ARMSTRONG v. WINSTEAD et al

Filing 13

ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED AND THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED. THERE IS NO BASIS FOR THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY. SIGNED BY HONORABLE C. DARNELL JONES, II ON 2/20/13. 2/20/13 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALICIA ARMSTRONG
Petitioner,
v.
RHODA WINSTEAD, et al.
Respondents.

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CIVIL ACTION
NO. 12-2367

ORDER
AND NOW, this 19th day of February, 2013, upon careful and independent consideration
of the Petition for Writ of Habeas Corpus (Dkt. No. 1), the Response thereto (Dkt. No. 7), and
after review of the Report and Recommendation of United States Magistrate Judge Elizabeth T.
Hey dated October 31, 2012 (Dkt. No. 9), and Petitioner’s Objections thereto (Dkt. No. 11), IT
IS HEREBY ORDERED that:
1.

Petitioner’s Objections are OVERRULED and the Report and Recommendation

is APPROVED and ADOPTED. 1

1

Petitioner objects to the Magistrate Judge’s recommendation that the state court
adjudications of her claims of ineffective assistance of counsel related to her guilty plea colloquy
(grounds four, five and six) did not unreasonably apply the United States Supreme Court’s
decision in Strickland v. Washington, 466 U.S. 668 (1984). However, Magistrate Judge Hey’s
recommendation — that the state courts reasonably applied Strickland in determining after a full
evidentiary hearing that counsel was not ineffective in the context of the open guilty plea — is
fully supported by the state court record. Magistrate Judge Hey also correctly recommends that
the state courts’ factual findings were entitled to the presumption of correctness under 28 U.S.C.
§ 2254(e)(1) and that Petitioner did not overcome this presumption with clear and convincing
evidence. Accordingly, Petitioner’s objections, which largely challenge the Magistrate Judge’s
reliance on the state courts’ factual determinations, are meritless.
Petitioner next raises an objection to the Magistrate Judge’s recommendation that the
state courts’ adjudication of her claim of ineffective assistance for failing to investigate or
prepare a defense (ground one) did not unreasonably apply Strickland. Magistrate Judge Hey
recommends that the state courts reasonably applied Strickland in determining that counsel
adequately investigated the possible defenses presented by the evidence. The state court findings

2.

The Petition for Writ of Habeas Corpus is DISMISSED.

3.

There is no basis for the issuance of a certificate of appealability.
BY THE COURT:

/s/ C. Darnell Jones, II
_________________________
C. DARNELL JONES, II
J.

were based upon trial counsel’s testimony at the state evidentiary hearing that he: (1) arranged
for Petitioner to undergo an evaluation for a possible insanity or diminished capacity defense,
and (2) discussed with her a possible self-defense theory. This Court finds that the
recommendation is fully supported by the record and accordingly, overrules the Objection.
Petitioner next objects to the Magistrate Judge’s recommendation that the state court
adjudications of her claim of ineffective assistance of counsel for failing to communicate a
negotiated plea offer to Petitioner (ground two) did not unreasonably apply Strickland.
Magistrate Judge Hey correctly recommends that the state courts’ factual finding, that no such
plea offer was ever made by the Commonwealth, is also entitled to the presumption of
correctness under § 2254(e)(1). Accordingly, Petitioner’s objection to ground 2, which
challenges the Magistrate Judge’s reliance on the state courts’ factual determination, is also
meritless.
Petitioner’s objection to the recommendation on her claim of ineffective assistance of
counsel for failing to inform her that a “deadly weapon” enhancement applied to her crime
(ground three), also challenges the Magistrate Judge’s reliance upon state court fact-finding,
namely that Petitioner was told by counsel of the existence of the enhancement prior to her
decision to enter her open guilty plea. This Court overrules this objection as well since
Petitioner does not show by clear and convincing evidence that the state court findings are
erroneous.
Finally, this Court overrules Petitioner’s objections to the Magistrate Judge’s
recommendation that her claim of trial court error in accepting her guilty plea (ground eight) was
procedurally defaulted. Magistrate Judge Hey recommends that the claim is essentially identical
to the layered ineffective assistance of counsel claim Petitioner raised for the first time on PCRA
appeal, which the Pennsylvania Superior Court found was waived because it should have been
raised on direct appeal. She thus recommends that the waived claim was procedurally defaulted
with no showing of cause and prejudice or a fundamental miscarriage of justice. Petitioner
objects, arguing that she “was as diligent as possible in raising this claim at her first available
oppurtunity [sic], i.e. her State PCRA petition.” (Objections at 7.) The objection lacks merit
because Petitioner does not offer any arguable basis for excusing the default.