SPADA v. CAMERON et al

Filing 18

MEMORANDUM OPINION & ORDER that the petition for a writ of habeas corpus 1 is DENIED and a certificate of appealability is DENIED as to all claims. The Clerk of Court shall mark this case CLOSED. Signed by Magistrate Judge Susan Paradise Baxter on 2/23/17. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ZACHARY THOMAS SPADA,
Petitioner,
v.
KEN CAMERON,
et. al.,
Respondents.

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Civil Action No. 15-202 Erie

Magistrate Judge Susan Paradise Baxter

OPINION1
Presently before the Court is a petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2254 by Zachary Thomas Spada (the "Petitioner"). For the reasons set forth below, the
petition is denied and a certificate of appealability is denied on all claims.

I.
A.

Relevant Background2
On August 24, 2011, the Petitioner appeared before the Court of Common Pleas of Erie County

to plead guilty to charges filed against him in three criminal cases. Kevin M. Kallenbach, Esquire, was
his attorney. At criminal docket 3079 of 2010, he pleaded guilty to an amended charge of harassment
(he had originally been charged with indecent assault). The factual basis for his plea at this docket
number was his attempt to grab the "vaginal area" of a 16-year-old girl on September 23, 2010. (Plea
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In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a United
States Magistrate Judge conduct proceedings in this case, including entry of a final judgment.
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The Respondents filed the relevant state court records at ECF No. 11 and ECF No. 12.

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Hr'g Tr. at 9-10). At criminal docket 3150 of 2010, he pleaded guilty to one count of terroristic threats
and one count of loitering and prowling around a dwelling for pulling a knife on another victim and
saying to her "[g]et away from me, bitch, or I'm going to shank you[,]" on October 18, 2010. (Id. at 1011). At criminal docket 1385 of 2011, he pleaded guilty to harassment for making repeated threats to
two other victims (a mother and daughter) on March 25, 2011. (Id. at 11).
The Petitioner's sentencing hearing was held on October 13, 2011. He did not appear at the
scheduled time. The court asked Attorney Kallenbach about the Petitioner's whereabouts. The Petitioner
had not contacted Kallenbach to inform him that he would not attend or would be late, and Kallenbach
told the court that the Petitioner had assured his father he would be in attendance. He thought that
perhaps the Petitioner was "frightened that he was unsuccessfully discharged [from his Gaudenzia inpatient stay] and that that would be a factor in his sentencing." (Sentencing Hr'g Tr. at 2). The court
replied that the Petitioner "did receive notice at the time of his plea, and there is no justifiable reason
why he is not here, so we will proceed to sentence him in absentia, and I will issue a bench warrant for
his apprehension." (Id.)
Kallenbach and the prosecutor each made a statement regarding the sentences the court should
impose. (Id. at 3-4). Before imposing the sentences, the court explained:
The Court has considered a number of things here, the Pennsylvania Sentencing Code
and all its factors, the guidelines, and the pre-sentence investigative report which I'm
going to make a part of the record, and I've considered that in its entirety.
Obviously the cases are serious. The one victim impact statement indicates just
how much the one victim was terrorized by [the Petitioner's] activities. [The Petitioner]
has serious problems. Not only are there mental health issues, there's anger management
problems, and the Court is extremely concerned that what we have here is a crime spree
where he either harassed or terrorized individuals, and so he is a clear and present danger
to the community right now until these issues can be brought under control. The Court is
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also concerned because he's not here today, and that as well as the crime spree aspect of
this case leads this Court to believe that these are clearly aggravating factors.
(Id. at 5). The court then imposed the following sentences: 3-12 months for harassment at 1385 of 2011;
3-12 months, consecutively, for harassment at 3079 of 2010; 6-12 months for loitering and prowling at
night, consecutive to the second harassment sentence; and 10-48 months for terroristic threats,
consecutive to the loitering/prowling sentence. It appears that three of the terms imposed were within the
aggravated sentence range.
After the hearing concluded and Kallenbach and the prosecutor had left the courtroom, the
Petitioner arrived with his father. The court informed the Petitioner that he had been sentenced and he
should speak to his attorney about what happened. (Id. at 9-10).
The Petitioner filed a motion to reconsider his sentence, which the court denied. Thereafter, he
filed an appeal with the Superior Court of Pennsylvania, which that court quashed because Kallenbach
did not file a brief. However, the Petitioner's direct appeal rights were subsequently reinstated
nunc pro tunc and William J. Hathaway, Esquire, was appointed to represent him.
The Petitioner, through Attorney Hathaway, filed another motion to reconsider the sentence in
which he contended that the trial court made errors in sentencing him. He did not challenge the trial
court's decision to sentence him in absentia. The court denied that motion in an order dated
August 1, 2012.
Next, the Petitioner, through Attorney Hathaway, filed a direct appeal to the Superior Court in
which he raised issues not relevant to this habeas proceeding. On April 5, 2013, the Superior Court
issued a Memorandum Opinion in which it affirmed the Petitioner's judgment of sentence.
(Commonwealth v. Spada, No. 1321, 1322 and 1323 WDA 2012 (Pa.Super.Ct. Apr. 5, 2013)).
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After his direct appeal concluded, the Petitioner filed a pro se petition for relief under
Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. The PCRA court once
again appointed Attorney Hathaway to be the Petitioner's attorney and he filed a counseled supplement
to the PCRA petition. The Petitioner contended that his trial attorney, Kallenbach, provided him with
ineffective assistance on two grounds that are not relevant to this habeas proceeding. The Petitioner also
argued that he was denied his "absolute right" of allocution when the court sentenced him in absentia.
(2/7/14 Supplement to PCRA Motion at 6).
On March 3, 2014, the PCRA court presided over an evidentiary hearing at which the Petitioner
and Kallenbach testified. The PCRA court denied relief in an opinion and order dated March 18, 2014.
(Commonwealth v. Spada, Nos. 3079 & 3150 of 2010; 1385 of 2011, slip op. (C.P. Erie Mar.18, 2014)).
With respect to the claim that the court erred in sentencing the Petitioner in absentia, the court held:
It is uncontested that the petitioner's sentencing was conducted on October 13, 2011.
Although petitioner asserts that he was only approximately five minutes late, neither the
Court nor counsel [was] aware of his arrival until the sentencing hearing was concluded.
As the record shows, the petitioner's sentencing proceeding began at 8:45 a.m. and was
concluded at 8:55 a.m. See N.T. Sentencing, October 13, 2011. By this time, petitioner's
counsel and the Commonwealth's attorney had left the courtroom. In fact, the only people
remaining in the courtroom were court staff and the court reporter. This Court reopened
the record at 9:02 a.m. when it was advised that the petitioner was present. At that time it
noted that it would not reconvene the proceeding. N.T. Sentencing, October 13, 2011, at
9-10. Even if this Court could have tracked down counsel, it would have disrupted their
schedules, as well as the Court's. Furthermore, the petitioner made no attempt to contact
his attorney, court administration or this Court prior to the sentencing to advise them that
he would be late. As such, the petitioner has failed to show that he is entitled to relief.
(Id. at 8).
On December 18, 2014, the Superior Court issued a Memorandum Opinion in which it affirmed
the PCRA court's decision. (Commonwealth v. Spada, Nos. 592, 593 and 594 WDA 2014, slip op.
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(Pa.Super.Ct. Dec. 18, 2014)). It denied both of the Petitioner's ineffective assistance of trial counsel
claims on the merits. With respect to the Petitioner's claim that the court erred in sentencing him
in absentia, the Superior Court observed that the right to allocution was "perhaps the only right of
substance that [the Petitioner] lost in this instance[.]" (Id. at 8 n.4). However, because the claim was one
that should have been raised on direct appeal, the Superior Court held that it was waived. (Id. at 8, citing
42 Pa.C.S. § 9543(a)(3) (a petitioner is not entitled to PCRA relief if allegation of error was waived) and
Commonwealth v. Jacobs, 900 A.2d 368 (Pa.Super.Ct. 2006) (en banc) (the denial of the right of
allocution does not create a non-waivable challenge to the legality of a sentence)).3
On March 2, 2015, the Petitioner filed another pro se PCRA petition. He contended, inter alia,
that Attorney Hathaway was ineffective for failing to argue in his direct appeal that the court erred in
sentencing him in absentia, thereby "strip[ing]" him "of the right to make allocution." (3/2/15 PCRA
petition at 2). On April 16, 2015, the PCRA court denied this petition as untimely under the one-year
statute of limitations set forth at 42 Pa.C.S. § 9545(b)(1). The Petitioner filed a pro se appeal, which the
Superior Court dismissed on September 18, 2015, for failure to file a brief. (9/18/15 Pa.Super.Ct. Order).
Thereafter, the Petitioner filed with this Court his petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. (ECF No. 1). Under this statute, he is entitled to a writ of habeas corpus if he
demonstrates that he is "in custody in violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a). Errors of state law are not cognizable. See, e.g., Priester v. Vaughn, 382

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For the purposes of the PCRA, "an issue is waived if the petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b).

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F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot 'reexamine state court
determinations on state-law questions.'") (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).
The Petitioner raises two claims for relief. In Claim One, he contends that his due process rights
were violated when he was sentenced in absentia and denied his right to allocution. In Claim Two, he
contends that Attorney Hathaway provided him with ineffective assistance for waiving Claim One by
not raising it in post-trial motions and on direct appeal. The Respondents filed an answer (ECF No. 12)
and the relevant state court records. The Petitioner did not file a reply. LCvR2254(E)(2) ("the petitioner
may file a Reply … within 30 days of the date the respondent files its Answer.").

B.

Legal Analysis
1.

Claim One

The right of allocution is not a right guaranteed by the Constitution. See, e.g., United States v.
Moreno, 809 F.3d 766, 777 (3d Cir. 2016). Rather, it is Rule 704(C)(1) of the Pennsylvania Rules of
Criminal Procedure that gives a criminal defendant the right of allocution. That rules provides that "[a]t
the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or
her behalf and shall afford counsel for both parties the opportunity to present information and argument
relative to sentencing." Pa.R.Crim.Pro. 704(C)(1) (emphasis added). Therefore, to the extent that the
Petitioner challenges the denial of his right to allocution, he is not raising a claim that is cognizable in a
federal habeas action. Scrivner v. Tansy, 68 F.3d 1234 (10th Cir. 1995) (finding allocution raises no
constitutional error cognizable in non-capital federal habeas cases).
To the extent that the petitioner is claiming that his due process rights were violated because he
was sentenced in absentia, that claim is cognizable in a federal habeas action, but it is procedurally
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defaulted because the Superior Court determined that the Petitioner waived it for failing to raise it in his
direct appeal. See, e.g., Coleman v. Thompson, 501 U.S. 722, 730 (1991); Edwards v. Carpenter, 529
U.S. 446, 451 (2000); O'Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting)
(describing the history of the procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72 (1977). A
petitioner who has defaulted a federal habeas claim can overcome the default, thereby allowing federal
court review, if he can demonstrate "cause" for the default, i.e., that some objective factor "external to
the defense" impeded efforts to comply with the state's procedural rule, and "actual prejudice." See, e.g.,
Coleman, 501 U.S. at 750 (emphasis added). See also Murray v. Carrier, 477 U.S. 478, 488, 494
(1986).4
The "cause" that the Petitioner relies upon is Attorney Hathaway's failure to raise Claim One on
direct appeal. A petitioner can establish "cause" if he demonstrates that a default is the result of the
ineffectiveness of direct appeal counsel. However, if this Court were to determine that the Petitioner
established "cause" for the default, it would still have to consider whether he suffered "actual prejudice."
"Most courts of appeals have concluded that if the petitioner can meet the prejudice standard needed to
establish ineffective assistance of counsel under Strickland [v. Washington, 466 U.S. 668 (1984)], then
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A petitioner may also overcome a procedural default of a claim if he can demonstrate a "miscarriage of justice." This
means that a procedural default may be excused if the petitioner presents evidence of "actual innocence" that is "so strong
that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of
nonharmless constitutional error[.]" Schlup v. Delo, 513 U.S. 298, 316 (1995). Where the petitioner pleaded guilty (as in the
instant case), he also must establish his actual innocence not only of the count to which he pleaded guilty, but also the other
charges the government excused in the plea bargaining process. Bousley v. United States, 523 U.S. 614, 623-24 (1998). The
"miscarriage of justice" exception only applies in extraordinary cases where the petitioner demonstrates that a constitutional
violation has probably resulted in the conviction of one who is actually innocent. Schulp, 513 U.S. at 316. There is no
question that this is not the type of extraordinary case in which a petitioner can overcome the default of his claims by way of
the miscarriage of justice exception.

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the prejudice standard under the 'cause and prejudice' showing to excuse a procedural default is also
met." Brian R. Means, FEDERAL HABEAS MANUAL § 9B:74, WestlawNext (database updated May
2016) (citations omitted). "But at a minimum, without Strickland prejudice, there necessarily cannot be
prejudice to overcome the procedural bar." Id. (citations omitted).
This Court must consider in its analysis of Claim Two whether the Petitioner has established that
he was prejudiced by Attorney Hathaway's alleged ineffective assistance in waiving Claim One.
Therefore, this Court will now turn to the merits of Claim Two. For the reasons set forth below, the
Petitioner has not established that he was prejudiced. As a result, he has not overcome his default of
Claim One.

2.

Claim Two5

Pursuant to Strickland v. Washington, 466 U.S. 668 (1984),6 the law presumes that Attorney
Hathaway was effective and the Petitioner must show that his representation fell below an objective
standard of reasonableness. 466 U.S. at 688-89. Strickland also requires that the Petitioner demonstrate
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The Petitioner raised Claim Two in the pro se PCRA petition he filed on March 2, 2015. After the PCRA court
denied it, the Petitioner's abandoned his subsequent appeal to the Superior Court. As a result, he did not give the Superior
Court an opportunity to review the PCRA court's decision, and for that reason he may have procedurally defaulted Claim
Two as well. Nevertheless, because Claim Two can be more efficiently disposed of on the merits, the Court will not address
the more complex issue of whether it is procedurally defaulted.
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Strickland recognized that the Sixth Amendment's guarantee that "[i]n all criminal prosecutions, the accused shall
enjoy the right … to have the Assistance of Counsel for his defence" entails that defendants are entitled to be represented by
an attorney who meets at least a minimal standard of competence. 466 U.S. at 685-87. "[T]he Sixth Amendment does not
guarantee the right to perfect counsel; it promises only the right to effective assistance[.]" Burt v. Titlow, — U.S. —, 134
S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690, 687). Since the Fourteenth Amendment guarantees a criminal
defendant pursuing a first appeal as of right certain "minimum safeguards necessary to make that appeal 'adequate and
effective,'" Evitts v. Lucey, 469 U.S. 387, 392 (1985) (quoting Griffin v. Illinois, 351 U.S. 12, 20 (1956)), including the right
to the effective assistance of counsel, id. at 396, the ineffective assistance of counsel standard of Strickland applies to a claim
that direct appeal counsel was ineffective. See Smith v. Robbins, 528 U.S. 259, 285 (2000); United States v. Cross, 308 F.3d
308, 315 (3d Cir. 2002).

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that he was prejudiced by Attorney Hathaway's alleged deficient performance. This requires a showing
"that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different."7 Id. at 694. As the United States Court of Appeals for the Third
Circuit has explained:
[The Petitioner] "need not show that counsel's deficient performance 'more likely than not
altered the outcome of the case' – rather, he must show only 'a probability sufficient to
undermine confidence in the outcome.'" Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005)
(quoting Strickland, 466 U.S. at 693-94). On the other hand, it is not enough "to show
that the errors had some conceivable effect on the outcome of the proceeding."
Harrington [v. Richter], 131 S.Ct. [770,] 787 [(2011)] (citing Strickland, 466 U.S. at
693). Counsel's errors must be "so serious as to deprive the defendant of a fair trial." Id.
at 787-88 (citing Strickland, 466 U.S. at 687). The likelihood of a different result must be
substantial, not just conceivable. Id.
Brown v. Wenerowicz, 663 F.3d 619, 630 (3d Cir. 2011).
The Petitioner has not met his burden of establishing that he was prejudiced by
Attorney Hathaway's alleged deficient performance. First, he has not demonstrated that there is a
reasonable probability that, if Attorney Hathaway had raised Claim One in post-sentence motions and
then on direct appeal, he would have prevailed on that claim. The Petitioner did not have the opportunity
to make a statement to the sentencing court because he missed his hearing. The Sixth Amendment and
state law provides a criminal defendant with the right to be present at his sentencing hearing, but a
defendant can forfeit that right of he is voluntarily absent. See Wayne R. LaFave 6 Criminal Procedure §
24.2(d) (4th ed.), WestlawNext (database updated Dec. 2016) (citing cases for the proposition that

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The Supreme Court in Strickland also noted that although it had discussed the performance component of an
effectiveness claim prior to the prejudice component, there is no reason for an analysis of an ineffectiveness claim to proceed
in that order. 466 U.S. at 697. Consequently, if it is more efficient to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, this course should be followed. Id.

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"[n]onattendance because of…unforeseen emergency will be considered involuntary, but foreseeable
problems will not."); Pa.R.Crim.Pro. 602(A) ("[t]he defendant's absence without cause at the time
scheduled for the start of trial or during trial shall not preclude proceeding with the trial, including the
return of the verdict and the imposition of sentence."). Thus, in order to prevail on a claim that the court
erred in sentencing him in absentia, the Petitioner would have had to convince the state court that his
absence was involuntary and there was sufficient cause to justify it.8 The Petitioner acknowledged at the
PCRA hearing that he knew the time his sentencing hearing was scheduled to commence. (PCRA Hr'g
Tr. at 14). He stated that he missed it because his "car wouldn't start[,]" (id.; see also id. at 20), but
admitted that he did not call the court, the court administrator, counsel, or anyone else to provide notice
of his circumstances. (Id. at 20). By the time he arrived, the court had already sentenced him and his
attorney and the prosecutor had left. (Id.; see also Sentencing Hr'g Tr. at 9). Under these circumstances,
the Petitioner has not demonstrated that there is a reasonable probability that he would have received
another sentencing hearing had Attorney Hathaway not waived Claim One.
Second, and alternatively, the Petitioner has not demonstrated that there is a reasonable
probability that, had Attorney Hathaway obtained another sentencing hearing for him, the outcome of
that proceeding would have been different from the first. The record shows that the court imposed
aggravated sentences for reasons in addition to the fact that the Petitioner failed to appear at his hearing.

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As set forth above, although the Superior Court denied Claim One because it was waived, the PCRA court
considered it on the merits and was not persuaded by it. (Spada, Nos. 3079 & 3150 of 2010; 1385 of 2011, slip op. at 8). The
PCRA court's decision cuts against the Petitioner's contention that the Superior Court would have vacated his sentence if
Attorney Hathaway had not waived Claim One.

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(Sentencing Hr'g Tr. at 5; Spada, No. 1321, 1322 and 1323 WDA 2012, slip op. at 6). If a second
hearing had been held, those additional circumstances would still have been present.

C.

Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate

review of a district court's disposition of a habeas petition. As codified at 28 U.S.C. § 2253, it provides
that "[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of
the denial of a constitutional right." "When the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability]
should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S.
473, 484 (2000). Where the district court has rejected a constitutional claim on its merits, "[t]he
petitioner must demonstrate that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong." Id. Applying those standards here, jurists of reason would not
find it debatable whether each of the Petitioner's claims should be denied. Accordingly, a certificate of
appealability is denied.

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II.
For the reasons set forth above, the petition for a writ of habeas corpus is denied and a certificate
of appealability is denied on all claims. An appropriate Order follows.

Dated: February 23, 2017

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ZACHARY THOMAS SPADA,
Petitioner,
v.
KEN CAMERON,
et. al.,
Respondents.

)
)
)
)
)
)
)
)

Civil Action No. 15-202 Erie

Magistrate Judge Susan Paradise Baxter

ORDER
AND NOW, this 23rd day of February, 2017, IT IS HEREBY ORDERED that the petition for a
writ of habeas corpus is DENIED and a certificate of appealability is DENIED as to all claims. The
Clerk of Court shall mark this case CLOSED.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

cc:

Notice by ECF to counsel of record and by U.S. mail the Petitioner at his address of record

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