DAVIS v. WETZEL et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 1/20/17. 1/20/17 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN E. WETZEL, et al.
NITZA I. QUIÑONES ALEJANDRO, J.
JANUARY 20, 2017
On July 8, 2014, Petitioner Eli Davis (“Petitioner”), incarcerated in the State Correctional
Institution in Frackville, Pennsylvania, filed a counseled petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, averring that his constitutional due process and confrontation
rights were violated by the ineffective assistance of trial counsel and the admission of certain
evidence provided by Commonwealth witnesses Assistant District Attorney Carlos Vega,
Philadelphia Police Officer Andrew Jericho, and Kalil Sephes at trial. [ECF 1]. By Order dated
July 21, 2014, issued in accordance with Title 28 U.S.C. § 636(b) and Local Civil Rule
72.1.IV(c), the Honorable Mitchell S. Goldberg referred the habeas corpus petition to United
States Magistrate Judge Marilyn Heffley (“the Magistrate Judge”), for a Report and
Recommendation (“R&R”).1 [ECF 2]. On September 30, 2015, the Magistrate Judge issued an
R&R, which recommended that the habeas corpus petition be denied. [ECF 11]. Petitioner filed
timely objections to the R&R. [ECF 13]. Thus, this matter is ripe for a de novo determination of
the objections to the report.
By Order dated March 29, 2016, this matter was reassigned to the undersigned. [ECF 15].
After a thorough and independent review of the state court record, the habeas corpus
petition, the R&R, and Petitioner‟s specific objections, 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.
On January 28, 2008, following a jury trial before the Honorable Shelley Robins New of
the Court of Common Pleas of Philadelphia County, Petitioner was convicted of first-degree
murder2 and a violation of the Uniform Firearms Act3 for the shooting death of Kareem Sephes
(“Sephes”). That same day, Petitioner was sentenced to life imprisonment for the murder
conviction and to a concurrent term of two-and-a-half to five years for the firearms conviction.
The factual background and procedural history underlying Petitioner‟s request for habeas
relief are aptly described in both the R&R and the Superior Court‟s opinion denying Petitioner‟s
direct appeal. The evidence underlying Petitioner‟s convictions was summarized by the Superior
Court as follows:
On November 7, 2005, around 8:00 p.m., Kareem Sephes [hereinafter
“Sephes”] and [Petitioner] got into a fistfight. Sephes was sixteen years old at the
time and [Petitioner] in his twenties. There was evidence indicating the fight
started over comments made at an earlier fight between youngsters in the
neighborhood. A number of people gathered around the fight, including
Kareem‟s twin brother, Kalil Sephes [hereinafter “Kalil”], Hakim Price
[hereinafter “Price”], Lamar Robinson [hereinafter “Robinson”], and Dominique
Taylor [hereinafter “Taylor”]. Although younger than [Petitioner], Sephes
apparently got the better of Petitioner in the fight. Another person joined in the
fight, hitting Sephes. Since most of the people surrounding the fight were friends
of Sephes, this provoked a free-for-all with the person who intervened getting
knocked down and stomped.
As the fistfight wound down, [Petitioner] produced a handgun. [As people
fled,] Petitioner took aim at the fleeing Sephes, and fired multiple shots. One of
As defined by 18 Pa. Cons. Stat. Ann. § 2501.
As defined by 18 Pa. Cons. Stat. Ann. § 6106.
those shots struck Sephes in the back [. . .]. The police arrived on the scene very
quickly and, rather than wait for an ambulance, transported Sephes to the hospital
in a police car. Sephes died shortly thereafter.
Price, Robinson, Taylor, and Kalil all gave statements to the police
describing what happened. Price, Robinson, and Kalil identified [Petitioner] from
a photographic lineup. Taylor never identified the shooter other than to say it was
the same person fighting Kareem Sephes. Kalil testified at the preliminary
hearing, gave an account of the fight and the shooting, and that he identified
[Petitioner] as the shooter from the lineup and in court.
Based upon the identifications provided by the witnesses, the police
obtained an arrest warrant for [Petitioner], who was tracked down in New Jersey.
On February 2, 2006, when police arrived at the second-floor apartment where
Petitioner was staying, [Petitioner] jumped out of a bedroom window and
attempted to flee. He was caught a short time later near the banks of the Newton
Lake. Petitioner was extradited to Philadelphia where he stood trial.
[At trial,] Price and Robinson “went south” and denied making statements
to the police or identifying Petitioner as the gunman. Kalil Sephes apparently fled
just prior to the trial and could not be located. Due to his unavailability, Kalil‟s
preliminary hearing testimony, wherein he identified [Petitioner] as the person
who was fighting his brother and as the gunman, was read into the record. In a
“blurt out” statement made during the preliminary hearing, [Petitioner] admitted
to being the person fighting Kareem Sephes, but denied shooting him.
At trial, Assistant District Attorney Carlos Vega testified regarding his
interview with Price the night before, which disputed Price‟s trial testimony and
that Price feared testifying. Police Officer Andrew Jericho testified that Price
spoke to him at the scene and, at the time, was very upset, jumping up and
down, screaming, “they shot my boy.” After settling down a bit, Price then told
the officer what he had witnessed.
See Commonwealth v. Davis, 560 EDA 2008, slip op. at 2-4 (Pa. Super. Ct. June 12, 2009).
Petitioner timely filed a direct appeal of his conviction to the Pennsylvania Superior
Court, in which he argued that insufficient evidence was presented to support his conviction, and
that the trial court made numerous erroneous evidentiary rulings. The appeal was denied.4
On June 12, 2009, the Superior Court rejected Petitioner‟s arguments, and affirmed the trial
court‟s judgment and sentence. On June 10, 2010, the Pennsylvania Supreme Court denied Petitioner‟s
petition for allowance of appeal.
On March 15, 2011, Petitioner filed a timely petition pursuant to Pennsylvania‟s Post
Conviction Relief Act (“PCRA”), alleging that trial counsel was ineffective in failing to request a
complete voluntary manslaughter instruction and, thus, his Sixth Amendment rights under the
United States Constitution were violated.5 The PCRA court dismissed the petition without a
hearing on the basis that the petition presented no meritorious claims or genuine issues of
Petitioner timely appealed, and on August 1, 2012, the PCRA court filed its Rule 1925(a)
opinion which affirmed the dismissal of the PCRA petition on the basis that Petitioner‟s
ineffective assistance of counsel claim lacked merit. On May 17, 2013, the Superior Court
affirmed the dismissal of Petitioner‟s PCRA petition. Petitioner‟s application for reargument en
banc was denied on July 10, 2013. Thereafter, Petitioner filed a petition for allowance of appeal
with the Supreme Court of Pennsylvania, which was denied.
On July 8, 2014, Petitioner filed his habeas corpus petition. In the habeas petition,
Petitioner asserts two claims: (1) that his trial counsel was constitutionally ineffective for failing
to demand that the trial court instruct the jury on imperfect self-defense; and (2) that the trial
court‟s decision to allow the prosecution to introduce certain testimony from Commonwealth
witnesses Vega, Jericho and Kalil Sephes violated his Sixth Amendment right to confrontation.
In the R&R, the Magistrate Judge comprehensively addressed Petitioner‟s habeas claims, and
recommended that the petition be denied.
Petitioner timely filed objections to the R&R, and argued that the Magistrate Judge
incorrectly concluded that (1) Petitioner‟s trial counsel was not ineffective, despite counsel‟s
The Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541-9546, provides the
exclusive means by which convicted individuals in Pennsylvania can collaterally challenge their
convictions in state court after exhausting or failing to assert their direct appeal rights. See 42 Pa. Cons.
Stat. § 9542; see also McCabe v. Pennsylvania, 419 F. Supp. 2d 692, 695 (E.D. Pa. 2006) (stating criteria
failure to challenge the trial judge‟s refusal to instruct the jury on the “mistaken belief,”
otherwise known as the “imperfect self-defense,” prong of the lesser-included offense of
voluntary manslaughter; and (2) that the trial court did not deprive Petitioner of his rights under
the Fourteenth and Sixth Amendments of the United States Constitution when, over the
objections of counsel, the court admitted (a) the trial testimony of Vega and Jericho, and (b) the
preliminary hearing testimony of Kalil Sephes.
In order to seek federal habeas corpus relief, 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 have “fairly presented” each
habeas 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). 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
Coleman v. Thompson, 501 U.S. 722, 729, 731-32 (1991).
If one or more of
petitioner‟s federal habeas claims are procedurally defaulted, “federal habeas review of [the
procedurally defaulted claim] is barred unless the prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750.
If a claim has been fully exhausted and is not procedurally defaulted, a habeas corpus
petition filed by a state prisoner pursuant to § 2254 may only be granted if the state court‟s
adjudication of the claim:
(1) resulted in a decision that was contrary 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).
To establish that the state court decision was “contrary to” federal law, “it is not
sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is
more plausible than the state court‟s; rather, the petitioner must demonstrate that Supreme Court
precedent requires the contrary outcome.” Matteo v. Superintendent, SCI Albion, 171 F.3d 877,
888 (3d Cir. 1999) (emphasis in original). Similarly, a federal court may only find a state court
decision to be an “unreasonable application” of federal law if the decision, “evaluated
objectively and on the merits, resulted in an outcome that cannot reasonably be justified under
existing Supreme Court precedent.” Id. at 890.
Factual issues determined by a state court are presumed to be correct and the petitioner
bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1). “This presumption of correctness applies to factual determinations of both state trial
and appellate courts.” Lewis v. Horn, 581 F.3d 92, 111 (3d Cir. 2009). Consequently, a habeas
petitioner “must clear a high hurdle before a federal court will set aside any of the state court‟s
factual findings.” Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001). That is, “the
requirements of 2254(d) are difficult to meet,” Johnson v. Williams, 133 S. Ct. 1088, 1091
(2013), as this section “sharply limits the circumstances in which a federal court may issue a writ
of habeas corpus to a state prisoner.” Id. at 1094.
Finally, when considering objections to a magistrate judge‟s report and recommendation,
a district court must conduct a de novo review of only the contested portions of the R&R. Goney
v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984); see also Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d
Cir. 1989), provided the objections are both timely and specific. Goney, 749 F.2d at 6. In
conducting its de novo determination, 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, 67576 (1980); Goney, 749 F.2d at 7. Objections which merely rehash an argument presented to and
considered by a magistrate judge are not entitled to de novo review. Becker v. Tennis, 2011 WL
2550544, at *1 n.3 (E.D. Pa. June 23, 2011) (declining to address contentions included in
petitioner‟s objections, concluding that they are “nothing more than a restatement of the
underlying claims contained in his petition”) (citing Morgan v. Astrue, 2009 WL 3541001, at *3
(E.D. Pa. Oct. 30, 2009)); see also Nghiem v. Kerestes, 2009 WL 960046, at *1 n.1 (E.D. Pa.
Apr. 3, 2009) (declining to engage in additional review of objections where the objections
merely re-articulated all the claims and theories for relief that were addressed and dismissed by
the magistrate judge).
With these principles in mind, this Court will address Petitioner‟s two objections to the
R&R. At the outset, this Court notes that Petitioner‟s objections merely rehash the same
arguments he made in his habeas petition, and, as such, are not entitled to de novo review.
However, in the interest of judicial economy, this Court will address each objection in turn.
In the Petitioner‟s first objection, Petitioner contends that the Magistrate Judge erred in
finding that trial counsel was not ineffective for not objecting or insisting that the trial court
charge the jury with a complete voluntary manslaughter instruction, including the “mistaken
belief,” otherwise known as the “imperfect self-defense,” prong of the offense. This argument
was raised in Petitioner‟s PCRA petition, and rejected by both the PCRA court and the Superior
Court, which held that a jury instruction on an imperfect self-defense was not warranted, in part,
because Petitioner was directly responsible for provoking the initial conflict with the victim and
escalating it. Petitioner argues, however, that these conclusions were based on an unreasonable
determination of the facts in light of the testimony presented at trial and, therefore, pursuant to
the standards articulated in 28 U.S.C. § 2254(d)(2), his petition should be granted.
When addressing the merits of ineffective assistance of counsel claims on habeas review,
the “clearly established federal law” applicable to such claims is the familiar two-pronged
inquiry articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
Williams v. Taylor, 529 U.S. 362, 363 (2000). Thus, to sustain an ineffectiveness assistance of
counsel claim, a petitioner must show that counsel‟s performance was objectively deficient, and
that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish
that counsel was deficient requires the petitioner to show that “counsel made errors so serious
that counsel was not functioning as the „counsel‟ guaranteed the defendant by the Sixth
Amendment.” Id. To show prejudice, the petitioner must make 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.”). However, a 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 V.I. v. Weatherwax, 77 F.3d 1425, 1431 (3d Cir. 1996).
Under the Strickland standard, “counsel cannot be held ineffective for failing to raise a claim that
is without merit or futile.” Boston v. Mooney, 2015 WL 6674530, at *12 (E.D. Pa. Jan. 9, 2015)
(internal citations omitted).
Where the state court has denied an ineffectiveness claim on its merits, a habeas
petitioner must show the state court‟s decision was “objectively unreasonable.” Renico v. Lett,
559 U.S. 766, 773 (2010); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (review of
ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal
“[I]t is not enough to convince a federal habeas court that, in its independent
judgment, the state-court decision applied Strickland incorrectly.” Bell v. Cone, 535 U.S. 685,
Here, Petitioner advances no argument in either his objections or habeas petition, nor can
he, that the Superior Court decision affirming the denial of PCRA relief is contrary to extant
United States Supreme Court precedent, or that the test applied by the state court is inconsistent
with the federal test established in Strickland and its progeny.
In its ruling dismissing
Petitioner‟s PCRA petition, the PCRA court correctly considered and applied the governing test
for ineffective assistance of counsel claims announced in Commonwealth v. Pierce, 527 A.2d
973 (Pa. 1987) (“the Pierce test”). The Third Circuit Court of Appeals has determined that the
Pierce test conforms to established federal law and is “not contrary to the Strickland test.”
Henderson v. DiGugliemo, 138 F. App‟x 463, 468 (3d Cir. 2005); Werts, 228 F.3d 178, 203 (3d
Cir. 2000) (recognizing that the Pierce test as materially identical to the Strickland test). Hence,
the PCRA Court‟s decision, which was affirmed by the Superior Court, is not “contrary to” the
test established in Strickland.
However, this Court‟s analysis is not complete as it must now determine whether the
Superior Court‟s decision reflects an unreasonable application of the Strickland test. In this
regard, Petitioner “must demonstrate that „the state court decision evaluated objectively and on
the merits, resulted in an outcome that cannot reasonably be justified under Strickland.‟” Werts,
228 F.3d at 204. In addressing Petitioner‟s claim that counsel failed to demand that the jury be
instructed on imperfect self-defense,6 the PCRA court found that the evidence presented at trial
demonstrated that it was Petitioner, and not the victim, who started the conflict, escalated it by
brandishing a handgun, and then shot at the fleeing victim. The PCRA court further found that
trial counsel had requested an imperfect self-defense instruction and the trial court properly
refused. The PCRA court correctly concluded that trial counsel was under no obligation to press
further for the instruction. Under these circumstances, Petitioner suffered no prejudice as a result
of counsel‟s failure to demand an unfounded jury charge.
Following a review of the entire record, this Court concludes that the Magistrate Judge
thoroughly discussed and correctly rejected Petitioner‟s ineffective assistance of counsel claim
on this ground. Under Pennsylvania law, a defense of imperfect self-defense exists where a
defendant sincerely, but unreasonably, “believed himself to be in imminent danger of death or
Under Pennsylvania law, a defendant charged with murder may be convicted of voluntary
manslaughter, a lesser included offense, “if at the time of the killing he believes the circumstances to be
such that, if they existed, would justify the killing under Chapter 5 of this title, but his belief is
unreasonable.” 18 Pa. Cons. Stat. § 2503(b). The so-called imperfect self-defense voluntary
manslaughter requires that the defendant have a subjective belief that the circumstances justify the killing,
although that belief is objectively unreasonable. Commonwealth v. Carter, 466 A.2d 1328, 1332 (Pa.
1983). The justifications under Chapter 5 of Title 18 include both self-defense, 18 Pa. Cons. Stat. § 505,
and defense of another, 18 Pa. Cons. Stat. § 506.
serious bodily harm [at the time of the victim‟s death] and that it was necessary to use deadly
force against the victim in order to prevent such harm.” Commonwealth v. Washington, 692
A.2d 1024, 1028 (Pa. 1997); 18 Pa. Const. Stat. Ann. § 2503(b). The evidence presented at trial
showed that at the time Petitioner brandished the firearm, he was not in fear of an imminent
danger of death or serious bodily harm, as the fight was winding down. He used unreasonable
force against the unarmed, fleeing victim. Clearly, firing six shots at an unarmed man who was
running away is more force than would have been necessary for anyone to defend oneself or
another. The evidence of record cannot support a claim that Petitioner had a belief, reasonable or
unreasonable, that he was defending himself or another under existing Pennsylvania law. See
Commonwealth v. Sacco, 98 Pa. Super. 347, 350-51 (1929) (finding that a defendant‟s use of a
knife to repel a bare-fisted attacker was excessive deadly force that precluded a claim of selfdefense); Commonwealth v. Jones, 332 A.2d 464, 466 (Pa. Super. Ct. 1974) (same); see also
Commonwealth v. Coleman, 496 A.2d 1207, 1209 (Pa. Super. Ct. 1985) (finding trial court has
no obligation to give self-defense charge when evidence presented at trial showed defendant and
victim engaged in mutual combat). As noted by the PCRA court, Petitioner‟s conduct did not
meet the requirement that a defendant invoking unreasonable belief of self-defense must be
without fault in provoking or continuing the difficulty that resulted in the slaying.
Commonwealth v. Soto, 657 A.2d 40, 43 (Pa. Super. Ct. 1995).
The evidence of record
overwhelmingly established that Petitioner was directly responsible for initiating, continuing,
and escalating the conflict between him and the victim.
Since an imperfect self-defense instruction lacked evidentiary support, Petitioner cannot
show that the state courts‟ application of Strickland/Pierce standards was unreasonable. As
noted, Petitioner‟s trial counsel was under no obligation nor did counsel have grounds to object
to an instruction not given, or insist that the instruction be given. See R&R at 12; Strickland, 466
U.S. at 691; Holland v. Horn, 150 F. Supp. 2d 706, 730 (E.D. Pa. 2001) (holding that it is wellestablished that counsel cannot be ineffective for failing to raise a meritless claim). Nor has
Petitioner demonstrated that there was a reasonable probability that, but for trial counsel‟s
alleged error, the results of the proceeding would have been different. See Strickland, 466 U.S.
at 694. As such, Petitioner has not shown, as required by 28 U.S.C. § 2254(d), that the state
courts‟ rejection of his ineffective-assistance-of-counsel claim was based upon either an
unreasonable application of Strickland or an unreasonable determination of the facts in light of
the evidence presented at the trial. Accordingly, Petitioner‟s objection lacks merit and is,
Petitioner argues that the Magistrate Judge erred in concluding that the admission of
certain testimony at trial did not violate his rights of confrontation and due process of law, as
secured by the Sixth and Fourteenth Amendments. Although the basis of this objection is not
entirely clear, Petitioner appears to renew his contention that the trial court‟s admission of
testimony tendered by two Commonwealth witnesses, Assistant District Attorney Carlos Vega
and Philadelphia Police Officer Andrew Jericho, violated his constitutional due process and
confrontation rights. Because Petitioner had not previously raised this claim as one of either a
federal due process or a confrontation clause violation, but instead had argued Vega‟s and
Jericho‟s testimony was irrelevant and inadmissible hearsay, the Magistrate Judge found these
claims were procedurally defaulted. This Court agrees.
At trial, the prosecutor called as witnesses Assistant District Attorney Vega and Officer
Jericho to testify to prior out-of-court statements made by witness Price, who had implicated
Petitioner as Kareem Sephes‟ shooter. Petitioner objected to their testimony at trial, and, on
appeal, renewed his objections arguing that the admission of this testimony violated state
evidentiary rules. Nowhere in his direct appeal did Petitioner frame this claim in constitutional
terms or allege a violation of a federal constitutional right. Accordingly, Petitioner has not
exhausted these claims for the purposes of habeas review. See Picard v. Connor, 404 U.S. 270,
278 (1971) (requiring a habeas claim to be the “substantial equivalent” of that presented to the
state courts to be deemed exhausted); Ross v. Petsock, 868 F.2d 639, 641 (3d Cir. 1989)
(interpreting substantial equivalence to mean that both the legal theory and the facts on which a
federal claim rests must have been presented to the state courts); O’Halloran v. Ryan, 835 F.2d
506, 508 (3d Cir. 1987).
Further, because these specific claims were not exhausted and Petitioner can no longer
attain relief in Pennsylvania courts,7 the Magistrate Judge correctly concluded that these claims
are procedurally defaulted. See R&R at 13-14. Petitioner has neither “demonstrate[d] cause for
the default and actual prejudice as a result of the alleged violation of federal law” nor
“demonstrate[d] that failure to consider the claims will result in a fundamental miscarriage of
justice,” as is his burden. Coleman, 501 U.S. at 750. Petitioner does not object to this finding,
and there appears to be no error in this portion of the R&R. Accordingly, this Court agrees with
the Magistrate Judge that these claims are procedurally defaulted.
The second prong of this objection concerns Petitioner‟s claim that the trial court violated
his due process and confrontation clause rights when it allowed the prosecution to introduce
State relief is no longer available to Petitioner on either of these claims. Under Pennsylvania law,
a PCRA petition must be filed within one year of the date the judgment of a petitioner‟s sentence becomes
final. 42 Pa. Cons. Stat. Ann. § 9545(b). Petitioner‟s sentence became final on June 10, 2010, when the
Pennsylvania Supreme Court denied his petition for allowance of appeal. Accordingly, a new PCRA
petition raising these claims would be deemed time-barred. See id.; Commonwealth v. Murray, 753 A.2d
201, 203 (Pa. 2000) (stating that the time limits under § 9545(b) are mandatory and jurisdictional in
nature, and not subject to any equitable exceptions).
Kalil Sephes‟s preliminary hearing testimony at trial.
In her R&R, the Magistrate Judge
concluded that (1) any colorable due process claim arising from the introduction of this
testimony was procedurally defaulted for the purposes of habeas review because Petitioner did
not fairly present this claim to the state courts, and (2) that Petitioner‟s confrontation clause
claim, although procedurally exhausted, lacked merit because the trial court had correctly
concluded that the introduction of Kalil Sephes‟s preliminary hearing testimony met all the
requirements of Pennsylvania Rule of Evidence 804(b)(1).
This Court agrees with the
Magistrate Judge‟s conclusions. 8
The record reveals that Petitioner fairly presented a confrontation clause claim in the state
courts although he did not explicitly reference the federal constitution or statutes.
McCandless, 172 F.3d at 261-62 (restating the four ways identified in Daye v. Attorney General
of New York, 696 F.2d 186 (2d Cir. 1982) that a habeas petitioner can fairly present, and thus
exhaust, a constitutional claim without citing the federal constitution or federal law). In his
statement of errors complained of on direct appeal, Petitioner argued that the Commonwealth
failed to prove that Kalil Sephes was unavailable and/or that Petitioner had an adequate
opportunity to cross-examine Kalil Sephes. Accordingly, although Petitioner did not explicitly
raise this error as a confrontation clause violation or “cit[e] chapter and verse of the [federal]
Constitution,” Daye, 696 F.2d at 194, Petitioner did assert his claim “in terms so particular as to
call to mind a specific right protected by the Constitution.” McCandless, 172 F.3d at 261
In his objections, Petitioner does not challenge the Magistrate Judge‟s conclusion that this due process
claim is procedurally defaulted because Petitioner did not fairly present this claim to the state courts. When no
objections are filed to a particular portion of an R&R, this Court is not required to review the findings made in that
portion de novo. See Goney, 749 F.2d at 6 (holding that a petitioner is required to file “timely and specific
objections” to an R&R to “obtain a de novo determination of a magistrate‟s findings by a district court”); Thomas v.
Arn, 474 U.S. 140, 151-52 (1985) (holding that when no objections are filed to a magistrate judge‟s report and
recommendation, a district court has discretion to review that report as it deems appropriate). This Court has
reviewed the Magistrate Judge‟s findings, and has found no error with the Magistrate Judge‟s conclusion that
Petitioner‟s due process claims are procedurally defaulted. Accordingly, this portion of the R&R is adopted without
further analysis by this Court.
(quoting Evans v. Ct. of Common Pleas, Del. Cty., Pa., 959 F.2d 1227, 1232 (3d Cir. 1992)).
Clearly, Petitioner‟s challenge was more sweeping than simply opposing a state law evidentiary
ruling. When ruling on Petitioner‟s challenge to the use and introduction of the preliminary
hearing testimony, the state court did not explicitly indicate that it was evaluating a federal
confrontation clause claim. However, the court‟s reliance on state court precedent, notably
Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992), that thoroughly discusses the
introduction of a now-unavailable witness‟s prior testimony as offensive to the constitutional
right to confrontation suggests that the state court was aware that Petitioner was raising a federal
claim. Accordingly, this Court agrees with the Magistrate Judge‟s conclusion that Petitioner
fairly presented this claim to the state courts, and, therefore, has exhausted his available state
remedies as to this claim.
Turning to the merits of the objection, Petitioner argues that the state court‟s finding that
Kalil Sephes was unavailable at trial was contrary to, or constituted an unreasonable application
of federal law and, therefore, warrants habeas relief. Petitioner essentially renews the same
argument made in his habeas petition—that the prosecution did not make diligent efforts to
locate Kalil Sephes before trial to establish he was unavailable and, therefore, the introduction of
his preliminary hearing testimony violated his Sixth Amendment rights.
Upon a careful review of the state court record, this Court agrees with the Magistrate Judge
that the state court‟s factual finding that Kalil Sephes was unavailable at trial is entitled to
deference under the AEDPA. In the analysis, the Magistrate Judge noted that:
[t]he Confrontation Clause of the United States Constitution allows a defendant the
right to confront the witnesses against him. U.S. Const. amend. VI. A testimonial
statement of a witness who does not appear at trial may not be admitted at trial
unless the witness is unavailable and the defendant had a prior opportunity for crossexamination. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The prosecution
must undertake a reasonable good faith effort to locate the witness before a court will
declare the witness unavailable for purposes of admitting prior testimony. Ohio v.
Roberts, 448 U.S. 56, 74-75 (1980). A defendant‟s interest in confrontation is
heightened where the absent witness is an accomplice or has a substantial reason to
cooperate with the prosecution. McCandless, 172 F.3d at 266.
Pennsylvania Rule of Evidence (“Rule”) 802 further provides that “hearsay is not
admissible except as provided by these rules, by other rules prescribed by the Pennsylvania
Supreme Court, or by statute.” Pa. R. Evid. 802. Rule 804 provides exceptions to the general
rule against hearsay; notably, to wit: a declarant is considered unavailable as a witness if the
declarant refuses to testify about a subject matter despite a court order to do so or is absent from
trial. See Pa. R. Evid. 804(2), (5). This rule further provides for the use of the prior testimony of
an unavailable witness where the party against whom it is being offered had an opportunity to
cross-examine the declarant. As the commentary to the Rule noted, in Crawford v. Washington,
541 U.S. 36 (2004), the Supreme Court, overruling its prior opinion in Ohio v. Roberts, 448 U.S.
56 (1980), interpreted the confrontation clause to prohibit the introduction of “testimonial”
hearsay from an unavailable witness against a defendant in a criminal case unless the defendant
had an opportunity to confront and cross-examine the declarant, regardless of its exception from
the hearsay rule and a limited exception thereto.
Here, the trial judge found that Kalil Sephes‟ preliminary hearing testimony met the
criteria for admission under Rule 804(b)(1), the former testimony hearsay exception.
consideration of Petitioner‟s confrontation clause claim on appeal, the Superior Court applied the
appropriate standards of Rule 804(b)(1) and summarized the diligent efforts made by the
prosecution to obtain Kalil Sephes‟ presence at trial. The Superior Court also found that there
was no indication that Petitioner was denied a full and fair opportunity to cross-examine Kalil
Sephes at his preliminary hearing before concluding that Kalil Sephes‟ preliminary hearing
testimony was properly admitted under Rule 804(b)(1). Accordingly, this Court agrees with the
Magistrate Judge‟s conclusion that the state court‟s rejection of Petitioner‟s confrontation clause
claim was neither contrary to, nor an unreasonable application of, clearly established federal law.
Petitioner‟s objection is, therefore, overruled.
For the reasons stated herein, Petitioner‟s objections to the Report and Recommendation
lack merit and are overruled. Consequently, the Report and Recommendation is approved and
adopted, and Petitioner‟s petition for a writ of habeas corpus is denied. Because reasonable
jurists would not debate the disposition of Petitioner‟s claims, a certificate of appealability is
denied.9 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
An Order consistent with this Memorandum Opinion follows.
NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.
In his motion, Petitioner asserts that “other jurists would possible feel that these issues have merit
and are deserving of review.” [ECF 13 at 1]. Petitioner does not provide any legal or factual support for
this contention. This Court, after its thorough review of the record, disagrees with Petitioner‟s contention.
Thus, Petitioner‟s motion is denied.
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