BOONE v. GILMORE

Filing 30

ORDER THAT PETITIONER'S OBJECTIONS (DOC. NO. 28) OVERRULED; THE REPORT AND RECOMMENDATION (DOC. NO. 22) IS APPROVED AND ADOPTED; THE PETITIONS FOR WRIT OF HABEAS CORPUS ARE DENIED WITH PREJUDICE AND DISMISSED WITHOUT A HEARING; AND THERE IS NO BASIS FOR THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY; AND THE CLERK OF COURT IS DIRECTED TO MARK THIS CASE CLOSED.. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 12/19/17. 12/19/17 ENTERED AND COPIES E-MAILED TO COUNSEL.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
RASHON BOONE,
:
CIVIL ACTION
Petitioner,
:
:
v.
:
No. 15-2733
:
ROBERT GILMORE,
:
Respondent.
:
____________________________________:
ORDER
AND NOW, this 19th day of December, 2017, upon consideration of “Petitioner’s
Standard Form Writ of Habeas Corpus in Compliance With Local Civil Rule 9.3(b) and Rule 2 of
the Rules Governing Section 2254” (Doc. No. 1), “Amended 2254 Petition” (Doc. No. 6),
“Response to the Petition for Writ of Habeas Corpus” (Doc. No. 21), the Report and
Recommendation issued by Magistrate Judge Linda K. Caracappa (Doc. No. 22), “Objections to
Report and Recommendation” (Doc. No. 28) and “Response to Petitioner’s Objections to the
Magistrate Judge’s Report and Recommendation” (Doc. No. 29), I find as follows:
1. Following a bench trial on May 15, 2007, Petitioner was convicted of second-degree
murder, robbery, criminal conspiracy, and possessing an instrument of crime. On July 10,
2007, petitioner was sentenced to life in prison for second degree murder and a concurrent
term of twenty two and one-half years for the other charges. On appeal, the Pennsylvania
Supreme Court vacated Petitioner’s robbery conviction. Petitioner’s sentence and other
convictions were not disturbed. (Report pp. 1-3.)
2. Following the denial of a petition brought under the Pennsylvania Post Conviction Relief
Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541 et seq., Petitioner filed the instant, counseled
habeas petition on May 12, 2015, raising three grounds for relief:

1. Petitioner’s second-degree murder, robbery, and conspiracy convictions
are invalid, because they are premised on a knowingly false and
fabricated statement made by Monique Bell in violation of due process
and fundamental fairness principles and the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution;
2. Based on pre-trial evidence trial counsel developed, received, and
reviewed, petitioner’s second-degree murder, robbery, and conspiracy
convictions are invalid under the Sixth Amendment to the United States
Constitution, because trial counsel provided objectively unreasonable
advice when he advised petitioner to reject three favorable plea deals;
and
3. Petitioner’s convictions are invalid under the Sixth Amendment to the
United States Constitution, because trial counsel failed to investigate,
develop, and present readily accessible evidence supporting petitioner’s
self-defense claim.
(See Habeas Pet. ¶¶ 13-15.)
3. On December 15, 2015, petitioner filed a counseled amended habeas petition raising one
additional ground for relief (the fourth claim):
4. PCRA counsel was ineffective for not incorporating Izaiya Davis’s June
21, 2012 affidavit into petitioner’s PCRA petition; petitioner’s
continued incarceration is unconstitutional because his convictions are
predicated on what M[r]. Davis’ affidavit has proven to be
fundamentally unreliable testimony from Joseph Jackson and Aisha
McCray, in violation of petitioner’s due process rights and the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.
(See Am. Habeas Pet. ¶ 107.)
4. On February 28, 2017, Magistrate Judge Linda K. Caracappa filed a Report and
Recommendation which recommended that Petitioner’s habeas petitions be dismissed.
5. Petitioner failed to object to the Report and Recommendation within the applicable
deadline. On March 20, 2017, I issued an Order adopting the Report and Recommendation
and dismissing the habeas petition.

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6. On March 22, 2017, Petitioner’s counsel filed a motion requesting that the March 20, 2017
Order be vacated and that Petitioner’s right to file objections be “reinstated.” According to
counsel, on March 3, 2017, he sent Petitioner a copy of the Report and Recommendation
and a letter asking Petitioner whether he wanted to file objections. When counsel did not
hear from Petitioner, counsel assumed that Petitioner “no longer wished to litigate his
federal petition” and decided not to file objections to the Report and Recommendation.
Counsel explains that he sent the March 3, 2017 letter to SCI-Coal Township but, on
March 22, 2017, learned Petitioner had been transferred to SCI-Greene. Given the nature
of the proceedings and Petitioner’s prompt filing, I granted his request to file objections.
7. Petitioner then filed objections to the Report and Recommendation and Respondents filed
a response thereto. For the reasons that follow, the objections will be overruled and the
Report and Recommendation will be adopted.
LEGAL STANDARDS
8. Under 28 U.S.C. § 636(b)(1)(B), a district court judge may refer a habeas petition to a
magistrate judge for proposed findings of fact and recommendations for disposition. When
objections to a Report and Recommendation have been filed, the district court must make a
de novo review of those portions of the report to which specific objections are made. 28
U.S.C. § 636(b)(1)(C), Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In
performing this review, the district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1).
DISCUSSION
9. Petitioner objects to the Report and Recommendation’s “rejection of his trial counsel
ineffectiveness claim, after-discovered evidence claim, and due process claims all of which
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are partially or completely based on the statement Izaiya Davis provided to Mr. Boone’s
family in June 2012, who in turn provided it to PCRA counsel months before the PCRA
court dismissed Mr. Boone’s PCRA petition.” (Objs. p. 1.) Petitioner’s reference to the
“ineffectiveness claim” appears to correspond to Claim 3 (alleged trial counsel
ineffectiveness for failure to investigate Petitioner’s self-defense claim). The “afterdiscovered evidence claim” and the “due process claim” appear to correspond to Claim 4
(alleged PCRA counsel ineffectiveness for not incorporating Mr. Davis’ affidavit into
Petitioner’s PCRA petition and a due process claim predicated on Mr. Davis’ affidavit).
10. Petitioner did not object to the Report and Recommendation’s analysis of Claims 1 and 2.
Claim 3 – Trial Counsel Ineffectiveness
11. Magistrate Judge Caracappa recommended that Claim 3 be dismissed as procedurally
defaulted or, alternatively, denied on the merits.
12. In his objections, Petitioner states that his trial counsel ineffectiveness claim (Claim 3) is
“based, in part, on trial counsel’s failure to adequately investigate Mr. Boone’s case and to
find Izaiya Davis and obtain a statement from him. . . .” (Objs. p. 2.) I agree with
Respondents that Petitioner’s description of Claim 3 is inaccurate and that the “trial
counsel ineffectiveness claim was presented in both state and federal courts exclusively on
the basis of trial counsel’s failure to call – [two other individuals,] Jamella Best and Ernest
Murphy.” (Resp. to Objs. p. 3.)1

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In fact, in the amended petition, Petitioner states “trial counsel did not know of Izaiya Davis and
could not have been reasonably expected to know of her, find her, and interview her, the facts in
Ms. Davis’s affidavit could not support a state or federal trial counsel ineffectiveness claim. . .
[W]ith no viable trial counsel ineffectiveness claim, the only viable claims that could have been
based on Ms. Davis’s affidavit were newly-or after-discovered evidence state and federal claims.”
(Am. Pet. ¶ 108a-b.)
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13. Petitioner acknowledges that Claim 3 is procedurally defaulted but argues that the default
should be excused under Martinez v. Ryan, 566 U.S. 1 (2012).2 However, as noted above,
Claim 3 was limited to trial counsel’s failure to call Jamella Best and Ernest Murphy. It is
unclear how PCRA counsel’s failure to present the affidavit of a third witness—Mr.
Davis—would have any connection or relevance to the trial counsel ineffectiveness claim
actually before me. As such, Petitioner’s objection to the recommendation that Claim 3 be
dismissed as procedurally defaulted is sustained.
14. Additionally, Petitioner does not respond to the Report and Recommendation’s analysis of
the merits of the trial counsel ineffectiveness claim. For the reasons set forth in the Report
and Recommendation, I also agree that Claim 3 fails on the merits.
Claim 4 – PCRA Counsel Ineffectiveness/Due Process
15. Magistrate Judge Caracappa recommended that Claim 4 be dismissed as time barred.
Although Petitioner purports to object to the proposed disposition of Claim 4, he does not
dispute the conclusion that the claim is time barred. For the reasons set forth in the Report
and Recommendation, I agree that Claim 4 is time barred. I also note that the fact that
Petitioner requested and received an extension of time to amend his original habeas
petition does not change this ultimate conclusion that the claim is time barred or the
underlying analysis. Mayle v. Felix, 545 U.S. 644 (2005) (holding that for new claims in
an amended habeas petition to relate back to the original petition, the claims must arise
from the same core of facts as the timely-filed claims, not simply from the same state trial
and conviction).

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In Martinez, the Supreme Court held that “a procedural default will not bar a federal habeas court
from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. at 17.
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16. Aside from the timeliness issue, Claim 4 may also be non-cognizable. Claim 4 is
somewhat confusingly articulated as it references both PCRA counsel ineffectiveness and
due process. To the extent that Petitioner intended to pursue a standalone claim that PCRA
counsel was ineffective for failing to present Mr. Davis’s affidavit to the PCRA court, that
claim is non-cognizable. See 28 U.S.C. § 2254 (“The ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section 2254”).
17. To the extent Petitioner intended to present Claim 4 as a due process claim and invoked
PCRA counsel’s supposed ineffectiveness not as a standalone claim, but as a basis for
excusing the procedural default of his due process claim under Martinez v. Ryan, Claim 4
is procedurally defaulted.3 In Martinez, the Supreme Court recognized a narrow exception
to the procedural default rule and held that “[i]nadequate assistance of counsel at initialreview collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9. It held that, in those
situations, “a procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if” the default results from the ineffective
assistance of the prisoner’s counsel in the collateral proceeding. Id. at 17. Martinez,
however, is “highly circumscribed,” Davila v. Davis, 137 S. Ct. 2058, 2063 (2017), and
applies only to situations where PCRA counsel failed to raise issues of trial counsel’s
alleged ineffectiveness, not where PCRA counsel failed to raise other issues, such as due
process claims, that were never raised on direct appeal. See Boyd v. Rozum, No. 08-0012,
2012 WL 3595301, at *2 (W.D. Pa. Aug. 21, 2012) (holding that because petitioner

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Petitioner correctly acknowledges that, to the extent that his due process claim is predicated on
Mr. Davis’ affidavit, that claim is procedurally defaulted. (See Am. Pet. ¶ 8.)
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advanced double jeopardy and due process claims, “[p]etitioner’s argument (if any)
regarding the Martinez case would not be an appropriate manner by which to overcome the
procedural default”); Butler v. Collins, No. 11-2170, 2014 WL 7272503, at *12 (M.D. Pa.
Dec. 18, 2014) (“Martinez does not apply to the substantive due process claims Petitioner
first seeks to raise in the pending habeas corpus petition . . . the Martinez holding only
applies to ineffective assistance of trial counsel claims.”). Therefore, in addition to the
timeliness grounds as articulated in the Report and Recommendation, Claim 4 is also noncognizable or procedurally defaulted.
WHEREFORE, it is hereby ORDERED that:
1. Petitioner’s objections (Doc. No. 28) are OVERRULED;
2. The Report and Recommendation (Doc. No. 22) is APPROVED and ADOPTED;
3. The Petitions for Writ of Habeas Corpus are DENIED with prejudice and
DISMISSED without a hearing;
4. There is no basis for the issuance of a certificate of appealability; and
5. The Clerk of Court is directed to mark this case CLOSED.

BY THE COURT:

/s/ Mitchell S. Goldberg
___________________________
Mitchell S. Goldberg,
J.

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