NEWKIRK v. LAWLER et al

Filing 15

MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/9/17. 3/10/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DARRYL NEWKIRK
v.
SUPERINTENDENT RAYMOND
LAWLER, ET AL.

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CIVIL ACTION
NO. 09-0763

MEMORANDUM
SURRICK, J.

MARCH 9 , 2017

Presently before the Court is Petitioner Darryl Newkirk’s pro se Petition for Writ of
Habeas Corpus, pursuant to 28 U.S.C. § 2254 (ECF No. 1). Petitioner seeks relief on the
grounds that he was denied the effective assistance of counsel. The Honorable Carol Sandra
Moore Wells, United States Magistrate Judge, prepared a Report and Recommendation
(“R&R”), pursuant to 28 U.S.C. § 636(b)(1)(B). (R&R, ECF No. 12.) Petitioner has filed
objections to the Report and Recommendation. (Objections, ECF No. 13.) For the following
reasons, the Report and Recommendation of the Magistrate Judge will be approved and adopted,
and the Petition for writ of Habeas Corpus will be denied without an evidentiary hearing.
I.

BACKGROUND
The Pennsylvania Superior Court summarized the facts leading to Petitioner’s conviction

as follows:
This case began on April 13, 1998. Around 2:30 p.m., when Holly
James and Lois DeVita returned to their home in the Old City section of
Philadelphia, [Petitioner] greeted them. He was their cleaning person.
After gardening for about an hour, Ms. James went to her room to lie
down; she put music on and closed the door. At some point while Ms.
James was upstairs resting, [Petitioner] admitted co-defendant Darryl
Robinson (“Robinson”) into the house. [Petitioner] then took Ms. DeVita

to the basement where he bound her with extension cords, clothing and
duct tape, beat her, covered her face and head with a thick towel, and taped
a garbage bag over her head. He also sexually assaulted her with a hard,
blunt object. Later, when Ms. James came downstairs, Robinson grabbed
her, took her to the basement, and bound her with extension cords and duct
tape. [Petitioner] and Robinson fled in Ms. DeVita’s vehicle. Between
7:00 and 7:30 p.m., Ms. James was able to free herself. She discovered Ms.
Devita’s body, tried to perform CPR, but Ms. DeVita was dead. Ms. James
then ran to a neighbor’s house for help. Ms. DeVita had died between 4:00
and 5:00 p.m. of asphyxiation caused by the electrical cord being tied
tightly around her neck.
[Petitioner] and Robinson stole a MAC card, money, and Ms.
DeVita’s Toyota RAV 4, in which Robinson drove them to southwest
Philadelphia. Around midnight, when [Petitioner] was driving the vehicle,
he rear-ended another car. He and Robinson fled the accident scene, left
the vehicle a few blocks away, and then traveled to the Frankford section of
the city where they hid in the apartment of Shera Jackson, who was the
girlfriend of Roland Thomas. Mr. Thomas was a friend of [Petitioner] and
Robinson.
On April 17, 1998, Officer Joseph Domico received information
from [Petitioner’s] ex-girlfriend that he could be found in the Frankford
section of the city. Officer Domico went to that area and saw [Petitioner]
at a payphone. The officer called [Petitioner] over to the patrol car, but
[Petitioner] ran and Officer Domico pursued him on foot. [Petitioner]
escaped by jumping over a five foot fence and dropping fifteen feet to the
street below. The next day, Officer Domico received information that
[Petitioner] might be found in Shera Jackson’s apartment in the Frankford
section of the city. Officer Domico and a more experienced officer, Officer
Robert Walls, went to the address where Officer Walls knocked on the door
and identified himself. The officers heard several male voices from inside
the apartment. A few minutes later Shera Jackson answered the door and
gave the officers permission to enter and search the apartment. Officer
Walls found [Petitioner] and Robinson hiding in a closet.
Commonwealth v. Newkirk, No. 1391 EDA 2003, slip op. at 1-3 (Pa. Super. Ct. 2005).
Following his arrest, Petitioner provided police with oral and written statements in which he
admitted to being present for the murder, and participating in the robbery.
Prior to trial in the Court of Common Pleas of Philadelphia County, Petitioner filed a
motion to suppress his statements to police. The Honorable Jane C. Greenspan denied the
motion. On November 18, 1999, a jury found Petitioner guilty of first degree murder, burglary,

2

involuntary deviate sexual intercourse, criminal conspiracy, and two counts of robbery. On
February 8, 2000, Petitioner received a mandatory life sentence on the murder charge, and
additional prison terms to be served consecutively for burglary, robbery, criminal conspiracy,
and involuntary deviate sexual intercourse.
Although Petitioner did not initiate a timely direct appeal, the Court of Common Pleas
granted leave to file a direct appeal nunc pro tunc. Petitioner filed a direct appeal in the
Pennsylvania Superior Court, complaining that the trial court erred by: (1) denying his motion to
suppress his oral statements to the police; (2) allowing a witness, Roland Thomas, to testify to
Petitioner’s planning of the robbery; and (3) permitting the Commonwealth to impeach Thomas’
testimony. The Superior Court affirmed Petitioner’s conviction. Commonwealth v. Newkirk,
883 A.2d 692 (Pa. Super. Ct. 2005). The Pennsylvania Supreme Court denied Petitioner’s
request for review on December 29, 2005. Commonwealth v. Newkirk, 892 A.2d 822 (Pa. 2005).
Petitioner did not seek certiorari in the United States Supreme Court.
On April 27, 2006, Petitioner filed a pro se petition for collateral relief pursuant to
Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541 et seq.., in
the Court of Common Pleas. Counsel was appointed, and subsequently requested the court’s
permission to withdraw, citing a lack of meritorious appellate claims. 1 The court then notified
Petitioner of its intention to dismiss the petition without a hearing. Petitioner filed a pro se
objection, asserting ineffective assistance of trial counsel for failing to investigate and raise an
alibi defense. Petitioner also claimed that both trial and PCRA counsel had been deficient in
failing to investigate a claim of racial animus in jury selection, pursuant to Batson v. Kentucky,

1

Counsel sought permission to withdraw pursuant to Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. Ct. 1988).
3

476 U.S. 79 (1986). On June 12, 2007, the court dismissed Petitioner’s PCRA Petition and
granted counsel leave to withdraw.
Petitioner filed an appeal of the dismissal of his PCRA Petition to the Pennsylvania
Superior Court, arguing that: (1) the Court of Common Pleas abused its discretion in dismissing
his PCRA Petition and letting his PCRA counsel withdraw; and (2) his PCRA counsel was
ineffective for seeking to withdraw. The Pennsylvania Superior Court affirmed the trial court’s
dismissal on January 27, 2009. Commonwealth v. Newkirk, 968 A.2d 794 (Pa. Super. Ct. 2009).
Petitioner did not seek further review.
On February 19, 2009, 2 Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2254.
(Pet. 11, ECF No. 1.) Petitioner raises four claims. First, Petitioner asserts that his trial counsel
was ineffective for failing to raise a claim under Batson. Second, Petitioner argues that his trial
counsel was ineffective for failing to present an alibi defense. Third, Petitioner argues that his
trial counsel was ineffective for failing to litigate an alleged discovery violation under Brady v.
Maryland, 373 U.S. 83 (1963). Finally, Petitioner claims that his direct appellate counsel was
ineffective for failing to argue that the weight and sufficiency of the evidence was inadequate to
justify Petitioner’s conviction for first-degree murder. (Pet. 9.)
The Commonwealth responds that Petitioner’s claims are procedurally defaulted and that
they should be dismissed. Alternatively, the Commonwealth argues that the claims lack merit
and should be denied. The R&R recommended dismissing Petitioner’s fourth claim as
procedurally defaulted, and denying Petitioner’s first three claims as meritless. In response,
Petitioner timely filed Objections, which restated his first three grounds for habeas relief while

2

A prisoner’s pro se petition for habeas relief is deemed filed when the prisoner delivers
it to prison authorities for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d
Cir. 1998).
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abandoning his fourth claim.
II.

LEGAL STANDARD
A.

De Novo Review of a 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 a petitioner’s objections to a magistrate
judge’s Report and Recommendation. Under this Rule, a petitioner must “specifically identify
the portions of the proposed findings, recommendations or report to which objection is made and
the 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)). Once
objections are filed, the district judge “shall 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).
B.

Habeas Review under 28 U.S.C. § 2254

Any claim adjudicated by a state court is considered under the standard of review
established by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). This
standard provides that a federal district court cannot grant a writ of habeas corpus on a
previously adjudicated claim, unless the state court’s adjudication of the claim:

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(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 proceedings.
28 U.S.C. § 2254(d). Pursuant to this statute, we presume that any findings of fact made by state
courts are correct. Petitioner bears the burden of rebutting this presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
For a state court’s adjudication of a habeas claim to be considered “contrary to” clearly
established federal law, 3 the state court must arrive “at a conclusion opposite to that reached by
[the United States Supreme Court] on a question of law or if the state court decides a case
differently than [the] Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). In determining whether a state court’s decision fits within this
definition of “contrary,” a habeas court should be mindful of the “highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given the benefit of
the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537
U.S. 19, 24 (2002)). As long as “neither the reasoning nor the result of the state-court decision
contradicts” Supreme Court precedent, the state court’s legal determinations should stand.
Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (per curiam) (internal quotation marks omitted).
If the state court correctly identifies the governing precedent, its analysis is reviewed for
an “unreasonable application” of the law. Williams, 529 U.S. at 406-08. In making the
unreasonable application determination, the habeas court must ask whether the state court’s
application of the underlying Supreme Court precedent was objectively unreasonable. Id. at 409.

3

Although the statute refers to Supreme Court precedent, we are permitted to consider the
decisions of the lower federal courts that have applied such precedent. See Marshall v.
Fredericks, 307 F.3d 36, 71 n.24 (3d Cir. 2002).
6

A habeas court cannot grant relief “simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 411.
For a habeas petitioner to obtain relief under § 2254(d)(2), he must demonstrate that the
state court’s factual determinations were “objectively unreasonable in light of the evidence
presented in the state-court proceeding.” Miller-El v. Cockerell, 537 U.S. 322, 340 (2003).
However, a habeas court can “disagree with a state court’s credibility determination.” Id. If a
state court’s factual determination is unreasonable, a habeas court should grant relief under
§ 2254(d)(2). Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).
III.

DISCUSSION
Ineffective assistance of counsel claims are evaluated under the two-prong test

established by Strickland v. Washington, 466 U.S. 668 (1984). To satisfy the first prong of the
Strickland test, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. In making this determination, the court’s scrutiny of
counsel’s performance must be “highly deferential.” Id. at 689. The court must strive to
“eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id.
The court is further required to “indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is [a petitioner] must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’” Id (citation omitted).
To satisfy the second Strickland prong, a petitioner must demonstrate that counsel’s
deficient performance “prejudiced the defense” by “depriv[ing] the [petitioner] of a fair trial, a

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trial whose result is reliable.” Id. at 687. The petitioner must show that “there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694. If a petitioner fails to satisfy either Strickland prong, his claim fails.
Id. at 697. Counsel cannot be deemed ineffective solely for failing to present or pursue a
meritless claim or objection. Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998); Moore v.
Deputy Comm’rs of SCI-Huntingdon, 946 F.2d 236, 245 (3d Cir. 1991).
Finally, “[e]stablishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult.” Harrington v. Richter, 562 U.S. 86, 105 (2011). This
is because both standards are “highly deferential,” and “when the two apply in tandem, review is
doubly so.” Id. (citation and quotations omitted). “When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id.
A.

4

Ineffective Assistance of Counsel for Failure to Raise a Claim under Batson
v. Kentucky (“Ground One”) 4

The Commonwealth asserts that all of Petitioner’s claims are procedurally defaulted.
The Commonwealth argues that because none of Petitioner’s claims were raised on direct appeal
or properly brought before the Superior Court, his present claims are without a basis for relief.
“[I]f the final state court presented with a federal claim refuses to decide its merits based on an
established state rule of law independent of the federal claim and adequate to support the refusal,
federal habeas review is foreclosed unless there is cause and prejudice or a showing of
innocence.” Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996). Yet, “a procedural default
does not bar consideration of a federal claim on either direct or habeas review unless the last
state court rendering a judgment in the case clearly and expressly states that its judgment rests on
a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989) (citation and quotation
omitted). In rendering its decision, the Superior Court stated that Petitioner had not complied
with Pennsylvania Rule of Appellate Procedure 2216, which prevents courts from considering
questions that are not “stated in the statement of questions involved or is fairly suggested
thereby.” Newkirk, No. 1768 EDA 2007, slip op. at 8. However, the court went on to state,
“[n]onetheless, we will proceed to address these issues.” This is not the type of clear and express
language needed to invoke the adequate and independent state ground doctrine. The Superior
Court seemed to recognize a procedural ground for denying relief, stating that it “would be a
8

Petitioner argues that his trial counsel was ineffective for failing to raise a Batson claim
during jury selection. (Pet. 9; Pet. Mem. 2-7.) Petitioner claims that counsel should have
objected to the prosecutor’s peremptory strikes, given that Petitioner made counsel aware of a
policy whereby the Philadelphia District Attorney’s Office excluded African American jurors on
the basis of race. (Pet. Mem. 2-3.) Magistrate Judge Wells found that although the Superior
Court’s analysis was contrary to clearly established federal law, Petitioner was still unable to
make the prima facie showing necessary for a Batson claim. (R&R 10.) Petitioner objects to the
Report on the grounds that the Commonwealth’s attorney received the discriminatory training,
and that the trial counsel’s failure to object prejudiced him. (Objections 3-5.)
To establish a Batson claim, Petitioner must make a “prima facie showing that a
peremptory challenge was exercised by the Commonwealth on the basis of race.” Holloway v.
Horn, 355 F.3d 707, 719 (3d Cir. 2004) (citation omitted). In order to establish a prima facie
case, a five-factor test is used, which includes: (1) how many members of the cognizable racial
group are in the venire panel from which the petit jury is chosen; (2) the nature of the crime; (3)
the race of the defendant and the victim; (4) the pattern of strikes against racial group jurors in
the particular venire; and (5) the prosecutor’s statements and questions during selection. Jones v.
Ryan, 987 F.2d 960, 970-71 (3d Cir. 1993). If a prima facie case is established, “the prosecution
must offer a race-neutral basis for striking the juror in question.” Holloway, 335 F.3d at 720
(citation omitted). The court “must determine whether the defendant has shown purposeful
discrimination.” Id (citation omitted).
The Superior Court reviewed Petitioner’s claim and found that he failed to produce
sufficient basis for finding waiver.” Id. The court went on to address Petitioner’s claims without
using any clear and express language that its holding relied on such procedural grounds.
Therefore, Petitioner’s claims are not procedurally defaulted.
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adequate factual evidence at trial to make a prima facie showing. Commonwealth v. Newkirk,
No. 1768 EDA 2007, slip op. (Pa. Super. Ct. Jan. 27, 2009). Specifically, the court found:
Here [Petitioner] fails to present any evidence of the races of the venirepersons
who were peremptorily struck or accepted for the jury panel. [Petitioner] fails to
proffer evidence of facts that, if established at a hearing, would have entitled him
to relief. Instead, [Petitioner’s] brief claims only that his Batson claim is “very
powerful.” [Petitioner] fails to plead and prove with any substance how this
alleged error prejudiced him. [Petitioner] has not shown there is a reasonable
probability that but for counsel’s omission, the outcome of the trial would have
been different.
Id. at 15-16. (internal citations omitted). Magistrate Judge Wells determined that the
Pennsylvania Superior Court’s analysis was contrary to Third Circuit precedent. (R&R 9.)
Judge Wells found that according to Holloway v. Horn, 355 F.3d at 726, a petitioner need not
make a record for review of a Batson claim. (R&R 9.) We disagree. When a petitioner brings
forth a Batson claim based on a single strike, accompanied by a showing that the prosecutor’s
statements and questions to the juror support an inference of discrimination, it is not necessary to
“identify the race of all veniremen removed by the prosecution” in order to establish a prima
facie case. Holloway, 355 F.3d at 726. However, if a petitioner “is claiming a pattern of strikes
to support an inference of discrimination, then a record of the race-based strikes that preceded
the objection is also required.” Id. Here, Petitioner claims that during voir dire, young African
American men and women were struck, and that the “pattern was obvious.” (Pet. Mem 2.)
However, there is nothing in the record that establishes the race of the jurors who were struck. In
addition, there is no evidence in the record that establishes the composition of the venire panel.
Petitioner has failed to provide such evidence, and therefore cannot satisfy the first and fourth
prongs of his prima facie case. Therefore, Petitioner is not entitled to relief. See Abu-Jamal v.
Horn, 520 F.3d 272, 291-92 (3d Cir. 2008), vacated on other grounds by Beard v. Abu-Jamal,

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558 U.S. 1143 (2010) (finding that the petitioner failed to establish a prima facie case when there
was “no factual finding at any level of adjudication, nor evidence from which to determine the
racial composition or total number of the entire venire . . . .”); Deputy v. Taylor, 19 F.3d 1485,
1492 (3d Cir. 1994) (finding that the petitioner failed to establish a prima facie case when he did
not present evidence of the racial composition of the venire panel); Porter v. Horn, 276 F. Supp.
2d 278, 335 (E.D. Pa. 2003) (same); Jones v. Vaughn, No. 95-4189, 1996 WL 134802, at *4
(E.D. Pa. Mar. 25, 1996) (same).
Petitioner argues that his prima facie case is met because the Philadelphia District
Attorney’s Office had a policy of impermissibly striking African American jurors. (Pet. Mem. 23.) Petitioner claims that during voir dire, he told counsel about a 1997 magazine article that
described how former Assistant District Attorney (“ADA”) Jack McMahon trained other
assistant district attorneys to use peremptory strikes in order to prevent certain categories of
African Americans from serving on juries. (Id.) Petitioner argues that the case Wilson v. Beard,
426 F.3d 653 (3d Cir. 2005), supports his Batson claim. In Wilson, the Third Circuit reviewed a
habeas petition in which the petitioner had been prosecuted by former ADA Jack McMahon. Id.
at 656. The Third Circuit determined that Wilson had established a Batson violation, citing both
McMahon’s controversial statements regarding jury selection and McMahon’s conduct during
the jury selection. Id. at 656-68. Petitioner’s case bears no resemblance to Wilson. Unlike the
petitioner in Wilson, Petitioner was prosecuted by ADA Roger King, not by Jack McMahon.
Furthermore, “[c]ourts in this District have recognized that ‘discriminatory intent cannot
be inferred from the mere existence of the training video’; where the prosecutor at issue was not
involved in the lecture or tape, ‘the courts have required some evidence of a link between that
attorney and the tape.’” Howard v. Horn, 56 F. Supp. 3d 709, 724 (E.D. Pa. 2014) (quoting

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Rollins v. Horn, No. 00-1288, 2006 WL 2504307, at *4 (E.D. Pa. Aug. 17, 2006)). Petitioner
alleges that ADA King “attended many training seminars taught by ADA Jack McMahon” and
that ADA King “follow[ed] the training of his teacher.” (Objections 2.) Petitioner offers no
evidence to support these allegations or that ADA King was connected to ADA McMahon in any
way. As the Superior Court correctly found, Petitioner cannot rely on the McMahon lecture to
establish a prima facie Batson claim. See Clark v. Beard, No. 10-3164, 2015 WL 7294971, at
*51 (E.D. Pa. June 1, 2015) (finding that the petitioner did not establish a prima facie Batson
claim when he offered no evidence that the trial prosecutor was exposed to the training materials
or that she was influenced by a “culture of discrimination”); Howard, 56 F. Supp. 3d at 724
(finding that the petitioner did not establish a prima facie Batson claim when he did not present
“any facts that support any direct link between the prosecutor in his case and the training video”
or that “the prosecutor in his case was aware of or attended the alleged lecture”).
We have reviewed transcripts of the voir dire proceedings, and we cannot find any
questions that implicate race. (See N.T. 11/4/99 at 33-170.) 5 Of the nine jurors who were struck
peremptorily by the Commonwealth, ADA King asked questions of only two. (See N.T. 11/4/99
at 56-57, 166-67.) ADA King asked the jurors the general location of their residence, the gender
of their children, how long they were employed at their current jobs, and whether they would be
biased given that one of the charges involved sexual assault. (Id.) These questions do not evince
a discriminatory motive. Rather, they are neutral and common. Of the other jurors who were
struck, it was either the judge or Petitioner’s counsel who asked questions. ADA King struck
these jurors for seemingly proper reasons. In total, five jurors were struck after they stated that

5

Petitioner also claims that his counsel objected and raised a Batson challenge only after
the Commonwealth’s sixth peremptory strike. (Pet. Mem. 4.) We have found no such objection
in the record.
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close family members had been arrested for crimes, (id. at 30-31, 53-54, 129-30, 134; N.T.
11/5/99 at 42-43), while another was struck after she expressed significant hardship due to
having two jobs. (N.T. 11/5/99 at 17.) Of the three remaining jurors, there is nothing in the
record that indicates that the Commonwealth’s peremptory challenges were motivated by racial
bias. Accordingly, Petitioner cannot establish a prima facie case under the Batson standard.
It is worth noting that the evidence against Petitioner was overwhelming. Petitioner’s coassailant, Darryl Robinson, testified that Petitioner killed Ms. DeVita. (N.T. 11/12/99 at 90120.) Petitioner’s friend, Roland Thomas, attempted to cast the blame of the murder onto Mr.
Robinson, but was impeached with a statement he gave earlier where he said that Petitioner
admitted to the killing. (Id. at 44.) Petitioner’s own statement given to police was also
presented, where he admitted to being at the scene of the crime, and to binding Ms. DeVita. (Id.
at 12.) Holly James, the surviving victim, testified that she saw Petitioner at the home a few
hours before the murder. (Id. at 50.) Petitioner’s former employer also testified that Petitioner
was assigned to the victims’ home. (N.T. 11/9/99 at 67-72.) The victims’ neighbor, Joseph
Gonzalez, testified that he saw co-assailant Robinson toss bags to Petitioner at the home around
the time of the murder. (N.T. 11/10/99 at 2-19.) Finally, a police officer testified that Ms.
DeVita’s stolen car was crashed, and that Petitioner’s fingerprints were recovered from the
vehicle. (Id. at 54-58, 59-84.)
Petitioner cannot establish a Batson claim. The trial record lends no credence to
Petitioner’s claim that the Commonwealth used its peremptory challenges to strike African
American jurors in violation of Batson. Accordingly, Petitioner’s trial counsel cannot be deemed
to have been ineffective for failing to present a meritless claim. Parrish, 150 F.3d at 328-29 (3d
Cir. 1998). Petitioner is therefore not entitled to relief and his claim in Ground One will be

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denied.
B.

Ineffective Assistance of Counsel for Failure to Raise an Alibi Defense
(“Ground Two”)

Petitioner argues that trial counsel was ineffective for failing to raise an alibi defense.
Petitioner claims that trial counsel failed to contact his father, who would have provided the
names of potential alibi witnesses. Magistrate Judge Wells concluded that because Petitioner did
not provide the name of a single witness, the Superior Court reasonably applied federal law in
dismissing the ineffective assistance of counsel claim. Petitioner objects to the Report and
Recommendation on the grounds that his counsel was ineffective for failing to investigate a list
of alibi witnesses Petitioner’s father supposedly had. 6
There is no reason to doubt the correctness of the Magistrate’s Report and
Recommendation or the Superior Court’s ruling. Under Pennsylvania law, a petitioner wishing
to prevail on a claim of ineffective assistance based on the failure to provide an alibi defense
must demonstrate that: (1) the alibi witness existed; (2) the witness was available and willing to
testify for the defense; (3) counsel knew or should have known of the witness’ existence; (4) the
witness was willing to testify; and (5) the absence of the testimony prejudiced the petitioner so
as to deprive him of a fair trial. Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).
Because Petitioner was unable to satisfy any of these requirements, the court found Petitioner’s
claim meritless. Newkirk, No. 1768 EDA 2007, slip op. at 17. Petitioner has not identified any
alibi witness willing to testify on his behalf. Petitioner did not even provide an affidavit from the

6

Petitioner did “handiwork and yard cleanup work” for a number of clients. He contends
that his father had a list of the names of those clients and their addresses. He contends that trial
counsel should have retrieved that list from his father and interviewed each of the clients to find
out which client he was working for on the day of, and at the time of, the murder. He does not
tell us why he did not simply tell trial counsel which client he was working for that day and have
counsel interview that client.
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alibi witness. As the Superior Court stated, a claim of ineffectiveness for failure to present a
witness requires that the “existence and availability of the witness must be shown . . . .” Id. at 19
(citing Commonwealth v. Petras, 534 A.2d 483, 485 (Pa. Super. 1987)). “A claim of ineffective
assistance of counsel for failure to call witnesses at trial must fail where a habeas petitioner fails
to sufficiently identify possible witnesses or describe what those witnesses might have said.”
Smith v. Superintendent of SCI Huntingdon, No. 08-2901, 2009 WL 4727723, at *10 (E.D. Pa.
Dec. 3, 2009); see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (stating that
an ineffectiveness claim based on counsel’s failure to call certain witnesses was “conclusory and
too vague to warrant further investigation” where the petitioner failed to sufficiently identify
potential witnesses); United States v. Moscony, No. 8-258-01, 1996 WL 411275, at *3 (E.D. Pa.
July 12, 1996) (finding that the petitioner “failed to make even a colorable claim” when he did
not identify who his trial counsel could have called as defense witnesses). The Superior Court
provided a reasonable argument as to why Petitioner’s trial counsel met Strickland’s deferential
standard. Petitioner has offered nothing to indicate that the Superior Court’s decision was
contrary to or involved an unreasonable application of clearly established federal law, or was
based upon an unreasonable determination of the facts.
Petitioner claims that because he was incarcerated following the murder of Ms. DeVita,
he could not obtain the names or addresses of the supposed alibi witnesses. (Pet. Mem. 8.)
Therefore, Petitioner asserts that counsel’s failure to obtain the names and addresses of witnesses
from his father resulted in an unconstitutional level of ineffectiveness. (Id.) A failure to
investigate potential witnesses can amount to ineffective assistance of counsel. See, e.g., United
States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). Yet, “[a]ttorneys are not required to call every
witness suggested to them; their expertise leads them to choose only the witnesses likely to assist

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the case . . . . This is precisely the type of strategic decision which the Court in Strickland held
to be protected from second-guessing.” United States v. Ciancaglini, 945 F. Supp. 813, 823
(E.D. Pa. 1996) (internal citations omitted); see also Government of Virgin Islands v.
Weatherwax, 77 F.3d 1425, 1434 (3d Cir. 1996) (stating that witness selection is “among the
non-fundamental decisions that counsel is entitled to make at trial,” and federal courts generally
“will not second-guess tactical decisions of counsel in deciding whether to call certain
witnesses” (internal quotation marks and citations omitted)). The Superior Court noted that
Detective Leon Lubiejewski testified at the trial. He read a statement given to him by Petitioner
following his arrest. Newkirk, No. 1768 EDA 2007, slip op. at 17. Petitioner explained in detail
to the detective that he was in fact at Ms. DeVita’s home on the day of the murder, and that he
participated in the robbery. Id. at 17-19. The court found that this testimony was completely
inconsistent with Petitioner’s assertion that he had an alibi witness. Id. at 17. Any reasonable
court would have made the same finding.
The Superior Court’s discussion provides a reasonable analysis of why Petitioner’s trial
counsel was not ineffective. Moreover, Petitioner has failed to demonstrate how his counsel’s
actions resulted in prejudice. Given Petitioner’s inculpatory statements, as well as trial
testimony from witnesses that placed Petitioner at the scene of the crime (see N.T. 11/9/99 at 6772; N.T. 11/10/99 at 7-19, 32-41; N.T. 11/12/99 at 50), Petitioner has failed that prove that butfor counsel’s error, there is a reasonable probability that the jury’s verdict would have been
different. See Summers v. Carroll, No. 04-132, 2006 WL 1338770, at *5 (D. Del. May 16, 2006)
(finding that the petitioner failed to prove ineffectiveness when he did not demonstrate prejudice
from his attorney’s failure to investigate two unidentified witnesses); United States v. Hatcher,
No. 94-173-1, 1997 WL 698488, at *3 (E.D. Pa. Nov. 7, 1997) (finding that the petitioner failed

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to prove ineffectiveness when he did not demonstrate how unnamed witnesses would have
impacted the outcome of his trial).
Petitioner cites United States v. Gray, 878 F.2d 702 (3d Cir. 1989) to support his
argument that counsel was ineffective. In Gray, the Third Circuit reversed the district court’s
dismissal of a habeas petition, noting the ineffectiveness of the petitioner’s trial counsel. 878
F.2d at 714. Trial counsel in Gray had conducted virtually no pretrial investigation, submitted
no discovery requests, and was generally unfamiliar with federal court practices. Id. at 709. The
petitioner’s attorney had not interviewed any of the twenty-five eyewitnesses to the incident. Id.
at 711. At the evidentiary hearing for Gray’s habeas petition, the trial counsel offered no
strategic justification for his actions. Id. at 712. Petitioner’s case bears no resemblance to Gray.
Here, Petitioner has not provided any evidence to suggest his attorney was ineffective as was the
attorney in Gray. In addition, Petitioner’s counsel was not obligated to pursue a defense that was
plainly implausible. Petitioner has not demonstrated that “counsel’s representation fell below an
objective standard of reasonableness,” Strickland, 466 U.S. at 688, or that he was prejudiced by
his attorney’s performance. Accordingly, Petitioner’s claim in Ground Two will be denied.
C.

Ineffective Assistance of Counsel for Failure to Litigate a Claim under Brady
v. Maryland (“Ground Three”)

Petitioner claims that trial counsel was ineffective for failing to seek physical evidence
preserved from the victim that was in the possession of the Commonwealth. Magistrate Judge
Wells found that the Superior Court reasonably applied federal law, as Petitioner provided no
support for his assertion that the evidence he claimed was withheld even existed. Petitioner
objects to the R&R on the grounds that his counsel was ineffective for failing to seek and test all
of the physical evidence in the Commonwealth’s possession. The Superior Court noted that the

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record did not indicate that any DNA evidence was recovered from the scene of the crime or the
victim. Newkirk, No. 1768 EDA 2007, slip op. at 21-22. Because there was no physical
evidence to test, the Superior Court concluded that the Commonwealth did not commit a Brady
violation. Consequently, counsel was not ineffective for failing to pursue a baseless claim.
We agree with the conclusion reached in the R&R that the Superior Court applied the
Strickland and Brady standards reasonably. To establish a Brady violation, Petitioner must show
that: (1) “the evidence at issue [was] favorable to [him], either because it was exculpatory, or
because it [was] impeaching”; (2) the Commonwealth “either willfully or inadvertently”
suppressed the evidence at issue; and (3) Petitioner suffered prejudice as a result of the
suppression. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Petitioner must demonstrate
both that the evidence was “actually suppressed, and [] that the suppressed evidence was
material.” Slutzker v. Johnson, 393 F.3d 373, 386 (3d Cir. 2004). For evidence to be considered
material, there must be a “reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” United States v. Bagley, 473
U.S. 667, 682 (1985).
Petitioner has failed to establish a Brady violation. Petitioner is unable to show that
relevant physical evidence even exists. Petitioner states that he “believes he read in a police
report that body fluids/sperm was present.” (Pet. Mem. 9-10.) However, Petitioner does not
substantiate these allegations. Petitioner has not brought forward any evidence that police
records detailing physical evidence exist. The Superior Court reviewed the record and found no
such police reports. Newkirk, No. 1768 EDA 2007, slip op. at 20-23. We, too, find no record of
such evidence. The Commonwealth “did not violate the dictates of Brady by failing to turn over
something that did not exist.” Strube v. United States, 206 F. Supp. 2d 677, 688 (E.D. Pa. 2002).

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The only mention of physical evidence at trial occurred because Petitioner’s counsel requested
that Commonwealth test certain evidence on the victim’s clothes. (N.T. 11/3/99 at 2.) Blood
was found in the victim’s underwear, and an unidentifiable stain was found on her collar. (Id.;
N.T. 11/9/99 at 2-3, 11-13.) In addition, seminal fluid was found on the victim’s clothing.
However, the sample was destroyed during testing. (N.T. 11/9/99 at 11-13.)
Petitioner also cannot show that counsel was ineffective for not pursuing the testing of
more evidence. As the Superior Court stated, “the vaginal penetration in the instant case was
caused by a foreign object; therefore, the absence of seminal stain evidence was irrelevant.
Thus, the absence of DNA evidence could not exculpate [Petitioner] on the deviate sexual
intercourse charge nor on the murder and robbery charges for which overwhelming evidence
placed defendant on the scene.” Newkirk, No. 1768 EDA 2007, slip op. at 23. Finally, even if
Petitioner were able to satisfy these requirements, he is unable to show that had the
Commonwealth disclosed such evidence to counsel, there is a reasonable probability that his trial
outcome might have been different. Given the overwhelming nature of the evidence against
Petitioner, it is highly unlikely that any such evidence could have changed the jury’s verdict.
Petitioner’s Brady claim lacks merit. The failure to raise a meritless claim does not
render an attorney ineffective. Parrish, 150 F.3d at 328-29. Given the lack of support for
Petitioner’s claim of a Brady violation, the Superior Court reasonably found that Petitioner’s trial
counsel was not ineffective for failing to raise it. Once again, Petitioner failed to provide any
federal authority that was contravened or unreasonably applied by the Superior Court.
Accordingly, Petitioner’s Ground Three claim will be denied.

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D.

Ineffective Assistance of Counsel for Failure to Challenge the Weight and
Sufficiency of Evidence (“Ground Four”)

In his Objections to the R&R, Petitioner advises that he is abandoning his claim that
counsel was ineffective for failing to challenge the weight and sufficiency of the evidence in
Ground Four. Accordingly, we need not address the claim.
E.

Petitioner Is Not Entitled to a Certificate of Appealability

In order to obtain a certificate of appealability where a petition has been dismissed on the
merits, a “petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). There are no grounds on which reasonable jurists would disagree with our
assessment. Therefore, we decline to issue a certificate of appealability.
IV.

CONCLUSION
For the foregoing reasons, the R&R will be approved and adopted, and the Petition for

Writ of Habeas Corpus will be denied without an evidentiary hearing. No certificate of
appealability will issue.
An appropriate Order follows.

BY THE COURT:

___________________________
R. BARCLAY SURRICK, J.

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