HARRISON v. WENEROWICZ et al

Filing 18

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 4/16/18. 4/16/18 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BASHEER HARRISON
Petitioner
v.
MICHAEL WENEROWICZ, et al.
Respondents

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CIVIL ACTION
NO. 14-2114

NITZA I. QUIÑONES ALEJANDRO, J.

APRIL 16, 2018

MEMORANDUM OPINION
INTRODUCTION
Petitioner Basheer Harrison1 (“Petitioner” or “Harrison”), a Pennsylvania state prisoner,
filed a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254, in which he
asserted numerous claims of ineffectiveness of counsel and denial of due process. [ECF 1]. In
accordance with Title 28 U.S.C §636(b) and Local Civil Rule 72.1.IV(c), the petition was
referred to United States Magistrate Judge David R. Strawbridge (the “Magistrate Judge”) for a
Report and Recommendation (“R&R”). [ECF 2]. The Magistrate Judge issued an R&R, which
recommends that the petition for a writ of habeas corpus be denied. [ECF 13]. After requesting
and being granted an extension of time in which to do so, Petitioner filed objections to the R&R.
[ECF 16].

This matter is, therefore, ripe for a de novo review and determination of the

objections to the R&R.

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As noted by the Magistrate Judge in his Report and Recommendation, the state court records did
not consistently record Petitioner’s name, referring to him as “Bashir Hairston,” “Basheer Hairston,” or
“Basheen Harrison.” It appears these discrepancies were mere transcription errors. Inasmuch as
Petitioner refers to himself as “Basheer Harrison” in these habeas proceedings, this Court will do so as
well.

After a thorough and independent review of the state court record and court filings, for
the reasons stated herein, Petitioner’s objections are overruled, the R&R is approved and
adopted, and the petition for a writ of habeas corpus is denied. As set forth below, however, this
Court will issue a certificate of appealability with respect to Petitioner’s ineffective assistance of
counsel claim premised on trial counsel’s failure to object to the trial court’s jury instruction on
reasonable doubt (Claim IV).
BACKGROUND
On May 5, 2006, Petitioner was found guilty by a jury of murder in the third degree of
victim Anthony Funny, attempted murder and aggravated assault of another victim, Louis
Seabrook, and possessing an instrument of crime and was sentenced on July 17, 2006.
Commonwealth v. Harrison, No. 3547 EDA 2006, Slip Opinion at *1 (Pa. Super. Ct. Sept. 2,
2008). The facts underlying Petitioner’s conviction were summarized by the Pennsylvania
Superior Court as follows:
On December 19, 2014 at approximately 3:35 a.m., Louis
[Seabrook], then 14 years old, stood in the doorway of his home
and saw [Petitioner] engaged in a struggle with his stepfather,
Anthony [Funny]. [Petitioner] had a gun in his hand and Anthony
was holding the barrel during the struggle. [Petitioner] fired one
shot and Anthony fell to the floor on the porch. [Petitioner]
dropped the gun, ran down the steps and within seconds
[Petitioner’s] brother Kareem Hairston (hereinafter ‘Kareem’) and
another male Reginald Satchell (hereinafter ‘Reginald’) from the
corner of F and Lippincott Streets began firing at the house where
Anthony lay on the porch and Louis was standing. Louis stated
that Reginald and Kareem fired at least five times and he saw
[Petitioner] run to a blue Expedition SUV which was parked on the
corner across the street; Kareem and Reginald jumped into the
back seat and [Petitioner] sped away down Lippincott Street.
(N.T. 4/26/06 500-523; N.T. 4/27/06 545-571).
Louis memorized the Expedition’s license tag number, dragged
Anthony in to the house and called the police. (Id. at 580-582).
Fire rescue arrived and transported Anthony to the hospital where
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he died at approximately 4:20 a.m. (N.T. 4/24/06 117-118; N.T.
4/25/06 197-201). The Medical Examiner testified that the bullet
entered Anthony’s right thigh, penetrated his femoral artery and
femoral vein, traveled through his scrotum and exited his left thigh.
(N.T. 4/26/06 197-201). Anthony sustained injuries to his vital
organs, i.e., his femoral artery and femoral vein, and bled to death.
(Id.).
When the police arrives, Louis gave a description of the SUV
[Petitioner] drove away in with Kareem and Reginald in the back
and he told the officer the license plate number. (N.T. 4/24/06
101). This information was broadcasted over police radio and the
police stopped [Petitioner] driving the vehicle approximately 25
minutes after the shooting. (N.T. 4/24/06 99-101; N.T. 5/02/06
222-249). Petitioner was taken into custody and $1,716 was taken
from him. Two cell phones and two baseball caps were recovered
from the SUV. (See N.T. 5/02/06 254-263). Louis was
transported to where [Petitioner] was stopped and identified him as
the man who shot Anthony. (N.T. 4/24/06 112-113; N.T. 4/27/06
584-587).
[Petitioner] was no stranger to Louis, Anthony or Eva Seabrook
(hereinafter ‘Eva’), Louis’ mother; [Petitioner] lived across [the]
street approximately two houses from the corner on Lippincott
Street. (N.T. 4/24/06 404; N.T. 4/28/06 850-851). Anthony, Louis
and Eva resided at 3135 F Street; a couple of houses away from the
intersection of Lippincott and F Streets. (Id. at 402; N.T. 4/28/06
829). Eva further testified that on the afternoon of December 17,
2004, she saw [Petitioner] standing on the corner of F and
Lippincott Streets and she observed the butt of a gun in his
waistband. The gun in [Petitioner’s] waistband appeared similar to
the gun that [Petitioner] dropped on the porch. (N.T. 4/28/06 842852).
The night before the shooting, December 18, 2004, Louis went to
visit his aunt, who lived in the area, and sat on her porch with his
friend Milton Brown (hereinafter ‘Milton’) before going into the
house. [Milton left when Louis entered his aunt’s house.]. After
about ten minutes Milton [returned] and Louis saw that his face
was red and scratched up, like he had been in a fight. (N.T.
4/26/06 426-427). Milton and Louis went to Louis’ house and
spoke to Anthony. After speaking to the boys, Anthony said he
would speak to [Petitioner]. (Id. at 490-493). Before leaving for
work at 10:00 p.m., Eva asked Anthony to stay home and not to
say anything to [Petitioner]. (N.T. 4/28/06 853-854).

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Louis testified that Anthony left home that night and said he was
going to Clementine Street. (N.T. 4/26/06 491-494). Louis stated
that Anthony was unarmed and Eva testified that Anthony did not
own a gun. (N.T. 4/26/06 495; N.T. 4/28/06 868-869). Sometime,
after Anthony left, Louis heard gunshots that sounded like they
were coming from the direction of E Street. (N.T. 4/28/06 733744, 748-749). Approximately 10 minutes later, Louis heard a
noise on the porch. He went to the door and saw [Petitioner] and
Anthony engaged in a struggle and [Petitioner] fired the shot that
ultimately resulted in Anthony’s death. (N.T. 4/28/06 743).
After the shooting, the police recovered a .38 revolver containing
five spent cartridge casings from the porch, twelve spent .9 mm
cartridges from near the corner of F and Lippincott Streets, and
seven more spent .9 mm casings further down Lippincott Street.
The firearms expert testified that the .9 mm cartridge cas[ing]s
found at the corner were ejected from two different pistols. The
cartridge cas[ing]s found further down Lippincott Street were
ejected from one of the guns that were [sic] fired from the corner.
A total of five bullet fragments and specimens were recovered
from cars parked out in front of 3135 F Street, the porch of 3133 F
Street, and from the living room wall of 3139 F Street. The
placement of the ejected cartridges on the corner, bullet fragments,
and bullet specimens at the scene indicated that Reginald and
Kareem shot at Louis and Anthony from the direction of the corner
of F and Lippincott Streets. (N.T. 5/01/06 8-145; Exhibit C-8).
Commonwealth v. Harrison, No. 3547 EDA 2006, Slip Opinion at *1-4 (Pa. Super. Ct. Sept. 2,
2008).
The procedural history of this matter is set forth in the R&R, and need not be repeated in
detail, but will be summarized to the extent relevant to the analysis of Petitioner’s objections. As
noted in the R&R, on May 5, 2006, the jury returned its verdict, finding Petitioner guilty of
murder in the third degree of Anthony Funny, the attempted murder and aggravated assault of
Louis Seabrook, and possessing an instrument of crime. On July 17, 2006, Petitioner was
sentenced to a term of imprisonment of 20 to 40 years for third degree murder, a consecutive
term of 7½ to 15 years for attempted murder (which was merged with the aggravated assault
conviction for sentencing purposes), and a further consecutive term of 1½ to 5 years for

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possessing an instrument of crime. Petitioner’s post-sentence motion was denied on November
20, 2006.
Petitioner filed a direct appeal to the Pennsylvania Superior Court on December 19, 2006,
in which he raised six issues for review: (1) whether the trial court erred in instructing the jury
on accomplice liability; (2) whether the evidence was insufficient to sustain convictions for
aggravated assault and attempted murder; (3) whether the evidence was insufficient to support
conviction for murder of the third degree; (4) whether the trial court erred in denying Petitioner’s
motion for a mistrial based upon inadmissible testimony that Petitioner was a drug dealer and the
“boss;” (5) whether the trial court erred in overruling an objection to testimony that Petitioner
possessed a large amount of currency when he was arrested; and (6) whether the evidence was
insufficient to support Petitioner’s conviction for possessing an instrument of crime.

On

September 2, 2008, the Superior Court affirmed the judgment of conviction. Petitioner filed a
pro se petition for allowance of appeal in the Pennsylvania Supreme Court on October 1, 2008,
which was “voided” on November 3, 2008.
On August 20, 2009, Petitioner filed a pro se PCRA petition, which was amended by
retained counsel on March 25, 2010, and again on October 29, 2010. The amended, counseled
petition asserted two claims, both of which concerned the jury instructions for the fatal shooting
of Anthony Funny, to wit:

(1) trial counsel was ineffective for failing to request a jury

instruction regarding “the circumstances under which an inference could be drawn from a
gunshot wound to a non-vital area of the body,” and (2) trial counsel was ineffective for failing
to request a jury instruction for involuntary manslaughter. The PCRA court dismissed the
amended petition without a hearing. The Superior Court affirmed the dismissal on May 15,
2013. The Pennsylvania Supreme Court denied allowance of appeal on March 5, 2014.

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Represented by new counsel, Petitioner filed the underlying habeas petition on April 10,
2014. In the habeas petition, Petitioner challenges the judgment of sentence on the grounds of
ineffective assistance of trial counsel for failing to object to alleged prosecutorial misconduct,
failing to request or to oppose particular jury instructions, and failing to seek the dismissal of the
attempted murder charge in light of other legal rulings made in the case. The petition was
referred to the Magistrate Judge for the preparation of an R&R, which was issued on August 8,
2017.

As noted, the Magistrate Judge recommended the denial of all of Petitioner’s habeas

claims. Petitioner has now filed the underlying, counseled objections to the R&R.
LEGAL STANDARD
Where objections to an R&R are filed, the court must conduct a de novo review of the
contested portions of the R&R, see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989)
(citing 28 U.S.C. §636(b)(1)(C)), provided the objections are both timely and specific. Goney v.
Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In conducting its de novo review, a court may accept,
reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate
judge. 28 U.S.C. §636(b)(1). Although the review is de novo, the statute permits the court to
rely on the recommendations of the magistrate judge to the extent it deems proper. United States
v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) amended the standards
for reviewing state court judgments raised in federal habeas corpus petitions filed under 28
U.S.C. §2254. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). AEDPA increased the
deference federal courts must give to the factual findings and legal determinations of the state
courts. Id. at 196. Thus, in accordance with §2254(d), a habeas corpus petition may only be
granted if the state court’s adjudication of the claim: “(1) resulted in a decision that was contrary

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to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. §2254(d).
In order to seek federal habeas relief, however, a petitioner must first exhaust the
remedies available in state court. See 28 U.S.C. §2254(b)(1) (“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 – (A) the applicant has exhausted the remedies available in the
courts of the State . . .”). To meet this exhaustion requirement, a petitioner must “fairly present
his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the
claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). In order for a claim to be exhausted, “‘[b]oth
the legal theory and facts underpinning the federal claim must have been presented to the state
courts, and the same method of legal analysis must be available to the state court as will be
employed in the federal court.’” Tome v. Stickman, 167 F. App’x 320, 322-23 (3d Cir. 2006)
(quoting Evans v. Court of Common Pleas, De. County, Pa., 959 F.2d 1227, 1231 (3d Cir.
1992)). A state prisoner must “fairly present” his federal claims to the state courts before
seeking federal habeas relief by invoking “one complete round of the State’s established
appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Pennsylvania,
one complete round includes presenting the federal claim through the Superior Court on direct or
collateral review. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). The habeas
petitioner bears the burden of proving exhaustion of all state remedies. Boyd v. Waymart, 579
F.3d 330, 367 (3d Cir. 2009).

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If a state court has refused or would refuse to review a claim based on a state procedural
rule that is independent of the federal question and adequate to support the judgment, the court
may deny that claim as procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729, 73132 (1991); Lark v. Sec’t Pa. Dept. of Corrections, 645 F.3d 596, 611 (3d Cir. 2011); Johnson v.
Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). A federal court may consider the merits of a
procedurally defaulted claim only if “the petitioner establishes ‘cause and prejudice’ or a
‘fundamental miscarriage of justice’ to excuse the default.” Holloway v. Horn, 355 F.3d 707,
715 n.3 (3d Cir. 2004) (quoting Coleman, 501 U.S. at 750).
To show “cause,” the petitioner “must demonstrate some objective factor external to the
defense that prevented compliance with the state’s procedural requirements.” Id.; see also
Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples of suitable “cause” include a showing
that: (1) the factual or legal basis for a claim was not reasonably available; (2) some interference
by state officials made compliance with the state procedural rule impracticable; or (3) the
procedural default was the result of ineffective assistance of counsel. Id. at 488. To demonstrate
“prejudice,” a petitioner must show “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.” Murray, 477 U.S. at 494 (quoting United States v.
Frady, 456 U.S. 152, 170 (1982)).
In Coleman, 501 U.S. 722, the United States Supreme Court held that ineffective
assistance of state post-conviction counsel cannot satisfy the “cause” requisite for overcoming a
procedural default because there is no federal constitutional right to counsel on post-conviction
review. Id. at 750-54. In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Supreme Court
carved out a “narrow” and “limited” exception to the rule in Coleman, and held that where state

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law requires claims of ineffective assistance of trial counsel to be raised for the first time in a
collateral proceeding, a federal habeas petitioner may be able to establish “cause” sufficient to
overcome a procedural default of a “substantial” claim of trial counsel’s ineffectiveness if the
collateral appeal counsel was also ineffective. Martinez, 566 U.S. at 7-19.
In Martinez, the Supreme Court held that counsel’s failure on collateral review to raise a
claim of ineffective assistance of trial counsel may constitute “cause” to excuse a procedural
default of the trial counsel ineffectiveness claim if: (1) collateral review counsel’s failure itself
met the standard for ineffective assistance of counsel under Strickland v. Washington, 466 U.S.
668 (1984); and (2) the underlying ineffective assistance of trial counsel claim is a “substantial
one, which is to say that the prisoner must demonstrate that the claim has some merit.”
Martinez, 566 U.S. at 14. Noting that the Martinez Court compared this standard to that required
to issue certificates of appealability, the United States Court of Appeals for the Third Circuit
interpreted the requisite inquiry as a “threshold inquiry” that “‘does not require full consideration
of the factual or legal bases adduced in support of the claims.’” Bey v. Superintendent Greene
SCI, 856 F.3d 230, 238 (3d Cir. 2017) (quoting Miller El v. Cockerell, 537 U.S. 322, 327, 336
(2003)).
As noted, each of Petitioner’s habeas claims is premised upon the alleged ineffective
assistance of counsel. When addressing the substantive merits of an ineffective assistance of
counsel claims on habeas review, this Court must apply the two-pronged inquiry articulated by
the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To sustain a claim for
ineffective assistance of counsel, a petitioner must show that counsel’s performance was
objectively deficient and that this deficient performance prejudiced the defense. Id. at 687. To
satisfy the first prong, a petitioner must show that “counsel made errors so serious that counsel

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was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at
687. In evaluating counsel’s performance, a reviewing court should be “highly deferential” and
must make “every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689. There is a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’” Id. The court must defer to counsel’s tactical decisions, avoiding “the distorting
effects of hindsight,” and give counsel the benefit of a strong presumption of reasonableness.
Strickland, 466 U.S. at 689; Gov’t of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1431 (3d
Cir. 1996).
Prejudice has been defined as a “showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id.; see also Frey v.
Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992). To meet this second prong, a petitioner must show
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome” of the proceeding. Id. It
follows that counsel cannot be ineffective for failing to pursue meritless claims or objections.
See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).
DISCUSSION
Petitioner’s objections to the Magistrate Judge’s R&R are directed to each of his four
habeas claims. At the outset, this Court notes that the Magistrate Judge issued a thorough, sixtytwo page R&R that addressed each of Petitioner’s claims. In the well-reasoned report, the

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Magistrate Judge found that these claims were either procedurally defaulted or lacked merit. For
the most part, Petitioner’s objections to these findings largely reiterate the same arguments he
presented to, and which were thoroughly considered and rejected by, the Magistrate Judge.
Regardless, this Court addresses each objection below.
Objection One2 (pp. 32-35) – Claim One – Misapplication of Supreme Court Precedents
At claim one of the habeas petition, Petitioner contends that his trial counsel was
ineffective for not objecting to or meaningfully addressing several instances of alleged
prosecutorial misconduct. In recommending the denial of this claim, the Magistrate Judge found
that the claim was procedurally defaulted and that Petitioner had failed to meet the Martinez
standard for excusing the default or to show the requisite cause and prejudice under Strickland to
excuse the default. Petitioner objects to the Magistrate Judge’s conclusions on several bases.
Petitioner’s first objection is that the Magistrate Judge misapplied two Supreme Court
precedents in his R&R:

Darden v. Wainwright, 477 U.S. 168 (1986), and Donnelly v.

DeChristoforo, 416 U.S. 637 (1974). Specifically, Petitioner argues that the Magistrate Judge
misapplied these two decisions to support his conclusion that the prosecutor’s actions did not
infect Petitioner’s trial with a level of unfairness that violated due process. In his objection,
Petitioner contends that these two cases are distinguishable from his case in that the prosecutorial
misconduct in those two cases occurred only during the closing arguments and not throughout
the trial as alleged by Petitioner here and because the trial judges in these two cases gave
curative instructions following the misconduct, unlike the trial judge in this case. Petitioner’s
argument is misplaced.

For ease of reference, this memorandum opinion refers to Petitioner’s objections in the order in
which they appear in his objections.
2

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In his R&R, the Magistrate Judge cited to Darden and Donnelly simply for the legal
standard to be applied to claims of prosecutorial misconduct. As correctly acknowledged by
Petitioner in his objections, “it is understandable that the Magistrate would have cited these
United States Supreme Court decisions – AEDPA requires that Petitioner show that the state
court decisions were contrary to, or an unreasonable application of such precedent . . . .”
Seemingly lost on Petitioner, however, the Magistrate Judge did not rely upon or cite to these
two cases or their facts as comparators to the alleged conduct herein, but merely as the Supreme
Court precedents which provide the legal standards against which Petitioner’s claims must be
measured.

As such, Petitioner’s objection that the Magistrate Judge misapplied these two

decisions is without merit.
Objection Two (pp. 35-36) – Claim One –Erroneous Failure to Find a Pattern of Prosecutorial
Misconduct
Petitioner next argues that the Magistrate Judge erroneously failed to find a pattern of
prosecutorial misconduct. Specifically, Petitioner argues that the Magistrate Judge erroneously
based his conclusion on his finding that the instances on which Petitioner relies “share[d] no
common theme . . .” (Petitioner’s Objections at p. 12). Relying on Moore v. Morton, 255 F.3d
95 (3d Cir. 2001), Petitioner argues that one need not show a common theme to establish a
pattern of misconduct and that “when misconduct appears in several unrelated areas, the risk of
prejudice and a denial of due process is heightened.” (Petitioner’s Objections at p. 36).
Under Supreme Court precedent, in determining whether a defendant has been deprived
of a fair trial due to prosecutorial misconduct, the reviewing court must “weigh the prosecutor’s
conduct, the effect of the curative instructions, and the strength of the evidence.” Moore, 255
F.3d at 107 (citing Darden, 477 U.S. at 182, and Donnelly, 416 U.S. at 643). Here, in reaching
his conclusion and recommendation, the Magistrate Judge clearly applied this standard. In the

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R&R, the Magistrate Judge described each of Petitioner’s alleged instances of prosecutorial
misconduct, and considered them “collectively.” (See R&R at 31). Petitioner’s objection and
argument to the contrary is without merit and is overruled.
Objection Three (pp. 36-38) – Claim One – Improper Focus on the Things Counsel Did
Properly
Petitioner next objects to the Magistrate Judge’s reliance on trial counsel’s “alert and
active” participation in the trial as a basis to reject Petitioner’s ineffective assistance of counsel
claims. In support of this objection, Petitioner points to two examples, neither of which suggests
an improper focus by the Magistrate Judge. First, Petitioner points to the Magistrate Judge’s
conclusion that the prosecutor’s purported improper description of the required elements of the
crimes and burden of proof “would likely have little resonance with jurors,” and that “the lengthy
instruction on reasonable doubt that counsel knew would be forthcoming from the court would
have ameliorated any concern about a misunderstanding . . . .” (Petitioner’s Objections at 37).
Petitioner ignores, however, that the Magistrate Judge’s conclusion was also premised on the fact
that the trial court advised the jury that it was the duty of the court, not the parties, to instruct the
jury on the law, which the court did. In doing so, the Magistrate Judge properly took into
consideration the prosecutor’s conduct and the effect of the curative instructions. See Moore,
255 F.3d at 107.
Next, Petitioner points to the prosecutor’s eliciting of deceptive testimony about whether
Petitioner was wearing a leg brace on the night of the shooting. Specifically, Petitioner argues
that the prosecution engaged in misconduct, to which trial counsel failed to object, by soliciting
testimony from witnesses who did not observe Petitioner wearing a leg brace when another
Commonwealth witness confirmed that Petitioner was wearing a brace at the time of his arrest.
As the Magistrate Judge pointed out, however, defense counsel was able to effectively refute the

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prosecution’s perceived misleading questions of other witnesses about Petitioner’s wearing of a
leg brace through the testimony of Petitioner’s treating physical therapist. In light of this
effective response by trial counsel, the Magistrate Judge correctly concluded that there was no
substantial claim of trial counsel ineffectiveness sufficient to excuse the procedural default of
this claim. Accordingly, this objection is overruled.
Objection Four (pp. 38-41) – Claim One – Failure to Address Individual Claim of
Prosecutorial Misconduct
Petitioner next objects to the Magistrate Judge’s purported failure to address, as an
independent habeas claim, Petitioner’s contention that trial counsel was ineffective for failing to
object to the prosecution’s improper solicitation of inadmissible testimony that two individuals,
Louis Seabrook and Milton Brown, sold drugs for Petitioner. Petitioner’s objection in this regard
is without merit. As noted by the Magistrate Judge, Petitioner’s trial counsel did object to the
introduction of this evidence and moved for a mistrial. Though the trial court denied counsel’s
request for a mistrial, the court sustained the objection, gave the jury a curative instruction, and
struck the evidence. The trial court charged the jury as follows:
Ladies and gentlemen, at this time, I instruct you to disregard all of
this witness’ [Seabrook’s] testimony concerning selling drugs for
the defendant, Basheer, to strike that testimony, as well as any of
his testimony concerning Basheer being the boss.
This witness’ testimony is not based on firsthand knowledge and is
therefore inadmissible. You are to strike it and disregard it. It is to
have no place at all in your considerations. I order it stricken from
the record.
(N.T. 4/26/06 at 423-24).

As the Magistrate Judge properly concluded, under these

circumstances, Petitioner’s bald claim that trial counsel was ineffective for failing to object to the
alleged prosecutorial misconduct is belied by the record. Accordingly, Petitioner’s objection is
overruled.

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Objection Five (pp. 41-43) – Claim Two – Magistrate Judge’s Application of Improper
Standard to Petitioner’s Claim Regarding Trial Counsel’s Failure to Seek Particular Jury
Instructions
At claim two of the habeas petition, Petitioner alleges that his trial counsel was
ineffective for failing to seek jury instructions to mitigate part of the jury instruction regarding
the “vital part” inference of malice for a murder conviction, and for failing to request that the
jury be instructed on involuntary manslaughter as an alternative to third-degree murder.
Petitioner objects to the Magistrate Judge’s conclusion on these claims on the basis that the
Magistrate Judge applied the wrong standard. Petitioner’s objection is without merit. Because
each of these particular ineffective assistance of counsel claims was presented to and rejected by
the state court on PCRA review, the Magistrate Judge properly and correctly applied AEDPA’s
heightened and deferential standard of review, concluding that the state court had not
unreasonably applied clearly established federal law or reached a decision based on an
unreasonable determination of the facts. (See R&R at pp. 38-43). As such, this Court finds that
the Magistrate Judge applied the correct standard, and Petitioner’s objection is overruled.
Objection Six (pp. 43-45) – Claim Two – Erroneous Finding as to Trial Counsel’s Failure to
Request an Involuntary Manslaughter Instruction
As noted, at claim two of the habeas petition, Petitioner alleges that his trial counsel was
ineffective for failing to request an involuntary manslaughter instruction, a lesser included
offense of the third-degree murder charge he faced. Again, because this claim was presented to
the state courts on appeal and exhausted, the Magistrate Judge properly applied AEDPA’s
heightened and deferential standard when addressing it. In his objection, Petitioner disagrees
with the Magistrate Judge’s suggested analysis of this claim.

This Court agrees with the

Magistrate Judge and finds that there is no basis to conclude that the state court’s rejection of this

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ineffective assistance of counsel claim amounted to an unreasonable application of the Strickland
standard.
When addressing the merits of an ineffective assistance of counsel claims on habeas
review, the “clearly established federal law” applicable to such claims is the familiar twopronged inquiry articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). To sustain a claim for ineffective assistance of counsel, a petitioner must show that
counsel’s performance was objectively deficient and that this deficient performance prejudiced
the defense. Id. at 687. Prejudice has been defined as a “showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.; see also
Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992) (“[A] petitioner must demonstrate a
reasonable probability that, but for the unprofessional errors, the result would have been
different.”). The court must defer to counsel’s tactical decisions, avoiding “the distorting effects
of hindsight,” and give counsel the benefit of a strong presumption of reasonableness.
Strickland, 466 U.S. at 689; Gov’t of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1431 (3d
Cir. 1996).
In addressing Petitioner’s specific claim of ineffective assistance of counsel, the Superior
Court (affirming the opinion of the PCRA court) applied the governing test for ineffective
assistance of counsel claims announced in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987),
and applied in Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008). See Commonwealth v.
Harrison, Slip Opinion at *3-4 (Pa. Super. Ct. May 15, 2013). The United States Court of
Appeals for the Third Circuit has determined that the Pierce test conforms to established federal
law and is “not contrary to the Strickland test.” Rompilla v. Horn, 355 F.3d 233, 250 (3d Cir.
2004); Henderson v. DiGugliemo, 138 F. App’x 463, 468 (3d Cir. 2005); Werts, 228 F.3d at 203

16

(recognizing that the Pierce test as materially identical to the Strickland test). Therefore, the
Superior Court’s decision as to this ineffective assistance of counsel claim is not “contrary to”
the test established in Strickland.
The dispositive question with respect to this ineffective assistance of counsel claim,
therefore, becomes whether the Superior Court’s decision reflects an unreasonable application of
the Strickland test. To carry his burden, Petitioner must demonstrate that the state court’s
decision, “evaluated objectively and on the merits, resulted in an outcome that cannot reasonably
be justified under [Strickland].” Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000).
In addressing Petitioner’s claim that trial counsel was ineffective for failing to request an
involuntary manslaughter instruction, the Superior Court found that counsel’s failure to request a
manslaughter instruction aligned with a trial strategy and argument that Petitioner was not
present at the time of the shooting. Specifically, the Superior Court found:
Harrison also claims that the evidence at trial supported a
conviction for involuntary manslaughter and that trial counsel was
ineffective for not requesting an involuntary manslaughter charge.
This claim also fails. “A person is guilty of involuntary
manslaughter when as a direct result of the doing of an unlawful
act in a reckless or grossly negligent manner, or the doing of a
lawful act in a reckless or grossly negligent manner, he causes the
death of another person.” 18 Pa. C. S. §2504(a). “[I]n a murder
prosecution, an involuntary manslaughter charge shall be given
only when requested, and where the offense has been made an
issue in the case and the trial evidence reasonably would support
such a verdict.” Commonwealth v. White, 415 A.2d 399, 402 (Pa.
1980). Additionally, “whether or not to request jury instructions
on involuntary manslaughter is a matter of trial strategy.”
Commonwealth v. Morris, 424 A.2d 1336, 1338 (Pa. 1981). While
pursuing involuntary manslaughter as a defense against murder
may have been reasonable, counsel argued at trial that Harrison
was not present at the time of the shooting, and thus the jury must
acquit him. Trial Court Opinion, 7/12/2012, at 7-8. As such, not
requesting a manslaughter instruction was consistent with the
defense theory that Harrison was innocent of any wrongdoing, and
trial counsel’s omission had a “reasonable basis designed to serve

17

his client’s interests.” Dennis, 950 A.2d at 954. Accordingly,
counsel cannot be found to have been ineffective.
Commonwealth v. Harrison, Slip Opinion at *5-6 (Pa. Super. Ct. May 5, 2013).
As set forth in the R&R, in rejecting this claim the Pennsylvania Superior Court
reasonably determined whether trial counsel’s decision to forego an involuntary manslaughter
instruction was consistent with counsel’s reasonable trial strategy, as required under the
Strickland analysis. In light of trial counsel’s consistent and reasonable strategy of contesting
Petitioner’s presence at the shooting, there is no basis to conclude that counsel’s failure to
request an involuntary manslaughter instruction was unsound. As such, Petitioner has not shown
that the state court’s adjudication of this claim was an unreasonable application of Strickland.
Therefore, this claim is denied.
Objection Seven (pp. 46-48) – Claim Three -- Magistrate Judge’s Erroneous Finding as to
Trial Counsel’s Failure to Explore Inconsistent Rulings by Trial Judge
At claim three of the habeas petition, Petitioner contends that his trial counsel was
ineffective for failing to adequately argue for the dismissal of the attempted murder charges as to
Louis Seabrook after the court dismissed the charge of first-degree murder as to Anthony Funny.
The Magistrate Judge found (and Petitioner does not challenge) that this claim was procedurally
defaulted because it was not presented to the state courts. Petitioner argues, however, that he can
overcome his procedural default under the exception provided by Martinez. The Magistrate
Judge correctly disagreed.
As set forth above, under Martinez, Petitioner must show that the underlying claim of
trial counsel’s ineffectiveness is a “substantial one,” meaning that the underlying claim “has
some merit.” Martinez, 566 U.S. at 14. In addition, Petitioner must establish that his PCRA
counsel’s conduct was such that no competent attorney would have followed it, Strickland, 466

18

U.S. at 687, and that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
As the Magistrate Judge correctly concluded, Petitioner has not met the Martinez
standard. First, Petitioner’s trial counsel did, in fact, move for judgment of acquittal on the
attempted murder charge by arguing the lack of evidence as to Petitioner’s specific intent.
During oral argument, trial counsel argued as follows:
I would argue there is nothing to reflect that Mr. Basheer Hairston,
first of all, had any ill will towards Louis Seabrook. There’s
nothing to show that, whatsoever, that he had ill will towards him.
That he pointed a weapon towards him. That he threatened him in
any form or fashion. And that it was only after Basheer Hairston
left the porch, that shots were fired from two other individuals up
towards the porch at a point when Mr. Seabrook was apparently
coming out of the doorway.
I would argue to the court that there is nothing to reflect that
Basheer Hairston attempted to murder Mr. Seabrook via either his
own conduct. Because there is no conduct on his part towards Mr.
Louis Seabrook; none, whatsoever. And via the theory that this is
a conspiracy that existed to murder Mr. Seabrook. There is no
indication of a specific intent to kill him. There’s no evidence of
gunfire in the doorway area. There is no evidence of a shared
intent by Mr. Hairston for the other two guys to shoot and kill
Louis Seabrook.
So, therefore, your Honor, I would argue that you don’t have a
criminal conspiracy to attempt to shoot and kill Louis Seabrook. I
have the same argument with respect to the aggravated assault.
This defendant made no attempt to cause serious bodily injury to
Louis Seabrook. [He] [s]aid or did nothing with respect to the
other two individuals with respect to Mr. Louis Seabrook.
(N.T. 5/2/06 at 326-27). Though the trial judge ultimately denied trial counsel’s motion for
acquittal of the attempted murder charge, for purposes of evaluating Petitioner’s current
ineffective assistance of counsel claim, the fact that trial counsel made the very argument with
respect to specific intent that Petitioner now contends trial counsel should have argued again is

19

significant. Indeed, trial counsel’s argument as to the lack of specific intent, which was directed
at both the attempted murder charge and the conspiracy charge with respect to Mr. Seabrook, and
the first-degree murder and conspiracy charges with respect to Mr. Funny, was successful with
respect to three of the four charges challenged. In light of these facts, the Magistrate Judge’s
conclusion that Petitioner has not met his burden under Martinez to overcome the procedural
default of this claim is correct.
In addition, most of the argument contained in Petitioner’s habeas filings with respect to
this ineffective assistance claim is directed at the trial court’s purported misunderstanding of the
law of accomplice liability. (See Pet’r Mem. at 73-81). Counsel, however, cannot be deemed
ineffective for unsuccessfully alleviating a judge’s purported misunderstanding of the law. This
is particularly true here where, as described above, trial counsel did, in fact, seek dismissal of the
attempted murder charge with respect to Louis Seabrook by challenging the lack of evidence as
to Petitioner’s specific intent and was successful in obtaining dismissal of three of the four
charges challenged on this ground.
Moreover, on direct appeal, the Superior Court found that the evidence presented at trial
(the same evidence on which the trial judge relied to deny Petitioner’s motion to dismiss the
attempted murder charge) was sufficient to support Petitioner’s conviction for the attempted
murder of Louis Seabrook. Specifically, the Superior Court found as follows:
While we agree with appellant that the factual evidence does not
support a finding that he shot at Louis, we find that the evidence
was sufficient to support a conviction of aggravated assault and
attempted murder under a theory of accomplice liability. The
evidence at trial established that Louis observed, from the doorway
of his home, [Petitioner] and Anthony on the porch struggling over
a gun. Louis observed [Petitioner] shoot his step-father and flee
from the scene towards his waiting car and two companions,
Kareem and Reginald. Once [Petitioner] had crossed the street and
reached his companions, Kareem and Reginald opened fire on

20

Louis. [Petitioner] then got into the driver’s seat of the car while
Kareem and Reginald entered the car as passengers. The three
men left the scene of the crime together. Bullet fragments were
recovered from the cars parked outside Louis and Anthony’s home,
the porch of 3133 F Street, and the living room wall of 3139 F
Street. Contrary to [Petitioner’s] assertion, the foregoing evidence
does not merely establish his presence at the scene of the crime. It
is clear that [Petitioner] was an active participant in the events
which transpired. Thus, we find the evidence sufficient to convict
appellant of aggravated assault and attempted murder.
Commonwealth v. Harrison, Slip Opinion, at *8-9 (Pa. Super. Ct. Sept. 2, 2008). In light of this
finding by the Superior Court as to the sufficiency of the evidence of specific intent (a finding
not directly challenged here), Petitioner cannot meet the requisites of either Martinez or
Strickland. Thus, his objection is overruled.
Objection Eight (pp. 49-51) – Claim Four – Magistrate Judge’s Resolution of Claim that
Counsel Ineffectively Failed to Object to the Erroneous Reasonable Doubt Instruction
At claim four of the habeas petition, Petitioner asserts that his trial counsel was
ineffective for failing to object to the trial court’s erroneous jury instruction on reasonable doubt,
which Petitioner contends was constitutionally inadequate. The Magistrate Judge found (and
Petitioner does not challenge) that this claim was procedurally defaulted because it was not
presented to the state courts. Again, Petitioner argues that he can overcome his procedural
default of this claim under the exception provided by Martinez. The Magistrate Judge disagreed.
In addressing this claim, the Magistrate Judge first assessed the viability of the
underlying claim that the trial court gave an erroneous jury instruction as to reasonable doubt.
Petitioner argues that the reasonable doubt jury instruction provided was constitutionally
defective because it effectively lowered the burden of proof that the prosecution had to meet.
The jury instruction given was as follows:
Let me speak to you about reasonable doubt. Although the
Commonwealth has the burden of proving that a defendant is

21

guilty, this does not mean that the Commonwealth must prove its
case beyond all doubt or to a mathematical certainty. Nor must it
demonstrate the complete impossibility of innocence.
A
reasonable doubt is a doubt that would cause a reasonable careful
and sensible person to pause, to hesitate, to refrain from acting
upon a matter of highest importance in his or her own affairs or to
his or her own interests. A reasonable doubt must fairly arise out
of the evidence that was presented or out of the lack of evidence
presented with respect to some element of a crime charged.
A reasonable doubt must be a real doubt. It may not be an
imagined one nor may it be a doubt that’s manufactured to avoid
carrying out an unpleasant duty. So to summarize, you may not
find the defendant guilty based upon a mere suspicion of guilt.
The Commonwealth has the burden of proving the defendant guilty
beyond a reasonable doubt. If the Commonwealth has met that
burden, then the defendant is no longer presumed to be innocent
and you should find him guilty. On the other hand, if the
Commonwealth has not met its burden, then you must find him not
guilty.
(N.T. 5/4/06 at 623) (emphasis added). Petitioner objects to this instruction on the basis that it
“failed to present the three standards – pause, hesitate, refrain [from acting] – in the alternative,”
such that “jurors could believe that a reasonable doubt requires all three, i.e., not just a doubt
causing them to pause but also one that would cause them to completely refrain from acting.”
(Pet’r Mem. at 82). Put differently, Petitioner contends that this instruction is constitutionally
defective in that it posits three standards without listing them in the disjunctive with the use of
the word “or”.
The Fourteenth Amendment Due Process Clause protects an “accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). Although trial courts must
instruct the jury “on the necessity that the defendant’s guilt be proved beyond a reasonable
doubt, the Constitution does not require that any particular form of words be used in advising the
jury of the government’s burden of proof.” Victor v. Nebraska, 511 U.S. 1, 5 (1994). “Rather,

22

‘taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the
jury.’” Id. (quoting Holland v. United States, 348 U.S. 121, 140 (1954)); see also United States v.
Issac, 134 F.3d 199, 203 (3d Cir. 1998) (“Due process is satisfied if the instructions, taken as a
whole, accurately convey the concept of reasonable doubt to the jury.”).
Accordingly, an instruction to a jury should not be “judged in artificial isolation, but must
be viewed in the context of the overall charge.” Donnelly v. DeChristoforo, 416 U.S. 637, 645
(1974); see also United States v. Covle, 63 F.3d 1239, 1245 (3d Cir. 1995). The proper task on
review is to determine “whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that violates the Constitution,” Estelle v. McGuire, 502 U.S. 62,
72 (1991), or, stated otherwise, “whether there is a reasonable likelihood that the jury understood
the instructions to allow conviction based on proof insufficient to meet” the reasonable doubt
standard.” Victor, 511 U.S. at 6; see also Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009).
As noted, Petitioner contends that the trial court’s jury instruction on reasonable doubt
was constitutionally defective because it included a series of three definitions of reasonable
doubt, i.e., to pause, hesitate, refrain from acting, without separation with the requisite
disjunctive “or”. The United States Supreme Court has “repeatedly approved” the formulation of
defining reasonable doubt as a doubt which would cause a reasonable person to “hesitate” to act;
finding that this definition “gives a common sense benchmark for just how substantial a doubt
must be.” Victor, 511 U.S. at 2. The United States Supreme Court, however, has never
addressed the formulation of reasonable doubt used here. As the United States Court of Appeals
for the Third Circuit has noted, however, “[t]he Pennsylvania Supreme Court has a long history
of approving and recommending the ‘restrain from acting’ formulation,” a formulation similar to
that used by the trial court and at issue here. Thomas, 570 F.3d at 118 (citing, inter alia,

23

Commonwealth v. Marshall, 810 A.2d 1211, 1225 (Pa. 2002), Commonwealth v. Young, 317
A.2d 258, 261–62 (Pa. 1974) and Commonwealth v. Donough, 103 A.2d 694, 697 (Pa. 1954));
see also Commonwealth v. Uderra, 862 A.2d 74, 92 (Pa. 2004) (sanctioning the use of the vary
three formulations of reasonable doubt used in this case).
In Thomas, the Third Circuit addressed the constitutionality of a “restrain from acting”
formulation of reasonable doubt that was used instead of the Supreme Court sanctioned “hesitate
to act” formulation. 570 F.3d 105 (3d Cir. 2009). In comparing the words “hesitate” to
“restrain,” the Third Circuit noted that “‘[h]esitate’ implies a temporary interruption before
acting,” while “‘[r]estrain’ suggests a more prolonged, if not permanent, period of inaction.” Id.
at 118. Recognizing this difference, the Third Circuit found that “defining reasonable doubt as
such a doubt that would ‘restrain’ one’s actions decreases, to some extent, the burden of proof
that the prosecution would have to meet were the ‘hesitate to act’ formulation employed
instead.” Id. at 118. Notwithstanding the apparent lowering of the prosecution’s burden of
proof, the Third Circuit determined that “use of the word ‘restrain,’ though perhaps not ideal,”
was not enough to render the instruction unconstitutional. Id. at 119–20.
Numerous cases in this District have similarly addressed whether the use of the phrase
“restrain from acting” to the “hesitate” language lowered the prosecution’s burden and found no
constitutional error. For example, in Porter v. Horn, 276 F. Supp.2d 278 (E.D. Pa. 2003), a
habeas petitioner argued that the use of the phrase “restrain from acting” rather than “hesitate”
raised the quantum of doubt necessary for the jury to find reasonable doubt and, hence, violated
due process. Id. at 340. The federal court determined that “the trial court’s substitution of the
word ‘restrain’ for ‘hesitate’ did not impermissibly raise the level of doubt so as to constitute
constitutional error[,] [since] [t]aken as a whole, the reasonable doubt jury instruction adequately

24

instructed the jurors on the definition of reasonable doubt and its role in criminal convictions.”
Id. at 341. Indeed, it deemed the petitioner’s argument merely linguistic in light of the totality of
the instruction which emphasized “the importance of reasonableness and focusing on the
significant role played by evidence.” Id. at 340. Likewise, in Starkes v. Marks, 524 F. Supp. 37,
40 (E.D.Pa. 1981), the court, in addressing a similar argument, held that “[a]lthough there may
be a semantic difference between the terms ‘restrain’ and ‘hesitate’ when viewed in isolation, it
cannot be said, however, that there is a substantial difference between these two charges when
each term is viewed in the context of the overall charge.” Id. at 40; see also Laird v. Horn, 159
F. Supp.2d 58, 92 (E.D.Pa. 2001) (holding that trial court’s use of word “restrain” as opposed to
“hesitate” in reasonable doubt instruction did not impermissibly lower government’s burden of
proof); Peterkin v. Horn, 176 F. Supp.2d 342, 381 (E.D.Pa. 2001) (“Although we would agree
with Petitioner that the word ‘restrain’ implies a slightly higher level of doubt than does the word
‘hesitate,’ we do not find that the trial court’s use of the word ‘restrain’ in its reasonable doubt
instruction operated to raise the level of doubt so high as to constitute constitutional error.
Rather, our review of the instruction as a whole reveals that the trial court adequately defined the
meaning and outlined the proper implementation of the concept of reasonable doubt to the
jury.”); Brown v. Folino, 2004 WL 1211946, at *4 (E.D.Pa. May 28, 2004) (holding that a jury
charge stating that “a hesitation concerning the guilt of the defendant may become a reasonable
doubt when and if that hesitation becomes a restraint,” was constitutional under the standards
established by the Supreme Court in Victor ), aff’d, 179 F. App’x 845 (3d Cir. May 2006).
Like the Third Circuit’s analysis of the word “restrain” in Thomas, this Court finds that
the word “refrain,” as used in the underlying instruction, suggests a more “prolonged, if not

25

permanent, period of inaction,” than does the word “hesitate.”

Thomas, 570 F.3d at 118.

Common dictionary definitions of “refrain” include:


“to keep oneself from doing, feeling, or indulging in
something especially from following a passing impulse.”
Merriam-Webster Dictionary;



“to stop oneself
Dictionary; and,



“to not let yourself do something.” Cambridge Dictionary.

from

doing

something.”

Oxford

As such, defining reasonable doubt as a doubt that would cause a reasonably careful person “to
refrain from acting,” would appear to “decrease[], to some extent, the burden of proof that the
prosecution would have to meet” were the “hesitate to act” formulation utilized alone or in the
disjunctive context here. Thomas, 570 F.3d at 118.
Nonetheless, in light of the Third Circuit’s conclusion in Thomas with respect to the
constitutionality of the use of the similar phrase “restrain from acting,” this Court cannot
conclude that the trial court’s use of the similar phrase “refrain from acting” in the absence of the
disjunctive “or,” was unconstitutional. Though the Third Circuit has posited that there may be a
difference in the degree of doubt suggested by “restrain from acting” versus “hesitate to act,” it
recognized that there was no constitutional significance to the difference. See Thomas, 570 F.3d
at 119 (holding that “restrain from acting” language does not render a reasonable doubt
instruction unconstitutional because it does not “‘suggest a higher degree of doubt than is
required for acquittal under the reasonable doubt standard.’”) (quoting Cage v. Louisiana, 498
U.S. 39, 41 (1990)); see also Brown v. Folino, 179 F. App’x 845, 848 & n.3 (3rd Cir. 2006)
(non-precedential decision “not[ing] [the panel’s] suspicion” that the degree of doubt suggested
by “restrain from acting” might be akin to language that the Supreme Court found problematic in
Cage v. Louisiana, 498 U.S. 39 (1990), but recognizing that “no Supreme Court decision has

26

struck down any version of the ‘restraint’ formulation of reasonable doubt.”). Reviewing the
instruction at issue here as a whole, this Court finds that there is a reasonable likelihood that the
jury understood the instruction to only allow a conviction based on proof sufficient to meet the
beyond a reasonable doubt standard. The instruction adequately informed the jurors regarding
the concept of reasonable doubt. Such language allowed the jury to maintain reasonable doubt
under any of the three definitions listed, thereby not raising the degree of doubt for acquittal to a
level higher than what is required under the constitutional reasonable doubt standard.
Accordingly, in light of Thomas, the trial court’s reasonable doubt instruction in Petitioner’s case
was not constitutionally deficient and Petitioner, therefore, is not entitled to relief on this basis.
Furthermore, the Third Circuit having found in Thomas that the “restrain from acting”
definition of reasonable doubt was constitutional when presented alone, it cannot follow that
presenting a similar “refrain from acting” definition alongside the clearly constitutional
“hesitate” definition would render the jury instruction given unconstitutional. Here, the trial
court’s instruction utilized the “refrain from acting” language with the Supreme Court approved
“hesitate” language. Even if, as Petitioner argues, the instruction suggests to the jury that it may
select the “refrain from acting” definition rather than the “hesitate” definition, it would still be
selecting a constitutional definition of reasonable doubt. Moreover, as a whole, the instruction
correctly communicated Petitioner’s presumed innocence, the Commonwealth’s burden of proof
on all elements, and the nature of a reasonable doubt, and directed the jurors to reach their
decision based upon all of the evidence. In light of the totality of the jury instruction given, this
Court finds that it is likely that the jury understood the charge.
In addition, applying the Strickland standard for attorney performance, Petitioner cannot
show that trial counsel’s performance was deficient for failing to object to the jury instruction.

27

With respect to the question of trial counsel’s alleged deficient performance at the time of trial in
2006, this Court must be mindful of the state of the law at the time trial counsel’s alleged
objection should have been made. In the context of reviewing the proposed jury instruction with
the trial judge and opposing counsel, trial counsel likely would have recognized both the
“hesitate” and similar “restrain” language as formulations that had been upheld repeatedly by the
Pennsylvania Supreme Court in defining reasonable doubt.

See, e.g., Commonwealth v.

Hawkins, 787 A.2d 292, 301–02 (Pa. 2001); Commonwealth v. Ragan, 743 A.2d 390 (Pa. 1999);
Commonwealth v. Donough, 103 A.2d 694, 697 (Pa. 1954); Commonwealth v. Kluska, 3 A.2d
398, 403 (Pa. 1939). In addition, as noted above, federal district courts addressing Pennsylvania
jury instructions consistently have upheld versions of the similar “restrain” formulation. “In the
face of such authority, a reasonable practitioner could certainly be excused for failing to object to
the instruction as worded in [Petitioner’s] case.” Brown, 179 F. App’x at 850 (affirming denial
of prisoner’s ineffective assistance of counsel claim premised on trial counsel’s failure to object
to reasonable doubt instruction that equated hesitation with restraint).
Even if trial counsel could be said to have performed deficiently in not offering an
objection to the “reasonable doubt” definition given by the trial court, this Court cannot say that,
but for this alleged error, there was a “reasonable probability” that Petitioner would not have
been convicted of third-degree murder, attempted murder, aggravated assault, and possessing an
instrument of crime. The trial court’s recitation of the Commonwealth’s burden to prove guilt
beyond a reasonable doubt was extensive, as described above. The particular description of
reasonable doubt requiring the jury to consider “refraining” from taking a particular action rather
than “hesitating” from taking it, was unlikely to matter much in the face of a complete and
comprehensive instruction on the Commonwealth’s burden of proof. As such, this Court finds

28

there is no reasonable likelihood of a result other than the underlying conviction had trial counsel
objected to the language used by the trial court as to the Commonwealth’s burden to prove
Petitioner’s guilt beyond a reasonable doubt.
Objection Nine (pp. 51-55) – Magistate Judge’s Failure to Hold an Evidentiary Hearing
In his final objection, Petitioner argues that the Magistrate Judge erroneously concluded
that Petitioner’s counsel was not ineffective, without holding an evidentiary hearing. Petitioner
contends that a hearing is necessary to determine whether counsel’s alleged failures were the
result of reasonable, strategic legal decisions. This Court disagrees.
It is well-settled that a district court is not required to hold an evidentiary hearing on a
prisoner’s habeas claims, including claims for ineffective assistance of counsel. Palmer v.
Hendricks, 592 F.3d 386, 392-93 (3d Cir. 2010). The decision to hold such an evidentiary
hearing is discretionary with the district judge. Schriro v. Landrigan, 550 U.S. 465, 468 (2007).
Moreover, a federal habeas court is barred from holding an evidentiary hearing unless the
petitioner was either diligent in his attempt to develop a factual basis for his claim in the state
court proceedings or he satisfies the criteria set forth in AEDPA. 28 U.S.C. §2554(e)(2);
Palmer, 592 F.3d 386, 392 (3d Cir. 2010). In determining whether to hold an evidentiary
hearing, a federal habeas court should “consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to
federal habeas relief.” Schriro, 550 U.S. at 474. “[I]f the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.” Id. at 474. With respect to evidentiary hearings on ineffective assistance
of counsel claims, the Third Circuit stated:
We note that evidentiary hearings regarding counsel’s strategy will
not be required in all cases, as the objective reasonableness inquiry

29

may obviate the need for such a hearing. Similar to instances in
which a court disposes of an ineffective assistance claim by
analyzing the prejudice prong without considering whether
counsel’s performance was deficient, it is appropriate for a court to
dispose of a case in which conduct is objectively reasonable
without considering counsel’s strategy. See Strickland, 466 U.S. at
697, 104 S. Ct. 2052 (“[A] court need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”). Put
differently, no hearings as to counsel’s strategy are necessary in
cases in which the conduct challenged is objectively reasonable, as
courts can simply reject the claims on reasonableness grounds. Cf.
McCoy, 410 F.3d at 134 (discussing whether a hearing is necessary
in the context of the federal custody habeas section, 28 U.S.C.
§2255).
Thomas v. Varner, 428 F.3d 491, 501 n.10 (3d Cir. 2005).
Here, as set forth above and in the R&R, in rejecting each of Petitioner’s ineffective
assistance of counsel claims, the Magistrate Judge correctly determined that Petitioner had failed
to meet the Martinez standard by showing a “substantial” claim and/or failed to meet both prongs
of the applicable Strickland.

Under Strickland, a petitioner must show that counsel’s

performance was objectively deficient and that this deficient performance prejudiced the defense.
466 U.S. at 687. In addition, “judicial scrutiny of a counsel’s performance must be highly
deferential” and “every effort [must] be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. To succeed, “a defendant must overcome the
‘presumption that, under the circumstances, the challenged action might be considered sound
trial strategy.’” Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689).
This Court finds that no error was committed by the Magistrate Judge in finding that trial

30

counsel’s challenged decisions were objectively apparent and reasonable on the existing record.
As such, no evidentiary hearing was necessary.
Certificate of Appealability
Procedurally, at the time of a final order denying a petition under 28 U.S.C. §2254, the
court must determine whether to issue a certificate of appealability. A certificate of appealability
should issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. §2253(c)(2). To satisfy this burden, the petitioner must show
“that a reasonable jurist would find the district court’s assessment of the constitutional claims to
be debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Notwithstanding this
Court’s above-analysis and conclusions, this Court finds that reasonable jurists might disagree
with this Court’s conclusion with respect to Petitioner’s ineffective assistance of counsel claim
premised on trial counsel’s failure to object to the trial court’s jury instruction on reasonable
doubt (Claim IV). Therefore, a certificate of appealability will be issued on this claim only.
Because reasonable jurists would not debate this Court’s disposition of Petitioner’s other claims,
a certificate of appealability is denied as to the other claims.
CONCLUSION
For the reasons stated herein, Petitioner’s objections to the Report and Recommendation
are overruled.

Consequently, the Report and Recommendation submitted is approved and

adopted, and Petitioner’s pro se petition for a writ of habeas corpus is denied.

However, as

discussed above, this Court finds that reasonable jurists could disagree as to this Court’s
resolution of Petitioner’s claim for ineffective assistance of counsel premised on trial counsel’s
failure to object to the trial court’s jury instruction on reasonable doubt (Claim IV). Therefore,
this Court will issue a certificate of appealability on this claim. Because reasonable jurists would

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not debate this Court’s disposition of Petitioner’s other claims, a certificate of appealability is
denied as to these other claims. An Order consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.

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