GRAY v. DELBLASO et al

Filing 23

MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 6/30/17. 6/30/17 ENTERED AND COPIES E-MAILED TO COUNSEL. (pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THOMAS GRAY
Petitioner
v.
THERESA DELBIASO, et al.
Respondents

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CIVIL ACTION
NO. 14-4902

NITZA I. QUIÑONES ALEJANDRO, J.

JUNE 30, 2017

MEMORANDUM OPINION
INTRODUCTION
Petitioner Thomas Gray (―Petitioner‖), a Pennsylvania state prisoner, filed a counseled
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he essentially asserts
claims of: ineffectiveness of trial counsel for failing to present forensic expert testimony;
violations of his due process rights by the trial judge committed when applying a presumption of
malice inference when using a deadly weapon; and ineffectiveness of appellate counsel for
failing to raise this due process violation on direct appeal. [ECF 1]. In accordance with Title 28
U.S.C § 636(b), Rule 8 of the Rules Governing Section 2254 Cases, and Local Civil Rule
72.1.IV(c), the habeas petition was referred to United States Magistrate Judge Carol Sandra
Moore Wells (the ―Magistrate Judge‖ or ―Magistrate Judge Wells‖) for a Report and
Recommendation (―R&R‖). [ECF 2]. On December 18, 2015, Magistrate Judge Wells issued a
well-reasoned R&R, which addressed Petitioner‘s claims, and recommended that the habeas
petition be denied. [ECF 13]. Thereafter, Petitioner filed timely objections to the R&R, [ECF
20]. This matter is, therefore, ripe for a de novo review and determination of the specific
objections to the R&R.

After a thorough and independent de novo review of the contested portions of the R&R,
and the state court record, for the reasons stated herein, Petitioner‘s objections are overruled, the
R&R is approved and adopted, the petition for a writ of habeas corpus is denied.
BACKGROUND
On September 7, 2005, following a bench trial before the Honorable M. Teresa Sarmina
in the Philadelphia County Court of Common Pleas, Petitioner was convicted of murder in the
third degree, carrying a firearm without a license, and possession of an instrument of crime. The
facts and procedural history underlying Petitioner‘s conviction were summarized by the Superior
Court, adequately quoted in the R&R and, therefore, will not be recited in their entirety except
when necessary to address Petitioner‘s objections. Pertinent to Petitioner‘s objections are the
facts leading to the altercation between Petitioner and Jerold Foushee that resulted in Foushee‘s
death; to wit:
On April 17, 2004, believing that [Petitioner] would be gone for the night,
at around 10:00 p.m., Robinson called Foushee and invited him to her home to
watch a movie. Foushee arrived around 2:00a.m., at Robinson‘s home; the pair
ate and watched television together in Robinson‘s bedroom. While sitting on the
bed near the bedroom window, Robinson heard [Petitioner] speaking with another
person outside of her house. Shortly thereafter, [Petitioner] called Robinson on
her phone; she did not pick up. Eventually, the door to the apartment building
opened and [Petitioner] then knocked on Robinson‘s door. Again, Robinson did
not answer. Using a key that Robinson had not given to him, [Petitioner] opened
the door to the apartment. As [Petitioner] entered the apartment, Robinson was
lifting herself from her bed and pulling pants on over her pajamas. [Petitioner]
walked straight to Robinson‘s bedroom, where he found Foushee seated, fully
clothed, on Robinson‘s bed; [Petitioner] began yelling and cursing at Foushee.
[Petitioner] pulled out a gun and pointed it at Foushee‘s head. Robinson got
between [Petitioner] and Foushee and pleaded, ―Don‘t do this. It‘s not right.
Think of your daughter.‖ After [Petitioner] brandished his gun, Foushee stayed
seated on the bed and told [Petitioner], ―I don‘t want any trouble.‖ Foushee did
not threaten or taunt [Petitioner]. Foushee stood up from the bed and, as he
walked towards the door, the two men began to fight. [Petitioner] and Foushee
grappled with one another in the doorway to the bedroom; as they were entangled,
they moved into the hallway. During the fight, [Petitioner] continued to hold his
gun in his hand. While they were out of Robinson‘s sight, she heard a single
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gunshot and immediately thereafter saw [Petitioner] sprint out of the apartment.
Robinson called for help; the paramedics came and took Foushee to Einstein
Hospital, where he was pronounced dead at 3:50 a.m.
Procedurally, following his conviction, Petitioner was sentenced to seventeen to forty
years of confinement for the third-degree murder conviction, a consecutive sentence of one to
five years for carrying a firearm without a license, and a concurrent term of nine months to five
years on the possession of an instrument of a crime conviction. On October 18, 2005, Petitioner
filed post-sentence motions, which were denied by operation of law on February 21, 2006.
Petitioner filed a timely notice of appeal and, on October 29, 2007, the Superior Court affirmed
his convictions, but vacated the sentence and remanded the matter for resentencing.
On June 18, 2013, Petitioner filed a timely appeal to the Pennsylvania Superior Court.
On July 9, 2014, said Court affirmed the denial of Petitioner‘s PCRA petition. In the opinion,
the Court summarized Petitioner‘s direct and collateral appeals history as follows:
On January 30, 2008, [Petitioner] filed a Petition for Allowance of
Appeal, which [the Pennsylvania] Supreme Court denied on
August 22, 2008. On December 2, 2008, [the trial court] . . .
[re]sentenced [Petitioner] to a cumulative term of eighteen to forty
years of confinement, to be followed by ten years of reporting
probation. On December 11, 2008, Petitioner filed post-sentence
motions, which [the trial court] denied on December 30, 2008.
[Petitioner] filed a timely notice of appeal and, on June 25, 2010,
the Superior Court affirmed [Petitioner‘s] judgments of sentence.
Petitioner filed for allocator, which [the Pennsylvania] Supreme
Court denied on May 27, 2011. Accordingly, [Petitioner‘s]
judgment of sentence became final on August 25, 2011.
On July 9, 2012, Petitioner filed a timely counseled petition [for
collateral relief pursuant to the Post Conviction Relief Act (the
―PCRA‖), 42 Pa. Cons. Stat. Ann. §§ 9541-46]. 1
The
1

The PCRA provides the exclusive means by which a convicted individual in Pennsylvania can
collaterally challenge their conviction in state court after exhausting or failing to assert his or her direct
appeal rights. See 42 Pa. Cons. Stat. Ann. § 9542; see also McCabe v. Pennsylvania, 419 F. Supp. 2d
692, 695 (E.D. Pa. 2006) (stating criteria for eligibility).

3

Commonwealth filed a [m]otion to [d]ismiss, to which Petitioner
responded on February 20, 2013. After considering the pleadings
and conducting an independent review, on April 26, 2013, [the trial
court] sent Petitioner notice pursuant to [Pennsylvania Rule of
Criminal Procedure 907 (―907 Notice‖)] of its intent to deny and
dismiss his petition. Petitioner did not respond to [the trial court‘s]
907 Notice. On May 24, 2013, [the trial court] denied and
dismissed [Petitioner‘s PCRA] Petition.
See Commonwealth v. Gray, No. 1776 EDA 2013, at 1-4 (Pa. Super. Ct. July 9, 2014) (quoting
Commonwealth v. Gray, No. 1776 EDA 2013, at 1-3 (Phila. Cnty. Ct. of Cm. Pl. Nov. 27,
2013)).
On March 31, 2015, Petitioner filed the underlying counseled habeas petition pursuant to
28 U.S.C. §2254.
LEGAL STANDARDS
Generally, to obtain relief on a writ of habeas corpus, a petitioner must allege, inter alia,
that his/her confinement or custody is the result of a violation of the United States Constitution
or laws of the United States.2 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. 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 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).
2

28 U.S.C. § 2254(a).

4

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). 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. Habeas relief may not be granted under the ―unreasonable application‖
clause unless a state court‘s application of clearly established federal law was objectively
unreasonable; an incorrect application of federal law alone is not sufficient to warrant habeas
relief. See id. at 891; Lockyer v. Andrade, 538 U.S. 63, 75 (2003); see also Werts, 228 F.3d at
197. Thus, the federal court must decide whether the state court‘s application of federal law,
when evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be
justified under existing Supreme Court precedent. See Werts, 228 F.3d at 197.
A federal court may also grant habeas relief under Section 2254(d)(2) if the state court‘s
ruling rested upon ―an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.‖ 28 U.S.C. §2254(d)(2). The ―highly deferential‖ standard
articulated in §2254(d)(2) ―demands that state-court decisions be given the benefit of the doubt.‖
Cullen v. Pinholster, 563 U.S. 170, 171 (2011). A petitioner must show that the state court
verdict rested on an unreasonable determination of the evidence and that a reasonable factfinder
could not have reached a similar decision. Campbell v. Vaughn, 209 F.3d 280, 291 (3d Cir.
2000). A court must presume that the state court‘s factual findings are correct, and it is the
petitioner‘s burden to overcome this presumption by clear and convincing evidence. 28 U.S.C.

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§2254(e)(1); see also Marshall v. Lonberger, 459 U.S. 422, 435 (1983) (requiring that a federal
court show deference for state court‘s factual findings and ―inferences fairly deducible from
those facts‖). 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, 59798 (1st Cir. 2001).
In order to seek federal habeas 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 ―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). 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, 731-32 (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).
A claim is procedurally defaulted when ―a state court declined to address a prisoner‘s
federal claims because the prisoner failed to meet a state procedural requirement.‖ Coleman, 501
U.S. at 730. Federal review of the claim, however, is available if the procedural rule that the
state court applied to bar a federal claim was not ―independent‖ and ―adequate.‖ Albrecht v.

6

Horn, 485 F.3d 103, 115 (3d Cir. 2007). A state procedural rule is not adequate to bar federal
review on habeas if it was not firmly established and regularly followed by the state courts at the
time it was applied. Lark, 645 F.3d at 611. Whether a procedural rule ―was firmly established
and regularly applied is determined as of the date the default occurred, and not as of the date the
state court relied on it, because a petitioner is entitled to notice of how to present a claim in state
court.‖ Albrecht, 485 F.3d at 115.
Here, the habeas petition was referred to a Magistrate Judge who issued a R&R
recommending that the petition be denied. Petitioner filed timely objections. 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 making 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. 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

7

where the objections merely re-articulated all the claims and theories for relief that were
addressed and dismissed by the magistrate judge).
DISCUSSION
With the above principles in mind, Petitioner‘s objections will be addressed seriatim.
First Objection
In his first objection, Petitioner contends that the Magistrate Judge erred in denying his
first habeas claim and concluding that trial counsel was not ineffective for not presenting
forensic expert testimony to explain that the location of recovered bullet shell casing was
consistent with a struggle. Petitioner argues that a forensic expert would have rebutted the
testimonies of the Commonwealth‘s expert witnesses, who testified that Petitioner shot Foushee
at close range, lent credence to his legal defense theory, and supported a manslaughter
conviction. These arguments were thoroughly reviewed by the state courts and by the Magistrate
Judge and simply restate the arguments presented in Petitioner‘s habeas petition. Accordingly,
this Court need not conduct a de novo review of the contested portion of the R&R that addressed
these habeas claims. See Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (a district court need
not conduct a de novo review of the contested portions of an R&R when a party‘s objections are
―general in nature‖); see also Martinez v. Astrue, 2011 WL 4974445, at *3 (E.D. Pa. Oct. 19,
2011) (providing that ―objections which merely rehash arguments presented to and considered by
a magistrate judge are not entitled to a de novo review‖).
Notwithstanding, in the interest of judicial economy, this Court conducted a de novo
review of the objections made and the contested portions of the R&R, and finds no merit to these
objections. As noted, the state court adjudicated Petitioner‘s claim of trial counsel‘s
ineffectiveness on the merits. Thus, the state court‘s ruling may not be disturbed unless the

8

ruling was clearly contrary to, or an unreasonable application of, clearly established federal law,
or rests on an unreasonable determination of the facts in light of the evidence presented at trial.
See 28 U.S.C. §2254(d)(1)-(2).
When addressing the merits of an ineffective assistance of counsel claim on habeas
review, the ―clearly established federal law‖ is the two-pronged inquiry articulated by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To sustain an ineffectiveness
assistance of counsel claim under Strickland, a petitioner must show that counsel‘s performance
was objectively deficient, and that this deficient performance prejudiced the defense. Id. at 687.
To establish that counsel was deficient, the petitioner must 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, avoid ―the distorting
effects of hindsight,‖ and give counsel 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).
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). A court may address the prongs of Stickland in any order as both
must be satisfied to entitle a defendant to relief. See Strickland, 466 U.S. at 700 (―Failure to
make the required showing of either deficient performance or sufficient prejudice defeats the

9

ineffectiveness claim.‖); Marshall v. Hendricks, 307 F.3d 36, 115 n.49 (3d Cir. 2002) (noting
that a court may choose ―to undertake the prejudice prong first, as Strickland clearly allows‖).
Here, Petitioner objects to the Magistrate Judge‘s conclusions that: (1) the state court
reasonably applied Strickland when determining that trial counsel was not ineffective for not
hiring and/or eliciting the testimony of a forensics expert; and (2) the state court‘s determination
that Petitioner‘s ineffective assistance of trial counsel claim failed to satisfy the prejudice prong
of Strickland was based on a reasonable determination of the facts in light of the evidence
presented at trial.
As to Petitioner‘s argument that the state court‘s application of the Strickland prejudice
prong was objectively unreasonable, Petitioner is mistaken. The review of the state court records
confirms that, when resolving Petitioner‘s ineffective assistance of trial counsel claim, the
Superior Court applied the standards set forth in Strickland and in Commonwealth v. Crawley,
663 A.2d 676, 679-80 (2008), a state case used by Pennsylvania trial judges when assessing an
ineffective assistance of counsel claim predicated upon trial counsel‘s failure to call a witness.3
Consistent with Crawley, to establish that trial counsel was ineffective for failing to present a
witness, a defendant must establish, in addition to the Strickland requirements, that: (1) the
witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or
should have known of the existence of the witness; (4) the witness was available and prepared to
cooperate and would have testified on defendant‘s behalf; and (5) the absence of the testimony
prejudiced the defendant. Crawley, 663 A.2d at 680. Here, the Superior Court, in assessing
3

The Crawley standard is identical to the one used by the federal courts when evaluating ineffective
assistance of counsel claims predicated on the failure to present certain witness testimony. See Armstead
v. Colleran, 2003 WL 22436232, at *9 (E.D. Pa. Oct. 24, 2003); Fithian v. Shannon, 2002 WL 1636004,
at *4 (E.D. Pa. July 23, 2002) (finding that the Pennsylvania Superior Court‘s application of Crawley test
of ineffectiveness for failure to call a witness was ―neither contrary to nor an unreasonable application of
federal law‖).

10

Petitioner‘s ineffective assistance of trial counsel claim, determined that Petitioner did not satisfy
the requirements set forth in Crawley, holding that:
[Petitioner] failed to demonstrate that a forensic expert existed and
was available to testify for [Petitioner] at trial in the manner
[Petitioner] suggests. . . . Additionally, nothing in the record
reveals trial counsel was aware of [Petitioner‘s] desire to call a
forensic expert witness at trial. . . . Likewise, Petitioner failed to
demonstrate that the absence of a forensic expert‘s testimony was
so prejudicial as to deny [Petitioner] a fair trial. . . . Thus,
[Petitioner‘s] claim of trial counsel‘s ineffectiveness lacks arguable
merit.
Commonwealth v. Gray, 1776 EDA 2013, at 8 (Pa. Super. Ct. July 9, 2014) (the ―PCRA
Decision‖). The Superior Court further found that Petitioner could not demonstrate the requisite
prejudice under the second prong of Strickland. In addressing the prejudice arguments posed in
Petitioner‘s PCRA appeal, the Superior Court extensively quoted the PCRA Court; to wit:
The Commonwealth presented substantial evidence that this killing
was not accidental and that [Petitioner] possessed malice when he
shot Foushee. The Commonwealth demonstrated that [Petitioner]
entered Robinson‘s home without having been invited, using a key
that he had obtained without Robinson‘s knowledge or permission.
[Petitioner] then approached Foushee and aggressively threatened
him. [Petitioner] pulled out a gun and pointed it at Foushee‘s head.
Robinson got between [Petitioner] and Foushee and pleaded that
[Petitioner] desist. Even though [Petitioner] brandished his gun,
Foushee stayed seated on the bed and told [Petitioner] that he did
not want trouble.
During the altercation that ensued, [Petitioner] pressed the muzzle
of the gun against Foushee‘s chest, pulled the trigger, and then
fled. [Petitioner]‘s decisions to fire his gun while flush against
Foushee‘s body and to immediately run from the apartment
thereafter amount to persuasive evidence that [Petitioner] intended
to kill Foushee.
Id. (quoting Commonwealth v. Gray, 1776 EDA 2013, at 7-8 (Phila. Cty. Ct. of Com. Pl. Nov.
27, 2013)). The Magistrate Judge agreed that Petitioner was not prejudiced by the lack of a
defense forensic expert finding that there is no reasonable probability that, but for the failure of

11

his trial counsel to present a forensic expert witness at trial, the outcome of the guilt phase of
Petitioner‘s trial would have been different. This Court agrees. In light of the PCRA and
Superior Courts‘ well-reasoned and well-supported decisions dismissing Petitioner‘s PCRA
petition, as well as the facts presented at trial, this Court is of the opinion that the state court‘s
adjudication of Petitioner‘s ineffective assistance of trial counsel claim was not contrary to, or an
unreasonable application of, clearly established federal law. Accordingly, this Court finds that
the Magistrate Judge did not err in concluding that Petitioner is not entitled to habeas relief on
this claim under §2254(d)(1).
Although unclear, it appears that Petitioner also argues that he is entitled to habeas relief
under §2254(d)(2) on the basis that the state court‘s disposition of the Strickland prejudice prong
involved an unreasonable determination of the facts in light of the evidence presented at trial.
Petitioner‘s apparent arguments challenging the Superior Court‘s resolution of the Strickland
prejudice prong, however, are nothing more than a disagreement with the trial court‘s assessment
of the evidence at trial. In an attempt to establish prejudice, Petitioner argues that, had trial
counsel called a forensic expert witness to explain the significance of the location of the bullet
shell casing, the trial court would have credited Petitioner‘s testimony of the events leading to
the death of Foushee, and would have returned a manslaughter verdict.

This argument is

specious, at best. While a federal court has the ability to disagree with a state court‘s credibility
determinations, it should only do so where a habeas petitioner has overcome, by clear and
convincing evidence, the state court‘s credibility determinations. See Weeks v. Snyder, 219 F.3d
245, 259 (3d Cir. 2000) (stating that credibility determinations are entitled to a strong
presumption of correctness under 28 U.S.C. §2254(e)(1)). Here, Petitioner has failed to rebut the
trial court‘s credibility determinations and has otherwise failed to show that the Superior Court‘s

12

holding regarding his ineffective of trial counsel claim ―was based on an unreasonable
determination of the facts in light of the evidence‖ presented at trial. See 28 U.S.C. §2254(d)(2).
Thus, he is not entitled to habeas relief under either standard set forth in §§2254(d)(1) and/or
2254(d)(2). Accordingly, Petitioner‘s objection to the Magistrate Judge‘s conclusion regarding
his ineffectiveness of trial counsel claim is overruled, as he has failed to establish any error.
Similarly, Petitioner‘s claim of ineffectiveness of appellate counsel fails for these same
reasons and for the reasons noted infra.
Second and Third Objections
Petitioner argues that the Magistrate Judge erred in concluding that his habeas due
process claim was procedurally defaulted and lacked merit. This objection reiterates the due
process arguments advanced in the habeas petition, which were thoroughly addressed and
rejected by the Magistrate Judge. As noted, this Court need not conduct a de novo review of the
portion of the R&R that addressed this claim, Goney, 749 F.2d at 6-7, but will, nevertheless,
reviewed the objection and the underlying contested portions of the R&R de novo.
In his habeas petition, Petitioner argues that the trial judge violated his due process rights
by presuming that the court, as the factfinder, could infer malice from the use of a deadly
weapon against a vital part of the victim‘s body (i.e., the ―Vital Part presumption‖). Petitioner
also contends that appellate counsel was ineffective for failing to advance this argument during
Petitioner‘s direct appeal. In response to the habeas petition, Respondents argued that both
claims, which were not presented to the state courts, were procedurally defaulted and meritless.
This Court agrees with Respondents.
As set forth in the R&R, the due process clause ―protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.‖ Francis v. Franklin, 471 U.S. 307, 313 (1985) (citation and quotation
13

omitted). Presumptions or inferences are classified as mandatory or permissive. A mandatory
presumption instructs a factfinder that it must infer the presumed fact if the Commonwealth
proves certain predicate facts. Id. at 314. Mandatory presumptions typically violate due process
because they relieve the Commonwealth of its burden of persuasion on an essential element of an
offense. Id. A permissive inference, on the other hand, ―suggests to the [factfinder] a possible
conclusion to be drawn if the [Commonwealth] proves predicate facts, but does not require the
[factfinder] to draw that conclusion.‖ Id. Permissive inferences are valid under due process. Id.
However, as the PCRA Court noted, ―presuming malice from the facts elicited at trial would
violate the Due Process Clause if the inference of malice ‗is not one that reason and common
sense justify in light of the proven fact.‘‖ Commonwealth v. Gray, 1776 EDA 2013, at 8 (Phila.
Cty. Ct. of Com. Pl. Nov. 27, 2013) (quoting Francis, 471 U.S. at 314-15); see also Cnty. Ct. of
Ulster Cnty., N.Y. v. Allen, 442 U.S. 140, 157 (1979) (a permissive presumption violates the due
process Clause ―only if, under the facts of the case, there is no rational way the trier could make
the connection permitted by the inference.‖).
As stated, Petitioner was convicted of third-degree murder, which requires the
Commonwealth to prove that the killing was committed with malice aforethought, but without
specific intent. See 18 Pa. Cons. Stat. Ann. § 2502(a), (c). A killing without malice can be either
voluntary or involuntary manslaughter. 18 Pa. C.S §§ 2503 and 2504, respectively. The issue
argued by Petitioner is whether the trial judge‘s inference of malice constituted a deprivation of
Petitioner‘s due process.

Under Pennsylvania law, a factfinder may infer malice from the

intentional use of a deadly weapon on a vital part of a victim‘s body. See Commonwealth v.
Hinchcliffe, 479 Pa. 551, 554 (Pa. 1978) (stating that ―the intentional use of a deadly weapon on
a vital part of the body raises a permissible inference of malice‖); Commonwealth v. Pigg, 571

14

A.2d 438, 441 (Pa. Super. Ct. 1990). The Vital Part Presumption is a permissive inference, so it
only violates d ue process if, under the facts of the case, no rational factfinder could make
the connection permitted by the inference.
After a careful consideration of the argument, the Magistrate Judge concluded that, to the
extent that this claim was not procedurally defaulted, it lacked merit. The Magistrate Judge,
however, specifically found that this claim was procedurally defaulted to the extent that it alleges
a substantive due process violation because the argument presented to the state courts was not as
a substantive due process claim, but instead, presented under the guise of an ineffective
assistance of counsel claim. (See R&R at 10). Notwithstanding this distinction, the Magistrate
Judge addressed the merits of this claim and concluded that the state court reasonably applied
clearly established federal law, notably Cnty. Ct. of Ulster Cnty., N.Y. v. Allen, 442 U.S. 140
(1979),4 and determined that: (1) the application of the Vital Part Presumption did not violate
Petitioner‘s due process since the trial evidence supported the inference made; and therefore, (2)
in light of this finding, appellate counsel cannot be deemed ineffective for not having raised a
meritless claim. (See R&R at 11-12). This Court agrees with these conclusions.
Petitioner further argues that the state court unreasonably applied clearly established
federal law when it rejected Petitioner‘s due process claim and argument regarding the location
of the gunshot wound on the victim‘s body—specifically, that the wound‘s location suggested
that the wound was the result of a mutual struggle between Petitioner and Foushee. As the
Magistrate Judge noted, Petitioner‘s due process argument ―is predicated on the notion that the
shooting was accidental.‖ (R&R at 12). The trial court, as the factfinder, rejected Petitioner‘s
4

In Ulster Cnty., the United States Supreme Court held that a permissive presumption does not
offend due process if ―there is a rational connection between the basic facts and the ultimate fact
presumed, and the latter is more likely than not to flow from the former.‖ 442 U.S. at 165 (internal
citations and quotations omitted).

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version of the struggle and determined that there was a ―rational connection‖ between the proven
facts and the ultimate fact presumed, i.e., that Petitioner possessed malice when he pulled the
trigger. See McCandless v. Beyer, 835 F.2d 58, 60 (3d Cir. 1987) (holding that, under Ulster
Cnty., a court ―must evaluate a presumption‘s rationality in light of all of the facts adduced at
trial‖). The PCRA Court properly addressed and disposed of this argument, as follows:
Presuming malice from the facts elicited at trial would violate the
Due Process Clause if the inference of malice ―is not one that
reason and common sense justify in light of the proven facts.‖
Francis v. Franklin, 471 U.S. 307, 314-15 (1985). In the context
of ‗permissive inferences,‘ the protections offered by our
Commonwealth‘s Constitution mirror that which is provided by the
United States Constitution. Commonwealth v. Hall, 830 A.2d 537,
548-49 (Pa. 2003). The test articulated by the United States
Supreme Court and endorsed by [the Pennsylvania] Supreme Court
is that a valid due process concern is raised only ―if, under the facts
of the case, there is no rational way the trier [of fact] could make
the connection permitted by the inference.‖ Id. at 548, citing
Ulster County v. Allen, 442 U.S. 140, 157 (1979).
[Petitioner‘s] claim lacks arguable merit as due process was plainly
satisfied. There was a ―rational connection‖ between the proven
facts—that the muzzle of [Petitioner‘s] gun was pressed directly
against the victim‘s chest when fired and that [Petitioner] fled the
scene immediately after the killing— and the ultimate fact— that
[Petitioner] possessed malice when he pulled the trigger. Given
the ―rational connection‖ between the proven facts and the ultimate
fact presumed, there was no due process concern to be raised.
Appellate counsel cannot be deemed ineffective for not having
raised a meritless claim. Commonwealth v. Sepulveda, 55 A.3d
1108, 1118 (Pa. 2012). Accordingly, [Petitioner‘s] claim fails.
Commonwealth v. Gray, 1776 EDA 2013, at 8-9 (Phila. Cty. Ct. of Com. Pl. Nov. 27, 2013).
Based upon the totality of evidence, the PCRA Court‘s application of Ulster was objectively
reasonable, given that it was supported by the facts adduced at trial and entirely consistent with
federal law. Because Petitioner cannot show, as the statute requires, that the state court‘s
judgment adjudicating his due process claim was ―contrary to, or involved an unreasonable

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application of, clearly established federal law‖ this request for habeas relief under §2254(d)(1) is
denied.
In addition, Petitioner has also not satisfied the stringent requirements of §2254(d)(2).
Rather, Petitioner baldly argues that the trial court‘s findings of fact were ―unreasonable,‖ but
presents no evidence, let alone clear and convincing evidence, to rebut any of the trial court‘s
factual findings. Absent such evidence, this Court must presume that the trial court‘s factual
findings are correct. See 28 U.S.C. §2254(e)(1). Accordingly, Petitioner cannot be afforded
relief under §2254(d)(2) since he has failed to show that the state court‘s adjudication of his due
process claim involved ―an unreasonable determination of the facts‖ in light of the evidence
presented at trial. See 28 U.S.C. §2254. Therefore, Petitioner‘s second objection is overruled.
As noted supra, because this Court finds that there was no violation of Petitioner‘s due
process, appellate counsel cannot be ineffective for not raising this argument since it lacks merit.
See Boston, 2015 WL 6674530 at *12; see also Buehl v. Vaughn, 166 F.3d 163, 174 (3d Cir.
1999) (appellate counsel cannot be ineffective for failing to raise a meritless claim).
CONCLUSION
For the reasons stated herein, Petitioner‘s objections to the R&R are overruled, the R&R
is approved and adopted, and Petitioner‘s petition for a writ of habeas corpus is denied. Further,
because reasonable jurists would not debate the disposition of Petitioner‘s claims, the certificate
of appealability is denied.

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.

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