CLARK v. OVERMYER et al
MEMORANDUM OPINION resolving 16 Petitioner's Objections to 15 the Magistrate Judge's Report and Recommendation of March 21, 2017, recommending that the Petition for Writ of Habeas Corpus be dismissed and that a certificate of appealability be denied. Signed by Judge David S. Cercone on 7/11/17. (mwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL D. OVERMYER, et al.,
Judge David Stewart Cercone
This case was commenced on September 19, 2014, and was referred to United States
Magistrate Judge Cynthia Reed Eddy for a report and recommendation in accordance with the
Magistrate Judges Act, 28 U.S.C. ' 636(b)(1), and the Local Rules of Court for Magistrate
On March 21, 2017, Magistrate Judge Eddy filed a Report and Recommendation (ECF
No. 15) recommending that the Petition for Writ of Habeas Corpus be dismissed and that a
certificate of appealability be denied. Petitioner was served with the Report and
Recommendation at his listed address and was advised written Objections to the Report and
Recommendation were due by April 7, 2017. Petitioner timely filed Objections (ECF No. 16).
After de novo review of the pleadings and documents in the case, together with the
Report and Recommendation, and the Objections thereto, Petitioner’s objections will be
overruled, the Report and Recommendation as augmented will be adopted as the opinion of the
court, the petition will be dismissed, and a certificate of appealability will be denied.
Petitioner raises two objections to the Report and Recommendation, neither of which
undermine the recommendation of the Magistrate Judge. Plaintiff’s objections are addressed
In his first objection, Petitioner argues that the Report and Recommendation incorrectly
concluded that his sufficiency of the evidence claim is procedurally defaulted. Although not
raised in his Petition as an ineffective assistance of counsel claim,1 Petitioner argues that
pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), the procedural default should be excused as his
“direct appeal counsel and/or PCRA counsel” were ineffective in failing to raise the issue. See
Objections at 5. Even allowing Petitioner to now raise this claim as an ineffective assistance of
counsel claim, Martinez provides no avenue for Petitioner to overcome the default.
Under Martinez, a procedural default may be excused if: “(1) collateral attack counsel’s
failure itself constituted ineffective assistance of counsel under Strickland, and (2) the underlying
ineffective assistance claim is ‘a substantial one.’” Bey v. Superintendent Greene SCI, No. 152863, -- F.3d --, 2017 WL 1905092 at * 5 (3d Cir. May 10, 2017) (citing Glenn v. Wynder, 743
F.3d 302, 409-10 (3d Cir. 2014) (quoting Martinez, 566 U.S. at 14)). In order for a petitioner to
satisfy the second Martinez requirement, “the [petitioner] must demonstrate that the claim has
some merit.” Martinez, 566 U.S. at 14.
The Report and Recommendation at great length discusses why, even if a procedural
default does not bar habeas review of this claim, the claim has no merit, and, thus, is not a
This claim was originally raised as stand-alone sufficiency of the evidence claim.
Specifically, Ground Two states: “Trial Court abused its discretion in excluding witnesses in Mr.
Clark’s favor, which evidence was insufficient, and contrary to the weight of the evidence.” See
substantial one. Absent some arguable merit to the underlying ineffectiveness claim, counsel
cannot be ineffective for neglecting to raise the issue. Therefore, the claim is unexhausted as the
claim was never presented to any state court and, because state court remedies are no longer
available, the claim is procedurally defaulted. As the report and recommendation correctly
concluded, the claim has no merit as the evidence adduced at trial is sufficient to meet each
element of first-degree murder.
Petitioner’s remaining objection relates to his claim that trial counsel was ineffective for
failing to call Kellin McBryde and Lonnie Bivins as witnesses on his behalf. First, as the report
and recommendation concluded, it is clear that not calling Kellin McBryde was a matter of trial
strategy; and the decision not to call him was reasonable. Trial counsel testified during a posttrial motion hearing that he did not call McBryde as a witness because he had serious concerns
about McBryde’s credibility as he genuinely believed that McBryde’s testimony was false. The
trial court found that counsel had a reasonable strategic basis for declining to call McBryde and
the Superior Court found that the testimony of record supported the PCRA’s finding. The Court
agrees with the recommendation that the Superior Court’s determination was neither an
unreasonable application of Strickland nor did it result in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. Therefore, this objection has no merit.
As to Lonnie Bivins, the report and recommendation found that the record supported the
Superior Court’s affirmance of the PCRA court’s finding that this witness was unavailable to
Petition, at 8.
testify at trial. Again, the trial court made a credibility determination that the testimony of trial
counsel and the deputy attorney general were more credible than the testimony of Bivins; and the
Superior Court found the record supported this finding. The Court agrees with the
recommendation that the Superior Court’s determination was neither an unreasonable application
of Strickland nor did it result in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding. The Court, therefore,
agrees with the recommendation that this claim has no merit and concludes that the objection
must be denied.
For the reasons set forth above, the petition will be dismissed, a certificate of
appealability will be denied, and the magistrate judge’s March 21, 2017, Report and
Recommendation, as augmented above, will be adopted as the opinion of the court. An
appropriate order will follow.
Date: July 11, 2017
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
PO Box 945
Marienville, PA 16239
(Via First Class Mail)
Daniel A. Vernacchio, Esquire
Cory J. Schuster, Esquire
(Via CM/ECF Electronic Mail)
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