BURGWIN v. FOLINO et al
Filing
21
MEMORANDUM OPINION & ORDER re 4 Petition for Writ of Habeas Corpus filed by BRANDON RAY BURGWIN, 14 Amended Document filed by BRANDON RAY BURGWIN dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 08/21/2014. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRANDON RAY BURGWIN, HT-7463,
Petitioner,
v.
LOUIS S. FOLINO, et al.,
Respondents.
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2: 14-cv-553
MEMORANDUM and ORDER
Mitchell, M.J.:
Brandon Ray Burgwin an inmate at the State Correctional Institution – Waynesburg has
presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in
forma pauperis. For the reasons set forth below, the petition will be dismissed and because
reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability
will be denied.
Burgwin is presently serving a twenty to forty year sentence imposed following his
conviction by a jury of attempted homicide, aggravated assault and carrying a firearm without a
license. The original sentence was imposed on October 6, 2008.
An appeal to the Superior Court was pursued in which the issues presented were:
1. Were Appellant's state and federal due process rights violated when he was
convicted of Unlicensed Concealed Firearms Possession … absent evidence
establishing, beyond a reasonable doubt, (A) that he shot the victim with a
firearm that had been concealed on or about his person, and (B) that the
firearm's length was such that it constituted a qualifying firearm …?
2. Did the trial court act within its authority when, after the Notice of Appeal
was filed in the instant case, it reduced Appellant's sentence for Unlicensed
Concealed Firearms Possession from 5-to-10 years of confinement to 3½ -to-7
years of imprisonment – and, if it instead lacked such authority, must not the
original 5-to-10 year sentence be vacated owing to its illegality? 1
1
See: Appendix 3 at p.3.
1
On May 11, 2010, the Superior Court affirmed his conviction of attempted homicide and
aggravated assault but reversed the firearms conviction.2 Resentencing occurred on September
21, 2010. 3
On November 24, 2010, Burgwin filed a post-conviction petition. The latter was
dismissed on February 15, 2012, and an appeal was filed in which the issues were:
I.
Whether prior counsel was ineffective, which in the circumstances of the
particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
II.
Whether there was a violation of the Constitution of this Commonwealth
or the Constitution of the United States which, in the circumstances of the
particular case, so undermined the truth-determining process that no
reliable adjudication of guilt [or] innocence could have taken place.
III.
Whether the trial court erred in dismissing appellant's PCRA petition
without a hearing.4
On July 1, 2013, the denial of post –conviction relief was affirmed5 and leave to appeal was
denied by the Pennsylvania Supreme Court on January 16, 2014.6
In the instant petition executed on April 22, 2014 and amended on July 30, 2014,
petitioner raises five claims for relief:
1. Unrightful incarceration with false imprisonment based on the victim's initial
refusal to identify her assailant and her testimony that she heard five shots
when only four fragments were located.
2. Insufficient evidence of criminal attempt-homicide in that evidence was based
on hearsay.
3. Imposition of an illegal and excessive/impermissible sentence for criminal
attempt- homicide.
4. Prosecutorial misconduct by introducing perjured hearsay testimony.
2
See: Appendix 3.
The petitioner was originally sentenced to twenty to forty years for attempted homicide and a consecutive five to
ten year term for a firearms violation. On appeal, the latter portion of the conviction was reversed and he was
resentenced on September 21, 2010 to twenty to forty years on the attempted homicide charge only.
4
See: Appendix 7 at p.5.
5
See: Appendix 8.
6
See: Appendix 5 at p.3.
3
2
5. Ineffective assistance of counsel for failing to consult with petitioner as to
whether he objected to a juror who at some time worked with petitioner's
mother and the coroner.
The factual background to this prosecution is set forth in the Superior Court's
Memorandum of July 1, 2013 setting forth the trial court's opinion:
The defendant, [Burgwin], was found guilty in a jury trial of criminal attempt
homicide, aggravated assault, and carrying a firearm without a license. On
October 6, 2008, [Burgwin] was sentenced to 20 to 40 years on the charge of
attempt to commit murder, and 5 to 10 years consecutive for carrying a firearm
without a license.
At trial, the Commonwealth presented evidence through the victim, her mother,
and sister. Additionally various investigating officers, physician, telephone
company representative, and members of the Allegheny County Medical
Examiner's office testified. [Burgwin] testified on his own behalf. The incident in
question occurred on July 22, 2007, shortly after midnight in the Wilkinsburg
section of Allegheny County, [wherein] a 20-year-old victim was shot multiple
times. The victim testified that on the evening in question, she had made
arrangements to travel from her home in Penn Hills to Wilkinsburg by bus to meet
[Burgwin] at a location she believed to be his residence. The victim additionally
testified that while she, [Burgwin], and his cousin were walking to a store
[Burgwin] just turned around and shot her in the chest. While the victim was on
the ground after the initial shot, [Burgwin] proceeded to additionally shoot her
multiple times in the head and arms. The victim was able to telephone her mother
who summoned aid, which arrived a few minutes later. The Wilkinsburg police
responded along with paramedics. The Allegheny County police homicide unit
was requested to assist in the investigation. The victim initially did not disclose
the identity of the shooter. Eventually, at the hospital she revealed that [Burgwin]
was the shooter. The prosecution presented evidence through testimony of the
victim's stepsister to corroborate that [Burgwin] had called the victim to meet her
that evening. Additional corroborative testimony was submitted from a telephone
company representative.
Detective Lawrence Carpico of the Allegheny County Policed Homicide unit,
testified that no shell casings were recovered at the scene, indicating that the
firearm used could possibly have been a revolver. Detective Carpico testified that
he interviewed the victim who identified [Burgwin] as the perpetrator. Detective
Kenneth Ruckel, also of the Allegheny County Police Homicide, testified that
four copper jacket fragments were also recovered and no shell casings, leading
him to believe that a revolver was used. A scientist from the Allegheny County
Medical Examiner's office firearms section testified that based upon the
examination of the bullet fragments, his opinion is that they were .32 caliber
bullets and based on their condition, indicated to him that they were discharged
from a revolver.
3
[Burgwin] testified that he did not see the victim on the day in question. He
additionally testified that he did not shoot her, and that he did not have a gun on
the date of this incident.7
It is provided in 28 U.S.C. §2254(b) that:
An application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that the applicant has exhausted the remedies available in the courts of the State,
or that there is either an absence of available State corrective process or the
existence of circumstances rendering such process ineffective to protect the rights
of the prisoner.
This statute represents a codification of the well-established concept which requires that
before a federal court will review any allegations raised by a state prisoner, those allegations
must first be presented to that state's highest court for consideration. Preiser v. Rodriguez, 411
U.S. 475 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973);
Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996).
It is only when a petitioner has demonstrated that the available corrective process would
be ineffective or futile that the exhaustion requirement will not be imposed. Preiser v. Rodriguez,
supra.; Walker v. Vaughn, 53 F.3d 609 (3d Cir. 1995).
If it appears that there are available state court remedies, the court must determine
whether a procedural default has occurred. If a procedural default has occurred, the court must
determine whether cause or prejudice exists for the default, or whether a fundamental
miscarriage of justice would result from a failure to consider the claims. Carter v. Vaughn, 62
F.3d 591 (3d Cir. 1995).
In construing § 2254(d)(1), the Court in Williams v. Taylor, 529 U.S. 362, 412-413
(2000) stated:
Under § 2254(d)(1), the writ may issue only if one of the following two
conditions is satisfied - the state-court adjudication resulted in a decision that (1)
“was contrary to ... clearly established Federal law, as determined by the Supreme
Court of the United States,” or (2) “involved an unreasonable application of ...
clearly established Federal law, as determined by the Supreme Court of the
United States.” Under the “contrary to” clause, a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that reached by this
Court on a question of law or if the state court decides a case differently than this
7
See: Appendix 8.
4
Court has on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
That is, the state court determination must be objectively unreasonable. Renico v. Lett, 130 S.Ct.
1855 (2010). This is a very difficult burden to meet. Harrington v. Richter, 131 S.Ct. 770 (2011).
With the exception of the petitioner's fifth argument, the issues which he seeks here have
not been presented to the appellate courts of the Commonwealth, can no longer be so presented
and for this reason are procedurally defaulted. In Coleman v. Thompson, 501 U.S. 722,750
(1991), the Court held:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claim will result in a fundamental
miscarriage of justice.
Because no such showing is made here, the petitioner has failed to exhaust the available state
court remedies on these issues and for this reason they are subject to a procedural dismissal here.
However, 28 U.S.C. § 2254(b)(2) permits a denial on the merits even where the issue has not
been properly exhausted in the state courts. Accordingly, we will do so here. Additionally,
petitioner's fifth issue is properly before this Court for disposition.
Burgwin's first issue is that he was improperly convicted as a result of the victim's initial
fear in identifying her assailant. (TT.135-136, 152 ,155 ). While the jurors heard this testimony,
they also heard the victim testify that she was with the petitioner when "he turned around and
shot me a couple of times…"(TT.128) and that she subsequently identified her assailant as the
petitioner (TT.141,157-158). Petitioner now argues that because of the victim's initial hesitancy
and her subsequent positive identification his conviction was improperly secured.
First we observe that unless a due process violation has occurred, as a state evidentiary
matter, the conflict in the evidence is not subject to review here. Keeler v. Larkins, 251 F.3d 408
(3d Cir.) cert. denied 534 U.S. 973 (2001). In addition, any conclusion to be drawn from the
evidence is for the jury not the court. Cavazos v. Smith, 132 S.Ct. 2 (2011). Finally, we also
observed that the victim clearly alleged fear as the initial basis for her hesitating to name her
assailant. Thus, petitioner's first claim is without merit.
5
Burgwin next claims he is entitled to relief due to insufficiency of the evidence. When
called upon to review such a claim, the issue before the court is whether any rational fact-finder
could have determined guilt beyond a reasonable doubt. Coleman v. Johnson, 132 S.Ct. 2060
(2012).
Petitioner was convicted of attempted homicide. Pennsylvania defines first degree murder
as "a criminal homicide … when it is committed by an intentional killing." 18. Pa.C.S.A.
§2501(a). While an attempt is defined as "with intent to commit a specific crime, [a person] does
any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A.
§901(a). See: Com. v. Geathers, 847 A.2d 730, 734 (Pa.Super. 2004)("an attempt to commit
second or third degree murder would seem to require proof that a defendant intended to
perpetrate an unintentional killing – which is logically impossible" [i.e. attempted homicide is
applicable to first degree murder].
Clearly, the factual recitation set forth above would more than justify a rational factfinder
of determining guilt beyond a reasonable doubt. For this reason, this claim likewise does not
provide a basis for relief.
Petitioner's third issue is that the imposed sentence was excessive or impermissible. A
claim of this type may only be addressed where the penalty exceeds the statutory maximum.
Bozza v. United States, 330 U.S. 160, 166 (1947). In the instant case, Pennsylvania classifies
attempted first degree murder as a felony of the first degree for which the penalty is a maximum
of forty years imprisonment. 18 Pa.C.S.A. § 1102(c). Thus, as a matter of state law, and because
the penalty did not exceed the state maximum, this issue does not provide a basis for relief.
Swarthout v. Cooke, 131 S.Ct. 859 (2011).
Petitioner's fourth argument is that prosecutorial misconduct occurred as the result of the
introduction of hearsay testimony. This issue was likewise procedurally defaulted in the state
courts and for this reason need not be considered here. However, because the issue is likewise
meritless, we examine it.
While it is not readily apparent from the petition what Burgwin's specific allegations are,
the Superior Court in reviewing the denial of post-conviction relief wrote:
Burgwin contends that trial counsel was ineffective for failing to object to the
introduction of hearsay on multiple occasions at trial. With respect to this issue,
we are constrained to agree with the Commonwealth that the issue has been
6
waived on appeal based upon Burgwin's failure to develop any argument or cite to
relevant authorities…
In his appellate brief, Burgwin does not cite to any specific instance in the trial
transcript where trial counsel failed to object to a hearsay statement. Instead, he
merely cites to more than 30 pages of the transcript covering testimony from five
Commonwealth witnesses, without any attempt to identify what particular
questions and/or answers trial counsel should have objected to on hearsay
grounds…
Thus, it becomes apparent that petitioner's argument is grounded in state evidentiary
matters, and as such is not subject to review here. Keller v. Larkins, 251 F.3d 408 (3d Cir.) cert.
denied 534 U.S. 973 (2001).
Finally, petitioner's fifth argument, raised in his amendment to the petition
is the only matter properly before this Court. He alleges that counsel was ineffective for
failing to consult with him on whether a juror should be removed from the panel.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court explained
that there are two components to demonstrating a violation of the right to the effective
assistance of counsel. First, the petitioner must show that counsel's performance was
deficient. This requires showing that "counsel's representation fell below an objective
standard of reasonableness." Id. at 688; see also Williams v. Taylor, 529 U.S. 362, 39091 (2000). Second, under Strickland, the defendant must show that he was prejudiced by
the deficient performance. "This requires showing that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466
U.S. at 687, 104 S.Ct. 2052. To establish prejudice, the defendant "must show that there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Id. at 694. The Strickland test is conjunctive
and a habeas petitioner must establish both the deficiency in performance prong and the
prejudice prong. See Strickland, 466 U.S. at 687; Rainey v. Varner, 603 F.3d 189,197
(3d Cir.2010) cert. denied 131 S.Ct. 1673 (2011). As a result, if a petitioner fails on either
prong, he loses. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006).
This matter was before the Superior Court on Burgwin's appeal from the denial of postconviction relief. There the Court wrote:
7
After trial began, Burgwin's counsel brought to the trial court's attention that a
witness, who had not been on the witness list presented to the jury, had
recognized one of the jurors N.T., 8/18/2008, at 108. In chambers, the juror
indicated that she could "connect the face" of the witness to someone with whom
she had worked approximately six years ago. Id. at 109. The juror indicated that
there had not been any contact between her and the witness over the past six
years. Id. In response to questions by the trial court, the juror indicated that the
witness' appearance would not affect her in any manner beyond the testimony
given, and that she would be able to base her verdict solely on the testimony and
the law received during the trial. Id. at 109-110.
The test for determining whether a juror should be disqualified is whether she is
willing and able to render a verdict according to the evidence, or whether the juror
has such a close relationship, familial, financial, or situational, with the parties,
counsel, victims, or witnesses that the trial court will presume a likelihood of
prejudice… The decision on whether to disqualify is within the discretion of the
trial court and will not be reversed in the absence of a palpable abuse of
discretion…8 (internal citations omitted).
Specifically, upon learning that the witness recognized a member of the jury panel, an in
chambers conference was conducted in which the following occurred:
Juror: I remember her [the witness]. About six years ago I worked at LifeCare. I
connect the fact. I don't know whether she recognized me or not…
Defense counsel: She did recognize you. We wanted to bring you in here to make
sure it was just in passing that you recognized her or if in any way that would
affect your ability to be a fair and impartial juror here today?
Juror: As I said, I worked with her about five or six years ago. Other than that, I
don't have any contact.
Court: Would you then be able to base any verdict solely on the testimony and the
law as you will hear it during the trial?
Juror: Sure.
Court: Her testimony will not affect – or her appearance would not affect you
beyond any testimony that she may have given?
Juror: No.
(TT.8/18/08 pp.109-110) and the juror was permitted to remain on the panel.
8
See: Id. at pp. 6-7.
8
A challenge to a prospective juror for bias is a factual finding subject to the presumption
of correctness, and the test for juror exclusion is whether any potential bias would impair the
juror's performance. Wainwright v. Witt, 469 U.S. 412 (1985); 28 U.S.C. § 2254 (e)(1). Since no
such showing is made here, counsel cannot be deemed to have been ineffective. See: Real v.
Shannon, 600 F.3d 302 (3d Cir. 2010).
Thus, because there is nothing in the record which demonstrates that petitioner's
conviction was secured in any manner contrary to the laws of the United States as determined by
the Supreme Court, nor involved an unreasonable interpretation of its decisions, he is not entitled
to relief here.
Accordingly, the petition of Brandon Ray Burgwin for a writ of habeas corpus will be
dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a
certificate of appealability will be denied.
An appropriate Order will be entered.
9
ORDER
AND NOW, this 21st day of August, 2014, for the reasons set forth in the foregoing
Memorandum, the petition of Brandon Ray Burgwin for a writ of habeas corpus is DISMISSED,
and because reasonable jurists could not contend that a basis for appeal exists, a certificate of
appealability is DENIED.
10
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