DAY v. MAHALLY et al

Filing 20

MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 2/2/17. 2/2/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN. Modified on 2/2/2017 (pr, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_____________________________________
ANTHONY DAY,
:
Petitioner,
:
:
v.
:
CIVIL ACTION NO. 15-0863
:
LARRY MAHALLY, et al.,
:
Respondents.
:
:
MEMORANDUM OPINION
Rufe, J.

February 2, 2017

Petitioner seeks relief in this Court pursuant to 28 U.S.C. § 2254, arguing that his statecourt conviction is contrary to the United States Constitution. Magistrate Judge Linda K.
Caracappa issued a Report and Recommendation (“R&R”) recommending that the petition be
denied, to which the Petitioner filed objections. For the following reasons, Petitioner’s
objections will be overruled and the petition for the writ of habeas corpus will be denied.
I.

PROCEDURAL HISTORY
On July 7, 2006, Petitioner was found guilty in Philadelphia County of rape, involuntary

deviate sexual intercourse, contact with a minor for sexual purposes, statutory sexual assault,
sexual assault, incest, indecent assault, unlawful restraint, endangering the welfare of a child,
corrupting the morals of a minor, simple assault, recklessly endangering another person, and
indecent exposure. 1 Petitioner was sentenced to an aggregate term of forty to eighty years,
which he is currently serving. 2 Petitioner has filed the instant petition pro se, though he was
represented by counsel at trial and during his direct appeals. 3

1

Doc. No. 16-5 at 20.

2

Doc. No. 14-2 at 3.

3

Doc. No. 3 (“Amended Petition”) at 13-14.

After sentencing, Petitioner filed post-sentence motions which were rejected by the state
courts as untimely. 4 On January 26, 2009, Petitioner filed his first petition for collateral review
under the Pennsylvania Post Conviction Relief Act (“PCRA”), 5 requesting reinstatement of his
direct appeal rights and permission to file post-sentence motions nunc pro tunc. 6 The PCRA
court granted Petitioner’s request, and on February 2, 2009, his motions were filed with the
PCRA court. 7 After the PCRA court denied Petitioner’s motions, the Pennsylvania Superior
Court affirmed his sentence on March 11, 2010. 8 The Pennsylvania Supreme Court denied
allocatur on January 20, 2011. 9
On June 29, 2011, Petitioner filed a PCRA petition alleging ineffective assistance of
counsel. 10 His amended petition was denied on May 24, 2013, and the Pennsylvania Superior
Court affirmed the dismissal on March 24, 2014. 11 Allocatur was denied on September 3,
2014. 12 Petitioner filed a second PCRA petition in state court on December 19, 2014. 13
Petitioner filed a request for relief under § 2254 in this Court on February 14, 2015, and
filed a revised petition on March 13, 2015. 14 Magistrate Judge Caracappa then issued an R&R

4

Doc. No. 17 (“R&R”) at 1-2.

5

42 Pa. C.S. §§ 9541-51.

6

R&R at 2.

7

Id.

8

Commonwealth v. Day, 996 A.2d 540, 540 (Pa. Super. Ct. 2010); Doc. No. 14-1 at 2.

9

Commonwealth v. Day, 14 A.3d 823 (Pa. 2011).

10

Though Petitioner filed his PCRA petition pro se, appointed counsel represented him through the proceedings.
See Doc. No. 3 at 14; Doc. No. 14-2 at 4.

11

Commonwealth v. Day, 100 A.3d 316, 316 (Pa. Super. Ct. 2014); Doc. No. 14-2 at 4.

12

Commonwealth v. Day, 99 A.3d 75 (Pa. 2014).

13

Doc. No. 1 at 16. A review of the Philadelphia County Court of Common Pleas docket appears to indicate that
Petitioner’s second petition was dismissed. However, no party has informed this Court of any decision in the matter.

14

R&R at 2.

2

recommending Petitioner’s writ be denied, 15 and Petitioner timely filed objections to the R&R,
focusing primarily on his request for a stay and abeyance. 16
II.

LEGAL STANDARD
Review of Petitioner’s writ of habeas corpus is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). 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.” 17 Where, as here, a magistrate judge
has issued a report and recommendation, the district court’s review is de novo of “those portions
of the report or specified proposed findings or recommendations to which objection is made,”
and it “may accept, reject, or modify, in whole or in part, the findings or recommendations by the
magistrate judge.” 18
In order to raise a federal habeas claim, a petitioner must first exhaust all available statelaw remedies. 19 Claims that are not exhausted will become procedurally defaulted, foreclosing
federal review on the merits unless the petitioner “can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure
to consider the claims will result in a fundamental miscarriage of justice.” 20 Additionally, where
the proper state court is barred from considering a petitioner’s claims, the claims are also

15

R&R at 19.

16

Doc. No. 19.

17

28 U.S.C. § 2254(a).

18

18 U.S.C. § 636(b)(1).

19

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).

20

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

3

considered procedurally defaulted. 21
Only in the rarest of cases may a federal court review the merits of a procedurally
defaulted claim. If a petitioner demonstrates his case falls “within the narrow class of cases . . .
implicating a fundamental miscarriage of justice,” the merits may be revisited. 22 The United
States Supreme Court has emphasized that this fundamental miscarriage of justice exception
applies to only “a severely confined category” of cases. 23 Where an allegation of actual
innocence is made, the new evidence presented by the petitioner must show “it is more likely
than not that no reasonable juror would have convicted [the petitioner].” 24
Most of Petitioner’s exhausted claims concern ineffective assistance 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. 25
Counsel’s performance is only deficient when it is “outside the wide range of professionally
competent assistance.” 26 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

21

Id. at 735 n.1 (“[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally
barred. . . . there is procedural default for purposes of federal habeas.”); see also McCandless v. Vaughn, 172 F.3d
255, 260 (3d Cir. 1999) (noting that where state procedural rules bar the applicant from state court relief, claims are
considered procedurally defaulted, and can only be considered if applicant demonstrates “cause and prejudice” or
“fundamental miscarriage of justice” under Coleman).
22

Schlup v. Delo, 513 U.S. 298, 314-15 (1995) (internal citation omitted); see also McQuiggin v. Perkins, 133 S. Ct.
1924, 1932 (2013) (“A federal court may invoke the miscarriage of justice exception to justify consideration of
claims defaulted in state court under state timeliness rules.”).

23

McQuiggin, 133 S. Ct. at 1933.

24

Id. (citing Schlup, 513 U.S. at 329).

25

466 U.S. 668, 687 (1984).

26

Id. at 690.

4

have been different. 27 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. 28
Further, when the state court has squarely addressed the issue of counsel’s
representation—as with Petitioner’s five exhausted claims—the district court faces a double
layer of deference. 29 In these cases, “the 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.” 30
III. DISCUSSION
Petitioner raises eight claims in his memorandum of law. 31 Five of these claims were
raised in the state courts in his first PRCA petition and are properly exhausted. 32 The remaining
three claims were not previously raised, and thus are procedurally defaulted and cannot be
reviewed on the merits. 33 Further, as Petitioner fails to show good cause for his failure to timely
raise these claims, his request for a stay and abeyance will be denied. 34

27

Lewis v. Horn, 581 F.3d 92, 106-07 (3d Cir. 2009).

28

Singletary v. Blaine, 89 F. App’x 790, 794 (3d Cir. 2004) (citing Moore v. Deputy Comm’r of SCI-Huntingdon,
946 F.2d 236, 245 (3d Cir. 1991)); see also Strickland, 466 U.S. at 694 (stating that it is not enough to point out
errors by counsel which had some effect on proceeding, but rather the petitioner must demonstrate that in absence of
such errors, there is a reasonable probability the outcome would have been different).

29

Premo v. Moore, 562 U.S. 115, 123 (2011).

30

Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013); see also 28 U.S.C. § 2254(d) (requiring petitions to
demonstrate state court proceedings were contrary to clearly established law or based on an unreasonable
determination of the facts in order to be found meritorious).
31

Amended Petition at 18-22 (raising exhausted and unexhausted claims); see also R&R at 2-3 (listing Petitioner’s
claims).
32

R&R at 5 (“Petitioner’s first five claims of ineffective assistance of counsel were presented to the state courts.”).

33

Petitioner has filed a second PCRA petition with these three claims which is currently pending. For this reason,
though the Court does not have access to the complete state record, it takes the facts alleged by Petitioner as true.
Ultimately, however, these facts fail to establish that Petitioner is entitled to relief.

34

Petitioner requests a stay and abeyance while the Pennsylvania state courts consider the claims of his second
PCRA petition, arguing that his claim of innocence excuses procedural default. See Doc. No. 19 at 1-2. However,

5

A.

Petitioner’s Exhausted Claims

Petitioner’s five exhausted claims were rejected on the merits by the PCRA court and the
Pennsylvania Superior Court. 35 In reviewing Petitioner’s claims, the Magistrate Judge
determined that the state court’s application of Strickland was not unreasonable. 36 Petitioner
objects to the R&R in general terms, but has not shown any error.
1.

Petitioner Cannot Show Trial Counsel Was Ineffective by Failing to
Secure a DNA Expert.

Petitioner argues that trial counsel was ineffective for failing to secure an expert to testify
that DNA evidence excluded him “as the perpetrator of the crime.” 37 This claim fails for two
reasons.
First, the PCRA court found that Petitioner failed to identify a specific expert, which was
fatal to his claim under governing Pennsylvania law. 38 The court further determined that even if
an expert had been obtained to testify as Petitioner wished, it would not have added to his
defense as his counsel fully argued the issue in the same manner. 39 Therefore, he could not show
any prejudice from the expert’s failure to testify.
Second, even if a specific expert had been identified, Petitioner overstated the potential
effect of expert testimony regarding DNA evidence. While DNA evidence may be conclusive of
as explained below, because Petitioner’s claims are barred by Pennsylvania’s statute of limitations and he cannot
demonstrate “cause and prejudice” or a “fundamental miscarriage of justice” under Coleman, the Court finds that the
procedural default cannot be excused.
35

Doc. No. 14-2 at 14 (“[Petitioner’s] claims of ineffectiveness on the part of trial and appellate counsel are either
refuted by the record, underdeveloped, or otherwise without merit.”).
36

R&R at 5-16.

37

Amended Petition at 18.

38

Doc. No. 14-2 at 7 (noting that the Pennsylvania standard for counsel’s ineffectiveness for failing to call a witness
requires a PCRA petitioner show that the witness existed, the witness was available, and that counsel knew or
should have known of the witness) (citing Commonwealth v. Bomar, 826 A.2d 831, 856 (Pa. 2003)).
39
Doc. No. 14-2 at 8 (“Trial counsel argued that there was a high likelihood that [Petitioner’s] DNA should have
been present on the sofa cushion if the events had, indeed occurred as the victim claimed. That is the same
argument that [Petitioner] wanted an expert witness to make.”).

6

guilt, the absence of DNA evidence cannot, conversely, show that Petitioner did not commit the
crimes with which he was charged. Rather, at most, it may demonstrate an inconsistency in the
complainant’s story, as defense counsel argued at trial. 40 Ultimately, the trial court found the
complainant credible and adjudged Petitioner guilty despite any potentially favorable evidence,
which strongly suggests that an expert witness on the subject would not have changed the
outcome of Petitioner’s trial. 41 Under these circumstances, the Court cannot conclude that the
state courts’ decisions were unreasonable.
2.

Petitioner Cannot Show Trial Counsel Was Ineffective by Not
Obtaining an Expert to Discuss Effects of Naproxen and Klonopin.

Second, Petitioner argues that counsel was ineffective for failing to obtain an expert to
testify about the drugs Naproxen and Klonopin. 42 The Pennsylvania Superior Court noted that
Petitioner dedicated a “single sentence within his brief” to this contention, and it is unclear from
Petitioner’s brief what the import of this testimony would have been. 43 Once again, Petitioner
has failed to identify a specific witness or to demonstrate prejudice. Indeed, Petitioner does not
even articulate how he could have been prejudiced by the absence of this testimony at trial. For
these reasons, the PCRA courts correctly rejected Petitioner’s claim. 44
3.

Petitioner Cannot Show Trial Counsel Was Ineffective in Advising
Him About His Right to Testify or by Failing to Contact Witnesses.

Petitioner’s third claim, that his lawyer was ineffective for failing to advise him about his

40

Doc. No. 16-5 at 10-11 (arguing that complainant’s testimony was inconsistent with physical evidence because
three DNA samples recovered were not from defendant).
41

Doc 16-5 at 20.

42

Amended Petition at 18.

43

Doc. No. 14-2 at 7.

44

Doc. No. 14-2 at 8-9; see also R&R at 9.

7

right to testify and for failing to contact witnesses, also lacks merit. 45 The state courts found that
Petitioner was advised of his right to testify and waived it voluntarily. 46 This determination is
well supported by the trial record, which demonstrates that Petitioner’s decision not to testify
was informed by discussions with counsel, including a conversation with his lawyer immediately
before he decided not to testify. 47 In fact, when asked directly if he came to the decision not to
testify of his own free will, Petitioner replied: “With the advice of my attorney. Yes.” 48 Based
on this colloquy, the trial court found Petitioner’s decision was voluntary, 49 and the Court cannot
conclude that this decision was unreasonable.
With regard to counsel’s alleged failure to contact witnesses, 50 the PCRA court
determined that: (1) Petitioner failed to identify the witnesses, (2) Petitioner failed to argue how
we was prejudiced by the absence of their testimony, and (3) other witnesses presented were
found credible. 51 Without any evidence of who would have been called to testify or what they
might have said, Petitioner’s claim must fail. 52
4.

Petitioner Cannot Show Trial Counsel Was Ineffective for Advising
Him to Forego a Jury Trial.

Fourth, Petitioner argues that counsel was ineffective for advising him to forego a jury

45

Amended Petition at 18.

46

Doc. No. 14-2 at 11-12.

47

Doc. No. 16-5 at 4 (asking Petitioner if he had changed his mind overnight and confirming that he still did not
wish to testify).
48

Id.

49

Id. (trial court’s determination that Petitioner waived his right knowingly and voluntarily); see also R&R at 12-14
(recounting Petitioner’s colloquy). Additionally, Petitioner executed a written waiver of his right to testify. Doc.
No. 14-2 at 11-12.
50

Amended Petition at 18.

51

Doc. No. 14-2 at 9-10.

52

See also R&R at 11.

8

trial. 53 This claim is belied by the record, which reveals that the trial court conducted a full
colloquy on the record and that Petitioner signed a waiver of his right to a trial by jury. 54
Petitioner failed to present any evidence that his attorney’s advice fell below the Strickland
standard. 55 Without such a showing, Petitioner’s claim cannot succeed.
5.

Petitioner Cannot Show Appellate Counsel Was Ineffective in Failing
to Argue Insufficiency of the Evidence.

Petitioner’s final exhausted claim relates to appellate counsel’s ineffectiveness in not
arguing the evidence presented at trial was insufficient as a matter of law to sustain the verdict. 56
The state courts determined that Petitioner’s arguments were vague and underdeveloped because
he failed to discuss any of the crimes of which he was convicted or their elements. 57
Nonetheless, the PCRA courts reviewed the evidence presented and determined it was “more
than sufficient” to sustain Petitioner’s convictions. 58 Further, appellate counsel did argue that
Petitioner’s convictions were against the weight of the evidence. 59 On this record, Petitioner
cannot show ineffectiveness or prejudice, and the Court must reject Petitioner’s final claim.
B.

Petitioner’s Unexhausted, Procedurally Defaulted Claims

Petitioner, after “review of the record and other information,” 60 brings three unexhausted
claims in his habeas petition. In particular, Petitioner argues: (1) counsel was ineffective for
failing to pursue a claim of actual innocence based on DNA or other evidence; (2) counsel was

53

Amended Petition at 18.

54

Doc. No. 16-1 at 2-3. Petitioner does not appear to argue that this waiver was involuntary or otherwise invalid.

55

Doc. No. 14-2 at 11-12.

56

Amended Petition at 18; R&R at 15-16.

57

Doc. No. 14-2 at 13-14.

58

Doc. No. 14-2 at 14.

59

Doc. No. 14-1 at 7-9.

60

Amended Petition at 19.

9

ineffective for failing to investigate his statements to the police; and (3) that counsel failed to
challenge a tape entered into evidence against Petitioner. Although Petitioner has filed a second
PCRA petition seeking review of these issues, Pennsylvania’s PCRA statute bars Petitioner from
litigating them. 61 Therefore, the Court finds that each is procedurally defaulted and that
Petitioner has failed to present evidence that permits review on the merits. 62 Specifically,
Petitioner has not shown “cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate[d] that failure to consider the claims would result in a
fundamental miscarriage of justice.” 63
1.

Petitioner Cannot Show Cause and Prejudice or a Miscarriage of
Justice Resulting from Counsel’s Failure to Pursue a Claim of Actual
Innocence.

Petitioner argues that his counsel was ineffective for failing to assert his actual innocence,
and points to DNA evidence and “comments made by the trial court about the DNA at
sentencing” to demonstrate his innocence. 64 As Petitioner was in the courtroom when this
evidence was presented and the content of all trial proceedings were memorialized in the record
at the time of final disposition, his failure to present it timely to the state courts cannot be
excused. Indeed, Petitioner did not show cause for default in his petition. 65 The Court has

61

See 42 Pa. C.S. § 9545(b)(1) (“Any petition under this subchapter, including a second or subsequent petition, shall
be filed within one year of the date the judgment becomes final . . . .”). There are extremely narrow exceptions to
this time bar, which must be raised within 60 days of the date the claim could have been presented. See id.
§§ 9545(b)(1)(i)-(iii), (b)(2).

62

Coleman, 501 U.S. at 735 n.1 (“[I]f the petitioner failed to exhaust state remedies and the court to which the
petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the
claims procedurally barred. . . . there is procedural default for purposes of federal habeas.”); see also McCandless,
172 F.3d at 260 (noting that where state procedural rules bar the applicant from state court relief, claims are
considered procedurally defaulted, and can only be considered if applicant demonstrates “cause and prejudice” or a
“fundamental miscarriage of justice” under Coleman).

63

Coleman, 501 U.S. at 750.

64

Amended Petition at 19-20.

65

Id.

10

already addressed Petitioner’s arguments regarding the DNA evidence and finds that there is no
danger of a fundamental miscarriage of justice here.
2.

Petitioner Cannot Show Cause and Prejudice or a Miscarriage of
Justice Stemming from Defects in Counsel’s Pre-trial Investigation.

Petitioner next argues that trial counsel failed to investigate properly before trial and that
counsel was ineffective for failing to challenge various pieces of evidence and statements
presented at trial. 66 Like his first unexhausted claim, these claims—founded in information
known to Petitioner since his trial’s final disposition—are time-barred. Petitioner also presents
no evidence excusing his failure to present these claims timely to the Pennsylvania courts. 67
Therefore, the Court is constrained to find no fundamental miscarriage of justice will result if his
claim is not reviewed.
3.

Petitioner Cannot Show Cause and Prejudice or a Miscarriage of
Justice Resulting from the Failure to Challenge Audiotape Evidence.

Petitioner’s final unexhausted claim centers on his counsel’s failure to challenge a tape he
alleges was improperly admitted against him at trial. 68 While Petitioner’s brief argues how
counsel was ineffective, Petitioner again does not show cause as to why these claims were not
timely presented on collateral review. No showing is made of actual prejudice to Petitioner by
the tape’s admission. 69 Without any new evidence, the Court determines that procedural default
cannot be overcome.

66

Amended Petition at 20-22. Specifically, Petitioner identifies counsel’s failure to challenge a search warrant,
counsel’s failure to challenge statements taken while Petitioner was detoxing from oxycodone, and an allegedly
illegally recorded tape.
67

Id.

68

Id. at 22. Petitioner also appears to argue that his statements on the tape were not made voluntarily and were
obtained in violation of the Sixth Amendment. Id. at 21-22. The Court finds that both Petitioner’s arguments as to
substance and admission of the tape are defaulted and not excused.
69

Id. at 22.

11

C.

Petitioner Cannot Demonstrate Good Cause Required to Grant a Stay and
Abeyance of the Writ

Petitioner has requested a stay and abeyance of his habeas petition while the
Pennsylvania state courts address his second PRCA petition. 70 Petitioner’s objections to the
R&R primarily addressed the determination that a stay and abeyance should not be granted. 71
The stay and abeyance procedure holds a federal habeas petition pending exhaustion of
state remedies, and it should only be granted in limited circumstances. 72 “Because granting a stay
effectively excuses a petitioner’s failure to present his claims first to the state courts, stay and
abeyance is only appropriate when the district court determines there was good cause for
petitioner’s failure to exhaust his claims first in state court.” 73 Here, the Court has reviewed
Petitioner’s unexhausted claims and determined that no cause was presented which would excuse
default. Therefore, a stay and abeyance is inappropriate and Petitioner’s request is denied.
IV. CONCLUSION
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. 74 An order will be entered.

70

Amended Petition at 15. It appears that the PCRA petition was dismissed in December 2016.

71

Doc. No. 19 at 2. Petitioner’s objections to the R&R’s finding regarding his actual innocence claim are addressed
in Part III.B.1.

72

Rhines v. Weber, 544 U.S. 269, 275-76 (2005).

73

Id. at 277.

74

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal citation omitted).

12