STETTER v. ECKERT
Filing
24
MEMORANDUM OPINION re 4 Petition for Writ of Habeas Corpus filed by JEFFREY STETTER. For the reasons discussed in the Memorandum Opinion, the Petition will be dismissed and a certificate of appealability will be denied. Signed by Magistrate Judge Cynthia Reed Eddy on 5/9/2018. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEFFREY STETTER,
Petitioner,
v.
JAMES ECKERT, Warden;
DISTRICT ATTORNEY OF
ALLEGHENY COUNTY, and THE
ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA,
Respondents.
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Civil Action No. 2: 15-cv-1430
United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM OPINION1
Before the Court is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(“Petition”) filed by Petitioner, Jeffrey Stetter (“Petitioner” or “Stetter”). Stetter is currently
incarcerated in the State Correctional Institution in Huntingdon, Pennsylvania. For the reasons
that follow, the Petition will be dismissed and a certificate of appealability will be denied.
Relevant and Procedural Background
Stetter is challenging the judgment of sentence imposed upon him by the Court of
Common Pleas of Allegheny County on November 2, 2009.
Stetter, in a non-jury trial before
Judge Donald J. Machen, was convicted on the charges of burglary, robbery, and criminal
conspiracy stemming from a home invasion / robbery which occurred on September 18, 2005.2
1
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to jurisdiction by a United States Magistrate Judge, including entry of a final
judgment. See ECF Nos. 9 and 21.
Stetter’s co-defendant, George Maxwell, was also found guilty of robbery, burglary, and
criminal conspiracy.
2
1
Stetter waived his right to a pre-sentence report and proceeded to sentencing following the
verdict.
The factual and procedural history of this case are detailed in the Superior Court’s
memorandum affirming Stetter’s conviction. Commonwealth v. Stetter, No. 711 WDA 2010, 30
A.3d 538 (Pa. Super. Ct. May 13, 2011) (unpublished opinion) (ECF No. 12-2). The evidence at
trial is summarized as follows: the victim, Richard Sharp, testified that he was with Stacy
Bulford on September 18, 2005, in his trailer. He admitted on cross examination that Bulford
was a prostitute and he was paying her to be with him that night. Sharp testified that he left his
home around 8:00 PM that evening and returned at approximately 9:30 PM.
Upon his return,
when he entered the trailer, he was struck by an unknown assailant. He fell to the ground and his
waist pack was taken from him. The two assailants fled the scene after the attack. Sharp called
911, resulting in the police’s arrival upon the scene, and due to the severity of his injuries, he
was taken to a nearby hospital for treatment. Sharp testified that he had brought Bulford to the
trailer and paid her for sex, and he had done so with other women, including Mary Laurence.
N.T. 11/09/09 at 21-22, 24. He also testified that after police had identified Bulford as a possible
accomplice, Bulford identified Stetter and Maxwell as the two men who had assaulted him.
Bulford testified that she was in the trailer when Sharp was attacked. According to
Bulford, sometime after Sharp left, Mary Laurence entered the trailer and told Bulford “not to
worry about what I’m about to see.” N.T., 11/2/09 at 29. Laurence left the trailer and Bulford
went to sleep. She was awakened by the noise and flicked on a light, enabling her to see Stetter
and Maxwell. She admitted that she never tried to help Sharp and never emerged from the
bedroom. Bulford confirmed that initially she told police that she was in the bedroom and did not
2
see anything. A couple of months after the incident, however, Bulford identified Stetter and
George Maxwell as the two individuals who entered Sharp’s trailer and assaulted him.
The final eyewitness to testify was Mary Laurence. Laurence was a co-defendant with
Stetter and Maxwell and was charged with burglary and conspiracy. Without objection, her case
was severed from Stetter’s and Maxwell’s trial. N.T. 11/2/09 at 2. She testified under an
agreement of probation in exchange for her testimony against Stetter and Maxwell. Laurence
acknowledged that she prostituted herself to Sharp. Laurence testified that she, Stetter, and
Maxwell had been smoking crack cocaine in a car on September 18, 2005. N.T. 11/2/09 at 48.
They needed more money, and Laurence told Stetter and Maxwell she would ask Sharp for
money. N.T. 11/2/09 at 49. The group went to Sharp’s trailer, but they left because he was not
home. A short time later, the group returned to the trailer. Laurence testified that she remained
in the car and did not go into the trailer, but that Stetter and Maxwell went inside to talk to
Bulford. Approximately 30 minutes later, Stetter and Maxwell returned to the car. She noticed
that Maxwell was carrying a “belly bag.” N.T. 11/2/09 at 52. The men informed her that
Bulford had invited them into the trailer for couple of beers and that at some point, Bulford said,
“Here comes Rich,” she then turned off the lights and directed them to hide. N.T. 11/2/09 at 53.
Also testifying for the Commonwealth was Detective Friburger, who responded to the
911 call on September 18, 2005, at approximately 9:30 p.m.
The defense put forth no witnesses.
Stetter waived his right to a pre-sentence report and proceeded to sentencing. The
Commonwealth invoked the mandatory minimum sentence pursuant to 42 Pa. C.S. § 9714 as
Stetter had a prior conviction for robbery. The trial court rejected counsel’s request for Stetter to
be sentenced concurrently with the sentence of five (5) to ten (10) years he was then serving at
3
criminal information 200606819 and a sentence of seven (7) to fourteen (14) years he was
serving at criminal information 200806982.3 Instead, the trial court sentenced Stetter to ten (10)
to (20) years imprisonment at the burglary conviction (Count One) to run consecutively to the
sentences he was serving. No further penalty was imposed on the remaining convictions.
Stetter appealed his conviction and sentence to the Superior Court of Pennsylvania. The
appeal challenged the sufficiency of the evidence, the weight of the evidence, and the fact that
the sentence was imposed consecutively rather than concurrently. His conviction and sentence
were affirmed on May 11, 2011, and the Supreme Court of Pennsylvania denied review by order
dated March 1, 2013. (ECF No. 12-3). Stetter did not seek review with the Supreme Court of
the United States.
Unsuccessful on direct appeal, on May 22, 2014, Stetter filed a pro se petition for
collateral review under the Pennsylvania Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons.
Stat. § 9541 - 9546, in which he raised the following four (4) grounds for relief, which are
reproduced verbatim:
1. The Court erred in sentencing Defendant to a mandatory 10-20 years pursuant
to 42 Pa.C.S., sec. 9714(a)(1) and the prosecutions request for same.
2. MARY LAURENCE wrote Defendant in 2012 that she desired to help him
reduce his sentences by confessing she had committed perjury against him at trial
and why.
3. STACY BULFORD confessed to 2 people, post-trial, that she was a
participant in robbing the victim and that she had lied in identifying Defendant
and why.
4. Trial counsel was ineffective in failing to establish facts establishing
BULFORD had committed perjury to credit her identifications of the accused.
3
Stetter was sentenced at these criminal informations on June 2, 2009. The sentences were
to run concurrently with one another. See ECF No. 12-1 at 46.
4
PCRA Petition (ECF No. 12-3 at 32). Robert Carey, Jr., Esquire, was appointed to represent
Stetter. On August 27, 2014, Attorney Carey filed a “no merit” letter and requested to withdraw
from the case. (ECF No. 12-3). On September 2, 2014, Judge Machen granted the request to
withdraw and issued a Notice of Intent to Dismiss the PCRA petition without an evidentiary
hearing. On September 30, 2014, Stetter filed a pro se response to the notice of the court’s intent
to dismiss. By ordered entered October 7, 2014, Judge Machen dismissed Stetter’s PCRA
petition. 4
On November 13, 2014, Stetter filed a pro se notice of appeal. Due to the retirement of
Judge Machen, the case was assigned to Judge Joseph K. Williams, III. Judge Williams issued a
Pa.R.A.P. 1925(a) opinion on February 11, 2015. (ECF No. 12-4).
Stetter raised the following ineffective assistance of counsel claims on appeal, which are
reproduced verbatim:
1. P.C.R.A. counsel was ineffective for failure to raise trial counsel’s
ineffectiveness, for failure to object to trial court’s application of 42 Pa.C.S. 9714
in sentencing Petitioner to a mandatory minimum of 10-20 yrs. Layered
ineffective assistance of counsel, where counsel failed to object to the Court
“error” in sentencing.
2. Ineffective assistance of appeal counsel, counsel failed to investigate afterdiscovered evidence of commonwealth’s key witness perjured testimony.
3. Trial counsel was ineffective for failing to unequivocally establish facts at
trial which would have prove the commonwealth’s key testified falsely.
4. Ineffective assistance of counsel for failing to investigate the witness’s and the
alleged co-conspirator, Mary Laurence.
Judge Donald J. Machen presided over Stetter’s trial and the initial PCRA proceedings.
See Commonwealth v. Ligons, 971 A.2d 1125, 1140 (Pa. 2009) (noting in passing “that the
PCRA judge . . . [is] oftentimes . . . the same judge who presided over the petitioner’s trial”).
4
5
Superior Court Opinion, 10/22/2015 at 7-8 (citing Appellant’s Brief at 1,5). (ECF No. 12-5).
On October 22, 2015, the Superior Court of Pennsylvania affirmed the PCRA order. Stetter did
not seek further review.
Having been denied relief in state court, on October 28, 2015, Stetter filed in this Court a
pro se habeas petition and brief in support.5 (ECF Nos. 4 and 6).
The Court is somewhat
hampered in identifying the grounds on which Stetter seeks habeas relief because in his Petition
Stetter does not identify any ground and does not identify any supporting facts. See Petition, No.
12 at pgs. 6 - 9. (ECF No. 4). Rather, Stetter states “See attached.” However, nothing attached
to the Petition identifies the grounds on which Stetter seeks habeas relief. With that said, Page
(V) of Stetter’s Brief (ECF No. 6) lists the following “Questions Asked,” which are repeated
verbatim:
(1): DID SUPERIOR COURTS AFFIRMANCE OF COMMONWEATHS
DENIAL OF PETITIONER P.C.R.A. VIOLATE PETITIONERS 14TH AND
6TH AMENDMENTS. WHEN SUPERIOR COURT ABANDONED IT’S
LONG HELD STANDARD WITH 42 Pa C.S. 9714(d) “MANDATORY
SENTENCING”. THUS CAUSING A MISCARRIAGE OF JUSTICE AND A
VIOLATION OF PETITIONERS EQUAL PROTECTION TO ENSUE.
ANSWER: IN THE ALTERNATIVE
(2): DID SUPERIOR COURT ABUSE IT’S DISCRETION WHEN THEY
AFFIRMED LOWER COURTS DECISION FINDING TRIAL COUNSEL WAS
EFFECTIVE FOR NOT OBJECTING TO ERRONEOUS SENTENCING
UNDER 42 PA.C.S. 9714(d). THUS VIOLATING PETITIONERS 14TH AND
6TH AMENDMENTS CAUSING A MISCARRIAGE OF JUSTICE AND A
VIOLATION TO HIS EQUAL PROTECTION BY LAW.
ANSWER: IN THE AFFIRMATIVE
Stetter’s habeas petition is docketed as filed on November 2, 2015. However, the petition
reflects that Stetter placed the petition in the prison mailing system on October 28, 2015.
Pursuant to the prison mailbox rule, the petition is deemed filed on the date it is placed in the
hands of prison authorities for mailing.
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(3): DID SUPERIOR COURT ABUSE IT’S DISCRETION BY AFFIRMING
LOWER COURTS DECISION THAT TRIAL COUNSEL AND APPEAL
COUNSEL’S WERE ALL EFFECTIVE FOR FAILING TO INVESTIGATE
AFTER DISCOVERED EVIDENCE. THUS, VIOLATING HIS 14TH AND
6TH AMENDMENTS AND EQUAL PROTECTION OF THE LAW.
ALLOWING A MISCARRIAGE OF JUSTICE TO ENSUE AS WELL.
ANSWER: IN THE AFFIRMATIVE.
Respondents filed a timely Answer (ECF No. 12), to which Stetter filed a reply brief (ECF No.
19). The matter is fully briefed and ripe for disposition.
B.
Standard of Review
Because it is not contested that each of Stetter’s claims was adjudicated on the merits by
the Superior Court of Pennsylvania, review of his claims is subject to the Antiterrorism and
Effective Death Penalty Act of 1996, 110 Stat. 1214 (“AEDPA”). Under AEDPA, habeas relief
is unavailable unless the state court’s decision (1) “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) “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.
A decision by a state court is “contrary to . . . clearly established law if it applies a rule
that contradicts the governing law set forth” in United States Supreme Court precedent. Price v.
Vincent, 538 U.S. 634, 640 (2003). (quotations and citations omitted). A state court need not
have cited any particular Supreme Court decisions, and this standard affords considerable
latitude to the state court, “so long as neither the reasoning nor the result of the state-court
decision contradicts” federal law. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In this
regard, the state court’s decision need not even be accompanied by an explanation, as long as
7
there was a “reasonable basis for the state court to deny relief.” Harrington v. Richter, 562 U.S.
86, 98 (2011).
However, “when the state court pens a clear, reasoned opinion, federal habeas courts may
not speculate as to theories that ‘could have supported’ the state court’s decision. Dennis v.
Sec’y, Pa. Dep’t of Corrs., 834 F.3d 263, 283 (3d Cir. 2016) (en banc). If the state court does
provide reasoning, the state court decision is not entitled to deference if no “fairminded jurist
[]” could “disagree that those arguments or theories are not consistent with the holding in a prior
decision of” the Supreme Court. Richter, 562 U.S. at 102. The state court may not add or
remove a factor from a clearly established federal law test. Dennis, 834 F.3d at 307.
Petitioner's claims will be reviewed with these standards in mind.
C.
Discussion6
In essence, each of Stetter’s claims is an ineffective assistance of counsel claim, which
requires the petitioner to establish (i) constitutionally deficient representation, and (2) the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984). To establish
deficient performance, a petitioner must demonstrate that counsel’s representation “fell below an
objective standard of reasonableness.” Id. at 688. To satisfy the second prong of counsel
ineffectiveness,
a defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.
6
The first consideration in reviewing a federal habeas petition is whether the petition was
timely filed under AEDPA’s one-year limitations period. 28 U.S.C. § 2244(d). Respondents
concede that the instant petition was timely filed. Ans. at 6. (ECF No. 12).
8
Id. at 694.
In addition, although a petitioner must satisfy both prongs to succeed on his
ineffectiveness claim, the Supreme Court noted that “[i]f 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.” Id. at 697.
The United States Court of Appeals for the Third Circuit has held that Pennsylvania’s test
for assessing ineffective assistance of counsel claims is not contrary to Strickland. Werts v.
Vaughn, 228 F.3d 178, 203 (3d Cir. 2000); see also Commonwealth v. Pierce, 527 A.2d 973,
976 (Pa. 1987) (expressly stating that Pennsylvania follows the Strickland standard of review).
Thus, the relevant question is here is whether the decisions of the Superior Court of Pennsylvania
involve an unreasonable application of Strickland. Jacobs v. Horn, 395 F3d 92, 106 n.9 (3d Cir.
2005). That is, a petitioner must show that the state courts “applied Strickland to the facts of his
case in an objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699 (2002).
When resolving an ineffectiveness of counsel issue, the question is not whether the
defense was free from errors of judgment, but whether defense counsel exercised the customary
skill and knowledge that normally prevailed at the time and place. Strickland, 466 U.S. at 689.
The Supreme Court has “declined to articulate specific guidelines for appropriate attorney
conduct and ha[s] emphasized that ‘[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional norms’.” Wiggins, 539 U.S. at 521 (quoting
Strickland, 466 U.S. at 699).
Petitioner’s claims will be addressed seriatim.
9
Claim One7
In his first claim, Stetter challenges the sentencing court’s application of 42 Pa.C.S. §
9714 in sentencing him to a mandatory minimum sentence of ten (10) to twenty (20) years.
Stetter maintains that the sentencing court had insufficient evidence of his prior criminal history
as is necessary under section 9714(d) and that trial counsel was ineffective for not objecting to
the “erroneous sentencing.”8 This same claim was raised on collateral review and was rejected
by both the PCRA court and the Superior Court.
As the PCRA court noted, at Stetter’s sentencing hearing it was revealed that Stetter had
a prior conviction for robbery, a felony of the first degree. It was this previous conviction that
the Commonwealth used as its foundation for seeking the mandatory minimum of 10 years
pursuant to Pennsylvania’s “second strike” sentencing provision9:
The present crime of violence was committed on September 18, 2005. So, this
date is the cut-off date for any prior convictions. The Court has reviewed the
entire record and, unfortunately, the sentencing guideline form is not part of the
court papers. Despites its absence, the record still shows, by circumstantial
evidence, that his prior crime of violence happened before September 18, 2005.
At sentencing, the prosecutor told the Court that defense counsel knew that upon
conviction the 10 year mandatory would be sought. Transcript, pg. 70. The postsentence motion filed after sentencing referenced the 10 year mandatory but its
focus was on the Court’s exercise of discretion and not some infirmity associated
with the mandatory. The absence of argument informs this Court that Stetter was
adjudicated guilty of his prior crime of violence before Sept. 18, 2005.
Ground One and Two as identified in Stetter’s brief (ECF No. 6) overlap and thus will be
combined for this analysis.
7
In his Reply Brief, Stetter states “Counsel for defendant was ineffective for not objecting
to this [violation of 9714(d)] occurring and also protect defendant rights at a minimum ask for a
postponement so the records could be found and corrected.” (Reply Brief at 5, ECF No. 19).
8
42 Pa.C.S. § 9714(d) provides that “[t]he sentencing court, prior to imposing sentence on
a offender under subsection (a) [mandatory sentence provision], shall have a complete record of
the previous convictions of the offender . . . .”
9
10
A clear inference from reading the sentencing transcript is that Judge Machen
received information about the prior matter. However, those documents are not
part of the Clerk of Courts file. However, this Court will take judicial notice of
the contents of case #CP-02-CR-10828-1991. See, Pa.R.E. 201(f) (“[j]udicial
notice may be taken at any stage of the proceeding.”); Commonwealth v. Tau
Kappa Epsilon, 609 A.2d 791 (Pa. 1992). On April 6, 1992, Stetter entered into a
guilty plea to a felony-one robbery wherein he received a sentence of 2 to 5 years.
By every indication, this 1991 matter is the prior, predicate crime of violence that
triggered the application of the 10 year mandatory.
...
His other complaint is that the Court did not require the government to provide
proof of the “first strike conviction”. The factual record tells a totally different
story. Defense counsel knew about the prior conviction and how it would serve
as a predicate to the imposition of the mandatory. The trial court received the
guidelines from the prosecutor. Transcript, pg. 69. A short time later, the Court
reviewed what precisely the government was asking for. “So because of a prior
robbery, the burglary now, you’re invoking the mandatory?” Transcript, pg. 71.
The record also shows that there was no objection from defense counsel about the
prior. The absence is supportive of the Court’s conclusion that the government
did, in fact, discharge its burden of proof regarding the prior conviction.
PCRA court Opinion, 2/11/2015, at 7-8 (ECF No. 12-4).
In its Opinion affirming the PCRA court’s decision, the Superior Court quoted
extensively from the PCRA decision. It also noted that “[t]he Commonwealth agrees that the
first degree felony robbery at Criminal Information No. CC 199110828, to which Appellant pled
guilty on April 6, 1992, was the prior crime of violence that resulted in the mandated ten-year
minimum sentence for the instant burglary.” Superior Court Opinion, 10/22/2015 at 11. (ECF
No. 12-5).
The Superior Court agreed with the PCRA court’s conclusion that there was
sufficient evidence of record to establish Stetter’s prior conviction for a violent crime as required
under section 9714.
Accordingly, it found that because the underlying claim lacked arguable
merit, Stetter’s claim for ineffective assistance of counsel failed.
11
This Court finds that the decision of the Superior Court easily withstands AEDPA
review. Stetter’s first claim fails under Strickland as counsel cannot be found ineffective for
failing to raise a meritless claim.
Claim Two10
In his second claim, Stetter claims that his PCRA counsel rendered ineffective assistance
of counsel for failing to investigate “after-discovered evidence.” Specifically, Stetter claims that
PCRA counsel “had a duty to investigate” and should have investigated a letter that Mary
Laurence wrote to Stetter in 2012, rather than filing a “no merit” letter. See Pet. Br. at 6, 7. (ECF
No. 6). The letter is attached to Stetter’s PCRA petition and reads in pertinent part as follows:
Also, we’re gonna do whatever we gotta do to get your sentence changed! I
swear to God if I gotta do some time for perjury I will! I’ll do whatever it takes to
get you outta there. It’s only like a yr. for Perjury. I lied-n-said whatever my
attorney told me to say or else he said I was getting at least 10-20 years that Day!
So you just let “Da Baby” know what Daddy needs me to do and I got you!! . . .
Jeff, I Love You so much and wanna spend the rest of my life in your arms! I
Love You! Your, Mary.
See Laurence Letter at ECF No.12-3, at 43. In his no-merit letter, counsel stated:
The Defendant cannot present a valid after discovered evidence claim
based on Ms. Laurence’s recantation. The Defendant cannot establish that the
statements attributed to Ms. Laurence would compel a different result. The letter
claims that Ms. Laurence followed her attorney’s instructions to avoid a 10 to 20
year sentence is cumulative of the evidence produced at trial. Ms. Laurence was
charged as a co-defendant and acknowledged at trial that she was offered lenience
in exchange for her testimony. Trial Transcript, November 2, 2009, at 53-54.
Due to the other evidence presented at trial, the Defendant cannot establish that
Ms. Laurence’s recantation would compel a different result. Ms. Laurence
testified that the Defendant was in the trailer at the time of the attack. Id. at 53.
The victim testified that he was assaulted by two men and Stacy Bulford testified
that she saw two men, including the Defendant running from the trailer. Id. at 11For ease of analysis, the Court as divided Stetter’s Ground Three, as identified in his brief
(ECF No. 6) into two parts: the first part addressing the “after-discovered evidence” as it relates
to Mary Laurence and the second part addressing the “after-discovered evidence” as it relates to
Stacy Bulford.
10
12
13, 30. Importantly, Ms. Laurence is deceased. She is unavailable to appear at an
evidentiary hearing and explain the meaning of this letter. Due to her passing, the
trial court cannot assess the credibility of the proposed recantation. Ultimately,
this claim fails given the case presented by the Commonwealth because there is
nothing in this letter to overcome the trial testimony and compel a different
result.
Counsel’s No-Merit Letter, 8/27/2014. (ECF No. 12-4 at 8). The PCRA court found that counsel
adequately addressed the matter in his “no merit” letter and the Superior Court affirmed, finding
that Laurence’s letter vaguely states that she lied, but does not specify the content of her alleged
fabricated testimony.
There is a fundamental problem with this claim on federal habeas review. A claim of
ineffective assistance of PCRA counsel is not cognizable in a federal habeas corpus petition. See
generally 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal
or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254.”). As the United States Court of Appeals for the Third Circuit
explained in Hassine v. Zimmerman, 160 F.3d 941 (3d Cir. 1998):
[t]he federal courts are authorized to provide collateral relief where a petitioner is
in state custody or under a federal sentence imposed in violation of the
Constitution or the laws or treaties of the United States. 28 U.S.C. §§ 2254, 2255.
Thus, the federal role in reviewing an application for habeas corpus is
limited to evaluating what occurred in the state or federal proceedings that
actually led to the petitioner's conviction; what occurred in the petitioner's
collateral proceeding does not enter into the habeas calculation.
Id. at 954 (internal citations omitted) (emphasis added). See also Lambert v. Blackwell, 387 F.3d
210, 247 (3d Cir. 2004) (“[A]lleged errors in collateral proceedings are not a proper basis for
habeas relief from the original conviction.”). Accordingly, Stetter’s ineffective assistance of
PCRA counsel claim must be dismissed on the ground that this claim is not cognizable on federal
habeas review.
13
Even if Stetter’s claim was cognizable in this federal habeas case, it would be denied.
Because the state court denied the claim on the merits, this Court’s review of it would be
governed by AEDPA’s standard of review.
Reviewing Stetter’s claim through AEDPA’s
deferential standards of review, the Court would conclude that the claim has no merit. The
Superior Court agreed with the PCRA court that it was not likely that the letter would compel a
different verdict. The Superior Court noted that Laurence admitted on cross examination that
she had a history of convictions for crimes that involved dishonesty or false statements and that
she used aliases before. Further, the Superior Court concluded that because Laurence was
deceased and, therefore, unavailable, “coupled with the vague nature of the content contained in
her letter,” the letter was “insufficient to establish that the recantation testimony would likely
compel a different result.” For these reasons, the Superior Court found that the underlying
assertion lacked merit and Stetter had failed to establish a claim of ineffective assistance of
counsel.
This Court finds that the decision of the Superior Court easily withstands review under
AEDPA. Stetter has not demonstrated that the Superior Court’s decision was an unreasonable
application of Strickland as counsel cannot be found ineffective for failing to raise a meritless
claim. For this additional reason, Stetter’s claim will be denied.
Claim Three
In his third and final claim, Stetter argues that his PCRA counsel rendered ineffective
assistance of counsel when he failed to investigate after-discovered evidence pertaining to Stacy
Bulford. Specifically, as with Claim Two, Stetter claims that PCRA counsel “had a duty to
investigate” and should have investigated the issue rather than filing a “no merit” letter. See Pet.
Br. at 6-7. (ECF No. 6). As with the other two claims raised in this habeas petition, the claim
14
was raised on collateral review and rejected by both the PCRA court and the Superior Court. For
the reasons explained supra, this claim, as with Claim Two, must be dismissed on the ground
that this claim is not cognizable on federal habeas review.
As with Claim Two, even if Stetter’s claim was cognizable in this federal habeas case, it
would be denied. Because the state court denied it on the merits, this Court’s review of it would
be governed by AEDPA’s standard of review. Reviewing Stetter’s claim through AEDPA’s
deferential standards of review, the Court must conclude that the claim has no merit.
At issue are statements Stetter contends Bulford made to John Stenger and Donny
Ukalettie:
Petitioner made an after-discovered evidence on commonwealth key witness
Stacy Bulford, she made statements to two men who she was trying to buy drugs
from that she lied about everything and that the police forced her to do so and so
did Mr. Sharp who was supporting her drug habit. These two men informed
petitioners brother what was said and stated to him that they would testify to this,
petitioner brother then notified this petitioner of these events taken place.
Superior Court Opinion, 10/22/2015, at 14 (citing Appellant’s Brief at 6). (ECF No. 12-6 at 3).
In his no merit letter, PCRA counsel stated that the claim lacked merit:
This claim lacks merit because it is not valid after discovered evidence under the
PCRA as the new evidence is solely intended to attack Ms. Bulford’s credibility. .
. . During the course of my representation of the Defendant, I have been unable to
make contact with any of the proposed witnesses, William Stetter [Petitioner’s
brother], John Stenger, and Donny Ukalettie.
No Merit Letter, 8/27/2014 at 10 (ECF No. 12-4 at 9). The Superior Court agreed with the
PCRA court’s determination that the proposed testimony was not valid after-discovered evidence
because it was an attack on Bulford’s credibility. Additionally, the Superior Court found that
because counsel was unable to make contact with any of the witnesses, the veracity of Stetter’s
assertion could not be confirmed and, thus, amounted to no more than Stetter’s unsupported
15
statement. For these reasons, the Superior Court found that because the underlying claim lacked
merit, Stetter had failed to establish a claim of ineffective assistance of counsel.
This Court finds that the decision of the Superior Court easily withstands review under
AEDPA. Stetter has not demonstrated that the Superior Court’s decision was an unreasonable
application of Strickland as counsel cannot be found ineffective for failing to raise a meritless
claim. For this additional reason, Stetter’s claim will be denied.
D.
Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a
certificate of appealability for appellate review of a district court's disposition of a habeas
petition. It provides that “[a] certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). Where the district court has rejected a constitutional claim on its merits, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong.” Id. Applying those standards here, the Court
concludes that jurists of reason would not find it debatable whether each of Stetter’s claims
should be dismissed. Accordingly, a certificate of appealability will be denied.
E.
Conclusion
For all of the above reasons, the petition for a writ of habeas corpus will be dismissed and
no certificate of appealability will be issued.
Dated: May 9, 2018
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
16
cc:
JEFFREY STETTER
JC-0232
SCI Huntingdon
1100 Pike Street
Huntingdon, PA 16654-1112
(via U.S. First Class Mail)
Cory J. Schuster
Ronald M. Wabby, Jr.
Office of the District Attorney
(via ECF electronic notification)
17
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