ALLEN v. TRITT et al

Filing 26

ORDER THAT PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED; THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED WITH PREJUDICE; WE DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 5/4/16. 5/4/16 ENTERED AND COPIES MAILED TO PRO SE PEITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LAMAR ALLEN
v.
BRENDA C. TRITT, et al.

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CIVIL ACTION

NO. 15-1500

ORDER
AND NOW, this 4th day of May, 2016, upon consideration of petitioner Lamar
Allen’s pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry #1),
our March 31, 2015 Order referring this matter to the Honorable Thomas J. Rueter for a report
and recommendation (“R&R”), Judge Rueter’s R&R (docket entry #19), petitioner’s objections
thereto (docket entries #24, 25), and the Court finding that:
(a)

On March 9, 2016, Judge Rueter recommended that we deny petitioner

Lamar Allen’s petition for writ of habeas corpus without an evidentiary hearing and decline to
issue a certificate of appealability, R&R at 1, 30;
(b)

Local Rule 72.1 IV(b) provides that “[a]ny party may object to a

magistrate judge’s proposed findings, recommendations or report under 28 U.S.C. 636(b)(1)(B)
… within fourteen days after being served with a copy thereof” by filing “written objections
which shall specifically identify the portions of the proposed findings, recommendations or
report to which objection is made and the basis for such objections;”
(c)

Petitioner timely filed his objections, which were docketed on April 22,

2016; 1

1

The Clerk of Court docketed two separate documents, which appear to be the same,
except that the objections at docket entry #24 are missing the final two pages. We considered
petitioner’s more complete, later-filed objections, which were still timely filed. Our citations are
to the more complete, later-filed objections.

(d)

We make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which petitioner objects, see 28 U.S.C. §
636;
(e)

The R&R recounts the factual and procedural history of petitioner’s case,

to which petitioner does not object, and so we approve and adopt that recitation; 2
(f)

Judge Rueter found that petitioner’s first and second claims were

unexhausted, procedurally defaulted, and meritless, R&R at 13-14, 20, that his third claim was

2

On June 27, 2009, petitioner was arrested and charged with numerous offenses related
to the robbery of three individuals at gunpoint. R&R at 1. Petitioner’s pretrial motions to
suppress physical evidence, statements to the police, and out-of-court identifications were all
denied after an evidentiary hearing before the Honorable Susan I. Schulman in the Court of
Common Pleas of Philadelphia County. Id. After a bench trial, Judge Schulman found petitioner
guilty of three counts each of robbery, theft by unlawful taking, receiving stolen property, simple
assault, and recklessly endangering another person, as well as one count each of carrying a
firearm in a vehicle without a license and possession of an instrument of crime. Id. On March 24,
2010, the court sentenced petitioner to an aggregate term of imprisonment of ten to twenty years,
followed by six years of probation. Id. at 2. On March 31, 2011, the Pennsylvania Superior Court
affirmed the judgment of sentence. Id. Petitioner raised one issue on appeal: whether the trial
court erred in refusing to suppress the out-of-court identification by the complainants where
those identifications were unduly suggestive. Id. The Pennsylvania Supreme Court denied review
on September 14, 2011. Id.
On January 11, 2012, petitioner filed a counseled petition pursuant to Pennsylvania’s Post
Conviction Relief Act, 42 Pa. C.S. §§ 9541 et seq. (“PCRA”). Id. Petitioner raised two issues: (1)
whether it was ineffective assistance of counsel for appellate counsel to fail to raise on appeal the
issue of the trial court’s denial of petitioner’s motion to suppress physical evidence and (2)
whether it was ineffective assistance of counsel for trial counsel to fail to file and litigate a postsentence motion in the nature of a motion for reconsideration of sentence. Id. The PCRA Court
dismissed the PCRA petition as meritless, the Pennsylvania Superior Court affirmed the
dismissal, and the Pennsylvania Supreme Court denied petitioner’s request for review. Id. at 3.
Petitioner then filed his habeas petition, asserting three grounds for relief. Id. First, petitioner
alleges trial counsel was ineffective for failing to object to inaccurate information given by the
trial court during the waiver colloquy. Id. (citing Pet. at ¶ 12). Second, petitioner alleges trial
counsel was ineffective for allowing petitioner to be tried before the same judge who denied his
suppression motions. Id. Third, petitioner alleges trial counsel was ineffective for failing to
suppress the identification evidence. Id. In his Memorandum of Law, petitioner stated a fourth
ground for relief, namely that direct appeal counsel was ineffective for failing to raise on direct
appeal that the trial court erred in denying petitioner’s motion to suppress physical evidence. Id.
(citing Pet’r’s Mem. of Law at 4).
2

procedurally defaulted and meritless, id. at 21, 25, and that his fourth claim was meritless, id. at
28;
(g)

Petitioner objects that the R&R mischaracterizes his claims, Objs. at 1;

(h)

First, petitioner objects that the R&R failed to address the exact issue in

his first claim because even if the colloquy was adequate, trial counsel erred by not informing
him of the Massachusetts rule, 3 and petitioner would have exercised his right to a jury trial had
he known about it, Objs. at 3-5;
(i)

As explained in the R&R, petitioner concedes that his claims related to the

Massachusetts rule are unexhausted and procedurally defaulted, R&R at 19 & Pet’r’s Mem. of
Law at 14;
(j)

A state prisoner must exhaust his state court remedies before a district

court may entertain a federal habeas petition, O’Sullivan v. Boerckel, 526 U.S. 838, 845, 847
(1999) & Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012), cert. denied, 133 S. Ct. 669
(2012), and to satisfy this requirement, a petitioner must demonstrate that the claims in his
federal petition were fairly presented to the state courts, Duncan v. Henry, 513 U.S. 364, 365-66
(1995) & Baldwin v. Reese, 541 U.S. 27, 29 (2004), meaning that the claims brought in federal
court are the substantial equivalent of those presented to the state courts and the legal theories
and facts supporting the federal claims were submitted to the state courts, Lesko v. Owens, 881
F.2d 44, 50 (3d Cir. 1989), cert. denied, 493 US. 1036 (1990);
(k)

An unexhausted claim is procedurally defaulted when it has not been

fairly presented to the state courts and there are no additional state remedies to pursue, or the
3

In Pennsylvania, a defendant who loses a pretrial motion to suppress a statement to
police as involuntary may raise the question of voluntariness again at trial, and the jury may
consider whether the statement was voluntarily given. See Commonwealth v. Moore, 311 A.2d
620, 623 (Pa. 1973).
3

issue was presented to the state courts but not addressed on the merits because of an independent
and adequate state procedural rule, Rolan, 680 F.3d at 317, and when a district court finds that a
claim is procedurally defaulted, review of that claim in a federal habeas petition is barred unless
the petitioner can show (1) the procedural rule was not independent and adequate, (2) cause for
the failure to comply with state procedural rules and prejudice resulting therefrom, or (3) a
fundamental miscarriage of justice will occur if the claim is not considered, Peterkin v. Horn,
176 F. Supp. 2d 342, 353 (E.D. Pa. 2001);
(l)

Although the general rule from Coleman v. Thompson, 501 U.S. 722

(1991) is that attorney errors in post-conviction proceedings do not establish cause to excuse a
procedural default, in states like Pennsylvania, where state law requires a petitioner to raise
ineffective assistance of counsel claims in an initial review collateral proceeding, a petitioner
may establish cause sufficient to overcome a procedural default if appointed counsel in the initial
review collateral proceeding where the claim should have been raised was ineffective, Martinez
v. Ryan, 132 S. Ct. 1309, 1318 (2012);
(m)

To overcome default, a petitioner must demonstrate that the underlying

ineffective assistance of trial counsel claim is substantial, meaning that it has some merit, id.;
(n)

Thus, to excuse petitioner’s procedural default for his claim regarding the

Massachusetts rule, we must find that the underlying claim has some merit;
(o)

Petitioner alleges that the substance of his claim is not the voluntariness of

the colloquy after which he waived his right to a jury trial, but rather that his trial counsel was
ineffective for failing to inform him that he would have a second opportunity to litigate the
voluntariness of his statement if he proceeded to a jury trial, Objs. at 4;

4

(p)

To show that counsel was ineffective, petitioner must demonstrate that (1)

his counsel’s performance was deficient and (2) that deficient performance caused him prejudice,
Strickland v. Washington, 466 U.S. 668, 687-96 (1984);
(q)

Deficient performance occurs when counsel’s representation falls below

an objective standard of reasonableness and counsel made errors so serious that he was not
functioning as the counsel guaranteed by the Sixth Amendment, id. at 687-88;
(r)

Reviewing courts are highly deferential when evaluating counsel’s

performance and must make every effort to eliminate the distortions of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time, id. at 689, and since there is a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance, the question is whether the
representation amounted to incompetence under prevailing professional norms, not whether it
deviated from best practices or most common customs, Premo v. Moore, 562 U.S. 115, 122
(2011);
(s)

To show prejudice from ineffective assistance, a petitioner must

demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different, which requires showing that the errors were so serious
as to deprive the defendant of a fair trial whose result is reliable, not just that there was some
conceivable effect on the proceeding’s outcome, Harrington v. Richter, 562 U.S. 86, 104 (2011)
and Cullen v. Pinholster, 563 U.S. 170, 189 (2011);
(t)

Petitioner argues that he does not have to prove that the jury would have

found his statement involuntary, but only that he would have taken his chances had he known he
could re-litigate the issue, Objs. at 5;

5

(u)

Petitioner’s argument, clarified by his reference to Lafler v. Cooper, 132

S. Ct. 1376 (2012), is that if he had known about the Massachusetts rule, he would not have
waived his right to a jury trial;
(v)

Counsel’s alleged error in failing to inform petitioner that by agreeing to a

bench trial he was waiving his right to have a second chance to litigate the voluntariness of his
statement is not the kind of error so serious as to deprive the defendant of a fair trial whose result
is reliable;
(w)

In order for counsel’s failure to inform petitioner of the Massachusetts rule

to have been the kind of error so serious as to call into doubt the reliability of petitioner’s
conviction, the Court would have to accept the counter-factual hypothesis that petitioner would
not have waived his right to a jury trial (which he says is the case) and that the trial court would
have denied his motion to suppress his statement as involuntary (which it did), but then also that
petitioner would have re-litigated the voluntariness of his statement before the jury, the jury
would have decided that his statement was involuntary, and then, notwithstanding the
prosecution’s substantial evidence, see R&R at 18 n.5, the jury would have acquitted him;
(x)

Since the Court does not accept such a counter-factual hypothesis,

petitioner cannot show that counsel’s alleged ineffective assistance calls into question the
reliability of his conviction or deprived him of a fair trial, and counsel’s failure to inform him of
the Massachusetts rule and that failure’s alleged effect on petitioner’s choices is the kind of
merely conceivable effect on the proceeding that does not constitute prejudice;
(y)

As petitioner’s underlying claim does not have merit, there is no excuse

for his procedural default;
(z)

We will therefore overrule petitioner’s first objection;

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(aa)

Second, petitioner objects to the portion of the R&R finding that trial

counsel’s error was insubstantial based on the quantity of evidence in the Commonwealth’s case
because it is not relevant to whether trial counsel failed to inform petitioner of his right under
Pennsylvania law to challenge the voluntariness of his pretrial statement before a jury, Objs. at 5;
(bb)

As we explained above, the quantity of evidence in the prosecution’s case

is directly relevant to the consequences of trial counsel’s failure to inform petitioner of the
Massachusetts rule because it goes to whether that failure prejudiced petitioner, and it was
therefore no error for the R&R to make reference to or base its reasoning on that fact, and so we
will overrule petitioner’s second objection;
(cc)

Third, petitioner objects to the R&R’s citation to Sixth Circuit precedent

in its evaluation of his second claim, Objs. at 6;
(dd)

Petitioner argues that the R&R’s use of Sixth Circuit law was inconsistent

with AEDPA, because there is no rule from the Supreme Court that requires proof of an acquittal
in an ineffective assistance of counsel claim, id.;
(ee)

There was no error in the R&R’s citation to illustrative Sixth Circuit case

law, and petitioner overstates the R&R’s characterization of the prejudice prong for ineffective
assistance of counsel under Strickland, and we will therefore overrule petitioner’s third
objection; and
(ff)

As we have overruled petitioner’s objections, we will approve and adopt

the R&R, deny the petition of habeas corpus, deny petitioner’s request for an evidentiary
hearing, and decline to issue a certificate of appealability.
It is hereby ORDERED that:
1.

Petitioner’s objections (docket entries #24, 25) are OVERRULED;

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2.

Judge Rueter’s report and recommendation (docket entry #19) is

APPROVED and ADOPTED;
3.

Petitioner’s pro se petition for writ of habeas corpus (docket entry #1) is

DENIED WITH PREJUDICE;
4.

As jurists of reason would not debate the correctness of this procedural

ruling, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), we will DECLINE to issue a certificate
of appealability; and
5.

The Clerk of Court shall CLOSE this case statistically.

BY THE COURT:

/s/ Stewart Dalzell, J.

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