Abreu v. Kauffman et al
MEMORANDUM re REPORT AND RECOMMENDATIONS 17 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 6/1/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEVIN KAUFFMAN, et al.,
Civil No. 1:15-cv-1465
Magistrate Judge Mehalchick
Before the court is a report and recommendation filed by the magistrate
judge in which she recommends that Mario Abreu’s (“Abreu”) petition filed
pursuant to 28 U.S.C. § 2254 be dismissed. Abreu has filed 31 “objections” to the
report and recommendation, and Respondents have specifically responded to each
objection. Therefore, the motion is ripe for disposition. For the reasons that follow,
the report and recommendation will be adopted.
Abreu was convicted and found guilty in Northumberland County of five
(5) counts of possession with intent to deliver a controlled substance (“PWID”);
seven (7) counts of delivery of a controlled substance; six (6) counts of criminal
use of a communication facility; one (1) count of criminal conspiracy/PWID; one
(1) count of dealing in proceeds of unlawful activity; one (1) count of corrupt
organizations; and one (1) count of criminal conspiracy/corrupt organization.
He took a direct appeal to the Superior Court of Pennsylvania; initiated a
proceeding under the Pennsylvania Post Conviction Relief Act (“PCRA”); filed an
amended PCRA; and filed an appeal to the Superior Court from the adverse ruling
on the PCRA claims. Relief was denied.
On July 29, 2015, Abreu filed the instant petition (Doc. 1) in which he
alleges the following: 1) PCRA counsel was ineffective in failing to argue trial
counsel’s ineffectiveness in raising challenges on the unconstitutionality of his
sentence; 2) the unconstitutionality of evidence admitted at his trial; and 3) the
evidence supporting his conviction was insufficient to sustain the verdict beyond a
The magistrate judge, after an exhaustive analysis, found that the claims
under the instant writ were procedurally defaulted in his state proceeding.
However, recognizing that procedural default can be excused upon a showing that
an underlying claim may have some merit, Martinez v. Ryan, ___ U.S. ___, 132 S.
Ct. 1309, 1318 (2012), she did a merits analysis of Abreu’s claims.
A. Sentencing Issue
Abreu relies primarily on Alleyne v. United States, ___ U.S. ___, 133 S.
Ct. 2151 (2013), which held that sentences increasing the statutory floor based on
facts not found by a jury are unconstitutional – the very argument Abreu makes
about his sentence. However, the decision in Alleyne came six years after Abreu’s
sentencing and is not retroactive. United States v. Winkelman, 746 F.3d 134, 136
(3d Cir. 2014). The magistrate judge found that counsel’s decision not to pursue a
meritless claim does not amount to ineffectiveness. This court agrees.
B. Violation of Confrontation Clause
The magistrate judge read the trial transcripts and opined that trial
counsel’s allowing the use of grand jury testimony to be read rather than have live
witnesses testify was a tactical decision and served Abreu’s interest. (Doc. 17, p.
20 (citing Werts v. Vaughn, 228 F.3d 178, 190 (3d Cir. 2000).) The magistrate
judge noted that defense counsel pointed out gaps in the prosecution’s case that
would likely have been filled in by live witnesses who would have been subject to
direct and cross examination. This decision by counsel does not render counsel’s
C. Sufficiency of Evidence
Abreu alleges that he was actually innocent of the crime and that the
evidence against him lacked credibility. The magistrate judge noted that this issue
was not presented to the state court on either direct or collateral appeal.
The magistrate judge discussed the principles that, during appellate
review of a criminal conviction, the court does not weigh the evidence and
substitute its own judgment for that of the finder of fact and that circumstantial
evidence alone may support a finding of guilt beyond a reasonable doubt. (Id. at p.
22 (citations omitted).)
The magistrate judge noted that actual innocence may constitute a
miscarriage of justice that enables a federal court to hear the merits of an otherwise
procedurally defaulted habeas claim, but that claim must be based on reliable
evidence not presented at trial. Abreu has not presented any newly discovered
evidence or reliable evidence not presented at trial to establish actual innocence.
The claim is meritless.
D. Objections to the Report and Recommendation
Abreu’s objections include 31 numbered paragraphs which he argues are
“intended to correct the record, correct erroneous conclusions of fact, failures to
address relevant facts, and otherwise intended as specific objections to the
conclusions made in the R&R.” (Doc. 23, p. 1.) Respondents have responded to
these paragraphs seriatim. (Doc. 24.)
This court adopts the response in its entirety and incorporates same
The petition is procedurally defaulted and the claims are without merit.
The report and recommendation will be adopted.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: June 1, 2017
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