GRANT v. TICE et al

Filing 25

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; PETITIONER'S OBJECTIONS ARE OVERRULED; THE PETITION FOR WRIT OF HABEAS CORPUS AND THE AMENDED PETITION ARE DISMISSED AND DENIED; A CERTIFICATE OF APPEALABILITY WILL NOT ISSUE. SIGNED BY HONORABLE JAN E. DUBOIS ON 5/6/19. 5/7/19 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED.(jpd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TYRONE GRANT,

CIVIL ACTION
Petitioner,

v.
ERIC TICE,
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA, and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

NO. 17-3471

ORDER
AND NOW, this 3rd day of May, 2019, upon consideration of pro se Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus (Document No. 1, filed August 2, 2017), pro se
Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Document No. 11, filed
December 17, 2017), the record in this case, the Report and Recommendation of United States
Magistrate Judge Elizabeth T. Hey dated November 8, 2018 (Document No. 19), and pro se
Petitioners [sic] Objection to Report and Recommendation (Document No. 24, filed December
27, 2018), IT IS ORDERED as follows:
1.

The Report and Recommendation of United States Magistrate Judge Elizabeth T.

Hey dated November 8, 2018, is APPROVED and ADOPTED;
2.

Pro se Petitioners [sic] Objection to Report and Recommendation is

OVERRULED. The claim raised for the first time in pro se Petitioners [sic] Objection is
DISMISSED WITH PREJUDICE;
3.

Pro se Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus and pro se

Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus are DISMISSED and
DENIED; and

4.

A certificate of appealability will not issue because reasonable jurists would not

debate whether the petitions state a valid claim of the denial of a constitutional right or this
Court’s procedural ruling with respect to petitioner’s claim raised for the first time in his
Objection to the Report and Recommendation. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 484 (2000).
The decision of the Court is based on the following:
I.

INTRODUCTION1
Pro se petitioner, Tyrone Grant, was sentenced to an aggregate term of not less than ten

and no more than twenty years’ imprisonment, followed by twenty-five years’ probation after
pleading nolo contendere to two counts of robbery and one count each of Violation of Uniform
Firearms Act (“VUFA”), Possessing Instruments of Crime (“PIC”), and Receiving Stolen
Property (“RSP”). R. &. R. 1–3. The sentence results from three criminal cases, Commonwealth
v. Grant, Nos. CP-51-CR-0014144-2007 (“44” case), CP-51-CR-0014145-2007 (“45” case), CP51-CR-0014153-2007 (“53” case). Specifically, petitioner pled no contest to (1) one count of
robbery and one count of PIC in the “44” case, (2) one count of robbery and one count of VUFA
in the “45” case, and (3) one count of RSP in the “53” case.
Petitioner filed Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus on August 2,
2017. This case was referred to United States Magistrate Judge Elizabeth T. Hey for a report and
recommendation on October 12, 2017. Petitioner filed Amended Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus on December 11, 2017. R. & R. 8 n.9.

The facts and procedural history of this case are set forth in detail in Judge Hey’s Report and Recommendation,
dated November 8, 2018, which this Court approves and adopts with this Order. In this Order, the Court recites only
those facts necessary to explain its rulings on pro se petitioner’s objections.
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Judge Hey recommended denial of the petitions in a Report and Recommendation dated
November 8, 2018. On December 27, 2018, petitioner filed an Objection challenging that part of
the Report and Recommendation addressing petitioner’s ineffective assistance of counsel claim
based on trial counsel’s failure to object to modification of the plea agreement, R. & R. 21–22,
and raising a new claim that trial counsel was ineffective for failing to object to petitioner’s plea
of no contest to a felony count of PIC. Pet’r’s Objection to R&R (“Pet. Obj.”) 1–2. The Court
overrules petitioner’s objections and approves and adopts Judge Hey’s Report and
Recommendation. The Court writes at this time only to explain its rulings on pro se petitioner’s
objections.
II.

LEGAL STANDARD
Where a court refers a habeas petition to a magistrate judge, “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 . . . [and] the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1)(C).
Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996, a petition for habeas corpus may only be granted if the state court’s
adjudication of the claim resulted in a decision that was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or (2) “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)(1)–(2). “Factual
issues determined by a state court are presumed to be correct and the petitioner bears the burden

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of rebutting this presumption by clear and convincing evidence.” Werts v. Vaughn, 228 F.3d
178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)).
“Before a federal court may grant habeas relief to a state prisoner, the prisoner must
exhaust his remedies in state court.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28
U.S.C. § 2254(b)(1)(A). When a claim has not been fairly presented to the state courts, but state
procedural rules bar further relief in state courts, the claim “meets the technical requirements for
exhaustion” but is considered procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 732
(1991). In such cases, federal habeas review is barred unless the petitioner can show “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 would result in a fundamental miscarriage of justice.” Id. at
750.
III.

DISCUSSION
Pro se petitioner objects to Judge Hey’s Report and Recommendation on two grounds.

First, he challenges Judge Hey’s analysis of his claim of ineffective assistance of trial counsel for
failure to object to the prosecutor’s modification of the plea agreement. Second, he raises a new
claim of ineffective assistance of counsel for failure to object to petitioner’s no contest plea to
one felony count of PIC. Pet. Obj. 1–3.
A. Ineffective Assistance of Counsel – Failure to Object To Prosecutor’s
Modification of Plea Agreement
Petitioner claims trial counsel was ineffective for failing to object to the prosecutor’s
modification of the plea agreement. Am. Pet. ¶ 12.
During the sentencing judge’s reading of the charges in petitioner’s no contest plea
colloquy, the judge erroneously stated that petitioner was pleading no contest to a VUFA charge
in the “44” case instead of the “45” case. R. & R. 18, 22. Upon defense counsel’s objection, the

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prosecutor stated that he had made an error in the written plea colloquy in identifying the cases.
Id. The prosecutor then modified the plea agreement to correct the charges. Id. at 18. Petitioner
then initialed the corrected plea document and verbally assented to the changes. Id. The Court
Crier then restated the charges, this time correctly stating that petitioner was pleading no contest
to a PIC charge in the “44” case and to a VUFA charge in the “45” case. Id. at 18–19.
Reviewing the record, Judge Hey concluded that petitioner defaulted his claim by failing
to exhaust the claim. R. & R. 21. Judge Hey further concluded that “even undertaking merits
review of the underlying ineffective assistance of trial counsel, the claim fails because Grant
cannot establish prejudice under Strickland.” Id. at 22. Specifically, “[b]ecause the correction of
the clerical error had no effect on the number or types of charges to which Grant pled, and Grant
agreed to the change before the trial court accepted his plea and convicted him, any additional
objection raised by trial counsel to the ‘prosecutor’s modification’ once the error was corrected
would have been meritless.” Id.
In his Objection, petitioner contends that Judge Hey applied the incorrect test for
prejudice. Pet. Obj. 1. He argues that instead of applying the general prejudice standard from
Strickland v. Washington, 466 U.S. 668 (1984), Judge Hey should have applied the more specific
prejudice standard from Hill v. Lockhart, 474 U.S. 52, 59 (1985). Pet. Obj. at 1–2.
The Strickland prejudice standard requires a defendant to “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. Hill applies the Strickland prejudice test to the
context of guilty pleas: “in order to satisfy the ‘prejudice’ requirement, the defendant must show
that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59.

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Petitioner’s argument fails because petitioner cannot show prejudice under either
Strickland or Hill. “The plea colloquy indicates that the trial court did not accept Grant’s plea
until after the correction was made and acknowledged by Grant orally and by initialing the
form.” R. & R. 20. The error was corrected before petitioner pled no contest, and therefore he
cannot “show that there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial” as required by Hill, or that “the
result of the proceeding would have been different,” under Strickland. Hill, 474 U.S. at 59;
Strickland, 466 U.S. at 694. In short, applying the more specific Hill test instead of the broader
Strickland test has no impact on Judge Hey’s correct determination that petitioner cannot
establish prejudice.
B. Ineffective Assistance of Counsel – Failure to Object to Petitioner’s No Contest
Plea to One Felony Count of PIC
Petitioner also raises an ineffective assistance of counsel claim based on his trial
counsel’s failure to object to petitioner’s no contest plea to a felony charge of PIC. During the
plea colloquy, the Court described the PIC count as a “felony one offense.” See R. & R. 17.
However, PIC is graded as a first-degree misdemeanor offense. 18 Pa. Cons. Stat. § 907.
This claim was not raised in petitioner’s § 2254 Petition or Amended Petition, nor was it
raised before Magistrate Judge Hey. “Petitioner’s obligation to present all evidence to the
magistrate judge is made abundantly clear by Local Civil Rule 72.1(IV)(c). That Rule provides
that ‘[a]ll issues and evidence shall be presented to the magistrate judges, and unless the interest
of justice requires it, new issues and evidence shall not be raised after the filing of the Magistrate
Judge’s Report and Recommendation if they could have been presented to the magistrate
judge.’” See Figueroa v. Wenerowicz, No. 14-7330, 2016 WL 1298963, at *2 (E.D. Pa. Apr. 4,
2016) (DuBois, J.).

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Petitioner provides no reason why his ineffective assistance of counsel claim could not
have been presented to Judge Hey. The Court concludes the interest of justice does not require
the consideration of the new claim because petitioner could have raised this claim before Judge
Hey. See Fowler v. Mooney, No. 14-1768, 2015 WL 6955434, at *2 (E.D. Pa. Nov. 9, 2015)
(DuBois, J.) (concluding “the interest of justice does not require consideration of the new claims
because all such claims could have been presented to the magistrate judge by pro se petitioner,
and he failed to do so”). Furthermore, a review of the criminal dockets reveals that at
sentencing, the PIC count was correctly graded as a first-degree misdemeanor. Thus, petitioner’s
new claim is not properly before the Court. The objection purporting to raise this claim not
raised in the habeas corpus petitions and not presented to the magistrate judge is overruled and
the claim is dismissed with prejudice.
IV.

CONCLUSION
For the foregoing reasons, the Court approves and adopts the Report and

Recommendation of Judge Hey, overrules petitioner’s Objection to Report and
Recommendation, dismisses with prejudice the claim raised for the first time in the Objection,
and dismisses and denies petitioner’s Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus
and his Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus.

BY THE COURT:
/s/ Hon. Jan E. DuBois
DuBOIS, JAN E., J.

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