WANAMAKER v. SMITH et al

Filing 18

MEMORANDUM; ETC.. SIGNED BY HONORABLE MARK A. KEARNEY ON 2/16/21. 2/16/21 ENTERED AND E-MAILED, NOT MAILED TO PRO SE.(JL )

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 1 of 51

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LAMARR WANAMAKER
v.
BARRY SMITH, et al.

: CIVIL ACTION
:
: NO. 20-1332
:
:

MEMORANDUM
KEARNEY, J.

February 16, 2021

A Philadelphia jury convicted Lamarr Wanamaker of second-degree murder in the shooting
death of Neville Franks. Three witnesses identified Mr. Wanamaker as the shooter. His trial
counsel argued the Commonwealth’s expert testimony did not establish he used the gun which
shot Mr. Franks. But the jury found otherwise. A Philadelphia trial judge sentenced him to life in
prison. Mr. Wanamaker lost appeals of the life sentence verdict to the Pennsylvania Superior and
Supreme Courts. He lost on his post-conviction challenge which raised a variety of counselled
arguments. He now pro se petitions for habeas relief presenting four claims based on his view
trial and post-conviction counsel provided ineffective assistance of counsel on the sufficiency of
evidence issues and relating to prosecutorial misconduct. We reviewed the extensive record and
Mr. Wanamaker’s varied but well-presented arguments. We deny his petition as his claims are,
among other things, unexhausted, procedurally defaulted, and the default cannot be excused under
established Supreme Court guidance. There is no basis for a certificate of appealability. We deny
and dismiss Mr. Wanamaker’s petition for habeas relief.

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 2 of 51

I.

Factual Background
A gunman killed Neville Franks as he walked with his friends Shakiel Taylor, Chris

Adams, and Marcus Downing on Ruscomb Street in Philadelphia on September 11, 2010. 1 The
friends immediately identified Lamarr Wanamaker as the shooter to the police. 2 Mr. Franks’
friends told the police Mr. Wanamaker and another man approached Mr. Franks and Mr. Taylor
on Ruscomb Street asking about money and drugs. 3 Mr. Wanamaker then took out a revolver and
searched Mr. Taylor’s pockets, eventually throwing the contents of Mr. Taylor’s pockets onto the
ground. 4 Mr. Wanamaker demanded to search Mr. Franks’ pockets, and when Mr. Franks refused,
Mr. Wanamaker shot Mr. Franks twice, killing him. 5 Ten months later, police arrested Lamarr
Wanamaker for killing Mr. Franks. 6 The Commonwealth charged Mr. Wanamaker with seconddegree murder, two counts of robbery, simple assault, firearms not to be carried without a license,
carrying firearms on a public street in Philadelphia, and possession of an instrument of crime. 7 Mr.
Wanamaker exercised his constitutional right to a jury trial in the Philadelphia Court of Common
Pleas before Judge McDermott.
Mr. Wanamaker’s jury trial.
Mr. Taylor and Mr. Adams identified Mr. Wanamaker as the shooter at trial. Mr. Downing
recanted his police statement, but Detective James Pitts testified to Mr. Downing’s statement
identifying Mr. Wanamaker as the shooter. 8 The Commonwealth also called Officer Norman
DeFields to offer expert opinion on ballistic evidence taken from the crime scene. Mr.
Wanamaker’s counsel questioned Officer DeFields regarding two bullets taken from Mr. Franks’
body. 9 Officer DeFields admitted the forensic analysis returned inconclusive results. 10 Officer
DeFields could not say whether the bullets fired from the same weapon. 11 Officer DeFields could
not describe the type of gun because “no firearm was submitted in this case.” 12 After Judge

2

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 3 of 51

McDermott excused the jury for a trial day, the Commonwealth notified Mr. Wanamaker of its
intent to call a rebuttal witness if Mr. Wanamaker attempted to elicit good character testimony. 13
The Commonwealth offered this notice despite also acknowledging Mr. Wanamaker did not intend
to call witnesses. 14
The jury found Mr. Wanamaker guilty of second-degree murder, two counts of robbery,
carrying a firearm without a license, and possessing an instrument of crime. 15 Judge McDermott
sentenced Mr. Wanamaker to: (1) life imprisonment without the possibility of parole for the
second-degree murder conviction; (2) ten to twenty years imprisonment for each robbery
conviction; (3) three to six years imprisonment for carrying a firearm without a license; and (4)
one to two years imprisonment for possessing an instrument of a crime. 16 Judge McDermott
ordered the robbery, carrying a firearm without a license, and possession of an instrument of crime
sentences to run concurrently with Mr. Wanamaker’s life sentence. 17
Mr. Wanamaker files a direct appeal challenging the sufficiency of the evidence.
Mr. Wanamaker appealed to the Pennsylvania Superior Court alleging insufficient
evidence supported his convictions of possessing instruments of crime, second-degree murder,
robbery, and firearms not to be carried without a license. 18 Mr. Wanamaker’s sufficiency claim
focused on the evidence supporting his robbery conviction. 19 He argued trial testimony revealed
he did not commit robbery, and because the evidence did not support his robbery conviction, it
could not support his second-degree murder conviction. 20 The Pennsylvania Superior Court found
he waived the issue and affirmed the judgment of sentence. 21 Mr. Wanamaker did not appeal to
the Pennsylvania Supreme Court.

3

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 4 of 51

The trial court grants Mr. Wanamaker’s first PRCA petition
granting him the right to appeal nunc pro tunc.
Mr. Wanamaker instead timely petitioned under Pennsylvania’s Post-Conviction Relief
Act (“PCRA”). 22 Mr. Wanamaker argued his appellate counsel provided ineffective assistance by
waiving Mr. Wanamaker’s only issue raised on direct appeal. 23 The PCRA court agreed and
granted Mr. Wanamaker’s petition on February 11, 2016. The PCRA court reinstated Mr.
Wanamaker’s right to file a direct appeal nunc pro tunc. 24
The Superior Court vacates the robbery sentence but affirms all other aspects.
Mr. Wanamaker timely filed a direct appeal, raising one issue for the Pennsylvania
Superior Court’s review: “Did the [trial] court impose an illegal sentence on one of [Mr.
Wanamaker’s] robbery convictions because that conviction merged with [his] second[-]degree
murder conviction for purposes of sentenc[ing]?” 25 On February 7, 2017, the Pennsylvania
Superior Court vacated Mr. Wanamaker’s robbery sentence and “affirm[ed] the remainder of [Mr.
Wanamaker’s] judgment of sentence.” 26 On July 6, 2017 the Pennsylvania Supreme Court denied
allowance of appeal. 27
Mr. Wanamaker files a second PCRA petition.
Approximately one year later, Mr. Wanamaker filed a pro se PCRA petition raising five
issues: (1) “Trial court counsel committed structural error by not making sure petitioner was
convicted of murder beyond reasonable doubt. Counsel was also ineffective;” 28 (2) “[t]rial counsel
committed structural error for failing to object to conjecture evidence used against petitioner
ignoring the reasonable doubt standard for conviction, [counsel] was ineffective;” 29 (3) “[t]he
prosecutor committed misconduct with direct violations of . . . Pa R.E. 404(b)(1);” 30 (4) “[t]rial
counsel committed structural error by violating the rules of evidence in a collusion with the ADA
by abandoning petitioner’s rights as well as ineffective assistance of counsel;” 31 and (5) “[t]rial
4

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 5 of 51

counsel abandoned petitioner in structure error by undermining petitioner’s right to have trial judge
stenographer present during voir dire.” 32
Mr. Wanamaker’s court-appointed PCRA counsel then filed an amended PCRA petition. 33
Counsel did not argue the issues cited in Mr. Wanamaker’s pro se PCRA petition. 34 Counsel
instead requested a new trial on the basis of after-discovered evidence. 35 Counsel in the amended
PCRA petition claimed Mr. Wanamaker found an eyewitness, Jaleel Lewis, to testify to Mr.
Wanamaker’s innocence. 36 The PCRA court granted Mr. Wanamaker a bifurcated evidentiary
hearing on September 17, 2018. 37 Mr. Lewis testified to witnessing Mr. Franks’ murder. 38 Mr.
Lewis recalled an argument between Mr. Wanamaker and Mr. Taylor, and during their argument
an “unidentified male came from behind a parked SUV and started shooting.” 39 Mr. Lewis
explained he ran from the shooter alongside Mr. Franks and Mr. Wanamaker. 40 Mr. Lewis ran into
Mr. Taylor a few years later while both incarcerated. Mr. Taylor confessed to Mr. Lewis he falsely
accused Mr. Wanamaker of killing Mr. Franks. Mr. Wanamaker explained he did not call Mr.
Lewis as a witness during trial because he did not know how to locate Mr. Lewis, noting he only
knew the block where Mr. Lewis lived but not his exact address. 41
The PCRA court dismissed Mr. Wanamaker’s second petition on September 20, 2018,
finding Mr. Lewis not credible. 42 Mr. Wanamaker appealed, and the PCRA court directed Mr.
Wanamaker file a 1925(b) Statement. 43 Mr. Wanamaker filed a 1925(b) Statement on November
3, 2018. 44 On December 14, 2018, Judge McDermott filed an opinion under Pa. R.A.P. 1925(a)
affirming the dismissal of the amended PCRA petition. 45 Mr. Wanamaker appealed to the
Pennsylvania Superior Court challenging the September 20, 2018 PCRA court’s denial of his
petition. 46

5

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 6 of 51

Mr. Wanamaker raised two issues “address[ing] the potential testimony of Jaleel Lewis”
in his appeal:
[(1)] Did the PCRA [c]ourt err and violate [a]ppellant's constitutional rights under
the Sixth and Fourteenth Amendments by finding that [a]ppellant had not used
reasonable diligence and/or was otherwise untimely in presenting the after[]discovered evidence of Jaleel Lewis?[; and (2)] Did the PCRA court err and violate
[a]ppellant's constitutional rights under the Sixth and Fourteenth Amendments by
finding that after[-]discovered witness Jaleel Lewis did not present credible
evidence of [a]ppellant's innocence? 47
The Pennsylvania Superior Court dismissed Mr. Wanamaker’s first issue, agreeing with the PCRA
court’s conclusion Mr. Wanamaker failed to “adequality explain the delay in producing Lewis’s
testimony is supported by the record and is free of legal error.” 48 The Pennsylvania Superior Court
also dismissed Mr. Wanamaker’s second issue raised on appeal because Mr. Wanamaker’s
statement of errors complained of on appeal “only addressed the PCRA court’s credibility
determination as it pertains to Lewis’s testimony.” 49 Mr. Wanamaker waived any issue “relating
to whether Lewis’s testimony was considered cumulative.” 50
II.

Analysis
Mr. Wanamaker then filed a pro se petition for habeas corpus in this Court under 28 U.S.C.

§ 2254. Mr. Wanamaker raises four claims for our review: (1) “Trial court counsel committed
structural error by not making sure petitioner was convicted beyond a reasonable doubt. Counsel
was also inefficient;” 51 (2) “Trial counsel committed a structural error for failing to object to
[conjunctive] evidence used against petitioner ignoring the reasonable doubt standard for
conviction[.] [Counsel was ineffective;” 52 (3) “The prosecutor committed misconduct with direct
violations of the rule of evidence;” 53 and (4) “Trial counsel abandoned petitioner in structure error
by undermining petitioner’s right to have trial judge stenographer during voir dire.” 54

6

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 7 of 51

We begin by reviewing the applicable legal standards relevant to our analysis of the claims
Mr. Wanamaker raises in his habeas petition.
Congress requires state courts be afforded “a meaningful opportunity to consider
allegations of legal error without interference from the federal judiciary,” 55 before we consider the
merits of an issue raised in a habeas petition. To satisfy this requirement, a prisoner bringing a
habeas petition in federal court must first exhaust the remedies available in the state courts. 56 A
petitioner exhausts the remedies available by “fairly presenting” his claims “to the state’s highest
court, either on direct appeal or in a post-conviction proceeding.” 57 If an issue is raised on direct
appeal, the petitioner is not required to raise the issue again in a state post-conviction proceeding. 58
In Pennsylvania, the doctrine of exhaustion does not require a petitioner to seek review from the
Pennsylvania Supreme Court. 59 But a petitioner must appeal to the Pennsylvania Superior Court.60
“To satisfy the ‘fair presentation’ requirement, the state court pleadings must demonstrate
that the legal theory and supporting facts asserted in the federal habeas petition are ‘substantially
equivalent’ to those presented to the state courts.” 61 In Evans v. Court of Common Pleas, Delaware
County, Pa, 62 our Court of Appeals explained, “[b]oth the legal theory and facts underpinning the
federal claim must have been presented to the state courts . . . and the same method of legal analysis
must be available to the state court as will be employed in the federal court.” 63 A habeas claim is
fairly presented when a petitioner presents the “factual and legal substance to the state courts in a
manner that puts them on notice that a federal claim is being asserted.” 64 A “somewhat similar”
claim presented in state court is insufficient. 65
A petitioner does not fairly present a claim to the state courts when the petitioner raises the
issue in a pro se PCRA petition but fails to raise the issue in a counseled, amended PCRA

7

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 8 of 51

petition. 66 “In Pennsylvania, a first-time petitioner is entitled to PCRA counsel.” 67 Once PCRA
counsel is appointed, counsel:
has a duty ‘to either (1) amend the petitioner’s pro se petition and present the
petitioner’s claims in acceptable legal terms or (2) certify that the claims lack merit
. . .’ Thus, an amended PCRA petition supersedes a pro se petition, and [p]etitioner
did not exhaust the claim by raising it in his pro se PCRA petition. 68
When a prisoner petitions for habeas based on unexhausted claims, the unexhausted claims
should be dismissed without prejudice “so the petitioner [may] bring the matter in state court and
allow the state forum the chance ‘to correct their own errors, if any.’” 69 But if the state law “‘clearly
foreclose[s] state court review of unexhausted claims,’ the claims are considered to be procedurally
defaulted. Exhaustion is not possible, and sending the claims back to state court would therefore
be futile.” 70 But a federal court may still review a procedurally defaulted claim if the petitioner
demonstrates: (1) “cause for the default and actual prejudice as a result of the alleged violation of
federal law;” or (2) “failure to consider the claims will result in a fundamental miscarriage of
justice.” 71
To establish “cause,” a petitioner must “demonstrate[] some objective factor external to the
defense that prevented compliance with the state’s procedural requirements.” 72 A factor is external
if it cannot be fairly attributed to the petitioner. 73 Once a petitioner establishes cause, he must
show actual prejudice. 74 To establish “actual prejudice,” a petitioner must demonstrate “the alleged
error ‘worked to [petitioner’s] actual and substantial disadvantage.’” 75 To establish a “fundamental
miscarriage of justice,” a petitioner “must present new evidence that he is actually innocent of the
crime for which he has been convicted.” 76 The fundamental miscarriage of justice exception is
limited and “applies only in extraordinary cases, and actual innocence means factual innocence,
not legal insufficiency.” 77 Actual innocence is demonstrated by asserting “‘new reliable evidence

8

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 9 of 51

. . . that was not presented at trial,’ showing that no reasonable juror would have voted to find
petitioner guilty beyond a reasonable doubt.” 78
An ineffective assistance of trial or appellate counsel claim can constitute cause to excuse
a procedural default on a separate independent claim. 79 But an ineffective assistance of counsel
claim must first be presented “to the state courts as an independent claim before being used to
establish cause for a procedural default.” 80 In other words, an ineffective assistance of counsel
claim cannot constitute cause to excuse a separate independent claim if the ineffective assistance
claim itself is procedurally defaulted. 81
As a general rule, “there is no constitutional right to an attorney in a state postconviction
proceedings,” 82 thus, ineffective assistance of PCRA counsel does not constitute cause because
“the Sixth Amendment right to counsel does not extend beyond direct appeal.” 83 But the Supreme
Court carved out a narrow exception to this rule. 84 In Martinez v. Ryan, 85 the Supreme Court
recognized “[i]nadequate assistance of counsel at initial-review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” 86
Under Martinez, ineffective assistance of PCRA counsel provides cause to excuse a procedural
default on an ineffective assistance of trial counsel claim where:
under state law, claims of ineffective assistance of trial counsel must be raised in
an initial-review collateral proceeding, a procedural default will not bar a federal
habeas court from hearing substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective. 87
Where a state, like Pennsylvania, requires a petitioner raise an ineffective assistance of trial
counsel claim in a collateral proceeding, a petitioner may establish cause under Martinez for a
default (1) “where the state courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial,” and (2) “where appointed counsel in the

9

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 10 of 51

initial-review collateral proceeding, where the claim should have been raised, was ineffective
under the standards of Strickland v. Washington . . . .” 88 Our Court of Appeals instructs three
conditions must be met to establish cause under Martinez: “(a) the default was caused by
ineffective assistance of post-conviction counsel or the absence of counsel (b) in the initial-review
collateral proceeding (i.e., the first collateral proceeding in which the claim could be heard) and
(c) the underlying claim of trial counsel ineffectiveness is ‘substantial.’” 89
An ineffective assistance of counsel claim is evaluated under the Supreme Court’s standard
in Strickland v. Washington. 90 Under Strickland, a petitioner demonstrates ineffective assistance
of counsel by demonstrating (1) “counsel’s performance was so deficient that it fell below an
objective standard of reasonableness under prevailing professional norms,” 91 and (2) “the deficient
performance prejudiced the defense.” 92 “We are highly deferential and indulge a strong
presumption that under the circumstances, counsel’s challenged actions might be considered sound
. . . strategy.” 93
A petitioner establishes deficiency by demonstrating “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 94
Prejudice is established when a petitioner shows “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” 95
A.

We deny Mr. Wanamaker’s ineffective assistance of trial counsel claim
relating to the inconclusive ballistic evidence.

Mr. Wanamaker’s first ineffective assistance of trial counsel claim alleges “[t]rial counsel
committed structure error by not making sure petitioner was convicted beyond a reasonable
doubt.” 96 Mr. Wanamaker explains trial testimony revealed Mr. Franks suffered multiple gunshot
wounds from multiple different weapons. 97 He is seemingly referencing testimony from the
10

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 11 of 51

Commonwealth’s expert witness explaining a ballistics test revealed inconclusive results on two
bullets taken from the crime scene, meaning the expert could not say if the bullets fired form the
same firearm. 98 Mr. Wanamaker argues this testimony demonstrates more than one shooter at the
scene of the crime and the Commonwealth failed to explain which firearm’s bullet proved fatal. 99
It appears Mr. Wanamaker argues trial court counsel acted ineffective by failing to raise this
issue. 100
Mr. Wanamaker acknowledges he failed to raise this ineffective assistance of counsel claim
on direct appeal. 101 He explains he failed to raise the issue because his appointed counsel could
only file an appeal raising the issues his trial counsel filed on appeal. 102 Mr. Wanamaker alleges
he raised the issue in his initial PCRA proceeding but failed to raise this issue on appeal from the
PCRA court, explaining his PCRA counsel believed this ineffective assistance of counsel claim to
be meritless. 103
The Commonwealth addresses Mr. Wanamaker’s claim as a sufficiency of the evidence
claim. The Commonwealth argues this issue is undeveloped, procedurally defaulted, and meritless.
The Commonwealth argues the claim is undeveloped because Mr. Wanamaker fails to explain
what trial counsel could have done to ensure his conviction met the reasonable doubt standard.
The Commonwealth argues the claim is procedurally defaulted because Mr. Wanamaker failed to
raise the issue in the state courts. 104 His claim is unexhausted and procedurally defaulted to the
extent Mr. Wanamaker raises an ineffective assistance of trial counsel claim.
1.

Mr. Wanamaker’s claim is unexhausted and procedurally defaulted.

Mr. Wanamaker’s ineffective assistance of trial counsel for failing to make sure ballistic
evidence convicted him beyond a reasonable doubt claim is unexhausted. The doctrine of
exhaustion requires Mr. Wanamaker to have fairly presented his habeas claims to the Superior

11

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 12 of 51

Court either on direct appeal or in a post-conviction proceeding. 105 To fairly present his claims,
Mr. Wanamaker must demonstrate the legal theory and supporting facts of his habeas claims are
the same legal theory and supporting facts raised in his state court claim. 106 Mr. Wanamaker
concedes he did not raise this issue on direct appeal to the Pennsylvania Superior Court, 107 thus,
he did not fairly present the issue on direct appeal.
Mr. Wanamaker also concedes he failed to raise the issue on appeal in his post-conviction
proceeding, but alleges he raised the present ineffective assistance of trial counsel for failing to
make sure ballistic evidence convicted him beyond a reasonable doubt claim in his initial PCRA
proceeding. 108 But Mr. Wanamaker never raised the issue of ineffective assistance of trial counsel
for failing to make sure ballistic evidence convicted him beyond a reasonable doubt in his initial
PCRA proceeding.
We first look to Mr. Wanamaker’s original pro se PCRA petition. Mr. Wanamaker pro se
petitioned for post-conviction act relief in state court. He raised an ineffective assistance of trial
counsel for failing to make sure ballistic evidence convicted him beyond a reasonable doubt
claim. 109 But after the court appointed PCRA counsel, counsel filed an amended PCRA petition
and did not raise the ineffective assistance of trial counsel for failing to make sure evidence
convicted him beyond a reasonable doubt claim. 110 Pennsylvania law requires a counseled,
amended PCRA petition supersede a pro se PCRA petition. 111 Mr. Wanamaker never presented
the PCRA court with the issues raised in his pro se PCRA petition.
The facts here are similar to Smith v. DiGuglielmo, 112 where Judge DuBois found an
ineffective assistance of trial counsel claim raised in a pro se PCRA petition but not in appointed
counsel’s amended petition is unexhausted. 113 In DiGugielmo, a prisoner first filed a pro se PCRA
petition alleging ineffective assistance of trial counsel for failing to object to the court’s jury

12

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 13 of 51

instructions. 114 Appointed PCRA counsel then filed a counseled, amended PCRA petition but did
not raise the ineffective assistance of trial counsel for failing to object to the court’s jury
instructions claim. 115 After the PCRA court denied the petition, the prisoner appealed to the
Pennsylvania Superior Court raising the ineffective assistance of counsel for failing to object to
the court’s jury instructions claim. 116 The Pennsylvania Superior Court rejected this claim because
“counsel failed to include the claims in petitioner’s amended [PCRA] petition and under
Pennsylvania law, any claims not included in a counseled, amended petition are deemed
waived.” 117 The habeas petitioner in DiGuglielmo filed a habeas petition and raised the same
ineffective assistance of trial counsel issue. 118 Judge DuBois found this claim unexhausted and
procedurally defaulted because “[a]lthough this claim was included in petitioner's original pro se
PCRA petition, it was not included in his amended, counseled petition. Under Pennsylvania law,
claims included in a pro se PCRA petition but not in a subsequent amended, counseled petition
are deemed waived.” 119
This waiver rule of a pro se PCRA petition may not apply when a PCRA petitioner presents
the Pennsylvania Superior Court with the original pro se claim and the Pennsylvania Superior
Court acknowledges the claim. For example, in Blount v. Coleman, 120 Judge Brody adopted Judge
Rice’s Report and Recommendation finding an ineffective assistance of counsel claim is exhausted
where a petitioner raises an issue in a pro se PCRA petition, but appointed counsel does not raise
the issue in the amended petition. 121 In Blount, a prisoner filed a pro se PCRA petition raising a
Sixth Amendment claim for trial and appellate counsel’s failure to file a Rule 600 motion. 122 The
prisoner’s appointed PCRA counsel filed an amended PCRA petition raising a Rule 600 issue but
failed to pair it with a Sixth Amendment claim. 123

13

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 14 of 51

After the PCRA court denied his petition, the petitioner in Blount pro se appealed to the
Pennsylvania Superior Court, raising the Rule 600 issue and paired it with a Sixth Amendment
claim. 124 The Pennsylvania Superior Court acknowledged the prisoner’s claim raised a Rule 600
issue and a Sixth Amendment issue, but the Pennsylvania Superior Court did not address the merits
of the Sixth Amendment claim. 125 The prisoner filed a habeas petition and raised an “ineffective
claim based on the Sixth Amendment speedy trial guarantee.” 126 Judge Rice found the prisoner
fairly presented his claim because he raised the claim before the Superior Court. 127
On the other hand, in Johnston v. Mahally, 128 a habeas petitioner failed to exhaust and
procedurally defaulted a claim despite raising the claim in a pro se PCRA petition. 129 In Johnston,
a habeas petitioner brought a claim of ineffective assistance of counsel for failing to raise a Sixth
Amendment speedy trial claim. 130 The petitioner raised this issue in a pro se PCRA petition but
not in a counseled, amended petition. 131 Judge Robreno found the claim unexhausted after
acknowledging the holding in Blount. Judge Robreno distinguished Blount by highlighting
important differences between Mahally and Blount. 132 For example, unlike in Blount, the petitioner
in Mahally “did not object when his counsel filed the amended PCRA petition,” 133 thus petitioner
“effectively adopted the amended PCRA petition and disavowed the pro se version.” 134 Judge
Robreno found the claim unexhausted because petitioner failed to present the claim in the PCRA
court. 135
Mr. Wanamaker did not present the state courts with an ineffective assistance of trial
counsel claim for failing to make sure ballistic evidence convicted him beyond a reasonable doubt.
The record does not indicate Mr. Wanamaker objected to his appointed counsel’s amended PCRA
petition. Mr. Wanamaker’s amended PCRA petition superseded his pro se PCRA petition. By
adopting the amended petition, Mr. Wanamaker waived the issues raised in the pro se petition. Mr.

14

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 15 of 51

Wanamaker only raised an issue of after-discovered evidence on appeal. Mr. Wanamaker did not
present his pro se PCRA petition to the PCRA court or the Pennsylvania Superior Court on appeal
from the denial of post-conviction relief. Neither the Pennsylvania Superior Court nor the PCRA
court acknowledged the claims raised in his initial review pro se PCRA petition. Mr. Wanamaker
only presented the PCRA court with his amended petition and only raised an issue of afterdiscovered evidence on appeal.
We next turn to Mr. Wanamaker’s amended PCRA petition. Mr. Wanamaker alleges his
convictions resulted from “ineffective assistance of counsel which, in the circumstances of his
particular case, so undermined the truth-determining process that no reliable adjudication of guilt
or innocence could have taken place during his trial.” 136 Mr. Wanamaker does not explain how
counsel acted ineffectively and presents no facts to support his conclusory claim. Mr. Wanamaker
fails to fairly present his ineffective assistance of trial counsel for failing to make sure ballistic
evidence convicted him beyond a reasonable doubt because his PCRA claim presents no facts in
support of its ineffective assistance of counsel claim let alone the same facts underpinning his
federal habeas claim.
Mr. Wanamaker failed to exhaust his effective assistance of trial counsel for failing to make
sure evidence convicted him beyond a reasonable doubt claim.
2.

We are unable to excuse the default.

Mr. Wanamaker’s ineffective assistance of trial counsel claim for failing to make sure
ballistic evidence convicted him beyond a reasonable doubt claim is now procedurally defaulted
under Pennsylvania’s waiver rule 137 and the PCRA statute of limitations. 138 Mr. Wanamaker
presents no new evidence not presented at trial to demonstrate his actual innocence. The question
before us then becomes whether Mr. Wanamaker demonstrates cause and prejudice to excuse his

15

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 16 of 51

default on his ineffective assistance of trial counsel claim for failing to make sure ballistic evidence
convicted him beyond a reasonable doubt. Mr. Wanamaker can establish cause and prejudice by
showing an objective and external factor prevented him from complying with Pennsylvania’s
procedural requirements and this alleged error worked to his “actual and substantial”
disadvantage. 139
Mr. Wanamaker explains he did not raise his ineffective assistance of trial counsel for
failing to make sure evidence convicted him beyond a reasonable doubt claim on direct appeal
because appointed appellate counsel could only raise an appeal on the issues trial counsel filed on
appeal. 140 Mr. Wanamaker also did not raise this issue in his initial PCRA proceeding and did not
raise the issue on appeal from the PCRA court. He explains he did not raise the issue on appeal
because his PCRA counsel found the issue meritless. 141
First, Mr. Wanamaker appears to allege ineffective assistance of appellate counsel as cause
for his default on his ineffective assistance of trial counsel claims. An ineffective assistance of
appellate counsel claim can demonstrate cause for a procedural default so long as the ineffective
assistance of appellate counsel “rises to the level of a Sixth Amendment violation” and is not itself
procedurally defaulted. 142 Mr. Wanamaker cannot demonstrate cause by alleging ineffective
assistance of appellate counsel because he never presented the PCRA court with an ineffective
assistance of appellate counsel claim. He cannot now argue ineffective assistance of appellate
counsel to excuse his procedural default because it itself is unexhausted and procedurally default.
Next, Mr. Wanamaker appears to allege ineffective assistance of PCRA counsel as causing
procedural default on his ineffective assistance of trial counsel claims. Having found Mr.
Wanamaker seemingly alleges ineffective assistance of PCRA counsel is cause to excuse his
default on the underlying ineffective assistance of trial counsel claim, we turn to an analysis of

16

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 17 of 51

whether Mr. Wanamaker’s ineffective assistance of PCRA counsel falls under the Martinez
exception. The third prong of Martinez requires the underlying ineffective assistance of trial
counsel claim to have some merit. 143 To determine if Mr. Wanamaker’s underlying claim of
ineffective assistance of trial counsel has some merit, we turn to the Supreme Court’s standard for
ineffective assistance of counsel in Strickland v. Washington. 144 Under Strickland, Mr.
Wanamaker must show his trial counsel’s performance fell below an objective standard of
reasonableness and he suffered prejudice. 145
Mr. Wanamaker argues trial counsel failed to ensure his conviction met the reasonable
doubt standard in light of the expert witness’ ballistic testimony revealing multiple shooters at the
scene of the crime. 146 But Mr. Wanamaker’s trial counsel elicited this testimony from the
Commonwealth’s expert witness, revealing the inconclusive ballistic test result. 147 The facts here
are similar to Dierolf v. Thompson, 148 where Judge Rambo rejected an ineffective assistance of
trial counsel claim for failing to challenge the sufficiency of evidence. 149 In Dierolf, the
Commonwealth repeatedly referenced saliva taken from the crime scene. 150 Petitioner’s counsel
elicited testimony on cross-examination revealing inconclusive test results on the saliva. 151 In
rejecting the ineffective assistance of trial counsel claim, Judge Rambo explained counsel’s crossexamination “resulted in the jury hearing that the testing results were inconclusive, creat[ing] an
issue of fact for the jury to decide. Therefore, trial counsel was certainly pursuing a reasonable
strategy by presenting the jury with inconclusive test results . . . .” 152
Like in Dierolf, Mr. Wanamaker’s trial counsel pursued a reasonable strategy by presenting
the jury with an inconclusive ballistic test result, creating an issue of fact for the jury to decide.
Mr. Wanamaker cannot show cause for his procedural default under Martinez because his

17

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 18 of 51

underlying claim of ineffective assistance of trial counsel for failing to challenge the sufficiency
of the evidence is insubstantial under Strickland.
Mr. Wanamaker’s ineffective assistance of trial counsel claim for failing to make sure
evidence convicted him beyond a reasonable doubt claim is unexhausted and procedurally
defaulted. We are unable to excuse his procedural default. We reject Mr. Wanamaker’s ineffective
assistance of trial counsel for failing to make sure ballistic evidence convicted him beyond a
reasonable doubt claim.
B.

We reject Mr. Wanamaker’s ineffective assistance of trial counsel claim for
failing to object to conjecture evidence.

Mr. Wanamaker argues ineffective assistance of trial counsel for failing to object to
conjecture evidence. 153 Mr. Wanamaker cites the portion of trial testimony where his trial counsel
cross-examined the Commonwealth’s expert witness. 154 During this exchange, Mr. Wanamaker’s
trial counsel elicited testimony from the Commonwealth’s expert witness revealing inconclusive
results from a ballistics test on two bullets taken from the crime scene—the expert witness could
not say if the bullets did or did not fire from the same firearm. 155 Mr. Wanamaker argues his trial
counsel did not object to the expert witness testimony elicited by his trial counsel, waiving the
issue under Pa R.E. § 103(a). 156
Mr. Wanamaker explains he failed to raise this issue on direct appeal because his appellate
counsel only raised a weight of the evidence proving robbery. 157 He claims to have raised this issue
in his initial PCRA proceeding, but acknowledges he failed to raise the issue on appeal from the
PCRA court explaining his PCRA lawyer only raised the issue of newly discovered evidence
relating to a newly found witness. 158
The Commonwealth concedes Mr. Wanamaker raised this issue in his pro se PCRA
petition but argues he did not fairly present a state court with the issue because his amended PCRA
18

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 19 of 51

petition did not raise the issue. 159 The Commonwealth argues Mr. Wanamaker’s claim is too
insubstantial for Martinez to excuse his procedural default because trial counsel had no basis to
object to evidence trial counsel elicited. 160 We agree with the Commonwealth.
1.

Mr. Wanamaker’s claim is unexhausted and procedurally defaulted.

Mr. Wanamaker’s claim for ineffective assistance of trial counsel for failing to object to
conjecture evidence is unexhausted because he did not fairly present the claim in state court. To
fairly present his claims, Mr. Wanamaker must present the Pennsylvania Superior Court with an
ineffective assistance of counsel claim raising the same legal theory and supporting facts as his
habeas claim. 161 Mr. Wanamaker failed to present a state court with an ineffective assistance of
counsel claim for failing to object to conjecture evidence.
Mr. Wanamaker challenged the sufficiency of the evidence supporting his robbery
conviction in his first direct appeal to the Pennsylvania Superior Court. 162 In his second direct
appeal, Mr. Wanamaker challenged the legality of his robbery sentence. 163 Mr. Wanamaker pro se
raised a claim alleging ineffective assistance of trial counsel for failing to object to conjecture
evidence in his initial PCRA proceeding, 164 but he failed to raise this issue in his amended PCRA
petition. His amended PCRA petition raised an after-discovered evidence claim. The amended
petition also raised a generic ineffective assistance of counsel claim but offered no facts in support
of this claim. 165
Mr. Wanamaker’s amended PCRA petition superseded his pro se PCRA petition, thus, he
failed to present the PCRA court with an ineffective assistance of counsel claim for failing to object
to conjecture evidence. Mr. Wanamaker raised two issues both relating to his after-discovered
evidence claim on appeal from the PCRA court. 166 Mr. Wanamaker never fairly presented the state

19

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 20 of 51

courts with an ineffective assistance of trial counsel for failing to object to conjecture testimony
claim.
Mr. Wanamaker’s ineffective assistance of counsel for failing to object to conjecture
evidence is unexhausted and procedurally defaulted because he failed to fairly present this claim
to the Pennsylvania Superior Court.
2.

We may not excuse the procedural default.

Mr. Wanamaker’s ineffective assistance of trial counsel for failing to objective to
conjecture evidence claim is now procedurally defaulted under Pennsylvania’s waiver rule and the
PCRA statute of limitations. We can excuse Mr. Wanamaker’s procedural default if he can
demonstrate cause and prejudice or a fundamental miscarriage of justice. Mr. Wanamaker does
not raise a fundamental miscarriage of justice claim and he fails to establish cause and prejudice
to excuse his procedural default.
To establish cause and prejudice, Mr. Wanamaker must show an objective and external
factor prevented him from complying with Pennsylvania’s procedural requirements and this
alleged error worked to his “actual and substantial” disadvantage. 167
Mr. Wanamaker first attempts to show cause for his procedural default on the underlying
ineffective assistance of trial counsel claim for failing to object to conjecture evidence by alleging
ineffective assistance of appellate counsel for failing to raise the issue on appeal. 168 But Mr.
Wanamaker never raised this ineffective assistance of appellate counsel claim in the state courts.
Mr. Wanamaker failed to fairly present his ineffective assistance of appellate counsel claim to the
Pennsylvania Superior Court. He is unable to allege ineffective assistance of appellate counsel to
excuse his default on the underlying ineffective assistance of trial counsel claim for failing to
object to conjecture evidence.

20

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 21 of 51

Mr. Wanamaker also attempts to excuse his default on the underlying ineffective assistance
of trial counsel claim for failing to object to conjecture evidence by alleging ineffective assistance
of PCRA counsel for failing to raise the issue on appeal in the PCRA court. 169 Mr. Wanamaker
can allege ineffective assistance of PCRA counsel as cause to excuse his underlying ineffective
assistance of trial counsel claim if he meets the Martinez standard. The third prong of Martinez
requires Mr. Wanamaker demonstrate his underlying ineffective assistance of trial counsel claim
has some merit. 170 To determine if Mr. Wanamaker’s underlying ineffective assistance of trial
counsel claim has merit, we address whether Mr. Wanamaker’s trial counsel provided ineffective
assistance under the two-prong test in Strickland.
Mr. Wanamaker argues trial counsel failed to object to the ballistic evidence trial counsel
elicited from the Commonwealth’s expert witness. 171 Mr. Wanamaker cites testimony where the
Commonwealth’s expert witness admits he is unable to conclude two bullets taken from the crime
scene fired from the same firearm. 172 During this exchange, Mr. Wanamaker’s trial counsel also
elicited testimony revealing the expert could not provide specific details because “no firearm was
submitted in this case.” 173 The record shows the expert witness testified, “the projectiles that were
submitted are consistent with a revolver type,” but the expert witness could not testify to any other
characteristics of the firearm. 174
Mr. Wanamaker’s ineffective assistance of trial counsel claim for failing to object to the
ballistic testimony fails the first prong of Strickland. Trial counsel’s cross-examination of the
expert witness revealed the ballistic test results returned inconclusive. 175 Trial counsel elicited
favorable testimony to Mr. Wanamaker’s case and created an issue of fact for the jury to consider.
We cannot find Mr. Wanamaker’s trial counsel acted unreasonable for failing to object to favorable
testimony he elicited.

21

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 22 of 51

Our Court of Appeals has found trial counsel is not unreasonable for failing to object to
evidence supporting a petitioner’s theory of the case. In United States v. Mercado, 176 our Court of
Appeals reversed the district court and denied a habeas petition finding trial counsel did not act
unreasonable for failing to object to hearsay in a DEA agent’s testimony. 177 In Mercado, Drug
Enforcement Agency agents witnessed a buyer purchase heroin from sellers in a Ford Taurus. 178
After a confrontation between the agents and the buyer, the buyer revealed the identities of the
sellers including the petitioner. 179 The buyer agreed to arrange for the sellers to return. The agents
arrested the sellers upon their return. 180 One DEA agent testified at trial to his conversation with
the buyer implicating petitioner as a passenger in the vehicle. 181 The petitioner’s trial counsel
presented a theory of the case arguing petitioner simply rode along as a passenger in the car, but
engaged in no criminal conduct. 182 In his habeas petition, the petitioner argued ineffective
assistance of counsel for failing to object to the agent’s testimony. 183 The district court granted
petitioner’s habeas petition. 184 Our Court of Appeals reversed, finding trial counsel did not act
unreasonable in failing to object to the agent’s testimony. 185 The testimony revealed petitioner
only sat as a passenger in the car, and our Court of Appeals noted this supports petitioner’s theory
of the case. 186 Trial counsel did not act unreasonable. 187
Like in Mercado, Mr. Wanamaker’s trial counsel elicited testimony from the expert witness
strengthening his theory of the case. Mr. Wanamaker’s trial counsel’s line of questioning revealed
to the jury the Commonwealth could not definitively say both bullets fired from the same firearm.
Mr. Wanamaker’s trial attorney could not have acted unreasonably as his cross-examination
revealed favorable testimony. Mr. Wanamaker also fails to show prejudice suffered from trial
counsel’s alleged unreasonableness. It is unclear, and Mr. Wanamaker does not explain how,

22

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 23 of 51

favorable testimony regarding an inconclusive ballistic result could have prejudiced Mr.
Wanamaker by depriving him of a fair trial.
Mr. Wannamaker’s trial attorney acted reasonable during the cross examination of the
expert witness, and Mr. Wanamaker is silent as to prejudice he suffered because of this exchange.
Mr. Wanamaker’s underlying ineffective assistance of trial counsel claim is meritless. Mr.
Wanamaker does not show cause for his procedural default on his ineffective assistance of trial
counsel claim because his ineffective assistance of PCRA counsel claim does not fall within the
narrow Martinez exception.
Mr. Wanamaker’s ineffective assistance of trial counsel claim for failing to object to
conjecture evidence is unexhausted and procedurally defaulted. We cannot excuse his procedural
default.
C.

We reject Mr. Wanamaker’s ineffective assistance of trial counsel for
undermining his right to have a judge and stenographer during voir dire.

Mr. Wanamaker argues trial counsel provided ineffective assistance by undermining his
right to have a judge and stenographer present during voir dire. 188 He alleges his trial counsel
instructed him to sign a form waiving his right to a judge and stenographer during voir dire, but
counsel did not explain the ramifications of the waiver. 189 Mr. Wanamaker concedes he failed to
raise the issue on direct appeal. 190 He explains he failed to raise the issue because his appellate
counsel only raised an issue challenging the weight of the robbery evidence. 191 Mr. Wanamaker
alleges he raised this issue in his initial PCRA proceeding but failed to raise the issue on appeal to
the Pennsylvania Superior Court. 192 He explains he did not raise an ineffective assistance of trial
counsel for undermining his right to a judge and stenographer during voir dire claim because his
PCRA counsel only raised the issue of after-discovered evidence. 193

23

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 24 of 51

The Commonwealth argues Mr. Wanamaker failed to fairly present this claim to the state
courts and his claim is now procedurally defaulted. 194 The Commonwealth argues the underlying
ineffective assistance of trial counsel claim is too insubstantial for Martinez to excuse the default,
as Mr. Wanamaker fails to identify prejudice suffered as a result of the waiver . 195 We agree with
the Commonwealth.
1.

Mr. Wanamaker’s claim is unexhausted and procedurally defaulted.

Mr. Wanamaker’s ineffective assistance of trial counsel claim for undermining his rights
during voir dire is unexhausted. Mr. Wanamaker failed to fairly present the state courts with this
claim. To fairly present his claim, Mr. Wanamaker must have presented the Pennsylvania Superior
Court with a sufficiently equivalent claim compared to his habeas petition claim. This standard
requires the habeas claim allege the same legal theory and supporting facts as the state court
claim. 196
Mr. Wanamaker never raised an ineffective assistance of trial counsel claim for
undermining his voir dire rights in a state court proceeding. His two direct appeals challenged the
sufficiency of the evidence supporting his robbery conviction 197 and the legality of his sentence
for the robbery conviction. 198 Mr. Wanamaker’s pro se PCRA petition raised an ineffective
assistance of trial counsel for undermining his right to having a judge and stenographer present
during voir dire claim. 199 But Mr. Wanamaker’s amended PCRA petition did not. 200 Mr.
Wanamaker’s amended PCRA petition superseded his pro se PCRA petition, so he did not present
his pro se claims to the PCRA court. Mr. Wanamaker’s amended PCRA petition raises an
ineffective assistance of counsel claim but makes no mention of counsel undermining Mr.
Wanamaker’s right to having a judge and stenographer present during voir dire. On appeal from

24

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 25 of 51

the PCRA court, Mr. Wanamaker raised two issues related to his after-discovered evidence
claim. 201
Mr. Wanamaker did not fairly present his ineffective assistance of counsel claim for
undermining his right to having a judge and stenographer present during voir dire claim in state
court. The claim is unexhausted.
2.

We are unable to excuse the procedural default.

Mr. Wanamaker’s ineffective assistance of trial counsel claim for undermining his right to
a judge and stenographer during voir dire is procedurally defaulted under Pennsylvania’s waiver
rule and the PCRA statute of limitations. We can excuse Mr. Wanamaker’s procedural default if
he demonstrates cause and prejudice or a fundamental miscarriage of justice. Mr. Wanamaker
demonstrates neither.
Mr. Wanamaker again argues he failed to raise the issue on direct appeal because his
appellate counsel only challenged the sufficiency of the robbery evidence on direct appeal. 202 As
we explained, his claim of ineffective assistance of appellate counsel itself is procedurally
defaulted because he failed to raise the issue in the state courts. Mr. Wanamaker cannot
demonstrate cause by alleging another procedurally defaulted claim.
Mr. Wanamaker argues he failed to raise the claim in his appeal from the PCRA court
because his PCRA counsel only raised the after discovered evidence issue on appeal. 203 To the
extent Mr. Wanamaker attempts to allege ineffective assistance of PCRA counsel as cause to
excuse his procedural default on the ineffective assistance of trial claim, the ineffective assistance
of PCRA counsel claim fails the Martinez analysis. Mr. Wanamaker’s underlying claim of
ineffective assistance of trial counsel for undermining his right to a judge and stenographer during
voir dire is meritless resulting in Mr. Wanamaker failing the third prong of Martinez.

25

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 26 of 51

To demonstrate his underlying ineffective assistance of trial counsel claim for undermining
his right to a judge and stenographer during voir dire has merit, Mr. Wanamaker must show his
trial counsel provided ineffective assistance under Strickland. Mr. Wanamaker must show his trial
counsel’s performance fell below an objective standard of reasonableness and he suffered
prejudice. 204 This prejudice prong requires a “reasonable probability” the result of the proceeding
would have been different but for counsel’s alleged error. 205
Mr. Wanamaker fails to show his underlying claim of ineffective assistance of trial counsel
is substantial under Strickland because he does not explain how the waiver prejudiced him. Mr.
Wanamaker only explains counsel advised him signing the waiver is “part of the process,” 206 and
did not explain “the ramification of such a waiver.” 207 Beyond this, Mr. Wanamaker offers nothing
to show the waiver deprived him of a fair trial. In at least one instance, our Court of Appeals finds
the absence of a trial judge and stenographer during voir dire is not reversible error. 208 In Haith v.
United States, 209 a prisoner’s attorney “impliedly waived” his right to have a trial judge and
stenographer present during voir dire. 210 Our Court of Appeals noted the prisoner alleged no
prejudice occurred from the judge’s absence and concludes no reversible error. 211 Like our Court
of Appeals in Haith, we cannot find Mr. Wanamaker suffered prejudice from his waiver of the
presence of a judge and stenographer during voir dire.
Mr. Wanamaker’s ineffective assistance of trial counsel claim for undermining his right to
a judge and stenographer during voir dire is unexhausted and procedurally defaulted. We are
unable to excuse his procedural default.
D.

We reject Mr. Wanamaker’s insufficient ballistic evidence claim.

Mr. Wanamaker pairs his ineffective assistance of trial counsel claim for failing to make
sure ballistic evidence convicted him beyond a reasonable doubt with an insufficient evidence

26

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 27 of 51

claim. 212 Mr. Wanamaker argues the trial court committed a structural error by failing to make
sure his conviction met the reasonable doubt standard. 213 The facts supporting his insufficient
evidence claim are the same as the facts supporting his ineffective assistance of counsel claim for
failing to make sure his conviction met the reasonable doubt standard. Mr. Wanamaker alleges
trial testimony suggests multiple gunmen shot Mr. Franks. 214 He fails to cite specific trial
testimony, but we understand Mr. Wanamaker is referring to testimony from the Commonwealth’s
expert witness. The expert witness explained he conducted a ballistic test on two bullets taken
from the crime scene with inconclusive results. 215 The expert could not say whether the two bullets
fired from the same firearm. 216 Mr. Wanamaker argues the Commonwealth did not explain which
bullet killed Mr. Franks. 217
Mr. Wanamaker failed to raise an insufficient ballistic evidence claim challenging the
ballistic testimony on direct appeal. He admits to as much, explaining he failed to do so because
his appellate counsel could only file an appeal on the issues trial counsel raised on appeal. 218 Mr.
Wanamaker alleges he raised the issue in his PCRA petition, but concedes he failed to raise the
issue on appeal from the PCRA court. 219 He explains he did not raise the issue on appeal from the
PCRA court because his PCRA counsel found the issue meritless. 220
The Commonwealth argues the insufficient ballistic evidence claim is procedurally
undeveloped, defaulted and meritless. 221 The Commonwealth explains the insufficient ballistic
evidence claim is undeveloped because Mr. Wanamaker does not allege what the trial court could
have done to ensure his conviction met the reasonable doubt standard. 222 The Commonwealth
argues Mr. Wanamaker’s insufficient ballistic evidence claim is procedurally defaulted because
he never presented a state court with an insufficient ballistic evidence claim, and Mr. Wanamaker
is now barred from raising the claim in state court. 223 The Commonwealth also argues the

27

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 28 of 51

insufficient ballistic evidence claim is meritless because it fails the Jackson v. Virginia 224
sufficiency of evidence test. 225 We agree Mr. Wanamaker’s claim is procedurally defaulted.
1.

Mr. Wanamaker’s claim is unexhausted and procedurally defaulted.

Mr. Wanamaker’s insufficient ballistic evidence claim is unexhausted. To exhaust his
insufficient ballistic evidence claim, Mr. Wanamaker must have fairly presented it in the state
courts. To fairly present his claim to the state courts, Mr. Wanamaker must present the
Pennsylvania Superior Court with a claim alleging the same legal theory and supporting facts as
his present insufficient ballistic evidence claim. 226 Although Mr. Wanamaker admits he failed to
raise an insufficient ballistic evidence claim on direct appeal, we recognize Mr. Wanamaker raised
an insufficient evidence claim on direct appeal. 227 But the insufficient evidence claim raised on
direct appeal challenged the sufficiency of the evidence supporting Mr. Wanamaker’s robbery
conviction and did not mention the ballistic evidence. 228
Mr. Wanamaker did not fairly present the Pennsylvania Superior Court with his insufficient
ballistic evidence claim by raising an insufficient robbery evidence claim on appeal because the
two claims are not substantially equivalent. In Pirela v. Vaughn, 229 Judge Slomsky rejected a
habeas petitioner’s ineffective assistance of counsel claim as unexhausted and procedurally
defaulted. 230 Judge Slomsky found the petitioner did not fairly present claims in his habeas petition
where the claims rely on the same legal theory as state court claims but not the same set of facts
to support the legal theories as the state court claims. 231 The petitioner argued ineffective assistance
of counsel in his habeas petition and relied on 2009 affidavits. 232 In his PCRA petition, petitioner
raised an ineffective assistance of counsel claim without relying on the same 2009 affidavits. 233
The PCRA claim relied on different affidavits of testimony from the same witnesses. 234 Judge
Slomsky concluded the substance of the testimony in the 2009 affidavits is “considerably

28

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 29 of 51

different” from the substance of the testimony relied on in the PCRA court. 235 Judge Slomsky
found the petitioner had not exhausted the claim in state court. 236
Our Court of Appeals in Lesko v. Owens 237 found a different fact pattern met the exhaustion
requirement. 238 In Lesko, a jury convicted defendant of first-degree murder relying on witness
testimony. 239 The defendant appealed arguing the trial court erred in admitting the witness
testimony because the testimony’s “probative value was outweighed by its prejudicial effect.” 240
Defendant sought habeas relief again arguing the trial court erred in admitting the same witness
testimony because “the probative value of [witness’s] testimony was outweighed by its prejudicial
effect.” 241 Our Court of Appeals held the defendant-petitioner met the exhaustion requirement
because “[t]he legal theory (the probative value of evidence was outweighed by its prejudicial
effect) and the facts (the substance of [witness’s] testimony) on which [prisoner’s] federal claim
rests, had been submitted to the state courts.” 242
Like the petitioner’s arguments reviewed by Judge Slomsky in Pirela, Mr. Wanamaker’s
insufficient evidence claim in the habeas petition today relies on different facts than the insufficient
evidence claim he raised on direct appeal to the Pennsylvania Superior Court. In his habeas
petition, Mr. Wanamaker relies on testimony, presumably from the Commonwealth’s expert
witness, to allege insufficient ballistic evidence related to the murder of Mr. Franks. 243 In his direct
appeal to the Pennsylvania Superior Court, Mr. Wanamaker relied on trial testimony from a
different witness, Mr. Taylor, to challenge the sufficiency of the evidence supporting his robbery
conviction. 244 Mr. Wanamaker failed to fairly present his insufficient ballistic evidence claim on
direct appeal.
Mr. Wanamaker alleges he raised an insufficient ballistic evidence claim in his initial
PCRA petition. 245 We disagree. Mr. Wanamaker raised an insufficient ballistic evidence claim in

29

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 30 of 51

his pro se PCRA petition but not in his amended PCRA petition. 246 His amended PCRA petition
superseded his pro se PCRA petition and neither the PCRA court nor Pennsylvania Superior Court
addressed the issues raised in the pro se PCRA petition. Mr. Wanamaker failed to fairly present
the claims raised in his pro se PCRA petition. Mr. Wanamaker concedes he failed to raise an
insufficient ballistic evidence claim on appeal from the PCRA court. 247 Mr. Wanamaker failed to
fairly present his insufficient ballistic testimony claim. The insufficient ballistic testimony claim
is unexhausted.
2.

We cannot excuse the procedural default.

Mr. Wanamaker’s insufficient ballistic evidence claim is now procedurally defaulted under
Pennsylvania’s waiver rule and the PCRA statute of limitations. We can excuse Mr. Wanamaker’s
procedural default on his insufficient ballistic evidence claim if he demonstrates cause and
prejudice or a fundamental miscarriage of justice will occur if we do not consider his claim. Mr.
Wanamaker can establish cause and prejudice by showing an objective and external factor
prevented him from complying with Pennsylvania’s procedural requirements and this alleged error
worked to his “actual and substantial” disadvantage. 248
By pairing his insufficient ballistic evidence claim with an ineffective assistance of trial
counsel claim, Mr. Wanamaker first attempts to demonstrate cause by alleging ineffective
assistance of trial counsel. Mr. Wanamaker alleges ineffective assistance of trial counsel for failing
to make sure Mr. Wanamaker’s conviction met the reasonable doubt standard. 249 This ineffective
assistance of trial counsel claim is itself procedurally defaulted. Mr. Wanamaker cannot excuse a
procedural default on the insufficient ballistic evidence claim with a procedurally defaulted
ineffective assistance of trial counsel claim.

30

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 31 of 51

Mr. Wanamaker next argues he failed to present the Pennsylvania Superior Court with an
insufficient ballistic evidence claim because his appellate counsel failed to raise the issue. 250 Mr.
Wanamaker may raise an ineffective assistance of appellate counsel claim as cause to excuse his
procedural default on his insufficient ballistic evidence claim. 251 But his ineffective assistance of
appellate counsel claim cannot itself be procedurally defaulted. 252 Mr. Wanamaker never raised
an ineffective assistance of appellate court counsel for failing to raise an insufficient ballistic
evidence claim in state court. Mr. Wanamaker failed to fairly present his ineffective assistance of
appellate counsel claim in state court. He is unable to excuse his procedural default on the
insufficient ballistic testimony claim with a procedurally defaulted ineffective assistance of
appellate counsel claim.
Mr. Wanamaker also argues he failed to raise an insufficient ballistic evidence claim on
appeal from the PCRA court because his PCRA counsel only raised the issue of after-discovered
evidence on appeal. 253 We understand Mr. Wanamaker is alleging ineffective assistance of PCRA
counsel as cause to excuse his procedural default on the insufficient ballistic evidence claim. But
the general rule is ineffective assistance of PCRA counsel cannot establish cause to excuse a
default because it is not a constitutional violation. 254 Ineffective assistance of PCRA counsel
cannot establish cause to excuse Mr. Wanamaker’s procedural default on the insufficient ballistic
testimony claim. As we explained, the standard established in Martinez permits a claim of
ineffective assistance of PCRA counsel to excuse a procedural default in a narrow set of
circumstances. But Martinez is not applicable here. Martinez may excuse a procedural default on
an underlying claim of ineffective assistance of trial counsel. 255 Mr. Wanamaker’s underlying
claim is insufficient ballistic evidence. Martinez does not apply, and Mr. Wanamaker cannot allege

31

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 32 of 51

ineffective assistance of PCRA counsel is cause to excuse his procedural default on an insufficient
ballistic evidence claim.
Mr. Wanamaker presents no new evidence not presented at trial to establish a fundamental
miscarriage of justice will occur if we fail to excuse his procedural default on the insufficient
ballistic evidence claim. We are unable to excuse Mr. Wanamaker’s procedural default on his
insufficient ballistic evidence claim.
Mr. Wanamaker’s insufficient ballistic evidence claim is unexhausted and procedurally
defaulted as he failed to fairly present the claim to the state courts. Mr. Wanamaker fails to
establish cause to excuse his procedural default and presents no new evidence to argue a
fundamental miscarriage of justice will occur if we fail to consider his insufficient ballistic
evidence claim. We reject Mr. Wanamaker’s insufficient ballistic evidence claim.
E.

We reject Mr. Wanamaker’s prosecutorial misconduct claim.

Mr. Wanamaker argues the prosecutor at trial committed misconduct by using “duplicity
in his collusion with counsel.” 256 Mr. Wanamaker argues the prosecutor’s conduct violated Rule
404(b)(1) of the Pennsylvania Rules of Evidence. 257 Mr. Wanamaker admits he did not raise this
issue on direct appeal, explaining his appellate counsel only raised an issue challenging the weight
of the evidence supporting his robbery conviction. 258 Mr. Wanamaker claims to have raised this
issue in his initial PCRA proceeding but failed to raise it on appeal from the PCRA court. 259 He
explains his PCRA counsel only raised the after-discovered evidence claim on appeal. 260
The Commonwealth argues the claim is procedurally defaulted and Mr. Wanamaker fails
to excuse his default because Martinez does not apply to prosecutorial misconduct claims. 261 The
Commonwealth also argues even if Mr. Wanamaker did not procedurally default on his
prosecutorial misconduct claim, he still is not entitled to relief. 262 The Commonwealth explains

32

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 33 of 51

the alleged misconduct did not deprive Mr. Wanamaker of a fair trial as required in a prosecutorial
misconduct claim. 263 We agree with the Commonwealth. Mr. Wanamaker’s prosecutorial
misconduct claim is unexhausted and procedurally defaulted. Mr. Wanamaker is unable to
demonstrate cause to excuse his procedural default.
1.

Mr. Wanamaker’s claim is unexhausted and procedurally defaulted.

Mr. Wanamaker’s prosecutorial misconduct claim is unexhausted because he failed to
fairly present the claim in the state courts. Mr. Wanamaker concedes he did not raise the issue on
direct appeal and concedes he did not raise the issue on appeal from the PCRA court. 264 Mr.
Wanamaker never presented the Pennsylvania Superior Court with a prosecutorial misconduct
claim. We disagree Mr. Wanamaker raised a prosecutorial misconduct claim in his initial PCRA
proceeding. Mr. Wanamaker raised a prosecutorial misconduct claim in his initial pro se PCRA
petition. 265 But he did not in his amended PCRA petition. 266 His amended PCRA petition
superseded his pro se PCRA petition, so he did not raise this issue in the initial PCRA proceeding.
Mr. Wanamaker failed to raise a prosecutorial misconduct claim in his initial PCRA
proceeding. Mr. Wanamaker concedes he never presented the Pennsylvania Superior Court with a
prosecutorial misconduct claim because he admits to failing to raise the issue on direct appeal and
on appeal from the PCRA court. 267 Mr. Wanamaker’s prosecutorial misconduct claim is
unexhausted.
2.

We are unable to excuse Mr. Wanamaker’s default.

Mr. Wanamaker’s prosecutorial misconduct claim is now procedurally defaulted under
Pennsylvania’s waiver rule and the PCRA statute of limitations. We may excuse Mr. Wanamaker’s
procedural default if he demonstrates cause and prejudice or a fundamental miscarriage of justice.

33

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 34 of 51

Mr. Wanamaker concedes he failed to raise a prosecutorial misconduct claim on direct
appeal or on appeal from the PCRA court because his appellate and PCRA counsels raised other
issues. 268 To the extent Mr. Wanamaker is attempting to argue ineffective assistance of appellate
counsel and ineffective assistance of PCRA counsel to demonstrate cause for excusing his
procedural default, we reject his arguments.
Mr. Wanamaker may allege ineffective assistance of counsel as cause to excuse his
procedural default on the prosecutorial misconduct claim, but the ineffective assistance of counsel
claim cannot itself be procedurally defaulted. In Murrell v. Giroux, 269 Judge Caldwell rejected a
claim of ineffective assistance of appellate counsel as cause to excuse a procedural default on a
prosecutorial misconduct claim because the alleged misconduct “was not objected to or otherwise
preserved during trial.” 270 The petitioner also failed to raise the claim in a collateral-review
proceeding, so ineffective assistance of counsel did not establish cause to excuse the procedural
default on prosecutorial misconduct because the ineffective assistance claim itself procedurally
defaulted. 271 Judge Caldwell concluded by explaining the procedural default on the ineffective
assistance claim cannot be excused under Martinez because “the Martinez exception does not
extend to underlying claims of appellate ineffectiveness.” 272
In a similar case, Judge Stengel found a petitioner failed to excuse a procedural default on
a prosecutorial misconduct claim by alleging several ineffective assistance of counsel claims as
cause. 273 In Welborne v. Tritt, 274 a petitioner procedurally defaulted on his prosecutorial
misconduct claim. 275 To demonstrate cause for his default, the petitioner raised ineffective
assistance of appellate and PCRA counsel claims. 276 Judge Stengel found the petitioner failed to
demonstrate ineffective assistance of appellate counsel as cause because he never presented a state
court with an ineffective assistance of appellate counsel claim. 277 Judge Stengel found the

34

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 35 of 51

petitioner did not demonstrate ineffective assistance of PCRA counsel as cause to excuse the
default on the prosecutorial misconduct claim under Martinez. 278 Under Martinez, ineffective
assistance of PCRA counsel can constitute cause to excuse a procedural default only when the
underlying claim is ineffective assistance of trial counsel. 279 Judge Stengel explained the
petitioner’s underlying claim is for prosecutorial misconduct, not ineffective assistance of trial
counsel, so the petitioner failed to excuse his procedural default. 280
Like in Murrell and Tritt, Mr. Wanamaker does not establish cause to excuse his default
on the prosecutorial misconduct claim. He explains he failed to present the Pennsylvania Superior
Court with this claim on direct appeal because his attorney “only raised a weight of the evidence
claim.” 281 But he never presented a PCRA court with an ineffective assistance of appellate counsel
claim for failing to raise a prosecutorial misconduct claim on direct appeal. His ineffective
assistance of appellate counsel claim is itself procedurally defaulted and cannot be used as cause
to excuse his default of the prosecutorial misconduct claim.
Mr. Wanamaker also failed to present the PCRA court with a prosecutorial misconduct
claim and did not raise a prosecutorial misconduct claim on appeal from the PCRA court. In
explaining his failure to raise the issue on appeal, Mr. Wanamaker explains his PCRA counsel
only pursued a claim of after-discovered evidence. 282 Mr. Wanamaker is unable to argue this
ineffective assistance of PCRA counsel establishes cause to excuse the procedural default on his
prosecutorial misconduct claim because ineffective assistance of PCRA counsel cannot serve as
cause unless it falls under the Martinez exception. Martinez applies only to underlying claims of
ineffective assistance of trial counsel, not prosecutorial misconduct claims. Mr. Wanamaker fails
to establish cause to excuse his procedural default on the prosecutorial misconduct claim.

35

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 36 of 51

Mr. Wanamaker also fails to show a fundamental miscarriage of justice if we do not
consider his claim of prosecutorial misconduct. To show a fundamental miscarriage of justice, Mr.
Wanamaker “must present new evidence that he is actually innocent of the crime for which he has
been convicted.” 283 Mr. Wanamaker alleges no new evidence in support of his prosecutorial
misconduct claim. Mr. Wanamaker’s prosecutorial misconduct claim is unexhausted and
procedurally defaulted. He fails to excuse his procedural default by demonstrating cause and
prejudice or a fundamental miscarriage of justice.
Mr. Wanamaker failed to exhaust his prosecutorial misconduct claim and it is now
procedurally defaulted. We are unable to excuse the procedural default as Mr. Wanamaker fails to
demonstrate cause and prejudice or a fundamental miscarriage of justice. We reject his
prosecutorial misconduct claim.
F.

We deny a certificate of appealability.

“[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a
district court's denial of his petition.” 284 Section 2253 provides the standard for a certificate of
appealability required for appellate review of a district court’s judgment denying habeas relief:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district
judge, the final order shall be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity
of a warrant to remove to another district or place for commitment or trial a person
charged with a criminal offense against the United States, or to test the validity of such
person's detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may
not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention complained
of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
36

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 37 of 51

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has
made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific
issue or issues satisfy the showing required by paragraph (2). 285
A certificate of appealability “will issue only if the requirements of § 2253 have been
satisfied.” 286 A habeas petitioner seeking a certificate of appealability “need only demonstrate ‘a
substantial showing of the denial of a constitutional right.’” 287 A petitioner “satisfies this standard
by demonstrating that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” 288
Federal Rule of Appellate Procedure 22 contemplates a district court issuing a certificate
of appealability in the first instance:
(b) Certificate of Appealability. (1) In a habeas corpus proceeding in which the
detention complained of arises from process issued by a state court, or in a 28
U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a circuit
justice or a circuit or district judge issues a certificate of appealability under 28
U.S.C. § 2253(c). If an applicant files a notice of appeal, the district clerk must send
to the court of appeals the certificate (if any) and the statement described in Rule
11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255 (if
any), along with the notice of appeal and the file of the district-court proceedings.
If the district judge has denied the certificate, the applicant may request a circuit
judge to issue it. 289
Given the standard we apply today to habeas challenges to ineffectiveness of counsel and
exhaustion arguments, we cannot find jurists of reason could disagree with our reasoning in
denying the petition. Mr. Wanamaker has not met his burden in showing a reasonable jurist would
disagree with the denial of the petition based on the objections.

37

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 38 of 51

III.

Conclusion
We deny Mr. Wanamaker’s habeas petition. Mr. Wanamaker failed to exhaust each of his

claims. They are now procedurally defaulted under Pennsylvania’s waiver rule and the PCRA
statute of limitations. We cannot excuse Mr. Wanamaker’s procedural default on the claims
because he fails to show cause and prejudice to excuse the default or a fundamental miscarriage of
justice if we do not consider the merits of his claims. There is no basis for a certificate of
appealability.

1

Commonwealth v. Wanamaker, No. 664 EDA 2013, 2013 WL 11249181, at *1 (Pa. Super. Ct.
Nov. 26, 2013).
2

Notes of Testimony (“N.T.”) Jan. 23, 2013 Trial at 85, 121; N.T. Jan. 24, 2013 Trial at 33-34.

3

N.T. Jan. 23, 2013 Trial at 78-79.

4

Id. at 109-16, 130, 209.

5

Wanamaker, 2013 WL 11249181, at *1.

6

Commonwealth v. Wanamaker, No. 3145 EDA 2018, 2019 WL 5168639, at *1 (Pa. Super. Ct.
Oct. 15, 2019).
7

Commonwealth v. Wanamaker, No. 819 EDA 2016, 2017 WL 498504, at *1 (Pa. Super. Ct. Feb.
7, 2017).
8

N.T. Jan. 23, 2013 Trial at 76-82, 100, 113-14, 118; N.T. Jan. 24, 2013 Trial at 12, 46.

9

N.T. Jan. 23, 2013 Trial at 164-69.

10

Id. at 168.

11

Id.

12

Id. at 169.

13

Id. at 231-32.

38

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 39 of 51

14

N.T. Jan. 23, 2013 Trial at 231.

15

Wanamaker, 2017 WL 498504, at *1.

16

Id.

17

Id.

18

Wanamaker, 2013 WL 11249181, at *1.

19

Id.

20

Id.

21

Id. at *2.

22

Wanamaker, 2017 WL 498504, at *1.

23

Id.

24

Id.

25

Id. at *2.

26

Id. at *3.

27

Wanamaker, 2019 WL 5168639, at *1.

28

Pro se PCRA Pet. at 2, Commonwealth v. Wanamaker, Doc. No. CP 51-CR-0010007-2011
(Phila. Cnty. Ct. Com. Pl. Dec. 14, 2018).
29

Id. at 8.

30

Id. at 10.

31

Id. at 15.

32

Id. at 17.

33

Wanamaker, Doc. No. CP-51-CR-0010007-2011, at 2.

34

Am. PCRA Pet., Wanamaker, Doc. No. CP 51-CR-0010007-2011.

35

Id. at ¶ 10.

36

Id.
39

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 40 of 51

37

Wanamaker, 2019 WL 5168639, at *1.

38

Wanamaker, Doc. No. CP-51-CR-0010007-2011, at 3.

39

Id.

40

Id.

41

Id. at 3-4.

42

Wanamaker, 2019 WL 5168639, at *1.

43

Id.

44

Id.

45

Id.

46

Id.

47

Wanamaker, 2019 WL 5168639, at *2 (citing Appellant’s Br. at 3).

48

Id. at *3.

49

Id.

50

Id.

51

ECF Doc. No. 2 at 5.

52

Id. at 6.

53

Id. at 8.

54

Id. at 9.

55

Parker v. Kelchner, 429 F.3d 58, 61 (3d Cir. 2005) (quoting Vasquez v. Hillery, 474 U.S. 254,
257 (1986)).
56

Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. § 2254(b)(1)(A)).

57

McLaughlin v. Carroll, 270 F. Supp. 2d 490, 500 (D. Del. 2003) (citing Lines v. Larkins, 208
F.3d 153, 160 (3d Cir. 2000)).
58

Id.; Lambert, 134 F.3d at 513.
40

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 41 of 51

59

See Lambert v. Blackwell, 387 F.3d 210, 232-34 (3d Cir. 2004) (finding a petitioner who
appealed a PCRA court judgment to the Pennsylvania Superior Court but not the Pennsylvania
Supreme Court exhausted her claim in light of Pennsylvania Supreme Court Order 218).
Pennsylvania Supreme Court Order 218 explains, “we hereby declare that in all appeals from
criminal convictions or post-conviction relief matters, a litigant shall not be required to petition
for rehearing or allowance of appeal following an adverse decision by the Superior Court in order
to be deemed to have exhausted all available state remedies respecting a claim of error.” Id. at 233.

60

McCabe v. Pennsylvania, 419 F. Supp. 2d 692, 696 (E.D. Pa. 2006).

61

Mattis v. Vaughn, 128 F. Supp. 2d 249, 257 (E.D. Pa. 2001), aff’d, 80 F. App’x 154 (3d Cir.
2003).

62

959 F.2d 1227, 1231 (3d Cir. 1992).

63

Id. (citations omitted).

64

McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (citing Anderson v. Harless, 459 U.S.
4, 6 (1982)).

65

Id.

66

See Rush v. Beard, No. 08-4843, 2018 WL 3640599, at *36 (E.D. Pa. Aug. 1, 2018).

67

Id. (citing Commonwealth v. Privolos, 746 A.2d 621, 623 (Pa. Super. Ct. 2000)).

68

Id. (citation omitted).

69

Prieto v. Brinkley, No. 19-4850, 2020 WL 4334924, at *3 (E.D. Pa. July 28, 2020)
(citing Souffrant v. Kauffman, No. 18-2848, 2019 WL 1752916, at *3 (E.D. Pa. Jan. 30, 2019));
see Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993).
70

McCabe, 419 F. Supp. 2d at 696 (quoting Toulson, 987 F.2d at 987) (citations omitted).

71

Id. (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

72

Id. at 697 (citing Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir. 2002)).

73

Id.

74

Id.

75

McCabe, 419 F. Supp. 2d at 696 (quoting United States v. Rodriguez, 153 F. Supp. 2d 590, 594
(E.D. Pa. 2001); United States v. Frady, 456 U.S. 152, 170 (1982)).
76

Id.
41

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 42 of 51

77

Drummond v. Ryan, 572 F. Supp. 2d 528, 533 (D. Del. 2008) (citing Bousley v. United States,
523 U.S. 614, 623 (1998)).
78

Id. (quoting Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004)).

79

See Kirnon v. Klopotoski, 620 F. Supp. 2d 674, 684 (E.D. Pa. 2008) (“The Supreme Court has
recognized that ineffectiveness of trial and direct appeal counsel may establish ‘cause’ where
counsel is constitutionally ineffective.”); Murray v. Carrier, 477 U.S. 478, 488 (1986).
80

Porter v. Horn, 276 F. Supp. 2d 278, 293 (E.D. Pa. 2003) (citing Murray, 477 U.S. at 488).

81

See Edwards v. Carpenter, 529 U.S. 446, 453 (2000).

82

Coleman, 501 U.S. at 725.

83

Kirnon, 620 F. Supp. 2d at 684 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)).

84

See Martinez v. Ryan, 566 U.S. 1, 9 (2012).

85

566 U.S. 1 (2012).

86

Id. at 9; see also Workman v. Superintendent Albion, SCI, 915 F.3d 928, 937 (3d Cir. 2019).

87

Martinez, 566 U.S. at 17.

88

Id. at 14 (citation omitted).

89

Preston v. Superintendent Graterford SCI, 902 F.3d 365, 376 (3d Cir. 2018); see also Latham
v. Mason, No. 19-5131, 2020 WL 5653468, at *3 (E.D. Pa. Sept. 23, 2020).
90

Strickland v. Washington, 466 U.S. 668 (1984).

91

Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (citing Strickland, 466 U.S. at 688).

92

Id. (citing Strickland, 466 U.S. at 687).

93

Id. (citing Strickland, 466 U.S. at 689).

94

Id. (citing Strickland, 466 U.S. at 687).

95

Id. (citing Strickland, 466 U.S. at 694).

96

ECF Doc. No. 2 at 5.

97

Id.
42

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 43 of 51

98

N.T. Jan. 23, 2013 Trial at 168.

99

ECF Doc. No. 2 at 5.

100

Id.

101

Id.

102

Id.

103

Id. at 6.

104

ECF Doc. No. 11 at 13.

105

McLaughlin, 270 F. Supp. 2d at 500 (citing Lines, 208 F.3d at 160).

106

See Evans, 959 F.2d at 1231.

107

ECF Doc. No. 2 at 5.

108

Id. at 6.

109

Pro se PCRA Pet. at 2, Commonwealth v. Wanamaker, Doc. No. CP 51-CR-0010007-2011
(Phila. Cnty. Ct. Com. Pl. Dec. 14, 2018).
110

Am. PCRA Pet., Wanamaker, Doc. No. CP 51-CR-0010007-2011.

111

Rush, 2018 WL 3640599, at *36.

112

No. 06-2918, 2018 WL 1740528 (E.D. Pa. Apr. 10, 2018).

113

Smith v. DiGuglielmo, No. 06-2918, 2018 WL 1740528, at *9 (E.D. Pa. Apr. 10, 2018).

114

Id. at *2-*3.

115

Id. at *2, *9.

116

Id. at *3.

117

Id. at *3.

118

Smith, 2018 WL 1740528, at *4.

119

Id. at *9.

120

No. 13-3094, 2014 WL 5317766 (E.D. Pa. Oct. 17, 2014).
43

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 44 of 51

121

Blount v. Coleman, No. 13-3094, 2014 WL 5317766, at *7 (E.D. Pa. Oct. 17, 2014).

122

Id.

123

Id.

124

Id.

125

Id.

126

Blount, 2014 WL 5317766, at *6.

127

Id. at *7.

128

348 F. Supp. 3d 417 (E.D. Pa. 2018).

129

Johnston v. Mahally, 348 F. Supp. 3d 417, 438 (E.D. Pa. 2018).

130

Id. at 436.

131

Id. at 437.

132

Id.

133

Id.

134

Johnston, 348 F. Supp. 3d at 437.

135

Id. at 438.

136

Am. PCRA Pet. at ¶ 6, Wanamaker, Doc. No. CP 51-CR-0010007-2011.

137

42 Pa. Cons. Stat. § 9544(b) (2021) (“[A]n issue is waived if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state
postconviction proceeding.”).
138

Id. § 9545(b). To comply with the statute of limitations, a petitioner must file a PCRA petition
within one year of when the judgment becomes final. Id. § 9545(b)(1). There are three exceptions
to this rule, but Mr. Wanamaker does not meet any exception. See id. §§ 9545(b)(1)(i)-(iii).
139

McCabe, 419 F. Supp. 2d at 697 (quoting Coleman, 501 U.S. at 750).

140

ECF Doc. No. 2 at 5.

141

Id. at 6.
44

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 45 of 51

142

Jackson v. Diguglielmo, No. 03-5398, 2004 WL 2064895, at *5 (E.D. Pa. Sept. 14, 2004).

143

Latham, 2020 WL 5653468, at *3 (citing Preston, 902 F.3d at 376).

144

466 U.S. 668 (1984).

145

Buehl, 166 F.3d at 169 (citing Strickland, 466 U.S. at 687-88).

146

ECF Doc. No. 2 at 5.

147

N.T. Jan. 23, 2013 Trial at 168.

148

No. 11-1999, 2013 WL 2896819, at *31 (M.D. Pa. June 12, 2013).

149

Dierolf v. Thompson, No. 11-1999, 2013 WL 2896819, at *31 (M.D. Pa. June 12, 2013).

150

Id. at *28-*30.

151

Id. at *29.

152

Id. at *30.

153

ECF Doc. No. 2 at 6.

154

Id.

155

N.T. Jan. 23, 2013 Trial at 168.

156

ECF Doc. No. 2 at 6.

157

See Commonwealth v. Wanamaker, No. 664 EDA 2013, 2013 WL 11249181, at *1 (Pa. Super.
Ct. Nov. 26, 2013).
158

ECF Doc. No. 2 at 7-8.

159

ECF Doc. No. 11 at 17.

160

Id.

161

See Evans, 959 F.2d at 1231.

162

Wanamaker, 2013 WL 11249181, at *1.

163

Commonwealth v. Wanamaker, No. 819 EDA 2016, 2017 WL 498504, at *2 (Pa. Super. Ct.
Feb. 7, 2017).
45

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 46 of 51

164

Pro se PCRA Pet. at 8, Commonwealth v. Wanamaker, Doc. No. CP 51-CR-0010007-2011
(Phila. Cnty. Ct. Com. Pl. Dec. 14, 2018).
165

Am. PCRA Pet. at ¶ 6, Wanamaker, Doc. No. CP 51-CR-0010007-2011.

166

Commonwealth v. Wanamaker, No. 3145 EDA 2018, 2019 WL 5168639, at *1 (Pa. Super. Ct.
Oct. 15, 2019).
167

McCabe, 419 F. Supp. 2d at 696 (quoting Coleman, 501 U.S. at 750).

168

ECF Doc. No. 2 at 7.

169

ECF Doc. No. 2 at 8.

170

Latham, 2020 WL 5653468, at *3 (quoting Preston, 902 F.3d at 376).

171

ECF Doc. No. 2 at 6.

172

Id.

173

N.T. Jan. 23, 2013 Trial at 169.

174

Id.

175

Id. at 168.

176

536 F. App’x 260 (3d Cir. 2013).

177

United States v. Mercado, 536 F. App’x 260, 264 (3d Cir. 2013).

178

Id. at 262.

179

Id.

180

Id.

181

Id.

182

Mercado, 536 F. App’x at 264.

183

Id. at 263.

184

Id. at 264.

185

Id.
46

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 47 of 51

186

Id.

187

Mercado, 536 F. App’x at 264.

188

ECF Doc. No. 2 at 9.

189

Id.

190

Id. at 10.

191

Id.

192

Id.

193

ECF Doc. No. 2 at 11.

194

ECF Doc. No. 11 at 25.

195

Id. at 26.

196

See Evans, 959 F.2d at 1231.

197

Commonwealth v. Wanamaker, No. 664 EDA 2013, 2013 WL 11249181, *1 (Pa. Super. Ct.
Nov. 26, 2013).

198

Commonwealth v. Wanamaker, No. 819 EDA 2016, 2017 WL 498504, at *2 (Pa. Super. Ct.
Feb. 7, 2017).
199

Pro se PCRA Pet. at 17, Commonwealth v. Wanamaker, Doc. No. CP 51-CR-0010007-2011
(Phila. Cnty. Ct. Com. Pl. Dec. 14, 2018).
200

See Am. PCRA Pet., Wanamaker, Doc. No. CP 51-CR-0010007-2011.

201

Commonwealth v. Wanamaker, No. 3145 EDA 2018, 2019 WL 5168639, at *2 (Pa. Super. Ct.
Oct. 15, 2019).
202

ECF Doc. No. 2 at 10.

203

Id. at 12.

204

Buehl, 166 F.3d at 169 (citing Strickland, 466 U.S. at 687-88).

205

Id. (citing Strickland, 466 U.S. at 694).

206

ECF Doc. No. 2 at 9.
47

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 48 of 51

207

Id.

208

Haith v. United States, 342 F.2d 158, 159 (3d Cir. 1965).

209

342 F.2d 158 (3d Cir. 1965).

210

Id. at 159.

211

Id.

212

ECF Doc. No. 2 at 5.

213

Id.

214

Id.

215

N.T. Jan. 23, 2013 Trial at 168.

216

Id.

217

ECF Doc. No. 2 at 5.

218

Id.

219

Id. at 5-6.

220

Id. at 6.

221

ECF Doc. No. 11 at 13.

222

Id.

223

Id. at 13-14.

224

443 U.S. 307 (1979) (“[T]he critical inquiry on review of the sufficiency of the evidence to
support a criminal conviction must not be simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could reasonably support a finding of
guilt beyond a reasonable doubt.”).
225

ECF Doc. No. 11 at 14-16.

226

See Evans, 959 F.2d at 1231.

227

Commonwealth v. Wanamaker, 91 A.3d 1295, 2013 WL 11249181, *1 (Pa. Super. 2013).

228

Id.
48

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 49 of 51

229

No. 01-4017, 2014 WL 1199345, at *1 (E.D. Pa. Mar. 24, 2014).

230

Pirela v. Vaughn, No. 01-4017, 2014 WL 1199345, at *15 (E.D. Pa. Mar. 24, 2014).

231

Id. at *17.

232

Id.

233

Id.

234

Id.

235

Pirela, 2014 WL 1199345, at *15.

236

Id.

237

881 F.2d 44 (3d Cir. 1989).

238

Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989).

239

Id. at 48.

240

Id. at 50.

241

Id.

242

Id.

243

ECF Doc. No. 2 at 5.

244

Commonwealth v. Wanamaker, No. 664 EDA 2013, 2013 WL 11249181, *1 (Pa. Super. Ct.
Nov. 26, 2013).

245

ECF Doc. No. 2 at 6.

246

Pro se PCRA Petition at 2, Commonwealth v. Wanamaker, Doc. No. CP 51-CR-0010007-2011
(Phila. Cnty. Ct. Com. Pl. Dec. 14, 2018).

247

ECF Doc. No. 2 at 6.

248

McCabe, 419 F. Supp. 2d at 696 (quoting Coleman, 501 U.S. at 750).

249

ECF Doc. No. 2. at 5.

250

Id.
49

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 50 of 51

251

Kirnon, 620 F. Supp. 2d at 684 (citing Murray, 477 U.S. at 479).

252

See Edwards, 529 U.S. at 453.

253

ECF Doc. No. 2 at 6.

254

See Coleman, 501 U.S. at 725; see also Kirnon, 620 F. Supp. 2d at 684 (citing Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987)).
255

See Martinez, 566 U.S. at 17. Martinez is limited to “substantial claims of ineffective assistance
at trial.” Id.; see also White v. Vaughn, No. 94-6598, 2018 WL 780595, at *4 (E.D. Pa. Feb. 7,
2018) (“Martinez . . . only address[es] the grounds to establish cause in connection with claims
concerning trial counsel ineffectiveness.”).
256

ECF Doc. No. 2 at 8.

257

Id.

258

Id.

259

Id. at 8-9.

260

Id. at 9.

261

ECF Doc. No. 11 at 20-21.

262

Id. at 21.

263

Id.

264

ECF Doc. No. 2 at 8-9.

265

Pro se PCRA Pet. at 10, Commonwealth v. Wanamaker, Doc. No. CP 51-CR-0010007-2011
(Phila. Cnty. Ct. Com. Pl. Dec. 14, 2018).
266

See Am. PCRA Pet., Wanamaker, Doc. No. CP 51-CR-0010007-2011.

267

ECF Doc. No. 2 at 8-9.

268

Id.

269

No. 13-2573, 2018 WL 509371, at *35 (M.D. Pa. Jan. 23, 2018).

270

Murrell v. Giroux, No. 13-2573, 2018 WL 509371, at *35 (M.D. Pa. Jan. 23, 2018).

271

Id. (citing Murray, 477 U.S. 488-489).
50

Case 2:20-cv-01332-MAK Document 18 Filed 02/16/21 Page 51 of 51

272

Id. at 36.

273

Welborne v. Tritt, No. 14-1457, 2014 WL 5438069, at *6 (E.D. Pa. Oct. 27, 2014).

274

No. 14-1457, 2014 WL 5438069, at *1 (E.D. Pa. Oct. 27, 2014).

275

Id. at *6.

276

Id.

277

Id.

278

Id.

279

Welborne, 2014 WL 5438069, at *7.

280

Id.

281

ECF Doc. No. 2 at 8.

282

Id. at 9.

283

McCabe, 419 F. Supp. 2d at 696 (quoting Coleman, 501 U.S. at 750).

284

Miller-El v. Cockrell, 537 U.S. 322, 335-37 (2003) (citing 28 U.S.C. § 2253).

285

28 U.S.C. § 2253 (2021).

286

Miller-El, 537 U.S. at 336.

287

Id. at 327 (citing 28 U.S.C. § 2253(c)(2)).

288

Id. at 323 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

289

Fed. R. App. P. 22(b)(1).

51