WEATHERS v. BICKELL et al

Filing 24

ORDER THAT THE CLERK OF COURT IS DIRECTED TO REMOVE THIS MATTER FROM SUSPENSE. PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATIONS ARE OVERRULED, ETC. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED WITHOUT AN EVIDENTIARY HEARING. NO CERTIFICATE OF APPEALABILITY SHALL ISSUE. THE CLERK OF COURT SHALL MARK THIS MATTER CLOSED FOR STATISTICAL PURPOSES.. SIGNED BY HONORABLE LEGROME D. DAVIS ON 4/30/14. 5/1/14 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED TO COUNSEL.(lvj, )

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

!DREES WEATHERS
v.

NO. 5:13-cv-01702

SUPERINTENDENT BICKELL, et al.

ORDER
AND NOW, this 30th day of April 2014, upon consideration of the Report and
Recommendation of United States Magistrate Judge Lynne A. Sitarski (ECF No. 19), Petitioner
Idrees Weathers's Objection thereto (ECF No. 21), and the arguments contained in Petitioner's
Motion for Summary Judgment (ECF No. 20) and "Supplemental Habeas Corpus Petition" (ECF
No. 23), and upon independent review of Petitioner's Petition for Writ of Habeas Corpus (ECF
No. 1), "Amendment to Add to Habeas Corpus Petition" (ECF No. 4), "Traverse to Respondent's
Answer" (ECF No. 13), and Motion for Leave to Amend (ECF No. 14), it is hereby ORDERED
as follows:
1. The Clerk of Court is directed to remove this matter from suspense.
2. Petitioner's objections to the Report and Recommendation ("R&R") are OVERRULED.
This Court must make "a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1 )(C). Petitioner makes the following objections to the R&R:
First, Petitioner complains that the Magistrate Judge improperly accepted the
Pennsylvania Superior Court's statement that the police found marijuana, Vicodin pills,
cash, a scale, and a knife inside a vehicle that Petitioner had recently occupied, when in
fact these items were found on the person of Petitioner's co-defendant, Antwan
Richardson. (See Pet'r's Objection to R&R 1-2, ECF No. 21.) Petitioner is mistaken,
however, because the Magistrate Judge specifically points out that the Superior Court's
finding is "erroneous[]" and "contrary to the testimony at trial." (R&R 16 n.4, ECF No.
19.) Therefore, Petitioner's belief that the Magistrate Judge "is acting as an advocate for
the state courts," see Pet' r's Objection to R&R 2, is unfounded. Further, Petitioner does
not explain how the Superior Court's factual recitation has any effect on the validity of
his conviction or sentence. This objection is accordingly overruled.

Petitioner next argues, in both his Objection to the R&R and his Motion for Summary
Judgment, 1 that his trial counsel, Jeffrey Conrad, lied to the PCRA Court about the advice
he gave to Petitioner before his trial ("Claim A"). (See Pet'r's Objection to R&R 2-4;
Pet'r's Mot. Summ. J. 2, ECF No. 20.) At the PCRA hearing, Mr. Conrad testified that he
advised Petitioner that he faced a maximum of 15 Yi to 31 years' imprisonment if he were
convicted at trial. (PCRA Hr'g Tr. 10:3-25, Gov't's Resp. Ex. I, ECF No. 11-2 at 116.)
According to Petitioner, Mr. Conrad's testimony lacks credibility because the sentencing
judge sentenced Petitioner to imprisonment of 8Y2 to 21 years and made no mention of a
15Vi-to-31-year maximum. (Pet'r's Objection to R&R 3; see Sentencing Tr. 13:23-14: 11,
Gov't's Resp. Ex. C, ECF No. 11-1at215-16.) This contention has no merit. First, as the
PCRA Court noted, Petitioner did face a maximum sentence of 15 Yi to 31 years, and so
his attempt to impugn Mr. Conrad's credibility on this point fails. (See PCRA Court Feb.
10, 2012 Op. 2, Gov't's Resp. Ex. J, ECF No. 11-2 at 130.) Second, Petitioner's alleged
discrepancy cannot change the fact that the PCRA Court found his testimony, which
claimed that Mr. Conrad promised only a 5-to-10-year maximum sentence, "simply not
credible." (See id. at 5, ECF No. 11-2 at 133.) And as the Magistrate Judge points out,
this Court cannot disturb a state court's factual finding unless there is "clear and
convincing evidence to the contrary." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003);
see R&R 8. Because Petitioner has failed to produce clear and convincing evidence that
the PCRA Court's credibility determination was incorrect, his objection is overruled.
Petitioner also objects to the Magistrate Judge's recommendation concerning his claim of
prosecutorial misconduct ("Claim B"). Petitioner believes that Mr. Conrad lied about
having received an allegedly damaging photograph of Petitioner in discovery, and even if
Mr. Conrad did receive the photograph, Petitioner claims not to have seen it himself
before his trial. (Pet'r's Objection to R&R 4.) These unsupported statements do not come
close to establishing that prosecutorial misconduct occurred. Moreover, Petitioner offers
no response to the Magistrate Judge's conclusion that Claim Bis procedurally defaulted.
This Court will therefore overrule his objection.
Petitioner's next objection maintains that the procedural default of his next two claims
("Claim C" and "Claim D") should be excused because both his trial and PCRA counsel
failed to raise them, despite Petitioner's instruction to do so. (See Pet'r's Objection to
R&R 4.) Ineffective assistance of counsel in a collateral proceeding may provide cause to
excuse the default of an ineffective-assistance-of-trial-counsel claim that could not have
been raised prior to the collateral proceeding. Martinez v. Ryan, 132 S. Ct. 1309, 1315
(2012). But establishing cause for a procedural default will not aid Petitioner unless he
can also demonstrate "actual prejudice as a result of the alleged violation of federal law."
Coleman v. Thompson, 501 U.S. 722, 750 (1991). As the Magistrate Judge points out,
Claim C, which alleges an abuse of discretion by the sentencing court, could have been
1

This Court denied Petitioner's Motion for Summary Judgment on February 27, 2014, but
indicated that Petitioner's arguments would be considered as further objections to the R&R. (See
Feb. 27, 2014 Order Denying Summ. J., ECF No. 22.)

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raised on direct appeal and thus falls outside Martinez's holding. (See R&R 14 n.3.)
Consequently, Petitioner cannot establish cause for the procedural default of Claim C.
See Martinez, 132 S. Ct. at 1315. He also cannot establish prejudice under Coleman, for
Claim C concerns only the sentencing court's application of the state sentencing
guidelines; nowhere does Petitioner allege that the court violated federal law. (See Pet.
for Writ of Habeas Corpus 12, ECF No. 1 at 9; Pet' r's Traverse 10-11, ECF No. 13.)
Claim D fares no better. In the first part of Claim D, Petitioner claims that Mr.
Richardson's Vicodin pills were in fact Xanax pills, and that Mr. Conrad was ineffective
for failing to investigate this issue. (See Pet'r's Traverse 11.) Petitioner cannot possibly
demonstrate actual prejudice on this point, for the evidence at trial conclusively
established that the pills contained Vicodin, not Xanax, and no investigation by Mr.
Conrad could have altered that fact. (See Trial Tr. 216: 17-219: 10, ECF No. 11-1 at 103104.) The second portion of Claim D alleges that Mr. Conrad had a conflict of interest
because he asked Petitioner for a bag that was evidence in the case. (See Pet'r's Traverse
12-13.) According to Petitioner, ifhe had "tried to use 'the prosecution doesn't have the
evidence,' [Mr. Conrad] would've probably gave [sic] up the evidence to the
prosecution." (Id. at 13.) This line of reasoning is wholly speculative and does not
support Petitioner's conclusion that a conflict of interest existed. Therefore, Petitioner's
objection concerning Claims C and Dis overruled.
Finally, Petitioner claims that the trial court subjected him to a more severe minimum
sentence because of the amount of heroin he possessed, even though "[t]he issue of the
weight of the heroin was not submitted to a jury for trial, or ever admitted to by the
petitioner." Pet'r's Suppl. Habeas Corpus Petition 1, ECF No. 23; see Alleyne v. United
States, 133 S. Ct. 2151, 2155 (2013). 2 But Petitioner is factually mistaken on this point,
for the jury made a specific finding that he possessed between 10 and 100 grams of
heroin. (See Trial Tr. 467:6-468:24, ECF No. 11-1 at 195.) As a result, Petitioner's
argument has no merit, and to the extent he proffers it as an objection to the R&R, his
objection is overruled.
3. For the foregoing reasons, the Report and Recommendation (ECF No. 19) is
APPROVED and ADOPTED.
4. Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1) is DISMISSED without an
evidentiary hearing.
5. No certificate of appealability shall issue.

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Petitioner's "Supplemental Habeas Corpus Petition" (ECF No. 23) repeats and expands upon an
Alleyne-based argument that Petitioner first raised in his Motion for Leave to Amend (ECF No.
14). Because the Magistrate Judge fully assessed the merits of this claim in the R&R, see R&R
18-19, this Court will not refer the "Supplemental Habeas Corpus Petition" to the Magistrate
Judge for an additional R&R, but will instead construe it as an objection to the existing R&R's
analysis of Petitioner's Alleyne claim.

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6. The Clerk of Court shall mark this matter CLOSED for statistical purposes.

BY THE COURT:

Isl Legrome D. Davis
Legrome D. Davis, J.

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