Hall v. Rozum et al

Filing 22

MEMORANDUM AND ORDER - AND NOW, this 16th day of August, 2012, upon consideration of petnr.'s mtn. for writ of H/C pur. to 28 USC 2254, & pur. to the accompanying memorandum, it is ordered that: 1. The petn. for writ of H/C pur. to 28 USC 2254 mtn. is denied. 1 2. A cert. of appealability is denied. 3. The Clerk of Crt. shall close this file. (See memo for complete details.)Signed by Honorable William W. Caldwell on 8/16/12. (am, )

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ERIC JEVON HALL,
Petitioner
vs.

GERALD L. ROZAM, et al.,
Respondents

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: CIVIL NO. 1:11-CV-0921
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MEMORANDUM
I.

Introduction
Petitioner Eric Jevon Hall, an inmate at the State Correction Institution at

Somerset, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner raises four grounds for relief: (1) ineffective assistance of counsel for failure to
preserve a weight of the evidence claim; (2) ineffective assistance of counsel for failure
to transcribe the preliminary hearing; (3) ineffective assistance of counsel for not
challenging the trial court’s bias; and (4) ineffective assistance of counsel for failing to
challenge the trial court’s abuse of discretion in not affording petitioner an opportunity to
speak at his sentencing. After a careful review of Petitioner’s claim, we will deny his
petition.

II.

Background
While Petitioner was an inmate at the State Correctional Institution at

Frackville (“SCI-Frackville”), he was charged with aggravated assault on a correctional
officer, simple assault, and harassment. A jury trial was held in September 2007 in
Schuylkill County. The evidence admitted at trial indicated that on October 18, 2006,
Nurse Tracy Frantz and Correctional Officer (“CO”) Daniel Hughes were assigned to
deliver medication to prisoners in the restricted housing unit of SCI-Frackville. Frantz
testified that she approached Petitioner’s cell to provide him with a medication cup
through a wicket in the cell door. Petitioner called out to Frantz through the wicket and
demanded that she come closer. Frantz stepped back and Petitioner stuck his hands
through the wicket. CO Hughes stepped between them and attempted to secure the
wicket. Frantz testified that she saw Petitioner’s hands extend through the wicket and
around the neck area of CO Hughes. CO Hughes testified that Petitioner struck him
below the jaw on his neck and continued swinging at him until the incident ended upon
the arrival of other officers.
The jury found Petitioner not guilty of aggravated assault and simple
assault, but the court found him guilty of harassment.1 Petitioner was sentenced to thirty
to ninety days imprisonment to be served consecutively to the sentence he is currently

Pursuant to 18 Pa.C.S. 2709(a)(1), “A person commits the crime of
harassment when, with intent to harass, annoy or alarm another, the person . . .
strikes, shoves, kicks or otherwise subjects the other person to physical contact, or
attempts or threatens to do the same.”
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serving. Petitioner filed a pro se appeal on September 28, 2007. New counsel was
appointed, and the appeal proceeded. The Superior Court found that there was
sufficient evidence to sustain Petitioner’s harassment conviction and affirmed the
sentence. On April 30, 2009, Petitioner filed a pro se Post-Conviction Relief Act
(“PCRA”) petition, alleging ineffective assistance of trial and appellate counsel for failing
to preserve a weight of the evidence claim. PCRA counsel was appointed but did not file
an amended petition. The petition was dismissed without a hearing, and Petitioner
appealed to the Superior Court. The Superior Court affirmed the dismissal.
III.

Discussion
A. Timeliness and Exhaustion
A habeas claim filed in federal court by a state prisoner must be timely, and

the prisoner must exhaust every avenue of state review. A state prisoner must file the
habeas petition within one year of the date of the state court’s final judgment. 28 U.S.C.
§ 2244(d)(1)(A). Section 2254(b) also requires that the prisoner exhaust state court
remedies by presenting each claim in at least one round of state appellate review. Carey
v. Saffold, 536 U.S. 214, 220 (2002) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999)). Upon review of the record, we find that Petitioner has filed within the time
required by 28 U.S.C. § 2244(d)(1)(A). However, Petitioner admits that he has not
exhausted grounds two, three, and four. (Doc. 1, at 12). He asserts that this failure to
exhaust should be excused, because his PCRA counsel refused to raise and brief these
issues on appeal. Petitioner alleges that he filed a pro se appellate brief with the

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Superior Court that included these claims, but only the counseled brief was considered
by the court. Because we find that Petitioner’s claims fail on the merits, we shall bypass
the exhaustion requirement. See Roman v. Diguglielmo, 675 F.3d 204, 209 (3d Cir.
2012) (finding “we may bypass the exhaustion issue altogether should we decide that the
petitioner's habeas claim fails on the merits.”); 28 U.S.C. § 2254(b)(2) (“An application for
a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”).
B. Standard of Review
28 U.S.C. § 2254(a) authorizes a federal court to consider a petition for a
writ of habeas corpus filed by a state prisoner in custody claiming that his detention
violates the Constitution, laws or treaties of the United States. A federal court may not
grant the petition unless it determines that the state court proceedings
(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).
A state court judgment is “contrary to” federal law when it is “diametrically
different, opposite in character or nature, or mutually opposed” to “clearly established”
decisions of the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 405,
120 S.Ct. 1495 (2000). This may occur if “the state court ignores or misapprehends
clear precedent or it ‘confronts a set of facts that are materially indistinguishable from a
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decision of [the Supreme] Court and nevertheless arrives at a result different from
[Supreme Court] precedent.’” Wilkerson v. Klem, 412 F.3d 449, 452 (3d Cir. 2005)
(quoting Williams, 529 U.S. at 406). Alternatively, a state court judgment is an
“unreasonable application” of federal law if it chose the correct rule of law based on the
facts, but applied the rule in an “objectively unreasonable way.” Id. “A court that
unreasonably extends an established rule to a new context where it should not apply or .
. . unreasonably fails to extend such a rule to a new context where it should apply” may
have unreasonably applied the correct rule of law. Id. (citing Williams).
The Third Circuit has set forth a two-step process for reviewing a § 2254
petition. First, we identify the applicable Supreme Court precedent. Outten v. Kearney,
464 F.3d 401, 413 (3d Cir. 2006). The petitioner must show that Supreme Court
precedent requires the opposite result, not merely that his interpretation is more plausible
than that of the state court. Id. Second, we objectively evaluate whether the state court
decision was an unreasonable application of Supreme Court precedent. Id. at 414 (citing
Werts v. Vaughn, 228 F.3d 178 (3d Cir. 2000)). We cannot grant relief simply because
“we disagree with the state court’s decision or because we would have reached a
different result.” Id. We may only grant relief if “the state court decision, evaluated
objectively and on the merits, resulted in an outcome that cannot reasonably be justified
under existing Supreme Court precedent.” Id. (quoting Hackett v. Price, 381 F.3d 281,
287 (3d Cir. 2004)). But, a state court decision is not contrary to clearly established law
because it failed to cite applicable Supreme Court precedent. Mitchell v. Esparza, 540

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U.S. 12, 16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). Instead, we focus on whether the
state court’s reasoning or the result contradicts applicable precedent. Id.
B. Ineffective Assistance of Counsel
To bring an ineffective assistance of counsel claim, a habeas petitioner
must show “(1) counsel’s representation fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel’s error, the
result would have been different.” Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
1. Weight of the Evidence
Petitioner’s first claim asserts that his trial counsel was ineffective for failing
to preserve a weight of the evidence challenge, and his appellate counsel was ineffective
for failing to raise the issue on direct appeal. This claim was adjudicated on the merits
by the Superior Court during its review of Petitioner’s PCRA petition, limiting habeas
relief to where the state adjudication of the claim was contrary to clearly established
federal law or was based on an unreasonable determination of the facts. Harrington v.
Gillis, 456 F.3d 188, 124 (3d Cir. 2006) (citing 28 U.S.C. § 2254(d); Williams v. Taylor,
529 U.S. 362, 412-23, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)).
The state appellate court found that the inconsistencies in testimony that
led to Petitioner’s weight of the evidence claim “individually and collectively, fail to rise to
a level which would render the verdict a matter of pure speculation or which would shock
our sense of justice.” (Doc. 1, at 42). Finding Petitioner’s weight of the evidence claim

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had no merit, the state appellate court held that counsel could not have been ineffective
for failing to raise the issue. The court also noted that Petitioner did not demonstrate he
suffered any prejudice as a result of the alleged ineffectiveness of counsel. We find that
the state court’s decision was not contrary to clearly established federal law, and
Petitioner’s first claim fails.
2. Failure to Obtain Transcript of Preliminary Hearing
Next, Petitioner argues that his trial counsel was ineffective for “not having
the preliminary hearing transcribed for impeachment purposes, and for not raising the
issue on appeal.” (Doc. 1, at 7). Trial counsel took notes and had an investigator take
notes at the preliminary hearing instead of requesting to have the court reporter present.
Petitioner asserts that this led to trial counsel’s failure to impeach CO Hughes’ trial
testimony, which was allegedly inconsistent with his testimony at the preliminary hearing.
We find that this does not meet either requirement to demonstrate
ineffective assistance of counsel. See Rainey v. Varner, 603 F.3d 189, 197 (3d Cir.
2010) (finding two requirements to state an ineffective assistance of counsel claim: “(1)
counsel’s representation fell below an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for counsel’s error, the result would have been
different”). Petitioner asserts that if the preliminary hearing had been transcribed and an
official transcript ordered, trial counsel would have been able to cross-examine CO
Hughes regarding the inconsistency. Trial counsel’s notes, attached to the habeas
petition, adequately represent the testimony at the preliminary trial. Petitioner has not

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provided sufficient evidence to show that the representation of his trial and appellate
counsel fell below an objective standard of reasonableness. Additionally, Petitioner has
not demonstrated that there was a reasonable probability that if his trial attorney had a
transcript of the preliminary hearing, the result of the trial would have been different.
3. Fair Trial in Front of an Unbiased Judge
Petitioner’s third claim for ineffective assistance of counsel alleges that his
appellate counsel did not “challenge the Court’s abuse of discretion for not affording
petitioner a fair trial in front of an unbiased judge.” (Doc. 1, at 9). He argues that the trial
judge was unable to view the videotape of the incident in question when it was played at
trial, and he did not consider it when finding Petitioner guilty of harassment. Petitioner
alleges this deprives him “of a fair trial in front of a neutral and unbiased trier of fact.” He
asserts that his appellate counsel was ineffective for failing to raise this claim on appeal.
We find that Petitioner has not presented any evidence to demonstrate that the trial
judge was biased, and his ineffective assistance of counsel claim must be denied.
4. Opportunity to Speak at Sentencing
Finally, Petitioner asserts that he should have been afforded an opportunity
to address the court prior to being sentenced, and that his appellate counsel was
ineffective for failing to bring this claim on appeal. In support of his assertion, Petitioner
relies on Pennsylvania Rule of Criminal Procedure 704(C)(1). As the Commonwealth’s
response points out, Petitioner was convicted of summary harassment and the rule does
not apply to summary cases. Rule 704(A)(3) provides that “[i]n a summary case appeal,

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sentence shall be imposed immediately following a determination of guilt at a trial de
novo in the court of common pleas.” Thus, Petitioner’s counsel was not ineffective for
failing to raise this issue on appeal.
IV.

Conclusion
We will issue an order denying the section 2254 petition. The order will

also deny a certificate of appealability, based on the analysis in this memorandum.
However, Petitioner is advised that he has the right for thirty (30) days to appeal our
order denying his 2254 petition, see 28 U.S.C. § 2253(a); FED. R. APP. P. 4(a)(1)(A), and
that our denial of a certificate of appealability does not prevent him from doing so, as
long as he also seeks a certificate of appealability from the court of appeals. See FED. R.
APP. P. 22; Local Rule of Appellate Procedure 22.1.

/s/William W. Caldwell
William W. Caldwell
United States District Judge

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UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ERIC JEVON HALL,
Petitioner
vs.

GERALD L. ROZAM, et al.,
Respondents

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: CIVIL NO. 1:11-CV-0921
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ORDER

AND NOW, this 16th day of August, 2012, upon consideration of
Petitioner's motion for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 1), and
pursuant to the accompanying Memorandum, it is ordered that:
1. The petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 motion is denied.
2. A certificate of appealability is denied.
3. The Clerk of Court shall close this file.

/s/William W. Caldwell
William W. Caldwell
United States District Judge

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