MOSES v. COMMONWEALTH OF PENNSYLVANIA et al
ORDER THAT PETITIONER'S OBJECTIONS (DOC. NO. 19) ARE OVERRULED; THE REPORT AND RECOMMENDATION (DOC. NO. 17) IS APPROVED AND ADOPTED; MOSES' PETITION FOR WRIT OF HABEAS CORPUS (DOC. NO. 1) IS DENIED; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; AND THE CLERK OF COURT IS DIRECTED TO MARK THIS CASE CLOSED.. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 10/11/17. 10/12/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PENNSYLVANIA, et al.
AND NOW, this 11th day of October, 2017, upon careful and independent consideration
of Petitioner Joshua Moses’s pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254, and upon de novo review of the Report and Recommendation of United States Chief
Magistrate Judge Linda K. Caracappa and Moses’s objections thereto, it is ORDERED:
Moses’s objections (Document 19) are OVERRULED 1;
Moses seeks relief from his 2009 state court conviction for robbery by threat of immediate
serious bodily injury, aggravated assault, and other offenses arising out of an incident in which
he took $94.00 from Adrian Vasquez and then, after Vasquez chased him into a fenced-in lot,
shot Vasquez in the thigh. In his habeas petition, Moses raises four claims alleging (1) the trial
court abused its discretion in sentencing him by failing to consider that Vasquez was attacking
him at the time of the shooting; (2) his trial counsel was ineffective for failing to prepare for trial
or present a self-defense argument; (3) the prosecution violated his due process rights under
Brady v. Maryland, 373 U.S. 83 (1963) by failing to call a witness who would have been helpful
to the defense; and (4) the trial court abused its discretion by taking a telephone call during
closing arguments and by imposing a sentence above the recommended sentencing guidelines
In March 2017, the Magistrate Judge issued a Report and Recommendation (R&R)
thoroughly addressing each of Moses’s claims and recommending that Moses’s habeas petition
be denied in its entirety. The Magistrate Judge concluded that Moses’s first, third, and fourth
claims were procedurally defaulted, and found his second claim failed on the merits.
The Court agrees with the Magistrate Judge that Moses’s first, third, and fourth claims
are procedurally defaulted because (1) he failed to raise his claim regarding the sentencing
court’s failure to consider that he was under attack at the time he shot Vasquez on direct appeal
or in his PCRA petition; (2) the Pennsylvania Superior Court reviewing Moses’s appeal from the
denial of his PCRA petition found Moses’s Brady claim and claim regarding the trial judge
taking a phone call were waived because Moses had failed to raise those claims on direct appeal;
and (3) on direct appeal, the Superior Court dismissed Moses’s challenge to his above-guidelines
The Report and Recommendation (Document 17) is APPROVED and
Moses’s Petition for Writ of Habeas Corpus (Document 1) is DENIED;
sentence as waived for failure to challenge the discretionary aspects of his sentence in a postsentence motion.
In his objections, Moses objects to the Magistrate Judge’s procedural default analysis by
reasserting the arguments set forth in his habeas petition. Moses also argues the Magistrate
Judge failed to consider a September 12, 2011, letter he received from the Defender Association
of Philadelphia, which, in Moses’s view, demonstrates cause for his defaulted claims. In the
letter, Karl Baker, Esq., Chief of the Appeals Division, informed Moses that the Pennsylvania
Superior Court had denied his direct appeal. Mr. Baker further advised Moses that he and Robin
Forrest, Esq., Moses’s appellate attorney, saw “no realistic possibility of securing further review
or relief” because (1) although trial counsel had filed a motion for reconsideration arguing
Moses’s sentence should be reduced based on the fact that Moses had been under attack by the
victim at the time he fired the gun, self-defense was not a viable defense because Moses had
initiated the assault by robbing the victim at gunpoint; and (2) the remaining appellate issue was
that the total sentence was excessive, but this argument was weak because it had not been
presented to the sentencing court and the sentence was discretionary in any event. “For these
reasons,” Mr. Baker concluded, “it is not our intention to petition the Supreme Court to hear your
case because there is no realistic likelihood of obtaining review or relief in that court.” Objs. Ex.
A. Moses argues Mr. Baker’s letter provides a basis to excuse the default of his claims under
Martinez v. Ryan, 566 U.S. 1 (2012) because the letter makes clear that his appellate counsel was
aware of the potential issues that could have been raised on appeal, and counsel’s bad advice
caused the default of his claims. In Martinez, the Supreme Court held the failure of collateral
review counsel to raise an ineffective assistance of trial counsel claim in an initial review
collateral proceeding can constitute cause for a procedural default of the ineffective assistance of
trial counsel claim if (1) collateral review counsel’s failure to raise the claim constituted
ineffective assistance of counsel, and (2) the underlying ineffective assistance of trial counsel
claim “is a substantial one,” meaning “the claim has some merit.” 566 U.S. at 14. As the
Magistrate Judge found, Martinez applies only to initial collateral review counsel’s default of a
claim of ineffective assistance of trial counsel. Martinez is therefore inapplicable to Moses’s
trial court error and Brady claims. Cf. Harris v. Folino, No. 14-0893, 2016 WL 5334683, at *5
(E.D. Pa. Mar. 31, 2016) (“Martinez is inapplicable to this claim because Petitioner asks this
Court to review a claim of PCRA court error. Petitioner alleges that PCRA counsel was
ineffective for failing to raise the trial court’s error and not trial counsel’s error.”).
Insofar as Moses objects to the Magistrate Judge’s analysis of his ineffective assistance
of counsel claim, he merely reasserts the same arguments set forth in his habeas petition. Upon
de novo review, this Court agrees with the Magistrate Judge’s analysis and proposed disposition
of this claim. Moses’s objections are therefore overruled for the reasons stated in the R&R.
Moses having failed to make a substantial showing of the denial of a
constitutional right, a certificate of appealability shall not issue; and
The Clerk of Court is DIRECTED to mark this case CLOSED.
BY THE COURT:
/s/ Juan R. Sánchez .
Juan R. Sánchez, J.
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