Wallace v. Superintendent of SCI Huntingdon et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable A. Richard Caputo on 1/8/18. (dw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JABBAR WALLACE,
Petitioner,
v.
SUPERINTENDENT OF SCI
HUNTINGDON,

CIVIL ACTION NO. 3:14-CV-01424
(JUDGE CAPUTO)
(MAGISTRATE JUDGE SCHWAB)

Respondent.
MEMORANDUM
Presently before this Court is Magistrate Judge Schwab’s Report and
Recommendation (“R&R”) (Doc. 21) to the Petition for Writ of Habeas Corpus filed by
Petitioner Jabbar Wallace (“Wallace”). Because Wallace’s claims do not satisfy the
standard for relief under 28 U.S.C. §2254(d), his Petition for a Writ of Habeas Corpus will
be denied. Further, a certificate of appealability will not issue because reasonable jurists
could not disagree about the validity of Wallace’s claims.
I. Background
On March 25, 2009 Jabbar Wallace was convicted of third-degree murder in the
Court of Common Pleas of Luzerne County. The facts underlying his conviction were
concisely set forth by the Superior Court of Pennsylvania:
At some point late on December 14, 2007, Eric Cusaac and a female
were talking and drinking together in a certain bar. [Wallace] approached the
female and began speaking to her about a car accident in which she had hit
his vehicle. Cusaac and [Wallace] exchanged some not entirely friendly words,
although it does not appear the two had any type of significant argument or
altercation.
Later that night, [Wallace] was present at another establishment, the

Glass Bar. [Wallace] entered the men’s room of the bar along with his friend
Cameron Little. Several other men, including Cusaac, also came to be in the
bathroom. Cusaac, who had stood atop a toilet, stepped down and
approached [Wallace]. [Wallace] then shot Cusaac in the abdominal area and
in the head. Cusaac died from his wounds. [Wallace] was later charged with
homicide.
Commonwealth v. Wallace, 1117 MDA 2009, slip op. at 1-2 (Pa. Super Ct. Oct. 21,
2010) (submitted as Doc. 20, at 169). Notably, jurors rejected Wallace’s position that
he acted in self-defense. Wallace was sentenced to sixteen to thirty-two years
imprisonment.
Wallace appealed both his sentence and conviction after the trial court denied
his motion for a new trial and his motion to modify his sentence. On appeal Wallace
argued that the jury verdict was against the weight of the evidence presented at trial
and that the court abused its discretion in denying his request for a mistrial after the
district attorney elicited testimony that implicated his post-arrest silence. The Superior
Court affirmed Wallace’s conviction and sentence, Commonwealth v. Wallace, 1117
MDA 2009, slip op. (Pa. Super. Ct. Oct. 21, 2009), the Supreme Court of
Pennsylvania denied Wallace’s petition for allowance of appeal, Commonwealth v.
Wallace, 17 A.3d 1254 (Pa. 2011) (Table), and the United States Supreme Court
denied Wallace’s Petition for Writ of Certiorari. Wallace v. Pennsylvania, 565 U.S.
845 (2011).
Having failed in his efforts on direct appeal, Wallace turned to the collateral
proceedings available to him pursuant to the Post-Conviction Relief Act (“PCRA”). On
August 5, 2011 Wallace filed a PCRA petition raising three claims: (1) trial counsel
was ineffective when he failed to object as the Commonwealth elicited testimony from

2

a forensic pathologist about the findings of a toxicologist when the toxicologist was
not available for cross-examination; (2) trial counsel was ineffective by failing to call
character witnesses; and (3) the state court erred by failing to apply Pennsylvania’s
“Stand Your Ground” Amendment retroactively during his direct appeal. See
Commonwealth v. Wallace, No. 241 MDA 2013, 2014 WL 10988483, at *1 (Pa.
Super. Ct. Jan. 29, 2014); (Doc. 13, at 60, 63, 67.)
A hearing regarding Wallace’s PCRA claims was held on June 26, 2012. (Doc.
13, at 75.) There, Wallace represented himself. Notably, while the PCRA court was
prepared to provide Wallace counsel, he refused and proceeded to represent himself
pro se. (Doc. 13, at 76-77). He called no witnesses in support of his claim, and
instead relied solely on his own testimony. (Doc. 13, at 82). The Commonwealth
elicited testimony from Wallace’s trail counsel, Mr. William Ruzzo (“Ruzzo”). Ruzzo
confirmed that he did not call any character witnesses at Wallace’s trial, and noted
that he did not recall ever receiving a list of such witnesses from Wallace. (Doc. 13,
at 80). Additionally, Ruzzo explained that one reason he may not have called a
character witness was because he feared that presenting such a witness would allow
the prosecutor to elicit testimony about Wallace’s prior resisting-arrest conviction. (Id.)
Absent a witness testifying about Wallace’s good character, Ruzzo believed the prior
conviction would not be admitted. (Id.) Moreover, Ruzzo explained that he would
never have called Wallace’s mother as a witness because she was involved with
destroying or hiding evidence after the murder. (Id.) While Wallace did cross-examine
Ruzzo during this hearing, no testimony was elicited regarding Wallace’s other
claims.1 (Doc. 13, at 81).

1

At the PCRA Judge’s urging, Wallace repeated his claim that Ruzzo was
ineffective due to a failure to object to testimony which implicated the
3

The PCRA court denied Wallace’s petition and Wallace subsequently
appealed. However, the Superior Court, yet again, affirmed Wallace’s conviction and
sentence. Wallace, 2014 WL 10988483, at *1.
On July 24, 2014, Wallace filed the instant federal habeas petition pursuant to
28 U.S.C. § 2254(d). (Doc. 1.) Wallace raises five claims in his Petition: (1) trial
counsel was ineffective when he failed to object when the Commonwealth elicited
testimony from a forensic pathologist about the findings of a toxocologist in violation
of the Sixth Amendment’s Confrontation Clause; (2) trial counsel was ineffective by
failing to call character witnesses; (3) the state courts erred in failing to retroactively
apply Pennsylvania’s “Stand Your Ground” Amendment to Wallace’s conduct; (4) the
trial court erred by not declaring a mistrial after the prosecutor referenced Wallace’s
post-arrest silence; and (5) the jury verdict was against the weight of the evidence.
(Doc. 1).
Magistrate Judge Schwab conducted an initial review of Wallace’s Petition and
authored an R&R dated May 20, 2016 in which Magistrate Judge Schwab
recommends this Court deny Wallace’s Petition for Writ of Habeas Corpus. Wallace
timely2 filed objections in response the Magistrate Judge Schwab’s R&R.
II. Legal Standard
A.

Report and Recommendation
Where objections to a magistrate judge's R&R are filed, the Court must conduct a

Sixth Amendment’s Confrontation Clause. But, again, no testimony or
evidence was offered to suggest he was prejudiced by Ruzzo’s failure to
object.
2

This Court granted Wallace leave to allow him the opportunity to file an
objection to the R&R nunc pro tunc. Thus, Wallace’s objections filed on
July 14, 2016 were timely.
4

de novo review of the contested portions. Sample v. Diecks, 885 F.2d 1099, 1106 n.3
(3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)). This only applies to the extent that a
party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.
1984). Conversely, for those sections of the R&R to which no objection is made, the
court should “satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation. See Univac Dental Co. V. Dentsply Int’l, Inc., 702 F. Supp.
2d 465, 469 (M.D. Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987)); see also FED. R. CIV. P. 72(b)(1) advisory committee’s notes.
In conducting a de novo review, a court may accept, reject, or modify, in whole or
in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. §
636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Althoug h the review
is de novo, the law permits the court to rely on the recommendations of the magistrate
judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667,
675–76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm’n, 849 F.
Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at
a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154
(1985); Goney, 749 F.2d at 7. At the least, the court should rev iew uncontested portions
for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77
(M.D. Pa. 1998).
B.

28 U.S.C. §2254
A habeas corpus petition pursuant to 28 U.S.C. §2254 is the proper m echanism

for a prisoner to challenge the “fact or duration” of her confinement. Preiser v.
Rodriguez, 411 U.S. 475, 498-99 (1973). “[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is restricted to

5

claims based "on the ground that [petitioner] is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-68;
see also Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997).
III. Discussion
A.

Ineffective Assistance of Counsel
The Sixth Amendment guarantees the right to the effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686 (1984). Due to the existence of such a right,
a criminal defendant will have his conviction overturned if: (1) “counsel’s performance was
deficient” and (2) “the deficient performance prejudiced the defense.” Id. at 687; see also
Wiggins v. Smith, 539 U.S. 510, 521 (2003). An attorney’s performance is deficient when
it falls “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. The
benchmark for this objective standard “must be whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Id. at 686 (citing McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970)). A court must indulge a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance;” that is, the petitioner must overcome the
presumption that, under the totality of the circumstances, the challenged action “might be
considered sound trial strategy.” Id. at 688-89, 690-92. To show prejudice, the defendant
must show that there was a reasonable probability that but for counsel’s hapless
performance, the outcome of the proceeding would have been different. Id. at 694. The
prejudice standard “is not a stringent one;” it is less demanding than the preponderance
standard. Baker v. Barbo, 177 F.3d 149 (3d Cir. 1999). Notably, it is the defendantpetitioner’s burden to establish both deficient performance and resulting prejudice. See
Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005).
The Third Circuit has repeatedly emphasized the need to address the question of

6

prejudice first, acting on the assumption that counsel’s conduct was deficient, prior to
considering whether counsel’s performance was deficient. See, e.g., McAleese v.
Mazurkiewicz, 1 F.3d 159, 170-71 (3d Cir. 1992); United States v. Fulford, 825 F.2d 3, 8 (3d
Cir. 1987); see also Strickland, 466 U.S. at 697 (“[A] court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.”).
The relevant “clearly established” federal precedent for an ineffectiveness claim is
Strickland. Thus, the question before this court is whether the decision of the state court
was “contrary to” the Strickland standard3, involved an “unreasonable application” of
Strickland, or “resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented.” 28 U.S.C. §2254(d).“Surmounting Strickland’s
high bar is never an easy task,” and “[e]stablishing that a state court’s application of
Strickland was unreasonable under §2254(d) is all the more difficult.” Padilla v. Kentucky,
559 U.S. 356, 371 (2010); Harrington v. Richter, 562 U.S. 86, 105 (2011). Here, Wallace
asserts that his trial counsel was ineffective because he (1) did not object to questioning
that may have implicated the Sixth Amendment’s Confrontation Clause, and (2) he did not
elicit character testimony from a number of Wallace’s family members. Magistrate Judge
Schwab recommends denying Wallace’s Petition on both grounds as counsel’s alleged
failings were either the result of trial strategy or did not prejudice Wallace.

3

Under Pennsylvania law, a three-prong test is applied to ineffective
assistance of counsel claims. This test is substantively identical to the
Strickland test. See, e.g., Commonwealth v. Pierce, 527 A.2d 973, 975-77
(Pa. 1987). The Third Circuit has held that Pennsylvania's test for
assessing ineffective assistance of counsel claims is not contrary to
Strickland. See Jacobs, 395 F.3d at 107 n.9; Werts v. Vaughn, 228 F.3d
178, 204 (3d Cir. 2000).
7

(1)

Failure to Object: Confrontation Clause

First, Wallace claims that his trial counsel, Ruzzo, was ineffective because he failed
to object to testimony elicited by the Commonwealth regarding a toxicology report when the
toxicologist was not available for cross-examination. Wallace believes this testimony
violated the Sixth Amendment’s Confrontation Clause. Magistrate Judge Schwab disagreed.
Specifically, Magistrate Judge Schwab explained that Wallace had failed to show that
prejudice resulted from Ruzzo’s failure to object. Because Wallace did fail to demonstrate
that he was prejudiced due to Ruzzo’s failure to object as required by Strickland, his Petition
will be denied on this ground.
The Confrontation Clause of the Sixth Amendment generally operates to exclude
“testimonial statements of a witness who did not appear at trial unless he was unavailable
to testify and the defendant had had a opportunity for cross-examination.” Crawford v.
Washington, 541 U.S. 36, 36 (2004). Testimonial statements are those used “to establish
or prove past events potentially relevant to [a] later criminal prosecution.” Davis v.
Washington, 547 U.S. 813, 822 (2006). For example, in Crawford v. Washington the trial
court allowed a statement procured by police from defendant’s wife to be read to the jury
even though defendant’s wife did not testify. 541 U.S. at 36. Since the defendant could not
cross-examine the author of the letter–his wife–and the statements made in the letter
constituted testimonial statements, inclusion of the letter in the record before the jury
violated the Confrontation Clause. Id. Of particular relevance here, courts construe forensic
reports as testimonial statements subject to scrutiny under the Confrontation Clause. See,
e.g., Melendez -Davis v. Massachusetts, 557 U.S. 305, 307-311 (2009); Bullcoming v. New
Mexico, 564 U.S. 647, 652 (2011); United States v. Hadaway, 466 Fed. App’x 154, 158 (3d
Cir. 2012). In fact, the Supreme Court recently held that an accused has that “right to be
confronted with the analyst who [certified a forensic report], unless that analyst is

8

unavailable at trial and the accused had the opportunity, pretrial, to cross-examine that
particular scientist.” Bullcoming, 564 U.S. at 652.
Here, the Commonwealth elicited testimony from Doctor Mary Frances Pascucci,
who performed the autopsy on the victim, Mr. Cusaac. Dr. Pascucci was a qualified expert
in pathology and she opined that the cause of Mr. Cusaac’s death was “multiple gunshot
injuries” which was consistent with a finding that the “manner of death was homicide.”
Wallace, 241 2014 WL 10988483, at *5. Dr. Pascucci also testified that she had sent
samples of Mr. Cusaac’s blood to a laboratory to be tested. The results of that testing
indicated that his blood contained nicotine and .284% alcohol. Id. On cross-examination,
Ruzzo had Dr. Pascucci clarify her opinion to include that the victim’s blood alcohol level
could have “possibly” led to aggressive behavior. Id.
At bottom, Wallace now claims that this discussion should not have occurred
because his counsel should have objected to Dr. Pascucci’s first mention of the lab results.
Wallace contends that this failure to object rendered his counsel’s performance deficient,
which resulted in prejudice.
This Court need not address whether Ruzzo’s performance was deficient4, because
even if it was, Wallace has offered nothing more than mere speculation that he suffered
prejudice. Specifically, Wallace asserts that if the toxicologist had testified he would have
been able to establish that the victim was the aggressor, was “out of his mind,” and was
“hell-bent on hurting or killing” him. (Doc. 1, at 12-13). Not only is there no evidence
suggesting this would have been the case, but Ruzzo was able to elicit testimony from Dr.

4

Counsel’s performance is presumed reasonable, and Wallace has not
alleged anything to rebut that presumption. See Thomas v. Varner, 428
F.3d 491, 499-500 (3d Cir. 2005). Specifically, counsel has not alleged
any reason to believe that the non-objection was not part of a reasonable
trial strategy.
9

Pascucci that an individual with an elevated blood alcohol level was “possibly” more
aggressive than normal. Thus, it appears the information sought by Wallace from the
toxicologist–at least in part–was produced during the cross-examination of Dr. Pascucci.
Additionally, Wallace seems to argue that a violation of the Confrontation Clause results in
prejudice per se. This too is incorrect.5
This Court will find that Wallace has failed to establish that there was a “reasonable
probability” that the outcome would have been different but for the lack of objection by
Ruzzo. Accordingly, his Petition for a Writ of Habeas Corpus will be denied.
(2)

Failure to Elicit Character Testimony
Next, Wallace objects to Magistrate Judge Schwab’s recommendation that trial

counsel’s failure to call character witnesses does not render counsel’s performance
ineffective. Specifically, Wallace claims that counsel should have called his father, brother
and aunt to testify about his “non-aggressive and peaceful character.” (Doc. 25, at 4-5.)
However, the Superior Court was correct when it concluded that counsel’s decision not to
call a character witness did not render his performance ineffective. Thus, the Superior
Court’s decision was not “contrary to” the Strickland standard, did not involve an
“unreasonable application” of Strickland, and did not result “in a decision that was based

5

There are a limited number of circumstances under which a presumption
of prejudice may be applied, but none of these circumstances exist in the
record before this Court. See United States v. Cronic, 466 U.S. 648
(1984) (establishing a narrow exception to the Strickland standard
permitting a presumption of prejudice); Davenport v. Diguglielmo, 215 F.
App’x 175, 182 (3d Cir. 2007) (identifying three situations in which courts
should apply the prejudice presumption: (1) where there is a “complete
denial of counsel”; (2) where counsel “entirely fails to subject the
prosecution’s case to meaningful adversarial testing”; (3) where “counsel
could not render competent assistance.”) Put simply, no court has held
that failing to object, absent additional circumstances, amounts to per se
prejudice.
10

on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C.
§2254(d).
When “evaluating counsel’s performance [courts] are ‘highly deferential’ and ‘indulge
in a strong presumption’ that, under the circumstances, counsel’s challenged actions ‘might
be considered sound trial strategy.” Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999)
(citing Strickland, 466 U.S. at 689). And, a claim that counsel was ineffective due to a failure
to call a witness is “precisely the type of strategic decision which the court in Strickland held
to be protected from second-guessing.” Sanders v. Trickey, 875 F.3d 205, 212 (8th Cir.
1989); see also Henderson v. DiGuglielmo, 138 Fed. App’x 463, 469 (3d Cir. 2005); see
also Philson v. Barbo, 77 Fed. App’x 123, 127 (3d Cir. 2003); LaFrank v. Rowley, 340 F.3d
685 (8th Cir. 2003); Castillo v. Matesanz, 348 F.3d 1, 15 (1st Cir. 2003). In fact, courts have
specifically held that the failure to call a character witness on behalf of the defendant, even
if the defendant has requested such a witness, does not alone amount to ineffective
assistance. See United States v. DeJesus, 57 Fed. App’x 474, 478 (2d Cir. 2003); see also
Sanchez v. Tennis, No. 04-cv-4005, 2005 WL 645926, at *9 (E.D. Pa. Mar. 18, 2005)
(report and recommendation adopted).
Here, Wallace claims he instructed Ruzzo to call a number of character witnesses.
Ruzzo, however, did not call a single character witness. According to Ruzzo, no such
witness was called because doing so would have opened the door for the admission of
Wallace’s resisting arrest conviction. (Doc. 13, at 80.) This concern was reasonable. See
United States v. Logan, 717 F.2d 84, 88 (3d Cir. 1983) (“By introducing evidence of his
good character, the defendant throws open the entire subject of his character and,
consequently allows the prosecutor to penetrate a previously proscribed preserve, to
produce contrary evidence, to cross-examine the defendant’s character witnesses and to
probe the extent and source of their opinions.”). In other words, counsel made a strategy

11

decision: the rebuttal evidence to good character testimony would do more harm than good.
See Sanchez, 2005 WL 645926, at *9. Further, when faced with a similar dilemma during
his PCRA hearing, Wallace made the same decision: no character witnesses were called
on his behalf. (Doc. 13, at 82.)
Because the facts presented here offer no justification to overcome the strong
presumption that counsel’s decision was a part of a larger trial strategy, Wallace’s Petition
will be denied on this ground.
B.

Pennsylvania’s “Stand Your Ground” Amendment
Next, Magistrate Judge Schwab recommends that Wallace’s Petition be denied

because Pennsylvania’s “Stand Your Ground” Amendment was not codified until 2011 and
was never deemed to apply retroactively by the Pennsylvania Supreme Court or the
Pennsylvania legislature. Wallace objects to this recommendation because he believes the
failure of the state court to apply Pennsylvania’s Stand Your Ground Amendment offends
his federal due process rights. However, this Court will adopt Magistrate Judge Schwab’s
recommendation because Wallace’s position is at odds with the Supreme Court’s
longstanding position that “the federal constitution has no voice upon the subject” of
retroactivity. Great Northern R.R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364
(1932); see also Warren v. Kyler, 422 F.3d 132, 136 (3d Cir. 2005).
The Superior Court held that the “Stand Your Ground” Amendment was not to be
applied retroactively to Wallace’s conduct for two reasons. First, the Superior Court
explained that Pennsylvania “recognizes a presumption against retroactive application of
[a] statute and a law amending a statute.” Commonwealth v. Wallace, No. 241 MDA 2013,
2014 WL 10988483, at *3 (Pa. Super. Jan. 29, 2014) (citing Commonwealth v. Estman, 868
A.2d 1210, 1211-12 (Pa. Super 2005), aff’d, 915 A.2d 1191 (Pa. 2007)). Specifically, this
presumption stems from a state statute that notes: “no statute shall be construed to be

12

retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa. C.S.
§1926. Since the “Stand Your Ground” Amendment had not been explicitly rendered
retroactive by the General Assembly, the Superior Court held it was not to be applied
retroactively, and therefore did not apply to Wallace’s conduct. Second, the Superior Court
explained that legislation that defines substantive rights are not applied retroactively in
Pennsylvania. Wallace, 2014 WL 10988483, at *3-4 (citing Commonwealth v. Estman, 915
A.2d at 1194-96). The “Stand Your Ground” Amendment defined an individual’s right to use
force, and thus defined a substantive right as opposed to a procedural right. As such, the
Superior Court refused to apply the Amendment to Wallace’s Conduct.
The decision of the Superior Court will not be disturbed because the Third Circuit has
repeatedly held that a state is under no federal constitutional obligation to apply its own law
retroactively. See, e.g., Kyler, 422 F.3d at 141; Fiore v. White, 149 F.3d 221, 224-25 (1998);
see also Gladney v. Pollard, 799 F.3d 889, 897-98 (7th Cir. 2015) (“States are free to
choose whether a change in state law is retroactive without running afoul of the federal
Constitution.”). In Warren v. Kyler, a habeas-petitioner challenged the decision of the
Pennsylvania Superior Court not to retroactively apply a decision of the Pennsylvania
Supreme Court during his collateral proceedings. Kyler, 422 F.3d at 133. The Circuit
refused to undertake a review of petitioner’s retroactivity challenge because “nothing in the
federal Constitution compels a State to apply its criminal decisions retroactively.” Id. at 141.
Additionally, the Circuit believed it “lack[ed] the authority to review a state’s own application
of its retroactivity principles” due to the Supreme Court’s pronouncement that “[f]ederal
habeas corpus relief does not lie for errors of state law.” Id.; Estelle v. McGuire, 502 U.S.
62, 67 (1991); see also Houston v. Dutton, 50 F.3d 381, 385 (6th Cir. 1995) (“No federal
issues are implicated and no federal question is presented in determining whether a change
in state law is to be applied retroactively.”) Specifically, the Kyler Court explained that the

13

principle flowing from Estelle “requires [that federal courts] heed the state court’s application
of its own retroactivity principles.” Kyler, 422 F.3d at 137.
For these reasons, Magistrate Judge Schwab’s R&R will be adopted with respect to
this claim and Wallace’s Petition will be denied.
C.

Post-Arrest Silence
Finally, Wallace objects to Magistrate Judge Schwab’s recommendation that his

Petition be denied because the trial court did not err when it refused to declare a mistrial
after the prosecutor referenced, albeit tangentially, Wallace’s post-arrest silence. Wallace
contends that the prosecutor’s use of his post-arrest silence constituted a violation of the
Fourteenth Amendment’s Due Process Clause. The applicable federal precedent governing
the use of a defendant’s post-arrest silence is Doyle v. Ohio, 426 U.S. 610 (1976).
In Doyle, the Court made clear that the Fourteenth Amendment’s Due Process
Clause bars state prosecutors from using a defendant’s post-arrest, post-Miranda silence
to impeach a his testimony. Id. at 618-19. Further, the Court explained that because the
Miranda warnings carry an implicit assurance “that silence will carry no penalty . . . it would
be fundamentally unfair and a deprivation of due process to allow the arrested person’s
silence to be used to impeach an explanation subsequently offered at trial.” Id. In other
words, “it does not comport with due process to permit the prosecution during the trial to call
attention to [a defendant’s] silence at the time of arrest and to insist that because he did not
speak about the facts of the case at that time, as he was told he need not do, an
unfavorable inference might be drawn as to the truth of his trial testimony.” Id. at 619
(White, J., concurring).
The principle set in Doyle is not contravened when a defendant’s post-arrest silence
was not “submitted to the jury as evidence from which it was allowed to draw any
permissible inference.” Greer v. Miller, 483 U.S. 756, 765 (1987). In Greer v. Miller, a

14

defendant testified on direct examination that he was not involved in the crimes alleged. 483
U.S. at 758-60. On cross-examination, the prosecutor pointedly asked the defendant, “Why
didn’t you tell this story to anyone when you were arrested?” Id. at 759. Defendant’s counsel
objected, and the objection was sustained. Id. Further, the jury was instructed to ignore the
question. Id. No mistrial followed. The Supreme Court agreed that no mistrial was warranted
because while the question may have implicated defendant’s post-arrest silence, the jury
had specifically been instructed to ignore the question, and the defendant was never
required to answer the question.
Here, Wallace claims that Doyle was violated during the testimony of Corporal Gerald
Williams, a trooper with the Pennsylvania State Police. During Williams’ testimony, the
prosecutor asked: “On December 20, 2007, [the day Wallace was arrested] did you have
an opportunity to interview Jabbar Wallace?” Williams answered, “[Wallace] was present
at the station. I had the opportunity, but there was no interview conducted.” The prosecutor
began to ask a follow up question, “And can I ask why there was no–,” but was interrupted
by an objection from Ruzzo. Following the objection, the trial court held a lengthy discussion
at side bar where counsel made his concerns about a potential Doyle violation known and
moved for a mistrial. While the trial court denied Ruzzo’s motion for a mistrial, it did sustain
the original objection and prohibited the prosecutor from asking the follow up question.
Additionally, the jury was specifically instructed to disregard the question at issue. Because
the jury was specifically instructed to disregard the offending statement, there is no Doyle
violation here, and Wallace’s Petition may be denied on this ground.
Even if a Doyle violation had occurred, the fact that the jury heard half of a question
that may have implicated Wallace’s post-arrest silence does not rise above the level of
harmless error. See Brecht v. Abrahamson, 507 U.S. 619, 629 (1993) (explaining that a
Doyle violation is subject to harmless-error analysis) In order for a trial error to support the

15

grant of a Writ of Habeas Corpus, that error must have had “a substantial and injurious
effect or influence in determining the jury’s verdict.” Penry v. Johnson, 532 U.S. 782, 795
(2001) (quoting Brecht, 507 U.S. 619, 637 (1993)). In fact, to rise above harmless error,
“there must be more than a reasonable probability that the error was harmful.” Davis v.
Ayala, 135 S. Ct. 2187, 2197-98 (2015) (citing Brecht, 507 U.S. at 637). Wallace has
offered no evidence, or even a cogent allegation, that there was more than a reasonable
probability that the alleged Doyle violation was harmful.
For these reasons, Wallace’s objection is baseless and Magistrate Judge Schwab’s
R&R will be adopted on this ground.
D.

Claims Without Objection
Finally, Magistrate Judge Schwab noted that Wallace’s claim that his conviction was

against the weight of the evidence is not cognizable under Section 2254. Wallace has not
objected to this recommendation. Because Magistrate Judge Schwab’s recommendation
is absent plain error, it will be adopted. See Henderson, 812 F.2d at 878.
IV. Conclusion
For the above stated reasons, Magistrate Schwab’s Report and Recommendation
will be adopted and Wallace’s Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§2254(d) will be denied. Further, in proceedings brought pursuant to 28 U.S.C. § 2254, an
applicant cannot appeal to the circuit court unless a certificate of appealability has been
issued. See 3d Cir. L.A.R. 111.3(b) (2011). Under 28 U.S.C. § 2253(c)(2), a court may not
issue a certificate of appealability unless “the applicant has made a substantial showing of
the denial of a constitutional right.” Restated, a certificate of appealability should not be
issued unless "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).
As reasonable jurists would not disagree with the resolution of Wallace’s § 2254 petition,

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a certificate of appealability will not issue.
An appropriate order follows.

January 8, 2018
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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