James v. Beard et al
Filing
70
ORDER - IT IS HEREBY ORDERED that the 59 Report and Recommendation of MJ Mannion is ADOPTED. MJ Mannions July 3, 2012 order is AFFIRMED. Petnrs objs are overruled. Petnr's Petn for Writ of Habeas Corpus is DENIED. Petnr's 69 Motion for Certificate of Appealability is DENIED. This case is closed. Signed by Chief Judge Yvette Kane on Dec. 4, 2012. (sc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TYRONE P. JAMES,
Petitioner
v.
JEFFREY BEARD, et al.,
Respondents
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:
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Civil Action No. 1:10-cv-01699
(Chief Judge Kane)
(Magistrate Judge Mannion)
MEMORANDUM ORDER
Presently pending before the Court is Magistrate Judge Mannion’s Report and
Recommendation addressing Petitioner Tyrone P. James’s petition under 28 U.S.C. § 2254 for a
writ of habeas corpus (Doc. No. 59) as well as Petitioner’s objections (Doc. No. 68) and motion
for a certificate of appealability (Doc. No. 69). For the reasons that follow, the Court will adopt
the Report and Recommendation, overrule Petitioner’s objections, and deny Petitioner’s motion
for a certificate of appealability.
I.
BACKGROUND
On January 8, 2001, James H. Morgan, a narcotics agent employed by the Pennsylvania
Office of Attorney General’s Bureau of Narcotics Investigation and Drug Control, received
information provided by Randall Sipes, an agent of the California Department of Justice. (Doc.
No. 27-2 at 156-57, 159; Doc. No. 27-5 at 1083.) Specifically, Agent Morgan learned that a
package containing marijuana was en route from California to a mailbox located at a Mailboxes,
Etc. store in Springettsbury Township, Pennsylvania. (Doc. No. 27-2 at 156-57, 159; Doc. No.
27-5 at 1084.) Agent Morgan later discovered that Petitioner had rented the mailbox at issue,
Box 164. (Doc. No. 27-2 at 158; Doc. No. 27-5 at 1084.)
On January 9, 2001, Agent Morgan, working with members of the York County Drug
1
Task Force, created a fake package to be delivered to Box 164 in lieu of the package that had
been mailed from California. (Doc. No. 27-2 at 157-58; Doc. No. 27-5 at 1084.) On January 10,
2001, Agent Morgan arranged for the fake package to be delivered to Box 164, and Petitioner
retrieved the package on that date. (Doc. No. 27-2 at 159-60.) Upon leaving the Mailboxes, Etc.
premises, Petitioner was approached by one of Agent Morgan’s colleagues, prompting him to
attempt to flee the scene. (Id. at 160; Doc. No. 27-5 at 1084.) Petitioner, however, was quickly
apprehended and taken into custody. (Doc. No. 27-2 at 160; Doc. No. 27-5 at 1084.)
After being informed of his Miranda rights, Petitioner was questioned at the York County
Police Station. (Doc. No. 27-2 at 160; Doc. No. 27-5 at 1084.) Petitioner explained that he had
just flown to Pennsylvania from California, where he had retrieved his social security checks.
(Doc. No. 27-5 at 1084.) He also explained that he believed that the package he had retrieved
contained supplies for his wife’s beauty shop. (Id.; Doc. No. 27-2 at 160.) The next day,
Raymond Craul, a detective employed by the Springettsbury Township Police Department and a
member of the York County Drug Task Force, searched Petitioner’s wallet and found business
cards listing eight separate Mailbox, Etc. locations. (Doc. No. 27-2 at 188-89.)
On January 11, 2001, Agent Morgan received the package that had been intercepted in
California. (Id. at 161.) Brian Hall, a forensic chemist employed by the Drug Enforcement
Agency at its northeastern laboratory in New York City, testified that the package contained
marijuana. (Id. at 208-10.) Upon further investigation, law enforcement agents discovered that
packages delivered to other Mailbox, Etc. mailboxes rented by Petitioner contained cocaine and
marijuana. (Id. at 195-96, 205, 212; Doc. No. 27-5 at 1084.)
On November 15, 2001, following a jury trial in the Court of Common Pleas of York
2
County, Pennsylvania, Petitioner was found guilty of criminal attempt to possess with intent to
deliver marijuana, criminal attempt to possess with intent to deliver cocaine, and possession with
intent to deliver cocaine. (Doc. No. 27-2 at 257.) On January 7, 2002, the Court of Common
Pleas sentenced Petitioner to a minimum term of imprisonment of twelve-and-one-half years.
(Id. at 1195, 1234, 1277.) Since that date, Petitioner has sought various forms of relief from his
judgment of sentence in state court, all of which have been unsuccessful. This procedural
history is comprehensively set forth in Magistrate Judge Mannion’s Report and
Recommendation and need not be reproduced here. (Doc. No. 59 at 2-5.) Petitioner filed the
instant petition under 28 U.S.C. § 2254 for a writ of habeas corpus in this Court on August 13,
2010. (Doc. No. 1.)
II.
STANDARD OF REVIEW
A.
De Novo Review of Objections to Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(a) of the Federal Rules of Civil
Procedure, a magistrate judge has authority to file proposed findings and recommendations. In
response, a party may file written objections to the proposed findings and recommendations. 28
U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). In deciding whether to accept, reject, or modify
any part of the magistrate judge’s disposition, the Court must make a de novo determinations of
the portions to which objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
B.
Review Under 28 U.S.C. § 2254
The Court may “entertain an application for a writ of habeas corpus [on] behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
3
2254(a). Under Section 2254(d), a federal district court’s review is deferential. If a state court
has adjudicated the petitioner’s claims on the merits, the deferential standard set forth in Section
2254(d) applies. Section 2254(d) precludes habeas relief
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). Where the state court did not adjudicate the petitioner’s claims on
the merits, however, the federal district court should apply a de novo standard of review.
Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000). Factual determinations by a
state court, regardless of whether the petitioner’s claims were adjudicated on the merits, are
presumed to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010). The district court “shall not
hold an evidentiary hearing” on any claim unless the petitioner shows that: (1) the claim relies on
“a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable” or “a factual predicate that could not have been
previously discovered through the exercise of due diligence;” and (2) “the facts underlying the
claim would be sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found the [petitioner] guilty of the
underlying offense.” 28 U.S.C. § 2254(e)(2).
III.
DISCUSSION
4
Petitioner raises fifty-eight objections to Magistrate Judge Mannion’s proposed findings
and recommendations. (Doc. No. 68 ¶¶ 1-58.) These objections fall into five general categories,
each of which the Court will address in turn: (1) objections to Magistrate Judge Mannion’s
denial of Petitioner’s motions for discovery; (2) objections to the finding that Petitioner’s second
petition under the Post-Conviction Relief Act (“PCRA”) was untimely; (3) objections to the
finding that Petitioner’s conviction was supported by sufficient evidence; (4) objections to the
finding that Petitioner’s arrest was supported by probable cause and that his right to counsel was
not violated; and (5) multiple objections to Magistrate Judge Mannion’s findings that his counsel
did not render ineffective assistance of counsel.
A.
Denial of Motions for Discovery
In Petitioner’s second and third objections, Petitioner argues that Magistrate Judge
Mannion erred in denying his two motions for discovery and that Respondents failed to comply
with Magistrate Judge Mannion’s October 27, 2010 order.1 (Doc. No. 68 ¶¶ 2-3.) First, with
respect to Petitioner’s motions for discovery, Magistrate Judge Mannion denied both motions on
July 3, 2012, finding that Petitioner “has made no showing of specific evidence that might be
discovered that would support his entitlement to relief.” (Doc. No. 58 at 2.) Petitioner contends
that this ruling was in error because the Commonwealth failed to produce, during discovery, the
identity of an undercover agent who purportedly assisted law enforcement agents in California or
the “true identity” of “Norisa,” a witness who may have provided exculpatory information.
(Doc. No. 68 ¶ 2.) As Magistrate Judge Mannion concluded, a habeas petitioner “is not entitled
1
Although the Report and Recommendation states that Petitioner’s motions for discovery
“will also be addressed in this report and recommendation,” the Report and Recommendation
contains no further reference to either motion. (Doc. No. 59 at 1-2.)
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to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Indeed, Rule 6(a) of the Rules Governing Section 2254 cases provides: “A party shall be entitled
to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and
to the extent that, the judge in the exercise of his discretion and for good cause shown grants
leave to do so, but not otherwise.” 28 U.S.C. § 2254 R. 6(a). Good cause exists “where specific
allegations before the court show reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is . . . entitled to relief.” Bracy, 520 U.S. at 908-09.
In Petitioner’s view, the discovery he requests relates to his claims of ineffective
assistance of counsel and of a violation of his right to confront witnesses. (See Doc. No. 46.) As
will be discussed, Petitioner raised these issues in his state-court proceedings, and the Superior
Court of Pennsylvania found that: (1) he failed to establish that any uncalled witness was willing
to testify on his behalf; (2) he failed to indicate how the testimony of any uncalled witness would
have benefitted his defense; (3) he failed to attach a certification to his PCRA petition
identifying relevant information pertaining to any proposed witness; (4) his trial counsel credibly
testified that an investigation did not lead to anyone whom should have been called as a witness;
and (5) his PCRA counsel credibly testified no individuals who worked at the California
Mailbox, Etcs. store were able to be found. (Doc. No. 27-5 at 1027.) In light of these findings,
the Court finds that Magistrate Judge Mannion correctly determined that Petitioner failed to
demonstrate good cause. Thus, the Court will affirm the order denying Petitioner’s discovery
motions.
B.
Timeliness of Petitioner’s Second PCRA Petition
Seven of Petitioner’s objections relate to Magistrate Judge Mannion’s finding that
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Petitioner’s second PCRA petition was untimely, rendering the ninth ground for relief of
Petitioner’s habeas petition unavailable for federal habeas review. (Doc. No. 59 at 20; Doc. No.
68 ¶¶ 1, 51-56.) Magistrate Judge Mannion reasoned that the Superior Court of Pennsylvania’s
determination that the petition was untimely turned on state law and, thus, was not proper for
federal habeas review. (Doc. No. 59 at 20.) Upon review of the record, the Court finds that the
Superior Court fully reviewed this argument in a September 21, 2010 memorandum. (Doc. No.
27-5 at 1083-90.) Because state court rulings on questions of state law are binding in federal
habeas proceedings, a state court determination that a post-conviction petition is untimely, like
any other determination of state law, should not be subjected to second-guessing on federal
habeas review. Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004). State court findings of
fact relevant to procedural compliance are entitled to a “presumption of correctness” that a
petitioner must rebut through “clear and convincing evidence” to the contrary. Washington v.
Sobina, 509 F.3d 613, 621 (3d Cir. 2007). Petitioner’s objections do not rebut any of the
Superior Court’s relevant findings of fact. For example, Petitioner’s objections concerning the
Confrontation Clause, Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009) (Doc. No. 68 ¶ 51), were fully addressed in the Superior
Court’s order (Doc. No. 27-5 at 1089-90.) Accordingly, the Court will overrule Petitioner’s
objections relating to the finding that his PCRA petition was untimely.
C.
Sufficiency of the Evidence Supporting Petitioner’s Conviction
Seven of Petitioner’s objections relate to Magistrate Judge Mannion’s determination that
sufficient evidence supported Petitioner’s conviction. (Doc. No. 68 ¶¶ 4-10.) In his Report and
Recommendation, Magistrate Judge Mannion found that Petitioner is not entitled to federal
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habeas relief on the ground that his conviction was not supported by sufficient evidence because
the Superior Court fully analyzed the applicable evidence and determined that his conviction was
so supported. (Doc. No. 59 at 11-12.) In his objections, Petitioner contends that the
Commonwealth failed to prove at trial that Petitioner had knowledge of the contents of the
package he retrieved on January 9, 2001 or that he possessed the intent to commit the underlying
offenses. (Doc. No. 68 ¶¶ 6-9.) Further, he contends that the Superior Court applied a standard
of law in conflict with Jackson v. Virginia, 443 U.S. 307 (1979). (Id. ¶ 7.)
The United States Supreme Court set forth the federal constitutional standard for
evaluating a due process claim based upon a sufficiency-of-the-evidence claim in Jackson.
Under Jackson, the federal court is to determine whether, “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” 443 U.S. at 319 (emphasis in original). A
habeas petitioner is entitled to relief only “if it is found that upon the record evidence adduced at
trial no rational trier of fact could have found proof beyond a reasonable doubt.” Id. at 324.
Federal review of a sufficiency-of-the-evidence claim under Jackson must be based on state law,
that is, the substantive elements of the crime must be defined by applicable state law. Id. at 324
n.16. The credibility of witnesses, the resolution of conflicts of evidence, and the drawing of
reasonable inferences from proven facts all fall within the exclusive province of the fact-finder
and, therefore, are beyond the scope of federal habeas review. Id. at 319.
The Superior Court considered Petitioner’s claim that the Commonwealth failed to
present sufficient evidence at trial to support Petitioner’s convictions, applying a standard
virtually identical to that required by Jackson. (Doc. No. 27-4 at 797.) In affirming the
8
judgment of sentence, the Superior Court rejected the claim, stating:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime beyond a reasonable
doubt. In applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition, we note
that the facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubts
regarding a defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a matter of
law no probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the evidence.
(Id. at 790-91. (citing Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. Ct. 2005)).
The Superior Court noted that to establish the offense of possession with intent to
distribute, the Commonwealth must prove that the defendant possessed a controlled substance
with the intent to deliver it. (Id. at 791 (citing Commonwealth v. Kirkland, 831 A.2d 607, 611
(Pa. Super. Ct. 2003)). The court further noted that when contraband is not found on the
defendant’s person, the Commonwealth must establish constructive possession. (Id. at 791-92.)
Constructive possession is the ability to exercise conscious control or dominion over the illegal
substance and the intent to exercise the control, which intent can be inferred from the totality of
the circumstances. (Id. (citing Jones, 874 A.2d at 121).)
The Superior Court then addressed Petitioner’s argument that the Commonwealth failed
to present sufficient evidence to prove that he was guilty of criminal attempt to possess
marijuana with intent to deliver with respect to the package delivered to the mailbox he rented at
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the Springettsbury Township branch of Mailboxes Etc. (Id. at 792.) The court reviewed the
applicable evidence, finding the facts that Petitioner “had rented mailboxes in numerous
locations for no apparent legal reason” and “that the Springettsbury delivery was not an isolated
incident involving a single package but was one of several deliveries” to be persuasive. (Id.)
Further, the court noted that Petitioner’s “actions when approached by police were not those of a
man with no knowledge of the contents of the package he had just received.” (Id. at 792-93.)
Next, the Superior Court addressed Petitioner’s argument that the Commonwealth failed
to present sufficient evidence to prove that he was guilty of possession of cocaine with intent to
deliver and criminal attempt to possess with intent to deliver with respect to packages delivered
to other mailboxes he rented via Mailboxes Etc. (Id. at 793.) Petitioner asserted that “there was
no evidence presented that he had dominion or control over the substances since he was in jail
when they arrived.” (Id.) The court rejected this argument, finding the “fact that he was
apprehended with relation to the Springettsbury package before picking up the other packages
does not” demonstrate that he lacked dominion or control over the other packages. (Id.)
Upon review of the state court record, particularly the testimony of Agent Morgan and
Detective Craul, the Court finds that the state court applied a sufficiency-of-the-evidence
standard that satisfied Jackson. Applying this standard, and viewing the evidence in the light
most favorable to the Commonwealth, a reasonable jury could have found Petitioner guilty of the
crimes for which he was convicted beyond a reasonable doubt. Thus, the state court’s
conclusion was not an unreasonable application of clearly established federal law. Petitioner’s
objections to this conclusion will, accordingly, be overruled.
D.
Issues Relating to Petitioner’s Arrest and Right to Counsel
10
Twelve of Petitioner’s objections relate to Magistrate Judge Mannion’s rejection of
Petitioner’s claims that: (1) his conviction resulted from a detention that was not supported by
the requisite probable cause and the evidence used to convict him was obtained as the result of a
warrantless search; and (2) the police obtained the evidence to convict him by eliciting
incriminating statements in violation of his right to counsel. (Doc. No. 68 ¶¶ 12-23.) Magistrate
Judge Mannion found that these claims are identical to the suppression claims that Petitioner
raised, and had a full and fair opportunity to litigate, in state court. (Doc. No. 59 at 12-13.) The
crux of Petitioner’s objections to this finding is that the two suppression hearings held in state
court were so unfair and fundamentally defective that he was denied a full and fair hearing.
As recognized by Magistrate Judge Mannion, the Supreme Court has held that “where the
State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a
state prisoner may not be granted federal habeas corpus relief on the ground the evidence
obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell,
428 U.S. 465, 494 (1976) (footnotes omitted). “The rationale for the Court’s ruling was that, in
the context of a federal habeas corpus challenge to a state court conviction, ‘the contribution of
the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the
substantial societal costs of the application of the rule persist with special force.’” United States
v. Scarborough, 777 F.2d 175, 182 (4th Cir. 1985) (quoting Stone, 428 U.S. at 494-95). Thus, in
a habeas proceeding, when a federal district court is faced with Fourth Amendment claims, it
should inquire as to whether or not the petitioner was afforded a full and fair opportunity to
litigate his Fourth Amendment claim in the state court. See Deputy v. Taylor, 19 F.3d 1485,
1491 (3d Cir. 1994) (rejecting a Fourth Amendment claim because the petitioner had a full and
11
fair opportunity to litigate his claim in state court and noting that, under Stone, “[e]ven otherwise
potentially meritorious Fourth Amendment claims are barred on habeas when the petitioner had a
full and fair opportunity to litigate them.”).
A review of the state court record reveals that Petitioner had a full and fair opportunity to
litigate these claims in state court. The Court of Common Pleas of York County, Pennsylvania,
held a suppression hearing on August 22, 2001 and September 12, 2001. (Doc. No. 27-1 at 1121.) On September 12, 2001, the court issued an order denying Petitioner’s motion to suppress
the physical evidence seized by Pennsylvania law enforcement agents, finding that: (1) “there
was no violation of [Petitioner’s] Fourth Amendment right in the California search;” (2) law
enforcement agents in Pennsylvania had “probable cause to arrest [Petitioner] upon his picking
up the package;” and (3) “the search of his person instant to the arrest was . . . proper.” (Id. at
128.) The court also denied Petitioner’s motion to suppress any statements Petitioner made to
the police, finding that he was “properly afforded his Miranda warnings,” “that there was no
threatening or coercion,” and that he “made no request for an attorney.” (Id.) Petitioner also
raised these issues on direct appeal to the Pennsylvania Superior Court. (Id. at 794.) The
Superior Court determined that, based on the totality of the circumstances, Petitioner’s arrest was
supported by probable cause. (Id. at 795.)
Despite Petitioner’s objections to the contrary, the record of evidence demonstrates that
Magistrate Judge Mannion did not err in concluding that Petitioner received a full and fair
opportunity to litigate these claims in state court. Accordingly, the Court will overrule
Petitioner’s objections relating to this conclusion.
E.
Ineffective Assistance of Counsel
12
Petitioner’s remaining twenty-seven objections relate to Magistrate Judge Mannion’s
findings that Petitioner’s claims of ineffective assistance of counsel lack merit. (Doc. No. 68 ¶¶
24-50.) To establish a violation of the right to effective assistance of counsel, a petitioner must
meet a two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). See George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001). The first prong of the test
requires a petitioner to “show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
[Petitioner] by the Sixth Amendment.” Strickland, 466 U.S. at 687. Under the second prong, a
petitioner “must show that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive [Petitioner] of a fair trial, a trial
whose result is reliable.” Id. Petitioner has the burden of satisfying both prongs. Id. “A court
can choose to address the prejudice prong before the ineffectiveness prong and reject an
ineffectiveness claim solely on the ground that the defendant was not prejudiced.” Rolan v.
Vaughn, 445 F.3d 671, 678 (3d Cir. 2006).
Petitioner’s first concrete objection to Magistrate Judge Mannion’s findings is that
Magistrate Judge Mannion failed to acknowledge that the Superior Court applied a standard of
law that conflicts with federal law. (Doc. No. 68 ¶ 25.) Specifically, he argues that the Superior
Court’s reliance on Commonwealth v. Prince, 718 A.2d 1086 (Pa. Super. Ct. 1998), conflicts
with clearly established federal law on claims of ineffective assistance. (Id.) The Court
disagrees. The Superior Court recognized in its August 21, 2009 order that “[t]o prevail on an
ineffectiveness claim, the defendant must show that the underlying claim had arguable merit,
counsel had no reasonable basis for his or her action, and counsel’s action resulted in prejudice
13
to the defendant.” (Doc. No. 27-5 at 1025 (citing Prince, 719 A.2d at 1089).) In Prince, the
Superior Court articulated a substantially similar standard, citing the Pennsylvania Supreme
Court’s decision in Commonwealth v. Griffin, 644 A.2d 1167, 1172 (Pa. 1994). This standard
for ineffective assistance of counsel is identical to the federal standard under Strickland. See
Boyd v. Walmart, 579 F.3d 330, 334 n.2 (3d Cir. 2009) (“The Pennsylvania Supreme Court has
made clear that the standard for ineffective assistance of counsel under Pennsylvania law . . . is
the same as Strickland’s standard . . . .”). Accordingly, this objection is without merit.
Next, Petitioner raises objections relating to Magistrate Judge Mannion’s rejection of his
claim that his counsel was ineffective because he: (1) failed to conduct a reasonable pretrial
investigation; and (2) violated his right to confront and cross-examine Mike Baker and “Norisa,”
individuals who worked at the Mailbox, Etcs. store in California, where a package addressed to
Petitioner was intercepted. The Pennsylvania Superior Court addressed these issues and
determined that:
[Petitioner’s] counsel testified at the first PCRA hearing that he did
not remember his client ever asking him to interview someone named
Norisa (the clerk) or Michael Baker (the owner) from the California
store. In fact, counsel testified that he believed he called the
California Mailboxes, Etc. store at some point and had even
suggested that [Petitioner] hire an investigator if he wished to use any
witnesses from California. Counsel further testified that his own
personal investigation did not lead to anyone whom he felt should be
called as a witness. At the second PCRA hearing, [Petitioner’s]
present counsel testified that he was unable to locate anyone from the
California Mailboxes, Etc. Store because it had closed sometime in
the last seven years.
Moreover, [Petitioner] failed to establish that any employee from the
California store was available and willing to testify on his behalf at
trial, the substance of the employee’s proposed testimony, and how
such testimony would have helped his case. [Petitioner] also failed
to attach to his PCRA petition a certification identifying the proposed
14
witness’ names, addresses, dates of birth, and substance of their
testimony [as required by 42 Pa. C.S.A. § 9545(d)(1). These
deficiencies are fatal to his claim.
(Doc. No. 27-5 at 1027 (citations omitted).) In a separate order, the Superior Court addressed
Petitioner’s argument that counsel’s ineffectiveness violated his right to confront and crossexamine these witnesses, finding it to be untimely and not proper for collateral review. (Id. at
1089-90.) Upon review of the record, the Court finds that Magistrate Judge Mannion did not err
in finding that the Superior Court adequately reviewed these issues and properly determined that
Petitioner was not sufficiently prejudiced by counsel’s actions.
Regarding Petitioner’s objections to the recommendation that habeas relief not be granted
on the claim that counsel was ineffective because he failed to challenge law enforcement
officials’ entry into his privately owned mailbox, the Court also finds that the Superior Court
adequately addressed this issue. Petitioner contends that the Superior Court, and Magistrate
Judge Mannion, misstated that the fake package created by Agent Morgan and the York County
Drug Task Force was delivered to his mailbox by a UPS driver, pointing to the testimony of Ms.
McCoy, a Mailbox, Etcs. employee. (Doc. No. 68 ¶ 40.) Ms. McCoy, indeed, did testify at trial
that Agent Morgan delivered the package himself. Thus, Petitioner is correct that the Superior
Court failed to consider Ms. McCoy’s testimony when stating that “[t]he package arrived at [the]
store via UPS delivery.” (Doc. No. 27-5 at 1026.) The fact that one witness testified that Agent
Morgan delivered the package himself, however, does not result in a finding that Petitioner’s
Fourth Amendment rights were violated. Magistrate Judge Mannion found that the PCRA court
and the Superior Court correctly found that the placement of a piece of paper in a mailbox does
not implicate the Fourth Amendment. Petitioner’s objections do not convince the Court that this
15
finding was in error.
Finally, Petitioner contends that his counsel rendered ineffective assistance because he
failed to render proper advisement regarding the advantages of entering into a plea agreement as
opposed to proceeding to trial. Magistrate Judge Mannion found that this claim lacked merit
because record evidence reveals that counsel discussed Petitioner’s potential mandatory sentence
with him and no record evidence indicated that Petitioner was not aware of counsel’s trial
strategy. Upon a review of the record evidence and all of Petitioner’s related objections, the
Court concludes that Magistrate Judge Mannion’s findings are legally sound and that Petitioner
is not entitled to relief.
IV.
CERTIFICATE OF APPEALABILITY
Petitioner has also moved for a certificate of appealability (“COA”). (Doc. No. 69.)
When a state prisoner seeks a writ of habeas corpus, he does not enjoy the “absolute entitlement
to appeal a district court’s denial of his petition.” Miller-El v. Cockrell, 537 U.S. 322, 335
(2003). The prisoner must obtain a COA before he may appeal to the court of appeals. Id. As to
the issuance of the COA, Rule 22.2 of the Local Appellate Rules of the Third Circuit provides:
At the time a final order denying a petition under 28 U.S.C. § 2254
or § 2255 is issued, the district judge will make a determination as to
whether a certificate of appelability should issue. If the district judge
issues a certificate, the judge must state the specific issue or issues
that satisfy the criteria of 28 U.S.C. § 2253. If an order denying a
petition under § 2254 or § 2255 is accompanied by an opinion or a
magistrate judge’s report, it is sufficient if the order denying the
certificate references the opinion or report.
Third Circuit L.A.R. 22.2.
To be issued a COA, the petitioner must satisfy the requirements of Section 2253 by
making a “substantial showing of the denial of a constitutional right.” Miller-El, 537 U.S. at
16
336. It is not necessary for a petitioner to establish “that he will prevail.” Id. at 323. Instead,
when courts reject “constitutional claims on the merits, the showing required to satisfy § 2253(c)
is straightforward: the petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). However, if the claim is rejected on procedural grounds, the petitioner
must establish a substantial showing that a constitutional right has been denied as a prerequisite
to “consideration fo the procedural issues in an appeal under Section 2254.” Coady v. Vaughn,
251 F.3d 480, 488 (3d Cir. 2001).
For the reasons stated with respect to Petitioner’s objections to Magistrate Judge
Mannion’s Report and Recommendation, the Court finds that Petitioner has failed to make a
substantial showing of the denial of a constitutional right and that reasonable jurists would not
find the assessment of his claims debatable or wrong. Accordingly, a COA will not issue.
V.
CONCLUSION
AND NOW, on this 4th day of December 2012, IT IS HEREBY ORDERED THAT:
1.
Magistrate Judge Mannion’s Report and Recommendation (Doc. No. 59) is
ADOPTED;
2.
Magistrate Judge Mannion’s July 3, 2012 order (Doc. No. 58) is AFFIRMED;
3.
Petitioner’s objections (Doc. No. 68) are OVERRULED;
4.
Petitioner’s petition under 28 U.S.C. § 2254 for a writ of habeas corpus (Doc. No.
1) is DENIED;
5.
Petitioner’s motion for a certificate of appealability (Doc. No. 69) is DENIED,
and a certificate of appelability SHALL NOT ISSUE; and
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6.
The Clerk of Court is directed to close the case.
S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania
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