ROBINSON v. ROZUM et al

Filing 37

ORDER re (Doc. 36 ) Report and Recommendation. For the reasons stated in the Memorandum Order filed herewith, the Petition of Jerome Robinson for a writ of habeas corpus (Doc. 3 ) is DISMISSED and a certificate of appealability is DENIED. The Repor t and Recommendation of the Magistrate Judge, dated July 1, 2016, hereby is adopted as the Opinion of the District Court, with the modifications discussed in the Memorandum Order. IT IS SO ORDERED. Signed by Judge Cathy Bissoon on 9/12/16. (kg) Staff Notes: A copy of the Memorandum Order filed herewith was mailed to Petitioner at his address of record via First-Class U.S. Mail.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEROME ROBINSON,
Petitioner,
v.
GERALD ROZUM, et. al.
Respondents.

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Civil Action No. 13-1406
Judge Cathy Bissoon
Magistrate Judge Maureen P. Kelly

MEMORANDUM ORDER
This case was referred to United States Magistrate Judge Maureen P. Kelly for pretrial
proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(l)(A) and (B), and
Local Rule of Civil Procedure 72.
On July 1, 2016, the Magistrate Judge issued a Report (Doc. 36) recommending that the
petition for a writ of habeas corpus, and the certificate of appealability, be denied. Service of the
Report and Recommendation was made, and no objections have been filed.
After a review of the pleadings and documents in the case, together with the Report and
Recommendation, the following Order is entered:
The Petition of Jerome Robinson for a writ of habeas corpus (Doc. 3) is DISMISSED
and a certificate of appealability is DENIED. The Report and Recommendation of the
Magistrate Judge, dated July 1, 2016, hereby is adopted as the Opinion of the District Court, with
the following modifications:
Grounds One, Two and Five
In Grounds One, Two, and Five of the Petition, Petitioner claims that PCRA counsel was

ineffective for failing to raise the issues that trial counsel was “constitutionally deficient” for:

failing to impeach the Commonwealth’s primary witness, failing to raise the issue that the
Commonwealth used perjured testimony and failing to object and/or request a continuance for
inspection of additional evidence. Respondents argue that Petitioner failed to exhaust these three
claims by failing to raise them in his pro se Brief to the Superior Court (Doc. 22-4 at p. 8), and,
as such, the claims are procedurally defaulted. (Doc. 21 at p.17). Petitioner does not deny that
he procedurally defaulted these three grounds. Instead, Petitioner invokes Martinez v. Ryan, 132
S.Ct. 1309 (2012) and claims the ineffective assistance of his first PCRA counsel as “cause” to
excuse the procedural default of his claims of trial counsel’s ineffectiveness. (Doc. 3 at p.15).
However, as Respondents argue, Petitioner represented himself on PCRA appeal and thus cannot
rely upon Martinez to excuse his procedural default. 1 Accordingly, the Court finds that Grounds
One, Two, and Five of the Petition are procedurally defaulted.
Ground Four
In Ground Four, Petitioner claims that PCRA counsel was ineffective for failing to raise
the issue that trial counsel was constitutionally ineffective for failing to interview two possible
defense witnesses, Robert Burks and Vaughn Hall, before making his decision as to which
strategy to pursue at trial, i.e., an actual innocence strategy or a self-defense strategy. Upon
review of the record, the Court finds that Petitioner has not met his burden of showing that trial
counsel’s performance was constitutionally ineffective. See Strickland v. Washington, 466 U.S.
668 (1984). First, as Respondents argue, the record does not support Petitioner’s claim that his
trial counsel failed to interview Mr. Burks and Mr. Hall. To the contrary, the record shows that
trial counsel arranged for both witnesses to attend Petitioner’s trial but ultimately decided not to
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Because Martinez is inapplicable, the Court need not reach the issue of whether Petitioner’s
three claims of ineffective assistance of trial counsel are “substantial.” Accordingly, the Court
does not adopt those portions of the Magistrate Judge’s Report and Recommendation addressing
this issue. (See Doc. 36 at pp. 16-18).
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call them to testify. Second, it is not clear that the testimony of these two witnesses would have
supported a self-defense theory, as Petitioner suggests. For instance, Mr. Hall’s affidavit states
that he allegedly saw the victim trying to sell a handgun and a rifle in the Homewood
neighborhood of Pittsburgh on September 30, 2007. (See Doc. 22-4, at p. 130). As Respondents
argue, such testimony does not support (and, in fact, may directly contradict) Petitioner’s theory
that the victim was carrying a handgun on that same day when he met and had altercation with
Petitioner in the Hill District. See, e.g., Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir.
1990) (“To affirmatively prove prejudice, a petitioner ordinarily must show . . . that the
testimony of uncalled witnesses would have been favorable . . . ”).

For these reasons, the Court

finds that Ground Four does not merit the grant of habeas relief.
IT IS SO ORDERED.

September 12, 2016

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All counsel of record
cc (via First-Class U.S. Mail):
JEROME ROBINSON
JS-3150
S.C.I. Somerset
1600 Walters Mill Road
Somerset, PA 15510

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