GRIBBLE v. FOLINO et al
ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITIONER'S OBJECTIONS ARE OVERRULED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED AND DENIED; AND A CERTIFICATE OF APPEALABILITY IS DENIED, ETC. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 9/9/11. 9/13/11 ENTERED AND COPIES MAILED TO PRO SE PLFF., E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LOUIS S. FOLINO, et al.
AND NOW, this 9th day of September, 2011, upon
consideration of the Petition for Writ of Habeas Corpus (Docket
No. 1), the Amended Petition for Habeas Corpus (Docket No. 7),
the Commonwealth’s objections, the responses and replies thereto,
petitioner’s objections to the Report and Recommendation, and
after review of the Report and Recommendation of United States
Magistrate Judge Lynne A. Sitarski, IT IS HEREBY ORDERED that:
1. The Report and Recommendation is APPROVED and
2. The petitioner’s objections are OVERRULED;
3. The Petition for Writ of Habeas Corpus is DISMISSED
and DENIED; and
4. Petitioner has neither shown a denial of a
constitutional right, nor established that reasonable jurists
would disagree with this Court’s disposition of his claims.
Consequently, a certificate of appealability is DENIED.
5. The Clerk of Court shall mark this case closed for
The Court discusses below petitioner’s objections and
explains why they are overruled.
The Court will follow the
format of the Report and Recommendation and petitioner’s
Claim No. 3 Subsection (a)-(h), (j)-(k): Ineffective
Assistance of Trial Counsel
The Report and Recommendation concluded that ten of
petitioner’s eleven claims of ineffective assistance of trial
counsel (“IAC claims”) are procedurally defaulted.
raises two objections.
First, Gribble objects that contrary to the Magistrate
Judge’s assertion, he did, in fact, raise in state court two of
his IAC claims for (1) failure to investigate and use character
evidence and (2) failure to present any viable defense.
Factually, Gribble is correct: he raised these claims in
his petitions under the Post Conviction Relief Act (“PCRA”).
However, Gribble abandoned both claims in his PCRA appeal.
Gribble thus failed to exhaust available state remedies because
he did not invoke one complete round of the state appellate
See O’Sullivan v. Boerckel, 526 U.S. 838, 845
The minor factual error in the Report and Recommendation
thus does not alter the conclusion that Gribble procedurally
defaulted these claims.
Second, Gribble objects that he established cause to
excuse his procedural default because he is entitled to effective
assistance of PCRA and PCRA appellate counsel under Pennsylvania
He argues that his PCRA counsel was ineffective for failing
to pursue his IAC claims.
However, counsel ineffectiveness
constitutes “cause” to excuse only when it is an independent
constitutional violation under federal law.
Thompson, 501 U.S. 722, 755 (1991).
See Coleman v.
Because the Sixth Amendment
does not entitle a defendant to post-conviction counsel, a claim
of ineffective assistance of PCRA counsel does not establish
“cause” to excuse procedural default.
86, 91 (3d Cir. 1993).1
Hull v. Freeman, 991 F.2d
Therefore, for the reasons set out in
the Report and Recommendation, ten of Gribble’s IAC claims are
Claim No. 3 Subsection (I): Ineffective Assistance of
In Hull, the Third Circuit dismissed the habeas petition
without prejudice to allow the petitioner to seek state
determination of his post-conviction claim because petitioner
raised a colorable claim for waiver of default under state law.
991 F.2d 86, 91-92 (3d Cir. 1993). That approach is not open to
Gribble here, since there is no waivable state procedural default
in this case. As Magistrate Judge Sitarski noted, the PCRA
statute of limitations (“SOL”) precludes Gribble from presenting
his claims in another PCRA petition, and the statutory exceptions
to the SOL do not apply in this case. See 42 Pa. C.S.A.
The Report and Recommendation concluded that (1)
Gribble’s IAC claim for withdrawing a motion to suppress should
be dismissed as procedurally defaulted, and (2) Gribble’s IAC
claim for withdrawing a motion to sever should be denied on the
merits for failure to show prejudice from a joint bench trial.
Gribble objects to both conclusions.
As to the motion to suppress, Gribble’s objection
merely restates his claim on the merits that trial counsel was
ineffective for withdrawing the motion to suppress.
makes no argument that surmounts the procedural default.
As to the motion to sever, Gribble objects that the
Magistrate Judge applied the law unreasonably in concluding that
Bruton violations are not present in bench trials.
Third Circuit law holds that the Bruton rule is inapplicable in
the context of a joint bench trial.
F.3d 296, 299-300 (3d Cir. 2008).
See Johnson v. Tennis, 549
To the extent Gribble’s
objection is based on an “actual use” theory as in Lee v.
Illinois, the Court concurs with the Magistrate Judge’s
conclusion that the Lee claim is procedurally defaulted.
Claim No. 1: Trial Judge Committed Reversible Error in
Expressly Relying on a Codefendant’s Confession as
Evidence of Gribble’s Guilt
The Report and Recommendation concluded that
(1) Gribble’s claim under Lee v. Illinois is procedurally
defaulted, and (2) to the extent Gribble raises a Bruton claim,
the state court’s determination that there was no Confrontation
Clause violation was correct.
Gribble’s sole objection to these conclusions addresses
only the merits of the Lee claim.
Gribble reiterates his
argument that the trial judge used his codefendant’s confession
to convict him.
See Obj. at 5-6.
Gribble raises no viable
argument to overcome his procedural default.
assuming the Lee claim were not defaulted, the record does not
support Gribble’s assertion that the trial judge actually used
his codefendant’s confession against him.
As the Magistrate
Judge noted, the trial judge specifically acknowledged that he
could only use each confession against the defendant who gave it.
See Trial Tr., 509-10, June 30, 1993; R&R at 27 n.7.
Claim No. 2: Prosecutor and Suppression Hearing Judge
The Report and Recommendation concluded that Gribble
failed to state a cognizable claim regarding the judge and
prosecutor’s interference with an ongoing investigation.
Gribble objects that because pro se petitions are
entitled to be viewed through a more forgiving lens, his claim
should be construed as a due process claim.
Even if this Court
finds that Gribble stated a cognizable claim under the Due
Process Clause, however, the claim is procedurally defaulted, and
Gribble has put forth no cause, prejudice, or fundamental
miscarriage of justice to excuse the default.
Claim No. 5: Petitioner’s Constitutional Rights Were
Violated by Trial Counsel’s Failure to Object to the
Admission and Use of an Unredacted, Unreliable PreTrial Confession of a Non-Testifying Codefendant
The Report and Recommendation concluded that Gribble
could not base his Confrontation Clause claim on Crawford v.
Washington because that case does not apply retroactively.
report further concluded that (1) to the extent Gribble’s claim
can be read as a challenge under Ohio v. Roberts, the claim is
procedurally defaulted, and (2) Gribble’s IAC claim based on
failure to object to the admission of codefendant’s confession is
Gribble objects that given the more forgiving standard
permitted to pro se petitioners, “it should have been clear . . .
that [he] was arguing a Roberts claim” in his amended PCRA
Obj. at 8 (citing Am. PCRA Pet. ¶ 39).
was represented by counsel for his amended PCRA petition, so the
petition may not be entitled to a more forgiving interpretation.
Second, even if this Court reads the amended PCRA petition as
having raised a Roberts claim, Gribble did not raise the Roberts
claim as to the codefendant’s confession in his PCRA appeal.
claim is thus procedurally defaulted without cause to excuse the
As to the procedurally defaulted IAC claim, Gribble
objects that his PCRA appellate counsel was ineffective for
failing to pursue the claim on appeal.
However, as discussed
previously, ineffective assistance of appellate counsel does not
constitute cause to excuse procedural default in the Third
Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993).
Claim No. 4: Actual Innocence
The Report and Recommendation concluded that five2 of
the six pieces of evidence identified by Gribble as demonstrating
his actual innocence do not qualify as “new reliable evidence”
under Schlup v. Delo, given the Third Circuit’s definition of
“new” in Houck v. Stickman.
The report also concluded that the
sixth item of evidence, the codefendant’s hospital records,
failed to establish that no reasonable juror could convict
Gribble of first-degree murder.
Evidence That Did Not Qualify as New
Gribble objects that the five pieces of evidence that
the report concluded were not new were not “available” to him at
trial because of ineffective assistance of counsel.
Those five items are: (1) testimony from Gail Stacy;
(2) testimony from Rose Stoddart; (3) information from the
autopsy report; (4) 911 audio and tape transmittals from the
night of the murder; and (5) testimony from Joe Boles.
five items were all known and discovered at the time of trial,
Gribble’s objections amount to an impermissible attempt to
circumvent the Third Circuit’s definition of “new” in Houck v.
Stickman by arguing that counsel was ineffective for failing to
present the evidence or certain arguments to the trial court.
In Houck, the Third Circuit held that evidence is “new”
only if it was not available at trial and could not have been
discovered earlier through the exercise of due diligence.
v. Stickman, 625 F.3d 88, 94 (3d Cir. 2010).
In doing so, the
Third Circuit explicitly rejected a definition of “new” as “newly
The Houck court specified one narrow
limitation to its definition: “if the evidence was not discovered
for use at trial because trial counsel was ineffective, the
evidence may be regarded as new provided that it is the very
evidence that the petitioner claims demonstrates his innocence.”
However, this narrow limitation is inapplicable here because
Gribble’s claim is that counsel was ineffective for failing to
present discovered evidence at trial.
Even assuming that these five pieces of evidence were
new, Gribble fails to show that it is more likely than not that
no reasonable fact finder would have convicted him in light of
the new evidence.
See Hubbard v. Pinchak, 378 F.3d 333, 340 (3d
The Commonwealth’s theory, which the trial court
accepted, is that Gribble killed the victim for money, which he
knew the victim to be carrying.
Gribble insists that he is
actually innocent of premeditated first-degree murder and guilty
only of a crime of passion.
Gribble argues that: (1) Rose Stoddart’s testimony
would prove that there was no “wad of money,” and hence no
premeditation required for first-degree murder;3 (2) Gail Stacy
would testify that there was an ongoing sexual relationship
between Gribble’s codefendant and the victim, which supports
Gribble’s crime of passion theory; (3) Joe Boles would testify to
hearing Gribble’s codefendant scream during the time of the
crime, which suggests there was no conspiracy; (4) the autopsy
report shows that a “face to face confrontation” occurred; and
(5) the 911 radio and tape transmittals from the night of the
murder show there was no conspiracy because Gribble’s codefendant
See Obj. at 10-13.
While some of this evidence supports Gribble’s crime of
passion theory, it does not show that no reasonable fact finder
could credit the Commonwealth’s theory of a premeditated robbery
Gribble points out that the Commonwealth’s case for
premeditation was based entirely on inferences drawn from
See Obj. at 9.
Magistrate Judge Sitarski notes that Gribble has not
provided sworn affidavits indicating what the substance of Ms.
Stoddart’s, Ms. Stacy’s, and Mr. Boles’s testimony might be.
Gribble argues, and the Court presumes here, that the witnesses
would testify to the contents of their statements to the police.
evidence included, among other things, admissions by Gribble and
his codefendant that they were destitute drug addicts, eyewitness
testimony that the victim took out a large roll of cash in view
of Gribble’s codefendant, and testimony from a medical examiner.
Yet the cumulative “new” evidence that Gribble presents here is
similarly circumstantial, and it is not so overwhelmingly
exculpatory as to suggest that no reasonable fact finder would
have credited the Commonwealth’s evidence regarding the financial
motive behind the murder.
At best, Gribble has raised a reasonable doubt that he
committed first-degree murder.
But the Schlup standard for
proving actual innocence requires more than merely establishing
the existence of reasonable doubt.
Schlup demands, and Gribble
fails to show, that no reasonable fact finder would have found
See Schlup v. Delo, 513 U.S. 298, 329 (1995).
Codefendant’s Hospital Records
Gribble does not appear to object to the Magistrate
Judge’s conclusion that the hospital records by themselves do not
meet the Schlup standard for proving actual innocence.
Gribble argues that when considered in conjunction with the other
five pieces of evidence discussed above, he meets the standard.
However, for the reasons stated above, Gribble’s objections do
not change the Court’s analysis.
Accordingly, the Court overrules petitioner’s
objections and approves and adopts the Report and Recommendation.
Gribble’s petition for a writ of habeas corpus is therefore
dismissed and denied.
BY THE COURT:
/s/Mary A. McLaughlin
MARY A. McLAUGHLIN, J.
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