SMILEY v. PITKINS et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 4/12/16. 4/13/16 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID PITKINS, et al.,
April 12, 2016
Before the Court are the pro se Objections of Petitioner Andre Smiley to United States
Magistrate Judge M. Faith Angell’s Report and Recommendation (“R&R”) issued in the abovecaptioned case. (Doc. No. 27.) In the R&R, Magistrate Judge Angell recommended that the
Petition be denied and that a certificate of appealability not be issued. (Doc. No. 20.) For the
reasons stated below, the Court will approve and adopt the R&R (Doc. No. 20) and deny the
Petition (Doc. No. 1) with prejudice.1
On September 15, 2006, Petitioner Andre Smiley was convicted by a jury of aggravated
indecent assault, endangering the welfare of children, and contact with a minor following
For the purposes of this Opinion the Court has considered Petitioner’s pro se Petition for
Habeas Corpus (Doc. No. 1), Petitioner’s Memorandum of Law (Doc. No. 10), Petitioner’s
Federal Cases and Memorandum of Law with Historical Commentaries (Doc. No. 17), the
Government’s Response to the Petition for Writ of Habeas Corpus (Doc. No. 18), Magistrate
Judge Angell’s Report and Recommendation (Doc. No. 20), Petitioner’s Objections to the
Report and Recommendation (Doc. No. 27), the Government’s Response to Petitioner’s
Objections (Doc. No. 36), Petitioner’s Rebuttal to Respondent’s Response to Petitioner’s
Objections (Doc. No. 40), and the pertinent state court record.
Petitioner’s sexual abuse of his then-ten-year-old stepdaughter. (Doc. No. 1-3 at 13.) While
Petitioner was also charged with rape, the jury returned a hung verdict on this charge. (Id.) He
was sentenced to a total of nine to twenty years’ imprisonment, and he did not file a direct
On August 24, 2007, Petitioner filed a petition pursuant to Pennsylvania’s PostConviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq., and, after having counsel
appointed by the PCRA court, filed an amended petition on May 29, 2008. (Doc. No. 1-4 at 11.)
In his amended petition, Petitioner asserted several claims of ineffective assistance of trial
counsel and, because he had not initially filed a direct appeal of his conviction, Petitioner also
sought the reinstatement of his appellate rights nunc pro tunc or a new trial. (Id.) On June 24,
2011, the PCRA court dismissed his PCRA petition. (Id.) On July 1, 2011, Petitioner filed a
notice of appeal of the PCRA court’s decision to the Superior Court of Pennsylvania. (Id.)
In his appeal to the Superior Court, Petitioner raised nine separate issues for review
regarding ineffective assistance of counsel, trial court error, and insufficiency of the evidence at
trial (id. at 3-4), all of which Petitioner currently asserts before this Court. On January 18, 2013,
the Superior Court affirmed the PCRA court’s denial of PCRA relief as to all claims that
Petitioner raised on appeal. (Id. at 10-19.) On October 23, 2013, the Pennsylvania Supreme
Court denied Petitioner’s Petition for Allowance of Appeal. (Id. at 20.)
On February 5, 2014, Petitioner timely filed in this Court a pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) In the Petition, Petitioner raises
several claims of ineffective assistance of counsel, trial court error, and insufficiency of the
GROUND ONE: In violation of my sixth amendment right to the U.S.
Constitution, trial counsel rendered ineffective assistance of counsel for failing to
protect my appellate rights by not appealing my judgment of sentence to the
GROUND TWO: Trial court [erred] and abused its discretion constituting a
violation of Petitioner’s fourteenth amendment right/trial counsel failed to appeal
issue and violated Petitioner’s sixth amendment right to the U.S. Constitution as a
result when dismissing duly selected juror.
GROUND THREE: Trial counsel rendered ineffective assistance of counsel when
he failed to object to the playing of the July 18, 2005 tape recorded conversation
between Petitioner and wife; failed to renew motion for mistrial initially made
after the prosecutor introduced elicit testimony concerning other crimes nonrelative to case in hand; failed to request trial court to strike the prosecutor’s
testimony and failed to assure that trial court give jury a timely cautionary
instruction to prevent prejudice.
GROUND FOUR: Petitioner seeks a new trial and/or dismissal of charges with
prejudice because trial counsel elicited Petitioner’s prior criminal record in his
direct examination of Petitioner.
GROUND FIVE: Trial court erred when it precluded Petitioner from consulting
with his attorney by any means during a one day recess/trial counsel rendered
ineffective assistance of counsel for failing to object and appeal trial court’s
GROUND SIX: Petitioner’s evidence is insufficient to sustain his conviction for
unlawful contact with a minor and seeks an arrest of judgment/trial counsel failed
to file an appeal to the Superior Court raising this issue in violation of Petitioner’s
sixth amendment right to the U.S. Constitution.
GROUND SEVEN: Trial court erred and violated Petitioner’s fourteenth
amendment right when it denied Petitioner’s request to instruct the jury as to
indecent assault and trial counsel violated Petitioner’s sixth amendment right
when he rendered ineffective assistance of counsel for failing to appeal issue.
GROUND EIGHT: Trial counsel rendered ineffective assistance of counsel when
he requested the trial court to charge Petitioner on the offense of aggravated
GROUND NINE: Trial counsel [sic] ineffective and violates Petitioner’s sixth
amendment right when he abandoned Petitioner after sentencing and for failing to
file a post sentence motion in the nature of a motion for reconsideration of
sentence and for failing to appeal the denial of Petitioner’s pro se motion for
reconsideration of sentence to the Superior Court.
(Id. at 5-21; Doc. No. 1-1; 1-2.) On March 7, 2014, then-United States District Judge L. Felipe
Restrepo referred this case to United States Magistrate Judge M. Faith Angell for an R&R. (Doc.
No. 4.) On May 12, 2014, Petitioner filed a Motion to Submit Relevant Information and
Memorandum of Law with attached proposed exhibits Petitioner. (Doc. No. 10.) On August 19,
2014, the Motion was granted and the attached exhibits became part of the official record. (Doc.
No. 16.) On September 16, 2014, Petitioner filed a Memorandum of Law in support of his
Petition. (Doc. No. 17.) On October 6, 2014, Respondents filed a Response to Petition for Writ
of Habeas Corpus, in which they argue that Petitioner’s claims are meritless or are procedurally
defaulted. (Doc. No. 18.)
On November 19, 2014, Magistrate Judge Angell filed an R&R in which she
recommended denying the Petition on all Grounds raised therein. (Doc. No. 20.) Petitioner
timely filed Objections to the R&R on January 8, 2015. (Doc. No. 27.) On January 5, 2016,
Respondents filed a Response to Petitioner’s Objections. (Doc. No. 36.) On January 28, 2016,
Petitioner filed a Rebuttal to Respondents’ Response. (Doc. No. 40.)
On January 19, 2016, this case was reassigned from Judge Restrepo to this Court. (Doc.
No. 39.) For the reasons that follow, the Court will approve and adopt the R&R in its entirety
and deny the Petition.
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(B) and the local rules of this Court, a district judge is
permitted to designate a magistrate judge to make proposed findings and recommendations on
petitions for post-conviction relief. Any party may file objections in response to the magistrate
judge’s report and recommendation. Id. § 636(b)(1)(C). Whether or not an objection is made, a
district judge “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The [district] judge may also receive further
evidence or recommit the matter to the magistrate judge with further instructions.” Id. “[I]t must
be assumed that the normal practice of the district judge is to give some reasoned consideration
to the magistrate’s report before adopting it as the decision of the court.” Henderson v. Carlson,
812 F.2d 874, 878 (3d Cir. 1987); see also 28 U.S.C. § 636(b).
In the Eastern District of Pennsylvania, Local Rule 72.1.IV(b) governs a petitioner’s
objections to a magistrate judge’s report and recommendation. Under that rule, a petitioner must
“specifically identify the portions of the proposed findings, recommendations or report to which
objection is made and the basis for such objections.” Savior v. Superintendent of Huntingdon
SCI, No. 11-5639, 2012 WL 4206566, at *1 (E.D. Pa. Sept. 20, 2012). Upon review, “[a district
judge] shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
De novo review is non-deferential and generally permits the district court to conduct an
“independent review” of the entire matter. Salve Regina College v. Russell, 499 U.S. 225, 238
(1991). “Although [the] review is de novo, [a district judge] [is] permitted, by statute, to rely
upon the magistrate judge’s proposed findings and recommendations to the extent [the judge], in
the exercise of sound discretion, deem[s] proper.” Owens v. Beard, 829 F. Supp. 736, 738 (M.D.
Pa. 1993) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
In the R&R, Magistrate Judge Angell recommended denying the Petition on all nine
Grounds on which the Petition for habeas relief is based. Petitioner has filed Objections to
Magistrate Judge Angell’s findings as to each Ground, which the Court will review seriatim.
A. Objections to Ineffective Assistance of Counsel Claims
In the Petition, Petitioner raises several Grounds for habeas relief on the basis of
ineffective assistance of counsel. Because his ineffective assistance of counsel claims require the
same analysis, the Court will review them together.
Petitioner’s claims of ineffective assistance of counsel are governed by Strickland v.
Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court held that to
prevail on an ineffective assistance of counsel claim, a petitioner must meet two requirements: 1)
he must show “that counsel made errors so serious” that were “outside the wide range of
professionally competent assistance”; and 2) he “must show that the deficient performance
prejudiced the defense” and was “so serious as to deprive [him] a fair trial.” Id. at 687-690.
When a federal court reviews the state court’s rejection of a petitioner’s ineffective assistance of
counsel claim pursuant to 28 U.S.C. § 2254, it must be “highly deferential” to the state court’s
decision unless that decision is contrary to clearly established federal law, or if it is objectively
Yarborough v. Gentry, 540 U.S. 1, 4 (2003).
In the context of objective
reasonableness, counsel cannot be ineffective for failing to pursue a meritless claim. Werts v.
Vaughn, 228 F. 3d 178, 203-204 (3d Cir. 2000).
Given this standard, the Court turns to Petitioner’s Objections to the recommended denial
of his ineffective assistance of counsel claims.
a. Objection to Denial of Ground One: Failure to Appeal Judgment
Petitioner first objects to Magistrate Judge Angell’s recommendation that the Court deny
Petitioner’s first Ground for habeas relief, in which he alleges that counsel was ineffective for
failing to appeal his judgment of sentence to the Pennsylvania Superior Court. (Doc. No. 27 at
2.) Petitioner asserts that he “was interested in appealing his case” but instead looked “to trial
counsel in reliance to protect his life and legal rights,” who ultimately advised him against
appealing. (Id.) Petitioner argues that trial counsel’s advice was unreasonable and that he
erroneously told him that he did not have an appealable issue. (Id. at 2-3.) The Court disagrees
with Petitioner’s Objection.
In recommending denying the habeas Petition as to this claim, Magistrate Judge Angell
reviewed trial counsel’s testimony before the PCRA court regarding Petitioner’s claim of
ineffectiveness based on the failure to appeal. (Doc. No. 20 at 10-11.) During the PCRA court
hearing, trial counsel testified to the following:
[Trial counsel] testified that he advised Smiley that because the jury had hung on
the rape charge, and because Smiley was convicted only of aggravated indecent
assault, his exposure was much less than it could have been had he been convicted
of rape as well. [Trial counsel] advised Smiley that by filing a direct appeal, he
risked being awarded a new trial only to be convicted on a much more serious
charge. For this reason, [both trial counsel] and [Petitioner] decided that no direct
appeal would be filed.
(Doc. No. 1-3 at 14.) On review, the Superior Court found that “trial counsel discussed with
[Petitioner] potential benefits and drawbacks of pursuing direct appeal, immediately following
trial” and that “[Petitioner] decided not to pursue direct appeal, and [Petitioner] did not later
request counsel to file appeal.” (Doc. No. 1-4 at 18.) Magistrate Judge Angell agreed with the
findings of both state courts.
Petitioner objects that “trial counsel’s advice was unreasonable and erroneous” and that
Petitioner “relie[d] solely on trial counsel’s legal experience.” (Doc. No. 27 at 1.) There is no
error with trial counsel advising that Petitioner not risk exposure to conviction of a more serious
crime that carries a harsher sentence, let alone an “error so serious” that it is “outside the wide
range of professionally competent assistance.” See Strickland, 466 U.S. at 687, 690. Failing to
meet Petitioner’s burden under the Strickland standard, Ground One cannot serve as a basis for
habeas relief and thus will be denied.
b. Objection to Denial of Ground Two: Allowing Dismissal of Juror No. 9
Petitioner next objects to Magistrate Judge Angell’s finding that counsel was not
ineffective when he failed to object to the dismissal of Juror No. 9. (Doc. No. 27 at 5.) The facts
surrounding this claim are as follows:
[A witness] overheard three jurors from Smiley’s trial talking about the case.
[The witness] testified that Juror 9 began talking to two other jurors and told
them: “Here is the deal. When we go back into that room so we can get out of
here quickly, when they ask us if he is guilty we’re all going to shake our heads.
Are we cool?” [The witness] testified that the other two jurors said “Yes.” The
three jurors were questioned and all three denied that this conversation took place.
[The court] found [the witness’] testimony to be credible and found that while it
would not be improper to allow the other two jurors (who had simply been on the
receiving end of Juror 9’s comments) to continue sitting, it would be necessary to
excuse Juror 9 himself as he was the instigator of the conversation.
(Doc. No. 1-3 at 15.)
Petitioner maintains the trial judge erred in finding this witness credible. (Doc. No. 27 at
5.) Petitioner also claims that the trial court erred in dismissing Juror No. 9, the “ring leader”
who concocted the alleged verdict agreement, and not Jurors Nos. 1 and 10, the other two jurors
involved. (Id. at 6.) Petitioner believes that questioning these two remaining jurors about their
biases and leaving them on the jury created an impartial jury. (Id.) Therefore, reasons Petitioner,
trial counsel was ineffective in not objecting to the dismissal of Juror No. 9.
As an initial matter, Magistrate Judge Angell determined—just as the PCRA court and the
Pennsylvania Superior Court had determined—that the record shows that counsel actually did
object to the dismissal of any jurors. (Doc. No. 20 at 12-13.) Petitioner does not refute this
finding in his Objections. Therefore, the foundation of Petitioner’s ineffective assistance of
counsel claim fails, and this claim becomes meritless. This alone warrants denying habeas relief
on Ground Two.
Furthermore, Petitioner’s argument fails logically. Petitioner appears to claim that he is
prejudiced more by having a biased juror dismissed than by keeping that biased juror on the jury.
Juror No. 9 reportedly said that ultimately he would find Petitioner guilty so that he could be
relieved of his jury duty quickly. He then attempted to enlist other jurors in this scheme.
Moreover, as Magistrate Judge Angell observed, Juror No. 9 also “disregarded the trial court’s
instruction not to discuss the case or decide its outcome prematurely.” (Doc. No. 20 at 13.)
Thus, it was well within the province of the trial judge to excuse Juror No. 9 from the jury by
exercising “broad discretion in [the] substitution of jurors” when the judge had reason to believe
that the juror would not be impartial. See Commonwealth v. Black, 376 A.2d 627, 632 (Pa.
For these reasons, the trial court did not err in dismissing Juror No. 9, and trial counsel
was not ineffective for taking action that Petitioner claims he did not. Accordingly, the Court
will deny the Petition as to Ground Two.
c. Objection to Denial of Ground Three: Failure to Object to Admission of
Petitioner next objects to Magistrate Judge Angell’s findings that trial counsel was not
ineffective for failing to take a number of actions regarding several evidentiary issues. (Doc. No.
27 at 7.) Specifically, Petitioner contends that trial counsel was ineffective when:
He failed to object to the playing of [a] tape recorded conversation between
Petitioner and his wife . . .; failed to renew motion for a mistrial . . . after the
Prosecutor introduced elicited testimony concerning alleged other crimes
[unrelated] to the case in hand; failed to request [that the court] strike the
Prosecutor’s testimony/question [implying that Petitioner had a sexual proclivity
towards minors;] and failed to assure that [the court] give the jury a timely
cautionary instruction to prevent prejudice against Petitioner [regarding the
Prosecutor’s stricken question] . . .
Regarding these claims, the PCRA court—affirmed by the Pennsylvania Superior Court
and agreed with by Magistrate Judge Angell—found that:
[Counsel] did not object to the playing of the taped phone conversation between
[Petitioner] and his wife. However, [Petitioner] has failed to show that he was
prejudiced by this failure to object . . . As for [counsel’s] alleged failure to move
for a mistrial, the record reveals that he did this . . . [As for the claim that counsel]
should have moved to strike “testimony” [of the Prosecutor] . . . this claim is also
inaccurate [because counsel] . . . objected, moved to strike, and moved for a
mistrial . . . [And as for the failure to ask for a cautionary jury instruction,] a trial
attorney’s decision not to ask for a cautionary instruction is a matter of trial
strategy and there can be a reasonable basis for not wanting to call further
attention, in front of the jury, to an issue that counsel feels is inadmissible . . .
[but] in any event, a cautionary instruction was given.
(Doc. No. 1-3 at 17-18 (emphasis in original).) The Court agrees with all three other courts that
Petitioner has failed to make a claim of ineffective assistance of counsel.
First, Petitioner was not prejudiced by the playing of a tape recorded conversation
between Petitioner and his wife regarding allegations of Petitioner’s inappropriate sexual contact
with his twelve-year-old neighbor. As the PCRA court observed, the conversation consisted of
Petitioner explaining to his wife that the neighbor apologized for making mistaken accusations,
and the neighbor’s age was never revealed. (Doc. No. 1-3 at 17.) Although Petitioner alleges
that this evidence created bias in the minds of the jury that Petitioner is a “monster,” (Doc. No.
27 at 8), the Court agrees with Magistrate Judge Angell that the state court did not unreasonably
apply the Strickland standard of ineffective assistance of counsel in this regard.2
Second, the record reflects that trial counsel did timely move for a mistrial and move to
strike the prosecutor’s question—even before Petitioner could respond to the question,
“obviating the need for a motion to strike.” (Doc. No. 1-3 at 17.) Petitioner’s claims that
counsel did not do so are without merit. Finally, the Court agrees with the state court that trial
counsel’s decision not to call attention to Petitioner’s alleged sexual misconduct in the form of a
cautionary instruction was not unreasonable under Strickland.
Federal habeas relief will be denied as to Ground Three.
d. Objection to Denial of Ground Four: Elicitation of Petitioner’s Criminal
Record During Direct Examination
Petitioner objects to Magistrate Judge Angell’s determination that trial counsel was not
ineffective for eliciting Petitioner’s criminal record during direct examination. (Doc. No. 27 at
10.) Petitioner alleges that trial counsel did not adequately prepare Petitioner to answer any
question about his criminal history and thus forced Petitioner to “incriminate himself.” (Id.) He
also claims that counsel’s strategy to “steal the thunder” from the prosecution by revealing
Petitioner’s criminal record first was an unreasonable trial strategy. (Id.) Therefore, Petitioner
believes counsel rendered ineffective assistance. (Id.)
In objecting to Magistrate Judge Angell’s finding, Petitioner asserts for the first time that he
“now remembers” that counsel was asleep during trial, which is why counsel did not object to
the playing of the recorded conversation. (Doc. No. 27 at 8.) This claim was not raised before
Magistrate Judge Angell, and thus this Court will not review it.
On direct examination, trial counsel asked questions that elicited testimony from
Petitioner that he had been convicted of retail theft multiple times. (Doc. No. 1-3 at 19.)
Petitioner believes that his testimony—completely provoked by counsel—prejudiced him
because it forced him to “incriminate himself” and made him lose “the presumption of
innocence.” (Doc. No. 27 at 10.) As an initial matter, Petitioner was not forced to incriminate
himself, as he had already been convicted of these crimes. Next, nowhere does Petitioner
explain how counsel’s questions prejudiced him or that his criminal record, which contains
several convictions that are admissible as crimen falsi, would not have been revealed by the
prosecutor on cross-examination in attempts to impeach Petitioner’s credibility.
Magistrate Judge Angell correctly concluded that Petitioner’s claim of ineffective assistance of
counsel is meritless. The Court agrees because, if anything, counsel’s strategy to dull the effect
of the prosecutor introducing this evidence for impeachment purposes was reasonable.
Therefore, the Petition will be denied as to Ground Four.
e. Objection to Denial of Ground Eight: Request to Charge Petitioner with
Aggravated Indecent Assault
Petitioner’s next objection is in regard to his claim that counsel erred in requesting that
the trial court charge the jury on the offense of aggravated indecent assault. (Doc. No. 27 at 16.)
Petitioner believes trial counsel erred when he requested that the Court charge the jury on both
indecent assault and aggravated indecent assault, even though Petitioner had not been arrested
for or charged with the latter. (Id.) Petitioner believes he was unduly prejudiced by trial
counsel’s unreasonable decision. (Id.)
Magistrate Judge Angell agreed with the PCRA court and Pennsylvania Superior Court
that Petitioner has not alleged a viable ineffective assistance of counsel claim on this issue.
(Doc. No. 20 at 23-24). The Court agrees. As the PCRA court explained:
[Counsel] had an excellent and reasonable basis for this request. Having observed
the testimony in the trial and knowing that his client could be convicted of an
extremely serious charge of rape, [counsel] decided that the best strategy was to
hope for a less serious conviction. Not only was this strategy reasonable, it was
successful: the jury hung on the charge of rape.
(Doc. No. 1-4 at 6.) As Magistrate Judge Angell correctly put it, “Contrary to being ineffective,
trial counsel’s strategy in requesting this jury instruction was completely reasonable and totally
effective.” (Doc. No. 20 at 24.) The Court finds that counsel’s decision to request a charge on
aggravated indecent assault in attempt to save his client from a rape conviction was not
unreasonable under the Strickland standard, and although Petitioner believes he was prejudiced
by the decision, he may in fact have benefited from it. Thus, federal habeas relief will be denied
as to Ground Eight.
f. Objection to Denial of Ground Nine: Failure to File a Motion for
Reconsideration and Failure to Appeal Petitioner’s Pro Se Motion for
In his final objection to his ineffective assistance of counsel claims, Petitioner asserts that
counsel was ineffective because he failed to file a motion for reconsideration of sentence and he
failed to appeal Petitioner’s pro se motion for reconsideration of sentence after it was denied by
the PCRA court. (Doc. No. 27 at 20.) Petitioner essentially asserts that trial counsel abandoned
him after sentencing by failing to file post-sentencing motions and preserve Petitioner’s appellate
rights. (Id.) Petitioner alleges that he “inferentially asked” trial counsel to file these motions and
appeals. (Id.) According to Petitioner, trial counsel was ineffective for not making the proper
filings, thereby causing some of Petitioner’s claims to be procedurally defaulted as time-barred
in state court because no direct appeal was filed. (Id.)
Magistrate Judge Angell agreed with the state courts that trial counsel was not ineffective
for failing to file post-sentence motions. (Doc. No. 20 at 24.) Specifically, the PCRA court
explained that trial counsel is not ineffective for failing to file post-sentence motions unless
Petitioner can prove actual prejudice that resulted from the failure to file these motions. (Doc.
No. 1-4 at 7 (citing Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007).) The PCRA court,
which was affirmed by the Pennsylvania Superior Court on appeal, correctly determined that
Petitioner had completely failed to demonstrate any prejudice that arose from counsel not filing
post-sentence motions. (Id.) Moreover, Petitioner never requested that these motions be filed,
and he even admits as much, stating that trial counsel should have “inferred” that Petitioner
wanted post-sentence motions filed. (Doc. No. 27 at 20.) The Court agrees with Magistrate
Judge Angell’s review of the state court proceedings and her recommendation to affirm the
findings of the state court of lack of prejudice.
In response, Petitioner argues that the sentencing court erred by not providing adequate
reasons for the “excessive” sentence imposed, and counsel was therefore ineffective for not filing
any post-sentence motions that challenged the allegedly “unlawful” sentence. (Id.) In imposing
the sentence, however, the sentencing court explained that it had reviewed Petitioner’s presentence report and mental health evaluation and had considered this information in calculating
Petitioner’s sentence. Because the sentence imposed was not excessive or unlawful under the
circumstances, trial counsel was not ineffective for not challenging it. Habeas relief will be
denied as to Ground Nine of the Petition.
B. Objections to Trial Court Error Claims
In his Petition, Petitioner raises two claims that he is entitled to habeas relief based on
trial court error. Magistrate Judge Angell recommended denying relief on both Grounds because
Petitioner’s claims were procedurally defaulted, for Petitioner did not raise either of these alleged
trial court errors on direct appeal.
28 U.S.C. § 2254(b)(1)(A) provides that a petitioner seeking a writ of habeas corpus must
have “exhausted the remedies available in the courts of the State.” Furthermore, a petitioner
“shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he
has the right under the law of the State to raise, by any available procedure, the question
presented” in the petition. 28 U.S.C. § 2254(c). Under the law and available procedures in
Pennsylvania, a petitioner must at least appeal an adverse PCRA court decision to the
Pennsylvania Superior Court to have satisfied the exhaustion requirement.
Blackwell, 387 F.3d 210, 232-34 (3d Cir. 2004). A petitioner is required to have presented the
same legal theory and set of facts in state court through the available appellate review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845-46 (1999). If he does not do so, absent a showing of
cause or prejudice for the failure to follow “the ordinary appellate review procedure in
[Pennsylvania],” his claims are “not properly exhausted.” Wenger v. Frank, 266 F.3d 218, 224
(3d Cir. 2001) (citations omitted).
Petitioner did not raise his claims of trial court error on direct appeal, which is the
“ordinary appellate review procedure” in Pennsylvania. Accordingly, the PCRA court and the
Pennsylvania Superior Court determined that Petitioner had waived these claims and they were
thus unreviewable. Magistrate Judge Angell concluded that these claims were procedurally
defaulted and that no cause or prejudice existed or had been shown by Petitioner. The Court will
review each claim in turn.
a. Objection to Denial of Ground Five: Precluding Petitioner from
Consulting with Counsel During One-Day Recess
Petitioner objects to Magistrate Judge Angell’s finding that his claim that the trial court
erred in precluding Petitioner and his counsel from conferring during a one-day recess was
procedurally defaulted. (Doc. No. 27 at 11.) Petitioner argues that there can be no justification
to ever constrict discourse between a defendant and his counsel, even when the defendant is not
prejudiced by such interference. (Id.) Therefore, Petitioner avers that the trial court erred in
imposing a moratorium on communication between counsel and Petitioner during a one-day
recess, and trial counsel was also ineffective for not objecting to it. (Id.) For these reasons,
Petitioner believes the Court should grant his Petition.
The trial court error to which Petitioner points occurred during the testimony of Petitioner
at his trial. After counsel for Petitioner finished direct examination, the prosecutor began crossexamining the Petitioner but was unable to finish. (Doc. No. 18 at 25.) The court ordered a oneday recess, and also ordered that Petitioner not discuss his testimony with anyone during the
recess because he was still under cross-examination. (Id.) Neither Petitioner nor his counsel
As the PCRA court explained:
[W]hile a criminal defendant does have a right to counsel, and that right does
extend to conferences during trial recesses, a claim relating to this right can be
waived and trial counsel must preserve the issue by raising a timely objection.
(Doc. No. 1-4 at 1.) See also Commonwealth v. Scoleri, 248 A.2d 295, 299 (Pa. 1968). No
objection to the trial court’s restriction on communication between counsel and Petitioner was
made, and the issue was not raised on appeal. As such, the PCRA court was correct in finding
this claim was waived.
Recognizing that this claim is procedurally defaulted, Petitioner attempts to bootstrap the
issue to yet another claim of ineffective assistance of counsel so that the Court will review its
merits. Petitioner’s argument still fails because he does not show how he was prejudiced by
counsel’s failure to object to the trial court order. As the PCRA court noted, Petitioner does not
indicate what Petitioner would have desired to talk to counsel about had he been permitted to
speak with him, nor does he explain how his defense was hampered by this one-day silence.
(Doc. No. 1-4 at 3.) Magistrate Judge Angell agreed, and so does this Court.
Because Petitioner’s claim is procedurally defaulted, and because he has not shown
prejudice under the Strickland standard as he tries to paint this claim as one of ineffective
assistance of counsel, the Court will deny habeas relief as to Ground Five.
b. Objection to Denial of Ground Seven: Denial of Petitioner’s Request to
Instruct the Jury as to Indecent Assault
Petitioner next objects to Magistrate Judge Angell’s decision that Petitioner’s claim under
Ground Seven—that the trial court did not err when it denied his request to instruct the jury as to
indecent assault—was procedurally defaulted. (Doc. No. 27 at 14.) Petitioner argues that he was
originally charged with indecent assault, not aggravated indecent assault, and thus a jury
instruction as to aggravated indecent assault was made in error, even though trial counsel
requested it. (Id.) Furthermore, Petitioner alleges trial counsel was ineffective by not appealing
this issue. (Id.)
As the PCRA court, Pennsylvania Superior Court, and Magistrate Judge Angell all found,
Petitioner’s claim here is procedurally defaulted because he did not raise any claim of alleged
trial court error on direct appeal, nor did he request counsel to appeal the issue. As such,
Petitioner waived this claim, and Magistrate Judge Angell correctly refrained from reviewing it
on the merits.
Furthermore, for the reasons stated above regarding Petitioner’s claim of
ineffective assistance of counsel for requesting a charge of aggravated indecent assault, the Court
does not find that counsel provided ineffective assistance by not appealing the denial of an
indecent assault jury charge. Therefore, the Court will deny the Petition as to Ground Seven.
C. Objection to Denial of Ground Six: Insufficiency of the Evidence
Petitioner next objects to Magistrate Judge Angell’s finding that his claim that the
evidence presented to the jury was insufficient to return a guilty verdict is not cognizable under
the PCRA and that this issue was procedurally defaulted in this habeas proceeding. (Doc. No. 27
at 12.) Petitioner also contends that the charge of unlawful contact with a minor was misapplied
in his case. (Id.) Additionally, Petitioner asserts that trial counsel was ineffective for not
appealing this issue. (Id.)
Under the PCRA, 42 Pa. Cons. Stat. § 9543(b), petitioners are entitled to relief if they
claim that their convictions resulted from:
A violation of the Constitution of this Commonwealth or the Constitution
or laws of the United States which, in the circumstances or the particular
case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
Ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
A plea of guilty unlawfully induced where the circumstances make it
likely that the inducement caused the petitioner to plead guilty and the
petitioner is innocent.
The improper obstruction by government officials of the petitioner’s right
of appeal where a meritorious appealable issue existed and was properly
preserved in the trial court.
The unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of
the trial if it had been introduced.
The imposition of a sentence greater than the lawful maximum.
A proceeding in a tribunal without jurisdiction.
As the PCRA court determined, Petitioner’s claim that the weight of the evidence was
insufficient to support a guilty verdict does not fall into any of the categories prescribed by the
PCRA that entitles him to relief. (Doc. No. 1-4 at 5.) The Pennsylvania Superior Court affirmed
that Petitioner’s claim is not cognizable under the PCRA. (Doc. No. 1-4 at 18-19.) Therefore,
the PCRA state court properly declined to address the merits of this claim. Because this issue
was not raised on direct appeal, Magistrate Judge Angell correctly determined that the issue was
waived and thus procedurally defaulted for the purposes of habeas review.
Petitioner once again claims that trial counsel rendered ineffective assistance in failing to
file a direct appeal raising the issue of insufficiency of the evidence. (Doc. No. 27 at 12.) The
Court has already addressed Petitioner’s claims regarding ineffective assistance of counsel for
failure to file a direct appeal, supra, and thus it need not repeat its analysis. Counsel was never
requested to file a direct appeal, and both counsel and Petitioner arrived at the decision not to
appeal after counsel discussed with Petitioner the potential benefits and drawbacks of filing such
an appeal. Consequently, the Court will deny habeas relief as to Ground Six in the Petition.
For the foregoing reasons, the Court will adopt Magistrate Judge Angell’s Report and
Recommendation and will deny Petitioner’s Petition for Writ of Habeas Corpus. An appropriate
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?