LOWRY v. WENERONICZ et al
Filing
50
ORDER re 4 Petition for Writ of Habeas Corpus filed by ANDRE LOWRY, Clerk is to mark CASE CLOSED. Signed by Magistrate Judge Lisa Pupo Lenihan on 02/13/14. (jer)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDRE C. LOWRY,
Petitioner,
v.
MICHALE WENERONICZ; the
ATTORNEY GENERAL OF THE
COMMONWEALTH OF
PENNSYLVANIA; and the
DISTRICT ATTORNEY OF
ALLEGNEY COUNTY,
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Civil Action No. 11 – 165
Chief Magistrate Judge Lisa Pupo Lenihan
Respondents.
MEMORANDUM ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
I.
CONCLUSION
For the reasons stated herein, the Petition for Writ of Habeas Corpus (ECF No. 4) will be
denied and a certificate of appealability will also be denied.
II.
FACTUAL AND PROCEDURAL HISTORY
Petitioner, Andre Lowry (hereinafter referred to as “Lowry” or “Petitioner”), a state prisoner
currently incarcerated in Graterford, Pennsylvania under an April, 1998 sentence of life
1
imprisonment for first degree murder, has petitioned the Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (the “Petition”). Even affording Petitioner all pro se consideration,
each of his claims is meritless for reasons apparent in the documents of record before this Court.
The facts of the crimes as set forth by the State Court1 are as follows:
On December 20, 1996, Petitioner was involved in an altercation with the murder victim,
Jouron Miller (“Miller”), at Gene and Eileen’s Bar in Braddock, Allegheny County,
Pennsylvania. Earlier that evening Miller was at the bar with David Hawes (“Hawes”) but they
left and walked to the house of Lyon Tinsley (“Tinsley”), Miller’s cousin. There, Miller related
that Petitioner had pulled a gun on him in the men’s room. The three men returned to the bar, as
Miller wanted to confront Petitioner. Miller approached Petitioner and a verbal argument
escalated to mutual pushing. An escalating fight amongst several additional patrons in the
crowded bar then continued into the street. Hawes testified that once outside he walked around
the corner from the bar and after hearing gunshots saw officers apprehend Petitioner and order
him to the ground. Tinsley testified that he was pushed out of the bar by the crowd and Miller
came out shortly thereafter with a bloody nose and followed by Petitioner. Miller and Petitioner
continued to exchange words and, according to Tinsley, Petitioner fired a gun five or six times at
Miller, who fell to the ground.
See Commonwealth’s Answer to Petition for Writ of Habeas Corpus (“Commonwealth’s
Answer”) (ECF No. 21) at 11-17 (citing Jury Trial Transcript). A federal court must accord a
presumption of correctness to a state court’s factual findings, which a petitioner can rebut only
by clear and convincing evidence. 28 U.S.C. § 2254(e).
1
2
At the time of the shooting, approximately 1:25 a.m., Officer Dominic DiLeo (“Officer
DiLeo”) of the Braddock Borough Police Department was on duty in his police vehicle at a red
light at an intersection next to the bar, just down the street from the Braddock Police Station.
Nothing was obstructing his view. He observed six to ten people rapidly exit the bar. He also
saw a group of several black males standing on the sidewalk with the one in the middle – later
identified as Petitioner - wearing a Pittsburgh Steeler jersey with white lettering and the number
“10” on it. Officer DiLeo heard five or six shots and his attention was drawn to Petitioner
because his knees were bent and his body made several “jerking” motions, moving repeatedly in
a manner consistent with absorbing recoil from firing a gun. Petitioner was about ten feet away
from Miller. Officer DiLeo observed Miller fall backwards and someone then holding him.
Officer DiLeo saw Petitioner leave the area quickly.
Officer DiLeo immediately radioed dispatch, advised that shots were fired, and gave a
description of Petitioner and his attire, as identifying the suspected shooter. Officer DiLeo then
immediately went to the victim and noticed two gunshot wounds to Miller’s trunk; Miller was
transported to the hospital and died of his wounds. Officer DiLeo heard over the radio that
Petitioner had been apprehended right around the corner, near the police station. An officer
working in the station heard the call and headed down the street, and saw Petitioner “slowing
down from a run to a fast walk” near a jitney stand. He ordered Petitioner to the ground.
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Petitioner was unarmed.2 Officer DiLeo ran up and identified Petitioner as the suspect. Officer
DiLeo patted Petitioner down, handcuffed him and read him his Miranda rights.
The person Officer DiLeo saw holding the victim after the shooting was Lyon Tinsley.
Tinsley estimated he was approximately twelve feet away from Petitioner, whom he knew by
name, when the shooting began. Tinsley testified that he saw Petitioner shoot the victim. He
stated that the area was lit well enough for him to see and identified Petitioner as wearing a
Steeler’s jersey with the number “10” on it. Four hours later, at 5:28 a.m., county detectives
drove Tinsley past the police station while Petitioner was standing in the doorway of the police
station, cuffed, and flanked by two police detectives. Tinsley identified Petitioner and stated
there was no doubt in his mind that Petitioner was the man who shot the victim.
In an initial interview by Officer James Morton (“Officer Morton”) at the Braddock
police station around the corner from the bar, Petitioner denied having shot Miller. But he gave
a different statement during another interview after he was transferred to the homicide office. In
an interview with Allegheny County Police Officers Kevin Paul (“Officer Paul”) and Jim Cvetic
(“Officer Cvetic”), at which Officer Cvetic took notation of Petitioner’s responses, Petitioner
gave a statement (transcribed from Officer Cvetic’s notes but unsigned) that Miller was involved
in an altercation at the bar, but left and returned, and came up to Petitioner and begin “pointing
2
A bar patron, Andre Dutrieuille, testified that he walked away from the scene after hearing
several gunshots, and retrieved a Colt .45 automatic pistol from the sidewalk on 6th Street,
between the bar and the police station. His father turned it into the police the next morning, and
the six .45 caliber automatic shell casings recovered from the scene were matched
as having been discharged from this gun. See id. at 14-15.
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at” him. He asserted that a fight broke out in the bar, that he tried to leave, and was hit several
times and forced out of the bar. He said he heard gunshots and thought he’d been hit while still
inside the bar. Id. at 15. Petitioner asserted that he grabbed a handgun from someone (David
Lyons) as he was leaving the bar and believed the safety was on. When Miller and two others
were making aggressive gestures at him outside the bar, Petitioner told them he had a gun and
pointed it in the air, but as he lowered the gun, he heard someone firing shots and the gun in his
hand “just started going off”, which surprised him. Petitioner remembered the gun going off and
shooting the victim in the midsection. Petitioner said he dropped the gun and walked around the
corner to a jitney station, and that the shooting was unintentional. Id. at 16.3 At trial, however,
Petitioner again denied shooting Miller, or having a gun in his possession that night, or being in a
continuing altercation with Miller or others outside the bar. He asserted that “some guy named
Rob” shot Miller and that, on his way to his car which was parked near the jitney stand,
Petitioner saw Rob running up the hill immediately before the officer stopped Petitioner instead.
In July, 1997, Petitioner was charged with one count of criminal homicide and two counts
of uniform firearm violations (former convict not to possess firearms, 18 Pa. Cons. Stat. Ann. §
6105, and firearms not to be carried without a license, 18 Pa. Cons. Stat. Ann. § 6106 – the
violation of Uniform Firearms Act charge under Section 6105 was severed from the other
charges prior to trial). See Commonwealth’s Answer at 2.
Cf. January 14, 2010 Superior Court Memorandum Opinion affirming dismissal of Petitioner’s
PCRA Petition at 6 (quoting trial testimony by Officer Paul that Petitioner, during homicide
department interview, stated that the gun he had “just started going off”, that “after he fired the
gun, he dropped it on the street and walked away”, that he “didn’t mean to do what he did”, and
that the shooting was an accident). But cf. id. (also quoting trial testimony that Petitioner stated
he shot Miller in the midsection, and that “it’s [kill] or be [killed]”).
3
5
On September 26, 1997, Petitioner’s counsel filed an Omnibus Pretrial Motion asserting
that the on-scene identification of Petitioner by Tinsley should be suppressed and that there was
no probable cause for the arrest. See id. at 2 (citing Omnibus Pretrial Motion attached as Ex. 3).
After a multiple-day hearing that Fall, the suppression motion was denied by Order of January
20, 1998.
A jury trial was held from January 20-26, 1998. Petitioner was found guilty of murder in
the first degree and of the remaining firearms violation (not to be carried without a license). In
April, 1998, Petitioner was sentenced to a mandatory term of life imprisonment on the first
degree murder conviction, and a consecutive term of 3-1/2 to 7 years incarceration for the
firearms conviction. See id. at 3.
In April 24, 1998 Petitioner’s counsel filed a post-sentence motion (the “April 1998 PostSentence Motion”) which was denied by operation of law on August 31, 1998. Said Motion
alleged that:
(1) The trial court erred by failing to suppress statements obtained from the defendant
which were the fruit of an arrest unsupported by probable cause;
(2) The trial court erred in failing to suppress the in-court identification by Tinsley,
which was tainted by an unduly suggestive identification procedure and fruit of the
arrest without probable cause;
(3) The trial court erred by allowing impeachment based on adjudications of delinquency
made when defendant was 13 years old;
(4) The evidence of record was insufficient to support the verdict of first degree murder;
and
(5) The verdict was against the weight of the evidence.
6
See Commonwealth’s Answer in Response to Petitioner’s Supplemental Brief at 3.
In May, 1998 Petitioner filed his Notice of Appeal and in July, 1999,
Petitioner,
represented by counsel, properly filed a Statement of Matters Complained of on Appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b) and the Court issued its Opinion on the
Concise Statements on July 29, 1999. See Commonwealth Exhibit 8.
On October 4, 1999 Petitioner’s counsel filed a Brief for Appellant with the
Pennsylvania Superior Court raising the following claims:
1.
Identification of Tinsley was improperly admitted in light of uncounseled and
suggestive one-on-one confrontation.
2. Juvenile delinquency adjudication was improperly admitted where it occurred
eight years prior to trial when Lowry was 13.
On April 13, 2000, the Pennsylvania Superior Court affirmed the judgment of sentence.
See id. at 5 (citing Opinion attached as Ex. 11) (hereafter “April 13, 2000 Superior Court
Opinion on Direct Appeal”). Petitioner’s Petition for Allowance of Appeal to the Pennsylvania
Supreme Court on these two issues was filed on May 19, 2000 and denied on August 30, 2000.
The Petitioner did not file a Petition for Writ of Certiorari with the Supreme Court of the United
States.
On January 24, 2001, Petitioner filed a timely pro se Petition for Post Conviction
Relief pursuant to the Pennsylvania Post Conviction Relief Act (the “PCRA”), 42 Pa. Const.
Stat. § 9541, et seq. Counsel was then appointed to represent Petitioner, but on January 13,
2003 the Trial Court dismissed the Petition due to counsel’s failure to file an amended petition.
See Commonwealth’s Answer at 6 (citing Ex. 16). On February 5, 2003, Petitioner filed a pro se
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Notice of Appeal regarding the dismissal, and the trial court’s opinion was dated April 28, 2003.
See id. (citing Ex. 19). On September 23, 2003 Petitioner filed a pro se brief on appeal to the
Pennsylvania Superior Court asserting that (1) the lower court erred by dismissing his PCRA
Petition without appointing a substitute counsel to file an amended petition or a Finley letter, (2)
he had been provided ineffective assistance of counsel in repeated respects, and (3) the trial court
erred in not declaring a mistrial following the admission of hearsay evidence. See id. at 6-7
(citing Ex. 42). On March 15, 2004, the Superior Court vacated the trial court’s January 13,
2003 dismissal and remanded the matter to the Court of Common Pleas for the appointment of
new counsel, who – on July 18, 2007 – filed an Amended PCRA Petition (the “2007 Amended
PCRA Petition”).
The 2007 Amended PCRA Petition raised the claim that “Petitioner’s appellate counsel
was ineffective for failing to raise that the Commonwealth did not prove beyond a reasonable
doubt that Petitioner was guilty of First Degree Murder.” Id. at 8 (citing Ex. 22 at 13). An
evidentiary hearing was held on September 25, 2007 and following further filings by counsel the
Petition was denied by the PCRA Court’s order dated December 19, 2008 (Machen, J.). On
February 12, 2009, Petitioner filed a Concise Statement of Matters Complained of on Appeal
regarding the post-conviction court’s dismissal of his PCRA Petition, and on April 24, 2009 the
trial court filed an Opinion addressing the issue. See id. (citing Ex. 28). Petitioner’s counsel
submitted his Superior Court appeal brief on June 22, 2009, raising the same issue and the
Superior Court issued its Memorandum Opinion on January 14, 2010 affirming the judgment
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of sentence. See id. at 9 (citing Ex. 30-31). Petitioner filed a Petition for Allowance of Appeal
with the Supreme Court of Pennsylvania which was denied on August 12, 2010.
On September 30, 2010 Petitioner filed a Motion for Post Conviction Relief which was
dismissed by the Court on November 23, 2010, on grounds that it was his second PCRA Petition,
that no exceptions applied, and the court was therefore without jurisdiction.
See
Commonwealth’s Answer in Response to Petitioner’s Supplemental Brief at 8 (citing
Commonwealth Ex. 35-36). Petitioner then filed his Notice of Appeal and Concise Statement in
January, 2011 and the Trial Court addressed them by Opinion of March 11, 2011.
See
Commonwealth Ex. 40. On May 26, 2011, Petitioner filed a pro se Brief to the Pennsylvania
Superior Court alleging numerous claims of ineffectiveness of counsel. See id. at 9-10. The
Superior Court affirmed by Memorandum Opinion of September 13, 2011, which noted the
claims to be untimely. See Commonwealth Ex. 46).
Meanwhile, in February, 2011, Petitioner filed his Petition for a Writ of Habeas Corpus
with this Court pursuant to 28 U.S.C. § 2254. (ECF No. 4.)4 Petitioner also filed a Motion to
Stay which was denied on March 29, 2011. The Petition raises the following:
1. Identification of Petitioner by Lyon Tinsley was improperly admitted in light
of the uncounseled and suggestive one-on-on confrontation at the Braddock police
station, as well as the subsequent in court identification where Tinsley testified on
cross-examination during a September 30, 1997 suppression hearing that he was
told by police officers they “got the guy that did it” and Tinsley was supposed to
“identify him”.
4
The Court observes that the Petition was timely filed, for reasons correctly explicated in the
Commonwealth’s Answer at 18-20.
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2. Petitioner’s trial and appellate counsel provided ineffective assistance for
failure to challenge the competency of the court’s jurisdiction due to lack of
probable cause in that the magistrate judge’s actions, leading to Petitioner’s
detention, were based on Affidavits by police detectives that contained material,
deliberately-misleading misstatements (i.e., reporting time of death as 1:41 a.m.
instead of 2:00 a.m.; stating that there were witnesses available to testify against
Petitioner at future court proceedings; stating that Petitioner was taken back to
crime scene and was identified by an eyewitness (reiterating unlawfulness of
identification by Tinsely and asserting “no independent basis to establish
Petitioner’s identification”); stating that Petitioner admitted shooting the victim in
a police interview when he made no such admission to the detectives providing
Affidavits of probable cause to magistrate).
3. Trial and Appellate Courts erred where “the weight of the evidence was against
the verdict” where evidence (a) was tainted by admittance of illegally obtained
identification (i.e., Tinsley’s assertedly intoxicated identification of Petitioner) and
“inadmissible hearsay testimony and alleged unsigned statement supposedly given
by Petitioner” (i.e., Officer Paul’s testimony regarding Petitioner’s interview
statement admitting an unintentional shooting); and (b) was contrary to forensic
evidence suggesting Petitioner was not at distance from victim to have been
shooter.
4. Trial and All Other Counsel provided ineffective assistance by – as to trial
counsel: (1) failing to object to Officer Paul’s hearsay testimony; (2) failing to call
Officer Cvetic to testify regarding Petitioner’s alleged statement; (3) introducing
hearsay evidence at trial (i.e. that Petitioner “pulled a gun on the victim” when
Petitioner “was going to testify that he did not have a weapon”); (4) failing to
conduct an independent investigation of crime scene or interview Officer Cvetic;
(5) making prejudicial remarks during closing arguments (i.e., that Petitioner
“became so enraged that he pulled a gun and pointed it at Jouron Miller”); and as
to subsequent counsel: (6) failing to raise trial counsel’s ineffective assistance on
appeal and preserve meritorious issues of unauthenticated exculpatory evidence,
lack of probable cause and right to confront accuser (i.e., Officer Cvetic).
(ECF No. 4 at pp. 2-17)
In June, 2013, Petitioner moved to correct part of his exhaustion/procedural default
argument on the basis of Martinez v. Ryan, 132 S.Ct. 1309 (2012). The supporting briefs were
filed by the parties.
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The Court has now given Petitioner’s claims the full consideration it has afforded each
individual appearing before it and requesting review of underlying criminal proceedings and
State Court appeals - and the accompanying extensive records - in the context of a Petition for
Writ of Habeas Corpus.
III. GENERAL STANDARDS GOVERNING FEDERAL HABEAS CORPUS REVIEW
A. Exhaustion Requirement
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state
prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To
comply with the exhaustion requirement, a state prisoner first must have “fairly presented” his
constitutional and federal law issues to the state courts through direct appeal, collateral review,
state habeas proceedings, mandamus proceedings, or other available procedures for judicial
review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Doctor v. Walters, 96 F.3d 675,
678 (3d Cir. 1996); Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996). A petitioner must present
every claim raised in the federal petition to the state’s trial court, intermediate appellate court and
highest court before exhaustion will be considered satisfied. O’Sullivan v. Boerckel, 526 U.S.
838 (1999). A petitioner shall not be deemed to have exhausted state remedies, if he has the right
to raise his claims by any available state procedure. 28 U.S.C. § 2254(c).
Petitioner has the
burden of establishing that exhaustion has been satisfied. Ross v. Petsock, 868 F.2d 639, 643 (3d
Cir. 1989); O’Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir. 1987).
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Exhaustion is not a jurisdictional limitation, however, and federal courts may review the
merits of a state prisoner’s claims prior to exhaustion when no appropriate state remedy exists.
Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997); Doctor, 96 F.3d at 681; Carter v. Vaughn, 62
F.3d 591, 594 (3d Cir. 1995). And an application for a writ of habeas corpus may be denied on
the merits notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State. 28 U.S.C. § 2254(b)(2).
It should also be noted, for purposes of this Petition, that a Federal habeas claim is “fairly
presented” to the State courts if the Petitioner has presented the factual and legal substance to
those Courts in a manner that put them on notice that a federal claim was being asserted. Keller
v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). The petition must show that the claims he is
raising in Federal Court are the “substantial equivalent” of those presented in State Court.
Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). In other words, the petitioner must afford
the state system “the opportunity to resolve the federal constitutional issues before he goes to the
federal court for habeas relief.” Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (en banc)
(internal quotation marks & citations omitted). Fair presentation by the petitioner to the state
courts is sufficient; the claims “need not have been considered or discussed by those courts.”
Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir.1984) (citations omitted).
B. Procedural Default Doctrine
Even where a claim has been properly exhausted, a federal court may nonetheless be
precluded from reviewing claims under the “procedural default doctrine.” Gray v. Netherland,
518 U.S. 152 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor, 96 F.3d at 678;
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Sistrunk v. Vaughn, 96 F.3d 666, 678 (3d Cir. 1996). Like the exhaustion requirement, the
procedural default doctrine was developed to promote our dual judicial system and, in turn, it is
based upon the “independent and adequate state law grounds” doctrine, which dictates that
federal courts will not review a state court decision involving a question of federal law if the
state court decision is based on state law that is “independent” of the federal question and
“adequate” to support the judgment. Coleman, 501 U.S. at 750.
A state’s procedural rules are entitled to deference by federal courts; a petitioner’s
violation of a state procedural rule may constitute an independent and adequate state law ground
for denial of federal review of habeas claims under the procedural default doctrine. Id.; Sistrunk,
96 F.3d at 673. Moreover, violations of a state’s procedural rules may constitute an independent
and adequate state ground sufficient to invoke the procedural default doctrine even where no
state court explicitly has concluded that a petitioner is procedurally barred from raising his
claims. Glass v. Vaughn, 65 F.3d 13, 15 (3d Cir. 1995), cert. denied, 516 U.S. 1151 (1996);
Carter, 62 F.3d at 595. However, the procedural default doctrine only applies when a state
procedural rule is consistently or regularly applied. Banks v. Horn, 126 F.3d 206, 211 (3d Cir.
1997) (quoting Johnson v. Mississippi, 486 U.S. 578, 588-89 (1998)). A petitioner whose
constitutional claims have not been addressed on the merits due to procedural default can
overcome the default, thereby allowing federal court review, if he or she can demonstrate either:
1) “cause” for the default and “actual prejudice” as a result of the alleged violation of federal
law; or 2) failure to consider the claims will result in a “fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750; Carter, 62 F.3d at 595.
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To satisfy the cause standard, a petitioner must demonstrate that some objective factor
external to the defense impeded his or her efforts to raise the claim in state court. McCleskey v.
Zant, 499 U.S. 467, 493 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). To show
prejudice, a petitioner must demonstrate that the error worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions, not merely that the
error created a “possibility of prejudice.” Carrier, 477 U.S. at 494. Where a petitioner cannot
make a showing of “cause and prejudice,” a federal court may nevertheless consider the merits of
his or her unexhausted claims under circumstances in which the failure to adjudicate such claims
would result in a “fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750. This
exception to the procedural default doctrine is based on the principle that, in certain
circumstances, “the principles of comity and finality that inform the concepts of cause and
prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.’”
Carrier, 477 U.S. at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)).
The “prototypical example” of a miscarriage of justice is a situation in which an
underlying constitutional violation has led to the conviction of an innocent defendant. Sawyer v.
Whitley, 505 U.S. 333, 340 (1992). In that instance, the merits of a petitioner’s claims can be
considered notwithstanding his or her failure to raise them before the state courts. In order to
avail himself or herself of this exception to the procedural default rule, a petitioner must make a
substantial showing that he or she is actually innocent of the crime for which he or she is
incarcerated. Schlup v. Delo, 513 U.S. 298, 324 (1995). “To be credible, such a claim requires
[the] petitioner to support his [or her] allegations of constitutional error with new reliable
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evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence – that was not presented at trial.” Id. If this requirement is satisfied,
the federal court must consider “whether it is more likely than not that no reasonable juror would
have convicted [the petitioner] in light of the new evidence.” Hubbard v. Pinchak, 378 F.3d 333,
340 (3d Cir. 2004). This standard “does not merely require a showing that a reasonable doubt
[as to the petitioner’s guilt] exists in the light of the new evidence, but rather that no reasonable
juror would have found the [petitioner] guilty.” Schlup, 513 U.S. at 329. “The court’s function
is not to make an independent factual determination about what likely occurred, but rather to
assess the likely impact of the evidence on reasonable jurors.” House v. Bell, 547 U.S. 518, 538
(2006).
While the petitioner’s innocence need not be determined with “absolute certainty” at this
“gateway stage,” his or her burden is to demonstrate that, in light of the new evidence, it is more
likely than not that any reasonable juror would have reasonable doubt as to his or her guilt. Id.
In the habeas corpus context, a federal court sits to ensure that an individual is not imprisoned in
violation of the Constitution and laws of the United States, “not to correct errors of fact.”
Herrera v. Collins, 506 U.S. 390, 400 (1993). Consequently, a finding of “actual innocence” is
not an independent ground for habeas corpus relief, but rather a “gateway” through which a
petitioner can pass to have a federal court consider underlying claims that would otherwise be
subject to procedural default. Id. at 404. In the absence of new evidence of the petitioner’s
innocence, the existence of an underlying constitutional violation provides a federal court with
no basis for adjudicating a procedurally defaulted claim. Goldblum v. Klem, 510 F.3d 204, 22515
226 (3d Cir. 2007). Only after the presentation of new evidence may a federal court proceed to
consider whether, in light of all relevant evidence, it is more likely than not that no reasonable
juror would vote to convict the petitioner of the crime for which he or she is incarcerated.
House, 547 U.S. at 537-39; Goldblum, 510 F.3d at 225-26.
Finally, the United States Court of Appeals for the Third Circuit has instructed that a
petition containing exhausted and unexhausted but procedurally barred claims is not a mixed
petition requiring dismissal under Rose v. Lundy, 455 U.S. 509 (1982). See Wenger v. Frank,
266 F.3d 218, 227 (3d Cir. 2001). Instead, the Court of Appeals held that the district court
should review the merits of the exhausted claims but must not decide the merits of the claims
that are barred under the procedural default doctrine. Id.
C. Standard of Review for Exhausted (and not Procedurally Defaulted) Claims
In describing the role of federal habeas proceedings, the Supreme Court of the United
States, in Barefoot v. Estelle, 463 U.S. 880, 887 (1983), noted:
[I]t must be remembered that direct appeal is the primary avenue for review of a
conviction or sentence . . . . The role of federal habeas proceedings, while
important in assuring that constitutional rights are observed, is secondary and
limited. Federal courts are not forums in which to relitigate state trials.
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L.No. 104-132, 100 Stat. 1214, April 24, 1996, (AEDPA), which further “modified a federal
habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas
‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under
law.” Bell v. Cone, 535 U.S. 685, 693 (2002).
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Amended Section 2254 of the federal habeas corpus statute provides the standard of
review for federal court review of state court criminal determinations and provides, in relevant
part, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court 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 –
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State Court
proceeding.
28 U.S.C. § 2254(d).
“A state-court decision is ‘contrary to’ clearly established federal law if the state court (1)
‘contradicts the governing law set forth in [the Supreme] Court’s cases or (2) ‘confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a [different] result.’” Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir.
2004) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “Clearly established Federal
law” is determined as of the date of the relevant state-court decision. Greene v. Fisher, 606 F.3d
85, 95 (3d Cir. 2010), aff’d, Greene v. Fisher, 132 S. Ct. 38 (2011). And few state court
decisions are “contrary to” such law.
The federal habeas court more often must determine whether the state court adjudication
was an “unreasonable application” of Supreme Court precedent.
“A state-court decision
‘involve[s] an unreasonable application’ of clearly established federal law if the state court (1)
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‘identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably
applies it to the facts of the particular . . . case’; or (2) ‘unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.’” Id. (quoting Williams,
529 U.S. at 407).
The focus is on whether the law has been applied in an “objectively
unreasonable” – rather than incorrect - manner. Bell, supra; Schriro v. Landrigan, 550 U.S. 465,
473 (2007).
The Supreme Court has illustrated the deference that the federal courts must accord to
state court decisions. In Renico v. Lett, 130 S. Ct. 1855 (2010), the Supreme Court observed
that:
It is important at the outset to define the question before us. That question is not
whether the trial judge should have declared a mistrial. It is not whether it was an
abuse of discretion for her to have done so -- the applicable standard on direct
review. The question under AEDPA is instead whether the determination of the
Michigan Supreme Court that there was no abuse of discretion was “an
unreasonable application of . . . clearly established Federal law.” § 2254(d)(1).
Lett, 130 S. Ct. at 1862. The Supreme Court further instructed:
It is not necessary for us to decide whether the Michigan Supreme Court’s
decision -- or, for that matter, the trial judge’s declaration of a mistrial -- was right
or wrong. The latter question, in particular, is a close one. . . . . [F]or the reasons
we have explained -- whether the trial judge was right or wrong is not the
pertinent question under AEDPA.
Id. at 1865, n.3 (emphasis added). See also Harris v. Ricci, 607 F.3d 92 (3d Cir. 2010).
Moreover, a federal court must accord a presumption of correctness to a state court’s
factual findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C.
§ 2254(e). Where a state court’s factual findings are not made explicit, a federal court’s “duty is
18
to begin with the [state] court’s legal conclusion and reason backward to the factual premises
that, as a matter of reason and logic, must have undergirded it.” Campbell v. Vaughn, 209 F.3d
280, 289 (3d Cir. 2000). In determining what implicit factual findings a state court made in
reaching a conclusion, a federal court must infer that the state court applied federal law correctly.
Id. (citing Marshall v. Longberger, 459 U.S. 422, 433 (1982)). Where the state court fails to
adjudicate or address the merits of a petitioner’s claims, unless procedurally defaulted, the
federal habeas court must conduct a de novo review over pure legal questions and mixed
questions of law and fact. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
As to evidentiary rulings made by the trial court, it is well settled that such decisions are
vested in the trial court’s sound discretion. An evidentiary error is deemed harmless on appeal
where the appellate court believes beyond a reasonable doubt that the error could not have
contributed to the verdict.
See Commonwealth v. Story, 383 A.2d 155, 164-66 (1978)
(delineating factors to be considered, including (a) whether error was prejudicial and, if so,
whether it was de minimis; (2) whether erroneously admitted evidence was merely cumulative;
and (3) whether evidence of guilt was so overwhelming that prejudicial effect of error was
insignificant). See also Commonwealth v. DeJesus, 880 A.2d 608, 614 (2005).
Petitioner’s claims will be reviewed in accordance with the standards set forth above.
IV. PETITIONER’S CLAIMS
The Court observes, as a threshold matter, that following some initial debate as to whether
each of Petitioner’s claims had been exhausted, the parties now concur that the exhaustion
19
requirement has been met. See Petitioner’s June 14, 2013 Motion Seeking Permission to Correct
Part of the Exhaustion Procedural Default Argument (ECF No. 42); Commonwealth’s July 17,
2013 Answer in Response to Petitioner’s Supplemental Brief at 12 (“Commonwealth’s July,
2013 Answer to Supplemental Brief”) (ECF No. 46) (“[I]t now appears that Petitioner has
exhausted the four claims he raises in his habeas corpus petition.”).
The Commonwealth
maintains, however, that all but Petitioner’s first claim remain procedurally defaulted. See
Commonwealth’s July, 2013 Answer to Supplemental Brief at 13-15 (explaining that Petitioner
failed to properly raise these claims in a direct or PCRA appeal to the State Court and is timebarred from doing so now, thus they are procedurally defaulted). It also maintains that Petitioner
cannot, on this record, overcome the procedural default bar by demonstrating substantial
ineffectiveness of his appellate counsel (under Martinez). See id. at 15-16.
In light of the unusually protracted history of State Court proceedings, remand and
multiple appeals in this case; the issues raised (expressly, or potentially in light of applicable pro
se lenience) in various briefs at various stages; and considerations regarding which claims may
have been “fairly presented” in State Court and addressed on the merits (as opposed to denied on
purely procedural grounds) thereby, this Court has afforded Petitioner the “benefit of the doubt”,
extended him the utmost pro se consideration, and reviewed his claims on the merits under the
standards applicable to his Petition for Writ of Habeas Corpus. See, supra, Section II.
5
The
Cf. Kindler v. Horn, 542 F.3d 70, 79 (2008) (stating that “[a] procedural rule that is
consistently applied in the vast majority of cases is adequate to bar federal habeas review even if
state courts are willing to occasionally overlook it and review the merits of a claim for relief
where the rule would otherwise apply”); Beard v. Kindler, 130 S.Ct. 612 (2009) (confirming that
“discretionary procedural rule” can serve as adequate ground to bar federal habeas review).
5
20
Court further observes that, as its explication of Petitioner’s claims and the Commonwealth’s
summation reflects, absent this consideration, Petitioner could not – on his pleadings or the
record - overcome any applicable procedural default bar via a showing of “cause and prejudice”
or a “fundamental miscarriage of justice” (innocence and new evidence) as to his claims. See
discussion of applicable standards, supra at Section II. Thus to Petitioner’s claims:
A. Identification of Petitioner by Lyon Tinsley was improperly admitted
As cogently addressed by the Superior Court in its April 13, 2000 Opinion on Direct
Appeal (Ex. 11, as cited supra), Petitioner’s contentions regarding Tinsley’s identification in an
un-counseled and suggestive one-on-one confrontation outside the Braddock Police Station are
misguided, groundless and unmaintainable on habeas review where (1) Tinsley’s police station
identification of Petitioner was never admitted at trial; (2) an independent basis existed for
Tinsley’s in-court identification, rendering that identification properly admissible under
Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996)6 and Commonwealth v. Carter, 643
A.2d 61 (Pa. 1994);7 and (3) the Commonwealth introduced the testimony of (a) Officer DiLeo
6
Under Abdul-Salaam factors considered in determining an independent basis are (1)
opportunity of the witness to view the accused at the crime; (2) degree of attention; (3) accuracy
of prior description; (4) level of certainty demonstrated; (5) length of time between crime and
confrontation. 678 A.2d at 349. See also Neil v. Biggers, 409 U.S. 188, 198-99 (1972) (same).
The Superior Court noted Tinsley’s acquaintance/prior interaction with Petitioner, his detailed
description of Petitioner and his apparel, his proximity during and specific testimony as to
witnessing the shooting. See April 13, 2000 Superior Court Opinion on Direct Appeal at pp. 5-7.
7
Under Carter, in-court identification may be made despite a suggestive pre-trial identification if
the Commonwealth establishes by clear and convincing evidence that such identification was not
a product of the events occurring between the time of the crime and the in-court identification,
i.e., if under the totality of the circumstances it “had an origin sufficiently distinguishable to be
purged of the primary taint.” 643 A.2d at 71.
21
who witnessed the shooting and identified Petitioner as the shooter and (b) Officer Paul, who
was present at Petitioner’s own homicide department interview during which Petitioner admitted
an unintentional shooting of Miller. See April 13, 2000 Superior Court Opinion on Direct Appeal
at pp. 5-7; Commonwealth’s Answer at 26-28. See also Commonwealth’s Answer at 32-35
(explicating, similarly, independent basis for in-court identification of Petitioner despite
suggestive presentation of Petitioner to Tinsley at police station, i.e., Tinsley had a previous
knowledge of/acquaintance with Petitioner, he interacted with Petitioner at the bar that night
prior to the shooting and observed Petitioner’s altercation with Miller, he witnessed the shooting
from a distance of approximately 12’ in a well-lit area outside the bar, an officer arrived almost
immediately, Tinsley provided a detailed description of Petitioner, and Tinsley accompanied
Miller to the hospital where he died).
As stated above, this Court is required to review Petitioner’s claims in accordance with
the standard of review set forth in the AEDPA. Specifically, in order to be entitled to relief,
Petitioner must show that the Pennsylvania Court’s decision in this instance was contrary to, or
an unreasonable application of, clearly established federal law as determined by the Supreme
Court of the United States (or that it was premised on an unreasonable determination of the facts
in light of the evidence presented).8 This is a “difficult to meet,” and “highly deferential
8
Some Circuit Court of Appeals have restricted their review under the AEDPA to United States
Supreme Court decisions alone. See, e.g., Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998)
(considering itself barred from examining “lower federal court decisions in deciding whether the
state decision is contrary to, or an unreasonable application of, clearly established federal law”).
The Court of Appeals for the Third Circuit, however, has concluded that decisions of federal
courts below the level of the United States Supreme Court may be helpful in ascertaining the
reasonableness of state courts’ application of clearly established United States Supreme Court
22
standard” as to which Petitioner carries the burden of proof. Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011) (internal citations omitted).
A state court decision fails the “contrary to” prong of AEDPA if the state court reaches a
conclusion opposite to the Supreme Court’s own conclusion on a question of law or decides the
case differently where the Supreme Court was confronted by a set of materially indistinguishable
facts. McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 1990) (quotation and citations omitted).
And a state court ruling is considered an “unreasonable application” if the state court
unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal
principle to a new context, or unreasonably refuses to extend the principle to a new context
where it should apply. Harris v. Ricci, 607 F.3d 92, 96 (3d Cir. 2010).
It is clear from the record that the State Court’s ruling in this matter was neither contrary
to nor an objectively unreasonable application of clearly established Federal law; nor was there
any unreasonable determination of facts in light of the evidence presented. This Court looks to
the April 13, 2000 Superior Court Opinion on Direct Appeal as discussed, supra, and concludes
that Petitioner has not met his burden of showing entitlement to habeas corpus relief as to his
first claim.9
precedent, as well as “helpful amplifications” of that precedent. Moore v. Morton, 255 F.3d 95,
105 (3d Cir. 2001) (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir.)
(en banc), cert. denied, 528 U.S. 824 (1999)).
The Court also finds interesting, but need not reach, the Commonwealth’s observation that a
question of whether Tinsley’s police station identification was improperly admitted would raise a
Fourth Amendment suppression issue not cognizable on habeas review. See Commonwealth’s
Answer at 29 (discussing full and fair opportunity to present this issue in State Court motions
and suppression hearing); id. (citing Stone v. Powell, 428 U.S. 465, 494 (1976)).
9
23
B. Petitioner’s trial and appellate counsel provided ineffective assistance for failure
to challenge the competency of the State Court’s jurisdiction due to lack of probable
cause as to Magistrate Judge’s actions
Petitioner asserts that he was repeatedly provided ineffective assistance of counsel related
to counsel’s failure to challenge the court’s jurisdiction owing to lack of probable cause for his
arrest. See generally Commonwealth’s Answer at 36 (citing Affidavit of Probable Cause, Ex.
41) (summarizing that under Strickland v. Washington, 466 U.S. 668, 687 (1984), a sufficient
showing of ineffectiveness of counsel requires a showing both (1) that counsel’s performance
was so deficient that s/he failed to function as the “counsel” guaranteed by the Sixth
Amendment; and (2) the defense was so seriously prejudiced thereby that the petitioner was
deprived of a fair trial).
The Court largely concurs with the Commonwealth’s analysis, i.e., Petitioner fails to raise
a claim cognizable for habeas review. More specifically:
The Court also need not reach the Commonwealth’s assertion that Petitioner was unentitled to
counsel at the time of Tinsley’s drive-by identification because Petitioner had not yet been
“charg[ed] . . . with any crime whatsoever”. Commonwealth’s Answer at 31; cf. also Simmons
v. United States, 390 U.S. 377, 382 (1968) (entitlement to counsel for post-indictment lineup as a
“critical stage of the prosecution”). But cf. Commonwealth’s Answer at 15 (indicating that
incident occurred at approximately 1:25 a.m., Petitioner was quickly apprehended around corner
from bar and quite near police station, and that Petitioner was interviewed at the Braddock
station at 3:30 a.m. and transferred to the homicide office; further indicating that “[a]ccording to
Petitioner” he was stopped on the street by an officer, asked if he was being charged with the
shooting and told that he was); id. at 31 (indicating that “[a]fter a couple of hours, the police
officers finally learned of the identity of witness Tinsley and his whereabouts” and it was
“approximately [28] minutes” after the police identification and interview of Tinsley that Tinsley
identified Petitioner at the Braddock Police Station); cf. also January 14, 2010 Superior Court
Opinion at 5 (noting that homicide department interview began at 6:44 a.m.).
24
Despite Petitioner’s characterization of this claim, his Petition as filed is essentially bereft
of factual and legal support relating it to ineffectiveness of counsel. Cf. Commonwealth’s
Answer at 37. Moreover, (1) Petitioner’s trial counsel pursued the question of probable cause in
pre-trial motions, at the suppression hearing, and/or during trial as noted fully, supra; and (2) the
evidence of record does not indicate that there was insufficient evidence to arrest Petitioner – to
the contrary. See id. at 38-39. Petitioner’s appellate counsel had no obligation, therefore, to
raise the claim on appeal. See, e.g., Strickland, 466 U.S. at 691 (failure to pursue “fruitless”
claims “may not be challenged as unreasonable”); Parrish v. Fulcomer, 150 F.3d 326 (3d Cir.
1998) (counsel not ineffective for failing to raise meritless claim).
As to other possible aspects of this claim as presented by Petitioner, affording him the
utmost leniency:
First, to the extent Petitioner intends argument that there was no probable cause for his
arrest, an illegal arrest provides no basis for collateral attack on a judgment obtained after notice
and fair trial. See Shack v. Attorney General of State of Pennsylvania, 776 F.2d 1170, 1172 (3d
Cir.1985) (“[W]hen one ... is convicted of a crime after notice and a fair trial, defects in the
pretrial proceedings are not ordinarily considered sufficiently ‘fundamental’ to justify collateral
attack.”) (citing U.S. v. Crews, 445 U.S. 463, 474, (1980)).
Second, any Fourth Amendment claim Petitioner may be intending hereby will also be
denied. When a duly convicted State prisoner has had a full and fair opportunity to litigate a
Fourth Amendment claim, the refusal of the state courts to grant relief cannot provide a basis for
federal habeas review. See Stone v. Powell, 428 U.S. 465 (1976) (claim that trial evidence was
25
obtained in unconstitutional search or seizure is not ground for federal habeas corpus relief
where state has “provided opportunity for full and fair litigation of a Fourth Amendment claim”);
see also Cardwell v. Taylor, 461 U.S. 571 (1983) (per curiam) (same).
The Third Circuit has held that a “full and fair opportunity” requires State procedures by
which the defendant could have litigated his Fourth Amendment claim. See Hubbard v. Jeffes,
653 F.2d 99, 103 (3d Cir.1981); Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir.1980). And it has
determined that review of a Fourth Amendment claim in a habeas corpus application is proper
only if: (1) the state has not provided corrective procedures to redress the alleged Fourth
Amendment violations; or (2) the state has provided a corrective mechanism, but the defendant
was precluded from employing it because of an unconscionable breakdown in that process.
Pennsylvania provides an approved mechanism for litigating Fourth Amendment claims
and Petitioner availed himself of the State process.
His counsel attacked the Affidavit of
Probable Cause and the probable cause for his arrest in the Omnibus Pre-Trial Motion and Brief
in Support filed with the trial court on September 26, 1997. He also addressed those issues at the
suppression hearing held September 30 through October 1, 1997, and had full and fair
opportunity to litigate the issue on appeal. See Commonwealth’s Answer at 37 (citing Ex. 3).
Petitioner has alleged no facts that would demonstrate any breakdown of the Pennsylvania Court
process. Accordingly, as under Stone, to the extent Petitioner intends a Fourth Amendment
claim it is denied.
26
C. Trial and Appellate Courts erred where “the weight of the evidence was against the
verdict”
As the Commonwealth observes, a “weight of the evidence” argument may not properly
ground a claim for federal habeas review, “since it requires reassessment of the credibility of the
evidence presented at trial.” Commonwealth’s Answer (citing Walker v. Kerestes, 2013 WL
6667776, 4 (E.D. Pa. Dec. 18, 2013) (denying claim that verdict was against the weight of the
evidence as not cognizable in habeas corpus proceeding) (citing Tibbs v. Florida, 457 U.S. 31,
37–38 (1982) (weight of evidence claim raises questions of credibility)); Mattis v. Klopotoski,
2008 WL 2909859, at *4 (E.D. Pa. July 28, 2008). See also McKinney v. Walsh 2012 WL
707039, *5 (E.D. Pa. 2012) .
More specifically, as our sister District Court has repeatedly concluded,10 a claim that a
conviction was against the weight of the evidence is non-cognizable in a habeas corpus case
because Federal habeas courts are bound by the factual findings of the State courts and,
accordingly, cannot reassess the weight of the trial evidence which was before those courts. Cf.
Marshall v. Lonberger, 459 U.S. 422, 434–35 (1983) (federal courts are not permitted “to
redetermine [the] credibility of witnesses whose demeanor has been observed [only] by the state
trial court”).
10
See, e.g., Berry v. Pennsylvania, , 2011 WL 7068969 at *12 (E.D. Pa. Dec.8, 2011); Alamo
v. Frank, 1999 WL 79659 at *1 n. 2 (E.D. Pa. Jan.15, 1999); Smith v. Vaughn, 1997 WL 338851
at *8 (E.D. Pa. June 17, 1997).
27
That said, in Tibbs v. Florida, the United States Supreme Court agreed with the lower court's
distinction between a (non-cognizable) “weight of the evidence” and a (cognizable)
“insufficiency of the evidence” claim:
A conviction rests upon insufficient evidence when, even after viewing the
evidence in the light most favorable to the prosecution, no rational factfinder
could have found the defendant guilty beyond a reasonable doubt. A reversal
based on the weight of the evidence, on the other hand, draws the [reviewing]
court into questions of credibility. The weight of the evidence refers to a
determination by the trier of fact that a greater amount of credible evidence
supports one side of an issue or cause than the other.
457 U.S. at 37 (internal citations to lower court opinion omitted).11
Thus, where the pleadings of a pro se Petitioner, liberally construed, may be read to have
“fairly presented” an insufficiency of the evidence claim to the State Court and to intend an
assertion (however inartfully drafted) of that same claim before the Federal Court, said claim
11
See also Commonwealth v. Vogel, 461 A.2d 604, 609 (1983) (noting that the “distinction
between a determination of the weight of the evidence, which allows the trial court to make an
independent assessment of the credibility of the prosecution's case, and a sufficiency
determination, which confines the reviewing tribunal to accepting the evidence produced by the
prosecution in the most favorable light, is well established”); Commonwealth v. Widmer, 744
A.2d 745, 751 (2000) (“A claim challenging the sufficiency of the evidence is a question of law.
Evidence will be deemed sufficient to support the verdict when it establishes each material
element of the crime charged and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts,
in contravention to human experience and the laws of nature, then the evidence is insufficient as
a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in
the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.”); id. at 751-52 (concluding that, in contrast, a weight
claim “concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most favorable to the verdict winner. An
allegation that the verdict is against the weight of the evidence is addressed to the discretion of
the trial court.... [T]he role of the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.”).
28
should also be considered. See Rainey v. Varner, 603 F.3d 189, 198 -200 (3d Cir. 2010)
(concluding that pro se Petitioner, not charged with “an understanding of the intricacies of
Pennsylvania criminal procedure” had, through “internally inconsistent” filings nonetheless
fairly presented issue of insufficiency, and not only weight, of the evidence sufficient to sustain
first-degree murder charge where he challenged evidence of intent); id. (noting that PCRA Court,
despite titling section of opinion “Weight of the Evidence”, discussed Superior Court’s review of
evidence on direct appeal, and that analysis while “cursory” considered petitioner’s claim as a
sufficiency challenge); id. (further noting that while Petitioner used the term “weight” he
“actually contended that the evidence was not sufficient” to establish intent) ; id. (“Whether the
Commonwealth has shown or established the existence of an element of a crime is an inquiry
into the sufficiency of the evidence, not its weight”).12
Here, the Superior Court, in its January 14, 2010 Memorandum Order affirming the
dismissal of Petitioner’s PCRA Petition, expressly addressed Petitioner’s issue on appeal that
“Appellate counsel gave ineffective assistance for failing to raise the claim that there was
insufficient evidence to support the conviction” where the Commonwealth allegedly failed to
prove the element of specific intent. See Superior Court’s January 14, 2010 Memorandum
Order at 8-10 (explaining that Petitioner’s “underlying claim [was] a challenge to the sufficiency
of the evidence”, applying the appropriate sufficiency standard of review (citing Commonwealth
v. Troy, 832 A.2d 1089, 1092 (Pa. Super. 2003)), noting the law in Pennsylvania that a
12
Compare Snyder v. Warden, Marion Correctional Inst. 2013 WL 1758614, *3 (S.D. Ohio
2013) (finding insufficiency of evidence claim procedurally defaulted where petitioner had
brought only a weight of the evidence claim in State Court).
29
conviction for first-degree murder may be sustained by proof of the element of intent “inferred
from the use of a deadly weapon on a vital part of the victim’s body”, and concluding that the
evidence established was sufficient). In addition, Petitioner followed his Petition for Writ of
Habeas Corpus (asserting, in a claim headed as “the weight of the evidence was against the
verdict”, that “[t]he evidence presented at trial did not support a guilty verdict”) with a June 13,
2011 Response to Commonwealth’s Answer to 2254 Petition and Memorandum of Law In
Support asserting expressly that “the evidence presented at trial was insufficient to sustain a
verdict of any degree and the verdict was against the weight of evidence.” Petitioner’s June 13,
2011 Response to Commonwealth’s Answer to 2254 Petition and Memorandum of Law In
Support at 18. This Court has, accordingly, also considered a possible sufficiency of the
evidence claim under the appropriate habeas standard and concludes that any such claim must
also be denied.
The federal constitutional standard for evaluating an alleged violation based upon a
sufficiency of the evidence claim is found in Jackson v. Virginia, 443 U.S. 307 (1979). Under
Jackson, the Federal Court is to determine whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original). A habeas petitioner is
entitled to relief only “if it is found that upon the record evidence adduced at trial no rational trier
of fact could have found proof beyond a reasonable doubt.” Id. at 324. See Orban v. Vaughn,
123 F.3d 727 (3d Cir.1997) (applying Jackson standard), cert. denied, 522 U.S. 1059 (1998).
Federal review of a sufficiency of the evidence claim under Jackson must be based on state law,
30
that is, the substantive elements of the crime must be defined by applicable state law; although
the minimum amount of evidence required by the Due Process Clause is purely a matter of
federal law. Jackson, 443 U.S. at 324 n. 16; Coleman v. Johnson, 132 S.Ct. 2060, 2064 (2012).
The credibility of witnesses, the resolution of conflicts of evidence, and the drawing of
reasonable inferences from proven facts all fall within the exclusive province of the factfinder
and, therefore, are beyond the scope of federal habeas sufficiency review. Id. at 319.
It is clear that, as the Superior Court observed, a rational juror could have inferred from
the evidence that Petitioner intended to kill Miller. See Superior Court’s January 14, 2010
Memorandum Order at 9-10 (noting that evidence demonstrated prior confrontation, Petitioner’s
possession of gun, altercation outside bar, Petitioner’s firing shots 18-24” from Miller and in his
direction, wounds to Miller’s chest and abdomen, trigger pressure and release were required to
fire successive shots (i.e., gun could not just “go off”), and casings from retrieved gun were
matched to crime).
The jury in this case was convinced, and the only question under Jackson is whether that
finding was so insupportable as to fall below the threshold of rationality. The State Courts did
not think so, and that determination in turn is entitled to considerable deference under AEDPA,
28 U.S.C. § 2254(d). See also Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012) (quoting
Jackson, 443 U.S. at 319; Cavazos v. Smith, 565 U.S. 1, 4 (2011)). Because the State Court's
conclusion was a reasonable determination of the facts in light of the evidence presented, and
31
was neither contrary to, nor an unreasonable application of, clearly established federal law, any
insufficiency of the evidence claim by Petitioner is denied.13
D. Trial Counsel and All Other Counsel provided ineffective assistance
Petitioner contends that he was provided ineffective assistance for the following reasons:
As to trial counsel: (1) failing to object to Officer Paul’s hearsay testimony;14 (2) failing to call
Officer Cvetic to testify;15 (3) introducing hearsay evidence at trial (i.e. that Petitioner “pulled a
gun on the victim” when Petitioner “was going to testify that he did not have a weapon”); 16 (4)
See Coleman, 132 S.Ct. at 2062 (reiterating that Jackson claims “face a high bar in federal
habeas proceedings because they are subject to two layers of judicial deference. First, on direct
appeal, ‘it is the responsibility of the jury—not the court—to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the
ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.’
And second, on habeas review, ‘a federal court may not overturn a state court decision rejecting
a sufficiency of the evidence challenge simply because the federal court disagrees with the state
court. The federal court instead may do so only if the state court decision was objectively
unreasonable.’”) (quoting Renico v. Lett, 559 U.S. 766 (2010)).
13
Petitioner objects that Officer Paul’s testimony was “prejudicial hearsay” because he did not
conduct the interview or take notes” of it. See Petition, unnumbered at Ground Four. Compare
supra (Paul was an officer present during the homicide interview, together with Officer Cvetic,
who made the transcription); Commonwealth’s Answer in Response to Supplemental Brief at 18
(noting that “Detective Paul was present throughout Petitioner’s interview” and he had “firsthand knowledge of the information relayed by Petitioner during this interview”); id. (“moreover,
Detective Paul was allowed to have his memory refreshed by any document, including the report
filled out by Detective Cvetic.”) (citing Fed. Rules of Evidence, Rule 612).
14
Petitioner objects that his counsel did not call Officer Cvetic, thus denying Petitioner “his
constitutional right to confront his accuser” and asserts counsel “should have demanded that
detective Cvetic be brought to . . . testify to the validity of the unauthenticated remarks made by
detective Paul.” Id. Compare note, supra (regarding personal knowledge of Officer Paul).
15
16
Petitioner objects that his counsel stated that Petitioner had pulled a gun on the victim,
knowing “that Petitioner was going to testify that he did not have a weapon.” Id. Compare
32
failing to conduct an independent investigation of crime scene or interview Officer Cvetic; 17 (5)
making prejudicial remarks during closing arguments (i.e., that Petitioner “became so enraged
that he pulled a gun and pointed it at Jouron Miller”);18 and as to subsequent counsel: (6) failing
to raise trial counsel’s ineffective assistance on appeal and preserve meritorious issues of
unauthenticated exculpatory evidence, lack of probable cause and right to confront accuser (i.e.,
Officer Cvetic).19
supra (discussing evidence regarding Petitioner’s possession of a gun). Compare supra
(discussion of trial evidence). He further objects that “trial counsel should have also interviewed
detective Jim Cvetic” because if “Cvetic’s testimony [were] different from dectective Paul’s [it]
would have proved that Petitioner did not commit the crimes charged.” Id. The Court observes
that, as Petitioner has emphasized repeatedly, Officer Paul’s testimony was regarding, and in
concurrence with Officer Cvetic’s transcript of, the homicide department’s joint-Officer
interview of Petitioner. See Commonwealth’s Answer in Response to Supplemental Brief at 19
(“There was no indication Detective Cvetic would have testified inconsistent to the information
found in his report or any differently than Detective Paul . . . . Thus, calling Detective Cvetic to
testify could have proven more harmful . . . to Petitioner’s case. . . .”). Trial counsel’s conduct
was of course, therefore, entirely reasonable, as were the State Court related determinations.
Petitioner opines that had his counsel conducted an “independent investigation of the crime
scene” and “forensic evidences”, he “would have found out that Petitioner was actually
innocent.” Id., unnumbered at Ground Four. Compare Commonwealth’s Answer in Response to
Supplemental Brief at 19 (noting that Petitioner made no demonstration regarding trial counsel’s
examination of the evidence, or how going to the scene or further investigating the
Commonwealth’s witnesses would have proven his innocence); id. (further noting trial transcript
evidence of counsel’s familiarity with evidence, witnesses, and case).
17
See note supra regarding Petitioner’s similarly-based claim of inadequacy of counsel at point
(3). See also Commonwealth’s Answer in Response to Supplemental Brief at 20 (noting that
closing remarks in context were consistent with, and advanced, counsel’s theory of case and
refutation of Commonwealth’s)
18
Here again Petitioner’s assertions intermingle and overlap those made elsewhere. See supra,
discussion in text of Opinion.
19
33
Having concluded that Petitioner exhausted his layered ineffectiveness claim, and in
accordance with its observations supra regarding the more extensive State Court proceedings and
the rather muddled/oblique/varied assertions by Petitioner throughout, this Court will proceed to
address whether the State Courts' denial of Petitioner’s ineffective assistance claims “was
contrary to, or involved an unreasonable application of, clearly established Federal law,” 28
U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” id. § 2254(d)(2). As noted supra, a claim of
ineffective assistance of counsel is assessed under the Strickland test. In Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987, the Pennsylvania Supreme Court refined the Strickland
performance and prejudice test into a three-part inquiry under which, to prove counsel
ineffective, the petitioner must show that (1) the underlying legal issue has arguable merit; 2)
counsel’s actions lacked an objective reasonable basis; and (3) actual prejudice befell petitioner
from counsel’s act or omission.20
With respect to the sequence of consideration, the Strickland Court held that “a court
need not determine whether counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be
so, that course should be followed.” 466 U.S. at 697. See Rainey v. Varner, 603 F.3d 189, 200 201 (3d Cir. 2010).
20
See also Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005) (noting that ineffectiveness
claims are distinct issues under the PCRA to be reviewed under the three-prong ineffectiveness
standard announced in Pierce).
34
Even assuming underlying merit (in this case a significant assumption as to each
enumerated issue), Petitioner’s assertions that his trial counsel was ineffective in multiple
instances simply cannot be maintained given his patent inability to establish that any of the
asserted deficiencies in his attorney’s performance would have sufficiently prejudiced his
defense.21 See extensive explication of trial transcript, evidentiary findings, and State Court
determinations, supra. The properly admitted and uncontradicted evidence of guilt was itself
overwhelming. Thus it is certainly properly concluded that, even if counsel had comported
himself as Petitioner preferred,22 no different result would have obtained. Cf. Commonwealth v.
Colavita, 993 A.2d 874, 887 (Pa. 2010); Commonwealth v. Page, 965 A.2d 1212, 1222 (Pa.
Super. 2009). The State Court’s determinations were neither contrary to nor an unreasonable
application of established federal law, nor an unreasonable determination of the facts.
Petitioner’s claim for habeas relief for ineffective assistance of trial counsel is, accordingly,
without merit under the applicable standards.
21
That is, the Court could only - on the record and on the merits - deny any claim of ineffective
assistance of counsel, even if the Court were able to conclude any such particular claim was not
procedurally defaulted , either because (a) the claim was adequately raised through State Court
proceedings or (b) its default was attributable to ineffectiveness of appellate counsel under
Martinez (see infra).
And the Court here notes that counsel’s electing a different course in the exercise of his
experienced legal judgment/strategy choices, or recognition of the non-maintainability of
Petitioner’s desired challenges or assertions, is quite another matter than the ineffectiveness in
representation Petitioner purports. See discussions of procedural history and State Court filings,
supra. See also Commonwealth’s Answer at 40 (noting that “reasonableness of counsel’s
actions must be considered in light of the facts of a particular case” and “a court must indulge a
strong presumption that counsel’s conduct fell within the wide range of reasonable professional
assistance” while a defendant must overcome the presumption that the challenged action “might
be considered sound trial strategy”) (quoting Strickland at 689).
22
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Petitioner also raises a claim to excuse any procedural default on the basis of
ineffectiveness of appellate counsel, as noted supra. 23 Any such claim lacks merit for purposes
of habeas relief for the same reasons as set forth above.24
In sum, Petitioner has simply not met his burden of showing that he is entitled to habeas
corpus relief as to this layered claim. The determinations regarding the magnitude of the
evidence against Petitioner and the assessments and dismissals of his sometimes amorphous and
sometimes varying claims of ineffectiveness of counsel were objectively reasonable. See
generally Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999 (discussing requirements of
analysis under Strickland. Cf. Parrish v. Fulcomer, 150 F.3d 326, 328-29 (3d Cir. 1998) (noting
that “counsel assistance does not become ineffective by failing to raise an issue when convincing
Supreme Court case law shows it be without merit”).
E. Actual innocence and/or miscarriage of justice
Petitioner’s claim, to the extent one is incorporated in his Petition and related filings,25 of
actual innocence and a related miscarriage of justice is “not itself a constitutional claim, but
23
Cf. generally Martinez v. Ryan, 132 S. Ct. 1309 (2012) (holding that habeas petitioner may
establish cause for his default of an ineffective assistance of trial counsel claim by demonstrating
that PCRA counsel rendered ineffective assistance). Until Martinez was decided, even cause for
default could not be shown in this manner because there is no constitutional right to counsel in
PCRA proceedings, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), nor a constitutional right
to the effective assistance of counsel in PCRA proceedings. Coleman, 501 U.S. at 752-53.
See also Commonwealth’s Answer in Response to Supplemental Brief at 15 (observing that
Martinez “did not create an automatic exception to the procedural default rule and “prisoner must
demonstrate that the underlying ineffective assistance claim is substantial”).
24
36
instead a gateway through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993). As
set forth in the preceeding pages, the Court has afforded Petitioner consideration of each of his
claims on the merits. Had it not, Petitioner’s claims would not reach this gateway for reasons
articulated above and in the Commonwealth’s pleadings. See Schlup v. Delo, 513 U.S. 298
(1995) (reiterating that “[t]he meaning of actual innocence. . . [requires that given Petitioner’s
“new reliable evidence . . . that was not presented at trial”] no reasonable juror would have
found the defendant guilty”); Cristin v. Brennan, 281 F.3d 414 (3d Cir. 2002).
V. 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 provided for in 28
U.S.C. § 2253, “[a] certificate of appealability 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 v. Cockrell, 537
U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “When the district
court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying
See, e.g., Petition (unnumbered, at Ground Three) (“Petitioner avers that the true facts and
merits of this case supports one whom is actually innocent.”); id. (“[P]etitioner was not the
shooter but is actually innocent of the crimes charged.”).
25
37
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).
Petitioner has not made the requisite showing in these circumstances. Accordingly, a certificate
of appealability will be denied.
VI. CONCLUSION
For the reasons set forth above, the Petition for Writ of Habeas Corpus (ECF No. 4) will
be denied and a certificate of appealability will also be denied.
Dated: February 13, 2014
_/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
Chief United States Magistrate Judge
Cc:
Counsel of Record
Andre C. Lowry
DP-3069
S.C.I. Graterford
Box 244
Graterford, PA 19426
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