Pugh v. Overmyer et al
Filing
37
MEMORANDUM (Order to follow as separate docket entry) re 7 Petition for Writ of Habeas Corpus filed by Douglas B Pugh.Signed by Honorable William J. Nealon on 08/28/17. (pjr)
UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA
DOUGLAS B. PUGH,
Petitioner
v.
MICHAEL D. OVERMYER,
Respondent
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:
:
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CIVIL ACTION NO. 3:15-CV-0364
(Judge Nealon)
MEMORANDUM
Petitioner, Douglas B. Pugh, a state prisoner currently confined at the State
Correctional Institution-Forest, Marienville, Pennsylvania (“SCI-Forest”), initiated
the above-captioned action by filing a pro se Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254. (Doc. 1). On February 24, 2015, the Court issued an
Order granting Petitioner leave to withdraw his petition without prejudice to file
an amended petition raising all grounds for relief from his conviction. (Doc. 3).
On April 14, 2015, Petitioner filed an amended petition. (Doc. 7). On September
3, 2015, Respondent filed a response to the amended petition. (Doc. 31). On
September 15, 2015, Petitioner filed a traverse. (Doc. 32). For the reasons that
follow, the petition will be denied.
I.
FACTUAL BACKGROUND
Petitioner “was arrested during a police search of 23A North Fifth Street,
Stroudsburg, PA, on December 3, 2009.” Commonwealth v. Pugh, No. 3134 EDA
2013, at p. 1 (Pa. Super. Ct. Aug. 19, 2014). During the search Petitioner was
observed pushing “an air conditioning unit out of a [second] floor window.”
Pugh, No. 3134 EDA 2013, at p. 1 (alteration in original). He was also seen
“throwing ‘rocks’ of crack cocaine from” the same window. Id. “Police entered
the residence, and found [Petitioner] in a back bedroom with Ms. Aracelis
Gonzalez.” Id. “Crack cocaine, three [(3)] digital scales, approximately $1300 in
cash, and numerous plastic bags, some with corners cut off, were found in the
bedroom where” Petitioner was located by police. Id. at pp. 1-2.
After Petitioner was arrested, “[a] loaded .40 caliber handgun with the serial
numbers removed was found inside a drawer of a night stand next to the bed.” Id.
“At trial, a Mr. Jonathon Moss (Moss) testified that the handgun was his, but that
he had left the gun in another area of the apartment in October 2009.” Id. at p. 2.
“At that time, the magazine was not inserted in the gun and it was not loaded,” and
Moss had not returned since October 2009. Id.
On November 8, 2010, after a jury trial, Petitioner was convicted of
possession with intent to deliver (“PWID”) cocaine, criminal conspiracy,
possession of cocaine, possession of drug paraphernalia, possession of a firearm
with manufacturer’s number obliterated, and endangering the welfare of a child.
See Commonwealth v. Pugh, No. CP-45-CR-2090-2009; (Doc. 36-1). On January
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25, 2011, Petitioner was sentenced to an aggregate state prison sentence of not less
than seventy-two (72) months to no more than one hundred and forty-four (144)
months and to pay restitution. Pugh, No. CP-45-CR-2090-2009. On February 1,
2011, Petitioner filed a post-sentence motion with the trial court. Commonwealth
v. Pugh, No. 1165 EDA 2011, at p. 3; (Doc. 31-19, p. 4). On March 28, 2011, the
trial court denied Petitioner’s post-sentence motion. Pugh, No. CP-45-CR-20902009; Pugh, No. 1165 EDA 2011, at p. 3; (Doc. 31-19, p. 4).
On April 27, 2011, a notice of appeal was filed with the trial court which
stated that Petitioner had filed an appeal with the Pennsylvania Superior Court.
Pugh, No. CP-45-CR-2090-2009; Pugh, No. 1165 EDA 2011, at p. 4; (Doc. 31-19,
p. 5). On January 6, 2012, Petitioner’s sentence was affirmed by the Pennsylvania
Superior Court. Pugh, No. 1165 EDA 2011.
On December 3, 2012, Petitioner filed a timely petition for post-collateral
relief with the sentencing court. Pugh, No. 3134 EDA 2013, at p. 2. On October
16, 2013, the Court of Common Pleas for Monroe County denied Petitioner’s
PCRA petition. Id. On November 8, 2013, Petitioner filed a notice of appeal with
the PCRA court. Id. On August 19, 2014, the Pennsylvania Superior Court
affirmed the PCRA court’s denial of Petitioner’s PCRA petition. See Id. at p. 9.
On September 17, 2014, Petitioner appealed to the Pennsylvania Supreme Court.
3
Pugh, No. 3134 EDA 2013; Petition for Allowance of Appeal, Commonwealth v.
Pugh, No. 730 MAL 2014 (Pa. filed Sept. 17, 2014). On December 11, 2014, the
Pennsylvania Supreme Court denied Petitioner’s petition for allowance of appeal.
Pugh, No. 730 MAL 2014.
On December 26, 2014, Petitioner filed a second PCRA petition in the
Court of Common Pleas for Monroe County. Pugh, No. CP-45-CR-2090-2009.
On February 24, 2015, Petitioner filed an amended second PCRA petition. Id.
The Commonwealth of Pennsylvania filed its answer to the amended second
PCRA petition on March 20, 2015. Id. On May 4, 2015, the Monroe County
Court of Common Pleas dismissed Petitioner’s amended second PCRA petition.
Id. On June 4, 2015, Petitioner filed a notice of appeal of the May 4, 2015, order
dismissing his amended second PCRA petition. (Doc. 16-6, p. 2).
On July 2, 2015, the Pennsylvania Superior Court issued an order directing
Petitioner to show cause why his appeal should not be quashed as untimely filed
on June 4, 2015, from the denial of the petition for post-conviction relief on May
4, 2015. Commonwealth v. Pugh, No. 1623 EDA 2015 (Pa. Super. Ct. filed July
17, 2015). On July 17, 2015, Petitioner filed a praecipe for discontinuance with
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the Pennsylvania Superior Court.1 Praecipe for Discontinuance, Pugh, No. 1623
EDA 2015 (Pa. Super. Ct. filed July 17, 2015).
II.
STANDARD OF REVIEW
“A district court is authorized to ‘entertain an application for a writ of
habeas corpus in 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.’” Parish v. Wetzel, 2015 U.S. Dist. LEXIS
68779, at *4 (M.D. Pa. May 28, 2015) (Conner, J.) (quoting 28 U.S.C. § 2254(a)).
“A petition for writ of habeas corpus is the exclusive federal remedy for a state
prisoner challenging the very fact or duration of his or her confinement.” Id.
(citing Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)).
“A petitioner filing for relief under the federal Antiterrorism and Effective
Death Penalty Act of 1996 (‘AEDPA’), must generally comply with the exhaustion
requirement of 28 U.S.C. § 2254(b)(1)(A), before a federal court can consider the
merits of his habeas corpus petition.” Id. (citing Baldwin v. Reese, 541 U.S. 27,
1
Respondent states that Petitioner currently has two (2) motions pending before the trial
court. (Doc. 31, pp. 3-4). Specifically, Respondent points to the motions filed on June 19, 2015.
(Id.); Pugh, No. CP-45-CR-2090-2009. To date, the docket sheet for Pugh, No. CP-45-CR-20902009, which is available through Pennsylvania’s Unified Judicial Docket System docket research
at: http://ujsportal.pacourts.us/, establishes that no action has been taken on either of those
motions. However, Petitioner contends that these motions are no longer pending. See (Doc. 32,
p. 2) (citing (Doc. 10)). Further, a review of the docket sheet indicates that the case was marked
“completed” on July 27, 2015.
5
29 (2004)). “An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section, if he has the
right under the law of the State to raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c); see also Rose v. Lundy, 455 U.S. 509, 518-19
(1982) (finding that before a federal court can adjudicate claims under habeas
corpus, interests of comity and federalism dictate that the state courts must have
the first opportunity to decide the petitioner’s claims). The exhaustion
requirement is rooted in considerations of comity; the statute is designed to protect
the role of the state court in enforcement of federal law and to prevent disruption
of state judicial proceedings. Rose, 455 U.S. at 515, 518-19; Castille v. Peoples,
489 U.S. 346, 349 (1989).
“State prisoners must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526, U.S. 838, 845
(1999); see Walker v. Vaughn, 53 F.3d 609, 615 (3d Cir. 1995) (quoting Keeney
v. Tamayo-Reyes, 504 U.S. 1, 10 (1992) (“Just as the State must afford the
petitioner a full and fair hearing on his federal claim, so must the petitioner afford
the State a full and fair opportunity to address and resolve the claim on the
merits.”)). “A habeas petitioner retains the burden of showing that all of the
6
claims alleged have been ‘fairly presented’ to the state courts.” Englert v. PA.
State Attorney Gen., 2015 U.S. Dist. LEXIS 67546, at *15 (M.D. Pa. May 26,
2015) (Caputo, J.). “To ‘fairly present’ a claim, a petitioner must present its
‘factual and legal substance to the state courts in a manner that puts them on notice
that a federal claim is being asserted.’” Id. (quoting Rainey v. Varner, 603 F.3d
189, 198 (3d Cir. 2010)). “A federal habeas petitioner ‘shall not be deemed to
have exhausted the remedies available in the courts of the State . . . if he has the
right under the law of the State to raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c). An exception to the exhaustion rule exists if
“there is an absence of available State corrective process” or “circumstances exist
that render such process ineffective to protect the rights of the applicant.” Id. at §
2254(b)(1)(B)(i), (ii).
“In addition, AEDPA endows a state tribunal’s findings of fact with a
‘presumption of correctness,’ and this presumption extends ‘to the factual
determinations of state trial and appellate courts.’” Williams v. Beard, 637 F.3d
195, 204 (3d Cir. 2011) (quoting Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.
2001)). “To overcome the presumption, a habeas petitioner must proffer clear and
convincing evidence to show that a factual determination is ‘objectively
unreasonable in light of the evidence presented in the state-court proceeding.’” Id.
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(quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
Section 2254 of Title 28 in the United States Code “gives federal courts
jurisdiction to entertain habeas corpus petitions from individuals who are ‘in
custody’ pursuant to a state court judgment.” Obado v. New Jersey, 328 F.3d 716,
717 (3d Cir. 2003) (citing 28 U.S.C. § 2254(a)). “While the ‘in custody’
requirement is liberally construed for purposes of habeas corpus, for a federal
court to have jurisdiction, a petitioner must be in custody under the conviction he
is attacking at the time the habeas petition is filed.” Id. (citing Maleng v. Cook,
490 U.S. 488, 490-92 (1989)). “The meaning of ‘custody’ has been broadened so
that it is no longer limited in the § 2254(a) context to physical custody alone but
also applies where individuals are subject both to ‘significant restraints on liberty .
. . which were not shared by the public generally,’ along with ‘some type of
continuing governmental supervision.’” Id. (quoting Barry v. Bergen Cnty.
Probation Dep’t, 128 F.3d 152, 160 (3d Cir. 1997)). “In making a custody
determination, a court looks to the date that the habeas petition was filed.” Barry,
128 F.3d at 159 (citing Carafas v. LaVallee, 391 U.S. 234, 238-40 (1968)).
The United States Supreme Court has “never held, however, that a habeas
petitioner may be ‘in custody’ under a conviction when the sentence imposed for
that conviction has fully expired at the time his petition is filed.” Maleng, 490
8
U.S. at 491 (emphasis in original). “Although collateral consequences of a
conviction may prevent a case from becoming moot if the petitioner is released
form custody after he filed his petition, ‘once the sentence imposed for a
conviction has completely expired, the collateral consequences of that conviction
are not themselves sufficient to render an individual “in custody” for the purposes
of a habeas attack upon it.’” Tolman v. Commonwealth of Pennsylvania, 2016
U.S. Dist. LEXIS 52223, at *4 (W.D. Pa. Apr. 18, 2016) (quoting Maleng, 490
U.S. at 492). A petitioner “is not in custody on a concurrent sentence that has
expired.” FEDERAL HABEAS MANUAL § 1:13 (May 2016); see Bussie v. New
Jersey, 2014 U.S. Dist. LEXIS 151441, at *13-14 (D.N.J. Oct. 24, 2014) (finding
that the petitioner’s concurrent sentences that “have long expired” do not satisfy
the “in custody” requirement); Hatcher v. Ricci, 2010 U.S. Dist. LEXIS 76608, at
*33-34 n.9 (D.N.J. July 29, 2010); see generally United States v. Ross, 801 F.3d
374, 382-83 (3d Cir. 2015).
For those section 2254 claims to which a court has jurisdiction to review on
the merits, “[u]nder the [AEDPA], federal courts reviewing a state prisoner’s
application for a writ of habeas corpus may not grant relief ‘with respect to any
claim that was adjudicated on the merits in the State court proceedings’ unless the
claim (1) ‘resulted in a decision that was contrary to, or involved an unreasonable
9
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.’” Martz v. Mooney, 2016 U.S. Dist. LEXIS 59078, at
*12-13 (M.D. Pa. May 4, 2016) (Munley, J.) (quoting 28 U.S.C. § 2254(d)).
“[B]ecause the purpose of AEDPA is to ensure that federal habeas relief functions
as a guard against extreme malfunctions in the state criminal justice systems, and
not as a means of error correction,” Greene v. Fisher, 565 U.S. 34, 43 (2011),
“[t]his is a difficult to meet and highly deferential standard . . . which demands
that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011). In particular, “[a] decision is ‘contrary to’ federal law if
‘the state court applies a rule that contradicts the governing law set forth in
[Supreme Court] cases’ or ‘if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [Supreme Court] precedent.’” Martz,
2016 U.S. Dist. LEXIS 59078, at *13 (alterations in original) (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000)). “A decision is an ‘unreasonable
application’ of federal law if the state court identified the correct governing legal
rule but applied the rule to the facts of the case in an objectively unreasonable
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manner.” Martz, 2016 U.S. Dist. LEXIS 59078, at *13-14 (citing Renico v. Lett,
559 U.S. 766, 773 (2010)). “A decision is based on an ‘unreasonable
determination of the facts’ if the state court’s factual findings are objectively
unreasonable in light of the evidence presented to the state court.” Id. at *14
(citing Miller-El, 537 U.S. at 340). Said differently, a “decision involves an
unreasonable application of clearly established law where a state prisoner shows
‘that the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.’” Saranchak
v. Sec’y Pa. Dep’t of Corr., 802 F.3d 579, 589 (3d Cir. 2015) (quoting Harrington
v. Richter, 562 U.S. 86, 103 (2011)). “Thus, a state court’s application must be
‘objectively unreasonable, not merely wrong; even clear error will not suffice.’”
Id. (quoting White v. Woodall, 134 S. Ct. 1697, 1702 (2014)).
Importantly, “[t]he State court’s factual findings are ‘presumed to be
correct,’ and [Petitioner] bears ‘the burden of rebutting the presumption of
correctness by clear and convincing evidence.’” Id. (quoting 28 U.S.C. §
2254(e)(1)). “But ‘even if a state court’s individual factual determinations are
overturned, what factual findings remain to support the state court decision must
still be weighed under the overarching standard of section 2254(d)(2).’” Id.
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(quoting Lambert v. Blackwell, 387 F.3d 210, 235-36 (3d Cir. 2004)).
III.
DISCUSSION
Petitioner claims that his petition should be granted because his right to due
process and right to counsel were violated. Specifically, he claims that his due
process right was violated because the evidence presented at trial was insufficient
to support his convictions, and that his right to counsel was violated because he
received ineffective assistance. (Doc. 7). These claims will be addressed below.2
2
As stated above, Petitioner was convicted of and sentenced for Counts 1, 2, 4, 5, 6, and
8. Petitioner was sentenced on Count 1, PWID cocaine, to be incarcerated in a state correctional
institution for “a period of not less than 60 months nor more than 120 months, pay restitution in
the amount of $113 to the Commonwealth of Pennsylvania and pay the costs of these
proceedings;” on Count 2, criminal conspiracy, to be incarcerated in a state correctional
institution “for a period of not less than 12 months nor more than 24 months, [which] shall run
concurrently to Count 1;” on Count 4, possession of cocaine, “no sentence [was] imposed as this
charge merge[d] with Count 1 for purposes of sentencing;” on Count 5, possession of drug
paraphernalia, to be incarcerated in a state correctional institution “for a period of not less than
one month nor more than 12 months and pay the costs of these proceedings,” which “shall run
concurrently to those in Counts 1 and 2;” on Count 6, possession of a firearm with
manufacturer’s number obliterated, to be incarcerated in a state correction institution “for a
period of not less than 12 months nor more than 24 months,” which “will run consecutively to
Counts 1, 2 and 5 for a total aggregate term of not less than 72 months nor more than 144
months;” and on Count 8, endangering the welfare of children, to be incarcerated in a state
correctional institution “for a period of not less than 12 months nor more than 24 months and pay
the costs of these proceedings,” which “will run concurrently to Counts 1, 2, 5 and 6.” (Doc. 7-1,
pp.12-14). Notably, at sentencing, Petitioner was given a “time credit of 111 days from
December 3, 2009 to February 2, 2010 and December 7, 2010 to January 24, 2011.” (Id. at pp.
13-14). On April 3, 2017, the Court issued an Order directing the parties to address whether the
sentences for Counts 2, 4, 5, and 8 had expired prior to the institution of this action. (Doc. 35).
On April 13, 2017, Respondent filed a memorandum stating that the sentences imposed for
Counts 2, 4, 5, and 8 had expired prior to the institution of this action. (Doc. 36). Notably, the
Court also gave Petitioner an opportunity to file any opposition to Respondent’s brief. (Doc. 35).
However, the deadline provided has passed, and, to date, Petitioner has not filed a response to
Respondent’s April 13, 2017 memorandum. As a result, Petitioner has not established that he
was “in custody” for Counts 2, 4, 5, and 8 when he instituted the above-captioned action. Rogers
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1.
Sufficiency of the Evidence
Petitioner claims that his right to due process was violated because the
evidence presented at trial was insufficient to support his convictions.
Specifically, he argues that “in the context of showing that the state court []
‘confront[ed] facts that are materially indistinguishable from” Jackson v. Virginia,
443 U.S. 307, 318-19 (1979). (Doc. 7, p. 13) (citing Williams v. Taylor, 529 U.S.
326, 405 (2000)). “Therefore,” Petitioner contends, “this Court must first decide
whether or not that ‘the facts of his case are materially indistinguishable from
Jackson.’” (Id. at p. 14). According to Petitioner, “[i]n the current case, the
Superior Court confronted these facts that are ‘materially indistinguishable under
Jackson.” (Id.). Petitioner argues that “this Court is compelled to di[s]miss the
conviction on charge ‘Endangering the Welfare of a Child.’” (Id.).
v. Mahally, 2016 U.S. Dist. LEXIS 75702, at *6 (E.D. Pa. June 9, 2016) (citing Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998)); see FEDERAL HABEAS MANUAL §
1:13 (May 2016) (“the petitioner is not in custody on a concurrent sentence that has expired”);
Bussie v. New Jersey, 2014 U.S. Dist. LEXIS 151441, at *13-14 (D.N.J. Oct. 24, 2014) (finding
that the petitioner's concurrent sentences that “have long expired” do not satisfy the “in custody”
requirement); Hatcher v. Ricci, 2010 U.S. Dist. LEXIS 76608, at *33-34 n.9 (D.N.J. July 29,
2010) (finding that the petitioner’s concurrent sentence “expired long before [his] filing of the
Petition, and that this Court is without jurisdiction to entertain any” challenges to the expired
sentences “since [the petitioner] is no longer ‘in custody,’ within the meaning of” 28 U.S.C. §
2254(a)); see also Maleng v. Cook, 490 U.S. 488, 492 (1989); United States v. Ross, 801 F.3d
374, 382-83 (3d Cir. 2015). Since only Counts 1 and 6 were unexpired at the time Petitioner
filed his federal habeas petition on February 18, 2015, those are the only Counts that can satisfy
the “in custody” requirement found in section 28 U.S.C. § 2254(a). Thus, Petitioner’s habeas
claims concerning Counts 2, 4, 5, and 8 will not be considered because Petitioner was not “in
custody” on those Counts at the time he filed his original petition as required by section 2254(a).
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Petitioner also argues that “[t]he State Court decision was an ‘unreasonable
application’ of Jackson where the Superior Court addressed two of [Petitioner’s]
convictions for PWID and Endangering the Welfare of a Child.” (Doc. 7, p. 14).
Petitioner claims that “the State Court adjudication of his sufficiency of the
evidence challenge was an unreasonable application of Jackson.” (Id. at p. 15).
Petitioner states that “[t]he Superior Court decision merely addressed the Jackson
on two of [his] convictions,” namely PWID cocaine and Endangering the Welfare
of a Child. (Id.). “Comprehensively, however, Petitioner recognizes that the
Court may find ‘the minimum amount of evidence that the Due Process requires to
prove the offense is purely a matter of federal law.’” (Id.) (quoting Coleman v.
Johnson, 132 S. Ct. 2060, 2064 (2012)).
As to his conviction of PWID cocaine, Petitioner argues that “this is strong
case under Jackson.” (Id. at p. 16). “In short,” Petitioner contends, his
“conviction for [PWID] cocaine was based on nothing more than ‘speculation and
conjecture’ and his ‘mere presence’ at the Ms. Gonzalez residence.” (Id. at p. 15).
Thus, Petitioner concludes, “[i]t was objectively unreasonable for the
Pennsylvania Superior Court to decide that a rational jury could have found
[Petitioner] guilty of [PWID].” (Id.). Petitioner continues by claiming that
“because a rational jury could not have inferred that [Petitioner] ‘exercised
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dominion or control’ of the contraband seized because ‘there is no evidence to
suggest that actually ‘shared the residence with Ms. Gonzalez.’” (Doc. 7, p. 17).
Petitioner, again, “maintains that he was ‘merely present,’” and asserts that the
“Superior Court conceded that ‘the cocaine was not found on [Petitioner’s]
person.” (Id.). Petitioner continues by stating that “[n]o where in the record does
it suggest that [Petitioner] rented the apartment with Ms. Gonzalez.” (Id.).
“Moreover,” Petitioner asserts, “‘the search warrant in this case specifically
targeted and, further, listed the name: Ms. Gonzalez.” (Id. at pp. 17-18) (citing
Hawkins, 880 A.2d 678 (Pa. Super. Ct. 2005)). According to Petitioner, the
“residence is an ‘apartment that was being leased to Ms. Gonzalez.’” (Id. at p. 18).
Therefore, Petitioner argues, “[t]he conviction for PWID cannot stand under
Jackson.” (Id.).
Further, under 2254(d)(2), Petitioner claims, the Pennsylvania Superior
Court’s determination that Petitioner “constructively possessed cocaine with intent
to deliver was an objectively unreasonable one.” (Id.). Petitioner continues by
arguing that the Superior Court’s determination that “‘the police discovered
cocaine in the bedroom [Petitioner] shared with Gonzalez’ was an objectively
unreasonable determination of the facts under” section 2254(d)(2). (Id.).
According to Petitioner, he has provided clear and convincing evidence “to show
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that ‘[he] did not reside at the residence with Ms. Gonzalez.’” (Doc. 7, p. 18).
“Specifically,” Petitioner contends, “first, the search warrant targeted Ms.
Gonzalez and Johnathon Moss.’” (Id.). “[S]econd,” Petitioner states, “the record
reflects that the residence was being leased to Ms. Gonzalez . . . .” (Id.).
“[F]inally, the record reflects that ‘Arecelis Gonzalez and Johnathon Moss were
either the owner/occupant of the said residence to be searched.’” (Id. at p. 19).
Petitioner also contends that “[i]t is . . . important to note that the record reflects
that ‘[Petitioner] resides in the City of New York.’” (Id.). Petitioner also states
that “Moss testified that ‘[Petitioner] does not reside at the Ms. Gonzalez
residence.’” (Id.). “Because of these facts,” Petitioner argues, “‘the court’s ruling
on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fair-minded disagreement.’” (Id.) (quoting Harrington, 131 S. Ct. at
786-78). “Thus,” Petitioner concludes, “no rational jury could conclude or infer
that [Petitioner] constructively possessed the cocaine with intent to deliver, where
contraband seized, was located and recovered on ‘Ms. Gonzalez’s premise or
property.’” (Id.).
Petitioner then argues that a reasonable jury could not have found him guilty
of Endangering the Welfare of a Child. (Id. at pp. 19-22). Specifically, Petitioner
16
argues that the Pennsylvania Superior Court made an unreasonable determined of
the facts when it found that Petitioner resided at the residence with Ms. Gonzalez.
(Doc. 7, p. 21). According to Petitioner, this determination is not supported by the
record. (Id.). Petitioner contends that “[t]here is nothing of record to show that
‘[Petitioner] resided at the residence with Ms. Gonzalez.’” (Id.). Petitioner argues
that “the transcript that the Superior Court cited to reflects in relevant part, that
[Petitioner] was in the residence.” (Id.). “Nothing in the record,” Petitioner
contends, “reflects that [he] shared the residence with Gonzalez.” (Id.). “As such,
the state court decision was overwhelmingly ‘objectively unreasonable’ under
Jackson.” (Id.). Moreover, Petitioner argues that “[n]o rational jury could infer
that [Petitioner] was ‘aware of his/her duty to protect the child,’ or that he was
‘aware that the child is in circumstances that could threaten the child’s physical or
psychological welfare and/or that [Petitioner] ‘failed to act or taken so lame
meager that such actions cannot reasonably be expected to protect the child’s
welfare, as articulated in Wallace . . . .” (Id.). Petitioner claims that “[i]t is well
established above that this part of the record that the Superior Court cited to
evidence of [Petitioner’s] ‘mere presence.’” (Id. at p. 22). According to
Petitioner, “[a]bsolutely a rational jury could not infer that [Petitioner] ‘supervised
this child.’” (Id.). Petitioner also contends that “[t]here also [is] no evidence that
17
the child resided with Ms. Gonzalez at her residence.” (Doc. 7, p. 22). As a
result, Petitioner states that the Court is “compelled to find that this conviction
cannot stand under Jackson.” (Id.).
Petitioner also claims that a reasonable jury could not have found him guilty
of criminal conspiracy to commit PWID. (Id. at pp. 22-24). In particular,
Petitioner argues that “a rational jury could not conclude that [Petitioner] ‘entered
into an agreement to commit or aid in an unlawful act with’ Ms. Gonzalez.” (Id. at
p. 23). Additionally, Petitioner claims that he “should not be liable for the action
of Ms. Gonzalez because he was ‘merely present.’” (Id.). Moreover, Petitioner
argues that he “did not ‘share criminal intent’ with Ms. Gonzalez.” (Id.). In
support of this argument, Petitioner states that “the record clearly establishes that
‘[Petitioner] does not reside at the apartment with Ms. Gonzalez.’” (Id.).
Petitioner contends that “[t]here could not be a conspiracy between . . . Ms.
Gonzalez and [Petitioner], where the search warrant, specifically, targeted Ms.
Gonzalez and Mr. Moss.” (Id.). Further, Petitioner states that he “was not named
on the search warrant,” nor was he “involved in any controlled buys.” (Id.).
Petitioner reasserts that “[t]here was no inference or any evidence to suggest
that [Petitioner] commited (sic) [the] offense criminal conspiracy to commit”
PWID. (Id. at p. 24). According to Petitioner, he “was merely present,” “did not
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occupy this structure,” and “[t]here was no agreement of any kind to infer that
[Petitioner] conspired with Gonzalez to commit” PWID. (Doc. 7, p. 24). “As
such,” Petitioner concludes, “no rational jury could infer that [Petitioner] is guilty
of criminal conspiracy to commit PWID.” (Id.).
Petitioner then argues that no reasonable jury would have found him guilty
of possession of a firearm with an altered manufacturer’s number. (Id. at pp. 2425). In support, Petitioner asserts that “[n]othing puts [Petitioner] in visible
possession of a firearm.” (Id. at p. 25). Moreover, Petitioner claims that the
firearm “was altered when Johnothon Moss bought the gun.” (Id.). Also,
Petitioner states that “[h]ere, Moss clearly testified that ‘this is my gun, not
[Petitioner’s].’” (Id.). According to Petitioner, he “was never visibly observed
with a hand-gun,” he did not “reside with Ms. Gonzalez,” and “[t]he said handgun
was unforeseeable for [him] to have any type of possession of a firearm.” (Id.).
“As a result,” Petitioner concludes, “a rational jury could not conclude that
[Petitioner] ‘possessed a handgun’ or that he ‘altered the serial number.’” (Id.).
Petitioner states that “[t]his conviction cannot stand under Jackson or Fiore.”
(Id.).
Finally, he claims he is innocent of the conviction for possession of a
firearm with manufacturer's number obliterated. (Id.). Specifically, Petitioner
19
states that:
in light of Newly-discovered evidence of Affiant’s new
charging document against Johnothon Moss, Moss’s guilty
plea, and sentencing order via a plea of guilt to Possession of
the same exact firearm which resulted in the conviction of
[Petitioner][, which] caused a Miscarriage of justice.
(Doc. 7, p. 37). Also in support of this claim, Petitioner notes that “Moss testified
that ‘it was my gun, and not [Petitioner’s].’” (Id.). “As a result,” Petitioner
contends, he “was ‘wrongfully convicted’ and ‘actually innocent,’ as here,
subsequently, however, based on newly discovered evidence of Detective Munch
charging Mr. Moss with possession of a firearm with an Altered Manufacturer’s
number,’ and, ultimately, Moss had pleaded guilty to ‘Possession of a firearm
Without a License,’ M1, on January 25, 2012.” (Id.). This new evidence,
Petitioner claims, “is ‘new reliable . . . critical evidence that was not presented at
trial, and shows that no reasonable juror would have voted to find [Petitioner]
guilty beyond a reasonable doubt, to satisfy the standard set forth in Mills v.
Carroll[], 515 F. Supp. 2d 463 (3d Cir. 2007).” (Id. at p. 38).
Respondent responds by stating that “an issue is waived if a petitioner fails
to raise it and the issue could have been raised before trial, at trial, on appeal, in a
20
habeas proceedings, or in a prior proceeding.3 (Doc. 31, p. 25) (citing Smith v.
Lamas, 2011 U.S. Dist. LEXIS 136025 (E.D. Pa. Nov. 28, 2011)). In regards to
Petitioner’s sufficiency of the evidence claim, Respondent begins by noting that
when that claim was addressed by the Pennsylvania Superior Court “that . . . issue
was waived.” (Id. at p. 28). Respondent also notes that this claim lacks merit
because the convictions were supported by sufficient evidence. (Id. at pp. 28-38).
a.
Exhaustion and Procedural Default
As stated, Petitioner was convicted of possession with intent to deliver
(“PWID”) cocaine; criminal conspiracy; possession of cocaine, drug
paraphernalia, and a firearm; and endangering the welfare of a chid. Petitioner
filed a direct appeal of his conviction. Petitioner argued, inter alia, that the verdict
was reached upon insufficient evidence. (Doc. 31-18).
In addressing Petitioner’s direct appeal, the Pennsylvania Superior Court
assessed, inter alia, Petitioner’s claim that “‘[t]he verdict was reached upon
insufficient evidence.’” Pugh, No. 1165 EDA 2011, at p. 4. The Superior Court
determined that this claim was waived. See Id. at pp. 4-5. Alternatively, it found
3
Even if Respondent did not raise procedural default, according to the United States
Court of Appeals for the Third Circuit, “a federal court has the authority to raise the issue of
procedural default sua sponte.” Evans v. Sec'y Pa. Dep't of Corrs., 645 F.3d 650, 657 n.12 (3d
Cir. 2011) (citing Szuchon v. Lehman, 273 F.3d 299, 321 n.13 (3d Cir. 2001)).
21
that this claim “would not merit relief.” Pugh, No. 1165 EDA 2011, at p. 5.
When reaching its alternative findings concerning Petitioner’s sufficiency of
the evidence claim, the Superior Court determined that Petitioner appeared to be
challenging the sufficiency of the evidence relating to his conviction of PWID
cocaine and endangerment of the welfare of a child. Id. As for his claim that there
was insufficient evidence to support a conviction of PWID to deliver cocaine, it
was rejected as meritless by the Superior Court. Id. at p. 7. According to the
Superior Court, “[a]lthough the cocaine was not found on [Petitioner’s] person,
viewing the evidence in the light most favorable to the Commonwealth as verdict
winner, it clearly supported the jury’s finding that [Petitioner] constructively
possessed the cocaine with the intent to deliver.” Id. The Superior Court
continued by stating that “[t]he evidence established that, immediately after the
police announced the search, Detective Jacobsen observed [Petitioner] push an air
conditioner out of a bedroom window.” Id. “Shortly thereafter, the police found
cocain scattered on the ground outside the window, and chunks of cocaine on the
windowsill.” Id. Additionally, the Superior Court stated that “[u]pon entering the
home, the police discovered cocaine in the bedroom [Petitioner] shared with
Gonzalez.” Id. Thus, the Superior Court found, “[b]ased upon this evidence, a
reasonable jury could conclude that [Petitioner] had the ability and intent to
22
exercise conscious control and dominion over the cocaine.” Pugh, No. 1165 EDA
2011, at p. 7.
Moreover, the Superior Court noted that “[a]lso inside the bedroom, the
police discovered [Petitioner] and Gonzalez, cocaine, three digital scales, large
sums of cash, intact plastic bags, plastic bags with the corners cut off, and a Smith
& Wesson .40 caliber handgun.” Id. (internal citations omitted). The Superior
Court also stated that “[n]o paraphernalia for the consumption of crack cocaine
was found in the residence.” Id. “Detective Bray, the Commonwealth’s expert on
drug trafficking,” the Superior Court noted, “testified that the scales found in the
bedroom could be used for weighing drugs.” Id. at p. 8. According to the
Superior Court, Detective Bray “testified further that the baggies with cut corners
were consistent with the creation of packaging for crack cocaine sales.” Id.
The Superior Court, “[v]iewing the foregoing evidence in the light most
favorable to the Commonwealth,” determined that “it was sufficient to enable the
jury to find every element of the crime of [PWID] cocaine beyond a reasonable
doubt.” Id. (citing Commonwealth v. Palo, 24 A.3d 1050, 1054-55 (Pa. Super. Ct.
2011)). “Therefore,” the Superior Court held, Petitioner’s sufficiency of the
evidence claim regarding hin PWID cocaine conviction lacked merit. Id.
Notably, “[i]n [Evans v. Court of Common Pleas of Delaware Cnty, 959
23
F.2d 1227 (3d Cir. 1992)], the Third Circuit held the test for sufficiency of the
evidence is the same under both Pennsylvania law and federal due process.” Hall
v. Beard, 55 F. Supp. 3d 618, 696 (E.D. Pa. 2014) (citing Evans, 959 F.2d at 123133). “A claim for sufficiency of the evidence is the ‘substantial equivalent’ of a
federal due process claim.” Id. (quoting Evans, 959 F.2d at 1233). “In addition,
the Third Circuit in Evans held that a petitioner’s due process claim had also been
exhausted because the assertion of the state-law claim ‘call[s] to mind a specific
right protected by the Constitution.’” Id. (quoting Evans, 959 F.2d at 1233; citing
McCandless v. Vaughn, 172 F.3d 255 (3d Cir. 1999)).
As discussed above, a petitioner must generally comply with the exhaustion
requirement of 28 U.S.C. § 2254(b)(1)(A), before a federal court can consider the
merits of his habeas corpus petition. As a result, the question becomes whether
Petitioner properly exhausted his sufficiency of the evidence claim.4 Here,
Petitioner’s brief in support of his direct appeal cites the due process standard set
forth in Jackson. Specifically, Petitioner identified the following as the applicable
standard for reviewing the sufficiency of the evidence: “whether all the evidence
4
Notably, in his amended petition, Petitioner appears to concede that his sufficiency of
the evidence claims are procedurally defaulted. (Doc. 7, pp. 25-30). Nevertheless, to the extent
that Petitioner does not concede that his sufficiency of the evidence claim has been procedurally
defaulted, the Court will address the procedural default issue. See Bey v. Superintendent Greene
SCI, 856 F.3d 230, 236-38 (3d Cir. 2017).
24
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.” Appellant’s Brief, Pugh, No. 1165 EDA 2011, p. 11; see (Doc.
31-18, p. 15). “Because the standard is identical, ‘[n]either federal-state comity
nor judicial economy would be better served by requiring [petitioner] to return to
the state courts simply because [his state court briefs] do not include a “see also”
citation to Jackson v. Virginia.’” Hall, 55 F. Supp. 3d at 686 (alterations in
original) (quoting Johnson v. Mechling, 541 F. Supp. 2d 651, 665 (M.D. Pa. 2008)
(Jones, J.)).
However, even assuming, without deciding, that Petitioner adequately
presented his sufficiency of the evidence claims to the Superior Court, “[d]efault
can also occur independently of exhaustion.” Romansky v. Folino, 2017 U.S.
Dist. LEXIS 28405, at *32 (M.D. Pa. Mar. 1, 2017) (Rambo, J.). “Procedural
default occurs when ‘the prisoner ha[s] failed to meet a state law procedural
requirement.’[footnote omitted]” Bey v. Superintendent Greene SCI, 856 F.3d
230, 236 (3d Cir. 2017); see Branthafer v. Glunt, 2015 U.S. Dist. LEXIS 126142,
at *18-19 (M.D. Pa. Sept. 22, 2015) (Conaboy, J.) (citing Leyva v. Williams, 504
F.3d 357, 365 (3d Cir. 2007)). “‘The doctrine of procedural default prohibits
federal courts from reviewing a state court decision involving a federal question if
25
the state court decision is based on a rule of state law that is independent of the
federal question and adequate to support the judgment.’[footnote omitted]” Bey,
856 F.3d at 236 (quoting Fay v. Horn, 516 F.3d 169, 187 (3d Cir. 2008)). “The
requirements of independence and adequacy are distinct.” Branthafer, 2015 U.S.
Dist. LEXIS 126142, at *19 (citing Leyva, 504 F.3d at 365).
“A state procedural rule is ‘independent’ if it is separate from the federal
issue.” Leake v. Dillman, 594 F. App’x 756, 758 (3d Cir. 2014). “[A] state
procedural rule is adequate if it was ‘firmly established and regularly followed’ at
the time of the alleged procedural default.” Id. at 759 (citing Ford v. Georgia, 498
U.S. 411, 424 (1991)). “To be considered firmly established and regularly
followed, ‘(1) the state procedural rule [must] speak[] in unmistakable terms; (2)
all state appellate courts [must have] refused to review the petitioner’s claims on
the merits; and (3) the state court’s refusal in this instance [must be] consistent
with other decisions.’” Id. (quoting Nara v. Frank, 488 F.3d 187, 199 (3d Cir.
2007)); see also Johnson v. Pinchak, 392 F.3d 551, 559 (3d Cir. 2004) (quoting
Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997)).
“Ordinarily, the ‘adequacy’ of the state procedural rule does not include an
inquiry into whether the state erroneously applied its own rule in a particular
case–‘courts have repeatedly counseled [this] is not a cognizable claim on
26
habeas.’” Branthafer, 2015 U.S. Dist. LEXIS 126142, at *19-20 (alteration in
original) (quoting Tillery v. Horn, 142 F. App’x 66, 68 (3d Cir. 2005)).
“Reviewing a § 2254 petition, a federal court ‘ordinarily may not second guess a
state court’s rejection of a claim on the basis of an independent and adequate state
procedural rule.’” Id. at *20 (quoting Logan v. Gelb, 790 F.3d 65, 70 (1st Cir.
2015)). However, “a reviewing court must keep in mind that there are
‘“exceptional circumstances in which exorbitant application of a generally sound
rule renders the state ground inadequate to stop consideration of a federal
question.”’” Id. at *21 (quoting Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir.
2012)).
“The requirement that Petitioner must meaningfully develop his arguments
on appeal and cite to appropriate authorities has been stated in unmistakable terms
by the Pennsylvania Supreme Court.” Id. (citing Commonwealth v. Clayton, 572
Pa. 395 (Pa. 2002)). Moreover, “[t]he fact that the Superior Court, alternatively,
found that Claim One lacked merit . . . does not preclude reliance upon the
procedural bar it identified.” Lambert v. Folino, 2015 U.S. Dist. LEXIS 161701,
at *10 n.5 (E.D. Pa. Nov. 30, 2015) (citing Harris v. Reed, 489 U.S. 255, 261
(1989)), adopted by, 2016 U.S. Dist. LEXIS 2103 (E.D. Pa. Jan. 8, 2016); see
Branthafer, 2015 U.S. Dist. LEXIS 126142, at *39 n.13 (“The Superior Court’s
27
consideration of the merits of the 13 claim in the margin is not considered for
procedural default purposes. However, it would be a factor in the deference due
under § 2254(d) if a merits analysis were warranted.”) (citing Rolan v. Coleman,
680 F.3d 311, 319-21 (3d Cir. 2012)); Gerber v. Varano, 2015 U.S. Dist. LEXIS
110006, at *11-12 n.1 (M.D. Pa. Aug. 20, 2015) (Rambo, J.) (citing Harris, 489
U.S. at 264 n. 10); see also Johnson, 392 F.3d at 558 (“The fact that both the New
Jersey trial court and Appellate Division made reference to the merits of the case
as an alternative holding does not prevent us from finding procedural default.”);
Dreher v. AG, 273 F. App’x 127, 135 n.11 (3d Cir. 2008); Barnett v. Clark, 2017
U.S. Dist. LEXIS 12588, at *20-21 (E.D. Pa. Jan. 27, 2017); Knight, 2007 U.S.
Dist. LEXIS 83546, at *16 (“[I]f the reviewing state court reached the merits as an
alternative holding, the habeas court proceeds with the procedural default
analysis”) (citing Johnson, 392 F.3d at 558).
In assessing Petitioner’s direct appeal, the Superior Court found that
Petitioner’s general sufficiency of the evidence claim had been waived as to all but
the endangering the welfare of a child conviction, which was raised as a separate
claim. Pugh, No. 1165 EDA 2011, at p. 4. In particular, the Superior Court noted
that “[a] Rule 1925(b) statement challenging the sufficiency of the evidence must
specify ‘how the evidence failed to establish which element or elements of the []
28
offenses for which [Petitioner] was convicted . . . . Which elements of which
offense were unproven? What part of the case did the Commonwealth not
prove?’” Pugh, No. 1165 EDA 2011, at p. 4 (second alteration in original)
(quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)).
The Superior Court continued by noting that in Petitioner’s “Rule 1925(b)
statement, he challenges that the verdict was reached on insufficient evidence
because he was not the subject of the arrest warrant, ‘there was no evidence of
direct buys involving [] [Petitioner][,]’ and that the evidence ‘only supports
Simple Possession not [PWID].’” Id. at pp. 4-5 (first, third and fourth alterations
in original). The Superior Court determined that “[b]ecause [Petitioner’s]
statement does not identify which elements of his convictions were not proven,
this issue is waived.” Id. at p. 5.
The Superior Court went on to state that Petitioner’s general sufficiency of
the evidence claim was also waived because of his failure to comply with Pa.
R.A.P. 2119(a)-(c). Id. Specifically, the Superior Court stated that “in addressing
[his sufficiency of the evidence claim], [Petitioner’s] brief fails to include
pertinent discussion identifying the elements of PWID that the Commonwealth
allegedly failed to prove or citation to the record or pertinent authority.” Id.
“Although he provides general, boilerplate law on the level of certainty with
29
which the Commonwealth must establish a defendant’s guilt, participation in a
crime, and possession of contraband, [Petitioner] fails to provide pertinent
authority on the specific crimes of which he was convicted.” Pugh, No. 1165
EDA 2011, at p. 5. The Superior Court noted that Petitioner was “convicted . . . of
five crimes in this matter.” Id. “However,” the Superior Court found, “he fails to
state expressly which conviction he is contesting or to identify what elements the
Commonwealth purportedly failed to establish.” Id. “Accordingly, [Petitioner’s]
first issue also would be waived on that basis.” Id.
“A procedural default occurs when a prisoner’s federal claim is barred from
consideration in the state courts by an ‘independent and adequate’ state procedural
rule.” Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002). “The Pennsylvania
Superior Court’s finding of waiver under Rule 1925(b) has been found to be an
adequate basis to invoke the procedural default doctrine.” Branthafer, 2015 U.S.
Dist. LEXIS 126142, at *41 (citing Buck v. Colleran, 115 F. App’x 526, 527-28
(3d Cir. 2004); Sidberry v. Fisher, 2015 U.S. Dist. LEXIS 81160 (W.D. Pa. June
23, 2015)); see Fudge v. Overmyer, 2015 U.S. Dist. LEXIS 31063, at *9 (M.D. Pa.
Mar. 13, 2015) (Jones, J.) (“The rule of waiver for failing to properly raise an issue
in a 1925(b) Statement is an independent and adequate state ground, and therefore
results in [the petitioner] having procedurally defaulted on ineffective assistance
30
of counsel claims.”). Additionally, courts within the Third Circuit have
determined that a finding that a claim was waived for failure to comply with Pa.
R.A.P. 2119 also is an independent and adequate state procedural rule which, if
not complied with, can result in a procedural default. See Smith v. Cameron, 2017
U.S. Dist. LEXIS 74432, at *15-18 (M.D. Pa. May 16, 2017) (Jones, J.); see also
Leake, 594 F. App’x at 759; Rodriguez v. Giroux, 2017 U.S. Dist. LEXIS 23447,
at *37 n.17 (E.D. Pa. Feb. 17, 2017) (citing Sistrunk v. Vaughn, 96 F.3d 666, 673
(3d Cir. 1996); Quang Van Nguyen v. Wenerowicz, 2013 U.S. Dist. LEXIS
173586 (E.D. Pa. Dec. 10, 2013)); Alston v. Gilmore, 2016 U.S. Dist. LEXIS
110170, at *31-32 (E.D. Pa. Aug. 16, 2016), adopted by, 2016 U.S. Dist. LEXIS
180193 (E.D. Pa. Dec. 29, 2016); Prout v. Giroux, 2016 U.S. Dist. LEXIS 57085,
at *40-43 (E.D. Pa. Apr. 29, 2016); Robertson v. Thompson, 2015 U.S. Dist.
LEXIS (M.D. Pa. Jan. 25, 2015) (Kane, J.) (citing Leake, 594 F. App’x at 759).
But see Xavier v. Superintendent Albion SCI, 2017 U.S. App. LEXIS 7881, at *58 (3d Cir. May 3, 2017) (non-precedential) (finding the petitioner had not
procedurally defaulted under Pa. R.A.P. 2119(a) when he “provided detailed
allegations and case law” in support of his claims).
As stated, the Superior Court relied on Rule 1925(b) and Pa. R.A.P. 2119 to
determine that Petitioner waived his sufficiency of the evidence claim on direct
31
appeal as to his convictions of possession of intent to deliver cocaine; criminal
conspiracy; and possession of cocaine, drug paraphernalia, and a firearm with an
obliterated serial number, see Pugh, No. 1165 EDA 2011, at pp. 4-5. As a result,
Petitioner’s current sufficiency claim based on these convictions is barred from
consideration unless Petitioner proves that an exception to the default applies.5
See Solano v. Lamas, 2014 U.S. Dist. LEXIS 78452, at *16 (M.D. Pa. June 6,
2014) (Nealon, J.).
“When reviewing a state prisoner’s petition for a writ of habeas corpus, a
federal court normally cannot review a federal claim for post-conviction relief that
5
The Court notes that while the Superior Court determined that Petitioner’s sufficiency
of the evidence claim concerning all convictions except the endangering the welfare of a child
conviction were waived under Pennsylvania Rules of Appellate Procedure 1925(b) and 2119, the
Superior Court went on to discuss, in an alternative holding, the merits of Petitioner’s sufficiency
of the evidence claim concerning his conviction for PWID cocaine. Pugh, 1165 EDA 2011, at
pp. 5-8. Nevertheless, the Court will proceed with a procedural default analysis as to this
conviction. Lambert, 2015 U.S. Dist. LEXIS 161701, at *10 n.5 (citing Harris, 489 U.S. at 261),
adopted by, 2016 U.S. Dist. LEXIS 2103; see Branthafer, 2015 U.S. Dist. LEXIS 126142, at *39
n.13 (“The Superior Court's consideration of the merits of the 13 claim in the margin is not
considered for procedural default purposes. However, it would be a factor in the deference due
under § 2254(d) if a merits analysis were warranted.”) (citing Rolan, 680 F.3d at 319-21);
Gerber, 2015 U.S. Dist. LEXIS 110006, at *11-12 n.1 (citing Harris, 489 U.S. at 264 n. 10); see
also Johnson, 392 F.3d at 558 (“The fact that both the New Jersey trial court and Appellate
Division made reference to the merits of the case as an alternative holding does not prevent us
from finding procedural default.”); Dreher, 273 F. App’x at 135 n.11; Barnett, 2017 U.S. Dist.
LEXIS 12588, at *20-21; Knight, 2007 U.S. Dist. LEXIS 83546, at *16 (“[I]f the reviewing state
court reached the merits as an alternative holding, the habeas court proceeds with the procedural
default analysis”) (citing Johnson, 392 F.3d at 558). While the Court addresses Petitioner’s
sufficiency of the evidence claim concerning his PWID cocaine conviction under procedural
default, the Court, as done by the Superior Court during Petitioner’s direct appeal, will also
address, in the alternative, the merits of that claim below.
32
has already been rejected by a state court on the basis of an independent and
adequate state procedural rule.” Cox v. Horn, 757 F.3d 113, 118-19 (3d Cir.
2014) (citing Walker v. Martin, 562 U.S. 307 (2011); Coleman v. Thompson, 501
U.S. 722, 750 (1991)). “As explained by the Third Circuit Court of Appeals, a
procedural default rule ‘prevents an end-run around the exhaustion requirement.’”
Toney v. United States, 2016 U.S. Dist. LEXIS 142375, at *5 (M.D. Pa. Oct. 14,
2016) (Conaboy, J.) (Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004)). “A
petitioner may obtain federal review of a procedurally defaulted claim, however, if
he demonstrates cause for the default and prejudice arising from the violation of
federal law.” Cox, 757 F.3d at 119 (citing Martinez v. Ryan, 132 S. Ct. 1309,
1316 (2012)). Additionally, procedurally defaulted claims may also be considered
where the Petitioner demonstrates that failure to consider the claim would result in
a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750; Harris, 489
U.S. at 260-63; Morris, 187 F.3d at 342.
“To demonstrate ‘cause’ for a procedural default, he must point to some
objective external factor which impeded his efforts to comply with the state’s
procedural rule.” Madden v. Mooney, 2016 U.S. Dist. LEXIS 176236, at *5
(M.D. Pa. Dec. 21, 2016) (Conner, J.) (citing Murray v. Carrier, 477 U.S. 478, 488
(1986)). “‘Prejudice’ will be satisfied only if he can demonstrate that the outcome
33
of the state proceeding was ‘unreliable or fundamentally unfair’ as a result of a
violation of federal law.” Madden, 2016 U.S. Dist. LEXIS 176236, at *5 (citing
Lockhart v. Fretwell, 506 U.S. 364, 366 (1993)).
“To show a fundamental miscarriage of justice, a petitioner must
demonstrate that he is actually innocent of the crime . . . .” Keller v. Larkins, 251
F.3d 408, 415-16 (3d Cir.), cert. denied, 543 U.S. 973 (2001). This exception is
“concerned with ‘actual innocence.’” Cristin v. Brennan, 281 F.3d 404, 420 (3d
Cir.), cert. denied, 537 U.S. 897 (2002). “Actual innocence means factual
innocence, not legal insufficiency.” Daniels v. Overmyer, 2016 U.S. Dist. LEXIS
71476, at *23-24 (M.D. Pa. June 1, 2016) (Kosik, J.) (citing Bousley v. United
States, 523 U.S. 614, 623 (1998)). “‘[A] petitioner asserting actual innocence . . .
must rely on “reliable evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence”[’] not presented at
trial.” Id. at *24 (quoting Munchinski v. Wilson, 694 F.3d 308, 337-38 (3d Cir.
2012)). “New evidence which tends to undermine the credibility of a witness ‘will
seldom, if ever, make a clear and convincing showing that no reasonable juror
would have believed the hear of [the witness’] account of petitioner’s actions.” Id.
(citing Sawyer v. Whitley, 505 U.S. 333, 349 (1992)). Further, “[i]t is a stronger
showing than that needed to establish prejudice.” Branthafer, 2015 U.S. Dist.
34
LEXIS 126142, at *21. Thus, “[t]his standard ‘does not require absolute certainty
about petitioner’s guilt or innocence’, but it permits review only in the
‘extraordinary case.’” Englert, 2015 U.S Dist. LEXIS 67546, at *17 (quoting
House v. Bell, 547 U.S. 518, 538 (2006)).
In Martinez, the Supreme Court held that, where state law
requires a prisoner to raise claims of ineffectiveness assistance
of trial counsel in a collateral proceeding, rather than on direct
review, a procedural default of those claims will not bar their
review by a federal habeas court if three conditions are met: (a)
the default was caused by ineffective assistance of postconviction counsel or the absence of counsel (b) in the initialreview collateral proceeding (i.e., the first collateral proceeding
in which the claim could be heard) and (c) the underlying claim
of trial counsel ineffectiveness is ‘substantial,’ meaning ‘the
claim has some merit,’ analogous to the substantiality
requirement for a certificate of appealability.
Cox, 757 F.3d at 119 (quoting Martinez, 132 S. Ct. at 1318-20).
Here, Petitioner argues that “a federal court may consider a claim that would
otherwise be procedurally defaulted if a petitioner did not exhaust his claim on
collateral review due to ineffective assistance of counsel.” (Doc. 7, p. 25) (citing
Martinez, 132 S. Ct. at 1311). He states that “[a] petitioner can satisfy the ‘cause’
prong of the two-factor Coleman test if he failed to raise a claim in his collateral
proceedings due to the ineffectiveness of his PCRA counsel; however, that does
not mean that he necessarily satisfies the ‘actual prejudice’ requirement.” (Id. at
35
pp. 25-26) (quoting Martinez, 132 S. Ct. at 1319). Petitioner continues by noting
that “‘[t]o overcome the default, a prisoner meet also demonstrate that the
underlying ineffective assistance of [direct appeal] is a substantial one, which is to
say that the prisoner must demonstrate that the claim has some merit.’” (Doc. 7, p.
26) (second alteration in original).
Petitioner contends that his “insufficient of the evidence claim(s) does fall
within the Martinez exception because his failure to bring the claim was a product
of ineffective assistance of counsel during his collateral proceeding.” (Id.).
According to Petitioner, the “actions by counsel during the Post Conviction
proceeding coupled with PCRA Appeal Counsel’s ineffectiveness for failing to
raise on PCRA Appeal claims of Direct appeal counsel’s ineffectiveness for
failing to properly raise the Insufficient-Evidence claims on concerning all of
[Petitioner’s] convictions.” (Id. at p. 27).
As for prejudice, Petitioner argues that “it is clear that [he] satisfies factors
two, three, and four of the Trevino test.” (Id.). “As for the second factor,”
Petitioner contends, “he was unable to raise the claims of his direct appellate
counsel because of his PCRA Counsel’s ineffectiveness.” (Id.). Petitioner
continues by stating that “[a]s for the third factor, the error took place during
[Petitioner’s] initial PCRA proceeding.” (Id.). “[A]s to the fourth factor,
36
Pennsylvania law required that [Petitioner] raise the ineffectiveness of trial or
appellate counsel claim in PCRA Court instead of direct appeal.” (Doc. 7, p. 27)
(citing 42 Pa. C.S.A. § 9543(a)(2)(ii)).
Petitioner contends that “‘but for’ counsel’s unprofessional errors there was
‘reasonable probability’ that Pennsylvania Superior and/or PA Supreme Court
would have vacated and dismissed [Petitioner’s] convictions for PWID,
Conspiracy to commit PWID, Possession of a Firearm with an Altered Serial
Number and Endangering the Welfare of a Child.” (Id. at pp. 29-30). According
to Petitioner, “[t]hese charges would have been dismissed, if Counsel sufficiently
raised the Jackson claim on direct appeal challenging all of [Petitioner’s]
convictions herein, there causing a waiver and deficient review by the state court.”
(Id. at p. 30). Petitioner contends that “Counsel[’s] deficient performance
‘actually prejudiced’ [Petitioner] because the Jackson Insufficient of the Evidence
claim was not properly factual or legally raised, Counsel action/inaction
contributed to upholding the wrongful guilty verdict against” Petitioner. (Id.).
Petitioner states that “[t]hese actions show actual prejudice; furthermore, the force
and effect of Jackson being raised in the state court proceedings would have
resulted in the convictions being reversed, vacate, dismissal of all or majority of
the charge(s) against” Petitioner. (Id.).
37
The Supreme Court of the United States has held “[a] claim of ineffective
assistance’ . . . generally must ‘be presented to the state courts as an independent
claim before it may be used to establish cause for a procedural default.” Murray v.
Carrier, 477 U.S. 478, 490-92 (1986). The Supreme Court has also held that “an
ineffective-assistance-of-counsel claim asserted as cause for the procedural default
of another claim can itself be procedurally defaulted . . . .” Edwards v. Carpenter,
529 U.S. 446, 453 (2000).
Here, Petitioner presented a number of ineffective assistance claims in his
collateral proceedings. See Pugh, No. 3134 EDA 2013, at p. 3. Specifically, as
noted by the Pennsylvania Superior Court, Petitioner claimed that his trial counsel
was ineffective “for the following reasons: (1) for failing to interview Moss before
questioning him at [Petitioner’s] trial; (2) for failing to call Gonzalez as a witness
at [Petitioner’s] trial; and (3) for preventing [Petitioner] from exercising his right
to testify at trial.” Id. Noticeably absent from his collateral proceeding is a claim
that his direct appeal counsel was ineffective for failing to properly raise a
sufficiency of the evidence claim. See Id.; (Doc. 31-21).
As stated, the Supreme Court established “a ‘narrow exception’ whereby
‘[i]nadequate assistance of counsel at initial review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective
38
assistance at trial.’” Gonzalez v. Superintendent Graterford SCI, 655 F. App’x 96,
100 (3d Cir. 2016) (alteration in original) (quoting Martinez, 132 S. Ct. at 1315).
“When a state requires a prisoner to raise an ineffective-assistance-of-trial-counsel
claim in a collateral proceeding, a prisoner may establish cause for a default of the
[ineffective assistance] claim if (i) ‘the state courts did not appoint counsel in the
initial-review collateral proceeding,’ or (ii) ‘appointed counsel in the initial-review
collateral proceeding . . . was ineffective under the standards of Strickland v.
Washington . . . .’” Id. (emphasis in original) (quoting Martinez, 132 S. Ct. at
1318).
Here, as noted above, Petitioner appears to concede that he has procedurally
defaulted his sufficiency of the evidence claim concerning his conviction for, inter
alia, PWID and possession of a firearm with an obliterated serial number.
However, argues that his procedural default should be excused because Martinez
applies. Therefore, Petitioner concludes, his insufficiency of the evidence claim
concerning PWID and possession of a firearm with an obliterated serial number
should be considered on the merits. See (Doc. 32, pp. 3-4). Specifically,
Petitioner contends that he “extensively argues ‘cause’ and ‘actual prejudice’ to
excuse procedural default covered by the four prongs set forth under the T[r]evino
test.” (Id. at p. 3). Petitioner continues by stating that he has “met the burden of
39
proving the Trevino test . . . . [and] [b]ecause the petitioner has produced enough
evidence to satisfy the Martinez . . . exception . . . . [his] 14th Amendment due
process violation under Jackson claim is ‘excused of procedural default.’” (Doc.
32, p. 3). “Because the petitioner plead and proved the ‘cause’ Coleman,
Martinez, and Trevino test” he contends, he has proven, “ultimately, ‘the actual
prejudice’ requirement.” (Id.). In particular, Petitioner states that as for his
insufficiency of the evidence claim his “appellate counsel insufficiently raised the
insufficient evidence claim on direct appeal to the Superior Court of
Pennsylvania.” (Id. at p. 5). Subsequent to the Superior Court’s decision to deny
Petitioner’s appeal, he claims that “appellate counsel refused to file a petition for
allowance of appeal before the Supreme Court of Pennsylvania, after requested to
do so.” (Id.). Petitioner states that in his pro se PCRA petition he “raised claim of
ineffectiveness by direct appeal counsel for failing to raise or preserve the
insufficient evidence claim.” (Id.). Petitioner continues by arguing that he “has
shown two factors: ‘good cause for his default and actual prejudice resulting from
the alleged legal violation.” (Id.) (citing Coleman, 501 U.S. at 748). “Thus,”
Petitioner concludes, his PCRA counsel “failed to exhaust Jackson claim.” (Id.)
(citing Coleman, 501 U.S. at 748).
Petitioner is apparently making an attempt to excuse the procedural default
40
of his Jackson claims by pointing to Martinez. “[I]mportantly,” however, “in order
to exhaust a claim, ‘state prisoners must give the state courts one full opportunity
to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.’” Mayer v. Attorney Gen. of the State of Pa.,
2016 U.S. Dist. LEXIS 89549, at *4-5 (W.D. Pa. July 8, 2016) (quoting
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). “In Pennsylvania, this
requirement means that a petitioner in a non-capital case must have presented
every federal constitutional claim raised in his habeas petition to the Superior
Court of Pennsylvania either on direct or PCRA appeal.” Id. at *5 (citing Lambert
v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004)).
Recently, the United States Court of Appeals for the Third Circuit stated
that:
Pursuant to the Supreme Court’s decision in Martinez v. Ryan,
counsel’s failure to raise an ineffective assistance claim on
collateral review may excuse a procedural default if: “(1)
collateral attack counsel’s failure itself constituted ineffective
assistance of counsel under Strickland, and (2) the underlying
ineffective assistance claim is a ‘substantial one.’”
Bey, 856 F.3d at 237-38 (internal footnotes omitted). Initially, thus, the question
is whether Martinez applies to Petitioner’s claim of ineffective assistance of his
direct appeal counsel. As noted, Petitioner is claiming that the alleged error was
41
committed by his PCRA counsel when he failed to raise an ineffective-assistance
claim before the PCRA court for counsel’s failure to properly raise the sufficiency
of the evidence claim during Petitioner’s direct appeal. See (Doc. 32, pp. 3-4).
In Robertson v. Pa. Attorney Gen., 2014 U.S. Dist. LEXIS 141871 (M.D.
Pa. Oct. 3, 2014) (Nealon, J.), the Undersigned discussed the applicability of
Martinez to the petitioner’s claim that he received ineffective assistance during
collateral review because his PCRA counsel failed to argue the petitioner’s direct
appeal counsel provided constitutionally defective representation. Id. at *20-21.
The Undersigned determined that the petitioner could not rely on Martinez to
overcome the procedural default for those claims concerning ineffective assistance
of direct appeal counsel because “Martinez does not apply to allegations that
PCRA counsel was ineffective in advancing the claim that direct appeal counsel in
the state courts rendered constitutionally defective representation.” Id.
Since, the Undersigned’s decision in Robertson, the majority opinion
remains that Martinez does not apply to claims of ineffective assistance of direct
appeal counsel. Specifically, in Bush v. Giroux, 2016 U.S. Dist. LEXIS 122932
(W.D. Pa. Sept. 12, 2016), the United States District Court for the Western District
of Pennsylvania discussed the petitioner’s reliance on Martinez. Id. at *31-33.
According to the court, “[t]he [p]etitioner relies upon Martinez to establish ‘cause’
42
for his default, but it does not assist him.” Bush, 2016 U.S. Dist. LEXIS 122932,
at *32. The court noted that the petitioner’s claim was “a claim that direct appeal
counsel was ineffective, and Martinez’s limited holding only applies to assist a
habeas petitioner overcome the default of a claim that trial counsel was
ineffective.” Id. (citing Martinez, 132 S. Ct. at 1319; Brian R. Means, FEDERAL
HABEAS MANUAL § 9B:62, WestlawNext (updated May 2016) (“To date, the vast
majority of circuit courts that have considered the issue have declined to extend
Martinez to claims involving the ineffective assistance of appellate counsel.”).
Similarly, in Richardson v. Wenerowicz, 2017 U.S. Dist. LEXIS 3709
(W.D. Pa. Jan. 9, 2017), it was noted that “Martinez v. Ryan is limited to defaults
in collateral proceedings caused by ineffective counsel at the trial level, not in
appeals.” Id. at *26 (citing Norris v. Brooks, 794 F.3d 401, 404-05 (3d Cir. 2015),
cert. denied, 136 S. Ct. 1227 (2016)); see Boggs v. Rozum, 2017 U.S. Dist. LEXIS
2322, at *24 (W.D. Pa. Jan. 5, 2017) (citing Norris, 794 F.3d at 404-05); Greene v.
Link, 2016 U.S. Dist. LEXIS 167615, at *12 (E.D. Pa. Nov. 30, 2016); Jordan v.
Rozum, 2016 U.S. Dist. LEXIS 136733, at *13-19 (E.D. Pa. Oct. 3, 2016);
LeBlanc v. Trice, 2016 U.S. Dist. LEXIS 100392, at *20-21, adopted by, 2016
U.S. Dist. LEXIS 171188 (E.D. Pa. Dec. 9, 2016); Williams v. Sauers, 2014 U.S.
Dist. LEXIS 182386, at *40, adopted by, 2015 U.S. Dist. LEXIS 22395 (E.D. Pa.
43
Feb. 25, 2015); House v. Warden, 2015 U.S. Dist. LEXIS 96882 (M.D. Pa. July
24, 2015) (Kosik, J.).
In Allam v. Harry, 2017 U.S. Dist. LEXIS 51286 (M.D. Pa. Apr. 4, 2017)
(Caldwell, J.), Judge Caldwell addressed whether Martinez applied to the “alleged
ineffectiveness of direct-appeal counsel . . . .” Id. at *17. As noted in Allam,
“[a]fter Martinez was decided, the question arose as to whether its holding applied
only to defaulted claims of ineffective assistance of trial counsel, or also to
defaulted claims of ineffectiveness of direct-appeal counsel.” Id. Judge Caldwell
continued by noting that “there is a circuit split on this issue,” and that “[a]lthough
the Third Circuit has yet to weigh in, nearly all of the circuits that have addressed
the issue favor a narrow reading of Martinez.” Id. at *17-18 (citing Long v.
Butler, 809 F.3d 299, 314-15 (7th Cir. 2015), reh’g granted, vacated on other
grounds, 2016 U.S. App. LEXIS 7120 (7th Cir. Apr. 20, 2016); Dansby v. Hobbs,
766 F.3d 809, 833 (8th Cir. 2014); Reed v. Stephens, 739 F.3d 753, 778 n.16 (5th
Cir. 2014); Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013); Banks v.
Workman, 692 F.3d 1133, 1148 (10th Cir. 2012)). “Only the Ninth Circuit has
held that Martinez applies to claims of ineffective assistance of direct-appeal
counsel.” Id. at *18 (citing Ha Van Hguyen v. Curry, 736 F.3d 1287, 1295 (9th
Cir. 2013)). Judge Caldwell also noted that “[c]ourts in this district and in the
44
other districts in Pennsylvania have consistently followed the majority view.”
Allam, 2017 U.S. Dist. LEXIS 51286, at 18 (citing Robertson v. Pa. Attorney
Gen., 2014 U.S. Dist. LEXIS 141871 (M.D. Pa. Oct. 3, 2014) (Nealon, J.); Jordan
v. Rozum, 2016 U.S. Dist. LEXIS 136733 (E.D. Pa. Oct. 3, 2016); Bush, 2016
U.S. Dist. LEXIS 122932 (W.D. Pa. Sept. 12, 2016); Ridgeway v. Folino, 2014
U.S. Dist. LEXIS 188738 (E.D. Pa. Jan. 28, 2014)). Judge Caldwell stated that
“[i]n accord with the vast majority of circuit courts and Pennsylvania district
courts that have addressed this issue, this court finds that Martinez’s narrow
exception applies only to claims of ineffectiveness of trial counsel and does not
extend to claims of ineffectiveness of direct-appeal counsel.” Id. at *18-19. “As
such,” Judge Caldwell concluded, “Petitioner cannot show cause to excuse the
procedural default of the sufficiency-of-the-evidence claim.” Id. at *19; see
Spivey v. Gilmore, 2017 U.S. Dist. LEXIS 84014 (D.N.J. May 31, 2017).
As noted by Judge Caldwell in Allam, contrary to the aforementioned cases
that have narrowed Martinez to exclude ineffective assistance claims against direct
appeal counsel, the United States Court of Appeals for the Ninth Circuit held that
the “Martinez standard for ‘cause applies to all Sixth Amendment ineffectiveassistance claims, both trial and appellate, that have been procedurally defaulted
by ineffective counsel in the initial-review state-court collateral proceeding.” Ha
45
Van Nguyen, 736 F.3d at 1295; see Jordan, 2016 U.S. Dist. LEXIS 136733, at
*17-18 (“The Ninth Circuit stands alone in holding that the ‘Martinez standard for
“cause” applies to all Sixth Amendment ineffective-assistance claims, both trial
and appellate, that have been procedurally defaulted by ineffective counsel in the
initial-review state-court collateral proceeding.’”).
Recently, in Davila v. Davis, 137 S. Ct. 2058 (2017), the Supreme Court of
the United States addressed whether Martinez should be extended to “allow a
federal court to hear a substantial, but procedurally defaulted, claim of ineffective
assistance of appellate counsel when a prisoner’s state postconviction counsel
provides ineffective assistance by failing to raise that claim.” Id. at 2065. The
Court declined to extend Martinez to such cases. Id. According to the Court,
“[o]n its face, Martinez provides no support for extending its narrow exception to
new categories of procedurally defaulted claim.” Id.
Thus, “Martinez is limited to situations in which the underlying
procedurally defaulted claim is one of ineffective assistance of trial counsel.”
Jordan, 2016 U.S. Dist. LEXIS 136733, at *18; see Allam, 2017 U.S. Dist. LEXIS
51286, at *17-19. “Therefore, outside of the limited circumstances identified in
Martinez, Coleman remains the law and the ineffective assistance of postconviction counsel cannot supply cause to excuse the procedural default of an
46
underlying claim of ineffective assistance of appellate counsel.” Jordan, 2016
U.S. Dist. LEXIS 136733, at *19. As a result, Petitioner’s argument that his direct
appeal counsel failed to properly raise his Jackson claim before the Pennsylvania
Superior Court does not establish that he is entitled to the Martinez exception to
procedural default.
Consequently, Petitioner cannot avail himself of the narrow exception
established in Martinez. Therefore, Petitioner’s sufficiency of the evidence claims
concerning his convictions at issue in this section are procedurally barred, and,
thus, will be denied unless he can establish that a miscarriage of justice exception
to procedural default should allow these claims to proceed.
b.
Miscarriage of Justice Exception to Procedural Default
Petitioner claims that his sufficiency of the evidence claim should be
considered on the merits because he is actually innocent of the charge concerning
possession of a firearm with manufacturer’s number altered. Specifically,
Petitioner states that:
in light of Newly-discovered evidence of Affiant’s new
charging document against Johnothon Moss, Moss’s guilty
plea, and sentencing order via a plea of guilt to Possession of
the same exact firearm which resulted in the conviction of
[Petitioner][, which] caused a Miscarriage of justice.
(Doc. 7, p. 37). Also in support of this claim, Petitioner notes that “Moss testified
47
that ‘it was my gun, and not [Petitioner’s].’” (Doc. 7, p. 37). “As a result,”
Petitioner contends, he “was ‘wrongfully convicted’ and ‘actually innocent,’ as
here, subsequently, however, based on newly discovered evidence of Detective
Munch charging Mr. Moss with possession of a firearm with an Altered
Manufacturer’s number,’ and, ultimately, Moss had pleaded guilty to ‘Possession
of a firearm Without a License,’ M1, on January 25, 2012.” (Id.). This new
evidence, Petitioner claims, “is ‘new reliable . . . critical evidence that was not
presented at trial, and shows that no reasonable juror would have voted to find
[Petitioner] guilty beyond a reasonable doubt, to satisfy the standard set forth in
Mills v. Carroll[], 515 F. Supp. 2d 463 (3d Cir. 2007).” (Id. at p. 38).
“‘[A]ctual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar . . . or[] . . .
expiration of the statute of limitations.’” Coleman v. Greene, 845 F.3d 73, 77 (3d
Cir. 2016) (alteration in original) (quoting McQuiggin v. Perkins, 133 S. Ct. 1924,
1928 (2013)); Wright v. Superintendent Somerset SCI, 601 F. App’x 115, 119 (3d
Cir. 2015) (citing McQuiggin, 133 S. Ct. 1924; Schlup v. Delo, 513 U.S. 298, 32729 (1995)). The actual innocence exception “is rare.” Id. Specifically, the
exception only applies if the petitioner establishes that, “‘in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond
48
a reasonable doubt.’” Coleman, 845 F.3d at 77 (quoting McQuiggin, 133 S. Ct. at
1928). Further, the United States Supreme Court has stated that “claims of actual
innocence based on newly discovered evidence have never been held to state a
ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506
U.S. 390, 400 (3d Cir. 1983).
Here, the Court determines that a reasonable juror could vote to find the
petitioner guilty beyond a reasonable doubt, even if they were presented with
Moss’s conviction, because Moss testified during trial that the firearm in question
was, in fact, his handgun. (Doc. 31-17, pp. 119, 120-24). Thus, for all intents and
purposes, the “new” evidence Petitioner points to in support of this claim is not
“new.” See Schlup, 513 U.S. at 324 (“new reliable evidence . . . not presented at
trial.”). Rather, the evidence relied upon by Petitioner is merely the result of the
testimony that Moss provided at Petitioner’s trial. See (Doc. 31-17, pp. 119, 12024). Therefore, Petitioner’s claim that this “new” evidence establishes the he is
entitled to the miscarriage of justice exception to procedural default is without
merit. As a result, Petitioner’s claim of actual innocence based on the evidence
concerning Jonathan Moss will be denied.
49
c.
Merits
As noted above, the Pennsylvania Superior Court decided that Petitioner
waived his sufficiency of the evidence claim concerning his convictions of
possession of intent to deliver cocaine; criminal conspiracy; and possession of
cocaine, drug paraphernalia, and a firearm with an obliterated serial number.
Pugh, No. 1165 EDA 2011, at pp. 4-5. However, although the sufficiency of the
evidence claim was deemed waived as to these convictions, the Superior Court
went on to discuss, in the alternative, that to the extent Petitioner was arguing that
there was insufficient evidence to support his conviction for PWID cocaine, that
claim was without merit. Since the Superior Court addressed the merits of
Petitioner’s sufficiency of the evidence claim concerning PWID, this Court will do
the same.6
6
Under Rolan v. Coleman, 680 F.3d 311 (3d Cir. 2012), the Third Circuit, after
conducting its own review of the petitioner’s attempts to comply with Pennsylvania Rules of
Appellate Procedure 1925(b) and 2119, determined that the petitioner had substantially complied
with both of those rules. Id. at 318-19. As a result, the Third Circuit found that, although the
Pennsylvania Superior Court determined that the petitioner’s claims were waived for failure to
comply with Pennsylvania Rules of Appellate Procedure 1925(b) and 2119, those claims were
not procedurally defaulted and, thus, should be considered on the merits. Id. Here, although
Petitioner does not argue that he substantially complied with Rules 1925(b) and 2119 during his
direct appeal, the Court determines that he failed to substantially comply with both rules as for
his sufficiency of the evidence claim concerning his conviction for possession of a firearm. For
example, as for his attempt to comply with Rule 2119 in regards to his claim that there was
insufficient evidence concerning his conviction for possession of a firearm, that section of
Petitioner’s brief has only two (2) citations to the record and zero (0) citations to case law in
support of his claim. (Doc. 31-18, p. 13). As a result, the Court will not address that claim on the
merits because the Pennsylvania Superior Court’s waiver determination is appropriate for
50
In reaching its determination that Petitioner’s sufficiency of the evidence
claim for PWID lacked merit, the Superior Court stated that “[a]lthough the
cocaine was not found on [Petitioner’s] person, viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, it clearly supported the
jury’s finding that [Petitioner] constructively possessed the cocaine with the intent
to deliver.” Pugh, No. 1165 EDA 2011, at p. 7. The Superior Court continued by
stating that “[t]he evidence established that, immediately after the police
announced the search, Detective Jacobsen observed [Petitioner] push an air
conditioner out of a bedroom window. Shortly thereafter, the police found cocaine
scattered on the ground outside the window, and chunks of cocaine on the
windowsill.” Id. Moreover, the Superior Court noted that “[u]pon entering the
home, the police discovered cocaine in the bedroom [Petitioner] shared with
Gonzalez.” Id. “Based upon this evidence,” the Superior Court concluded, “a
reasonable jury could conclude that [Petitioner] had the ability and intent to
exercise conscious control and dominion over the cocaine.” Id. (citing
Commonwealth v. Hutchinson, 947 A.2d 800, 806 (Pa. Super. Ct. 2008)).
The Superior Court went on to state that “[a]lso inside the bedroom, the
precluding federal habeas review. See Smith v. Cameron, 2017 U.S. Dist. LEXIS 74432, at
*15-18 (M.D. Pa. May 16, 2017) (Jones, J.).
51
police discovered [Petitioner] and Gonzalez, cocaine, three digital scales, large
sums of cash, intact plastic bags, plastic bags with the corners cut off, and a Smith
& Wesson .40 caliber handgun.” Pugh, No. 1165 EDA 2011, at p. 7. “No
paraphernalia for the consumption of crack cocaine was found in the residence.”
Id. Additionally, the Superior Court noted that “Detective Bray, the
Commonwealth’s expert on drug trafficking, testified that the scales found in the
bedroom could be used for weighing drugs.” Id. at p. 8. “He testified further that
the baggies with cut corners were consistent with the creation of packaging for
crack cocaine sales.” Id. “Viewing the foregoing evidence in the light most
favorable to the Commonwealth,” the Superior Court concluded, “it was sufficient
to enable the jury to find every element of the crime of [PWID] cocaine beyond a
reasonable doubt.” Id. (citing Commonwealth v. Palo, 24 A.3d 1050, 1054-55 (Pa.
Super. Ct. 2011)). Therefore, the Superior Court determined that this claim lacked
merit. Id.
Here, Petitioner takes issue with the Superior Court’s determination
concerning his sufficiency of the evidence claim regarding his conviction of
PWID cocaine “because a rational jury could not have inferred that [Petitioner]
‘exercised dominion or control’ of the contraband seized because ‘there is no
evidence to suggest that actually ‘shared the residence with Ms. Gonzalez.’”
52
(Doc. 7, p. 17). The merits of this claim will be addressed below.
Initially, however, the Court must determine whether the Pennsylvania
Superior Court’s decision concerning Petitioner’s sufficiency of the evidence
claim regarding his PWID conviction is entitled to the deferential standard found
in 28 U.S.C. § 2254(d). As discussed above, the Superior Court determined that
his sufficiency of the evidence claim was waived, see Pugh, No. 1165 EDA 2011,
at pp. 4-5, but it also found that this claim “would not merit relief.” Id. at p. 5.
The United States Court of Appeals for the Third Circuit has held that if a
state court considers the merits in the alternative then section 2254(d) deference
applies. Rolan v. Coleman, 680 F.3d 311, 319-21 (3d Cir. 2012); Branthafer, 2015
U.S. Dist. LEXIS 126142, at *15 (“If the state court considers the merits in the
alternative or in a summary fashion, the § 2254(d) deferential standard of review
applies.”) (citing Rolan, 680 F.3d at 319-21; Chadwick v. Janecka, 312 F.3d 597,
605-07 (3d Cir. 2002); Hunterson v. Sabato, 308 F.3d 236, 246 (3d Cir. 2002)).
Here, the deferential standard in section 2254(d) applies to Petitioner’s claims that
his convictions were based upon insufficient evidence because, while the Superior
Court initially determined that such claims were waived, it also summarily found
that such claims “would not merit relief.” Pugh, No. 1165 EDA 2011, at p. 4;
(Doc. 31-19, p. 5).
53
The Court then turns to an analysis of Petitioner’s sufficiency of the
evidence claim concerning his PWID cocaine conviction under 28 U.S.C. §
2254(d)(1), which states that a petition for habeas corpus “shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim 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.”
“A criminal defendant may be convicted only ‘upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged.’” Gerber v. Pa. Attorney Gen., 2010 U.S. Dist. LEXIS 52212, at *12-13
(M.D. Pa. 2010) (Muir, J.) (quoting In re Winship, 397 U.S. 358, 364 (1970)). “A
claim for insufficiency of the evidence in a state conviction is a cognizable claim
in a federal habeas proceeding.” Stanley v. Sobina, 477 F. App’x 952, 954 (3d
Cir. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 320 (1979)). “The clearlyestablished federal law governing [a claim that a] conviction was based on
insufficient evidence is governed by Jackson[].” Bentley v. Harlow, 2016 U.S.
Dist. LEXIS 32896, at *16 (E.D. Pa. Mar. 15, 2016). “The Supreme Court held
that, when reviewing a petitioner’s challenge to the sufficiency of the evidence,
federal courts must ask ‘whether, after viewing the evidence in the light most
54
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Bentley, 2016 U.S.
Dist. LEXIS 32896, at *16 (emphasis in original) (quoting Jackson, 443 U.S. at
319). The United States Supreme Court has stated that this “inquiry does not
require a court to ‘ask’ itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318-19. “In
fact, we must defer to the jury’s findings regarding the credibility of witnesses, the
resolution of conflicts of evidence, and the drawing of reasonable inferences.”
Bentley, 2016 U.S. Dist. LEXIS 32896, at *17 (citing Jackson, 443 U.S. at 319).
Thus, “[t]he question before us is whether the ‘record evidence could reasonably
support a finding of guilt beyond a reasonable doubt.’” Id. (quoting Jackson, 443
U.S. at 319). “The court is not to make its own subjective determination of guilt
or innocence.” Kling v. Meyers, 2005 U.S. Dist. LEXIS 28972, at *10 (M.D. Pa.
2005) (Kosik, J.) (Jackson, 443 U.S. at 319 n.13). “Federal review of a sufficiency
of the evidence claim under Jackson must be based upon state law, that it, the
substantive elements of the crime as defined by applicable state law.” Gerber,
2010 U.S. Dist. LEXIS 52212, at *13-14 (citing Jackson, 443 U.S. at 324 n.16).
Additionally, “[a]lthough direct evidence may be more probative of a fact,
circumstantial evidence alone may suffice for a finding of guilt beyond a
55
reasonable doubt.” Gerber, 2010 U.S. Dist. LEXIS 52212, at *13 (citing Jackson,
443 U.S. at 324-25; citing Fed. Power Comm’n v. Fla. Power & Light Co., 453
U.S. 453, 469 n.21 (1972)).
The first question is whether the Pennsylvania Superior Court’s adjudication
of Petitioner’s sufficiency of the evidence claims was contrary to Jackson. See 28
U.S.C. § 2254(d)(1). The Superior Court identified the following as the standard
governing Petitioner’s sufficiency of the evidence claim:
“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
trier 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.”
Pugh, No. 1165 EDA 2011, at p. 6 (alterations in original) (quoting
56
Commonwealth v. Palo, 24 A.3d 1050, 1054-55 (Pa. Super. Ct. 2011)).
Petitioner concedes that “the Superior Court described the proper standard
for review as the same as Jackson.” (Doc. 7, p. 14). The Court agrees.
Specifically, “Pennsylvania’s standard [concerning an insufficient evidence claim]
is consistent with Jackson.” Rainey, 2016 U.S. Dist. LEXIS 78931, at *9.
Consequently, the question then becomes whether the Pennsylvania
Superior Court’s adjudication of Petitioner’s sufficiency of the evidence claim was
an unreasonable application of Jackson. See 28 U.S.C. § 2254(d)(1). “A state
court decision is ‘an unreasonable application of’ clearly established federal law if
it ‘correctly identifies the governing legal rule but applies it unreasonably to the
facts of a particular prisoner’s case.’” Eley v. Erickson, 712 F.3d 837, 846 (3d
Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 362, 407-08 (2000)). “We may
not grant habeas relief merely because we believe that ‘the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.’” Id.
(quoting Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)). “Rather, that application
must be objectively unreasonable.” Renico, 130 S. Ct. at 1862. “Thus, ‘even a
strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.’” Eley, 712 F.3d at 846 (quoting Harrington v. Richter, 131 S. Ct.
770, 786 (2011)).
57
Here, Petitioner was not found with the contraband in question on his
person. Rather, to obtain a conviction for PWID the Commonwealth had to
establish Petitioner’s constructive possession of the contraband. “When
contraband is not found on the defendant’s person, constructive possession can be
established by showing the defendant had ‘power to control the contraband and
the intent to exercise that control.’” Young v. Piazza, 2009 U.S. Dist. LEXIS
13772, at *18 (E.D. Pa. 2009) (quoting Commonwealth v. Haskins, 677 A.2d 328,
330 (Pa. Super. Ct. 1996)). “The fact that another person may have had control
and access does not eliminate the defendant’s constructive possession.” Haskins,
677 A.2d at 330. “‘Constructive possession may be proved by circumstantial
evidence,’ and ‘the requisite knowledge and intent may be inferred from
examination of the totality of the circumstances.’” Young, 2009 U.S. Dist. LEXIS
13772, at *18 (quoting Haskins, 677 A.2d at 330).
In the context of discussing “constructive possession,” the United States
Court of Appeals for the Third Circuit has stated that in Pennsylvania
“[o]wnership of a residence is ‘an important factor in establishing dominion or
control over the contraband [found in the residence].’” Ginter v. Skahill, 298 F.
App’x 161, 164 (3d Cir. 2008) (quoting Jackson v. Byrd, 105 F.3d 145, 149 (3d
Cir. 1997)). However, “[t]he mere fact that [the petitioner] did not own the house,
58
nor was it established that he had keys to it, does not defeat a finding of
constructive possession, especially in light of the evidence discussed above.”
Smith v. Lamas, 2014 U.S. Dist. 59345, at *36 (E.D. Pa. Mar. 25, 2014) (citing
Commonwealth v. Gilchrist, 386 A.2d 603 (1978)), adopted by, 2014 U.S. Dist.
LEXIS 58369 (E.D. Pa. Apr. 28, 2014).
“Where the contraband a person is charged with possessing is not found on
the person of the defendant, the Commonwealth is required to prove constructive
possession.” Commonwealth v. Walker, 874 A.2d 667, 677 (Pa. Super. Ct. 2005)
(citing Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super. Ct. 2003), app.
denied, 847 A.2d 1280 (2004)). The Pennsylvania Superior Court defines
constructive possession in the following manner:
Constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely then
not. We have defined constructive possession as “conscious
dominion.” We subsequently defined “conscious dominion” as
“the power to control the contraband and the intent to exercise
that control.” To aid application, we have held that
constructive possession may be established by the totality of
the circumstances.
Id. at 677-78 (quoting Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super.
Ct. 2004)). Further, the Superior Court has “held that circumstantial evidence is
59
reviewed by the same standard as direct evidence–that is that a decision by the
trial court will be affirmed ‘so long as the combination of the evidence links the
accused to the crime beyond a reasonable doubt.’” Walker, 874 A.2d at 678
(quoting Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa. Super. Ct. 2003)).
Based on the evidence identified in the Superior Court’s decision, it did not
make an unreasonable application of Jackson. Specifically, the Superior Court
determined that there was sufficient evidence for a rational trier of fact to conclude
beyond a reasonable doubt that Petitioner constructively possessed the cocaine at
issue and did so with the intent to deliver the substance to another person. As
stated by the Superior Court, “[a]lthough the cocaine was not found on
[Petitioner’s] person, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, it clearly supported the jury’s finding that
[Petitioner] constructively possessed the cocaine with the intent to deliver.” Pugh,
No. 1165 EDA 2011, at p. 7. The Superior Court noted that “[t]he evidence
established that, immediately after the police announced the search, Detective
Jacobsen observed [Petitioner] push an air conditioner out of a bedroom window.”
Id. “Shortly thereafter, the police found cocaine scattered on the ground outside
the window, and chunks of cocaine on the windowsill.” Id. The police then found
“cocaine in the bedroom [Petitioner] shared with Gonzalez.” Id. “Based on this
60
evidence,” the Superior Court found, “a reasonable jury could conclude that
[Petitioner] had the ability and intent to exercise conscious control and dominion
over the cocaine.” Pugh, No. 1165 EDA 2011, at p. 7 (citing Commonwealth v.
Hutchinson, 947 A.2d 800, 806 (Pa. Super. Ct. 2008)). Additionally, the Superior
Court also noted that “inside the bedroom, the police discovered [Petitioner] and
Gonzalez, cocaine, three digital scales, large sums of case, intact plastic bags,
plastic bags with the corners cut off, and a Smith and Wesson .40 caliber
handgun.” Id. Further, “[n]o paraphernalia for the consumption of crack cocaine
was found in the residence.” Id.
The Superior Court also pointed to the testimony of Detective Bray in
support of its determination that there was sufficient evidence to support
Petitioner’s conviction for PWID cocaine. Specifically, the Superior Court noted
that Detective Bray “testified that the scales found in the bedroom could be used
for weighing drugs” and that “the baggies with cut corners were consistent with
the creation of packaging for crack cocaine sales.” Id. at p. 8.
“Viewing the foregoing evidence in the light most favorable to the
Commonwealth, [the Superior Court] conclude[d] that it was sufficient to enable
the jury to find every element of the crime of [PWID] cocaine beyond a reasonable
doubt.” Id. This was not an unreasonable application of Jackson. See Walker,
61
874 A.2d at 677-78 (citing Commonwealth v. Miley, 460 A.2d 778, 784 (Pa.
Super. Ct. 1983); Commonwealth v. Nelson, 582 A.2d 1115, 1119 (Pa. Super. Ct.
1990); Commonwealth v. Santiesteban, 552 A.2d 1072, 1074-75 (Pa. Super. Ct.
1988)); see also Smith, 2014 U.S. Dist. LEXIS 59345, at *35-36 (“The mere fact
that Petitioner did not own the house, nor was it established that he had keys to it,
does not defeat a finding of constructive possession, especially in light of the
evidence discussed above.”) (citing Gilchrist, 386 A.2d 603), adopted by, 2014
U.S. Dist. LEXIS 58369. As a result, even if Petitioner’s sufficiency of the
evidence claim concerning his conviction for PWID cocaine was not procedurally
defaulted, it would lack merit because given the large amount of evidence that
supported the inference that Petitioner had constructive possession over the
cocaine and contraband associated with his conviction for PWID cocaine, the
Superior Court’s conclusion that there was sufficient evidence to convict
Petitioner of PWID was neither contrary to, nor an unreasonable application of,
clearly established federal law.
2.
Claims Concerning Ineffective Assistance of Trial Counsel
Petitioner claims that his trial counsel was ineffective for a number of
reasons. Specifically, Petitioner claims that his trial counsel was ineffective for
the following: failing to call a co-defendant to testify on Petitioner’s behalf,
62
adequately prepare for a witness, call Petitioner to testify on his own behalf, and to
object during the Commonwealth’s closing argument. See (Doc. 7). To obtain
relief on these claims, Petitioner must show “that counsel’s performance was
deficient.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “This requires
showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
Importantly, “counsel’s reasonableness is assessed ‘on the facts of the particular
case, viewed as of the time of counsel’s conduct.’” Saranchak, 802 F.3d at 588
(citing Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 2006)). Additionally,
Petitioner must show that “the deficient performance prejudiced the defense.” Id.
“This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. As noted above, in
Deputy, 19 F.3d at 1494, “the United States Court of Appeals for the Third Circuit
also noted that it was not bound by any state court determinations as to a counsel’s
performance.” Rainey, 2016 U.S. Dist. LEXIS 78931, at *17 (citing Deputy, 19
F.3d at 1494). “Unless a defendant makes both showings, it cannot be said that
the conviction or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.” Strickland, 466 U.S. at 687.
Before addressing Petitioner’s ineffective assistance claims, the Court notes
63
that in analyzing Petitioner’s ineffective assistance of counsel claims,7 the
Pennsylvania Superior court did not cite to, nor did it apply, Strickland. Pugh, No.
3134 EDA 2013, at p. 4. Rather, the Superior Court stated that “[i]n reviewing an
allegation of ineffective assistance of counsel, we begin with the assumption that
counsel was effective.” Id. at p. 3 (citing Commonwealth v. Pierce, 527 A.2d 973,
975 (Pa. 1987)). The Superior Court continued by stating that the standard used in
Pennsylvania to determine whether trial counsel was ineffective required
Petitioner to “‘prove that: (1) the underlying claims is of arguable merit; (2)
counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness of
counsel caused the petitioner prejudice.’” Id. at p. 4 (quoting Commonwealth v.
Collins, 957 A.2d 237, 244 (Pa. 2008)). The Superior Court continued by stating
that “[t]he failure by the petitioner ‘to satisfy any one of the three prongs of the
test for ineffectiveness requires rejection of the claim.’” Id. (quoting Collins, 957
A.2d at 244). “Collins . . . held that ineffectiveness claims should be evaluated
pursuant to the standard announced in Commonwealth v. Pierce, 515 Pa. 153, 527
A.2d 973 (1987), which adapts the two-part test established by the United States
Supreme Court in Strickland[,] 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
7
Notably, as discussed in more detail below, Petitioner has failed to establish that he
argued before a state court that his trial counsel was ineffective for failing to object during the
Commonwealth’s closing argument.
64
(1984), but then separates the test into three-parts.” Bell v. Jones, 2011 U.S. Dist.
LEXIS 29735, at *9 (E.D. Pa. Mar. 22, 2011). According to the United States
Court of Appeals for the Third Circuit, “Pennsylvania’s test for assessing
ineffective assistance of counsel claims is not contrary to Strickland.” Jacobs v.
Horn, 395 F.3d 92, 106 n.9 (3d Cir. 2005) (citing Werts v. Vaughn, 228 F.3d 178,
204 (3d Cir. 2000)). Thus, the test employed by the Superior Court in addressing
Petitioner’s ineffective assistance of counsel claims was not “contrary to”
Strickland. Therefore, the Court will turn to whether the Superior Court made an
“unreasonable application” of federal law or reached an “unreasonable
determination of the facts” as to any of the ineffective assistance of counsel claims
raised by Petitioner during his appeal.
a.
Whether Petitioner’s Trial Counsel was Ineffective for Failing
to Call Co-Defendant to Testify
As noted, Petitioner claims that his right to effective assistance of counsel
under the Sixth Amendment of the United States Constitution was violated when
his trial counsel failed to call Ms. Gonzalez, a co-defendant, as a witness. (Doc. 7,
p. 36). Petitioner states that his “[t]rial counsel, Mr. Vito, however, testified that
Ms. Gonzalez told him that ‘[Petitioner] was not a resident at the premise searched
by the police.’” (Id.). Petitioner claims that his trial counsel also “conceded that
65
the premise searched by the police was indeed ‘leased to Aracelis Gonzalez.”
(Doc. 7, p. 36). According to Petitioner, Ms. Gonzalez “would have testified that
all of the items seized by police belonged to her and [Petitioner].” (Id.).
Additionally, Petitioner claims that Ms. Gonzalez’s testimony “would have
corroborated with Moss’s testimony that the ‘Smith and Wesson 40 caliber
handgun with an Altered Manufacturer’s number’ belonged to Moss, and, thus,
[Petitioner] had ‘no involvement in possession with a firearm with an Altered
Manufacturer’s Number.’” (Id. at pp. 36-37). Petitioner claims that “[t]his is
central to [his] claim of innocence on the offense(s): PWID , Conspiracy to PWID,
and Possession of a firearm with an Altered Manufacturer’s Number.” (Id. at p.
37).
i.
Exhaustion
Petitioner raised the claim of ineffective assistance of trial counsel for
failing to call Gonzalez as a witness during his initial PCRA proceedings. See
(Doc. 31-21, pp. 20, 22). The PCRA court denied that particular claim. (Id. at p.
22). Petitioner appealed the denial of his PCRA petition to the Pennsylvania
Superior Court. As part of that appeal, Petitioner challenged the PCRA court’s
determination that his trial counsel was not ineffective for failing to call Gonzalez
as a witness during trial. See (Id. at pp. 35-36). The Superior Court rejected
66
Petitioner’s claim that his trial counsel was ineffective “for failing to call
Gonzalez, a co-defendant in this case, as a witness,” and affirmed the PCRA
court’s denial of that claim. Pugh, No. 3134 EDA 2013, at p. 5. As a result,
Petitioner properly exhausted this ineffective assistance of counsel claim.
ii.
Merits
In addressing Petitioner’s claim that his trial counsel was ineffective for
failing to call a co-defendant to testify, the Superior Court “agree[d] with the
PCRA court’s conclusion that trial counsel was not ineffective for failing to call
Gonzalez as a witness at trial.” Id. In reaching this determination, the Superior
Court found that Petitioner had “not proven that Gonzalez’s testimony, had trial
counsel called her as a witness, would have been beneficial to him under the
circumstances of this case.” Id. at p. 6. The Superior Court did note that “[a]t the
hearing on [Petitioner’s] PCRA petition, trial counsel testified that Gonzalez had
told him that [Petitioner] did not reside at her apartment where the firearm and
drugs were found, but rather that [Petitioner] ‘had some belongings there . . . [and]
that he would make, for lack of [a] better term, guest appearances there
periodically[.]’” Id. (alterations in original). Nevertheless, the Superior Court
concluded that Petitioner did not provide an “explanation as to how this testimony
would have been beneficial to him at trial.” Id. Therefore, the Superior Court
67
determined, this claim was meritless. Pugh, No. 3134 EDA 2013, at p. 6.
“An evaluation of the failure on the part of defense counsel to call witnesses
falls squarely within the first prong of Strickland, which pertains to whether the
attorney made his tactical decisions ‘in the exercise of reasonably professional
judgment.’” Bowen v. Blaine, 243 F. Supp. 2d 296, 311 (E.D. Pa. 2003) (quoting
Strickland, 466 U.S. at 690; citing Duncan v. Morton, 256 F.3d 189, 201 (3d Cir.
2001)). “Where, as here, the petitioner claims that his counsel had been
ineffective for failing to call potentially important exculpatory witnesses, the
assessment of trial counsel’s judgment requires another layer of deference: we are
‘required not simply to give [the] attorney[] the benefit of the doubt, but to
affirmatively entertain the range of possible reasons [petitioner’s] counsel may
have had for proceeding as [he] did.’” Branch v. Sweeney, 758 F.3d 226, 235 (3d
Cir. 2014) (alterations in original) (quoting Cullen v. Pinholster, 131 S. Ct. 1388,
1407 (2011)). “Thus, the nexus of the AEDPA and Strickland compels us to be
‘doubly deferential,’ and ‘give[] both the state court and the defense attorney the
benefit of the doubt.’” Id. (quoting Burt v. Titlow, 134 S. Ct. 10, 13 (2013)).
As noted by the Respondent and the PCRA court, Gonzalez entered into a
plea of guilty to charges stemming from the circumstances that resulted Petitioner
being charged and convicted. Specifically, the PCRA court stated that “Ms.
68
Gonzalez was a co-defendant” and that “[b]y the time of [Petitioner’s] trial, she
had taken the Commonwealth’s plea offer.” Pugh, No. CP-45-CR-2090-2009, p. 4
(Monroe Cnty. C.P. filed Oct. 16, 2013). As part of her plea deal, the PCRA
found, she was required to “cooperate fully in the Commonwealth’s investigation
of the matter.” Id.; (Doc. 31, pp. 11-12). According to Respondent, “Ms.
Gonzalez was also arrested and charged at the time of the execution of the search
warrant in the instant matter.” (Doc. 31, p. 11). “Ms. Gonzalez was also similarly
charged, including [PWID], and Conspiracy to commit the same.” (Id.).
Respondent states that “Ms. Gonzalez availed herself of the Commonwealth’s plea
offer and plead guilty to one count of [PWID] a Controlled Substance, cocaine, an
ungraded felony.” (Id. at pp. 11-12). Respondent says that Ms. Gonzalez’s “plea
agreement also required that [she] cooperate fully with the Commonwealth’s
investigation.” (Id. at p. 12). Additionally, outside of his bare assertions, the
PCRA court found that Petitioner did not identify how Ms. Gonzalez’s lack of
testimony prejudiced him. Pugh, No. CP-45-CR-2090-2009, p. 4 (Monroe Cnty.
C.P. filed Oct. 16, 2013).
Thus, based on the foregoing, there is nothing to support Petitioner’s claim
that Ms. Gonzalez was available to testify or would have provided evidence
beneficial to his defense. As a result, Petitioner fails to show how the Superior
69
Court’s decision was unreasonable application of Strickland or an unreasonable
determination in light of the circumstances of the case. Specifically, it was not
unreasonable for the Superior Court to conclude that Petitioner’s ineffective claim
concerning Gonzalez failed because he did not provide an “explanation as to how
this testimony would have been beneficial to him at trial.” Pugh, No. 3134 EDA
2013, at p. 6. Therefore, this claim will be denied because the Superior Court did
not apply Strickland in an unreasonable manner nor did it reach a determination
that is unreasonable in light of the circumstances of this matter.
b.
Whether Petitioner’s Trial Counsel was Ineffective for Not
Sufficiently Preparing a Third-Party Witnesses’ Testimony
i.
Exhaustion
On appeal from the denial of Petitioner’s first PCRA petition, Petitioner
presented his claim that his trial counsel was ineffective for failing to sufficiently
prepare Jonathan Moss as a witness. See Pugh, No. 3134 EDA 2013, at p. 4. The
Pennsylvania Superior Court, in addressing Petitioner’s claim that his trial counsel
was ineffective for failing to interview Jonathan Moss prior to his testimony at
trial, found that this claim lacked merit. Id. at pp. 4-5. As a result, Petitioner’s
claim concerning his trial counsel’s preparation of Jonathan Moss as a witness was
properly exhausted.
70
ii.
Merits
According to the Superior Court, “Moss testified at trial that the firearm
police recovered from the apartment with the serial number removed belonged to
him.” Pugh, No. 3134 EDA 2013, at p. 4. Petitioner argued before the Superior
Court that “had trial counsel interviewed Moss before his trial, he could have
ascertained whether Moss could have provided any relevant information about
whether the drugs and drug paraphernalia found in the apartment near the firearm
belonged to Moss.” Id. The Superior court “agree[d] with the PCRA court’s
conclusion that trial counsel was not ineffective for failing to interview Moss prior
to his testimony at trial.” Id. The Superior Court reasoned that “Moss testified at
[Petitioner’s] trial that he knew nothing about the drugs and drug paraphernalia
found in the apartment at issue in this case.” Id. The Superior Court also noted
that “Moss testified that he was unaware that there was drug dealing taking place
in that apartment.” Id. at pp. 4-5. Also, the Superior Court stated that “Moss did
not testify at the PCRA court hearing and [Petitioner] offered no other evidence to
suggest that Moss in fact possessed any knowledge or information that could have
aided his case (if trial counsel had made such an inquisition).” Id. at p. 5.
Based on the foregoing, the Superior Court determined that “there [was] no
evidence that Moss was the owner of the drugs and drug paraphernalia found near
71
the firearm in the apartment or that Moss would have been willing to testify as
such.” Pugh, No. 3134 EDA 2013, at p. 5. “Thus,” the Superior Court
concluded, Petitioner’s “claim that the trial court erred by finding that trial counsel
was not ineffective for failing to interview Moss prior to his testimony at
[Petitioner’s] trial is without arguable merit.” Id. “Accordingly, because the
failure to satisfy any one of the prongs of the ineffective assistance counsel test
results in the rejection of that claim . . . .” Id.
The Superior Court’s application of the principles established in Strickland
to Petitioner’s claim that his trial counsel was ineffective for failing to properly
prepare Moss as a witness was not unreasonable. As stated, the Superior Court
found that “there [was] no evidence that Moss was the owner of the drugs and
drug paraphernalia found near the firearm in the apartment or that Moss would
have been willing to testify as such.” Id. Petitioner has not established how this
determination was either an unreasonable application of Strickland or an
unreasonable determination of the circumstances of the case. As a result,
Petitioner’s claim that the Superior Court’s decision concerning his claim that his
trial counsel was ineffective for failing to sufficiently prepare Jonathan Moss as a
witness was unreasonable will be denied.
72
c.
Whether Petitioner’s Trial Counsel was Ineffective for Not
Calling Petitioner to Testify
Petitioner claims that his Sixth Amendment right to effective assistance of
counsel was violated when his “trial counsel prevented or interfered with
[Petitioner’s] decision to exercise his Constitutional right to testify at trial.” (Doc.
7, p. 31). Petitioner states that “[i]t is important to note that the trial court failed to
act sua sponte in ordering a waiver colloquy on [Petitioner’s] choice on whether or
not he waive[d] his Constitutional right to testify at the time of trial.” (Id. at p.
32). Also, Petitioner claims that “[t]rial counsel misinformed [Petitioner] that the
prosecution would impeach him at trial on a prior conviction involving a prior gun
conviction back in 2002, if, however, [he] choose to take the witness stand.” (Id.
at p. 31). Petitioner states that he “testified that when [trial counsel] from the first
time he came to visit [Petitioner] in Monroe County [prison] [he] told [trial
counsel] that ‘[he] wanted to testify.’” (Id. at p. 33) (first and third alterations in
original). According to Petitioner, “[t]hat was the first and last time [he] spoke or
saw [his trial counsel].” (Id.). Further, Petitioner states that trial counsel asked
him during the trial whether he wanted to testify, to which Petitioner responded in
the affirmative. (Id.). Petitioner contends that trial counsel, in response to
Petitioner voicing his desire to testify, stated that “‘we [are] not ready to testify . . .
73
, but he said ‘we not ready for me to go testify when we [were] sitting in court at
the time.” (Doc. 7, p. 33) (alterations in original).
Petitioner also states that his trial counsel admitted that Petitioner had
voiced his desire to testify, but also that trial counsel “emphasized, ‘we went back
and forth with it . . . .’” (Id.). Petitioner claims that “[t]aken as a whole, the state
court decision was ‘an unreasonable application under Strickland.’” (Id.). “Thus,
because trial counsel prevented [Petitioner] from exercising his constitutional right
to testify, and, further, he interfered with that right, counsel’s performance did fall
below Strickland’s objective standard of reasonableness.” (Id. at p. 32) (citing
Pennycooke, 65 F.3d at 10; Aikens, 358 F. Supp. at 436).
According to Petitioner, “[t]here is a ‘reasonable probability’ that the result
of the proceedings would have been different, because [Petitioner] would have
testified” to the following: “he was ‘not a resident at [the] apartment,” he did not
“share[] the apartment with Ms. Gonzalez,” “only one single set of clothing was
merely his,” “the object Detective Jocobsen observed [Petitioner] throw out of the
window was ‘a small amount of crack with a straight glass smoking pipe’ because
of being merely a ‘drug user,’” and that he “was merely present, and, there, to have
sex and ‘smoke crack cocaine.’” (Id. at p. 33). Petitioner contends that “[t]his
testimony, if permitted, would [have] exonerated [Petitioner] from the crimes
74
charged except for the charge of possession of a small amount of cocaine . . . .”
(Doc. 7, p. 33). Moreover, Petitioner argues that “[t]hese statements show that,
with [Petitioner’s] testimony, there is a ‘reasonable probability’ that if jury hears
[Petitioner’s] proposed testimony there would not have been a conviction on
charge for” PWID cocaine, conspiracy to commit PWID, Endangering the Welfare
of a Child, and Possession of a Firearm with an Altered Serial Number. (Id. at p.
35). Petitioner also claims that the Pennsylvania Superior Court’s determination
that his trial counsel was not ineffective for failing to call him as a witness was
objectively unreasonable application of Strickland. (Id.).
i.
Exhaustion
Petitioner raised this claim during his initial PCRA proceedings. See (Doc.
31-21, pp. 23-24). The PCRA court considered this claim, but ultimately found
that it was meritless. See (Id.). Petitioner appealed the PCRA court’s denial of his
PCRA petition to the Pennsylvania Superior Court. See (Id. at pp. 37-39). During
that appeal, the Superior Court addressed Petitioner’s claim that his trial counsel
was ineffective “for not allowing [Petitioner] to testify on his own behalf” and
found it to be without merit. Pugh, No. 3134 EDA 2013, at p. 7. Therefore,
Petitioner’s claim that his trial counsel was ineffective for failing to call Petitioner
as a witness was fully exhausted.
75
ii.
Merits
The Superior Court concluded that “the PCRA court did not err by finding
that trial counsel was not ineffective for not allowing [Petitioner] to testify on his
own behalf.” Pugh, No. 3134 EDA 2013, at p. 7. The Superior Court noted that
“[a]t the PCRA hearing, trial counsel testified that he and [Petitioner] had multiple
conversations about whether [Petitioner] should testify.” Id. “Trial counsel
explained that he advised [Petitioner] not to testify because he did not want the
prosecutor to cross-examine him regarding his prior gun charges or the
circumstances surrounding the instant case.” Id. The Superior Court stated that
“[t]rial counsel testified that it was his conscious trial strategy not to call
[Petitioner] as a witness because he did not believe testifying was going to be in
[Petitioner’s] best interest.” Id. According to the Superior Court, “[t]rial counsel
also stated that [Petitioner] did not insist on testifying and instead deferred to his
judgment.” Id. The Superior Court went on to state that “[c]onversely,
[Petitioner] testified that he told trial counsel that he wanted to testify because he
could explain the circumstances surrounding his prior gun charge and why he was
innocent in this case.” Id.
The Superior Court went on to find “no error with the PCRA court’s
determination” that the trial counsel’s strategy was “reasonable . . . .” Id. at pp. 876
9. As a result, the Superior Court “concluded that the trial counsel was not
ineffective.” Pugh, No. 3134 EDA 2013, at pp. 8-9. The Superior Court noted
that “[t]rial counsel’s testimony, which the trial court found credible, indicates that
he discussed with [Petitioner] on multiple occasions whether [Petitioner] should
testify.” Id. at p. 9. Moreover, the Superior Court went on to state that “[t]rial
counsel’s reasons for advising [Petitioner] not [to] testify, i.e., that the prosecutor
would cross-examine [Petitioner] about his prior gun charge and the circumstances
surrounding this case, were indicative of a reasonable trial strategy.” Id.
Additionally, the Superior Court found, Petitioner “provided no evidence that trial
counsel interfered with [Petitioner’s] freedom to testify or gave [Petitioner]
specific advice so unreasonable as to vitiate a knowing and intelligent decision by
[Petitioner] not to testify in his own behalf.” Id. “Therefore,” the Superior Court
concluded, Petitioner “has failed to sustain his burden of establishing ineffective
assistance of counsel in this regard.” Id.
“‘The Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984)] standard is applicable when a petitioner claims his attorney was
ineffective by denying him his constitutional right to testify.’” Palmer v.
Hendricks, 592 F.3d 386, 394 (3d Cir. 2010) (alterations in original) (quoting
Matylinsky v. Budge, 577 F.3d 1083, 1097 (9th Cir. 2009)). As part of the
77
Strickland standard, Petitioner must “‘show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Johnson v. Fisher, 2016 U.S. Dist. LEXIS 127800, at *20
n.14 (E.D. Pa. Sept. 20, 2016) (quoting Palmer, 592 F.3d at 394). “To prevail on
an ineffective assistance claim premised on trial counsel’s alleged refusal to allow
a client to testify, the petitioner must do more than just assert that his lawyer
refused to allow him to testify.” Gray v. Gilmore, 2016 U.S. Dist. LEXIS 76999,
at *44 (M.D. Pa. June 14, 2016) (Munley, J.). “‘It is extremely common for
criminal defendants not to testify’ and a defendant merely claiming that he was
denied the right to testify in his own defense is thus ‘too facile a tactic to be
allowed to succeed.’” Id. (quoting Underwood v. Clark, 939 F.2d 473, 475 (7th
Cir. 1991)). “[I]n a subsequent collateral attack on the conviction the defendant
must produce something more than a bare, unsubstantiated, thoroughly selfserving, and none too plausible statement that his lawyer (in violation of
professional standards) forbade him to take the stand.” Underwood, 939 F.2d at
476.
Here, there is nothing unreasonable in the Superior Court’s decision to deny
Petitioner’s claim that his trial counsel was ineffective in not calling Petitioner to
testify on his own behalf. See Gray, 2016 U.S. Dist. LEXIS 76999, at *45-47.
78
The Superior Court found that “the PCRA court did not err by finding that trial
counsel was not ineffective for not allowing [Petitioner] to testify on his own
behalf.” Pugh, No. 3134 EDA 2013, at p. 7. In support, the Superior Court noted
that “[a]t the PCRA hearing, trial counsel testified that he and [Petitioner] had
multiple conversations about whether [Petitioner] should testify.” Id. The
Superior Court stated that “[t]rial counsel explained that he advised [Petitioner]
not to testify because he did not want the prosecutor to cross-examine him
regarding his prior gun charges or the circumstances surrounding the instant case.”
Id. Additionally, the Superior Court noted that “[t]rial counsel testified that it was
his conscious trial strategy not to call [Petitioner] as a witness because he did not
believe testifying was going to be in [Petitioner’s] best interest.” Id. at p. 8.
According to the Superior Court, “[t]rial counsel also stated that [Petitioner] did
not insist on testifying and instead deferred to his judgment.” Id.
As stated by the Superior Court, the PCRA court found “trial counsel’s
testimony regarding the aforementioned advice he gave [Petitioner] to be
credible.” Id. The Superior Court noted that “[t]he PCRA court also found that
[Petitioner] ‘has not advanced any argument as to why [trial counsel]’s advice to
testify was “so unreasonable as to vitiate a knowing and intelligent decision not to
testify on his own behalf.”’” Id. (second alteration in original). “Therefore,” the
79
Superior Court concluded, “the PCRA court found trial counsel’s strategy
reasonable, and as a result, concluded that trial counsel was not ineffective.”
Pugh, No. 3134 EDA 2013, at p. 8.
The Superior Court found “no error with the PCRA court’s determination.”
Id. at p. 9. The Superior Court noted that “[t]rial counsel testified that it was his
conscious trial strategy not to call [Petitioner] as a witness because he did not
believe testifying was going to be in [Petitioner’s] best interest.” Id. at p. 8.
Further, “[t]rial counsel also stated that [Petitioner] did not insist on testifying and
instead deferred to his judgment.” Id. The Petitioner, on the other hand, “testified
that he told trial counsel that he wanted to testify because he could explain the
circumstances surrounding his prior gun charge and why he was innocent in this
case.” Id.
The Superior Court noted that “[t]rial counsel’s testimony, which the trial
court found credible, indicates that he discussed with [Petitioner] on multiple
occasions whether [Petitioner] should testify.” Id. As a result, the Superior Court
found that “[t]rial counsel’s reasons for advising [Petitioner] not testify, i.e., that
the prosecutor would cross-examine [Petitioner] about his prior gun charge and the
circumstances surrounding this case, were indicative of a reasonable trial
strategy.” Id. “Moreover,” the Superior Court noted, Petitioner “has provided no
80
evidence that trial counsel interfered with [Petitioner’s] freedom to testify or gave
[Petitioner] specific advice so unreasonable as to vitiate a knowing and intelligent
decision by [Petitioner] not to testify in his own behalf.” Pugh, No. 3134 EDA
2013, at p. 9. As a result, the Superior Court affirmed the PCRA court’s denial of
this ineffective assistance claim because Petitioner “has failed to sustain his
burden of establishing ineffective assistance of counsel in this regard.” Id.
Notably, the “AEDPA endows a state tribunal’s findings of fact with a
‘presumption of correctness,’ and this presumption extends ‘to the factual
determinations of state trial and appellate courts.’” Williams, 637 F.3d at 204
(quoting Duncan, 256 F.3d at 196). “To overcome the presumption, a habeas
petitioner must proffer clear and convincing evidence to show that a factual
determination is ‘objectively unreasonable in light of the evidence presented in the
state-court proceeding.’” Id. (quoting Miller-El, 537 U.S. at 340). Here, the
PCRA court credited trial counsel’s testimony over Petitioner’s. Pugh, No. 3134
EDA 2013, at p. 8. Specifically, the PCRA court found that “it is apparent that
[Petitioner] decided not to testify, after receiving advice from counsel and that this
was a reasonable trial strategy at the time.” Pugh, No. CP-45-CR-2090-2009, at p.
5 (Monroe Cnty. C.P. filed Oct. 16, 2013). Specifically, the PCRA court found
that trial counsel “strongly advised [Petitioner] against” testifying, and that
81
Petitioner “took that advice.” Pugh, No. CP-45-CR-2090-2009, at p. 6. The
PCRA court found trial counsel’s “testimony credible, and in accordance with
counsel’s statements and [Petitioner’s] actions at trial.” Id. As stated by the
Superior Court “[t]rial counsel . . . stated that [Petitioner] did not insist on
testifying and instead deferred to his judgment.” Pugh, No. 3134 EDA 2013, at p.
8. The PCRA court also found that had Petitioner testified at trail he “would have
been subject to cross-examination on incriminating evidence offered by other
witnesses during the trial including questions concerning:”
the fact that he was first observed by the police pushing an air
conditioner out the second floor window of the apartment, and
then threw rocks of crack cocaine out the window; crack cocain
found out in the open on the nightstand with numerous “crop”
marks carved into the nightstand, believed by the police to be
from a razor blade used to chop up the crack cocaine; crack
cocaine found on the floor to the left of the bed . . . and to the
right of the bed; the white shorts on the nightstand next to
[Petitioner’s] bed where &1,020 was found in the pocket; $100
which was found between the bed and the boxspring of the bed
[Petitioner] was found in; the nightstand next to the bed where
[Petitioner] was found with the Smith & Wesson .40 caliber
loaded handgun was found (sic); some of the crack was in
triangular “corners” cut from plastic baggies; no drug
paraphernalia for smoking or ingesting drugs was found;
[Petitioner’s] statement to the police that the male clothing in
the bedroom closet was his; $180 in cash found in the pocket of
a man’s jacket in the bedroom closet.
Pugh, No. CP-45-CR-2090-2009, at pp. 5-6 (Monroe Cnty. C.P. filed Oct. 16,
82
2013) (internal citations omitted). These determinations “are precisely the type of
factual determination[s] which, under 28 U.S.C. § 2254, is presumed to be correct
and can be overcome only by clear and convincing evidence from Petitioner.”
Price v. Wynder, 2008 U.S. Dist. LEXIS 8521, 2008 WL 343120, at *15 (E.D. Pa.
Feb. 6, 2008), aff’d, 350 F. App’x 692 (3d Cir. 2009). Petitioner has failed to
meet this burden. Further, as noted by the Superior Court, trial counsel’s advice
that Petitioner not testify was designed to keep the jury from learning of
Petitioner’s prior gun charge. Id. Thus, Petitioner’s proposed testimony would
have opened the door for the Commonwealth to question Petitioner about his prior
gun charge. Id. As a result, based on the circumstances discussed above, the
Superior Court’s decision to affirm the PCRA court’s denial of Petitioner’s claim
that his trial counsel was ineffective for failing to call him to testify on his own
behalf was not an unreasonable application of Strickland, nor was it an
unreasonable determination of the facts of this matter. See Nelson v. Varano,
2015 U.S. Dist. LEXIS 31817, at *21-23 (E.D. Pa. Jan. 13, 2015), adopted by,
2015 U.S. Dist. LEXIS 30924 (E.D. Pa. Mar. 12, 2015). As a result, Petitioner’s
claim that his trial counsel was ineffective for failing to call Petitioner to testify in
his own defense will be denied.
83
d.
Whether Petitioner’s Trial Counsel was Ineffective for Failing
to Object During the Prosecution’s Closing Argument
Finally, Petitioner contends that his Sixth Amendment right to effective
assistance of counsel and his “right to a fair trial” were violated “when trial
counsel failed to object to the prosecutor’s intentional misconduct during closing
arguments to the jury, thereby resulting in a manifest miscarriage of justice.”
(Doc. 7, p. 40). According to Petitioner, the prosecution committed misconduct
during closing arguments when it made the following statements: “‘[t]here’s
people in and out of that place buying rocks of cocaine like theres nothing.
Traffic. Traffic. Traffic. And [Petitioner is] there. [Petitioner] lives there . . .’”;
“‘[i]t’s obvious [Petitioner] lives there because his clothes are hanging in the
closet . . .’”; that Petitioner tried “to distance himself from Aracelis Gonzalez;”
“[y]ou’ve heard ‘she pled guilty to [PWID].’ ‘Bonnie and Clyde.’ Whose clothes
were they? What side of the bed did they sleep on? Moss wasn’t there. ‘It wasn’t
him.’ ‘It’s Bonnie and Clyde.’ They were working together. ‘I’m not saying it
was all him.’ ‘They packaged all this stuff up, ‘sell it,’ and they’d make money.’
‘And they did.’ And it came to an end on December 03, 2009. Convict this man
with [PWID] crack cocaine . . .;” and that Petitioner “‘is a drug dealer.’” (Id. at
pp. 40-41). As noted, Petitioner argues that he was provided ineffective assistance
84
of counsel when his trial counsel failed to object to any of these statements during
the prosecution’s closing argument. (Doc. 7, pp. 40-41).
a.
Exhaustion
Petitioner argues that “Respondent cannot raise the defense of ‘[p]rocedural
default’ on [this claim]” and that “exhaustion should be excusable in light of
Martinez v. Ryan, 132 S. Ct. 1309, 1318-1320 (2012), or because [this claim] is
currently being heard before the PCRA Court.” (Doc. 7, p. 41). According to
Petitioner, for the Court to consider this claim, it must find that Petitioner received
ineffective assistance from his “post-conviction counsel, as well as ineffective
assistance at trial.” (Doc. 32, p. 11) (citing Martinez, 132 S. Ct. at 1318) (quoting
Cox, 757 F.3d at 119, 125). Petitioner contends that his “Post-Conviction counsel
failed to conduct an adequate search of the trial record and thus to present a
constitutional violation, when the petitioner was denied his Sixth Amendment
right to effective assistance of counsel and fourteenth amendment right to a fair
trial.” (Id.). Specifically, Petitioner claims that his “Post-Conviction counsel
failed to expose that trial counsel failed to object to the prosecutor’s intentional
misconduct during closing arguments to the jury, thereby resulting in a manifest
miscarriage of justice.” (Id.). Petitioner concedes that this claim “was not raised
in the initial collateral proceeding.” (Id.). This occurred, according to Petitioner,
85
because his post-conviction counsel “failed to raise or investigate a claim of trial
counsel’s ineffectiveness due to failure to object to the prosecutor’s closing
remarks at trial.” (Doc. 32, p. 11). Petitioner claims that “[a]ny reasonable PCRA
counsel would have asserted a Sixth and Fourteenth Amendment claims of right to
effective assistance of counsel and right to a fair trial.” (Id.).
Additionally, Petitioner claims that he has suffered actual prejudice. (Id. at
pp. 12-13). As noted above, Petitioner claims his rights were violated when the
prosecutor made the following remarks during closing arguments: “(1) ‘You’ve
heard Aracelis Gonzalez pled guilty to [PWID]; (2) referring to petitioner as
‘Bonnie and Clyde’; [] (3) referring to petitioner as ‘a drug dealer’; and (4)
Ordering the jury to ‘convict this man with intent to distribute crack cocaine . . .
.’” (Id. at p. 13). “Furthermore,” Petitioner contends, “the prosecutor misled the
jury and referred to evidence not of record, where the prosecution commented that
‘There’s people in and out of that place buying rocks of cocaine like there’s
nothing. Traffic. Traffic.” (Id.). Petitioner argues that these “actions” were
“objectionable.” (Id.). As a result, due to “trial counsel’s failure to object,”
Petitioner contends that the trial counsel’s “performance” was “deficient under
Strickland.” (Id.). Moreover, Petitioner claims that “in light of the prejudice,
there was reasonable probability, but for, trial counsel’s failure to object to the
86
prosecutor’s remarks during the course of closing argument.” (Doc. 32, p. 14).
Petitioner asserts that his trial counsel “allowed the jury to hear comments by the
prosecutor in which adversely ‘affected the fairness of the trial process,’ thereby
violating the standard set for under Darden v. Wainwright, 477 U.S. at 181,
Donnelly, 416 U.S. at 643.” (Id.). Petitioner continues by contending that the trial
counsel’s failure to object to the aforementioned statements made by the
prosecution during closing arguments prejudiced the defendant “and thus thereby
[was] a violation under the Sixth Amendment of our United States Constitution
under Strickland v. United States, 466 U.S. at 687.” (Id.).
b.
Procedural Default
The Supreme Court of the United States has held “[a] claim of ineffective
assistance’ . . . generally must ‘be presented to the state courts as an independent
claim before it may be used to establish cause for a procedural default.” Murray v.
Carrier, 477 U.S. 478, 490-92 (1986). The Supreme Court has also held that “an
ineffective-assistance-of-counsel claim asserted as cause for the procedural default
of another claim can itself be procedurally defaulted . . . .” Edwards v. Carpenter,
529 U.S. 446, 453 (2000).
In Martinez, the United States Supreme Court stated that:
Allowing a federal habeas court to hear a claim of ineffective
87
assistance of trial counsel when an attorney’s errors (or the
absence of an attorney) caused a procedural default in an
initial-review collateral proceeding acknowledges, as an
equitable matter, that the initial-review collateral proceeding, if
undertaken without counsel or with ineffective counsel, may
not have been sufficient to ensure that proper consideration
was given to a substantial claim. From this it follows that,
when a State requires a prisoner to raise an ineffectiveassistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffectiveassistance claim in two circumstances. The first is where the
state courts did not appoint counsel in the initial-review
collateral proceeding for a claim of ineffective assistance at
trial. The second is where appointed counsel in the initialreview collateral proceeding, where the claim should have been
raised, was ineffective under the standards of Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674
(1984). To overcome the default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit. Cf.
Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154
L.Ed.2d 931 (2003) (describing standards for certificates of
appealability to issue.).
Martinez, 132 S. Ct. at 1318-19. The United States Court of Appeals for the Third
Circuit has stated that:
The Martinez Court made clear, however, that this is a “narrow
exception.” Id. Most importantly, the Court stated that the
exception applies only to attorney error in initial-review
collateral proceedings, not appeals from those proceedings. Id.
at 1320. And the Court clarified that the exception applies only
to cases in which the state formally requires prisoners to raise
claims of ineffective assistance of trial counsel on collateral
review rather than direct appeal. Id. The reason for these
88
caveats, it seems, is that the Court was concerned only about
cases in which the error of a prisoner’s collateral review
attorney results in “no state court at any level” hearing the
prisoner’s claim and the claim being defaulted for purposes of
habeas review in federal court. Id. at 1316. Outside of these
“limited circumstances,” Martinez made clear that Coleman
remains law.
Norris v. Brooks, 794 F.3d 401, 404-05 (3d Cir. 2015). “The Third Circuit has
upheld the application of Martinez to the Pennsylvania criminal procedural
system.” Baker v. Wenerowicz, 2014 U.S. Dist. LEXIS 168787, at *14 (E.D. Pa.
Nov. 4, 2014) (citing Cox, 757 F.3d at 124 n.8). In determining whether
Petitioner’s counsel was ineffective for failing to raise a claim that Petitioner’s
trial counsel was ineffective for failing to challenge the prosecutor’s statements
during closing arguments, “the court must indulge in a strong presumption that
PCRA counsel focused on [the claims raised] ‘for tactical reasons rather than
through sheer neglect.’” Id. at *15 (quoting Yarbough v. Gentry, 540 U.S. 1, 8
(2003); Jones v. Barnes, 463 U.S. 745 (1983)).
As stated, Petitioner claims that his trial counsel was ineffective for failing
to object to the alleged misconduct committed by the prosecution during closing
argument. See (Doc. 7, pp. 40-41). However, this claim was not raised during the
trial, post-trial, direct appeal, initial PCRA proceedings, or PCRA appeal. See
(Doc. 31-21). However, Petitioner did raise this claim in a pro se second PCRA
89
petition.8 (Doc. 31-3, pp. 16-23). Petitioner’s second PCRA petition was
dismissed on May 4, 2015. (Doc. 31-6). Consequently, for the Court to even
address the merits of this claim, Petitioner must show that the exception in
Martinez not only applies, but has been met.
As discussed above, for Martinez to apply, Petitioner must show that:
(a) the default was caused by ineffective assistance of postconviction counsel or the absence of counsel (b) in the initialreview collateral proceeding (i.e., the first collateral proceeding
in which the claim could be heard) and (c) the underlying claim
of trial counsel ineffectiveness is ‘substantial,’ meaning ‘the
claim has some merit,’ analogous to the substantiality
requirement for a certificate of appealability.
Cox, 757 F.3d at 119. Said differently, “[p]roedural default may be excused when
the petitioner can prove both ‘cause’ for the default and ‘actual prejudice’ that
resulted from the failure of the state court to hear the claim.” Glenn v. Wynder,
743 F.3d 402, 409-10 (3d Cir. 2014) (citing Coleman, 501 U.S. at 750). “Under
Martinez, the failure of collateral attack counsel to raise an ineffective assistance
of trial counsel claim in an initial-review collateral proceeding[footnote omitted]
can constitute ‘cause’ if (1) collateral attack counsel’s failure itself constituted
ineffective assistance of counsel under Strickland and (2) the underlying
8
Subsequent to filing his second PCRA petition, Petitioner was appointed counsel.
(Doc. 31-4). His court-appointed counsel then filed an amended second PCRA petition. (Id.).
That petition did not include Petitioner’s pro se claim of prosecutorial misconduct. (Id.).
90
ineffective assistance of trial counsel claim is ‘a substantial one,’ which is to say
‘the claim has some merit.’” Glenn, 743 F.3d at 410 (quoting Martinez, 132 S. Ct.
at 1319).
“When confronted with a claim that a prosecutor’s remarks violated [the due
process] right, we first determine whether those remarks constituted misconduct.”
Gov’t of the Virgin Islands v. Mills, 821 F.3d 448, 456 (3d Cir. 2016) (citing
United States v. Berrios, 676 F.3d 118, 134-36 (3d Cir. 2012); United States v.
Lee, 612 F.3d 170, 194 (3d Cir. 2010)). “If so, we proceed to determine whether
that misconduct ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process,’ Donnelly v. DeChristoforo, 416 U.S. 637,
643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); see also Greer v. Miller, 483 U.S.
756, 765, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987), taking into account ‘the entire
proceeding,’ [United States v.] Liburd, 607 F.3d [339,] 344 [3d Cir. 2010)]
(quoting United States v. Morena, 547 F.3d 191, 194 (3d Cir. 2008)).” Mills, 821
F.3d at 456; see also Woods v. DiGuglielmo, 514 F. App’x 225, 227-28 (3d Cir.
2013) (“‘[The Supreme] Court has recognized that prosecutorial misconduct may
so infec[t] the trial with unfairness as to make the resulting conviction a denial of
due process.’”) (alteration in original) (quoting Greer, 483 U.S. at 765). “‘To
constitute a due process violation, the prosecutorial misconduct must be of
91
sufficient significance to result in the denial of the defendant’s right to a fair
trial.’” Woods, 514 F. App’x at 228 (quoting Greer, 483 U.S. at 765). “It is not
enough to show that a prosecutor’s remarks were inappropriate; rather a reviewing
court must ‘examine the prosecutor’s offensive actions in context and in light of
the entire trial, assessing the severity of the conduct, the effect of the curative
instructions, and the quantum of evidence against the defendant’ to determine if
the misconduct infected the trial with such unfairness as to make the resulting
conviction a denial of due process.” Cruz v. Glunt, 2016 U.S. Dist. LEXIS
134217, at *30-31 (E.D. Pa. Sept. 28, 2016) (citing Moore v. Morton, 255 F.3d 95,
107 (3d Cir. 2001)).
As for Petitioner’s first claim that his trial counsel was ineffective for
failing to object to alleged prosecutorial misconduct, that claim is without merit,
and thus Petitioner’s PCRA counsel’s failure to advance that claim does not
establish cause to excuse the procedural default. In particular, Petitioner argues
that his trial counsel was ineffective because they did not object when the
prosecution stated during closing argument that Petitioner’s co-defendant had
plead guilty to PWID. See (Doc. 31-17, p. 144). Initially, this statement was
supported by the record. Notably, the evidence of the co-defendant’s plea of
guilty was first introduced by Petitioner’s trial counsel during cross-examination
92
of Detective Munch. See (Doc. 31-17, p. 53). As evidenced by Petitioner’s trial
counsel during closing arguments, it was trial counsel’s intention to argue that
Petitioner was merely present in the room with the co-defendant, the actual drug
dealer. (Id. at pp. 129-36). Clearly, the prosecution’s statement during closing
argument concerning evidence that was introduced by Petitioner’s trial counsel in
an effort to establish a theory of the case that was beneficial to Petitioner does not
merit relief. As a result, trial counsel was not constitutionally ineffective by
failing to object to the prosecution’s statement during closing argument that
Petitioner’s co-defendant had plead guilty. Therefore, this claim does not
establish that Petitioner’s PCRA counsel was ineffective for failing to raise this
claim during the initial collateral proceeding, and thus fails to constitute cause to
excuse procedural default.
As for Petitioner’s claim that his trial counsel was ineffective for failing to
object when the prosecution stated during closing argument that Petitioner and codefendant were acting like “Bonnie and Clyde,” that claim also fails to establish
cause to excuse procedural default because it lacks merit. Specifically, taking into
account the entire proceeding Petitioner has not established that the prosecution’s
statement that Petitioner and the co-defendant were acting like “Bonnie and
Clyde” so infected the trial with unfairness as to make the resulting conviction a
93
denial of due process. Therefore, Petitioner’s trial counsel was not ineffective for
failing to object to these statements made by the prosecution during closing
arguments. As a result, this claim does not establish cause to excuse the
procedural default.
Petitioner also claims that habeas relief is warranted because counsel for the
Commonwealth committed misconduct when they labeled Petitioner as a drug
dealer during closing arguments. In particular, the prosecution made the following
statements relevant to this claim during closing arguments: “[i]t’s crazy how many
bags and how much drug dealing was going on. He didn’t know anything about it?
Come on. Come on;” “There’s a lot of drug traffic going on. There’s a lot of
dealing going on, a lot of packaging. Look at this desktop, look how cut up that
desk top is. When you walk in the bedroom, you would see that right up away, the
marred up piece of furniture with residue all over it. There’s an operation.
There’s an agreement to distribute crack cocaine. You walk into the bedroom and
it’s obvious. There’s scales that are on the shelf. Crack cocaine cut up. There’s
packaging materials all over the place. It’s obvious there’s an operation going
on;” and “He’s a drug dealer. They are working together. I’m not saying it was all
him. It was both of them. They agreed. They package all this stuff up, sell it, and
they’d make money. And they did.” (Doc. 31-17, pp. 138-39, 143-144).
94
Petitioner’s counsel was not constitutionally ineffective for failing to object to
these statements made by the prosecution during closing arguments. Specifically,
these statements, taking in consideration the entire proceeding, do not establish
that they so infected the trial with unfairness as to make the resulting conviction a
denial of due process. As a result, this claim does not establish cause to excuse
the procedurally defaulted claim.
Lastly, Petitioner argues that the prosecution committed misconduct during
closing arguments when they directed the jury to convict Petitioner of the crimes
charged. Relevant to this claim appears to be the following statements by the
prosecution during closing argument: (1) “Convict this man with [PWID] crack
cocaine, conspiracy to distribute crack cocaine;” and (2) “As far as the charges
regarding Aracelis Gonzalez’s daughter, either he lived there or he didn’t. You
have an operation where there’s guns, drugs, packaging materials, there’s crack
cocaine all over the place. He’s involved in this packaging. He’s involved in this
narcotics operation. There’s an 11 year old child in that house. All right. That
child is being endangered. This is not an environment for a child. He’s guilty of
these charges. I would ask you come back with a verdict of guilty. Thank you.”
(Doc. 31-17, pp. 144-45).
Notably, the trial court presented a curative instruction during its
95
presentation of the jury instructions. Specifically, the trial court instructed the jury
that “[t]he speeches of counsel are not part of the evidence and you should not
consider them as such.” (Doc. 31-17, p. 148); see Abdullah v. Dallas, 498 F.
App’x 122, 136 n.15 (3d Cir. 2012); Hunte v. Ferguson, 2017 U.S. Dist. LEXIS
10126, at *9-11 (E.D. Pa. Jan. 25, 2017). Further, taking into account the entire
proceeding, Petitioner has not established that the prosecution’s request that the
jury find Petitioner guilty of the crimes charged so infected the trial with
unfairness as to make the resulting conviction a denial of due process. See Fisher
v. Beard, 2007 U.S. Dist. LEXIS 99149, adopted by, 2009 U.S. Dist. LEXIS
70118 (E.D. Pa. Aug. 10, 2009). Moreover, Petitioner’s trial counsel was not
ineffective for failing to object to those statements by the prosecution asking the
jury to find Petitioner guilty of the crimes charged. Hunte, 2017 U.S. Dist. LEXIS
10126, at *10-11 (“counsel’s trial choices are granted considerable deference, and
counsel may well have decided not to object to the statement for tactical
reasons–such as not wanting to draw attention to the remark, or to avoid making
repeated objections during closing arguments.[footnote omitted] The Court thus
cannot say that counsel’s failure to object was constitutionally deficient . . . .”).
As a result, this claim does not establish that his procedurally defaulted claim
should be excused under Martinez.
96
Since the claims that Petitioner’s trial counsel was constitutionally
ineffective for failing to object to alleged prosecutorial misconduct during closing
arguments lack merit, these claims fail to establish that Petitioner is entitled to
relief under Martinez, and, thus, these claims are procedurally defaulted. As a
result, the Court is barred from reaching the merits of these claims.
IV.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a
certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327 (citing Slack v.
McDaniel, 529 U.S. 473, 481 (2000)). Here, there is no basis for the issuance of a
COA. Accordingly, no COA will issue.
“The denial of a certificate of appealability does not prevent [Petitioner]
from appealing the order dismissing his petition so long as he seeks, and obtains, a
certificate of appealability from the court of appeals.” Martz, 2016 U.S. Dist.
97
LEXIS 59078, at *33 (citing FED. R. APP. P. 22(b)(1), (2)).
V.
CONCLUSION
Based on the foregoing, Petitioner’s petition for a writ of habeas corpus,
(Doc. 7), will be denied. Further, a COA will not issue.
A separate Order will be issued.
Date: August 28, 2017
/s/ William J. Nealon
United States District Judge
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