MILAS v. OVERMEYER et al
Filing
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MEMORANDUM OPINION. SIGNED BY HONORABLE EDWARD G. SMITH ON 8/11/16. 8/12/16 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED. (mas, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES MILAS,
Petitioner,
v.
MICHAEL OVERMEYER, et al.,
Respondents.
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CIVIL ACTION NO. 15-3322
MEMORANDUM OPINION
Smith, J.
August 11, 2016
In April 2010, a jury convicted the pro se petitioner, James Milas, of multiple charges
including first-degree murder, and the Honorable Jeffrey P. Minehart of the Court of Common
Pleas of Philadelphia County sentenced him to life imprisonment. 1 See State Ct. R. The
petitioner challenged his convictions on direct appeal only to have the Pennsylvania appellate
courts deny his appeals. Id. The petitioner’s attempts to obtain relief through Pennsylvania’s
Post Conviction Relief Act were also unsuccessful. Id.
After his failed efforts at obtaining relief in the state courts, the petitioner sought relief in
federal court by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 and a
supporting memorandum of law on June 3, 2015. 2 Doc. No. 1. He also separately filed a motion
to stay and abey this federal habeas corpus proceeding to permit him to exhaust his unexhausted
claims in state court. Doc. No. 2. The motion to stay and abey also contained a request for the
appointment of counsel. Id.
1
Judge Minehart also sentenced the petitioner to a concurrent sentence of a minimum of two-and-one-half years to a
maximum of five years’ imprisonment on his other charges. See State Ct. R.
2
The federal “prisoner mailbox rule” provides that a pro se prisoner’s petition is deemed filed “at the time petitioner
delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 275-76
(1988). The petitioner attached to the petition a certification indicating that he placed the petition in the prison
mailing system on June 3, 2016. Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody at ECF p. 25, Doc. No. 1.
On June 25, 2015, this court referred this matter to United States Magistrate Judge
Marilyn Heffley for a report and recommendation. Doc. No. 3. The respondents, Michael
Overmeyer, the superintendent of the State Correctional Institution at Forest, the District
Attorney of the County of Philadelphia, and the Attorney General of the Commonwealth of
Pennsylvania, moved for and received four extensions of time to file a response to the habeas
petition. Doc. Nos. 5, 6, 8, 9, 10, 11, 13, 14. 3 On December 24, 2015, the respondents filed their
response to the habeas petition. Doc. No. 15.
Magistrate Judge Heffley issued a report and recommendation on May 27, 2016,
recommending that the court dismiss the petition for a writ of habeas corpus, deny the motion to
stay and abey, deny the request for the appointment of counsel, deny the request for an
evidentiary hearing, and decline to issue a certificate of appealability. Doc. No. 17. The
petitioner filed timely objections to the report and recommendation on June 7, 2016. 4 Doc. No.
21.
With regard to this court’s review of the report and recommendation, the court conducts a
de novo review and determination of the portions of the report and recommendation by the
magistrate judge to which there are objections. See 28 U.S.C. § 636(b)(1) (“A judge of the court
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.”); see also E.D. Pa. Loc. R. Civ. P. 72.1(IV)(b)
(providing requirements for filing objections to magistrate judge’s proposed findings,
recommendations or report). If a report and recommendation is unaccompanied by objections,
3
After the third extension, the petitioner sent a letter indicating that he objected to the court granting any further
requests for extensions of time. Doc. No. 12.
4
The petitioner had 14 days, i.e. until June 10, 2016, to timely file objections. The certification attached to the
petitioner’s objections suggests that he placed the objections in the hands of prison officials on June 7, 2016. Doc.
No. 21 at ECF p. 19. In addition, the envelope containing the objections has a postmarked date of June 9, 2016. Id.
at ECF p. 20.
2
the district court “need only review the record for plain error or manifest injustice.” Pereira v.
Wingard, No. 5:14-CV-6582, 2015 WL 4404920, at *1 (E.D. Pa. July 15, 2015) (internal
quotation marks and citations omitted). The 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)(C).
Here, the petitioner has objected to all of Magistrate Judge Heffley’s recommendations,
at least as they relate to the claims included in his habeas petition. See Objection[s] to the
Finding[s] of the Magistrate Judge (“Objs.”) at 9-17, Doc. No. 21. The court will therefore
review these claims de novo. It does not appear that the petitioner has objected to Magistrate
Judge Heffley’s recommendations relating to his request for the appointment of counsel, his
motion to stay or abey these proceedings, his request for an evidentiary hearing, or whether the
court should issue a certificate of appealability if the court denies the petition. The court will
therefore review these recommendations for plain error or manifest injustice. As explained in
more detail below, the court does not find that the objections undercut the well-reasoned
recommendations and conclusions by Magistrate Judge Heffley. In addition, the court finds no
error or manifest injustice in Judge Heffley’s other recommendations.
The petitioner’s first objection relates to Magistrate Judge Heffley’s recommendation that
the court deny his fourth claim in his petition that his trial counsel was ineffective for failing to
request that the trial court instruct the jury that evidence about him possessing drugs at the time
police sought to arrest him (which he introduced through his own testimony at trial) could not be
used as evidence showing he committed the charged offenses. Objs. at 9-11. In denying this
claim as part of the petitioner’s PCRA, the PCRA court noted that the petitioner introduced
evidence of his drug possession as exculpatory evidence and to explain why he fled from the
residence when the police entered it. See State Ct. R., Commonwealth v. Milas, No. CP-51-CR-
3
942-2009 at 6-7 (C.P. Philadelphia Jan. 27, 2014). 5 The PCRA court also pointed out that
defense counsel “emphasized” this evidence during his closing argument and, as such, the PCRA
court concluded that a limiting instruction would have undermined the petitioner’s defense. Id.
at 6. Additionally, even if counsel’s conduct in failing to request a limiting instruction fell below
the objective standard of reasonableness the PCRA court determined that the petitioner could not
have shown prejudice because such an instruction would not have affected the outcome of the
trial due to the overwhelming evidence of his guilt. Id. On appeal, the Superior Court agreed
with the trial court and rejected this ineffective assistance of counsel claim. State Ct. R.,
Commonwealth v. Milas, No. 10 EDA 2014 at 4 (Pa. Super. Oct. 14, 2014). 6
In the report and recommendation, Magistrate Judge Heffley thoroughly analyzed this
issue and this court agrees with her reasoning and conclusion that the state courts did not
unreasonably apply the standard for ineffectiveness set forth in Strickland v. Washington, 466
U.S. 668 (1984) in determining that trial counsel’s decision not to request a limiting instruction
from the trial court did not fall below the objective standard of reasonableness and that the
petitioner otherwise failed to satisfy Strickland’s prejudice requirement. Therefore, the court
overrules this first objection.
For his second objection, the petitioner objects to Magistrate Judge Heffley’s
recommendation that the court deny the first three claims in his habeas petition relating to the
prosecutor’s closing argument to the jury that his silence at the time of the petitioner’s arrest was
evidence of guilt. 7 Objs. at 12-14. On direct appeal, the Superior Court determined that the trial
5
This opinion is also attached to the respondents’ response at Exhibit B.
This opinion is also attached to the respondents’ response at Exhibit C.
7
The petitioner claimed that (1) the trial court erred in overruling defense counsel’s objection to the prosecutor’s
statement, and (2) his post-trial, appellate, and PCRA counsel were ineffective for not raising this claim and instead
filing a no merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) and Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988). See Mem. of Law in Supp. of Pet. for Habeas Corpus Under [28 U.S.C. 2254] (“Pet.’s
Mem.”) at 10-19, Doc. No. 1-1. Although the petitioner purports to assert three claims in his habeas petition relating
6
4
court correctly concluded that the petitioner “did not suffer from prosecutorial misconduct”
because “the prosecutor was justified in pointing to [the petitioner’s] flight as indicative of
guilt.” Commonwealth v. Milas, No. 2454 EDA 2010 at 7 (Pa. Super. July 12, 2011) (citation
omitted). 8 The Superior Court also pointed out that the prosecutor explained to the jury that they
“‘can’t find [the petitioner] guilty because he fled from the police, nor should you. That would
be unfair. There has to be more.’” Id. (quoting Notes of Testimony from April 15, 2010, at 13334).
As part of the PCRA proceedings, the PCRA court rejected the petitioner’s rehashed
claims that it erred by overruling defense counsel’s objection to the prosecutor’s statement and
that there was prosecutorial misconduct. See Commonwealth v. Milas, No. CP-51-CR-942-2009
at 5-6 (C.P. Philadelphia Jan. 27, 2014).
The PCRA court also rejected the petitioner’s
ineffective assistance of post-trial and appellate counsel claims because (1) appellate counsel
raised the prosecutorial misconduct and trial court error claims on direct appeal, and (2) even if
appellate counsel had failed to raise it, the petitioner was not entitled to relief because he failed
to establish prejudice under Strickland. Id. at 6. The Superior Court concluded that the trial
court properly resolved these claims. Commonwealth v. Milas, No. 10 EDA 2014 at 4 (Pa.
Super. Oct. 14, 2014).
Magistrate Judge Heffley analyzed the petitioner’s claims of trial court error,
prosecutorial misconduct, and ineffectiveness of counsel and determined that (1) the petitioner
mischaracterized the prosecutor’s statement because “the prosecutor did not argue that [the
petitioner’s] silence in response to police questioning was evidence of guilt in violation of his
Fifth Amendment right against self-incrimination[; i]nstead, he argued that [the petitioner’s]
to the prosecutor’s statement during closing argument, the substance of the second and third claims essentially
repeat the plaintiff’s first claim and contain the same general arguments. See id.
8
This opinion is attached to the respondents’ response at Exhibit A.
5
flight from police was evidence of a guilty conscience, which was evidence of guilt[,]” (2) the
trial court did not err in overruling defense counsel’s objection to the prosecutor’s statement, (3)
direct appeal counsel raised arguments about trial court error and prosecutorial misconduct on
direct appeal and the Superior Court rejected them, (4) post-conviction counsel were not
ineffective for failing to raise a meritless argument, and (5) even if the prosecutor’s remarks were
improper, they did not have any material effect on the jury’s ability to fairly judge the evidence
and did not otherwise “so infect[] the trial with unfairness as to make the resulting conviction a
denial of due process.” R. & R. at 7-9 (citations and internal quotation marks omitted).
The petitioner’s objections to this portion of the report and recommendation constitute a
mere disagreement with Magistrate Judge Heffley’s determinations and do not support a finding
that she erred in concluding that the trial court did not err in overruling defense counsel’s
objection to the prosecutor’s statement, that there was prosecutorial misconduct, or that post-trial
or appellate counsel were ineffective in some manner with respect to this issue. With respect to
any claim that PCRA counsel was ineffective in presenting the aforementioned claims, the
petitioner cannot raise such a claim as part of this habeas proceeding. See 28 U.S.C. § 2254(i)
(“The ineffectiveness or competence of counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding arising under section 2254.”). As the
petitioner’s claims are meritless or improper, the court overrules his second objection. Even if
the petitioner could raise such a claim, the claim is meritless because the issue was raised on
direct appeal and rejected.
For his third objection, the petitioner objects to Magistrate Judge’s Heffley’s
recommendation that the court deny his sixth claim in his habeas petition, namely that the
prosecution violated Brady v. Maryland, 373 U.S. 83 (1963) “by failing to disclose to him that a
6
police officer who testified at trial, Officer Venziale, was under investigation or under indictment
by federal authorities for corruption.” R. & R. at 11; Objs. at 14-16.
In the report and
recommendation, Magistrate Judge Heffley pointed out that the PCRA court and appellate court
rejected his Brady claim and she agreed with the bases for rejecting the claim. R. & R. at 11-12.
As such, Magistrate Judge Heffley concluded that (1) the petitioner could not satisfy “his burden
to show that the Commonwealth suppressed evidence or that the allegedly suppressed evidence
was material to his defense[,]” and (2) the decisions by the Pennsylvania state courts were (a)
“neither contrary to nor an unreasonable application of clearly established federal law[,]” or (b)
“based on an unreasonable determination of the facts.” Id. at 12.
The petitioner’s objection to Magistrate Judge Heffley’s recommendation is largely
conclusory in nature with no substantive argument as to how she erred in reaching her
determination. Instead, the objection once again is a mere disagreement with the determination
and recommendation and does not warrant relief. The court agrees with the magistrate judge’s
reasoning that the petitioner is not entitled to habeas relief on his Brady claim and will overrule
his objection.
Regarding the petitioner’s final objection, he objects to Magistrate Judge Heffley’s
recommendation that the court deny his fifth claim in his habeas petition, which requested
habeas relief because the trial court improperly denied him his counsel of choice at trial. Objs. at
16-17; Pet.’s Mem. at 24-27. Magistrate Judge Heffley determined that the petitioner’s Sixth
Amendment claim was procedurally defaulted insofar as the petitioner failed to raise the claim
on direct appeal and the PCRA court declined to address the claim (under 42 Pa. C.S. § 9544(b)).
R. & R. at 13. The magistrate judge also concluded that he could not establish any grounds for
overcoming the procedural default. Id. at 13 n.3.
7
In addition to finding procedural default, Magistrate Judge Heffley concluded that the
claim was meritless. Id. at 13-15. The magistrate judge determined that the petitioner did not
establish a Sixth Amendment violation to be entitled to relief because (1) the petitioner
mentioned the possibility of obtaining new counsel immediately before the start of trial (and after
the empaneling of the jury), (2) the trial court inquired as to the reasons for the petitioner’s
request and found the reasons to be meritless, (3) the trial court’s decision “was not arbitrary, but
was an entirely reasonable evaluation of the circumstances.” 9 Id. at 15.
The petitioner has neither demonstrated that his Sixth Amendment claim has any merit
nor established any grounds to overcome the procedural default of this claim. Therefore, the
court agrees with the magistrate judge’s recommendation to deny relief based upon the fifth
claim in his habeas petition and the court will overrule the petitioner’s fourth objection.
Although the court has now addressed the petitioner’s objections to the report and
recommendation, the court must still address the magistrate judge’s recommendations that (1)
the court deny the request for the appointment of counsel, (2) the court deny the request for an
evidentiary hearing, (3) the court deny the motion to stay and abey these proceedings, and (4) the
court not issue a certificate of appealability. With respect to the first two recommendations,
Magistrate Judge Heffley did not commit plain error and there is no manifest injustice in denying
these requests. As the magistrate judge explains, the petitioner’s claims are meritless and do not
warrant the appointment of counsel or the holding of an evidentiary hearing. See R. & R. at 16
n.4. As for the third recommendation, Magistrate Judge Heffley properly concluded that there is
no basis to stay and abey this case because the petitioner’s claims are plainly meritless. Id.
9
The PCRA court also determined that even if the petitioner did not waive this issue, it lacked merit. See
Commonwealth v. Milas, No. CP-51-CR-942-2009 at 7-8 (C.P. Philadelphia Jan. 27, 2014). On appeal, the Superior
Court affirmed the PCRA court, but only referenced the PCRA court’s conclusion that the petitioner had waived the
claim. Commonwealth v. Milas, No. 10 EDA 2014 at 4 (Pa. Super. Oct. 14, 2014).
8
Finally, the court will not issue a certificate of appealability under 28 U.S.C. § 2253(c) because
the petitioner has failed to make a substantial showing of the denial of a constitutional right or
demonstrate that a reasonable jurist would debate the correctness of this ruling. 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In conclusion, the court will overrule the petitioner’s objections to the report and
recommendation because the court agrees with the magistrate judge that the claims raised in the
section 2254 habeas petition are meritless or procedurally defaulted. The court also agrees with
the magistrate judge’s recommendation that the court deny the petition. Additionally, the court
will deny the petitioner’s requests for an evidentiary hearing and for the appointment of counsel.
The court will also deny the petitioner’s motion to stay and abey these proceedings. Finally, the
court declines to issue a certificate of appealability.
A separate order follows.
BY THE COURT:
/s/ Edward G. Smith
EDWARD G. SMITH, J.
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