GUZMAN v. ROZUM et al
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 4/12/17. 4/12/17 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
GERALD ROZUM; GARY SANFORD,
District Attorney; and, ATTORNEY
GENERAL OF THE STATE OF
April 12, 2017
On February 16, 2006, Petitioner Francisco Guzman was convicted in the Philadelphia
Court of Common Pleas of first-degree murder, two counts of aggravated assault, carrying a
firearm without a license, possession of a criminal instrument, and recklessly endangering
another person. (No. CP-51-CR-0500771-2003; Trial Tr. vol. 7, 5–10, Feb. 16, 2006.) On April
10, 2006, he was sentenced to a term of life imprisonment without parole on the murder
conviction, a consecutive six (6) to twelve (12)-year term of imprisonment on the assault
convictions, and a number of concurrent imprisonment terms on the remaining convictions. (Ct.
Com. Pl. Crim. Docket 3–4.) Petitioner now seeks habeas relief from his state-court convictions.
Pursuant to Local Civil Rule 72.1.IV(c), the matter was referred to United States Magistrate
Judge Carol Sandra Moore Wells for a Report and Recommendation (“R&R”). Judge Wells
issued an R&R denying Petitioner’s request for relief, and Petitioner filed objections thereto,
which are presently pending before this Court. For the reasons set forth below, Petitioner’s
objections shall be denied.
The following facts are supported by evidence presented at trial.
Petitioner, along with Felix Baez, Randolph Miller, José Tirado, and Esau Tirado, dealt
drugs in the area surrounding the intersection of Clearfield and Wendle Streets in Philadelphia.
(Trial Tr. vol. 3, 157–163, Feb. 10, 2006; Trial Tr. vol. 4, 107–110, Feb. 13, 2006.) Petitioner
supplied other dealers with drugs to sell and collected money from them once those drugs were
sold. (Trial Tr. vol. 4, 109–110.)
At some point before Christmas Eve in 2000, Petitioner told Esau Tirado, that he “was
going to deal with” Felix Baez because Baez owed Petitioner money. (Trial Tr. vol. 4, 111, 122.)
Upon hearing that, Esau told his brother, José Tirado, to stop spending time with Baez and
specifically, to not get into Baez’s van on December 24, 2000. (Trial Tr. vol. 4, 115–117.) José
Tirado, however, did not heed Esau’s advice and rode with Baez, Randolph Miller, and Michael
Cartagena in Baez’s van to a bar that day. (Trial Tr. vol. 3, 167; Trial Tr. vol. 4, 117.)
When they arrived, Baez went into the bar to purchase drinks for the group, while José
Tirado, Miller, and Cartagena stayed in the van to smoke marijuana. (Trial Tr. vol. 3, 169–170.)
Tirado grew impatient after waiting a few minutes and directed Cartagena to tell Baez to hurry
up. (Trial Tr. vol. 3, 170.) Cartagena exited the van, entered the bar, and found Baez playing
cards. (Trial Tr. vol. 3, 170.) Baez gave Cartagena his car keys, told him to buy the group’s
drinks, and drive Tirado home if he wished to go. (Trial Tr. vol. 3, 170–171.) Cartagena bought
the drinks, left the bar, and returned to Baez’s parked van, entering it through the driver’s-side
door. (Trial Tr. vol. 3, 170–171.) Cartagena, Tirado, and Miller drank for approximately five
minutes while sitting in the vehicle, at which point Tirado asked Cartagena to take him home.
(Trial Tr. vol. 3, 171.) As Cartagena attempted to start the van, Petitioner approached and began
shooting into the vehicle. (Trial Tr. vol. 3, 171–178.)
Michael Cartagena testified that he was “looking face to face with the defendant . . . for a
minute” immediately before the shooting began. 1 (Trial Tr. vol. 3, 174–176.) José Tirado was
shot three times and died at the scene. 2 (Trial Tr. vol. 3, 92–93, 178.) Miller was shot once in his
arm, and Cartagena’s jacket was grazed by a bullet. (Trial Tr. vol. 3, 176; Trial Tr. vol. 5, 92–93,
Feb. 14, 2006.) Miller spent several days recovering at Temple University Hospital and suffered
permanent nerve damage to his left arm as a result of his wound. (Trial Tr. vol. 4, 20; Trial Tr.
vol. 5, 92.)
On Christmas Day—the day after José Tirado was killed—Petitioner went to Esau
Tirado’s house and told Esau’s mother that he was “sorry that that happened to your son. It was
not meant to happen.” 3 (Trial Tr. vol. 4, 120.) Iliana Tirado (Esau’s and José’s sister) was also at
the house when Petitioner arrived, and she testified that Petitioner apologized for José’s death
and told Esau that “you knew it was going to happen . . . because I let you know.” (Trial Tr. vol.
4, 180–182.) Petitioner then directed Esau Tirado to get into his car, whereupon Tirado noticed
Cartagena also testified that he was approximately two feet from the shooter, and that even
though the shooter’s face was covered by a scarf from his upper lip down, Cartagena knew
Petitioner was the shooter. (Trial Tr. vol. 3, 174–175, 187–188.)
Philadelphia County Assistant Medical Examiner Edwin Lieberman testified that the cause of
José Tirado’s death was multiple gunshot wounds and the manner of death was homicide. (Trial
Tr. vol. 5, 77.)
Esau Tirado testified that Petitioner made that statement to Tirado’s mother in Spanish. (Trial
Tr. vol. 4, 120–121.)
that Petitioner was carrying a nine-millimeter handgun. 4 (Trial Tr. vol. 4, 121.) Petitioner asked
Tirado whether he had seen Baez because Petitioner wanted Baez to pay his debt. (Trial Tr. vol.
4, 122.) Tirado responded that he had not, and Petitioner drove Tirado back to his house. (Trial
Tr. vol. 4, 122.)
Also on December 25, 2000, Michael Cartagena was interviewed by police regarding the
shooting that took place the night before. (Trial Tr. vol. 3, 180.) Cartagena did not tell the
detectives who he believed the shooter to be at that time because he “was still shaken up by the
incident.” (Trial Tr. vol. 3, 181.) When he spoke with detectives again on May 17, 2001,
Cartagena identified the Petitioner from a photograph lineup as “Pete.” 5 (Trial Tr. vol. 3, 183.)
Cartagena told them that he had known Petitioner for approximately two years from having seen
him deal drugs in his neighborhood near the intersection of Clearfield and Wendle Streets in
Philadelphia. (Trial Tr. vol. 3, 157–158, 212–213, 218.) Randolph Miller testified that he also
knew Petitioner from his involvement in the drug dealings that frequently occurred at the corner
of Clearfield and Wendle Streets. (Trial Tr. vol. 4, 7–8.)
On January 2, 2003, the police told Michael Cartagena that they had arrested Petitioner.
(Trial Tr. vol. 3, 221.) Cartagena positively identified Petitioner as the individual who shot into
Baez’s van on December 24, 2000, wounding Randolph Miller and killing José Tirado. (Trial Tr.
vol. 3, 220–221.)
Esau Tirado testified that Petitioner always carried a nine-millimeter handgun (Trial Tr. vol. 4,
127), even though Petitioner did not possess a valid firearm permit (Trial Tr. vol. 5, 95).
Furthermore, Police Officer John Cannon, who investigated the scene where José Tirado was
killed on December 24, 2000, testified that the caliber of the fired cartridge cases and bullet that
were found near Baez’s van was 0.9 millimeters. (Trial. Tr. vol. 5, 49–50.)
Michael Cartagena testified that he knew Petitioner as “Pete.” (Trial Tr. vol. 3, 157.)
Direct and Collateral Appeal
Following the trial court’s denial of Petitioner’s post-sentence motions, Petitioner filed a
timely appeal to the Superior Court of Pennsylvania. Commonwealth v. Guzman, No. 1624EDA
2006, slip op. at 1 (Pa. Super. Ct. July 3, 2007). The Superior Court affirmed Petitioner’s
judgment of sentence, id., and the Supreme Court of Pennsylvania denied allocatur on May 14,
2008, Commonwealth v. Guzman, 932 A.2d 253 (Pa. 2008).
On June 6, 2008, Petitioner filed a timely pro se petition pursuant to Pennsylvania’s Post
Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541–9546. (Pet’r’s Mot. Post
Conv. Relief, June 6, 2008.) An Amended PCRA Petition was filed by Petitioner’s appointed
counsel on May 21, 2010. (Pet’r’s Am. Pet. Post Conv. Relief, May 21 2010.) On November 23,
2010, the PCRA court gave notice to Petitioner of its intent to dismiss his Amended PCRA
Petition without a hearing. (Notice, Nov. 23, 2010 (citing Pa. R. Crim. P. 907).) In accordance
therewith, the PCRA court entered an Order on February 18, 2011, dismissing Petitioner’s
Amended PCRA Petition. (Order, Feb. 18, 2011.)The Superior Court of Pennsylvania affirmed
that Order on September 5, 2012. Commonwealth v. Guzman, No. 788 EDA 2011, slip op. at 8
(Pa. Super. Ct. Sept. 5, 2012). The Supreme Court of Pennsylvania denied allocatur on March
27, 2013. Commonwealth v. Guzman, 63 A.3d 1244 (Pa. 2013).
Petitioner’s Habeas Claims
Pursuant to 28 U.S.C. § 2254, Petitioner timely filed the instant pro se habeas action on
November 11, 2013 in the Western District of Pennsylvania (“§ 2254 Petition”). 6 (Pet. 29, ECF
No. 1–3.) The matter was transferred to the Eastern District of Pennsylvania on November 14,
2013. (Order 4, ECF No. 1.) Petitioner’s claims for relief are as follows: 7
1. The trial court erred by admitting testimony from Iliana Tirado over Petitioner’s
defense counsel’s objection;
2. The trial court erred by admitting evidence indicating that Petitioner was a drug
dealer and violent person;
3. The weight of the evidence did not support the verdict;
4. Both of Petitioner’s trial lawyers were ineffective because they failed to present
available alibi witnesses and unreasonably instructed Petitioner not to present an alibi
5. One of Petitioner’s trial lawyers (Attorney Gary Server) was ineffective because he
advised Petitioner to not present an alibi defense;
6. Petitioner’s trial lawyers were ineffective because they failed to request adequate
limiting instructions regarding testimony that portrayed Petitioner as a drug dealer
and violent individual;
7. The trial court erred by refusing to grant a mistrial pursuant to Petitioner’s objection
to the admissibility of Iliana Tirado’s testimony;
8. Petitioner’s trial lawyers were ineffective because they failed to object to the trial
court’s transferred intent instruction;
“The federal ‘prisoner mailbox rule’ provides that a document is deemed filed on the date it is
given to prison officials for mailing.” Pabon v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011)
(citing Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998)). Petitioner declared, under penalty of
perjury, that he delivered his § 2254 Petition to prison authorities for mailing on November 11,
2013. (Pet. 29.) Therefore, it is deemed filed on November 11, 2013, even though the Clerk of
the Court did not receive it until November 13, 2013. (See Pet. 1.)
Petitioner’s first nine claims for relief are appended to his § 2254 Petition (Pet. 16–27), and he
filed a timely amendment thereto on December 11, 2013 by attaching an additional six claims for
relief to a letter he mailed to this Court (See Pet’r’s Amendment 2–7, ECF No. 2 (hereinafter
9. Petitioner’s trial lawyers were ineffective because they failed to object to the
prosecutor’s remark during her opening statement that Petitioner admitted to Esau
Tirado he unintentionally killed José Tirado;
10. No warrant was ever issued that authorized Petitioner’s arrest;
11. The statutes Petitioner violated were never lawfully enacted;
12. The court, criminal procedure, and evidence rules pursuant to which Petitioner was
prosecuted violate the Constitution of the United States and were never lawfully
13. The Constitution of the Commonwealth of Pennsylvania is unconstitutional and was
never lawfully adopted;
14. Petitioner’s life sentence violated the Constitution of the United States and the
Constitution of the Commonwealth of Pennsylvania because at the time of
sentencing, he was under the age of 25; and
15. Petitioner’s constitutional rights to a fair trial, equal protection under the law, and to
be free from cruel and unusual punishment were violated because he was not
provided an interpreter when he was first taken into custody or at trial.
(Pet. 16–27; Am. Pet. 2–7.)
Thereafter, this Court entered an Order referring Petitioner’s § 2254 Petition to the
Honorable Carol Sandra Moore Wells, United States Magistrate Judge, for a Report and
Recommendation. (Order, ECF No. 5.) The Commonwealth filed a Response to the Petition on
September 5, 2014, arguing that no relief was due because Petitioner’s claims were either not
cognizable on habeas review, procedurally defaulted, or without merit. (Resp. 2, ECF No. 12.)
Petitioner replied on November 28, 2014. (Reply, ECF No. 19.)
Report and Recommendation / Petitioner’s Objections
Magistrate Judge Wells issued her R&R on June 16, 2016, in which she determined that
all of Petitioner’s claims for habeas relief were either not cognizable, procedurally defaulted, or
meritless. (R&R 16, ECF No. 24.) Petitioner lodged eight objections to the Magistrate Judge’s
R&R. (Excs. to R&R, ECF No. 27 (hereinafter “Objs.”).) The Commonwealth responded to
Petitioner’s objections on September 15, 2016 (ECF No. 32), and Petitioner replied thereto on
October 19, 2016 (Resp. to Commonwealth’s Objs., ECF No. 34 (hereinafter “Resp.”)). The
matter is now ripe for review by this Court.
Standards of Review
Objections to Report and Recommendation
When objections are filed to the R&R of a Magistrate Judge, the District Court must
conduct de novo review of those portions of the R&R to which objection is made. 28 U.S.C. §
636(b)(1). If there are no objections to the R&R or when reviewing those portions of the R&R to
which no objections are directed, the court should, as a matter of good practice, “satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.” Fed.
R. Civ. P. 72(b), advisory committee notes; see also Oldrati v. Apfel, 33 F. Supp. 2d 397, 399
(E.D. Pa. 1998) (“In the absence of a timely objection . . . this Court will review [the
Magistrate’s] Report and Recommendation for ‘clear error.’”) (citations omitted).
Exhaustion and Procedural Default
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §§ 2241–2266
(“AEDPA”), deals with the right of all persons in state custody, or in federal custody, to file a
petition in federal court seeking the issuance of a writ of habeas corpus. In the context of a
prisoner in state custody, if such a writ of habeas corpus is issued by a federal court, the prisoner
will be released from such state custody on the grounds that certain rights accruing to that
prisoner pursuant to the United States Constitution have been violated; habeas corpus motions
pursuant to the AEDPA are the only possible means by which “state prisoners attacking the
validity of the fact or length of their confinement” may obtain this type of relief from state
custody. Torres v. Fauver, 292 F.3d 141, 146 (3d Cir. 2002) (quoting Preiser v. Rodriguez, 411
U.S. 475, 490 (1973)) (internal quotation marks omitted).
By means of the AEDPA, Congress also created a series of intentionally restrictive gatekeeping conditions which must be satisfied in order for a prisoner to prevail on a habeas petition.
The strict AEDPA gate-keeping procedures were enacted by Congress in order to support the
policy of creating finality with respect to state and federal criminal prosecutions. One such gatekeeping procedure is the requirement of exhaustion. “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
unless it appears that the applicant has exhausted the remedies available in the courts of the
State . . . .” 28 U.S.C. § 2254(b)(1); see also Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010)
(“A district court ordinarily cannot grant a petition for a writ of habeas corpus arising from a
petitioner’s custody under a state court judgment unless the petitioner first has exhausted his
available remedies in state court.”) (citing 28 U.S.C. § 2254(b)). In other words, the petitioner
must have “fairly presented” the federal habeas claims to the state courts. Duncan v. Henry, 513
U.S. 364, 365 (1995); Evans v. Court of Common Pleas, Del. Cnty., Pa., 959 F.2d 1227, 1231
(3d Cir. 1992) (citations omitted). “To ‘fairly present’ a claim, a petitioner must present a federal
claim’s factual and legal substance to the state courts in a manner that puts them on notice that a
federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). A
petitioner in Pennsylvania must appeal such claims to the Pennsylvania Superior Court. Whitney
v. Horn, 280 F.3d 240, 250 n.10 (3d Cir. 2002). Petitioner carries the burden of proving
exhaustion. Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir. 2001) (citing Toulson v. Beyer, 987
F.2d 984, 987 (3d Cir. 1993)).
Where a claim was not exhausted in state court, it is said to be procedurally defaulted. To
bring a procedurally defaulted claim in federal proceedings, Petitioner must demonstrate either:
(a) cause for the default and actual prejudice arising from the alleged violation of federal law; or,
that (b) failure to consider the claims will result in a fundamental miscarriage of justice. Coleman
v. Thompson, 501 U.S. 722, 750 (1991). To establish the “cause” requirement, Petitioner must
“show that some objective factor external to the defense impeded counsel’s efforts to comply
with the State’s procedural rule.” Werts v. Vaughn, 228 F.3d 178, 192–93 (3d Cir. 2000)
(quoting Murray v. Carrier, 477 U.S. 478, 488–89 (1986)). Establishing “prejudice” requires the
“petitioner [to] prove ‘not 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.’” Id. at 193 (quoting United States v. Frady, 456 U.S. 152, 170
(1982)). Alternatively, to establish a fundamental miscarriage of justice, Petitioner must
demonstrate actual innocence. Schlup v. Delo, 513 U.S. 298, 324–32 (1995).
Where Petitioner’s claims were adjudicated on the merits in state court, the AEDPA
deference standard applies to this Court’s review of the merits determination. Rolan v. Coleman,
680 F.3d 311, 321 (3d Cir. 2012). The AEDPA limits federal habeas review of state-court
judgments. Werts, 228 F.3d at 195. A petition for habeas corpus may only be granted if: (1) the
state court’s adjudication of the claim “resulted in a decision contrary to, or involved in an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or” (2) the adjudication “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)(1)–(2). When a claim has been adjudicated on the merits in
state court, federal habeas review is limited to the record before the state court. Cullen v.
Pinholster, 131 S.Ct. 1388, 1398–99 (2011).
Ineffective Assistance of Counsel
The Sixth Amendment right to counsel “is the right to effective assistance of counsel.”
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To prove that counsel was ineffective,
Petitioner must establish that: (1) counsel’s performance was constitutionally deficient; and (2)
that deficiency prejudiced Petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Deficient performance “requires showing that counsel made errors so serious that he or she was
not functioning as the ‘counsel guaranteed to the defendant by the Sixth Amendment.’” Id. In
essence, Petitioner must show that “counsel’s representation fell below an objective standard of
reasonableness” under prevailing professional norms. Id. at 688. Petitioner must overcome the
presumption that, under the circumstances, the challenged action “might be considered sound
trial strategy.” Id. at 690 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Prejudice
requires showing that counsel’s errors were serious enough to deprive the defendant of a fair
trial. Id. at 687.
Petitioner herein has raised eight objections to the R&R that, in the aggregate, challenge
the Magistrate’s recommended dispositions for all but one of his habeas claims. This Court
addresses each objection in turn.
Petitioner’s first objection pertains to Claims One, Three, and Seven of his habeas
petition. 8 (Objs. 2–4.) It is overruled for the following reasons.
In Claim One, Petitioner alleges he was denied his constitutional right to a fair trial
because the trial court erred by admitting testimony from Iliana Tirado over his defense
counsel’s objection. (Pet. 16, ECF No. 1-3.) “Such an inquiry . . . is no part of a federal court’s
habeas review of a state conviction [because] federal habeas corpus relief does not lie for errors
of state law[,]” with one exception. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal
quotation marks omitted). Such a claim is only entitled to habeas relief if “the admission of
evidence violated [Petitioner’s] federal constitutional rights.” Id. at 68. “[E]videntiary errors of
state courts are not considered to be of constitutional proportion . . ., unless the error deprives a
defendant of fundamental fairness in his criminal trial.” Bisaccia v. Attorney Gen. of N.J., 623
F.2d 307, 312 (3d Cir. 1980) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642–43 (1974);
United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir. 1976), cert. denied, 430 U.S.
972 (1977)). Petitioner fails to meet this extremely high threshold. 9
The R&R analyzes these claims as purely state-law questions. (R&R 4–5.) However, before
Petitioner articulates his claims for habeas relief in his § 2254 Petitioner, he argues that the
allegations contained within those claims denied him of his right to effective assistance of
counsel at trial and on direct appeal pursuant to the Sixth Amendment, and his right to a fair trial
and due process guaranteed by the Fifth, Sixth, and Fourteenth Amendments. (Pet. 16.)
Therefore, this Court’s analyses that follow do not treat Claims One, Three, and Seven as purely
challenges to determinations of state-law questions.
Petitioner’s trial counsel promptly objected to Iliana Tirado’s testimony on the grounds that it
was inadmissible hearsay. (Trial Tr. vol. 4, 187.) The trial court judge then gave cautionary
instructions to the jurors, explaining what they could and could not take from her testimony.
(Trial Tr. vol. 4, 189.) These facts support this Court’s conclusion that Claim One fails to
establish Petitioner was deprived of fundamental fairness in his criminal trial. Bisaccia, 623 F.2d
Moreover, assuming arguendo Petitioner met the requisite threshold, he would not be
entitled to habeas relief because Claim One is procedurally defaulted. This Court’s independent
review of the state-court Record confirms Petitioner never raised Claim One on constitutional
grounds in state-court proceedings. Accordingly, Petitioner’s objection to the Magistrate’s
recommended disposition of Claim One is overruled.
In Claim Three, Petitioner asserts the jury’s verdict was contrary to the weight of the
evidence presented at trial. (Pet. 18.) Such a claim, unlike a claim challenging the sufficiency of
evidence, essentially asks this Court to serve “as a ‘thirteenth juror’ and independently evaluate
the weight of the evidence.” Gov’t of V.I. v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citing
Tibbs v. Florida, 457 U.S. 31, 42 (1982)). As such, it is also not cognizable on habeas review.
“The ‘weight of the evidence’ refers to a ‘determination [by] the trier of fact that a greater
amount of credible evidence supports one side of an issue or cause than the other.” Tibbs, 457
U.S. at 37–38 (quoting Tibbs v. Florida, 397 So.2d 1120, 1123 (Fl. 1981)) (alterations in
original). Thus, by asserting Claim Three, Petitioner requests that this Court question the
credibility of the evidence presented at trial. Tibbs, 457 U.S. at 37. Federal habeas courts,
however, are not permitted to re-evaluate determinations made by state courts regarding the
credibility of trial evidence. Marshall v. Lonberger, 459 U.S. 422, 434–35 (1983); Weeks v.
Snyder, 219 F.3d 245, 258 (3d Cir. 2000). State trial courts, not federal habeas courts, have
observed the demeanor of witnesses and are, therefore, uniquely positioned to assess the integrity
of the admitted evidence. Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007) (citing Miller v.
Fenton, 474 U.S. 104, 114 (1985); Boyd v. Boyd, 169 N.E. 632, 634 (N.Y. 1930)).
Petitioner does not distinguish between weight and sufficiency of evidence. He uses these
terms interchangeably in his objection to the Magistrate’s conclusion that Claim Three is not
cognizable. (Objs. 1–3.) Petitioner even appears to contend that Claim Three, although patently
described as a weight of evidence claim in his § 2254 Petition (Pet. 18–19), is equivalent to an
insufficient evidence claim. (See Objs. 1–3; Resp. 3–4.) However, any such assertion is rendered
irrelevant; even if this Court evaluated Claim Three as an insufficient evidence claim, Petitioner
would not be entitled to relief. “[A] conviction rests upon insufficient evidence when, even after
viewing the evidence in the light most favorable to the prosecution, no rational factfinder could
have found the defendant guilty beyond a reasonable doubt.” McMullen v. Tennis, 562 F.3d 231,
239 (3d Cir. 2009) (quoting Tibbs, 457 U.S. at 37) (internal quotation marks omitted). Petitioner
has alleged no facts or arguments that would support such a conclusion (See Pet. 18–19; Objs. 1–
3; Resp. 3–4). Upon independent review of the entire record, this Court finds the evidence
adduced at trial to be wholly sufficient to sustain Petitioner’s conviction. Accordingly, his
objection to the Magistrate’s recommended dismissal of Claim Three is overruled.
Petitioner’s Claim Seven (Pet. 23) similarly fails to establish he was deprived of his
constitutional right to a fair trial. Therein, Petitioner argues that the trial court erred in denying
counsel’s demand for a mistrial, which was based upon the trial court’s allegedly improper
admission of Iliana Tirado’s testimony into evidence. (Pet. 23.) Because this claim also
challenges a determination at trial based upon a state-law question, and Petitioner has not
demonstrated that the fundamental fairness of his trial was undermined by same, Petitioner is
barred from seeking federal habeas review of the claim. Furthermore, even if Claim Seven
established Petitioner was deprived of fundamental fairness in his criminal trial, it is not
reviewable by this Court because it is procedurally defaulted. Claim Seven was never raised in
any state-court proceedings as the alleged result of ineffective assistance of counsel. (Pet. 24.)
However, counsel’s decision to not present this meritless claim does not constitute
ineffectiveness and thus does not justify excusing Claim Seven’s default. Martinez v. Ryan, 132
S. Ct. 1309, 1319–20 (2012); Strickland v. Washington, 466 U.S. 668, 698–700 (1984).
Petitioner’s objection to the R&R’s disposition of Claim Seven is, therefore, overruled.
Petitioner’s second objection challenges the Magistrate’s recommendation that Claim
Ten not be afforded habeas review because it is prudentially barred. (Objs. 4) Claim Ten in
Petitioner’s § 2254 Petition alleges that his arrest warrant was invalid and, in turn, his arrest and
prosecution violated the Fourth Amendment. (Am. Pet. 2.) In his Reply to the Commonwealth’s
Response to Petitioner’s Objections, he further explains that Claim Ten is actually a Sixth
Amendment ineffectiveness claim based upon his counsel’s failure to bring the Fourth
Amendment claim described in Petitioner’s § 2254 Petition. (Resp. 5, ECF No. 34.) Whether
analyzed under the Fourth Amendment or Sixth Amendment, Claim Ten is meritless.
Federal habeas courts are not permitted to review Fourth Amendment claims if the
petitioner was provided an opportunity for full and fair litigation of such a claim in state court.
Cardwell v. Taylor, 461 U.S. 571, 572 (1983) (citing Stone v. Powell, 428 U.S. 465 (1976));
Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994). However, “Stone . . . does not bar federal
courts from hearing habeas petitions based on claims . . . that the petitioner received ineffective
assistance of counsel when the petitioner contends that his or her attorney failed to assert a
Fourth Amendment claim.” Gilmore v. Marks, 799 F.2d 51, 55 (3d Cir. 1986) (citing
Kimmelman v. Morrison, 477 U.S. 365, 382–83 (1986)). Nevertheless, “[w]here defense
counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of
ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious
and that there is a reasonable probability that the verdict would have been different absent the
excludable evidence in order to demonstrate actual prejudice.” Kimmelman, 477 U.S. at 375.
The first several arguments Petitioner attempts to make in objecting to the Magistrate’s
recommended disposition of Claim Ten appear to be related to the alleged invalidity of his arrest
warrant and, therefore, the Fourth Amendment. (Objs. 4–6.) These arguments are meritless, as
Petitioner points to no facts of record in support of his claim and relies upon irrelevant case law
in an attempt to demonstrate he is entitled to relief. (Objs. 4–6.) In the final paragraph of his
second objection, Petitioner refers to the Sixth Amendment and ineffective assistance of counsel,
but this argument also fails because, again, he offers no facts or arguments that show that his
Fourth Amendment claim is valid. 10 (See Objs. 6; Resp. 5.)
Courts have consistently held that “[e]ven assuming the warrant was defective, [there is]
no reason to ‘retreat from the established rule that [an] illegal arrest or detention does not void a
subsequent conviction.’” United States v. Farnsworth, 302 F. App’x 110, 112–13 (3d Cir. 2008)
(quoting Gerstein v. Pugh, 420 U.S. 103, 119 (1975)). Moreover,
To the extent [a petitioner] raises PCRA counsel’s ineffectiveness as an excuse to
overcome the procedural default of the claim that trial counsel was ineffective for
failing to raise an objection to the arrest warrant, we are not convinced that PCRA
counsel was ineffective given that PCRA counsel need not raise a meritless claim
in light of the fact that even if there were a technical problem with the arrest
warrant, Petitioner cannot show that he was prejudiced, i.e., that the result of his
criminal proceedings would have been different given that if such an objection
were raised by counsel, a technical amendment to the arrest warrant no doubt
would have been permitted. Even if such an amendment to the arrest warrant were
not permitted, any challenge to the arrest warrant would not have changed the
outcome of Petitioner’s criminal proceedings.
Petitioner would need to prove that his arrest warrant was invalid in order to show that his
Fourth Amendment claim is properly incorporated into his Sixth Amendment claim. Although a
copy of Petitioner’s arrest warrant (Warrant of Arrest No. 270252, Jan. 30, 2003) is contained
within the state-court record, Petitioner alleges no facts to demonstrate it was invalid. (See Objs.
6; Resp. 5.)
Patterson v. Lamas, Civ. No. 13-414, 2015 U.S. Dist. LEXIS 8559, at *33-34 (W.D. Pa. Jan. 26,
Therefore, regardless of whether Claim Ten is treated as a Fourth or Sixth Amendment
claim, it is without merit. For these reasons, Petitioner’s second objection is overruled.
Petitioner’s third objection pertains to the Magistrate’s recommended dismissal of Claims
Six, Eight, Nine, and Fifteen in his § 2254 Petition. (Objs. 5.) Therein, Petitioner argues that the
Magistrate’s recommendation for the aforementioned claims was based upon “the glaring
problems surrounding the Philadelphia Court system[,]” but offers nothing in support of this
general and conclusory contention. (Objs. 5.) Because federal district courts are not required to
engage in de novo review of objections to a Magistrate’s R&R that lack specificity, this Court
adopts Magistrate Judge Well’s recommended dismissal of Claims Six, Eight, Nine, and Fifteen.
Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (citing 28 U.S.C. § 636(b)(1); Goney v. Clark,
749 F.2d 5, 6–7 (3d Cir. 1984)). Petitioner’s third objection is overruled.
Petitioner’s fourth objection challenges the Magistrate’s recommendation that Claims
Six, Eight, and Nine be deemed procedurally defaulted. (Objs. 6.) These claims all allege the
assistance of Petitioner’s trial counsel was ineffective (Pet. 22–23, 24–26, 27–28) and are
unexhausted because Petitioner failed to raise them on appeal in state-court proceedings, see
Commonwealth v. Guzman, No. 788 EDA 2011, slip op. at 1–2 (Pa. Super. Ct. Sept. 5, 2012).
Furthermore, as the Magistrate properly noted, Petitioner would be unable to file a new PCRA
petition in an effort to exhaust these claims because the PCRA’s statute of limitations has
expired. (R&R 7 (citing 42 Pa. Cons. Stat. Ann. § 9545(b)(1)).) A claim made in a petition for a
writ of habeas corpus is procedurally defaulted if it was not presented in state-court proceedings
and the statute of limitations for bringing that claim pursuant to a PCRA petition has expired.
Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001). Accordingly, the Magistrate did not err in
her determination that Claims Six, Eight, and Nine must be deemed procedurally defaulted.
Petitioner presents no new evidence that proves his innocence. Thus, he fails to establish
that a fundamental miscarriage of justice would occur if this Court refuses to consider these
claims. However, Petitioner does attempt to show cause for the default by arguing that his PCRA
counsel was ineffective in failing to raise said claims in state court. (Pet. 23, 26, 28.) In order for
Petitioner’s argument to succeed, he must establish that (1) the effectiveness of his PCRA
counsel’s “representation fell below an objective standard of reasonableness” under the
prevailing professional norms, and (2) that deficiency in performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 669, 687 (1984). “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689.
Because Petitioner offers nothing to demonstrate same, his ineffectiveness argument
regarding Claims Six, Eight, and Nine fails.
Claim Six alleges Petitioner’s trial counsel was ineffective for failing to request
additional limiting instructions with respect to evidence presented that suggested Petitioner had a
reputation as a drug dealer. (Pet. 22.) When this evidence was presented, Petitioner’s trial
counsel objected to its admission, and the trial court promptly and thoroughly explained to the
jurors that its only purpose was to show that Petitioner had a motive to kill José Tirado—not to
prove that Petitioner was the murderer or that he was an otherwise “bad person.” (Trial Tr. vol. 4,
112–114.) The cautionary instruction administered by the trial court was wholly proper and
Petitioner has shown no prejudice as a result thereof. PCRA counsel presumably declined to
present Claim Six in Petitioner’s PCRA petition because the claim was meritless. As such,
counsel cannot be deemed ineffective. See Strickland, 466 U.S. at 698–700 (explaining that an
attorney’s decision to not present a meritless claim does not constitute ineffective assistance of
counsel). Consequently, Claim Six’s procedural default is not excused. Martinez v. Ryan, 132 S.
Ct. 1309, 1319–20 (2012) (holding that a procedural default need not be excused when the
underlying claim is without merit or any factual support).
Claim Eight alleges Petitioner’s trial counsel was ineffective for not objecting to the trial
court’s transferred intent instruction. (Pet. 24.) However, this claim is also meritless, thereby
prohibiting any finding that Petitioner’s PCRA counsel’s failure to raise it in his PCRA petition
constituted ineffective assistance of counsel and thus prohibiting any finding of excuse for Claim
Eight’s procedural default. Martinez, 132 S. Ct. at 1319–20.
In Pennsylvania, the pattern instructions for transferred intent reads as follows:
The Commonwealth has alleged that while the defendant[s] [intended to kill]
[conspired with the intent to kill] [name of intended victim], [he] [she] [they]
actually caused the death of [name of deceased].
If you find beyond a reasonable doubt that the defendant[s] [intended to kill]
[conspired with the intent to kill] [name of intended victim] and [was] [were]
acting with that intent at the time [he] [she] [they] in fact killed [name of
deceased], you may find the defendant[s] acted with the specific intent to kill
under what the law calls the doctrine of transferred intent.
What this means is that if the actual result the defendant[s] intended differs from
what [he] [she] [they] contemplated only because a different person than the one
actually intended was killed, the element of causing the death with specific intent
to kill is still established.
Pa. SSJI (Crim) 15.2501C.1.
In this case, the trial court charged the jury as follows with regard to transferred intent:
There exists in the law a theory of criminal responsibility known as the doctrine
of transferred intent. It provides that if the intent to commit a crime exists, then
the same intent can be transferred for the purpose of finding the intent elements of
As it applies to this case, if the defendant had the intent to injure an intended
victim during the incident but actually injured someone other than the intended
victim, then the defendant’s intent to cause injury is transferred from his intended
victim to the actual victim who was, in fact, injured.
Accordingly, under the doctrine of transferred intent, it does not matter that the
actual victim in this incident may not have been the intended victim of the crime.
So long as you find the intent to commit a crime exists beyond a reasonable
doubt, this same intent may be transferred to the actual victim.
(Trial Tr. vol. 6, 18-19, Feb. 15, 2006.)
The trial court’s instruction properly permitted the jury to find that Petitioner had the
requisite intent to commit first-degree murder when he killed José Tirado by firing his gun into
Felix Baez’ van because Baez owed him drug money. (See Trial Tr. vol. 6, 23–24.) See also
Carpenter v. Eckard, Civ. No. 14-4751, 2016 U.S. Dist. LEXIS 127810, at *7-8 (E.D. Pa. Sept.
19, 2016) (rejecting habeas petitioner’s claim regarding propriety of transferred intent charge,
finding instruction that “merely suggested that the jury could find petitioner guilty of murder if it
found beyond a reasonable doubt that the Commonwealth proved the requisite predicate facts
(cause of death and specific intent) . . . was proper, and trial counsel was not ineffective for
failing to challenge it.”); Carpenter v. Eckard, Civ. No. 14-4751, 2015 U.S. Dist. LEXIS
165714, at *16-17 (E.D. Pa. Dec. 8, 2015) (“It is well established that a state court’s
interpretation of state law binds a federal court sitting in habeas corpus. [In this case], the state
court found that the trial court’s [transferred intent] jury instruction was proper under
Pennsylvania law. Thus, any objection to the same would have been denied as meritless. Counsel
cannot be found to be ineffective for failing to raise a meritless objection.”).
Therefore, like Claim Six, Petitioner’s PCRA counsel was not ineffective for reasonably
declining to raise Claim Eight because it was not supported by any facts of record. Accordingly,
Claim Eight’s procedural default is not excused. Martinez, 132 S. Ct. at 1319–20.
In Claim Nine, Petitioner asserts his trial counsel was ineffective for failing to object to a
portion of the prosecutor’s opening statement, wherein the prosecutor told the jury it would hear
the victim’s brother, Esau Tirado, testify that Petitioner came to the victim’s house the day after
the shooting, apologized for the victim’s death, and explained that the shooting was meant for
Felix Baez. (Pet. 27; Trial Tr. vol. 3, 76–77.) Petitioner alleges these statements were fabricated
by the prosecutor and that his trial counsel should have objected to their admission into evidence.
During trial, Esau Tirado did in fact testify that Petitioner came to José Tirado’s house
the day after he was killed and told Tirado’s mother—in Esau’s presence—“I’m sorry that that
happened to your son. It was not meant to happen.” (Trial Tr. vol. 4, 120.) Mr. Tirado’s
testimony was corroborated when the victim’s sister, Iliana Tirado, similarly testified that
Petitioner came to their house the day after José was killed and said to Esau in her mother’s
presence, “It was not for your brother. I’m sorry. It was not for your brother.” (Trial Tr. vol. 4,
180–81.) The jury had an opportunity to observe these two witnesses, assess their demeanors,
and pass on their credibility. Petitioner offers absolutely no evidence of any fabrication or
prosecutorial misconduct. Accordingly, trial counsel cannot be deemed ineffective for failing to
raise a baseless objection and Petitioner’s default of same is not excused. Martinez v. Ryan, 132
S.Ct. 1309, 1319–20 (2012); Strickland v. Washington, 466 U.S. 668, 698–700 (1984).
In view of the foregoing, Petitioner’s fourth objection regarding Claims Six, Eight, and
Nine is overruled.
Petitioner’s fifth objection to the R&R pertains to Claim Fifteen in his § 2254 Petition,
wherein Petitioner alleges his prosecution violated the Fifth, Sixth, and Eighth Amendments to
the Constitution of the United States. (Am. Pet. 7; Objs. 8.) More specifically, Petitioner argues:
(1) he was denied due process because he was not provided an interpreter during trial; 11 (2) he
was denied his right to effective assistance of counsel because his trial counsel failed to require
an interpreter to translate the dialogue at trial for Petitioner and to provide Petitioner with the
trial court record, thereby preventing Petitioner from understanding the charges against him; and
(3) he was subject to cruel and unusual punishment by being placed in a prison, prior to trial,
“many miles away from counsel [and] family,” and by being prohibited from using the telephone
at prison to speak with his counsel and family. 12 (Am. Pet. 7.)
Petitioner failed to raise any of these claims in state-court proceedings, which renders
them unexhausted. See Commonwealth v. Guzman, No. 788 EDA 2011, slip op. at 1–2 (Pa.
Super. Ct. Sept. 5, 2012). Petitioner is now time-barred from attempting to exhaust them by
filing a new PCRA petition. 42 Pa. Cons. Stat. Ann. § 9545(b)(1). Thus, Claim Fifteen is
procedurally defaulted. Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001).
Petitioner appears to argue that Claim Fifteen’s default should be excused because his
PCRA counsel was ineffective in failing to raise it on appeal. Inasmuch as all three of the
Petitioner’s native language is Spanish, and he alleges that he speaks English at a second-grade
level. (Appl. Appt. Counsel 4, 6, 8, ECF No. 1-3.) He further states that fellow inmates assisted
him in drafting his § 2254 Petition. (Appl. Appt. Counsel 3.)
The R&R did not address the second and third arguments above. For the reasons set forth
herein, they are nevertheless meritless.
allegations Petitioner makes in support of Claim Fifteen are without merit, counsel cannot be
deemed ineffective for failing to raise same.
First, the record shows Petitioner was in fact provided a translator at trial. (Trial Tr. vol.
3, 4.) As such, Petitioner’s Fifth Amendment argument, as contained within his fifteenth habeas
Second, Petitioner’s allegation that he was not “provided with a contemporaneous and
constant interpretation of the proceedings” (Am. Pet. 7) does not demonstrate that his Sixth
Amendment right to effective assistance of counsel was violated. The alleged deficiency in
Petitioner’s translator’s performance provides no support for an ineffective assistance claim
because such a claim must be based upon counsel’s performance. See Strickland, 466 U.S.at
687 (emphasis added). Moreover, even if an ineffective assistance claim could be based upon a
court-appointed translator’s alleged deficient performance, Petitioner’s argument would fail
because he cannot prove that his translator’s alleged deficiency prejudiced him. Id. To
demonstrate prejudice, Petitioner would need to show that his translator’s errors deprived him of
a fair trial. Id. However, “[m]inor deviations or occasional lapses in translation will not render a
trial fundamentally unfair.” United States v. Hernandez, 994 F. Supp. 627, 630 (E.D. Pa. 1998)
(citing United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990)).
In this case, Petitioner has provided this Court with no indication that he expressed to the
trial court or counsel he was having any difficulty understanding what was happening throughout
the course of his trial. See Gimenez v. Cameron, Civ. No. 14-6255, 2015 U.S. Dist. LEXIS
47034, at *14 (E.D. Pa. Mar. 10, 2015) (rejecting a habeas petitioner’s claim that counsel was
ineffective for failing to provide an interpreter during attorney/client meetings, because “[t]he
court’s independent review . . . reveals that petitioner did not express confusion or lack of
understanding [during his plea and sentencing] hearings.”) In fact (and as discussed in greater
detail below), the trial court conducted a colloquy during which it asked Petitioner whether he
was aware of his right to call available alibi witnesses; whether he desired to waive that right;
and, whether he was satisfied with his trial attorneys’ representation to that point. (Trial Tr. vol.
5, 83–85.) Petitioner responded affirmatively to all of the foregoing questions (Trial Tr. vol. 5,
83–85), which clearly demonstrates that he was not having difficulty understanding what was
happening during trial.
Thus, Petitioner’s translator’s alleged failure to provide “contemporaneous and constant
interpretation” at trial (Am. Pet. 7) does not prove that he was deprived of a fair trial and is not
sufficient to support an ineffective assistance claim. 13 Strickland, 466 U.S. at 687. Accordingly,
the ineffectiveness claim, as incorporated within Petitioner’s fifteenth habeas claim, also fails.
Third, Petitioner’s Eighth Amendment argument within Claim Fifteen does not provide a
cause of action under the AEDPA. A “challenge [that] ultimately attacks . . . the validity of the
continued conviction or the fact or length of the sentence . . . must be brought by way of habeas
corpus petition. Conversely, when the challenge is to a condition of confinement such that a
finding in plaintiff’s favor would not alter his sentence or undo his conviction, an action under
[42 U.S.C.] § 1983 is appropriate.” Learner v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).
According to Petitioner, he “suffered cruel and unusual punish[ment] prior to trial” due to the
location of the prison in which he was held and the alleged restrictions on his phone usage while
detained therein. (Am. Pet. 7.) These allegations challenge the conditions of his pre-trial
Furthermore, Petitioner’s trial lawyers were not obligated—or likely able—to assess the
translator’s performance throughout trial. Petitioner never alleged in his § 2254 Petition that he
requested a copy of the trial record from his trial counsel; his first request for same—
specifically, in Spanish—was presented in his Application for Appointment of Counsel (ECF
No. 1-3, 8). These facts further support this Court’s conclusion that Petitioner’s ineffectiveness
claim within Claim Fifteen is meritless.
confinement, not “the fact or length of [his] sentence” and would not “alter or undo his
conviction” if this Court were to conclude—which it does not—they violate the Eighth
Amendment. 14 Id. Thus, the Eighth Amendment violations Petitioner alleges in Claim Fifteen
should have been brought under 42 U.S.C. § 1983, not the AEDPA. Id.
For the foregoing reasons, Claim Fifteen’s procedural default is not excused and
Petitioner’s fifth objection to the Magistrate’s R&R is overruled.
Petitioner’s sixth objection refers broadly to the Magistrate’s recommended disposition of
the Sixth Amendment claims Petitioner made in his § 2254 Petition, without specifying exactly
to which claims he intends this objection to apply. (Objs. 9–10.) As previously discussed, federal
district courts are not required to review de novo objections to a Magistrate’s R&R that lack
specificity. Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (citing 28 U.S.C. § 636(b)(1);
Goney v. Clark, 749 F.2d 5, 6–7 (3d Cir. 1984)). Nevertheless, Petitioner’s sixth objection is
overruled for the following reasons.
Petitioner’s allegations fail to show that his Eighth Amendment rights were violated by being
placed in a state prison that was not near his trial counsel or family, and being prohibited from
using the telephone therein. “For an alleged deprivation to rise to the level of an Eighth
Amendment violation, it must result in the denial of the minimal civilized measure of life’s
necessities.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (quoting
Farmer v. Brennan, 511 U.S. 825, 832 (1992)) (internal quotation marks omitted). For example,
an inmate’s incarceration in solitary confinement at a state prison due to overcrowding did not
violate the Eighth Amendment because his basic nutritional, hygienic, medical, and shelter needs
were met. Gibson v. Lynch, 652 F.2d 348, 352 (3d Cir. 1981). Likewise, Petitioner’s allegations
do not give rise to an Eighth Amendment violation for cruel and unusual punishment because the
Commonwealth did not deny him “of the minimal civilized measure of life’s necessities.” Betts,
621 F.3d at 256. Therefore, not only was Petitioner’s Eighth Amendment argument improperly
brought under the AEDPA, it also lacks merit.
Claims One through Three
Petitioner’s sixth objection is inapplicable to Claims One, Two, and Three because those
claims are based purely on state-law questions and thus not cognizable on habeas review. (Pet.
16–18.) Claim One challenges the state trial court’s decision to admit Iliana Tirado’s testimony
into evidence. (Pet. 16.) Claim Two similarly challenges the trial court’s decision to admit into
evidence “references to Petitioner Guzman as being a drug supplier, a drug dealer, a drug
enforcer, and a violent person.” (Pet. 17.) In Claim Three, Petitioner alleges “[t]he verdict was
not supported by the weight of the trial evidence.” (Pet. 18.) Because Claims One, Two and
Three are based upon state-law questions—not the Sixth Amendment—Petitioner’s sixth
objection cannot apply to them.
Claims Four and Five
Claims Four and Five are essentially identical. (See Pet. 20–21.) Both claims allege that
Petitioner’s trial lawyers were ineffective for failing to call available alibi witnesses to testify and
for advising Petitioner against doing the same. 15 (Pet. 20–22.) Interestingly, however, Petitioner
asserts in his § 2254 Petition that Claim Four—but not Claim Five—was exhausted in state-court
proceedings. 16 (Pet. 20–21.) However, this argument is rendered irrelevant because Claim Four
includes the allegation Petitioner raises in Claim Five.
Claim Four alleges both of Petitioner’s trial lawyers “were ineffective [for] failing to present
available alibi witnesses, and by unreasonably instructing Petitioner to not present an alibi
defense and supporting testimony.” (Pet. 20.) Claim Five alleges only one of Petitioner’s trial
lawyers (Gary Server) “was ineffective [for] advising and instructing Petitioner Guzman to not
present available alibi witnesses nor a defense.” (Pet. 21.) Claim Four, therefore, encompasses
Claim Five’s argument.
Petitioner asserts that Claim Five was not brought by his PCRA counsel in state court, and his
assistance was thus ineffective. (Pet. 21.) As a result, he argues that this Court should excuse his
failure to exhaust Claim Five. (Pet. 21.)
The PCRA court rejected the ineffectiveness of counsel argument that Petitioner asserts
in Claims Four and Five. See Commonwealth v. Guzman, No. 788 EDA 2011, slip op. at 7 (Pa.
Super. Ct. Sept. 5, 2012). The PCRA court held that the trial court record clearly established that
it was Petitioner’s (not his trial lawyers’) decision to forego calling available alibi witnesses and
that he made that decision “knowingly, intelligently, and voluntarily.” Id. at 8. The trial court
conducted a colloquy during which it asked Petitioner whether he was aware of his right to call
the alibi witnesses that were waiting outside the courtroom and ready, willing, and able to testify;
whether he desired to waive that right; and whether he was satisfied with his trial attorneys’
representation. Id. at 7 (citing Trial Tr. vol. 5, 83–85.) Petitioner responded affirmatively to all of
those inquiries. (Trial Tr. vol. 5, 83–85.) Accordingly, the PCRA court rejected his claim that his
trial lawyers were ineffective for failing to present available alibi witnesses because “a defendant
who makes a knowing, voluntary, and intelligent decision concerning trial strategy will not later
be heard to complain trial counsel was ineffective on the basis of that decision.” Id. at 7 (quoting
Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002)). The Superior Court of Pennsylvania
affirmed the PCRA court’s ruling, id. at 6–8, and the Supreme Court of Pennsylvania denied
allocator, Commonwealth v. Guzman, 63 A.3d 1244 (Pa. 2013).
Since Petitioner’s fourth and fifth claims for habeas relief were adjudicated on the merits
in state court, the AEDPA deference standard applies to this Court’s review of that court’s merits
determination. Rolan v. Coleman, 680 F.3d 311, 321 (3d Cir. 2012). Inasmuch as Petitioner has
provided this Court with no basis to establish that the state court’s adjudication of the claim
“resulted in a decision contrary to, or involved in an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States; or” (2) the
adjudication “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[,]” the state court’s merits
determination regarding those claims was reasonable under both prongs of the AEDPA’s
deferential standard. See 28 U.S.C. § 2254(d)(1)–(2).
First, in cases involving claims that were adjudicated on the merits in state court, federal
courts only have “authority to issue [a] writ [of habeas corpus] in cases where there is no
possibility fairminded jurists could disagree that the state court’s decision conflict’s with [the
Supreme Court of the United States’] precedent.” Harrington v. Richter, 562 U.S. 86, 102
(2011). Petitioner has failed to show that the PCRA court’s ruling on Claims Four and Five of his
§ 2254 Petition “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
Petitioner has cited no Supreme Court precedent that would justify such a finding by this Court.
(See Pet. 20–22; Objs. 9–10.)
Second, the PCRA court’s determination was based purely on the trial court record,
which unequivocally establishes that Petitioner voluntarily elected not to call alibi witnesses to
testify on his behalf. Thus, the PCRA’s adjudication of Claims Four and Five did not result “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)(2).
The PCRA court’s determination regarding Petitioner’s fourth and fifth claims was
reasonable under both prongs of the AEDPA standard. Thus, insofar as Petitioner’s sixth
objection to the R&R was intended to pertain to Claims Four and Five, it is overruled.
Claims Six through Ten and Fifteen
Petitioner’s sixth objection is inapplicable to Claims Six through Ten and Fifteen
(including any alleged Sixth Amendment violations incorporated therein) because those claims
are without merit for the reasons set forth herein above. 17
Claims Eleven through Thirteen
Insofar as they allege Sixth Amendment violations, Claims Eleven through Thirteen fall
under Petitioner’s sixth objection. However, for the following reasons, Petitioner is not entitled
to relief regarding same.
Petitioner’s eleventh habeas claim alleges that Pennsylvania’s criminal law, pursuant to
which he was convicted of various offenses, was never lawfully enacted. (Am. Pet. 3.) Claim
Twelve argues that Pennsylvania’s court rules, its rules of criminal procedure, and its rules of
evidence that governed his prosecution were “promulgated, drafted, adopted, and legislated upon
by the state’s judicial branch, in violation of . . .” the Constitution of the United States. (Am. Pet.
4.) His thirteenth claim alleges that the Constitution of the Commonwealth of Pennsylvania, as a
whole, is invalid because Pennsylvania was never granted the authority “by the Continental
Congress to amend, abolish or adopt any constitution other than the Constitution for
[P]ennsylvania of September 28, 1776.” (Am. Pet. 5.) Petitioner further asserts in Claim
Thirteen, that Pennsylvania’s criminal law is also invalid because the Commonwealth was
likewise never granted the authority to implement them, which renders his conviction for
violating them meaningless. (Am. Pet. 5.)
More specifically, Claim Seven was addressed in Section IV(A), supra; Claim Ten was
addressed in Section IV(B), supra; Claims Six, Eight, Nine, and Fifteen were addressed in
Section IV(C), supra; and Claim Fifteen was further analyzed in Section IV(E), supra.
These claims are all premised upon state-law questions, and “federal habeas corpus relief
does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v.
Jeffers, 497 U.S. 764, 780 (1990)) (internal quotation marks omitted). Claims Eleven through
Thirteen are thus not cognizable on habeas review.
However, in addition to the allegations regarding Pennsylvania state-law violations,
Petitioner also argues his trial and PCRA counsel were ineffective for failing to identify the
purported Pennsylvania state-law violations in state-court proceedings. (Am. Pet. 2–4.) Such
claims must overcome the highly deferential standard expounded in Strickland v. Washington,
466 U.S. 668, 687 (1984) in order to constitute ineffective assistance of counsel.
A lawyer’s decision to refrain from presenting meritless claims does not constitute
ineffective performance under Strickland. 466 U.S. at 698–700. The alleged defects in
Pennsylvania state law that Petitioner references in Claims Eleven through Thirteen are
meritless, and Petitioner fails to cite any legal authority to the contrary. (See Am. Pet. 3–5; Objs.
9–10.) In particular, Claims Eleven and Thirteen are meritless because the Commonwealth’s
Court of Common Pleas has subject matter jurisdiction to adjudicate matters arising from alleged
violations of Pennsylvania’s Crimes Code, and Petitioner failed to cite any law to support his
assertions that suggest otherwise. Johnson v. Giroux, Civ. No. 15-4242, 2016 U.S. Dist. LEXIS
62415, at *33–34 (E.D. Pa. May 10, 2016); Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa.
2003) (citing Pa. Const. art. 5, § 5). Claim Twelve lacks merit because, “[i]n 1968, the
[Commonwealth’s] legislature granted [the Supreme Court of Pennsylvania] exclusive
rulemaking authority in Article V, § 10 of the Pennsylvania Constitution[,]” and its promulgation
of the rules and procedures referenced in Claim Twelve fall under that authority. Commonwealth
v. Morris, 771 A.2d 721, 736 (Pa. 2001). Therefore, Petitioner’s trial and PCRA lawyers were
not ineffective for failing to bring those groundless claims.
Insofar as Petitioner’s sixth objection to the R&R was intended to pertain to Claims
Eleven through Thirteen, it is overruled. Those claims are not viable; they are procedurally
defaulted because Petitioner failed to exhaust them in state-court proceedings, and his ineffective
assistance of counsel claims provide no basis upon which that default may be excused. See
Martinez v. Ryan, 132 S. Ct. 1309, 1319–20 (2012) (acknowledging that a procedurally defaulted
claim that lacks merit and any factual support need not be excused).
To the extent Claim Fourteen implicates the Sixth Amendment, it also falls under
Petitioner’s sixth objection. However, Claim Fourteen fails to provide any support for that
objection because it is meritless.
Claim Fourteen alleges Petitioner’s mandatory life sentence without the possibility of
parole violates the Eighth Amendment’s prohibition against cruel and unusual punishment and
the Equal Protection Clause of the Fourteenth Amendment. (Am. Pet. 6.) Petitioner’s fourteenth
claim further asserts that, in violation of the Sixth Amendment, his lawyers’ assistance was
ineffective because they all failed to raise the aforementioned Eighth and Fourteenth Amendment
claims in state-court proceedings. (Am. Pet. 6.)
Petitioner cites Miller v. Alabama, 132 S. Ct. 2455 (2012) in support of those arguments.
(Am. Pet. 6.) In Miller, the Supreme Court of the United States held that “mandatory lifewithout-parole sentences for juveniles violate the Eight Amendment . . . [b]ecause juveniles have
diminished culpability and greater prospects for reform.” Miller, 132 S. Ct. at 2464. Petitioner
was nineteen (19) years old when he killed José Tirado and twenty-four years old when he was
sentenced to life in prison without the possibility of parole for committing that crime. (Ct. Com.
Pl. Crim. Docket 2–3.) Petitioner was born on March 23, 1981, he killed Tirado on December 24,
2000, and his sentencing for that crime occurred on April 10, 2006. (Ct. Com. Pl. Crim. Docket
2–3.) Thus, Miller provides no support for any of Petitioner’s constitutional arguments contained
within Claim Fourteen because he was not a juvenile when he killed Tirado or when he was
sentenced. 132 S. Ct. 2455 (2012).
Furthermore, Petitioner’s lawyers were not ineffective for failing to raise the Eighth and
Fourteenth Amendment claims in state-court proceedings because “there can be no Sixth
Amendment deprivation of effective counsel based on an attorney’s failure to raise a meritless
argument.” United States v. Bui, 795 F.3d 363, 366−367 (3d Cir. 2015) (quoting United States v.
Sanders, 165 F.3d 248, 253 (3d Cir. 1999)) (internal quotation marks omitted). Therefore,
Petitioner’s sixth objection to the R&R is overruled to the extent it applies to Claim Fourteen.
Additional Sixth Amendment Claims
In his sixth objection, Petitioner also attempts to append two additional Sixth
Amendment claims to his § 2254 Petition. (Objs. 9.) However, these claims are barred because,
“unless the interest of justice requires it, new issues and evidence shall not be raised after the
filing of the [R&R] if they could have been presented to the magistrate judge.” Munoz v. Grace,
Civ. No. 05-4199, 2007 U.S. Dist. LEXIS 58516, at *28–40 (E.D. Pa. Aug. 10, 2007) (quoting
E.D. Pa. Local R. Civ. P. 72.1(IV)(c)). Both additional claims are unsupported by law or fact, as
they rely on the same arguments underlying Petitioner’s fifth and sixth claims (Objs. 9; Pet. 21–
22), both of which this Court concluded were meritless hereinabove. The interest of justice does
not, therefore, require this Court to consider these additional Sixth Amendment claims. Munoz,
2007 U.S. Dist. LEXIS 58516, at *28−40.
Petitioner’s seventh objection to the R&R pertains to his habeas claims that both of his
defense attorneys were ineffective for failure to present available alibi witnesses, and that one of
his attorneys (Gary Server) was ineffective for advising Petitioner to not present an alibi defense.
For the reasons set forth in Section IV(F)(ii), supra, Petitioner’s seventh objection is overruled.
(Pet. 20–21; Objs. 10.)
Petitioner’s eighth objection pertains to the fourteenth claim in his § 2254 Petition,
wherein he alleges his mandatory life sentence without parole violates the Eighth and Fourteenth
Amendments, and his lawyers were ineffective for failing to raise those arguments. (Objs. 10).
For the reasons set forth in Section IV(F)(v), supra, his eighth objection is overruled.
Petitioner is not entitled to an evidentiary hearing or appointment of
Petitioner requests that an evidentiary hearing be held for his ineffective assistance of
counsel claims regarding his lawyers’ failure to call available alibi witnesses, and that he be
appointed counsel. (Objs. 11.) Petitioner is entitled to neither.
Federal courts are not permitted to provide habeas relief for claims that were previously
adjudicated on the merits in state-court proceedings unless one of the exceptions in 28 U.S.C. §
2254(d) applies. Furthermore, federal habeas courts are permitted to grant evidentiary hearings
only if the requirements of § 2254(e)(2) are satisfied. When a habeas claim is subject to
§ 2254(d) but does not satisfy either of the exceptions therein, it is “unnecessary to reach the
question of whether § 2254(e)(2) would permit a federal hearing on that claim.” Cullen v.
Pinholster, 563 U.S. 170, 184 (2011) (quoting Williams v. Taylor, 529 U.S. 420, 444 (2000))
(internal quotations marks omitted). In other words, “when the state-court record precludes relief
under the limitations of § 2254(d), a district court is not required to hold an evidentiary hearing.”
Pinholster, 563 U.S. at 183 (quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)) (internal
quotation marks omitted).
The ineffectiveness claims for which Petitioner requests an evidentiary hearing were
adjudicated on the merits in state court. Commonwealth v. Guzman, No. 788 EDA 2011, slip op.
at 7 (Pa. Super. Ct. Sept. 5, 2012). The PCRA court rejected those claims without holding a
hearing because they lacked merit on their face, as the trial record showed Petitioner made the
decision to not call the available alibi witnesses knowingly, intelligently, and voluntarily.
Commonwealth v. Guzman, CP-51-CR-0500771-2003, at 10 (Pa. Ct. Com. Pleas Apr. 30, 2012).
This Court concluded in Section IV(F)(ii), supra, that those claims and Petitioner’s objections
thereto failed to satisfy either of § 2254(d)’s exceptions. Accordingly, an evidentiary hearing is
not warranted on those claims. Pinholster, 563 U.S. at 184.
Appointment of Counsel
Petitioner requests that this Court appoint him counsel to prosecute his § 2254 Petition.
(Pet. 15, 29; Objs. 11.) He argues appointment of counsel is appropriate because he cannot read,
write, or speak English, and both the trial record and resources at the prison’s law library are
written in English. (Appl. Appt. Counsel 2–3, ECF No. 1-3.)
In federal habeas corpus proceedings, there is no constitutional right to counsel. Simon v.
Gov’t of V.I., 679 F.3d 109, 115 (3d Cir. 2012). A federal court is only required to appoint
counsel to a petitioner seeking relief under 28 U.S.C. § 2254 if it determines that an evidentiary
hearing is warranted, and the petitioner qualifies for appointment under 18 U.S.C. § 3006A.
Rules Governing § 2254 Cases in the United States District Courts, Rule 8(c), 28 U.S.C. foll. §
2254. Indigent habeas petitioners may be granted counsel pursuant to § 3006A “[w]henever the
United States magistrate judge or the court determines that the interests of justice so require.” 18
U.S.C. § 3006A(a)(2); Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991), cert. denied, 503
U.S. 988 (1992), and superseded on other grounds by statute, 28 U.S.C. § 2254(d). In
determining whether the interests of justice necessitate an appointment of counsel, a “district
court must first decide if the petitioner has presented a nonfrivolous claim and if the appointment
of counsel will benefit the petitioner and the court.” Reese, 946 F.2d at 263–64. “[T]he
complexity of the factual and legal issues in the case, as well as the pro se petitioner’s ability to
investigate facts and present claims” are factors that should be considered in determining
whether the petitioner and the court would benefit from granting a request for appointment of
counsel. Id. at 264 (citing Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990)).
In Reese, the Court of Appeals held that the district court’s refusal to appoint counsel for
a habeas petitioner did not constitute an abuse of discretion for three reasons. Reese, 946 F.2d at
264. First, the petitioner “fully comprehended the issues in [that] case.” Id. Second, the court
believed that those issues “were neither factually nor legally complex.” Id. Finally, the petitioner
demonstrated that he was capable of “forcefully and coherently” presenting his claims for habeas
relief because he provided the documents requested by the district court and filed two motions
without the assistance of counsel. Id.
Because this Court has concluded herein that Petitioner is not entitled to an evidentiary
hearing, it is not required to grant Petitioner’s request for appointment of counsel. See Rules
Governing § 2254 Cases, Rule 8(c), 28 U.S.C. foll. § 2254. In exercising its discretionary
authority under 18 U.S.C. § 3006A(a)(2), this Court further concludes that the interests of justice
do not necessitate appointing Petitioner counsel because neither Petitioner nor the court would
benefit therefrom, as he has failed to present any claims that would succeed on the merits. Reese,
946 F.2d at 263–64; Brown v. DiGuglielmo, Civ. No. 07-3465, 2007 U.S. Dist. LEXIS 87614, at
*2 n.1 (E.D. Pa. Nov. 29, 2007). Moreover, Petitioner “forcefully and coherently” presented his
claims without the assistance of court-appointed counsel—albeit, allegedly with some help from
other inmates—by filing his § 2254 Petition and his amendment thereto, which together lay out
fifteen claims for relief in English (ECF Nos. 1-3; 2). Reese, 946 F.2d at 264. Petitioner also filed
several additional pleadings without the assistance of court-appointed counsel, one of which was
especially detailed and approximately forty (40) pages in length (e.g., ECF Nos. 14; 18; 19).
Reese, 946 F.2d at 264; see also Kim v. Klem, Civ. No. 03-1628, 2003 U.S. Dist. LEXIS 27805,
at *36 n.15 (E.D. Pa. July 13, 2003) (denying habeas petitioner’s motion for appointment of
counsel because the record demonstrated he understood the issues in the case, his habeas claims
were coherent, and the court could resolve his claims based on the record). Petitioner’s request
for appointment of counsel is therefore, denied.
For the reasons set forth hereinabove, all of Petitioner’s Objections shall be overruled. As
for the portions of the R&R to which no objection was made, this Court has reviewed the R&R
and finds that no clear error exists. Accordingly, the Magistrate’s R&R shall be adopted and
Petitioner’s request for habeas relief shall be denied. Because Petitioner failed to make a
substantial showing of the denial of any constitutional right, this Court finds that reasonable
jurists would not disagree with the instant holding and a Certificate of Appealability shall not
issue. See, e.g., 28 U.S.C. § 2253(c)(2); Santana v. United States, 98 F.3d 752, 757 (3d Cir.
An appropriate Order follows.
BY THE COURT:
C. Darnell Jones, II
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