant post-conviction relief with respect to trial
counsel’s ineffective assistance for failing to object to a finding of two separate counts of
robbery written on one bill of information, and to the court sentencing Petitioner on both
count one (1) and count two (2) of robbery, where count one was never charged in the
case, and where count two was demurred by the court.
(Doc. No. 25 at 42) (emphasis added).
The Court agrees with the Magistrate Judge that this claim is procedurally defaulted but
for different reasons. The Magistrate Judge found this claim to be procedurally defaulted
because the Superior Court on PCRA appeal previously determined that the underlying claim of
trial counsel’s ineffectiveness had been waived since Petitioner did not raise it in his 1925(b)

22

statement.11 (Doc. No. 44 at 38-39.) Rather than allege trial counsel’s ineffectiveness in his
1925(b) statement, Petitioner argued that “PCRA counsel was ineffective for failing to
adequately develop and argue” claims of trial counsel and trial court error relating to the bill of
information. (Doc. No. 28-199 at ¶ 5) (emphasis added). The Superior Court found that the
underlying claim of trial counsel’s ineffectiveness had been waived, because in his 1925(b)
statement, Petitioner only raised a claim regarding PCRA counsel’s alleged ineffective
assistance. Burton, No. 255 EDA 2011, slip op. at 10-11 (Pa. Super. Ct. Feb. 8, 2012). Given the
Superior Court’s finding of waiver, the Magistrate Judge concluded that Petitioner’s instant claim
is procedurally defaulted. This would be correct if Petitioner alleged trial counsel’s
ineffectiveness here. However, Petitioner’s instant claim alleges that the PCRA court, rather than
trial counsel, committed errors. This specific claim of state court error has not been raised prior
to the instant habeas petition. Thus, Petitioner’s ninth claim is unexhausted, and because the
time has passed for Petitioner to raise this claim in state court, the claim is procedurally
defaulted.
Petitioner objects to the finding of procedural default, stating:
Petitioner objects to the [M]agistrate’s recommendation of claim #9, at page’s
[sic] 37-39, and n.8. Petitioner avers that claims 8 and 9 are of great
Constitutional dimensions, and a miscarriage of justice, where the facts
established in claim #8 proves the errs made by the PCRA and Superior Court,
which caused the waiver of claim #9.
(Doc. No. 47 at 8.) In his Objections, Petitioner argues that the facts established in claim eight
excuse the procedural default of claim nine. According to Petitioner, the PCRA court prevented
him from filing a supplemental concise statement to clarify and correct his original 1925(b)

11

Under Pennsylvania law, a 1925(b) statement is “a concise statement of the errors complained
of on appeal . . . .” Pa. R. App. P. 1925(b). Furthermore, “any issues not raised in a Rule
1925(b) statement will be deemed waived[.]” Com. v. Hill, 16 A.3d 484, 494 (Pa. 2011).
23

statement. (Doc. No. 25 at 40-42.) He contends that had he been given the opportunity to file
such a supplement, he would have corrected his statement to raise the issue of trial counsel’s
ineffectiveness, and thereby would have avoided the waiver of this claim. (Id.)
This argument is unavailing for two reasons. First, Petitioner provides no explanation for
why he initially failed to raise trial counsel’s ineffectiveness in his 1925(b) statement. Instead,
he provides explanations for why he was not able to correct the statement later. Second, as
explained above, Petitioner’s instant claim is an allegation of PCRA court error rather than trial
counsel’s ineffectiveness. For these reasons, Petitioner’s ninth claim is procedurally defaulted
and unreviewable here.
J. Petitioner’s Objection Regarding Claim Ten is Not Persuasive Because the
Magistrate Judge was Correct to Proceed as if Respondents Opposed this Claim
Petitioner also objects to the Magistrate Judge’s finding that Petitioner’s tenth claim is
without merit. (Doc. No. 47 at 8-9.) Specifically, Petitioner argues that “since Respondent’s
[sic] failed to object/argue this claim in their Answer, the [M]agistrate should have deemed their
argument on appeal waived from habeas review.” (Id. at 8.) Similar to claim three, Petitioner
raised this claim in his Petition (Doc. No. 15) but failed to brief it further in his supporting
Memorandum of Law (Doc. No. 25). As the Court explained in its discussion of claim three,
supra, Respondents opposed every claim that Petitioner briefed in his Memorandum of Law, and
thus, it was reasonable for the Magistrate Judge to proceed as if Respondents also opposed
Petitioner’s tenth claim. Similarly, the Court does not treat this claim as being unopposed by
Respondents. Aside from this objection which deals with a procedural issue, Petitioner makes no
substantive objections and merely reiterates the arguments found in his tenth claim, which the
Magistrate Judge found to be meritless. Without specifically identifying a portion of the

24

Magistrate Judge’s Report to which he objects and the basis for such objections, Petitioner is not
entitled to relief on claim ten.
K. Petitioner’s Objection Regarding Claim Eleven is Unavailing, As the State Court
Record Reveals that the General Questions During Voir Dire were Sufficient to
Rehabilitate the Two Jurors Named in this Claim
Petitioner next objects to the finding in the Report that Petitioner’s eleventh claim is
without merit. (Doc. No. 47 at 9-11.) In his eleventh claim, Petitioner alleged that trial counsel
was ineffective for “failing to challenge for cause, and further question, potential jurors, who, by
their voir dire answers showed that they could not be fair to Petitioner at trial[.]” (Doc. No. 25 at
45.) In evaluating the merits of claim eleven, the Magistrate Judge explained:
Considering the general rehabilitative questioning of counsel and the trial judge,
the individual questioning of Mr. Thurston, and defense counsel’s testimony at the
PCRA hearing, the state court’s adjudication that defense counsel was not
ineffective for failing to challenge the selection of Ms. Soldano and Mr. Thurston
as jurors is not contrary to, or [does not] involve an unreasonable application of,
federal law or an unreasonable determination of the facts in light of the evidence
presented.
(Doc. No. 44 at 45-46.) The Magistrate Judge found this claim to be without merit and
recommended that it be denied. (Id.)
Petitioner “objects to the [M]agistrate’s assessment that the general instructions and
unrelated questions were sufficient to rehabilitate [the] juror’s [sic] bias in the case.” (Doc. No.
47 at 11.) Petitioner contends that given two jurors’ responses to certain voir dire questions,
additional one-on-one questioning was necessary, and trial counsel was ineffective for failing to
inquire further. First, during voir dire, the trial court asked whether there was anyone there “who
would tend to believe or disbelieve a police officer merely because he or she is a police
officer[.]” (N.T., July 8, 1999, 63:6-8.) Juror number twenty-nine, Genevieve Soldano,

25

answered that she would believe the officer. (Id. at 63:18-19.) This juror was not questioned
further and was picked to serve on the jury. (Doc. No. 25 at 47.)
Second, when the trial court asked the jury panel whether they could follow the
instruction not to allow sympathy, bias or prejudice to influence their decision in the case, juror
number thirteen, Charles Thurston, indicated that his sympathy for a victim might interfere with
his decision. (Id. at 74:9˗75:6.) Although Charles Thurston was later questioned privately in
front of the trial judge and lawyers, he was questioned about his ability to follow the judge’s
instructions on certain areas of the law, rather than whether his sympathy for a victim might
interfere with his decision. (Id. at 122:3˗25.) This juror was not questioned further about his
response to the specific voir dire question at issue and was picked to serve on the jury. (Doc. No.
25 at 47.) Petitioner contends that trial counsel was ineffective for failing to question both jurors
further.
The Magistrate Judge found that the trial court’s general questions during voir dire and
private questioning of Charles Thurston, inter alia, render this claim meritless. (Doc. No. 44 at
45-46.) After the two jurors gave their answers, the trial court asked general questions of the
jury panel, including: 1) “Is there anyone here who believes they could not accept and apply the
law as instructed by the trial Judge?”; 2) “Is there anyone here who could not follow the law?”;
and 3) “[I]s there anyone who could not render a fair and impartial verdict based solely upon the
evidence presented in the courtroom and the law as it pertains to this particular case as instructed
by the Court?” (N.T., July 8, 1999, 84:20˗85:14.) Neither Genevieve Soldano nor Charles
Thurston responded to these questions. (See id.) The PCRA court found that their lack of
response to the questions was sufficient, and the Superior Court of Pennsylvania affirmed on
appeal. Burton, No. 255 EDA 2011, slip op. at 12. Furthermore, during a PCRA hearing on

26

August 19, 2010, trial counsel testified that he believed the two jurors had been rehabilitated by
the trial court’s general questioning. (N.T., Aug. 19, 2010, 22:15˗16, 36:24˗37:5.)
The Court agrees with the Magistrate Judge that Petitioner has failed to present clear and
convincing evidence to rebut the state courts’ findings that the trial court’s general questioning
was sufficient to rehabilitate the two jurors named in claim eleven. Moreover, Petitioner has
failed to establish that trial counsel was constitutionally ineffective for failing to challenge these
jurors’ voir dire answers and question them further. Thus, the Magistrate Judge is correct that
Petitioner’s eleventh claim is without merit.
L. Petitioner’s Objections Regarding Claim Twelve are to No Avail, As His Claim of
Trial Counsel’s Ineffective Assistance in Failing to Challenge a Juror is Without
Merit, and His Subsequent Claim of PCRA Counsel’s Ineffective Assistance is
not a Valid Ground for Federal Habeas Relief
Petitioner’s Objections regarding his twelfth claim are without merit. Petitioner’s twelfth
claim was two-fold. First, Petitioner alleged that trial counsel was “ineffective for failing to
challenge for cause, and further question, juror number 20, Joanne Frost, who [sic] voir dire
answer showed that she could not be fair and impartial to Petitioner at trial.” (Doc. No. 25 at
54.) Second, in what he styles as Ground 12(a), Petitioner claimed that “PCRA counsel was
ineffective for failing to preserve/raise ground twelve (12) in the amended PCRA petition.”
(Doc. No. 25 at 56.) The Magistrate Judge concluded: 1) claim twelve is without merit, and 2)
the claim of PCRA counsel’s ineffectiveness is not a valid ground for relief under the AEDPA.
Petitioner’s objections to these findings are discussed below.
1. Petitioner’s Claim of Ineffective Assistance of Trial Counsel
Petitioner objects to the conclusion in the Report that his twelfth claim is without merit.
In his twelfth claim, Petitioner alleged that trial counsel was “ineffective for failing to challenge
for cause, and further question, juror number 20, Joanne Frost, who [sic] voir dire answer
27

showed that she could not be fair and impartial to Petitioner at trial.” (Doc. No. 25 at 54.)
Although the Magistrate Judge noted that this claim may be unexhausted because Petitioner only
previously raised PCRA counsel’s ineffective assistance on collateral appeal, the Magistrate
Judge nonetheless reviewed this claim on the merits. (Doc. No. 44 at 46-47.) Petitioner lodged
two objections with respect to the Magistrate Judge’s treatment of this claim.
First, Petitioner objects to the Magistrate Judge’s statement that the claim may be
unexhausted. (Doc. No. 47 at 12.) This objection is moot, because despite noting that the claim
may be unexhausted and therefore procedurally defaulted, the Magistrate Judge nonetheless
reviewed the claim on the merits. (Doc. No. 44 at 46-47.) Thus, the Court need not consider this
objection further.
Second, Petitioner objects to the Magistrate Judge’s assessment that the general voir dire
questions by the trial court and trial counsel’s questions to the jury panel were sufficient to
rehabilitate the juror at issue in claim twelve. (Doc. No. 47 at 13.) Similar to claim eleven,
Petitioner alleged that a juror’s answer to a voir dire question required additional one-on-one
questioning, and trial counsel was ineffective for failing to inquire further. During voir dire, trial
counsel asked whether anyone could not sit fairly and listen to the evidence fairly, based upon
the fact that there were charges of indecent assault upon children in the case. (N.T., July 8, 1999,
93:9˗12.) Juror number twenty, Joanne Frost, raised her hand in response and indicated that the
charges would interfere with her ability to try the case. (Id. at 93:14˗94:10.) However, when the
trial court asked the jury panel whether they could 1) apply the law as instructed, 2) follow the
law, and 3) render a fair and impartial verdict based solely upon the evidence presented at trial
and as it pertained to the case, Joanne Frost indicated that she could do so. (See N.T., July 8,
1999, 84:20˗85:14.) Joanne Frost was selected as a juror in the case. (Doc. No. 25 at 54.)

28

On collateral appeal, the Superior Court of Pennsylvania rejected a similar claim as
meritless. Burton, No. 255 EDA 2011, slip op. at 12. The Court agrees that this claim is not
unlike Petitioner’s claim regarding Charles Thurston, supra. Contrary to Petitioner’s contentions,
the record indicates that Joanne Frost was capable of rendering a fair and impartial verdict in the
case. Specifically, when the trial court asked whether anyone could not do so, Joanne Frost did
not raise her hand in affirmation. (See N.T., July 8, 1999, 84:20˗85:14.) The Court agrees that
Petitioner has failed to present clear and convincing evidence to rebut the state courts’
conclusions and demonstrate that trial counsel was constitutionally ineffective for failing to
question Joanne Frost further. Thus, the Magistrate Judge is correct that Petitioner’s twelfth
claim is without merit.
2. Petitioner’s Claim of Ineffective Assistance of PCRA Counsel
Petitioner also objects to the finding in the Report that claim 12(a) does not state a claim
for relief under the AEDPA. In this claim, Petitioner alleged that “PCRA counsel was ineffective
for failing to preserve/raise ground twelve (12) in the amended PCRA petition.” (Doc. No. 25 at
56.) The Magistrate Judge recommended that this claim be denied because “[t]he ineffectiveness
or incompetence of counsel during Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i).
Petitioner does not make a specific objection to this finding as required. Instead, he
continues to argue that Martinez v. Ryan permits him to establish cause and prejudice to excuse
the procedural default of the underlying claim of trial counsel’s ineffective assistance. (Doc.
No. 47 at 13.) In Martinez, the Supreme Court held that “[i]nadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). This

29

means that PCRA counsel’s ineffectiveness could constitute cause to excuse the procedural
default of Petitioner’s underlying claim of trial counsel’s ineffectiveness. However, “[t]o
overcome the default, a prisoner must also demonstrate that the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.” Id. at 1318. As discussed above, Petitioner’s
underlying claim of trial counsel’s alleged ineffectiveness is without merit. Thus, Petitioner is
unable to overcome the procedural default of this claim of PCRA counsel’s ineffectiveness under
Martinez.
M. Petitioner’s Objection Regarding Claim Thirteen is Unsubstantiated, As Trial
Counsel Did What Petitioner Claims He Did Not Do
Petitioner objects to the Magistrate Judge’s treatment of his thirteenth claim, in which he
alleged that trial counsel was ineffective for failing to move to reopen the suppression hearing to
consider the admissibility of statements made by Petitioner after his arrest at the police
processing center. (Doc. No. 25 at 58.) The Magistrate Judge found this claim to be
unsubstantiated and recommended that it be denied. Rather than specifically identify the portion
of the Magistrate Judge’s Report to which he objects and the basis for such objections, Petitioner
simply states that the Magistrate Judge’s findings are incorrect “in light of the factual and
material evidence citedargued [sic] by [P]etitioner in his Memorandum and Reply.” (Doc. No.
47 at 13.)
Furthermore, this Court agrees with the Magistrate Judge that this claim is without merit.
Specifically, the state court record reveals that despite Petitioner’s contentions to the contrary,
trial counsel did move to reopen the suppression hearing. Burton, Nos. 6091-1998, 6875-1998,
slip op. at 4 (C.P. Mtgy. Dec. 30, 2010). Even Petitioner concedes that “[d]efense counsel stated
on the record that he wanted to reopen the suppression.” (Doc. No. 25 at 59.) (See also N.T.,
30

July 8, 1999, 2:21˗23.) As the Magistrate Judge found, “trial counsel is not ineffective for doing
that which [P]etitioner claimed he did not do.” (Doc. No. 44 at 49.) Thus, this claim fails.
N. Petitioner Fails to Make Valid Objections Regarding Claims Fourteen, Fifteen,
and Sixteen
Under Local Rule 72.1.IV(b), Petitioner must “specifically identify the portions of the
proposed findings, recommendations or report to which objection is made and the basis for such
objections . . ..” Petitioner fails to do so regarding claims fourteen, fifteen and sixteen, and
simply states:
Petitioner objects to the [M]agistrate’s recommendation of claim #’s 14, 15, and
15(a), at page’s [sic] 49˗50, however, he does not provide further argument with
respect to these claims.
Petitioner objects to the [M]agistrate’s recommendation of claim #16, at page’s
[sic] 51˗52, however, he does not provide further argument with respect to this
claim.
(Doc. No. 47 at 14.) Even though Local Rule 72.1.IV(b) may be relaxed when applied to pro se
litigants like Petitioner, this does not mean that the Court is required to speculate as to the nature
of the objection to the findings of the Magistrate Judge and then make a ruling on that objection.
Petitioner did not brief his fourteenth and fifteenth claims in his supporting Memorandum of
Law. Therefore, this Court would only be speculating as to his objections to the Magistrate
Judge’s findings on claims fourteen and fifteen. Petitioner did brief his sixteenth claim in his
supporting Memorandum of Law, and the Court has considered the content of that claim as set
forth. Notwithstanding the fact that Petitioner has failed to make a sufficient objection to the
treatment of claim sixteen, the Court has reviewed the Magistrate Judge’s findings regarding this
claim and agrees with those findings. Thus, the Court will not revisit Petitioner’s arguments a
second time.

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O. Petitioner’s Objection Regarding Claim Seventeen is Unavailing Because
Appellate Counsel Could Not Be Ineffective for Failing to Raise Unmeritorious
Claims of Trial Counsel’s Alleged Ineffective Assistance
Petitioner objects to the Magistrate Judge’s finding regarding Petitioner’s seventeenth
claim, in which he alleged that appellate counsel was ineffective for failing to present the above
claims of trial counsel’s ineffectiveness on direct appeal. (Doc. No. 25 at 63.) Because the state
courts and the Magistrate Judge found the underlying claims of ineffective assistance of trial
counsel to be meritless, the Magistrate Judge recommended that this claim be denied. It is
axiomatic that “[a]ppellate counsel cannot be found ineffective for failing to raise meritless
claims on direct appeal.” (Doc. No. 47 at 53.) Again, Petitioner fails to specifically object to the
Report regarding this claim and simply restates the same arguments already considered by the
Magistrate Judge. He contends that “[a] finding that [P]etitioner’s trial counsel was ineffective
on the matters raised at the PCRA proceedings would automatically rule out appellate counsel’s
ineffectiveness for failing to raise the meritorious claim on appeal.” (Doc. No. 25 at 14.) As
discussed above, there has been no showing that trial counsel rendered ineffective assistance of
counsel in this case. Thus, appellate counsel was not ineffective for failing to raise these
unmeritorious claims on direct appeal.
V.

CONCLUSION
For the above reasons, the Court will approve and adopt the Magistrate Judge’s Report

and Recommendation, and will deny the revised Petition for a Writ of Habeas Corpus. The
Court also denies Petitioner’s requests for discovery and an evidentiary hearing.

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