GAGO v. COMMONWEALTH OF PENNSYLVANIA

Filing 26

MEMORANDUM AND/OR OPINION RE: REPORT AND RECOMMENATION. SIGNED BY THE HONORABLE GENE E.K. PRATTER ON 2/16/2021. 2/17/2021 ENTERED AND COPIES MAILED (BY CHAMBERS) AND E-MAILED.(sfl, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EDWIN GAGO,
Petitioner

CIVIL ACTION

v.
TERESA DELBALSO, et al.,
Respondents

No. 19-3064

MEMORANDUM
PRATTER,J.

FEBRUARY 16, 2021

Edwin Gago petitions for federal habeas relief pursuant to Section 2254 of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254. Magistrate
Judge Heffley reviewed the record and the parties' submissions. She recommended that the
petition be denied because each of the claims is meritless. Mr. Gago objected to the Report and
Recommendation, reiterating the substantive arguments raised in his petition.
After reviewing the

parties'

submissions,

the

state record,

the

Report and

Recommendation, and Mr. Gago's objections, the Court adopts the Report and Recommendation
in part and modifies it in part. It adopts the Report and Recommendation's finding that relief
should be denied as to the four claims. However, because two of the claims were not exhausted
in the state court proceedings, they are now procedurally barred from this Court's review. For the
reasons that follow, Mr. Gago's petition for a writ of habeas corpus and his request for a stay are
denied.
BACKGROUND AND PROCEDURAL HISTORY

Mr. Gago challenges his criminal convictions for attempted first-degree murder,
aggravated assault, and several weapons offenses, for which he is currently serving a 15-to-30year sentence.

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Mr. Gago's convictions arise out of the shooting of Edward DeOleo Valdez, the boyfriend
of Mr. Gago' s ex-girlfriend. As recounted by the trial court, Mr. DeO leo was walking to the comer
grocery store where he worked as a clerk, when he heard footsteps behind him. Shortly before
reaching the store, he turned and recognized the man approaching him as Mr. Gago. Although
Mr. Gago was wearing a black mask, Mr. DeOleo identified him based on his body, face, and eyes.
He acknowledged Mr. Gago by his nickname, "Mingo," to which Mr. Gago responded, "I told you
I would get you in the street, Cabron." As Mr. DeOleo turned to flee, Mr. Gago fired multiple
shots, striking Mr. DeOleo in the back, stomach, and head. Video surveillance of the street
captured the shooting.
The owner of the grocery store came to his assistance and called Maritza Rodriguez,
Mr. DeOleo's girlfriend-and Mr. Gago's ex. Mr. DeOleo repeated to both that "Mingo" shot
him. While he was recovering in the hospital from multiple surgeries, Mr. DeOleo confirmed
Mr. Gago was the assailant. At trial, he again identified Mr. Gago as the shooter.
At the time of the shooting, Ms. Rodriguez had secured a restraining order against
Mr. Gago to protect her and her two sons. She testified that Mr. Gago had repeatedly harassed
her, threatened self-harm following their separation, and-while they were together-physically
abused her.
The Commonwealth theorized that Mr. Gago was a jealous spumed lover.

At trial,

Mr. Gago countered that narrative by claiming that it was Ms. Rodriguez who repeatedly sent him
messages and sought reconciliation. In support, he produced text and Facebook messages from a
number and account allegedly belonging to Ms. Rodriguez. The Commonwealth rebutted that
claim by introducing evidence that the originating number from which those messages were sent
belonged not to Ms. Rodriguez, but to Mr. Gago's brother.

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Mr. Gago also presented alibi,'.testimony from various family members. Two of these
witnesses testified that Mr. Gago was not on the street outside the grocery store at the time of the
shooting.

A third witness presented a novel narrative of the events.

She testified that

Ms. Rodriguez was present in person at the time of the shooting and that Ms. Rodriguez was the
aggressor because she "spoke in a bad tone" to Mr. Gago.
The jury rejected Mr. Gago's evidence and theories. He was sentenced to an aggregate
term of 15 to 30 years' imprisonment.
Mr. Gago directly appealed his conviction and sentence. The Pennsylvania Superior Court
affirmed the sentence, Commonwealth v. Gago, No. 19452 EDA 2012, 2013 Pa. Super. Ct. LEXIS
2819 (Pa. Super Ct. Nov. 20, 2013) (unpublished memorandum), and the Pennsylvania Supreme
Court denied his petition for allowance of appeal, Commonwealth v. Gago, 94 A.3d 1007 (Pa.
2014). Having exhausted his challenges on direct appeal, he then filed a timely petition in 2015
under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541 et seq. ("PCRA").
On collateral attack, he raised three challenges regarding his trial counsel. The PCRA Court held
an evidentiary hearing, after which it dismissed his petition on the merits in 2017. Commonwealth

v. Gago, CP-51-CR-0013691-2010, 2017 Phila. Ct. Com. PL LEXIS 453 (Ct. Com. Pl. Dec. 18,
2017). The Pennsylvania Superior Court affirmed the dismissal in 2018, Commonwealth v. Gago,
No. 1230 EDA 2017, 2018 WL 6321536, at *3 (Pa. Super. Ct. Dec. 4, 2018), and the Pennsylvania
Supreme Court denied a petition for allowance of appeal in 2019.
Mr. Gago then filed this petition for federal habeas relief. Although he raised some of the
same claims of ineffective counsel, his petition also raised new arguments. The Commonwealth
filed a response to the petition, arguing that Mr. Gago is not entitled to relief because his claims
are either procedurally barred or meritless.

Magistrate Judge Heffley issued a Report and

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Recommendation recommending that- the petition be denied as meritless. Mr. Gago then filed his
objections.
STANDARD OF REVIEW

When assessing a magistrate judge's report and recommendations, the reviewing court
must make a "de novo detem1ination of those portions of the report or specified proposed findings
or recommendations to which objection is made." 28 U.S.C. § 636(b)(l)(C). The court "may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." Id.
I.

Exhaustion and Procedural Default under AEDP A

A prerequisite to federal habeas review is that the state petitioner has exhausted all
available remedies under state law, to the extent they exist and are effective.

28 U.S.C.

§ 2254(b)(l)(A); Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). This means that "[a]ll claims
that a petitioner in state custody attempts to present to a federal court for habeas corpus review
must have been fairly presented to each level of the state courts." Lines v. Larkins, 208 F.3d 153,
159 (3d Cir. 2000). The exhaustion doctrine is "principally designed to protect the state courts'
role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose
v. Lundy, 455 U.S. 509,518 (1982).

When a court is presented with a "mixed" petition-including exhausted and unexhausted
claims-Lundy requires that the district court dismiss the petition. Id. at 523. But, Lundy is

inapplicable when the petitioner has failed to exhaust state remedies and "the court to which the
petitioner would be required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred." Coleman v. Thompson, 501 U.S. 722, 735 n.1
( 1991 ). The claims in such a case, for purposes of federal habeas, are procedurally defaulted. Id.

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A petitioner can overcome procedural default only in limited circumstances when he can
"demonstrate cause for the default and actual prejudice from the alleged violation of federal law"
or demonstrate that failure to consider the claim "will result in a fundamental miscarriage of
justice." Id. at 750. The latter exception requires new and reliable evidence of the petitioner's
actual innocence. Schlup v. Delo, 513 U.S. 298,321 (1995). It is an onerous standard to meet.

II.

Review of Claims under Section 2254
Federal courts are authorized to grant habeas relief in limited circumstances. 28 U.S.C.

§ 2254(d). Habeas relief is available if the state court proceedings resulted in a decision that was
"contrary to ... clearly established Federal law, as determined by the Supreme Court of the United
States," "involved an unreasonable application of clearly established Federal law," or "involved
an unreasonable determination of the facts in light of the evidence presented" in state court. Id.
A state court judgment is "contrary to" clearly established federal law when the state court
"arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a
question of law, or if the state court decides a case differently than [the] Court has on a set of
materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). For the
"unreasonable application" clause to apply, the state court's application of federal law must be
objectively unreasonable. Id. at 409.
Federal courts reviewing state court proceedings properly and sensibly must afford
considerable deference to the state court's legal and factual determinations. Palmer v. Hendricks,
592 F.3d 386, 391-92 (3d Cir. 2010). The petitioner has the burden ofrebutting this presumption
of deference with clear and convincing evidence that the state court's factual determination is not
correct. 28 U.S.C. § 2254(d).

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III.

Ineffective Assistance of Counsel
Clearly established federal law governing ineffective assistance of counsel claims is set

forth in two-prong test in Strickland v. Washington, 466 U.S. 668 (1984).
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient perfom1ance prejudiced the defense. This
requires showing 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. Given the individual nature of each case, each defendant, and each professional, judicial
"scrutiny of counsel's performance must be highly deferential." Id. at 689. "A fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time." Id. "[A] trial does not have to be perfect to be
constitutionally fair." Marshall v. Hendricks, 307 F.3d 36, 91 (3d Cir. 2002).
To establish prejudice, the defendant must show "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. Prejudice is evaluated in the light of the totality of the evidence

presented at trial. Kelly v. Rozum, ~o. CIV.A. 08-1073, 2009 WL 3245565, at *16 (E.D. Pa. Oct.
6, 2009).
When, as here, the court is reviewing a state prisoner's ineffective assistance of counsel
claim under § 2254(d), the court must apply a doubly deferential standard of review.
Unreasonableness under Strickland is not the same as unreasonableness under § 2254( d). When
the state court has addressed coum.el's effectiveness, the question is not whether counsel's
performance fell below the Strickland standard. Instead, it is whether the state court's own

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application of Strickland was unreasonable. Harrington v. Richter, 562 U.S. 86, 101 (2011).
Petitioner has the burden of shuwing that the state court applied Strickland in an objectively
unreasonable way. Woodford v. Visciotti, 537 U.S. 19, 25 (2002). This is a more demanding
showing than if petitioner's Strickland claims were before the Court in the first instance.
DISCUSSION

Mr. Gago contends that he received constitutionally ineffective assistance of counsel at
trial in four separate areas: (1) counsel's failing to object to the trial court's jury instruction on the
attempted murder and aggravated assault charges; (2) counsel's opening the door to admitting his
prior bad acts evidence; (3) his lawyer's failing to adequately investigate false information
Mr. Gago supplied to counsel 1; and (4) counsel's failing to test the shell casings recovered from
the scene.
As a threshold matter, -the Pennsylvania courts applied the proper legal standard to
Mr. Gago's allegations. The Third Circuit Court of Appeals has held that the Commonwealth's
standard for evaluating ineffective assistance claims is identical to the Strickland standard. Werts,
228 F.3d at 203.
Magistrate Judge Heffley found each of the four instances of alleged ineffective assistance
of counsel to be meritless. She also concluded that the Pennsylvania courts' application of

Strickland in each instance was not unreasonable. Mr. Gago does not raise any new arguments in
his objections to suggest that the state courts' application of the Strickland standard was in error.

As is discussed below, Petitioner's third claim is properly treated as two distinct arguments. See
infra Section III.

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I.

Failure to Object to the Trial Court's Jury Instruction on the Attempted Murder
Charge

Mr. Gago maintains his trial counsel was ineffective for failing to object to the trial court's
instruction on the attempted murder and aggravated assault charges. He claims that the instructions
improperly suggested to the jury that he had shot Mr. DeOleo, and so doing, robbed the jury of its
primary function-adjudicating his guilt.
The challenged attempted murder instruction reads as follows:
Mr. Gago [is] charged with attempted murder. To find him guilty you must find three
elements have been proven to you beyond a reasonable doubt. Number one, that
Mr. Gago did a certain act; that is, that he shot Mr. DeO leo three times in the back, the
stomach, the head. That's the first element. Number two, that when he shot
Mr. DeOleo three times the defendant had the specific intent to kill him; that is, he had
a fully informed intent to kill and was conscious of his own intention. And the third
element is that the shooting constituted a substantial step towards the commission of a
killing that the defendant intended to bring about.
Transcript of Record at 69-70, Commonwealth v. Gago, No. CP-51-CR-0013691-2010
(Phila. Ct. Com. Pl. Sept. 26, 2011) (emphasis added).
Mr. Gago argues that the word "allegedly" should have preceded the words "shot" and
"shooting" in the instructions. The best articulation of his argument is that the failure to modify
"shot" and "shooting" impermissibly suggested to the jury that Mr. Gago had indeed shot
Mr. DeOleo.
The PCRA court and the Superior Court on appeal both rejected the argument that the
instruction as given was erroneous and held that counsel was not ineffective for failing to object.
Because there was no error in the instruction, counsel's performance could not be deficient.
In finding there was no error in the instruction, the Superior Court emphasized that the trial
court instructed the jury at the outset that each element must be proven beyond a reasonable doubt.
Commonwealth v. Gago, No. 1230 EDA 2017, 2018 WL 6321536, at *4 (Pa. Super. Ct. Dec. 4,
2018). The order of the elements clarified the logic of the charge. If the jury failed to find that
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Mr. Gago shot Mr. DeOleo beyond~ reasonable doubt--element one-it would not proceed to
consider whether Mr. Gago had the specific intent to kill at the time--element two. Mr. Gago's
argument glosses over the sequential reasoning the jury had to employ. This makes the challenge
meritless.
Moreover, the Superior Court held that the both the language and the order of the
instructions "closely tracked the Pennsylvania's Suggested Standard Jury instructions." Id So,
the instructions were a presumptively accurate statement of the law and counsel did not err in not
objecting. Commonwealth v. Prosdocimo, 578 A.2d 1273, 1276-77 (Pa. 1990). Mr. Gago does
not present any evidence to suggest otherwise.
To the extent there was any error in the jury instruction, the Superior Court held it was
harmless given the overwhdming evidence in favor of conviction. So, counsel's alleged error as
articulated by Mr. Gago did not deprive his client of a fair trial and, thus, Mr. Gago did not meet
the prejudice prong of Strickland. To the contrary, the Superior Court described the evidence in
favor of conviction as "overwhelming." Commonwealth v. Gago, No. 1230 EDA 2017, 2018 WL
6321536, at *4 (Pa. Super. Ct. Dec. 4, 2018). The Commonwealth introduced video surveillance
footage of the shooting, as well as repeated identifications of Mr. Gago as the shooter by the victim
who knew him well, including at the time he lay bleeding on the street, at the hospital, and again
at trial.
Because Mr. Gago properly raised this claim before the state court and the state court
adjudicated it on the merits, the Court reviews the claim under AEDPA's deferential standard.

Slaughter v. Superintendent Phoenix SCI, 816 F. App'x 658, 661 (3d Cir. 2020). This requires
showing that the state court's decision was objectively unreasonable.

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Under Harrington, the Court:1s inquiry here is limited to considering the arguments or
theories in support of the state court's decision and whether it is possible that "fairminded jurists
could disagree that those arguments or theories are inconsistent" with United States Supreme Court
precedent. 562 U.S. at 102 (2011). This is a high bar to meet. Mr. Gago has not cleared it.
Magistrate Judge Heffley carefully analyzed the Superior Court's decision and found that
the jury instruction recited at trial did not materially differ from the Commonwealth's standard
instructions. Mr. Gago failed to show that the challenged instruction was erroneous when it
directed the jury that it had to find each separate element beyond a reasonable doubt. "[A] single
instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of
the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). Here, the jury was charged
fully with the Commonwealth's duty to prove guilt beyond a reasonable doubt.

"A jury is

presumed to follow its instructions." Weeks v. Angelone, 528 U.S. 225, 234 (2000).

Such

preliminary instructions weigh heavily in favor of finding there was no error in the instruction.

See Howard v. Horn, 56 F. Supp. 3d 709, 736 (3d Cir. 2014).
"Counsel cannot be deemed ineffective for failing to raise a meritless claim." Werts, 228
F.3d at 203. So, because the instructions did not contain error, counsel could not have erred in not
challenging them.
And, as Magistrate Judge Heffley very reasonably found, the evidence presented to the jury
was sufficient to meet the Commonwealth's burden, even assuming there was error in the
instruction. The Court has no doubt that the verdict would have changed had the trial court inserted
the word "allegedly" into the instruction. Habeas relief is not available to cure harmless errors.
And Mr. Gago has not established that counsel's failure to object to the instruction deprived him

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of a fair trial in light of the evidence Presented to the jury. Accordingly, the Court concludes that
Magistrate Judge Heffley correctly fo.und this ineffectiveness claim was without merit.

II.

Counsel "Opening the Door" to Admitting Prior Bad Acts Evidence
Mr. Gago next argues that trial counsel was ineffective because he "opened the door" to

other bad acts evidence.
Counsel sought to rebut the Commonwealth's argument that Mr. Gago was the jealous and
violent ex.

To reframe the domestic drama narrative, counsel elicited testimony from

Ms. Rodriguez that she had previously assaulted Mr. Gago' s former wife. Counsel argued that the
incident was relevant to undercutting the theory that Ms. Rodriguez wanted nothing to do with her
ex. This was a strategic choice to answer the Commonwealth's theory. In so doing, counsel also
sought to cast doubt upon a motive Mr. Gago had to shoot Mr. DeOleo. But the testimony had the
effect of"opening the door" under Pennsylvania Rule of Evidence 404(b), which then allowed the
Commonwealth to introduce evidence of 911 call logs and Ms. Rodriguez's testimony that
Mr. Gago was violent.
The PCRA court rejected the argument that counsel was ineffective. Commonwealth v.

Gago, CP-51-CR-0013691-2010, 2017 Phila. Ct. Com. Pl. LEXIS 453, at *20 (Ct. Com. Pl. Dec.
18, 2017).

To the contrary, "[u]nder the circumstances," counsel's efforts to undercut the

Commonwealth's jealousy theory had "some reasonable basis" that would serve his client's
interest. Id.

It was immaterial to the review of counsel's performance that the strategy was

ultimately unsuccessful. The Superior Court agreed that counsel had a strategy in eliciting the
testimony he did-notwithstanding its unintended effect. Commonwealth v. Gago, No. 1230 EDA
2017, 2018 WL 6321536, at *4 (Pa. Super. Ct. Dec. 4, 2018).

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~Because this claim was fairly presented to the state court and adjudicated on its merits, the
Court again applies the doubly deferential standard of review. Slaughter, 816 F. App'x at 661.
Mr. Gago must show that the state court's application of Strickland was unreasonable. Magistrate
Judge Heffley correctly found that he did not do so.
In hindsight, counsel made a strategic decision that backfired. But the Pennsylvania courts
correctly did not engage in Monday morning quarterbacking when they reviewed his performance.
Nor may or will this Court second-guess counsel's conduct. Strickland, 466 U.S. at 689. At the
time, counsel could have stayed silent and not contested the Commonwealth's theory ofjealousywhich supplied motive for the jury's consideration. But silence may have signaled to the jury that
the defense agreed with the Common wealth, and there was certainly risk to his client in adopting
that approach. The counter-and what counsel opted to do-was muddy the waters a bit to suggest
that Ms. Rodriguez was vindictive too. It cannot be said that counsel's strategy was unreasonable,
nor were the courts unreasonable in their consideration of this claim.
And, as before, even if counsel's strategy somehow constituted error, Mr. Gago still has
not shown that he was prejudiced by the error. He has not established that the outcome would
have been different had Ms. Rodriguez not introduced testimony as to prior violent encounters
with Mr. Gago. To the contrary, Ms. Rodriguez's testimony constituted cumulative evidence atop
ample other evidence in favor of com'iction.
So, the Court will adopt the Report and Recommendation's finding that Mr. Gago's second
ineffectiveness claim does not merit relief.

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III.

Counsel Failed to Adequateiy Investigate the False Information Petitioner Supplied
Him and to Object to Certain Testimony

Mr. Gago's third ineffectiveness claim is properly split into two arguments. The first is
that counsel was ineffective when he acted on false information that Mr. Gago had supplied him.
The second is that counsel failed to object to certain alleged hearsay testimony.
A. Counsel Relied on False Evidence Supplied by Mr. Gago

At trial, Mr. Gago provided his counsel with his cell phone ostensibly to establish that
Ms. Rodriguez was seeking to romantically reconcile with him shortly before the shooting. The
Commonwealth rebutted this evidence by establishing that the phone number Mr. Gago claimed
to be Ms. Rodriguez's was actually his brother's.

So, in attempting to present supposed-

exculpatory evidence provided by his client, counsel unwittingly undercut the case and damaged
his credibility. See Commonwealth v. Gago, CP-51-CR-0013691-2010, 2017 Phila. Ct. Com. PL
LEXIS 453, at *8 (Ct. Com. PL Dec. 18, 2017). In his petition, Mr. Gago now faults his counsel
for not independently verifying the evidence that Mr. Gago supplied to him.
Magistrate Judge Heffley recommended that this claim be denied as meritless. The Court,
however, must first address a gating issue to Mr. Gago presenting this claim for federal habeas
relief.
Regardless of the merits--or lack thereof--of this claim, Mr. Gago waived it because he
did not properly present it to the state courts. Mr. Gago has the burden of proving exhaustion of
all available state remedies. 28 U.S.C. § 2254. He did not raise this claim on direct appeal.
Commonwealth v. Gago, No. 1230 EDA 2017, 2018 WL 6321536, at *3 (Pa. Super. Ct. Dec. 4,

2018). Likewise, he did not pursue it all the way through his state collateral challenge, opting not
to raise it on appeal from the PCRA court's denial. Because Mr. Gago did not litigate his claim
through one full round of the Commonwealth's established review process, he did not "fairly

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present" it to the state court. Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004) (exhaustion
i

in Pennsylvania requires a petitioner to present a claim to the trial court and the Pennsylvania
Superior Court).
Although the issue is best addressed by the state courts, a federal court may dismiss a claim
as procedurally barred when state law would unambiguously deem it defaulted. Carter v. Vaughn,
62 F.3d 591, 595 (3d Cir. 1995). Relevant here, an issue is waived if a petitioner fails to raise it
and it could have been raised in a habeas corpus proceeding. 42 Pa. Cons. Stat.§ 9544(b).
The claim is now barred by Pennsylvania's time-bar and waiver provisions so Mr. Gago
cannot re-assert it there. The PCRA statute of limitations provides that any petition "including a
second or subsequent petition, shall be filed within one year of the date the judgment becomes
final ...." 42 Pa. Cons. Stat. Ann. § 9545(b)(l). There are limited exceptions to this statute of
limitations but they do not apply here and Mr. Gago does not assert that they apply.

Id

§ 9545(b)(i)-(iii).
A judgment becomes final "at the conclusion of direct review" or "at the expiration of time
for seeking the review." Id § 9545(b)(3). "A petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary review by the state court of last
resort is timely when it is filed with the Clerk within 90 days after entry of the order denying
discretionary review." Sup. Ct. R. 13(1). The Pennsylvania Supreme Court denied Mr. Gago's
petition for allowance of appeal on June 12, 2014. Commonwealth v. Gago, 94 A.3d 1007 (Pa.
2014). There is nothing in the record to suggest that he then sought certiorari from the United
States Supreme Court. Accounting for the 90 days, judgment here became final on September 10,
2014. So, Mr. Gago's second PCRA petition would have had to be filed before September 10,
2015 to be timely. Six years later, however, his unexhausted claims are barred by the PCRA statute

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.,.
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oflimitations. See Butler v. Johnson,No. CIV. A.00-2718, 2001 WL 856713, at *2 (E.D. Pa. July
23, 2001).
Because the Pennsylvania courts would refuse to hear the unexhausted claims, exhaustion
now would be futile. Mr. Gago cannot amend his initial PCRA petition, which the PCRA court
has already declined. And he cannot file a second PCRA petition because it would be barred by
the statute of limitations. Nor does he make any showing of cause or prejudice to excuse the
default, Wainwright v. Sykes, 433 U.S. 72, 87 (1977), or that failure to consider the claim will
result in a fundamental miscarriage of justice, Coleman, 501 U.S. at 750.
Even if the claim regarding counsel's decision to rely on evidence supplied to him by his
client were not procedurally defaulted, it would still be meritless, as the Report and
Recommendation explains.

"The reasonableness of counsel's actions may be determined or

substantially influenced by the defendant's own statements or actions." Muff v. Dragovich, 310
F. App'x 522, 525 (3d Cir. 2009). Strickland logically counsels that "when the facts that support
a certain potential line of defense are generally known to counsel because of what the defendant
has said, the need for further investigation may be considerably diminished or eliminated
altogether." 466 U.S. at 691. The PCRA court found that Mr. Gago had "provided his counsel
with fabricated evidence." Commonwealth v. Gago, CP-51-CR-0013691-2010, 2017 Phila. Ct.
Com. PL LEXIS 453, at *26 (Ct. Com. Pl. Dec. 18, 2017). In this case, counsel was entitled to at
least rely on the representation from his client about the owner of the particular phone number.
Whatever error in oversight made by counsel in not independently verifying the phone
number, it does not meet the Strickland prejudice standard. (Certainly, it was at least a moment
of disheartening professional discomfort for counsel).

It could have damaged Mr. Gago's

credibility in the eyes of the jury. But, given the weight of the evidence in favor of conviction,

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had counsel not used this evidence supplied by Mr. Gago himself, it is unlikely the outcome would
have differed anyway. So, the state court did not unreasonably apply Strickland in denying
Mr. Gago relief because his attempt to deceive his counsel and the trial court backfired.
Were the Court to consider the merits of this claim, it would find them lacking here. But
because this claim is procedurally defaulted, it will modify the R&R accordingly to deny the claim
on separate grounds.
B. Counsel Did Not Object to Admitting Assistant District Attorney's Testimony

As to the second sub-claim, Mr. Gago asserts counsel was ineffective for failing to object
to the admission of testimony of an assistant district attorney who was present when her colleague
called the phone number Mr. Gago claimed to be Ms. Rodriguez's. The ADA testified that she
learned the number belonged to Mr. Gago's brother because she overheard the call.
Commonwealth v. Gago, No. 1230 EDA 2017, 2018 WL 6321536, at *5 (Pa. Super. Ct. Dec. 4,
2018).

The Pennsylvania Superior Court rejected the ineffectiveness claim as a matter of

Pennsylvania evidence law and held that the testimony was not offered for a hearsay purposei.e., the veracity of the contents of the conversation-but to show that the owner of the phone
number was not Ms. Rodriguez. So, the state court rejected the merits of the claim.
Even if the Pennsylvania courts had erred and determined that the testimony was hearsay
or was otherwise inadmissible, Magistrate Judge Heffley found that Mr. Gago's objection to a
ruling of state law is not cognizable on habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991)
("We have stated many times that 'federal habeas corpus relief does not lie for errors of state
law."'); Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) (holding that habeas review is not
available to reexamine state court determinations of state law questions). This Court is bound by

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the state court's determination that the testimony was not hearsay and its admission was proper.
Devine v. Cameron, No. CV 09-171, 2015 WL 5063958, at *10 (E.D. Pa. Aug. 26, 2015).
So, Mr. Gago cannot meet the first prong of Strickland-that his counsel's performance
was deficient. Accordingly, the Court concludes that Magistrate Judge Heffley correctly found
that this ineffectiveness claim must also fail.
IV.

Counsel Did Not Have Ballistic Testing Performed on the Shell Casing

Mr. Gago's final claim is that counsel was ineffective for failing to test the shell casings
recovered from the scene of the shooting. Magistrate Judge Heffley found that Petitioner was not
entitled to relief because the claim was rneritless, and the state courts did not unreasonably apply
Strickland. Although the Court will deny Mr. Gago relief on this claim, it is because, again, he
did not exhaust this final claim, which is now procedurally barred. Nor did he establish cause and
prejudice or a fundamental miscarriage of justice to excuse the default.
At the PCRA evidentiary hearing, Mr. Gago claimed his trial counsel was ineffective for
failing to obtain DNA testing of the shell casings recovered from the scene. The PCRA court
denied this claim as "too speculative to merit relief." Commonwealth v. Gago, CP-51-CR0013691-2010, 2017 Phila. Ct. Corn. Pl. LEXIS 453, at *30 (Ct. Corn. PL Dec. 18, 2017). But
Mr. Gago did not raise the claim on appeal from the PCRA court. Nor did he raise any argument
about the shell casings on direct appeal.
As discussed in Section III.A, supra, Mr. Gago waived this claim when he failed to appeal
to the Superior Court following the PCRA court's rejection of the claim. 42 Pa. Cons. Stat.
§ 9544(b). And, because he is now well beyond the one-year limitations period for PCRA, his
ineffectiveness claim about the shell casings testing is procedurally defaulted. Coleman, 501 U.S.
at 735 n. l. Mr. Gago does not establish cause or prejudice to excuse his default here.

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So, the Court modifies the Report and Recommendation to the extent it denied the claim
as meritless. 2
V.

Mr. Gago's Request for a Stay and Appointment of Counsel
Mr. Gago initially requested that the federal action be stayed so that he could exhaust

certain claims pending in state court. Doc. No. 1 at 4. In his resubmitted petition, Doc. No. 4, he
stated that he did not have any petition or appeal pending in any court, state or federal, for the
judgment he was challenging. Doc. No. 4. at 13. 3
Because Magistrate Judge Heffley found each of his arguments to be "plainly meritless,"
she recommended that the motion to stay be denied, to the extent there were any outstanding claims
in state court. For the same reason, she also recommended that the Court deny his request for the
appointment of counsel. A district court abuses "its discretion if it granted a stay when the
unexhausted claims are plainly meritless." Rhines v. Weber, 544 U.S. 269, 270 (2005). That is

2

Even if the Court were to reach the merits of this final ineffectiveness challenge-setting aside the
procedural default-the state courts did not unreasonably apply Strickland to reject the claim. Mr. Gago
speculates that the shell casings would be consistent with other shootings in the area and that such a finding
would, presumably, exonerate him. The PCRA Court (the only court to whom Mr. Gago presented the
claim) found Mr. Gago could not establish the prejudice prong of his ineffectiveness claim. That was
because of the overwhelming evidence relied on by the jury to convict him, including testimony of the
victim and his repeated identifications of Mr. Gago, witness statements, and a video recording of the
shooting.
In his objections to the Report and Recommendation, Mr. Gago notes he was not apprehended at
the scene nor was he arrested with the weapon. But a weapon was never recovered in relation to this crime,
which Mr. Gago admits. So, it is unclear what purpose ballistics testing would serve, particularly when the
Commonwealth did not rely on ballistics evidence to secure a conviction. Even were the Court to reach the
merits here, Mr. Gago would not be entitled to relief on this claim.
Mr. Gago also appears to fault his counsel for not "interview[ing] the witnesses and present[ing]
them." But this is an entirely separate and new claim from the ballistics testing, and one which Mr. Gago
appears to raise for the first time in his objections. Not only does it appear meritless, it is also procedurally
defaulted. See Anderson v. Harless, 459 U.S. 4, 6 (1982) ("[P]etitioner must have 'fairly presented' to the
state courts the 'substance' of his federal habeas corpus claim.").
3

Because he initially filed using the incorrect form, the Court supplied him with the proper habeas
petition. The present petition does not list any pending petitions or appeals. Doc. No. 4. at 13.

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the case here. Accordingly, the Court will deny Mr. Gago's request for a stay, and, for the same
reasons, his request for appointment of counsel.
CONCLUSION

For the reasons set out in this memorandum, the Court denies Mr. Gago's Petition for Writ
of Habeas Corpus. Magistrate Judge Heffley's Report and Recommendation is adopted in part
and modified in part.

The Court approves and adopts those parts of the Report and

Recommendation recommending denial of Mr. Gago's ineffective assistance of counsel claims for
failing to object to the jury instruction, opening the door to prior bad acts evidence, and failing to
object to the admission of the ADA's testimony. The Court modifies those parts of the Report and
Recommendation recommending denial of Mr. Gago's ineffective assistance of counsel claims for
failing to investigate the false information supplied by his client and failing to test the shell casings
to the extent Magistrate Judge Heffley reached the substance of those claims. Those claims are
procedurally defaulted, and Mr. Gago does not demonstrate cause and prejudice to excuse the
default. Relief on these claims is denied.
The Petition is thus denied in all respects. Because Mr. Gago has not made "a substantial
showing of the denial of a constitutional right," a certificate of appealability will not issue for these
claims. 28 U.S.C. § 2253(c)(2).
The Court enters the accompanying order.

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