THOMASON v. PITKINS et al

Filing 48

ORDER THAT PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED; THE REPORT AND RECOMMEDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEA CORPUS IS DENIED WITH PEJUDICE; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILTY; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 11/2/16. 11/2/16 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTHONY THOMASON
v.
DAVID VARANO, et al.

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CIVIL ACTION

No. 14-4039

MEMORANDUM ORDER
DITTER, J.

November 2, 2016

Upon consideration of the pro se petition for a writ of habeas corpus, the
Commonwealth’s Response, the Report and Recommendation of United States Magistrate
Judge Henry S. Perkin, Petitioner’s counseled objections, and de novo review of the
record, I make the following findings and reach the following conclusions:
1.

Petitioner Anthony Thomason filed a pro se petition for writ of habeas
corpus on June 30, 2014, attacking his 2006 conviction for first degree
murder. On July 11, 2016, Judge Perkin issued a Report and
Recommendation concluding that Thomason’s petition should be dismissed
and denied because his claims were procedurally defaulted and/or meritless.
Now represented by counsel, Thomason has filed objections. arguing that
he is entitled to a new trial because he was not represented by counsel of his
choice at trial in violation of the Sixth Amendment, see United States v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006), and that Judge Perkin erred in
concluding this claim was procedurally defaulted. He also contends that
Judge Perkin erred in finding no merit to his claims of ineffective assistance
of trial counsel.

2.

I write primarily to address Thomason’s objection regarding Judge Perkin’s
conclusion that his choice of counsel claim was procedurally defaulted.1 A

1

This claim is based on the fact that Thompson retained Kathleen Martin, Esquire, as his
attorney, but that he had in fact been represented by Attorney Martin’s husband and law partner,
Robert J. Levant, Esquire. In his objections, Thomason argues that Judge Perkin found his Sixth

federal court, absent unusual circumstances, should not entertain a petition
for writ of habeas corpus unless the petitioner has first satisfied the
exhaustion requirement of 28 U.S.C. § 2254. A petitioner typically
exhausts his federal claims by fairly presenting each claim at each stage of
the state’s established review process. Villot v. Varner, 373 F.3d 327, 337
(3d Cir. 2004). On collateral appeal pursuant to Pennsylvania’s Post
Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. § 9541, et seq., the
Pennsylvania Superior Court declined to hear Thomason’s claim that he
was denied counsel of choice after concluding that Thomason had waived
the claim by failing to present it on direct appeal.2 See 42 Pa. C.S.A. §

Amendment claim “somehow defaulted” under Commonwealth v. Bomar, 826 A.2d 831 (Pa.
2003). See Obj. to R&R, at 6-9. Bomar held that there was an exception to the general rule in
Pennsylvania requiring a defendant to wait until collateral review to raise claims of ineffective
assistance of trial counsel. In lodging this objection, Thomason appears to conflate the legal
theory between his Sixth Amendment claim and subsequent claims of ineffective assistance of
counsel which Judge Perkin found defaulted under Bomar. See R&R, at 20-22. Because
Thomason did not present his Sixth Amendment claim as a layered claim of ineffective
assistance of counsel, Judge Perkin concluded the claim was procedurally defaulted under the
general rule of waiver found at Pa. Cons. Stat. § 9544(b). Thus, although analysis of Bomar is
relevant to the subsequent “cause and prejudice” discussion, infra, is did not provide the basis for
Judge Perkin’s conclusion that the claim was procedurally defaulted.
2

In reviewing this claim, the PCRA court stated:

[Thompson] first informed this Court that he was not represented by counsel of
his choice at the sentencing hearing in this matter, held on March 27, 2006, and at
no time subsequent to sentencing has [Thompson] raised this issue in a postsentence motion. As [Thompson] had ample time and opportunity to raise this
issue “before trial, at trial, during unitary review, on appeal, or in a prior postconviction proceeding,” this issue should be deemed waived.
Commonwealth v. Thomason, No. CP-51-CR-0500321-2004 (PCRA Ct. June 2, 2012). The
Pennsylvania Superior Court went on to state:
The record of the sentencing hearing confirms that [Thompson] expressed his
dissatisfaction with the fact that Attorney Levant represented him at trial instead of
Attorney Martin. See N.T. Sentencing Hearing, 3/27/06, at 8. The court informed
[Thompson] that he could raise the issue on appeal, yet [Thompson] failed to do so. See
id. Consequently, we agree with the PCRA court that [Thompson] has waived the
contention that his constitutional right to counsel was violated.
2

9544(b).
3.

By failing to satisfy Pennsylvania’s state procedural rules, Thomason
forfeited his right to appellate consideration of his claim in the state courts.
Sistrunk v. Vaughn, 96 F.3d 666, 674 (3d Cir. 1996). Because the state
court’s finding of waiver is based on an established state rule of law
independent of the his federal claim and adequate to support the refusal,
federal habeas review is barred absent a finding of “cause and prejudice”
for the procedural default or demonstration that a “miscarriage of justice”
will occur absent review. Coleman v. Thompson, 501 U.S. 722, 729 (1991);
Sistrunk, 96 F.3d at 673; Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir.
2004). The Supreme Court has delineated what constitutes “cause” for the
procedural default: the petitioner must “show that some objective factor
external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000)
(citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). With regard to the
prejudice requirement, the habeas petitioner must prove “‘not merely that
the errors at . . . trial created a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.’” Id. at 193 (citing Carrier, 477 U.S. at
494). This standard essentially requires the petitioner to show he was
denied “fundamental fairness” at trial. Id.

4.

Thomason argued on PCRA appeal that his default was due to counsel’s
failure to present his Sixth Amendment choice of counsel claim on direct
appeal; however, the Pennsylvania Superior Court denied this claim on the
grounds that Thompson failed to adequately develop it. Commonwealth v.
Thomason, No. 3236 EDA 2011, at 3-5 (Pa. Super. Dec. 20, 2013)
(Thomason “baldly asserts that Attorney Levant was unprepared for trial
and ‘never saw [Thomason] prior to trial.’ . . . However, he does not
elaborate on how Attorney Levant’s conduct prejudiced him”). Because
Thomason failed to properly present his claim of ineffective assistance of

Commonwealth v. Thomason, No. 3236 EDA 2011, at 4 (Pa. Super. Dec. 20, 2013). Surely,
Thomason knew the attorney he hired was not the attorney who appeared each day at trial. He
could have and should have objected at that time. However, he waited until the outcome of trial
was against him to complain to the court - when the court was unable to do anything about it.
Nevertheless, the court advised him to raise the issue on appeal, not as an ineffective assistance
of counsel claim, but as a denial of his choice of counsel. He failed to do so. This claim is
waived.
3

direct appellate counsel to the Pennsylvania state court, it cannot be used to
establish “cause” for his default of the claim. Edwards v. Carpenter, 529
U.S. 446, 453 (2000).
5.

Thomason also argues that ineffective assistance of PCRA counsel can be a
basis upon which to establish cause in order to excuse his procedural
default. Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272
(2012). As Judge Perkin pointed out, however, Thomason’s reliance on
Martinez is misplaced. In general, the Constitution does not dictate a
standard of attorney effectiveness in a post-conviction, collateral attack.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). While the Supreme
Court held that certain deficiencies in representation on collateral appeal
may provide the opportunity for habeas review in the context of procedural
default, this case does not set forth the criteria to establish cause on these
grounds. In Martinez, the Supreme Court held that “[w]here, under state
law, claims of ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding, [i.e., a collateral proceeding that
provides the first occasion for a defendant to raise a claim that trial counsel
was ineffective,] a procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” Id. at 1320. In Thomason’s case, Martinez
does not apply because at the time of his appeal, defendants were permitted
to present ineffective assistance of counsel claims on direct appeal pursuant
to Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003). Indeed, counsel did
present a claim of trial counsel’s ineffectiveness on direct appeal.3 Because
his PCRA appeal was not the first occasion for Thomason to present a claim
of ineffective assistance of trial counsel, Martinez does not apply.4

6.

In the alternative, if the petitioner fails to demonstrate cause and prejudice
for the default, the federal court may also consider a defaulted claim if the

3

On direct appeal, Thomason claimed that trial counsel was ineffective for not arguing to
the jury during his closing argument that it could find his client guilty of voluntary manslaughter.
4

As previously discussed, Thomason argues that the Pennsylvania Supreme Court
limited the scope of Bomar in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013); however, the
Holmes case post-dated Thomason’s trial and direct appeal. Because Thomason was entitled to
present his ineffectiveness claim on direct appeal, and he did so, his PCRA petition was not his
first opportunity to present his ineffectiveness claim, thus Martinez does not apply.
4

petitioner can demonstrate that failure to consider the claim will result in a
fundamental miscarriage of justice. Coleman, 501 U.S. at 748. In order to
satisfy the fundamental miscarriage of justice exception, the Supreme Court
requires that the petitioner show that a “constitutional violation has
probably resulted in the conviction of one who is actually innocent.”
Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray v. Carrier, 477
U.S. 478, 496 (1986)). To satisfy the “actual innocence” standard, a
petitioner must show that, in light of new evidence, it is more likely than
not that no reasonable juror would have found him guilty beyond a
reasonable doubt. Schlup, 513 U.S. at 327.
7.

Thomason has failed to establish a miscarriage of justice because he has not
set forth new evidence establishing his actual innocence.

8.

As in his other objections, Thomason’s arguments regarding the denial of
his claims on their merits simply rehash the arguments he presented to, and
which were rejected by, Judge Perkin. The Report and Recommendation
provides a well reasoned analysis of the facts and law. Consequently, I find
no reason to re-litigate these issues.

Therefore, I HEREBY ORDER that:
1.

Petitioner’s objections to the Report and Recommendation are overruled.

2.

The Report and Recommendation is APPROVED and ADOPTED.

3.

The petition for a writ of habeas corpus is DENIED WITH PREJUDICE.

4.

There is no probable cause to issue a certificate of appealability.

5.

The Clerk of Court shall mark this case closed for statistical purposes.

/s/ J. William Ditter, J.
J. WILLIAM DITTER, JR., J.

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