HAYES v. WENEROWICZ et al
Filing
12
MEMORANDUM OPINION & ORDER re 1 Petition for Writ of Habeas Corpus filed by DAVON R. HAYES, denying the Petition for Writ of Habeas Corpus and denying a Certificate of Appealability. Signed by Chief Magistrate Judge Maureen P. Kelly on 4/13/2015. (tmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVON R. HAYES,
)
)
)
vs.
)
)
MICHAEL WENEROWICZ
)
SUPERINTENDENT FOR THE STATE
)
CORRECTIONAL INSTITUTION AT
)
GRATERFORD And; KATHLEEN G.
)
KANE ATTORNEY GENERAL FOR THE )
COMMONWEALTH OF PENNSYLVANIA, )
Respondents. )
Petitioner,
Civil Action No. 13-589
Chief Magistrate Judge Maureen P. Kelly
OPINION
Davon Renee Hayes (“Petitioner”), represented by privately retained counsel, has filed
this Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. §
2254 (the “Petition”), seeking to attack his state court convictions for second degree murder and
robbery for which Petitioner was sentenced to life in prison without the possibility of parole.
ECF No. 1.
I. BACKGROUND
During the nonjury trial of Petitioner in the Court of Common Pleas of Allegheny County
from February 28, 2005 to March 2, 2005, detectives testified that Petitioner confessed his
involvement in the robbery of a local store which resulted in the shooting of the store owner.
Detective Logan was the officer who interrogated Petitioner and Detective Logan testified that
Petitioner admitted to agreeing with two other males to rob the store and that Petitioner would
act as a lookout. During the nonjury trial, Petitioner took the stand in his own defense and
asserted that, during his interrogation, he initially denied any involvement but because of
Detective Logan’s haranguing of Petitioner, Petitioner told Detective Logan “[w]hat he [i.e.,
Detective Logan] wanted to hear.” State Court Record (“SCR”), Notes of Testimony (“N.T.”) at
144, line 18. Petitioner also testified that what he told Detective Logan about Petitioner’s
involvement, i.e., about him going to the store and agreeing to rob the store, was all a lie to
Detective Logan and just part of telling Detective Logan what he wanted to hear. Id. at 144,
lines 23-25. The Honorable John A. Zottola, who presided over the nonjury trial, disbelieved
Petitioner when he stated that he had lied to Detective Logan about his involvement. Judge
Zottola found Petitioner’s confession to Detective Logan credible and found Petitioner guilty of
second degree murder and robbery.
Petitioner now brings this Petition, which, he concedes through his counsel, violates the
one year statute of limitations. However, Petitioner contends that he has shown “actual
innocence” so as to meet a judicially created exception to the AEDPA statute of limitations.
Because Petitioner failed to carry his burden to show actual innocence of the crimes, the
Petition will be dismissed. Because jurists of reason would not find the denial of habeas relief
debatable, a certificate of appealability will likewise be denied.
II. PROCEDURAL HISTORY
Attorney Mark Rubenstein initiated these proceedings by the filing of the instant Petition.
The two issues raised were:
A. Mr. Hayes, was denied his Sixth Amendment right to the effective assistance
of counsel at trial because Trial Counsel did not thoroughly investigate or
subpoena several alibi witnesses. These witnesses would have corroborated Mr.
Hayes’ claim that he was not involved in the robbery. Furthermore, the testimony
of these witnesses would have bolstered Trial Counsel’s attempts to show that Mr.
Hayes’ inculpatory statement was not credible but the product of Mr. Hayes’
severe learning disability, low intelligence and his desire to tell the detectives
what they wanted to hear so that he could be released. By permitting PCRA
counsel to withdraw and implicitly adopting PCRA counsel’s determination that
Trial Counsel was not ineffective for failing to investigate Mr. Hayes’ alibi
2
witnesses, Judge Zottola rendered a decision that was an unreasonable application
of clearly established federal law.
B. Mr. Hayes was denied his Sixth Amendment right to the effective assistance
of counsel at trial because Trial Counsel failed to challenge the propriety of Mr.
Hayes' arrest at the suppression hearing. The arresting officers testified that they
arrested Mr. Hayes on an outstanding juvenile warrant. The Commonwealth did
not produce a copy of the alleged juvenile warrant. None of the arresting officers
testified that they ever saw this juvenile warrant. The only testimony offered at
the suppression hearing consisted of hearsay Detective Nutter, who testified that
he spoke with Mr. Hayes' juvenile probation officer to confirm the existence of
the warrant. Trial Counsel did not object to the officers' hearsay testimony
concerning the warrant or otherwise challenge the propriety of the warrant. PCRA
Counsel acknowledged that Trial Counsel was deficient for failing to properly
litigate this issue or preserve it for direct appeal, but reasoned that Mr. Hayes was
not prejudiced by Trial Counsel's errors in this regard because Judge Zottola 's
finding that Mr. Hayes' waiver of his Miranda rights was knowing and intelligent
would purge the taint of any potential illegal arrest and render his statement
admissible regardless of a Fourth Amendment violation. By permitting PCRA
counsel to withdraw and implicitly adopting PCRA counsel's determination that
Trial Counsel's deficient performance did not prejudice Mr. Hayes, Judge Zottola
rendered a decision that was an unreasonable application of clearly established
Federal law.
ECF No. 1 at 15. Respondents filed an Answer in which they raised, inter alia, the
AEDPA statute of limitations, asserted that Petitioner procedurally defaulted his two
claims, and also denied that Petitioner was entitled to relief on the merits. ECF Nos. 5 7. Respondents also attached copies of much of the state court record to their Answer.
Respondents caused the original state court record to be transmitted to this Court.
Petitioner filed a traverse claiming that he had new evidence of his actual innocence so as
to overcome his violation of the AEDPA statute of limitations. ECF No. 10. All parties
have consented to the plenary exercise of jurisdiction by the Magistrate Judge. ECF Nos.
8, 9.
3
III. APPLICABLE LEGAL PRINCIPLES
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I,
'101 (1996) (the “AEDPA”) which amended the standards for reviewing state court judgments
in federal habeas petitions filed under 28 U.S.C. ' 2254 was enacted on April 24, 1996. Because
Petitioner=s habeas Petition was filed after its effective date, the AEDPA is applicable to this
case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000).
Respondents pointed out in their Answer that this petition is untimely under AEDPA. As
relevant here, AEDPA requires that state prisoners file their federal habeas petition within one
year after their conviction became final.1 Specifically, AEDPA provides that:
(d)(1) A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of-(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
....
(2) The time during which a properly filed application for State
post- conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.
28 U.S.C. § 2244(d).
A habeas respondent has the burden of affirmatively pleading AEDPA’s statute of
limitations. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). However, it is appropriate where the habeas petitioner has been put on notice of a statute of limitations defense - to place
1
Although AEDPA provides three other potential starting points for the running of its one year
limitations period, Petitioner has not argued for the application of any of those three other
starting points. Given that the Petition is counseled, we deem Petitioner to have affirmatively
waived any argument as to the applicability of those other starting points.
4
some burden on him or her to show why the petition is not untimely. See, e.g., Smith v. Duncan,
297 F.3d 809, 814 (9th Cir. 2002) ("once a petitioner is given adequate notice and opportunity to
respond to allegations that his petition is subject to dismissal pursuant to AEDPA's statute of
limitations, petitioner has the burden of providing an adequate response"), abrogation on other
grounds recognized in, Moreno v. Harrison, 245 F. App’x 606 (9th Cir. 2007). See also Jackson
v. Secretary for Dept. of Corrections, 292 F.3d 1347, 1349 (11th Cir. 2002); Robinson v.
Johnson, 313 F.3d 128, 134 (3d Cir. 2002)(“The purpose of requiring the defendant to plead
available affirmative defenses in his answer is to avoid surprise and undue prejudice by
providing the plaintiff with notice and the opportunity to demonstrate why the affirmative
defense should not succeed.”).
In Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000), the United States Court of Appeals
for the Second Circuit explained the important purposes that AEDPA’s statute of limitations
serves. In Acosta, the Court of Appeals stated that:
The statute of limitation in Section 2244(d) "was Congress' primary
vehicle for streamlining the habeas review process and lending finality to
state convictions." Walker v. Artuz, 208 F.3d 357, 361 (2d Cir.2000); cf.
Schlup v. Delo, 513 U.S. 298, 322 (1995) (stating that on collateral review,
courts should "accommodate [ ] ... the systemic interests in finality ... and
conservation of judicial resources"). The AEDPA statute of limitation
promotes judicial efficiency and conservation of judicial resources,
safeguards the accuracy of state court judgments by requiring resolution of
constitutional questions while the record is fresh, and lends finality to state
court judgments within a reasonable time. Like the other procedural bars
to habeas review of state court judgments, the statute of limitation
implicates the interests of both the federal and state courts, as well as the
interests of society[.]
Id. at 123.
5
IV. DISCUSSION
A. The Petition is Untimely.
Although Petitioner concedes that the Petition is facially untimely as measured from the
date his conviction became final, it is important to actually calculate how the Petition is
untimely, given that it appears the Respondents made a minor error in the calculating of the
AEDPA statute of limitations, which does not affect the outcome.
Petitioner’s conviction
became final on July 8, 2008, i.e., 90 days after the Pennsylvania Supreme Court, on April 9,
2008, denied his Petition for Allowance of Appeal during Petitioner’s direct appeal proceedings.
ECF No. 5 at 15. Petitioner filed a timely Post Conviction Relief Act (“PCRA”) Petition on
January 29, 2009 (“the First PCRA Petition”). Id. Between July 8, 2008 and January 29, 2009, a
total of 205 days of AEDPA’s 365 day statute of limitations were used up, leaving only 160 days
remaining.2 Petitioner’s First PCRA Petition ceased to be pending on January 26, 2011, 30 days
after the Pennsylvania Superior Court denied Petitioner’s request for reconsideration, where
Petitioner did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.
Id. In order for Petitioner’s instant Petition to be filed timely in this Court, Petitioner needed to
file his Petition no later than July 5, 2011. However, the Petition in this Court was not filed until
April 9, 2013. ECF No. 1. The instant Petition was filed over 19 months late.
We note that at some point in time Petitioner retained present counsel. On April 11,
2011, Petitioner’s present counsel filed a Second PCRA Petition in the state courts rather than
file a habeas petition in this Court. ECF No. 5 at 15. At that time, the AEDPA statute of
limitations had not yet run and would not run for another nearly three months. The record is
2
Respondents assert that a mere 197 days passed between July 8, 2008 and January 29, 2009.
ECF No. 5 at 15. Given how tardy the Petition is, the difference between the Respondents’
calculation of the number of days and this Court’s calculation, is of no significance.
6
silent as to why Petitioner’s present counsel failed to file a protective habeas petition in this
Court and request a stay and abey of the federal habeas petition while pursuing the Second
PCRA Petition.3 See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (“A prisoner seeking state
postconviction relief might avoid this predicament, however, by filing a ‘protective’ petition in
federal court and asking the federal court to stay and abey the federal habeas proceedings until
state remedies are exhausted.”).
Having failed to file a timely Petition in this Court, Petitioner must now seek to establish
his actual innocence of the convictions in order for this Court to overlook Petitioner’s violation
of the AEDPA statute of limitations and to address his two claims on the merits.
B. Actual Innocence is an Exception to the AEDPA Statute of Limitations.
As pointed out by the Petitioner, the United States Supreme Court has held that there is
an “actual innocence” exception to the AEDPA statute of limitations such that where a federal
habeas petitioner makes an adequate showing of actual innocence, the federal habeas court may
consider the habeas petition on the merits notwithstanding that the Petition violates the one year
AEDPA statute of limitations. McQuiggen v. Perkins, 133 S.Ct. 1924 (2013). In McQuiggen,
the Supreme Court declared:
We hold that actual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar, as it was in
Schlup and House, or, as in this case, expiration of the statute of limitations. We
caution, however, that tenable actual-innocence gateway pleas are rare: “[A]
petitioner does not meet the threshold requirement unless he persuades the district
3
Although a “properly filed” PCRA Petition can toll the AEDPA statute of limitations, because
the state courts found that the Second PCRA Petition was untimely filed under state law, the
Second PCRA Petition cannot toll the AEDPA statute of limitations. Pace, 544 U.S. at 413
("[A]n application is 'properly filed' when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings' including ‘time limits upon its delivery'")(quoting
Artuz v. Bennett, 531 U.S. 4, 8 (2000)); Merritt v. Blaine, 326 F.3d 157, 165-66 & n. 6 (3d Cir.
2003) (holding that because petitioner's second PCRA petition was untimely under state law, it
was not "properly filed" for purposes of AEDPA).
7
court that, in light of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S., at 329,
115 S.Ct. 851; see House, 547 U.S., at 538, 126 S.Ct. 2064 (emphasizing that the
Schlup standard is “demanding” and seldom met). And in making an assessment
of the kind Schlup envisioned, “the timing of the [petition]” is a factor bearing on
the “reliability of th[e] evidence” purporting to show actual innocence. Schlup,
513 U.S., at 332, 115 S.Ct. 851.
Id. at 1928. In order to successfully invoke the “actual innocence” exception, which is also
known as, the “miscarriage of justice” exception4 a petitioner must:
satisfy a two-part test in order to obtain review of otherwise procedurally barred
claims. First, the petitioner's allegations of constitutional error must be supported
with new reliable evidence not available at trial. Schlup, 513 U.S. at 327-28.
Second, the petitioner must establish "that it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence." Id. at
327.
Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001), cert. denied, 498 U.S. 881 (2001). It
is not enough that in light of the new evidence a reasonable doubt may exist as to the Petitioner’s
guilt, the test is even more onerous than that. In Schlup, the Supreme Court reiterated that "[t]he
meaning of actual innocence as formulated by Sawyer and Carrier does not merely require a
showing that a reasonable doubt exists in the light of the new evidence, but rather that no
reasonable juror would have found the defendant guilty." Schlup, 513 U.S. at 329.
The first prong of the two part test, i.e., whether the proffered evidence is new, provides
that “evidence is new only if it was not available at trial[.]” Amrine v. Bowersox, 238 F.3d at
1028.5 Petitioner’s claim of actual innocence fails on this ground.
4
Lenhart v. Rozum, Civ.A. No. 10–218J, 2014 WL 807995, at *16 (W.D. Pa., Feb. 28, 2014)
(“The ‘actually innocent’ standard is the same as the ‘fundamental miscarriage of justice’
standard, which applies ‘when a constitutional violation probably has caused the conviction of
one innocent of the crime.’”) (quoting, United States v. Sorrells, 145 F.3d 744, 749 n.3 (5th Cir.
1998)).
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C. Petitioner’s Evidence is Not “New.”
In order to carry his burden of proving new evidence of actual innocence, Petitioner relies
on three affidavits from Petitioner’s friends all of whom state that Petitioner was with them at the
time of the store robbery. ECF No. 1 at ¶ 79. In addition, Petitioner relies on an affidavit from
Attorney Mark Rubenstein who avers that he spoke with yet a fourth potential alibi witness who
“corroborated” Petitioner’s alibi but because of alleged animosity toward Petitioner refused to
appear in court or sign an affidavit. Id. at ¶ 80. However, Petitioner’s argument necessarily
concedes that all four of the alleged alibi witnesses who claim that Petitioner was with them,
constituted evidence of Petitioner’s alibi that existed at the time of trial. Indeed, Petitioner’s
very argument here is that there existed alibi witnesses at the time of trial of which he made his
trial counsel aware but that his trial counsel failed to investigate his alibi. Specifically, Petitioner
argues that:
Mr. Hayes can present credible alibi witnesses who were with him at the time of
the shooting and who could place him in another location away from the scene of
the crime. Mr. Hayes told his trial attorney, Assistant Public Defender
Kathleen A. Gribbins (hereinafter "Trial Counsel"), about these witnesses and
repeatedly implored her to investigate his alibi and subpoena the witnesses for his
trial. Trial Counsel seemingly did little, if anything, to investigate the alibi and
did not subpoena the witnesses for trial, instead telling the incarcerated Mr.
Hayes that he should contact them himself and tell them to appear at his trial.
Under the facts and circumstances of this case, Mr. Hayes submits that his
evidence of actual innocence will make clear that the verdict below was not a
reliable determination of guilt but the result of Trial Counsel’s ineffectiveness.
5
There does appear to be one narrow exception to the requirement of producing new evidence in
order to successfully demonstrate a “miscarriage of justice.” See, e.g., United States v. Garth,
188 F.3d 99 (3d Cir. 1999). However, for reasons explained in Sweger v. Chesney, 294 F.3d
506, 523 n.18 (3d Cir. 2002) and Gale v. Rozum, No. 06-CV-1266, 2006 WL 2092572 (M.D.Pa.
July 25, 2006), the narrow Garth exception does not apply here. Whereas in Garth a subsequent
interpretation of a criminal statute by the United States Supreme Court may have rendered the
petitioner therein not guilty of the crime, no such factual scenario is present here.
9
ECF No. 10 at 4. See also Unsigned Affidavit of Petitioner, ECF No. 1-2 at ¶ 7 (listing the very
same four alleged alibi witnesses as Petitioner now relies on herein, namely, Tyru Smith,
Princess Murphy, Jalyn Thomas and Miracle Smith).
Because the alibi evidence was concededly available at the time of the trial, it cannot
constitute “new” evidence of actual innocence. McQuiggen, 133 S.Ct. at 1935 (“To invoke the
miscarriage of justice exception to AEDPA's statute of limitations, we repeat, a petitioner ‘must
show that it is more likely than not that no reasonable juror would have convicted him in the
light of the new evidence.’” McQuiggen, 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327)
(emphasis added); Ross v. King, No. 1:13cv70–HSO–RHW, 2013 WL 6048156, at *3
(S.D.Miss. Nov. 15, 2013) (“[petitioner] has presented no new evidence, he simply argues the
DNA evidence which existed at the time he pled guilty is evidence of his innocence.”); James v.
Ratman, No. CV 11–8693–ABC(MAN), 2013 WL 5840278, at *8 (C.D. Cal. Oct. 28, 2013)
(noting that statement of which petitioner “was fully aware ... before and during his trial ...
cannot be said to constitute the requisite ‘evidence claimed to have been wrongly excluded or to
have become available only after the trial’ ”) (quoting Schlup, 513 U.S. at 328).6 Accordingly,
Petitioner fails to carry his burden to show that he has “new” evidence so as to satisfy the first
prong of the actual innocence test.
6
For present purposes of deciding whether the evidence is “new,” we utilize the so-called
“modified Amrine definition” of “new evidence” as set forth in Houck v. Stickman, 625 F.3d 88
(3d Cir. 2010). However, because the allegedly new evidence presented here was known to
Petitioner’s trial counsel at the time of the trial, we do not find the evidence to constitute “new
evidence” within the contemplation of Houck. See id. at 94 (“we are inclined to accept the
Amrine definition of new evidence with the narrow limitation that if the evidence was not
discovered for use at trial because trial counsel was ineffective, the evidence may be regarded as
new provided that it is the very evidence that the petitioner claims demonstrates his innocence.”)
(emphasis added).
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D. Petitioner Fails to Show That No Reasonable Juror Would Have Convicted Him.
Even if however, such evidence could qualify as “new,” Petitioner fails to show that “it is
more likely than not that no reasonable juror would have convicted him in light of the new
evidence." Amrine, 238 F.3d at 1029. The focus under the “actual innocence” exception is on
establishing actual innocence as opposed to legal innocence, and so this Court is not bound to
consider only the evidence introduced at a habeas petitioner’s criminal trial.
See Schlup, 513
U.S. at 327 - 28, wherein the court held that “[i]n assessing the adequacy of petitioner’s showing
[of actual innocence], therefore, the district court is not bound by the rules of admissibility that
would govern at trial. Instead, the emphasis on ‘actual innocence’ allows the reviewing [habeas]
tribunal also to consider the probative force of relevant evidence that was either excluded or
unavailable at trial.” Indeed, the Supreme Court explained more fully what it meant by allowing
a court to consider evidence not heard at trial when it declared that
The habeas court must make its determination concerning the petitioner's innocence
"in light of all the evidence, including that alleged to have been illegally admitted
(but with due regard to any unreliability of it) and evidence tenably claimed to have
been wrongly excluded or to have become available only after the trial."
Id. at 328. In conducting this analysis, the court is guided by the principle that a “district court
must not use its independent judgment as to whether, in light of new evidence, reasonable doubt
exists. Rather, the district court must ‘make a probabilistic determination about what reasonable,
properly instructed jurors would do.’” Abu-Jamal v. Horn, No. Civ.A. 99-5089, 2001 WL
1609690, at *9, (E.D. Pa. Dec. 18, 2001), aff’d, 520 F.3d 272 (3d Cir. 2008), cert. granted and
judgment vacated on other grounds by, 558 U.S. 1143 (2010).
Hence, we weigh the evidence of the three affiants, and counsel’s affidavit, recounting
statements by another individual who refused to provide an affidavit, all of which say Petitioner
was at a park with them at the time of the robbery and shooting, against the evidence of
11
Petitioner’s guilt. We note however that such affidavits were not given until, at the earliest,
February 2011, ECF No. 7-5 at 10, with the latest affidavit being given in April 2011, id., at 12,
notwithstanding the fact that Petitioner contends he informed his trial counsel of his alibi
witnesses prior to trial which occurred in March 2005. The Supreme Court in McQuiggen
specifically permitted federal habeas courts, in assessing the credibility of new evidence, to
consider any delay in presenting evidence of actual innocence. McQuiggen, 133 S.Ct. at 1936
(“The timing of such a petition, however, should seriously undermine the credibility of the actual
innocence claim.”).
We find that the timing of the affidavits, coming nearly six years after the trial, seriously
undermines the credibility of the actual innocence claim. We further note that notwithstanding
Petitioner’s assertion that he had credible alibi witnesses, the record before this Court indicates
that Petitioner’s trial counsel did indeed attempt to contact these alleged alibi witnesses prior to
trial but they proved to be elusive and/or non-cooperative.
In a series of letters exchanged between Petitioner and his trial counsel, it becomes
apparent that Petitioner’s alleged alibi witnesses were either not cooperative or not able to be
located.7 We find that the delay in Petitioner’s producing of these affidavits until 2011 weighs
7
In a letter dated October 19, 2004 to Petitioner from trial counsel, trial counsel wrote:
Additionally you should know that I have tried repeatedly to contact Princess
Murphy, but have been unable to do so in the past week and a half. . . .
…. Naturally your character witnesses and other witnesses will be available for
trial. This is the first time I am hearing of a problem with the fact that my
investigators are white and they are scaring your black witnesses. Kindly let me
know which witnesses are unable to speak to my white investigators and I will
make arrangements for other investigators to speak with them.
ECF No. 7-5 at 19. We note that the first sentence of the second paragraph quoted above was
marked with a highlighter and consequently rendered illegible on the copy of the letter found at
(. . . footnote continued next page)
12
against the credibility of the affidavits within the contemplation of McQuiggen. This is
especially so in light of the fact that Petitioner proved quite active in participating in the
preparation of his defense and his appellate and PCRA proceedings as evidenced by the record
before this Court. Given the level of his active participation, it is incredible that he would not
protest the lack of alibi witnesses, if, in fact, he had expected alibi witnesses to be produced. Of
particular significance, we take note that Petitioner himself did not testify to an alibi when he
took the stand in his own defense. The record before this Court suggests that the proposed alibi
ECF No. 7-5 at 19. However, the original state court record contains a copy of such letter where
that sentence is legible.
The second letter is the letter of October 28, 2004 to Petitioner from Trial Counsel
wherein Trial Counsel wrote:
I was happy to receive the list of witnesses from you, and will have my
investigators serve subpoenas on these people at the appropriate time. Since your
case is not listed until February, and we don’t want them to be lost, we will
probably wait until a little closer to that date to serve them. However, as far as
individuals who [sic] full addresses we do not know, please be advised that we
will begin a search for them immediately, and they will be subpoenaed.
I believe you know that I have already spoken to Johanna and Chad
Collins and Princess Murphy, and they have all given me valuable information.
We need to talk about making a final decision on whether or not you wish to
pursue an alibi defense because of the way your alibi witnesses will be questioned
at trial.
Okay, I know think [sic] I understand what you are saying about your
witnesses. All of my investigators should have proper ID. And I will be sure to
mention to them that they must show it when interviewing witnesses on your list.
Where we have phone numbers I can also try leaving messages that they will be
contacted but it has been my experience that, where you are dealing with juvenile
witnesses, their parents will often interfere. It is sometimes best to contact the
juvenile witnesses directly in person. I do hope you realize that any witness is
intent [sic] on attending your trial, can simply walk in without a subpoena.
ECF No. 7-5 at 20-21. Again, certain portions of the October 28, 2004 letter are
highlighted, rendering them illegible on the docket, but again, the original state court
record contains a copy of the letter that is legible.
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witnesses were either not cooperative, not able to be located or, importantly, that there was a
strategic decision made not to pursue an alibi defense.
There is record evidence suggesting that there was a strategic decision not to pursue alibi
witnesses. During the colloquy between Judge Zottola and Petitioner, occurring immediately
before the nonjury trial started, the following exchange took place between Petitioner and Judge
Zottola:
JUDGE ZOTTOLA: Are you satisfied with her [i.e., Trial Counsel’s] representation.
DEFENDANT HAYES: Yes.
JUDGE ZOTTOLA: Okay. Early on you sent me letters and you sent Judge
Kelly letters indicating some dissatisfaction with your counsel. I forwarded those
letters to Ms. Cribbins because I was concerned about that. Ms. Cribbins
indicated to this Court, I don’t know whether you had discussion with her about it,
that she felt she could fairly and adequately represent you as well as legally
represent. And I wanted you to know that.
Is that correct, Ms. Cribbins?
ATTORNEY CRIBBINS: Yes.
JUDGE ZOTTOLA: Are you satisfied with counsel?
DEFENDANT HAYES: Yes, I am.
SCR N.T. at p. 111, lines 22 - 25 – p. 112 lines 1 - 17. If Petitioner were dissatisfied that no alibi
witnesses were going to be called or none were present in the courtroom at the time of his
colloquy which occurred immediately before his trial, he could have objected then but, tellingly,
he did not. Such failure supports the inference that he and his trial counsel decided not to pursue
an alibi defense. When he took the stand in his own defense, Petitioner did not testify as to an
14
alibi or that he was with any of his alleged alibi witnesses at the time of the crime. Accordingly,
in light of the foregoing, we find the affidavits to be of questionable credibility.8
We now consider the evidence of Petitioner’s guilt. The evidence of Petitioner’s guilt
includes testimony of two police officers that Petitioner confessed in their presence, to
participating in the robbery, even though Petitioner denied on the stand that he made such a
confession and even though he denied a second police officer was present in the interrogation
room where he confessed. The trial court, sitting as a fact finder, simply did not believe
Petitioner when he denied that he made a confession to the police officers and instead credited
the testimony of the two officers. The evidence of Petitioner’s guilt includes the fact that
Petitioner’s confession, which was summarized and reduced to writing and which was signed by
Petitioner, included information that was not known to the public. There were at least two pieces
8
If we were to reach the merits of Petitioner’s two claims of trial counsel’s ineffectiveness, and
even if we conducted de novo review of such claims, we would deny those claims on the merits.
Our recounting of the evidence concerning trial counsel’s efforts to locate the alibi witnesses and
trial counsel’s efforts to have her investigators interview Petitioner’s alleged alibi witnesses and
the evidence of record suggesting that there was a strategic decision not to call alibi witnesses
would be more than sufficient to sustain the presumption that trial counsel acted reasonably.
United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995) (“counsel is presumed effective . . . .
we are mindful of the strong presumption that counsel's performance was reasonable”). Given
the record’s silence as to any evidence of trial counsel lacking a reasonable basis for not
presenting the alibi witnesses, Petitioner fails to sustain his burden to rebut the presumed
reasonableness of trial counsel’s actions.
As to the second ground for relief, asserting that trial counsel was ineffective for failing
to challenge the propriety of Petitioner’s arrest pursuant to a juvenile warrant that was never
physically produced at trial or entered into evidence, we find the claim meritless. Petitioner
himself admitted on the stand that, at the time of his arrest, he knew that he was wanted on an
arrest warrant. SCR N.T. at 57, lines 2 to 7 (“On October 10, 2003, 2:30 probably, I’m in
Omega Park. I’m arguing with a friend of mine. A couple of my friends ran. I turn around. I
have four officers in my face. I don’t know what their reason is. I know I’m wanted for a
warrant though. They said I was under arrest for a juvenile warrant.”). Hence, Petitioner
conceded that he was wanted on a warrant. Thus, Petitioner cannot show that there was no
warrant in existence at the time of his arrest so as to establish this claim has any merit.
Secondly, given his admission, he cannot show that he was prejudiced by the lack of the physical
production of the warrant into evidence. Accordingly, neither claim of ineffectiveness provides
a ground for relief in this federal habeas proceeding.
15
of information that were not known to the public that Petitioner’s confession included. First,
Petitioner indicated that the gun shown him by one of his accomplices/co-conspirators before
entering the store was a “deuce-deuce” which apparently meant a .22 caliber gun. SCR, N.T. at
139, lines 3 – 8. In fact, the gun used to kill the victim was a .22 caliber gun. Secondly, in his
confession, Petitioner indicated that when they entered the store, they were wearing masks,
which alerted the store owner who attempted to pull out his own gun and that the store owner
and one of Petitioner’s co-conspirators struggled over the store owner’s gun. When the police
processed the scene of the crime, they found a gun near the victim that was not fired.
Apparently, the fact that the victim also had a gun was not public information. In her
summation at the end of the nonjury trial, the prosecutor specifically pointed out these
corroborating facts:
There is [sic] a number of specifics that Mr. Hayes gives in his statement that’s
corroborated by the scene evidence that was provided by Detective Kraeer. He
gave specifics about the type of weapon that was used, that it was a .22. We then
have two .22 caliber casings that are found at the scene. That Dr. Levine by
stipulation testified that they came from the same gun.
He also gave specifics about the victim being armed and that the gun
jammed[9] and that the officers found a 9 millimeter weapon under his foot. And
Dr. Levine’s lab report also indicates there is a round in the chamber that was
obviously not fired. These are specifics that corroborate a statement that the
defendant is now attempting to deny.
SCR, N.T. at 159, lines 1 – 17.
Weighing all of this evidence of Petitioner’s guilt against the belatedly filed affidavits of
an alleged alibi, and in the context of the whole record before this Court, and making “a
probabilistic determination about what reasonable, properly instructed jurors would do”
9
While the prosecutor stated that Petitioner indicated in his confession that the victim’s gun
jammed, our review of the record does not reveal where such testimony was given concerning
Petitioner’s confession. The record does not appear to contain Petitioner’s written confession.
16
Goldblum v. Klem, 510 F.3d 204, 226 (3d Cir. 2007) (quoting Schlup, 513 U.S. at 329), we find
that Petitioner failed to carry his burden to show it was more likely than not that no reasonable
juror would have found Petitioner guilty in light of the alibi evidence.10
V. CONCLUSION
For the reasons set forth herein, the Petition is denied. Because we find jurists of reason
would not find the foregoing debatable, we deny a certificate of appealability.
BY THE COURT:
s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
Date: April 13, 2015
cc:
All Counsel of Record via CM-ECF
10
Petitioner’s request for an evidentiary hearing concerning the statute of limitations, made in
his Reply, ECF No. 10 at 14, is denied as we do not find an evidentiary hearing necessary to
resolve the issue of actual innocence. Likewise, Petitioner’s request to conduct discovery, also
made in the Reply, id. at 13, is denied given that we do not find discovery is necessary in order
to resolve this case.
17
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