BURNO v. WETZEL et al

Filing 11

ORDER THAT PETITIONER'S OBJECTIONS 10 ARE OVERRULED; JUDGE CARAPACCA'S REPORT AND RECOMMENDATION 9 IS APPROVED AND ADOPTED; BURNO'S PETITION FOR A WRIT OF HABEAS CORPUS IS DENIED; FOR THE REASONS SUMMARIZED IN (bb) ABOVE, WE DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY; AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 8/8/13. 8/8/13 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KENNETH HAROLD BURNO, JR.
v.
JOHN E. WETZEL, et al.

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CIVIL ACTION

NO. 12-4964

ORDER
AND NOW, this 8th day of August, 2013, upon
consideration of petitioner Kenneth Harold Burno, Jr.’s
counseled petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 (docket entry # 1), our Order referring this
matter to the Honorable Linda K. Caracappa for a report and
recommendation (docket entry # 2), defendants’ response (docket
entry # 5), Judge Caracappa’s report and recommendation (“R&R”)
(docket entry # 9), and Burno’s objections to that report and
recommendation (docket entry # 10), and the Court finding that:
(a)

Burno’s petition raises two grounds for relief:

he argues that trial counsel was ineffective (1) in failing to
object to flawed jury instructions regarding the “credibility
standards for [the] jury to use in judging [the] credibility” of
Vernell Jones, an “accomplice witness who testified against
[the] Petitioner”, Pet. at 6, and (2) in “failing to demand a
proper cautionary instruction” with regard to evidence that

Vernell Jones had pled guilty to the same charges for which
Burno was on trial, Pet. at 8;
(b)

Judge Caracappa rejected both claims, as we will

describe below;
(c)

Burno objects to both findings, 1 and we are to

“make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which”
petitioner objects, see 28 U.S.C. § 636;
(d)

Under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), federal courts are to grant
considerable deference to state court decisions:
An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless adjudication of the claim
-(1) Resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
1

Local Civil Rule 72.1 IV(b) provides that “[a]ny
party may object to a magistrate judge’s proposed findings,
recommendations or report under 28 U.S.C. 636(b)(1)(B) . . .
within fourteen days after being served with a copy thereof” by
filing “written objections which shall specifically identify the
portions of the proposed findings, recommendations or report to
which objection is made and the basis for such objections”.
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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);
(e)

In Williams v. Taylor, 529 U.S. 362 (2000),

Justice O’Connor explained for the Court the degree of deference
§ 2254(d)(1) demands: a state court decision is “contrary to”
clearly established federal law only if “the state court arrives
at a conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently
than this Court has on a set of materially indistinguishable
facts”, and a decision involves an “unreasonable application” of
clearly established federal law if “the state court identifies
the correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts
of the prisoner’s case”, Williams, 529 U.S. at 412-13;
(f)

Justice O’Connor made clear for the Court that “a

federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law

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erroneously or incorrectly.

Rather, that application must also

be unreasonable”, id. at 411;
(g)

As the United States Supreme Court more recently

explained,
As a condition for obtaining habeas corpus
from a federal court, a state prisoner must
show that the state court’s ruling on the
claim being presented in federal court was
so lacking in justification that there was
an error well understood and comprehended in
existing law beyond any possibility for
fairminded disagreement.
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011);
(h)

The standard of unreasonableness is thus “a

substantially higher threshold” than the standard would be for
finding that the state court’s determination was incorrect,
Schriro v. Landrigan, 550 U.S. 465 (2007);
(i)

Outside of the review § 2254(d) describes,

federal courts are without the power to review a state court’s
interpretation of state law -- as the United States Supreme
Court explained in Estelle v. McGuire, 502 U.S. 62 (1991), “it
is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.

In

conducting habeas review, a federal court is limited to deciding

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whether a conviction violated the Constitution, laws, or
treaties of the United States”, id. at 67-68;
(j)

Thus, with regard to jury instructions, “the fact

that the instruction was allegedly incorrect under state law is
not a basis for habeas relief”, Estelle, 502 U.S. at 71-72;
(k)

The analysis in Strickland v. Washington, 466

U.S. 668 (1984) governs ineffective assistance of counsel
claims;
(l)

Under Strickland, in order to state a claim for

ineffective assistance of counsel a petitioner must establish
both (1) that counsel’s performance was deficient, i.e.,
unreasonable under prevailing professional standards, 2 and (2)
prejudice, i.e., that but for counsel’s ineffectiveness, the
outcome of the proceeding would have been different, Strickland,
466 U.S. at 687; see also Shotts v. Wetzel, -- F.3d --, No. 113670, 2013 WL 3927730, at *8-9 (3d Cir. July 31, 2013);
(m)

The ultimate question of ineffective assistance

under Strickland is “whether counsel’s conduct so undermined the

2

Under this prong, “[j]udicial scrutiny must be highly
deferential,” and courts “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance”, Strickland, 466 U.S. at 688-89.
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proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result”,
Strickland, 466 U.S. at 687;
(n)

Our Court of Appeals has explained that a

petitioner cannot sustain a habeas claim on the grounds that
counsel was ineffective for failing to object to jury
instructions that have been found by the state court to comport
with state law:
Bound by the state court’s determination that the
instruction at issue comported with state law, it is
evident that [the petitioner] cannot satisfy the first
component of a viable ineffective assistance of
counsel claim - that counsel’s performance was
deficient. Thus [the petitioner] cannot overcome the
“strong presumption” that his counsel’s conduct fell
outside the “wide range of reasonable professional
assistance.”
Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) (quoting
Strickland, 466 U.S. at 689);
(o)

Judge Caracappa rejected Burno’s first

contention, that counsel was ineffective for failing to object
to an instruction conditioning the application of the “corrupt
and polluted source” standard on a jury finding that Burno and
Jones were accomplices, R&R at 9-10;

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(p)

Judge Caracappa reasoned that the trial counsel’s

decision was not unreasonable under the first prong of
Strickland because “it was a strategic decision consistent with
a defense theory of the case”, id. at 9, as she explained:
It is reasonable for counsel to not request
an instruction -- here, that the jury must
conclude Ms. Jones was his accomplice, and
must therefore apply the special rules for
evaluating her testimony -- when such an
instruction would contradict the theory of
the case. Petitioner’s defense at trial was
that he was not involved in the murder and
that Ms. Jones acted alone. It would have
undermined petitioner’s defense if the jury
instruction directed the jury as a matter of
fact to conclude that Ms. Jones was his
accomplice rather than leaving that question
to the jury.
Id. at 9;
(q)

Burno does argue that “the application of [the

‘corrupt and polluted source’] standard[] should not have been
deferred until after the jury determined whether or not Vernell
Jones was being truthful with regard to her testimony that she
was an accomplice of the Petitioner”, Obj. at 4, but he does not
suggest that counsel should have asked the judge to instruct the
jury as a matter of fact that Jones and Burno were accomplices;

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(r)

Instead, Burno argues that the jury should have

evaluated Jones’s testimony under the “corrupt and polluted
source” standard because “there was an arrangement between
Vernell Jones and the prosecution that resulted in her becoming
a witness for the Commonwealth”, and this cooperation alone
warranted a credibility instruction, Obj. at 5;
(s)

Though the R&R does not directly address Burno’s

concern with the instruction, we nevertheless agree with Judge
Caracappa’s conclusion that Burno’s first contention does not
warrant habeas relief -- Estelle and Strickland, and their
synthesis in Priester, squarely control this claim, and as in
Priester -- where the state court has found the instruction at
issue to comport with state law -- we cannot say that trial
counsel was unreasonable for failing to object to it;
(t)

Judge Caracappa also rejected Burno’s second

claim, that counsel was ineffective in failing to ask for an
instruction that Jones’s guilty plea could not be considered as
evidence of Burno’s guilt, R&R at 10;
(u)

The respondents contend that “the Superior Court

relied on state law precedent in denying petitioner’s PCRA
claim,” and so “the state court’s ‘determination of a state law
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issue may not be second-guessed now on federal habeas review’”,
Resp. Br. at 18 (quoting Estelle, 502 U.S. at 68);
(v)

Judge Carapacca agreed, finding that “[t]he

Superior Court, the final state court to address the claim on
the merits, relied on controlling Pennsylvania case law,
Commonwealth v. Cook, 676 A.2d 639 (Pa. 1996), to determine that
petitioner was not entitled to a precautionary jury
instruction”, R&R at 11, and the federal court on § 2254 review
“must defer to the Superior Court’s conclusion that as a matter
of state law petitioner was not entitled to the precautionary
jury instruction”, id. at 11-2;
(w)

Burno objects that “[t]he Magistrate Judge erred

in accepting the reliance of the Superior Court of Pennsylvania
upon [Cook] to justify denial of relief” because he argues that
Cook is inapposite and that subsequent cases have undermined its
holding, Obj. 7-8;
(x)

This amounts to an argument about the merits of

the state court’s application of state law identical to the
argument Judge Caracappa properly rejected, see R&R at 12 n.3
(“Petitioner urges this court to consider alternative case law
regarding whether a defendant is entitled to a precautionary
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jury instruction when a co-defendant’s guilty plea is introduced
into evidence.

This argument is unavailing at this stage of

review”, where “the question of whether petitioner was entitled
to a specific jury instruction under state law was reached on
the merits by the state court”);
(y)

We agree, and we approve of Judge Carapacca’s

finding on this claim;
(z)

Finally, Local Appellate Rule 22.2 of the Rules

of the United States Court of Appeals for the Third Circuit
provides that “at the time a final order denying a habeas
petition . . . is issued, the district court judge will make a
determination as to whether a certificate of appealability
should issue”;
(aa) Such a certificate should issue only if the
petitioner demonstrates that “reasonable jurists could debate”
whether the petition states a valid claim for the denial of a
constitutional right, Slack v. McDaniel, 529 U.S. 473, 484
(2000); and
(bb) We do not believe that reasonable jurists could
debate the conclusion that § 2254(d) precludes Burno’s claims;
It is hereby ORDERED that:
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1.

Petitioner's objections (docket entry# 10) are

2.

Judge Carapacca's report and recommendation

OVERRULED;

(docket entry # 9) is APPROVED and ADOPTED;
3.

Burno's petition for a writ of habeas corpus is

4.

For the reasons summarized in (bb) above, we

DENIED;

DECLINE to issue a certificate of appealability; and
5.

The Clerk of Court shall CLOSE this case

statistically.

BY THE COURT:

h:=4~
Stewart Dalzell, J.

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