JACKSON v. MAHALLY et al
ORDER THAT PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION AS TO CLAIMS ONE AND TWO OF THE PETITION FOR WRIT OF HABEAS CORPUS ARE SUSTAINED; PETITIONER'S OBJECTIONS TO THE R & R AS TO CLAIMS THREE AND FOUR OF THE PETITION FOR WRIT OF HABEAS CORPUS ARE OVERRULED; THE REPORT AND RECOMMENDATION (DOC. NO. 28) IS ADPTED IN PART AND REJECTED IN PART AS SET FORTH IN THIS ORDER; THE PETITION FOR WRIT OF HABEAS CORPUS IS REFERRED BACK TO U.S. MAGISTRATE JUDGE ELIZABETH T. HEY FOR APPOI NTMENT OF COUNSEL, FURTHER BRIEFING, A SUPPLEMENTAL REPORT AND RECOMMENDATION; PETITIONER'S SUPPLEMENTAL MOTION FOR DISCOVERY (DOC. NO. 27) IS DENIED AS MOOT.. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/9/18. 1/10/18 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
TOM MCGINLEY , et al.,
AND NOW, this 9th day of January, 2018, upon consideration of Petitioner’s Petition for
Writ of Habeas Corpus (Doc. No. 1), Respondent’s Response (Doc. No. 18), Petitioner’s Traverse
(Doc. No. 24), Petitioner’s Supplemental Motion for Discovery (Doc. No. 27), the Report and
Recommendation of United States Magistrate Judge Elizabeth Hey (Doc. No. 28), and Petitioner’s
Objections (Doc. No. 33), I find as follows:
1. On August 1, 2008, a jury found Petitioner guilty of first degree murder, firearms not to be
carried without a license, and possession of an instrument of crime. The convictions arose
from an incident, on May 29, 2007, during which Petitioner shot at the victim four times,
as the victim fled, ultimately hitting him in the back and killing him. On October 17,
2008, Petitioner was sentenced to an aggregate term of life in prison.
2. Petitioner timely filed a direct appeal asserting that the evidence was insufficient to sustain
his conviction and that the verdicts were against the weight of the evidence.
Petitioner named Lawrence P. Mahally as the Respondent in this action. However, Petitioner is
currently located in State Correctional Institute (“SCI”) at Coal Township, Pennsylvania, and the
current superintendent of SCI-Coal Township is Tom McGinley. Therefore, pursuant to Rule 2(a)
of the Rules Governing Section 2254 Cases, I have named Mr. McGinley as the respondent in this
Pennsylvania Superior Court affirmed the verdict on March 17, 2011, finding sufficient
evidence of Petitioner’s intent to kill. On July 12, 2011, the Pennsylvania Supreme Court
denied Petitioner’s request for allowance of appeal.
3. Petitioner filed a timely pro se petition pursuant to Pennsylvania’s Post-Conviction Relief
Act (“PCRA”), 42 Pa. C.S.A. §§ 9541–9551, setting forth claims of ineffective assistance
of both trial and appellate counsel, as well as claims of trial court error. On November 27,
2013, the court appointed counsel who filed an amended PCRA petition alleging modified
claims of ineffective assistance of trial and appellate counsel. The PCRA court dismissed
the petition without a hearing.
The Superior Court affirmed on August 31, 2015.
Although Petitioner’s first request for allowance of appeal to the Pennsylvania Supreme
Court was denied as untimely, he filed a second PCRA petition seeking leave to petition
for allowance of appeal nunc pro tunc. That petition was granted and Petitioner filed his
subsequent petition for allowance of appeal, which the Pennsylvania Supreme Court
denied on September 13, 2016.
4. On January 4, 2016, during the pendency of his second PCRA petition, Petitioner filed the
present pro se federal habeas petition setting forth four grounds for relief: (1) ineffective
assistance of PCRA counsel for abandoning an ineffectiveness claim premised on trial
counsel’s failure to meet with Petitioner prior to trial to devise a defense strategy;
(2) ineffective assistance of trial counsel for failing to meet with Petitioner prior to trial to
discuss defense trial strategy; (3) insufficient evidence to support a first-degree murder
conviction; and (4) trial court error for failing to grant a mistrial following instances of
In addition, Petitioner filed a motion for discovery and
requested an evidentiary hearing.
5. On April 18, 2017, United States Magistrate Judge Elizabeth Hey issued a Report and
Recommendation finding that Petitioner’s claim of PCRA counsel ineffectiveness is not
cognizable as a stand-alone claim, Petitioner’s claim of ineffective assistance of trial
counsel is procedurally defaulted, Petitioner’s claim of insufficient evidence is meritless,
and Petitioner’s claim of trial court error is both procedurally defaulted and meritless.
6. Petitioner timely filed objections on June 1, 2017.
7. 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. §
8. Petitioner’s objections to the Report and Recommendation challenge the Magistrate
Judge’s findings on all four of his habeas claims.
Claims One and Two
9. In claim one, Petitioner argues that PCRA counsel was ineffective for abandoning an
ineffective assistance of trial counsel claim that Petitioner had included in his original pro
se petition. The Magistrate Judge correctly found that this claim is not cognizable as a
stand-alone claim for habeas relief.
10. In claim two, Petitioner asserted the underlying ineffectiveness of trial counsel for failing
to meet with Petitioner prior to trial to discuss strategy, assess Petitioner’s demeanor and
credibility, discuss new evidence from Petitioner’s former girlfriend, and allow Petitioner
adequate time to evaluate a plea bargain. The Magistrate Judge also correctly noted that
this claim is procedurally defaulted because it was never raised in his counseled PCRA
11. Finally, the Magistrate Judge remarked that, under Martinez v. Ryan, 566 U.S. 1 (2012),
the PCRA counsel ineffectiveness claim (claim one) could serve as cause to excuse the
procedural default of the underlying trial counsel ineffectiveness claim (claim two). To
establish cause under Martinez, Petitioner had to “demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that . . .
the claim has some merit.” Martinez, 566 U.S. at 14. Addressing that question, the
Magistrate Judge concluded that Petitioner’s underlying trial counsel ineffectiveness claim
was not “substantial” for purposes of Martinez.
The Report and Recommendation
reasoned that Petitioner failed “to address how the trial counsel’s strategy was inadequate,
what alternative strategy counsel should have chosen to pursue, what information he was
unable to share as a result of trial counsel’s failure to meet with him face-to-face prior to
trial, and whether he would have either testified or pled guilty had counsel performed
Because she deemed the underlying claim of trial counsel
ineffectiveness not substantial, the Magistrate Judge concluded that procedural default
could not be excused.
12. Petitioner objects to this finding and argues that his underlying trial counsel
ineffectiveness claim was indeed “substantial.” In support, he asserts that (1) trial counsel
informed him of a plea bargain offering fifteen to thirty years in prison just hours prior to
voir dire, and (2) trial counsel failed to meet face-to-face prior to trial to discuss
“important aspects” of his case. (Pet.’s Objections 4.) Petitioner’s Objections to the
Magistrate Judge’s Report go on to argue that “had it not been for trial counsel’s lack of
communication and delay in proposing said plea bargain, Petitioner would have had time
to consider the deal and would have taken the deal.” (Id.) According to Petitioner’s
Objections, trial counsel did not give Petitioner ample time to consider the deal and, in
fact, she advised Petitioner to decline the deal “as she felt confident in winning the case
and felt that ‘the State did not have a strong case’ for a conviction.” (Id.) Finally,
Petitioner’s Objections assert that an evidentiary hearing regarding off-the-record
conversations will disclose that Petitioner would have accepted the deal and that he lost
the opportunity to take the more favorable sentence. (Id. at 5.)
13. Based on the record before me, I cannot find that Petitioner’s underlying ineffective
assistance of counsel claim for failure to timely communicate a plea bargain is meritless.
Ineffective assistance of counsel claims are analyzed under the two-part test set forth in
United States v. Strickland, 466 U.S. 668 (1984), to determine whether a defendant’s
constitutional rights have been violated by trial counsel’s performance. Id. at 687. First,
“the defendant must show that counsel’s performance was deficient,” i.e., that it fell below
“prevailing professional norms.” Id. at 687–88. Second, “the defendant must show that
the deficient performance prejudiced the defense,” i.e. “that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at
687. To establish an unfair trial, a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
14. In a recent pair of cases, the Supreme Court has held that defense counsel has a duty to
communicate formal plea offers to the defendant and that failure to properly communicate
an offer may constitute ineffective assistance of counsel. Missouri v. Frye, 566 U.S. 133,
145 (2012). In order to effectively assist their clients in the plea bargaining process,
counsel must provide a criminal defendant “enough information ‘to make a reasonably
informed decision whether to accept a plea offer.’” U.S. v. Bui, 795 F.3d 363, 366 (3d
Cir. 2015) (quoting Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013) (further quotations
omitted). To establish that counsel’s improper communication of a plea offer constitutes
ineffective assistance, a defendant must show that, but for counsel’s failure, there is a
reasonable probability “that the plea offer would have been presented to the court, that the
court would have accepted its terms, and that the conviction or the sentence, or both, under
the offer’s terms would have been less severe than under the judgment and sentence that in
fact were imposed.” Lafler v. Cooper, 566 U.S. 156, 164 (2012).
15. The United States Court of Appeals for the Third Circuit has suggested that proper
analysis of ineffective assistance of counsel during the plea bargaining stage requires an
evidentiary hearing unless the files and records of the case conclusively show that the
petitioner is entitled to no relief. United States v. Vaughn, __ F. App’x __, 2017 WL
3484974, at *4–5 (3d Cir. Aug. 15, 2017). Numerous courts that have faced such claims
on habeas corpus review have analyzed their merits based either on testimony developed
during state court proceedings or testimony from a habeas evidentiary hearing. See, e.g.,
United States v. Giamo, 153 F. Supp. 3d 744, 755–56 (E.D. Pa. 2015) (analyzing
ineffectiveness claim regarding plea offer based on evidentiary hearing testimony), aff’d,
665 F. App’x 154 (3d Cir. 2016); Boston v. Mooney, No. 14-229, 2015 WL 6674530, at
*13 (E.D. Pa. Jan. 9, 2015) (addressing testimony regarding plea discussions from PCRA
proceeding), report and recommendation adopted by 141 F. Supp. 3dd 352 (E.D. Pa. Oct.
29, 2015); Smith v. United States, No. 09-533, 2014 WL 4825369, at *3–10 (D. Del. Sept.
29, 2014) (holding an evidentiary hearing to address ineffective assistance of counsel
claim for failure to communicate a plea agreement).
16. Here, Petitioner’s ineffective assistance of trial counsel claim for failure to timely
communicate a plea offer was never raised in the state court and, therefore, never
addressed in any substantive fashion.
Petitioner presented this claim in the federal
proceedings,2 and the Magistrate Judge appropriately framed the relevant question as
whether the underlying ineffectiveness claim is “substantial”—i.e., that it has some
merit—such that PCRA counsel’s failure to raise it was cause to excuse the procedural
When addressing this question, however, the Magistrate Judge did not
acknowledge the standards set forth in Frye and Lafler. Moreover, the Magistrate Judge
did not have the benefit of a developed record from either prior state court proceedings or
a federal evidentiary hearing in order to determine whether counsel failed to timely inform
Specifically, in his Traverse, Petitioner argues that “[b]efore petitioner started to select his jury,
the very first time, he met his trial counsel face to face was inside an attorney-client room, where
trial counsel had inform[ed] petitioner of a plea bargain for 15 to 30 years. Petitioner contends
that if trial counsel would have consulted pertinent aspects of his case with him prior to trial
which would ha[ve] given him the appropriate amount of time to consider said guilty plea bargain
for 15 to 30 years, petitioner could have expended this time consulting with his family.” (Pet.’s
Traverse, ECF No. 24, at p. 6.)
Petitioner of the plea offer or whether Petitioner would have pled guilty had counsel
17. Taking Petitioner’s allegations as true,3 I find that Petitioner has, in fact, set forth a
plausible claim of ineffective assistance of counsel which could have merit if substantiated
by the evidence.4 Petitioner contends that trial counsel failed to communicate the plea
offer until just hours before trial and then recommended that he not take it, thereby
depriving Petitioner of the opportunity to meaningfully consider the plea offer and consult
with his family. If testimony establishes that trial counsel knew of the plea offer prior to
that date and never told Petitioner about it, trial counsel could be deemed to have rendered
a deficient performance under the first prong of Strickland.
18. Moreover, Petitioner has plausibly alleged prejudice under the second prong of Strickland
in that the plea bargain allegedly offered fifteen to thirty years’ imprisonment, and
Petitioner ultimately received a life sentence after trial. Whether that plea offer would
have been presented to the state court and whether the court would have accepted its terms
are not facts that Petitioner can establish absent some discovery into off-the-record
conversations, what defense counsel knew and when, and what plausibly could have
occurred had the plea agreement been put before the trial court.
The court must accept the truth of the petitioner’s allegations unless they are clearly frivolous
on the basis of the existing record. Vaughn, 2017 WL 3484974, at *3.
Petitioner requested an evidentiary hearing to explore, in part, trial counsel’s failure to timely
inform Petitioner of a proposed plea agreement. (Pl.’s Request for an Evidentiary Hrg., ECF No.
25.) While I leave the decision regarding an evidentiary hearing to the Magistrate Judge, I note
that the current record does not provide a sufficient basis on which to adjudicate Petitioner’s
19. Accordingly, I decline to adopt the Report and Recommendation as to claims one and two.
I will refer the case back to the Magistrate Judge for an evidentiary hearing and a
supplemental report and recommendation on these issues.
20. Claim three of Petitioner’s habeas petition alleges that the evidence was insufficient to
support his conviction for first-degree murder because the government did not demonstrate
that he possessed the specific intent to kill.
21. In the Report and Recommendation, the Magistrate Judge agrees with the Pennsylvania
Superior Court’s assessment of this issue on direct appeal. According to state court, the
evidence established that Petitioner shot at the victim as the victim fled from Petitioner,
and that one of the bullets entered the victim’s back and penetrated multiple organs. An
eyewitness, Mylan Harrison, saw Petitioner and the victim together just prior to the
shooting and observed Petitioner shoot the victim in the back from a distance of fifteen
feet. The Magistrate Judge concluded that, based on this evidence, the Commonwealth
had met its burden of establishing that Petitioner possessed the specific intent to kill by
showing that Petitioner used a deadly weapon upon a vital part of the victim’s body.
22. Petitioner objects on the grounds that eyewitness Harrison was not reliable. Petitioner
reasons that, at trial, Harrison stated that he witnessed the entire shooting. (N.T. 7/29/08,
When confronted with prior preliminary hearing testimony, however,
Harrison admitted that he did not observe Petitioner actually shooting and, because he ran
away, did not see what happened to the victim after the shooting. (N.T. 7/29/08, pp. 263–
64, 268.) Petitioner now argues:
Commonwealth witness Harrison did not know what the pair were
talking about before the shooting. He did not know what the
petitioner’s intent was. Harrison observed no arguing, shouting, or
any actions by the petitioner or the decedent to suggest that the
decedent was about to be shot. Although the victim was shot
through a vital part of the body, the [C]ommonwealth failed to
present any evidence that the shooter was aiming at a vital organ or
intended to shoot a vital organ. The eyewitness did not see anything
in the seconds before the shooting or in the minute or so prior to the
shooting saw nothing that would foreshadow a shooting.
(Pet.’s Objections 8.)
Petitioner contends that, absent Harrison’s testimony, the
Commonwealth could not meet its burden of proving specific intent to kill.
23. I find no merit to this objection. First-degree murder is homicide committed with an intent
to kill 18 Pa. Cons. Stat. § 2502(a). Intentional killing is “[k]illing by means of . . . willful,
deliberate and premeditated killing.”
Id. § 2502(d).
A “willful, deliberate and
premeditated killing” occurs where the actor has manifested the specific intent to end the
life of the victim. Commonwealth v. Nelson, 523 A.2d 728, 732 (Pa. 1987). “The use of a
deadly weapon on a vital part of the human body is sufficient to establish the specific
intent to kill.”
Commonwealth v. Walker, 656 A.2d 90, 95 (Pa. 1995); see also
Commonwealth v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005) (evidence that defendant
shot victim, who died from a gunshot wound that entered his back and passed through his
heart, was sufficient to establish specific intent to kill).
24. Here, Harrison testified that he saw Petitioner and the victim on the night of the crime, that
there was no one else on the block at the time, and that he heard gunshots and ran. (N.T.
7/29/08, pp. 192–93, 262–64.) That specific testimony is undisputed and unchallenged by
Petitioner. The medical examiner then testified that the victim died from a perforating
gunshot wound to the back that exited through his chest. (Id. at p. 279.) Based on such
evidence, the jury could have concluded that Petitioner acted with specific intent to kill.
Therefore, I will overrule this objection.
25. In claim four of his petition for habeas relief, petitioner argued that the trial court erred by
failing to grant Petitioner a mistrial following two alleged incidents of prosecutorial
misconduct: (1) the prosecutor’s opening statement where he stated that both the victim
and the victim’s brother had been murdered and the victim’s mother was suffering as a
result; and (2) the prosecutor’s question on cross-examination where he asked how many
times the witness had seen Petitioner with a gun, which was not a fact in evidence.
26. The Magistrate Judge concluded that this claim was procedurally defaulted because it was
not presented in either his direct appeal or his PCRA appeal. Furthermore, she rejected
Petitioner’s attempt to establish cause for his default.
Finally, the Magistrate Judge
remarked that even if she were to construe the claim as one of ineffective assistance of
counsel for failing to request a mistrial due to prosecutorial misconduct (a claim Petitioner
had exhausted), both the Superior Court on direct appeal and the PCRA court properly
found these claims meritless because the trial court gave curative and/or cautionary
instructions to the jury.
27. Petitioner now objects to the R&R only to the extent it found that the prosecutor’s
comment regarding the murder of the victim’s brother was not grossly inflammatory.5
Petitioner contends that this comment prevented a fair trial and could not be cured by a
28. I agree with the Magistrate Judge that the prosecutor’s comments did not deprive
Petitioner of a fair trial. The Third Circuit maintains a presumption that juries follow the
Petitioner also objects to the finding that this claim is procedurally defaulted. I need not
address this argument because I agree with the Magistrate Judge’s finding that the claim is
substantively meritless. Petitioner does not raise an objection as to the R&R’s findings on the
prosecutor’s allegedly prejudicial cross-examination question.
instructions given by district courts unless there is an “overwhelming possibility” that the
jury will be unable to follow it and a strong likelihood that the effect of the
evidence/statement would be “devastating” to the defendant. United States v. Hakim, 344
F.3d 324, 330 (3d Cir. 2003) (citations omitted).
Where a curative instruction is given
almost immediately after the objection, the risk of prejudice is drastically minimized. Id.
29. Here, during opening statements, the prosecutor stated, “you will find, despite an earlier
conviction for theft in New Jersey for which Mylan Harrison [the eyewitness] received
probation, that he was not on any probation when he called the detectives himself and told
them what he saw. Because he knew this was Ms. McCorey’s second son to go down this
way.” (N.T. 7/29/08, p. 50.) Immediately after the prosecutor referenced the murder of
the victim’s brother, defense counsel objected. Id. The court sustained the objection and
struck the statement from the record. At the end of the closing statement, the trial judge
gave the following cautionary instruction:
Jurors, during the opening argument, counsel, Mr. Sax, mentioned
that the victim’s mother had another son who was victimized by a
murder as well. That is in no way relevant to this case. This
defendant is in no way involved in that case and has not been
charged in any way regarding that case. Therefore, you should
totally disregard that comment when considering the evidence in
this case. It is not relevant to the issues involved in this case.
(N.T. 7/29/08, p. 68.) The trial judge subsequently reminded the jury, at the close of trial,
that statements of lawyers are not evidence. (N.T. 7/31/08, p. 193.)
30. Given these instructions, I cannot find that Petitioner was deprived of a fair proceeding
based on the trial court’s refusal to grant a mistrial. The offending comments were made
during opening statements. The jury was specifically told that the murder of the victim’s
brother had nothing to do with the case before it and that Petitioner had no involvement in
Petitioner does not identify what prejudice remains after these curative
instructions. Accordingly, I agree with the R&R and will overrule Petitioner’s objection
on this basis.
WHEREFORE, it is hereby ORDERED that:
1. Petitioner’s Objections to the Report and Recommendation as to claims one and two of the
Petition for Writ of Habeas Corpus are SUSTAINED;
2. Petitioner’s Objections to the Report and Recommendation as to claims three and four of
the Petition for Writ of Habeas Corpus are OVERRULED;
3. The Report and Recommendation (Doc. No. 28) is ADOPTED IN PART and
REJECTED IN PART as set forth in this Order;
4. The Petition for Writ of Habeas Corpus is REFERRED back to United States Magistrate
Judge Elizabeth Hey for appointment of counsel, further briefing, any necessary
evidentiary hearing, and a supplemental report and recommendation on the sole issue of
the merits of Petitioner’s claim that trial counsel was ineffective for failing to discuss a
plea bargain with him until just prior to the start of trial;
5. Petitioner’s Supplemental Motion for Discovery (Doc. No. 27) is DENIED AS MOOT.
BY THE COURT:
/s/ Mitchell S. Goldberg
Mitchell S. Goldberg,
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