HUNTE v. FERGUSON et al
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 1/25/17. 1/25/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 14-6451
TAMMY FERGUSON, et al.,
January 25, 2017
Petitioner Derrick Hunte 1 seeks relief in this Court pursuant to 28 U.S.C. § 2254, arguing
that his state-court conviction was imposed in violation of the United States Constitution.
Magistrate Judge David R. Strawbridge issued a Report and Recommendation (“R&R”)
recommending that the Petitioner’s claims be denied without a hearing, to which Petitioner
objected. For the following reasons, Petitioner’s objections will be overruled and the petition for
writ of habeas corpus will be denied.
PROCEDURAL HISTORY 2
In 2009, Petitioner was convicted by a jury of robbery, robbery of a motor vehicle,
criminal conspiracy, carrying a firearm without a license, carrying a firearm in public, and
possessing an instrument of crime, and sentenced to an aggregate term of 16 to 40 ½ years of
imprisonment. These charges stemmed from a carjacking.
On the night of January 29, 2007, Petitioner and three codefendants stole a car from a
victim at gunpoint and crashed it into a parked car during a chase with police shortly afterward.
Petitioner was prosecuted using the name “Derrick Hunt,” but like the Magistrate Judge, the Court refers
to him using the name “Hunte,” under which he filed this petition.
The facts and procedural history are taken from the R&R. Doc. No. 18 at 2-5.
Petitioner was apprehended after he fled the stolen vehicle on foot. The victim then identified
Petitioner by his face, dreadlocks, complexion, voice, and accent. In addition, the victim told
police that one of his robbers had been wearing a green knit skull cap with a hole cut in it, and a
hat matching that description was found in Petitioner’s pocket after he was arrested. Petitioner
was convicted based on the victim’s identification and the cap, among other evidence.
On direct appeal, Petitioner unsuccessfully challenged the sufficiency of the evidence
used to identify him as one of the carjackers, and the Superior Court affirmed his conviction.
Petitioner sought collateral relief under Pennsylvania’s Post-Conviction Relief Act (“PCRA”),
but his petition was dismissed by the PCRA court. Petitioner appealed this dismissal to the
Superior Court, raising five claims based on the alleged ineffective assistance of his trial counsel
and one claim that he was entitled to PCRA relief under a “cumulative error” standard. The
Superior Court affirmed the dismissal of his petition, however, and the Pennsylvania Supreme
Court denied allocatur.
Petitioner then filed this pro se habeas petition. The District Attorney filed a response on
the merits, to which Petitioner did not reply. Magistrate Judge Strawbridge issued an R&R on
April 29, 2016, recommending that the petition be dismissed. Petitioner responded with an
“Objection” on May 16, 2016, that generally disputed Magistrate Judge Strawbridge’s
recommendation, but did not respond to any of the specific conclusions in the R&R. 3 Instead,
Petitioner asserted his innocence, raised several new arguments, and requested an extension of
30 days to “file a full response” to the R&R. 4 Petitioner also sought leave to amend the petition
to assert new claims based on relatively recent United States Supreme Court cases, the
Doc. No. 20 (Objection).
Id. at 2.
applicability of which were not clear. Magistrate Judge Strawbridge granted the request for an
extension of time, but denied the request for leave to amend, ruling instead that Petitioner could
address “any effect that new cases have had on his petition in his objections.” 5 Petitioner has not
filed any objections within the 30-day extension period, however. The Court will now evaluate
the petition on the merits, as well as the arguments raised for the first time in Petitioner’s
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this
Petition. Under the AEDPA, “a district court shall entertain an application for a writ of habeas
corpus [filed on] behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” 6 Where, as here, the petition is referred to a magistrate judge for a report and
recommendation, a district court conducts a de novo review of “those portions of the report or
specified proposed findings or recommendations to which objection is made,” and “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
All three of Petitioner’s claims concern ineffectiveness of counsel. Under the Supreme
Court’s decision in Strickland v. Washington, counsel is presumed to have acted reasonably and
to have been effective unless a petitioner can demonstrate (1) that counsel’s performance was
deficient and (2) that the deficient performance prejudiced the petitioner. 8 Counsel’s
Doc. No. 21.
28 U.S.C. § 2254(a).
28 U.S.C. § 636(b)(1).
466 U.S. 668, 687 (1984).
performance is only deficient when it is “outside the wide range of professionally competent
assistance.” 9 Prejudice occurs upon a showing that there is a reasonable possibility that but for
counsel’s deficient performance the outcome of the underlying proceeding would have been
different. 10 For example, “[a]n attorney cannot be ineffective for failing to raise a claim that
lacks merit,” because in such cases, the attorney’s performance is not deficient, and would not
have affected the outcome of the proceeding. 11 Similarly, an ineffective assistance of counsel
claim is not established upon the showing that an error had an effect on the proceedings; rather, a
defendant must show that there is a reasonable probability that the outcome would have been
different in the absence of such errors. 12
When the state court has squarely addressed the issue of counsel's representation, the
district court faces a double layer of deference. 13 “[T]he pivotal question is whether the state
court's application of the Strickland standard was unreasonable, which is different from asking
whether defense counsel's performance fell below Strickland’s standard.” 14 Federal habeas
courts must “take a highly deferential look at counsel’s performance under Strickland, through
the deferential lens of 2254(d).” 15
Id. at 690.
Lewis v. Horn, 581 F.3d 92, 106-07 (3d Cir. 2009).
Singletary v. Blaine, 89 F. App’x 790, 794 (3d Cir. 2004) (citing Moore v. Deputy Comm’r of SCIHuntingdon, 946 F.2d 236, 245 (3d Cir. 1991)).
Strickland, 466 U.S. at 694.
Premo v. Moore, 562 U.S. 115, 123 (2011)
Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (citation and internal quotations omitted).
Id. (citation and internal quotations omitted).
A. Petitioner’s Ineffective Assistance of Counsel Claims
Petitioner alleges three claims concerning the ineffectiveness of his trial counsel: (1) that
counsel was ineffective in litigating the motion to suppress the victim’s out-of-court
identification of Petitioner; (2) that counsel failed to object when the trial court refused to give a
requested cautionary instruction regarding the victim’s identification of Petitioner; and (3) that
counsel should have objected to the prosecutor’s closing argument, in which the prosecutor
expressed her belief that Petitioner was guilty. The Superior Court determined that all these
claims failed on the merits because counsel’s performance was not constitutionally inadequate,
and the R&R concluded that this was not an unreasonable application of the Strickland standard.
1. Suppression of the Victim’s Out-of-Court Identification
First, Petitioner argues that counsel was ineffective while litigating the motion to
suppress the victim’s out-of-court identification of Petitioner and one of his co-defendants. 16
Specifically, Petitioner argues that he was “unconstitutionally stopped” by the police based only
on the victim’s description of his robbers as “black males” wearing “dark clothing,” and that
counsel was ineffective for failing to suppress the victim’s subsequent identification of Petitioner
as a fruit of that allegedly unlawful stop. 17
As both the Superior Court and the R&R found, this claim fails because counsel’s
performance was not deficient. 18 Prior to trial, Petitioner’s co-defendant moved to suppress the
victim’s identification, and Petitioner’s counsel joined in the motion, participated in the cross-
Doc. No. 1 (Petition) at 5.
R&R at 9-11.
examination of the prosecution’s witnesses, and offered argument to the Court. 19 The trial court
denied the motion, finding that the police had reasonable suspicion to detain Petitioner and his
co-defendant, and that the victim had identified them in circumstances that were not
unconstitutionally suggestive. 20 On review of Petitioner’s PCRA petition, the Superior Court
agreed, finding that the police had reasonable suspicion to stop Petitioner because he and his codefendants matched the victim’s description of his assailants, they were the only people on the
“otherwise deserted streets” in the vicinity of the carjacking shortly after it took place, and
Petitioner was suspiciously not wearing a jacket despite the fact that it was a cold January
night. 21 The Superior Court thus concluded that Petitioner’s stop was supported by reasonable
suspicion and that the victim’s subsequent identification was not invalid, meaning that the trial
court properly denied the suppression motion on the merits, not because of any deficiency in
counsel’s performance. 22
The Court agrees. Counsel was fighting a losing battle on the suppression motion, and
Petitioner offers no cogent explanation as to how counsel’s performance on that front fell below
the standard guaranteed by the Sixth Amendment. While Petitioner argued before the Superior
Court that counsel should have filed a separate suppression motion, rather than joining his codefendant’s, and failed to present case law in support of the motion, these proposed tactical shifts
likely would not have altered the trial court’s ruling, given the evidence that Petitioner’s stop was
Id. at 9.
Id. at 9, 10 (quoting Commonwealth v. Hunte, No. 1528 EDA 2013, slip op. at 7 (Pa. Super. Ct. Apr. 9,
2014) (“Hunte II”) (Ex. C to Response, Doc. No. 15-3)); see also generally Terry v. Ohio, 392 U.S. 1, 21 (1968)
(explaining that in order to justify a stop, a “police officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant that intrusion”).
R&R at 10.
supported by reasonable suspicion. 23 The Superior Court’s conclusion that counsel was not
ineffective was thus reasonable.
2. The Trial Court’s Refusal to Give an Eyewitness Cautionary
Second, Petitioner argues that counsel was ineffective for “not objecting to the denial of
an eyewitness cautionary instruction” (sometimes referred to as a “Kloiber” instruction). 24
However, both the Superior Court and the R&R found that because Petitioner’s counsel
requested such an instruction, which the trial court found was unwarranted under Pennsylvania
law, there was no point in counsel objecting to this denial. 25
The Court agrees. Under Pennsylvania law, a Kloiber instruction is only required “where
the eyewitness: (1) did not have an opportunity to clearly view the defendant; (2) equivocated on
the identification of the defendant; or (3) had a problem making an identification in the past.” 26
None of these circumstances were present, so it was not error for the trial court to refuse to give
the cautionary instruction, and counsel was not ineffective for opting not to press the issue after
the trial court denied the request. 27
3. Counsel’s Failure to Object to the Prosecution’s Closing Argument
Finally, Petitioner argues that counsel was ineffective for failing to object during the
prosecutor’s closing arguments, in which she expressed her “personal belief in [Petitioner’s]
guilt.” 28 Specifically, the prosecutor ended her closing by telling the jury: “And I suggest to
Id. at 9.
Petition at 10; see generally Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
R&R at 14-15.
Commonwealth v. Gibson, 688 A.2d 1152, 1163 (Pa. 1997).
R&R at 14 (noting that the Superior Court found that the “the victim testified that he clearly saw
[Petitioner], never previously failed to identify [Petitioner] as a carjacker, and his identification at trial was positive
Petition at 9.
you, when you do carefully consider all of the evidence, that you will come to the same
conclusion that I reached a long time ago, which is that the defendant is guilty of the things that
he’s been charged with.” 29 Petitioner claims that this amounted to an improper expression of
personal belief about his guilt, and that his counsel’s failure to object rendered counsel
The Superior Court and the R&R both recognized that the prosecutor’s statement was
objectionable, but found that it did not so infect the trial as to invalidate Petitioner’s conviction,
meaning that counsel was not ineffective for failing to object. 31 As the Superior Court found, the
prosecutor’s remark amounted to a single sentence in a 17-page transcript, and the jury was
expressly instructed that the arguments of counsel were not evidence. 32 Moreover, counsel’s
trial choices are granted considerable deference, and counsel may well have decided not to object
to the statement for tactical reasons—such as not wanting to draw attention to the remark, or to
avoid making repeated objections during closing arguments. 33 The Court thus cannot say that
counsel’s failure to object was constitutionally deficient, or that the Superior Court erred in so
R&R at 16-17.
Petition at 9.
Id. at 18; see generally Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (explaining that where
prosecution’s remarks are challenged, the relevant question is whether the improper comments “so infected the trial
with unfairness as to make the resulting conviction a denial of due process”).
Id.; see also Hunte II at 10 (noting that the trial court instructed the jury that statements of counsel are not
arguments, and that the jury is presumed to have followed such instructions).
See generally Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (“[C]ounsel has wide latitude in deciding
how best to represent a client, and deference to counsel’s tactical decisions in his closing presentation is particularly
important because of the broad range of legitimate defense strategy at that stage.”). As the R&R noted, defense
counsel had objected to another statement made by the prosecutor shortly before the one in question, and that
objection was overruled. R&R at 19 n.10. Thus, counsel may have kept quiet to avoid being seen by the jury as
making repeated objections or to eliminate the risk of again being overruled during the prosecutor’s closing.
B. Petitioner’s Objections
Petitioner raises a hodge-podge of new claims in his brief objections, none of which are
fully explained. These claims fail for the simple reason that they are vague and appear for the
first time in Petitioner’s objections. 34 However, because Petitioner is pro se, the Court addresses
them to the extent possible, and nonetheless finds that they all lack merit.
First, Petitioner claims that his firearms sentence is unlawful under the Supreme Court’s
2013 decision in Alleyne v. United States, 35 which held that any fact (aside from a prior
conviction) which increases a statutory minimum sentence must be found by a jury. 36 But
Alleyne does not apply retroactively to cases on collateral review, and therefore does not aid
Second, Petitioner argues that a “paraffin gunfire test” available to the prosecution proves
that he did not discharge a firearm during the carjacking. 38 However, Petitioner does not appear
to have raised this issue during the PCRA proceedings, so it is unexhausted and now likely
Codner v. Warden-Pike Cty., Civil Action No. 15-5176, 2016 WL 5721199, at *6 (E.D. Pa. Oct. 3, 2016)
(“This Court joins the other courts within this district that have declined to address claims raised for the first time in
objections on the basis that it is too late to raise them now for the first time.”) (collecting cases); Fowler v. Mooney,
Civil Action No. 14-1768, 2015 WL 6955434, at *2 (E.D. Pa. Nov. 9, 2015) (“The Court concludes that the interest
of justice does not require consideration of the new claims because all such claims could have been presented to the
magistrate judge by pro se petitioner, and he failed to do so. Thus, the objections purporting to raise new claims not
presented to the magistrate judge are overruled.”).
Objection at 1.
133 S. Ct. 2151, 2155 (2013).
United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014) (holding that “while Alleyne set out a new rule
of law, it is not retroactively applicable to cases on collateral review”). To the extent Defendant’s argument is based
on case law existing at the time of his sentencing and the direct review of his conviction, it is non-exhausted, and
now likely procedurally defaulted, for failure to raise it during his state court post-conviction proceedings. See 28
U.S.C. § 2254(b)(1)(A) (requiring that a petitioner “has exhausted the remedies available in the courts of the State”
before a claim is cognizable on federal habeas review); see generally Coleman v. Thompson, 501 U.S. 722, 750
(1991) (explaining that unexhausted habeas claims will become procedurally defaulted if not timely presented to
Objection at 2.
procedurally defaulted. 39 And while Petitioner argues that the paraffin test shows that the
prosecution’s evidence was “insufficient to convict,” 40 this amounts to a claim that Petitioner’s
conviction was unsupported by the evidence, which is not cognizable on federal habeas review. 41
Finally, Petitioner asserts that he is actually innocent and was “framed” by the police, 42
but as noted, Petitioner was convicted following a trial in which the jury heard evidence that
Petitioner was positively identified by the victim shortly after the carjacking and was linked to
the crime via a distinctive green skull cap. Given this, Petitioner’s conclusory assertion of
innocence does not warrant federal habeas relief. 43
The objections to the R&R are overruled. Because Petitioner has not made a substantial
showing of the denial of a constitutional right, a certificate of appealability will not issue. There
is no basis for concluding that “reasonable jurists could debate whether . . . the petition should
have been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” 44 An order will be entered.
E.g., Coleman, 501 U.S. at 750.
Objection at 2.
E.g., Davis v. Lavan, Civil Action No. 04-456, 2004 WL 2166283, at *9 (E.D. Pa. Sept. 23, 2004) (“[A]
claim that a verdict is against the weight of the evidence is not cognizable on habeas review because it requires an
assessment of the credibility of the evidence presented at trial, and a state court’s credibility determinations are
binding on a federal habeas court.”) (citations omitted).
Objection at 1.
Codner, 2016 WL 5721199, at *6 (rejecting claim of actual innocence raised for the first time in
objections to R&R where petitioner pointed “to no facts supporting his conclusory assertions . . . that he is actually
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal citation and quotation omitted).
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