ECKERT v. GRIOUX et al

Filing 14

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 1/11/17. 1/12/17 ENTERED AND COPIES MAILED TO PETITIONER; EMAILED TO COUNSEL AND COPY TO LEGAL.(jaa, ) Modified on 1/12/2017 (jaa, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DAVID ERKERT
Petitioner-pro se
v.
NANCY GIROUX, et al.
Respondents

:
:
:
:
:
:
:

CIVIL ACTION
NO. 15-5726

NITZA I. QUIÑONES ALEJANDRO, J.

JANUARY 11, 2017

MEMORANDUM OPINION
INTRODUCTION
Petitioner David Erkert (“Petitioner” or “Erkert”), a Pennsylvania state prisoner who is
proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and
asserts that his trial, appellate, and post-conviction relief counsel were ineffective. [ECF 1]. On
November 12, 2015, in accordance with Title 28 U.S.C § 636(b)(1)(A) and Local Civil Rule
72.1.IV(c), the habeas corpus petition was referred to United States Magistrate Judge Timothy
R. Rice for a Report and Recommendation (“R&R”). [ECF 2]. On April 29, 2016, Magistrate
Judge Rice issued the R&R, in which he recommended that the petition for a writ of habeas
corpus be denied. [ECF 9]. Petitioner filed timely objections to the R&R. [ECF 11]. This
matter is ripe for a de novo determination of the objections to portions of the report.
After a thorough de novo review of the state court record, the habeas corpus petition, the
memorandum of law in support of the habeas corpus petition, [ECF 6], the R&R, and
Petitioner’s specific objections, for the reasons stated herein, Petitioner’s objections are

overruled, the R&R is approved and adopted, and the petition for a writ of habeas corpus is
denied. 1
BACKGROUND
Because the R&R provides a thorough summary of the facts in this matter, this Court will
only highlight the relevant evidence necessary to address Petitioner’s objections. Succinctly, the
facts are:
In February 2004, Petitioner was indicted in the Delaware County Court of
Common Pleas on two cases: (1) one involving three charges of involuntarily
deviant sexual intercourse (the “IDSI case”); and (2) the other involving
attempted murder, aggravated assault, terroristic threats, retaliation against a
witness, and possession of a weapon (the “attempted murder case”). In December
2005, the trial court consolidated the two cases. In March 2006, Petitioner was
tried before a jury which was presided over by the Honorable Ann Osborne.
Briefly, the pertinent evidence presented at trial is as follows:
In the summer of 2003, 16-year-old W.M., his older
brother, and his brother’s girlfriend went to Erkert’s home to
consume alcohol. Erkert, who was 36, was friends with W.M.’s
brother and some of W.M.’s friends. After drinking, W.M. passed
out and awoke to find Erkert on top of him performing oral sex.
When W.M. told him to stop, Erkert punched him and continued to
sexually assault him. Erkert took W.M. home and threatened to
hurt him if he told anyone about the incident. Erkert sexually
assaulted W.M. twice more in 2003.
In early 2004, W.M. told his father, M.M., about the sexual
assaults by Erkert. W.M. and M.M. went to the police station
where W.M. provided a statement to Detective Beese about the
sexual assaults. The police attempted to contact Erkert about the
charges, but could not locate him. Late one night approximately
one week later, Erkert broke into M.M. and W.M.’s home armed
with a machete. Erkert threatened to kill M.M. and struck him
with the machete. He also attempted to locate W.M., who was
hiding in a closet. M.M. eventually restrained Erkert until the
police arrived.

1

Petitioner also filed a motion for a certificate of appealability. [ECF 13]. For the reasons stated
herein, this Court also denies Petitioner’s motion for certification.

2

Erkert was arrested and, a few days later, provided a
statement to Detective Beese. Erkert admitted to having oral sex
with W.M. on three occasions, but stated W.M. had initiated the
sex and consented. He further admitted to going to W.M.’s home
late one night to speak to W.M. about his false accusations to the
police. He said he was not in the right state of mind and brought a
machete for his protection.
During the voir dire process, a potential juror, Ms. Kohler, stated that
Detective Beese, a witness for the prosecution, was a close family friend and that
despite this association, she could be fair and impartial. Neither the prosecutor
nor defense counsel moved to strike or challenge Ms. Kohler’s qualifications
during their respective selection process. Ms. Kohler was selected as an alternate
juror. On the third day of trial, a juror became unavailable and Ms. Kohler was
substituted in place of said juror. Prior to being seated, however, the trial judge
again questioned Ms. Kohler regarding her relationship with Detective Beese.
Ms. Kohler stated that Detective Beese lived near her and when she was younger
she had an affectionate relationship with him, and had named her cat after him.
She reiterated that her relationship with Detective Beese would not affect her
ability to be fair and impartial. Again, neither party asked any questions or
objected to her serving on the jury.
At the conclusion of his trial, Petitioner was convicted of attempted
murder, two counts of aggravated assault, possession of a weapon, retaliation
against a witness, burglary, and three counts of involuntarily deviant sexual
intercourse. He was subsequently sentenced to an aggregate term of thirty-five
and one-half (35.5) to seventy-three (73) years of incarceration, to be followed by
thirty-five (35) years of probation. 2
On October 20, 2015, Petitioner timely filed the underlying pro se petition for writ of
habeas corpus. [ECF 1]. In his habeas petition, Petitioner asserts ineffective assistance of
counsel claims, claiming that: (1) trial counsel was ineffective for causing him to waive his right
to testify; (2) trial counsel was ineffective for failing to strike Ms. Kohler, a biased juror; and (3)
2

Following his conviction and sentence, Petitioner filed a timely appeal with the Superior Court of
Pennsylvania. On July 9, 2009, the Superior Court denied the appeal and affirmed the judgment of
sentence. Petitioner did not file an allowance of appeal to the Pennsylvania Supreme Court nor seek a
writ of certiorari from the United States Supreme Court. Instead, on May 26, 2010, Petitioner filed a pro
se petition for relief under the Pennsylvania Post-Conviction Relief Act, 42 Pa. Const. Stat. Ann. § 9524,
et. seq., (“PCRA”). On April 13, 2012, an amended petition was filed by PCRA counsel. Following an
evidentiary hearing on the PCRA petition, the PCRA court dismissed Petitioner’s petition. An appeal
followed and the Superior Court affirmed the dismissal; the Pennsylvania Supreme Court denied the
petition seeking an allowance of appeal.

3

his PCRA counsel was ineffective for failing to argue that appellate counsel was ineffective for
failing to argue that the consolidation of his IDSI case with the attempted murder case violated
his constitutional right to testify at trial. (Id. at 5-9).
As stated, the habeas petition was referred to Magistrate Judge Rice, who submitted a
well-reasoned R&R addressing Petitioner’s habeas claims and recommending that the petition be
denied. Petitioner filed timely objections to the R&R.
LEGAL STANDARD
Where objections to an R&R are filed, the court must conduct a de novo review of the
contested portions of the R&R, see Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989)
(citing 28 U.S.C. § 636(b)(1)(C)), provided that the objections are both timely and specific.
Goney v. Clark, 749 F.2d 5, 607 (3d Cir. 1984). In conducting its de novo determination, a court
may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the
magistrate judge. 28 U.S.C. § 636(b)(1). Although the review is de novo, the statute permits the
court to rely on the recommendations of the magistrate judge to the extent it deems proper.
United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7. Objections which
merely rehash an argument presented to and considered by a magistrate judge are not entitled to
de novo review. Becker v. Tennis, 2011 WL 2550544, at *1 n.3 (E.D. Pa. June 23, 2011) (court
declining to address contentions included in petitioner’s objections, concluding that they are
“nothing more than a restatement of the underlying claims contained in his petition.”) (citing
Morgan v. Astrue, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)); see also Nghiem v.
Kerestes, 2009 WL 960046, at *1 n.1 (E.D. Pa. Apr. 3, 2009) (court declining to engage in
additional review of objections where the objections merely re-articulated all the claims and
theories for relief that were addressed and dismissed by the magistrate judge).

4

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) amended the standards
for reviewing state court judgments in federal habeas petitions filed pursuant to 28 U.S.C. §
2254, and restricted the circumstances under which a federal habeas court may grant relief to a
state prisoner whose claim has already been “adjudicated on the merits in State court.” 28 U.S.C.
§ 2254(d); Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000); see also, Lindh v. Murphy, 521
U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA increased the deference federal
courts must give to the factual findings and legal determinations of the state courts. Werts, 228
F.3d at 196; Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996). In accordance with § 2254(d), a
habeas corpus petition may only be granted if the state court’s adjudication of the claim: “(1)
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see also Williams v.
Taylor, 529 U.S. 362, 376 (2000).
To establish that the state court decision was “contrary to” federal law, “it is not
sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is
more plausible than the state court’s; rather, the petitioner must demonstrate that Supreme Court
precedent requires the contrary outcome.” Matteo v. Superintendent, SCI Albion, 171 F.3d 877,
888 (3d Cir. 1999) (emphasis in original). Similarly, a federal court may only find a state court
decision to be an “unreasonable application” of federal law if the decision, “evaluated
objectively and on the merits, resulted in an outcome that cannot reasonably be justified under
existing Supreme Court precedent.” Id. at 890.

5

Factual issues determined by a state court are presumed to be correct and the petitioner
bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. §
2254(e)(1). “This presumption of correctness applies to factual determinations of both state trial
and appellate courts.” Lewis v. Horn, 581 F.3d 92, 111 (3d Cir. 2009). Consequently, a habeas
petitioner “must clear a high hurdle before a federal court will set aside any of the state court’s
factual findings.” Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001). That is, “the
requirements of 2254(d) are difficult to meet,” Johnson v. Williams, 133 S. Ct. 1088, 1091
(2013), as this section “sharply limits the circumstances in which a federal court may issue a writ
of habeas corpus to a state prisoner.” Id. at 1094.
Here, Petitioner asserts claims of ineffective assistance of counsel. When addressing the
merits of ineffective assistance of counsel claims on habeas review, the court is to consider the
“clearly established federal law” two-pronged inquiry articulated by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). Thus, to sustain an ineffectiveness assistance of
counsel claim, a petitioner must show that counsel’s performance was objectively deficient, and
that this deficient performance prejudiced the defense. Id. at 687. To establish that counsel was
deficient requires the petitioner to show that “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. To
show prejudice, the petitioner must make a “showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id.; see also Frey v.
Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992) (“[A] petitioner must demonstrate a reasonable
probability that, but for the unprofessional errors, the result would have been different.”).
However, a court must defer to counsel’s tactical decisions, avoiding “the distorting effects of
hindsight,” and give counsel the benefit of a strong presumption of reasonableness. Strickland,

6

466 U.S. at 689; Gov’t of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1431 (3d Cir. 1996).
Under the Strickland standard, “counsel cannot be held ineffective for failing to raise a claim that
is without merit or futile.” Boston v. Mooney, 2015 WL 6674530, at *12 (E.D. Pa. Jan. 9, 2015)
(internal citations omitted).
Where the state court has denied an ineffectiveness claim on its merits, a habeas
petitioner must show the state court’s decision was “objectively unreasonable.” Renico v. Lett,
559 U.S. 766, 773 (2010); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (review of
ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal
habeas”).

“[I]t is not enough to convince a federal habeas court that, in its independent

judgment, the state-court decision applied Strickland incorrectly.” Bell v. Cone, 535 U.S. 685,
698-99 (2002).
DISCUSSION
With these principles in mind, this Court will address Petitioner’s claims in turn; to wit:
that trial counsel was ineffective for the advice given which caused him to waive his right to
testify and for not striking a biased juror; and that his PCRA counsel was ineffective for failing
to argue that his appellate counsel was ineffective for not arguing that the consolidation of his
two unrelated cases denied him his constitutional right to testify.
Trial Counsel Ineffectiveness for Causing Petitioner to Waive Right to Testify
Petitioner contends that despite wanting to testify in the IDSI case to refute the victim’s
testimony and to establish his state of mind before and during the alleged sexual assaults, he did
not testify on the advice of counsel. [ECF 6 at 6]. Petitioner also contends that trial counsel
“erroneously informed him that he could be questioned about a prior drug conviction,” and/or
about events relevant to the attempted murder case. (Id. at 6-7).

7

As to the latter aspect of his ineffectiveness of trial counsel claim, Magistrate Judge Rice
noted that Petitioner did not raise this claim in his PRCA proceeding and, therefore, this claim is
unexhausted, and procedurally defaulted because the time to raise this issue in state court has
passed. (R&R at 5). 3 This Court agrees. Notably, Petitioner has not objected to the R&R
regarding this claim. Thus, this Court’s review of this finding is made under the plain error
standard. 4 After a thorough review of the record and the R&R, this Court finds no error in the
Magistrate Judge’s conclusion as to this claim.
As to the former aspect of his ineffectiveness of trial counsel claim, that trial counsel was
ineffective for not advising him as to which facts regarding the attempted murder case he could
be cross-examined if he chose to testify in the IDSI case, Petitioner made this same argument in
his PCRA proceedings. [ECF 8-7 ¶ 12(A)]. On appeal of the PCRA decision, the Superior
Court rejected the argument on the merits, and noted that while Petitioner initially expressed
confusion during the colloquy on whether the prosecutor would be entitled to question him
regarding facts of the attempted murder case should he decided to testify, Petitioner later stated

3

“[A] federal habeas court may not grant a petition for writ of habeas corpus unless the petitioner
has first exhausted the remedies available in the state courts.” Lambert v. Blackwell, 134 F.3d 506, 513
(3d Cir. 1997) (citing 28 U.S.C. § 2254(b)(1)(A)). “[I]f [a] petitioner failed to exhaust state remedies and
the court to which 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 the purpose
of federal habeas . . . .” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); McCandless v. Vaughn,
172 F.3d 255, 260 (3d Cir. 1999). To survive procedural default in the federal courts, a petitioner must
either “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750.
4

In the absence of any objections, this Court reviewed the R&R under the “plain error” standard.
See Facyson v. Barnhart, 2003 WL 22436274, at *2 (E.D. Pa. May 30, 2003). Under this plain error
standard of review, an R&R should only be rejected if the magistrate judge commits an error that was “(1)
clear or obvious, (2) affect[ed] ‘substantial rights,’ and (3) seriously affected the fairness, integrity or
public reputation of judicial proceedings.” Leyva v. Williams, 504 F.3d 357, 363 (3d Cir. 2007) (internal
quotations and citations omitted).

8

that his attorneys explained that he could be questioned about some facts related to the attempted
murder case and that he understood the explanation. Com. v. Erkert, 2015 WL 7431521, at *3-4
(Pa. Super. Ct. Mar. 11, 2015). Based upon Petitioner’s acknowledgement that he understood
counsels’ explanation as to the potential scope of cross-examination he might face should he
testify, the Superior Court concluded that trial counsel was not ineffective. Id. at 4.
In his objection, Petitioner expresses frustration for not understanding the legal scope of
the cross-examination he faced had he decided to testify in the IDSI case, and disagrees with the
Magistrate Judge’s finding by stating that the Magistrate Judge “can opine what he likes but the
truth is [I] still don’t understand to this day how [I] could testify in one case and not the other
while the cases were being tried together.” [ECF 11 at 1]. Because Petitioner’s objections to the
Magistrate Judge’s findings and recommendation regarding this claim are essentially the same
claims and arguments addressed by the Magistrate Judge, this Court does not need to perform a
de novo review, nor is one warranted, since doing so would “defeat any benefit of judicial
efficiency gained by the report and recommendation process.” Palmer v. Astrue, 2010 WL
1254266, at *2 (E.D. Pa. Mar. 31, 2010) (quoting Morgan, 2009 WL 3541001, at *4); see also,
e.g., Becker, 2011 WL 2550544, at *1 n.3. Yet, in the interest of judicial economy, this Court
considered this claim de novo.
Generally, the rules of evidence govern the admissibility of evidence at trial.
Pennsylvania Rule of Evidence 611(b) provides in part that while cross-examination is generally
“limited to the subject matter of the direct examination and matters affecting credibility,” the
trial court “may, in the exercise of discretion, permit inquiry into additional matters as if on
direct examination.” Pa. R. Evid. 611(b); see also Com. v. Green, 581 A.2d 544, 558–59 (1990)
(“In criminal cases, the right of cross-examination extends beyond the subjects testified to on

9

direct testimony and includes the right to examine a witness on any facts tending to refute
inferences or deductions arising from matters testified to on direct examination.”). Thus, had
Petitioner taken the stand to testify in the IDSI case, it would have been the trial judge’s
discretion whether Petitioner would have been required to testify, if questioned, as to the events
relevant to the attempted murder case. Such judicial determination depends on many factors,
such as what Petitioner may have testified to on direct examination, the interplay between the
events in the IDSI case and his alleged motive in the attempted murder case, and the prosecutor’s
discretion and obligations to the state regarding the events relevant to the attempted murder case.
Further, despite Petitioner’s assertion to the contrary, his trial counsel was given and obliged
themselves of ample time to discuss and explain to Petitioner the possible ramifications of
testifying, a fact Petitioner acknowledged and affirmed he understood.
Therefore, after carefully reviewing the entire record, this Court finds that the Superior
Court’s ruling was not contrary to, or an unreasonable application of, clearly established federal
law, namely, Strickland. Because trial counsel had a reasonable basis to advise Petitioner not to
testify, advice that Petitioner acknowledged at the time that he understood, Petitioner’s
ineffectiveness of counsel argument fails. See 28 U.S.C. § 2254(d); Strickland, 466 U.S. at 668,
687; Renico, 559 U.S. at 733. Therefore, Petitioner’s objections as to this claim are overruled. 5

5

Petitioner also asserts that the Superior Court’s decision was contrary to Strickland because it did
not perform a prejudice review. [ECF 6 at 9-10]. Petitioner is mistaken. Because Petitioner could not
establish that his trial counsels’ performance was deficient, Petitioner could not succeed on his ineffective
assistance of counsel claim. Thus, the Superior Court was not required to consider the prejudice element
of the Strickland analysis. See Strickland, 466 U.S. at 687 (holding that to sustain a claim for ineffective
assistance of counsel, a petitioner must show that counsel’s performance was objectively deficient and
that this deficient performance prejudiced the defense.). Once Petitioner failed in showing that trial
counsel was deficient, there was no need to address the prejudice prong.

10

Trial Counsel Ineffectiveness for Failing to Strike Biased Juror
Petitioner contends that trial counsel was ineffective for failing to strike Ms. Kohler from
the jury on the basis that she was an “obviously biased juror.” [ECF 6 at 11]. The Magistrate
Judge concluded that the Superior Court’s opinion that trial counsel was effective was not an
unreasonable application of Strickland and, thus, recommended denying Petitioner relief on this
claim. (R&R at 11-12). Petitioner objects to this recommendation, and argues that his trial
counsel were deficient because trial counsel never discussed Ms. Kohler with him during voir
dire and, had they, he never would have agreed to allow a family friend of the arresting officer to
be selected as a juror. [ECF 11 at 2]. Petitioner contends that Ms. Kohler was biased in favor of
the prosecution in general, and that failing to challenge her qualifications was an unreasonable
trial strategy on the part of his trial counsel. (Id. at 2-3).
As to Petitioner’s contention that his trial counsel never discussed Ms. Kohler with him
during voir dire, the record contradicts this contention. Specifically, in the Superior Court’s
opinion, said court noted that one of Petitioner’s trial attorneys testified at the PCRA hearing that
he “discussed [Ms. Kohler’s] familiarity with Detective Beese with Erkert,” and told Petitioner
“that they could seek to strike this juror, but that it was their recommendation to keep her
because she fit their overall voir dire strategy.” 6 Erkert, 2015 WL 7431521, at *4. This overall
voir dire strategy was to have young individuals on the jury. Petitioner “went along” with the
recommendation and did not object to keeping Ms. Kohler on the panel. (Id.). Petitioner
disputes this factual finding and argues that his trial counsel is “either both lying to save face, or
their memory of it is befuddled,” since he was never told of Ms. Kohler’s potential bias. [ECF
11 at 2]. Based upon the record before this Court, Petitioner has failed, however, to rebut, by
6

Initially, Ms. Kohler was selected as an alternate, but later became part of the jury deciding
Petitioner’s cases.

11

clear and convincing evidence, the Superior Court’s factual findings that he was informed of Ms.
Kohler’s potential bias and agreed to allow her to be selected. See 28 U.S.C. § 2254(e)(1);
Mastracchio, 274 F.3d at 597-98. As such, deference is given to the presumption of correctness
of the state court’s factual finding.

Accordingly, Petitioner’s objection on this ground is

overruled.
As to Petitioner’s argument that failing to challenge or strike Ms. Kohler as a juror was
an unreasonable trial strategy on the part of his trial attorneys, the Superior Court considered,
and rejected, this argument. The Superior Court, while noting that the claim had “arguable
merit,” ultimately concluded that Petitioner failed to establish that trial counsel had no
reasonable basis for their decision to seek to strike Ms. Kohler from the jury. Erkert, 2015 WL
7431521, at *4. To the contrary, the Superior Court noted that trial counsel testified at the PCRA
hearing that their strategy for voir dire was to select younger jurors because counsel believed that
“younger jurors would be more willing to accept Erkert’s defense to the sex case – that the
homosexual relationship between them was consensual.” Id. The Superior Court accepted
counsels’ sound legal strategy explanation and noted that Petitioner “failed to allege, much less
prove, that the strategy of seating younger jurors at all costs did not provide a reasonable basis
designed to effectuate his interests.” Id. 7
In giving the appropriate deference to trial counsels’ strategic legal decisions, see
Strickland, 466 U.S. at 689, and to the Superior Court’s determination that counsels’ decision
was strategic and reasonable, see Renico, 559 U.S. at 773, this Court finds that the decision of
7

Pennsylvania essentially applies the same test for ineffectiveness assistance of counsel as the
federal courts. See Werts v. Vaughn, 228 F.3d 178, 203-04 (3d Cir. 2000); Commonwealth v. Sneed, 899
A.2d 1067, 1076 (Pa. 2006) (Requireing a petitioner to show: “(1) his underlying claim is of arguable
merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interest; and (3) but for counsel’s ineffectiveness, there is a reasonable
probability that the outcome of the proceedings would have been different.”).

12

trial counsel to not challenge Ms. Kohler, despite her familiarity with Detective Beese, in order
to seat younger jurors on the panel who might be more inclined to favor Petitioner and
understand the homosexual acts, was not so erroneous so as to conclude that counsel was “not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” See Strickland,
466 U.S. at 687. Thus, trial counsel did not provide ineffective representation or assistance.
While other defense attorneys may have made a different strategic decision, “[t]here are
countless ways to provide effective assistance in any given case [and even] the best criminal
defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at
689 (Noting that it “is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.”). Accordingly, Petitioner’s objection on this ground is overruled.
Even assuming that trial counsel should have objected to Ms. Kohler, Petitioner has not
established the second prong of the inquiry; that he was prejudiced by trial counsels’ decision not
to challenge Ms. Kohler’s placement on the jury. A review of the record shows that even if Ms.
Kohler was predisposed to accept Detective Beese’s testimony, despite claiming she would be
impartial, the prosecution presented additional damaging evidence to prove its case against
Petitioner, including the testimony of M.M. Notwithstanding Petitioner’s conclusory assertion
that Ms. Kohler’s relationship with Detective Beese automatically predisposes her to the
prosecution, Petitioner has failed to provide any support that the results of the verdict would have
been different had Ms. Kohler been struck from the jury. See Frey, 974 F.2d 348, 358 (“[A]
petitioner must demonstrate a reasonable probability that, but for the unprofessional errors, the

13

result would have been different.”). 8 In light of this additional consideration, Petitioner has
failed to prove prejudice and, therefore, his objection on this ground is overruled.
PCRA Counsel Ineffectiveness for Failing to Argue Appellate Counsel Ineffectiveness
Lastly, Petitioner contends that his PCRA counsel was ineffective for failing to argue that
appellate counsel was ineffective for not arguing that the consolidation of the IDSI and attempted
murder cases unconstitutionally denied him his right to testify. However, claims of ineffective
assistance of PCRA counsel are not cognizable on habeas review. See 28 U.S.C. § 2254(i) (“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.”);
Coleman, 501 U.S. at 725 (“Because there is no constitutional right to an attorney in state post
conviction proceedings . . . a petitioner cannot claim constitutionally ineffective assistance of
counsel in such proceedings.”) (internal citations omitted). 9 Accordingly, Petitioner’s claim for
habeas relief on this ground is denied.
CONCLUSION
For the reasons stated herein, Petitioner’s objections to the Report and Recommendation
lack merit and are overruled. Consequently, the Report and Recommendation is approved and
8

This Court also notes that, under Pennsylvania case law, a prospective juror should be excused
for cause “when the potential juror has such a close relationship, be it familial, financial or situational,
with parties, counsel, victims, or witnesses” such that prejudice should be presumed. Com. v. Lipinski,
2014 WL 10965379, at *4 (Pa. Super. Ct. Mar. 27, 2014). Remote relationships to an involved party are
not a basis for disqualification where the prospective juror, as occurred here, indicates during voir dire
that he or she will not be prejudiced. Id. at 4-5 (noting that, in an earlier case, the trial court’s decision
not to disqualify the son-in-law of the investigating detective was not error). In this case, Ms. Kohler’s
relationship was not with one of the victims, the prosecutor, or a material witness to the actual events at
issue. For these additional reasons, Petitioner cannot show that he was prejudiced by Ms. Kohler’s
inclusion on the jury.

9

Under limited circumstances, the ineffectiveness of collateral counsel can establish cause for a
procedural default of an ineffective assistance of trial counsel claim. Martinez v. Ryan, 132 S. Ct. 1309,
1320 (2012)

14

adopted, and Petitioner’s pro se petition for a writ of habeas corpus is denied.

Because

reasonable jurists would not debate the disposition of Petitioner’s claims, a certificate of
appealability is denied. 10

See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

An Order

consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.

10

In his motion, Petitioner asserts that “other jurists would possible feel that these issues have merit
and are deserving of review.” [ECF 13 at 1]. Petitioner does not provide any legal or factual support for
this contention. This Court, after its thorough review of the record, disagrees with Petitioner’s contention.
Thus, Petitioner’s motion is denied.

15