JACOBS v. GIROUX et al

Filing 45

MEMORANDUM OPINION & ORDER re 7 Petition for Writ of Habeas Corpus filed by ANDRE JACOBS dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 01/04/2017. (Mitchell, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDRE JACOBS, DQ-5437,
Petitioner,

)
)
)
)
)
)

v.
SUPT. GIROUX, et al.,

2:15-cv-1656

MEMORANDUM and ORDER
Mitchell, M.J.:
Andre Jacobs an inmate at the State Correctional Institution at Albion has presented a
petition for a writ of habeas corpus (ECF No. 7). 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.
Jacobs is presently serving a 49 to 98 month period of incarceration following his
conviction by a jury of attempted escape, criminal conspiracy and possessing implements for
escape at No. CP-02-CR-2109-2006 in the Court of Common Pleas of Allegheny County,
Pennsylvania. This sentence was imposed on December 5, 2012.1
An appeal was taken to the Superior Court in which the issues presented were:
1. Should Appellant's 18 Pa.C.S.§ 5122 Possession-or-control-of escape
tools conviction be vacated on grounds of insufficient evidence, given
that (a) it was not established that he was aware of presence of a metal
pry bar found hidden somewhere in his cell's toilet (the prosecution's
evidence permitting the conclusion that the metal bar was hidden
unbeknownst to Appellant, out of sight in the toilet's tank by a prior
occupant of his cell); and (b) it was not established that the strips of
cloth that he possessed (commonly called a "fishing line" and
commonly tied together by inmates to create a rope capable of moving
objects from one cell to another) constituted an implement designed for
escape?

1

Petitioner was originally sentenced on June 30, 2008, but pursuant to the Mandate of the Superior Court
resentenced to his present period of incarceration on December 5, 2012. See, petition at ¶¶ 1-6 and answer of the
Commonwealth.

2. Should Appellant's attempted escape conviction be vacated on grounds
of insufficient evidence, given that (a) it was not established that he was
the inmate who broke his cell's window and caused other damage to his
cell (rather than either a prior occupant of his cell, or, alternatively, the
inmate in an adjacent cell who fell to his death trying to escape); and (b)
it was also not established that his intent in causing that damage
(assuming that he was in fact the inmate who caused it) was to facilitate
his escape from the Allegheny County Jail rather than to enable him to
reach out of his cell window and grab hold of a neighboring inmate
who, in trying to escape, found himself in danger of death as he dangled
16 stories above the ground?
3. Should Appellant's conspiracy to escape conviction be vacated on
grounds of insufficient evidence, given that (a) there was no indication
that he had agreed to assist a fellow inmate in his escape attempt or was
being aided by that inmate in an attempt of his own; (b) the mere fact
that he himself may have been attempting to escape (assuming
arguendo that he was engaged in that endeavor) does not suffice to
establish that he was assisting a fellow inmate in his own independent
attempt to escape; and (c) the mere fact that he was aware of the fact
that a fellow inmate was planning an escape attempt (assuming that he
had such knowledge) does not establish that he was assisting that inmate
in that effort?
4. Was Appellant illegally sentenced on all three of his convictions, given
that (a) he received a 33-to-66 month prison sentence on his
Misdemeanor I Possession-or-Control-of-escape-tools conviction
(exceeding the 30-to-60 month statutory limit); (b) he received a pair of
16-to-32 month prison sentences on his Misdemeanor II attempted
Escape and Misdemeanor II conspiracy-to-escape convictions (both
exceeding the 12-to-24 month statutory limits); and (c) he was
sentenced for both attempted escape and conspiracy-to-escape in
violation of 18 Pa.C.S. § 906's ban on the imposition of multiple
sentences for multiple inchoate convictions?2
On August 24, 2009, the Superior Court affirmed the conviction but remanded for resentencing.3
On February 21, 2012, the Supreme Court affirmed the conviction but remanded for resentencing
pursuant to the directive of the Superior Court.4 That resentencing occurred on December 5,
2012. Post-sentence motions were filed and withdrawn on February 14, 2013.5 No appeal was

2
3
4
5

Appendix p.29.
Id. at pp. 114-129.
Id. at pp. 267-290.
Id. at p.14.

2

pursued and for this reason his sentence became final on March 16, 2013 when the time in which
to appeal expired. P.R.Crim. P. 720(A)(2)(c).
On March 4, 2014, Jacobs sought post-conviction relief. Relief was denied on November
20, 2014 and an appeal was filed in which the issues were:
1. Did the trial court err in denying appellant's PCRA petition since
trial counsel Phillps was ineffective for proceeding with jury
selection without a judge and court reporter present, without
appellant's consent?
2. Did the trial court err in denying appellant's PCRA petition since
trial counsel Phillps was ineffective for insisting that appellant not
utilize a "duress" defense since appellant told trial counsel that he
knew that Seretich was going to escape, that Seretich stole photos
of appellant's family from his cell and threated appellant with
harm to his family if appellant did not assist in Seretich's escape
attempt, and if the jury had heard this testimony from appellant it
would likely have excused his minimal/forced participation in the
escape attempt and rendered a not guilty verdict at all counts?6
On June 1, 2015, the denial of post-conviction relief was affirmed.7 Allowance of appeal was
denied on October 27, 2015.8
On December 9, 2015, Jacobs executed the instant petition which was received in this
Court on December 16, 2015 (ECF No. 1). In the petition he contends he is entitled to relief on
the following grounds:
1. Trial counsel was ineffective for proceeding to trial on charges
which were contained in an information which had not been
scheduled for trial at that time and for this reason counsel was
unprepared.9
2. Petitioner did not voluntarily waive the presence of the trial court
or a court reporter during jury selection.10
3. Trial counsel was ineffective for failing to raise a "duress" defense
but rather encouraged petitioner to testify that he knew nothing
about a planned escape.
6

Id. at p. 362.
Id. at pp. 400-407.
8
Id. at p. 449.
9
In his petition Jacobs states "petitioner recounted [to the court] how he thought he was there for a different trial…
[The trial court] then said petitioner had the option of representing himself or continuing with [appointed counsel].
When petitioner said he would represent himself [the court] said trial would procced that day and no postponements
of time to prepare would be allowed…"
10
Petitioner contends that issues 1 and 2 were raised in his direct appeal and post-conviction petition, but we are
only able to conclude that issue 2 was only raised in the post-conviction proceedings and the first issue was not
raised at all .(Petition at ¶¶ 12(1)(c) and 12(a)(d)).
7

3

4. PCRA counsel was ineffective for failing to investigate and secure
photos found on the body of the escapee which would have
demonstrated that the petitioner's actions were coerced.11
The background to this prosecution is set forth in the opinions of the Superior Court
citing the trial court's opinion:
The evidence to support the attempted escape conviction includes a
four-inch hole between the defendant's cell and the cell of an escaped
inmate, as well as items recovered from defendant's cell, including a
removed window, a crowbar, and strips of cloth. The defendant was
in cell number 218 of the disciplinary housing unit and an inmate
named Frank Seretich, was in the next-door cell, number 217. Mr.
Seretich was found dead on January 12, 2006, after falling from a
hand-made "rope while attempting to escape. Authorities instituted a
lock-down and unit search after Mr. Seretich's body was found.
Incriminating items were found in the defendant's cell.
The defendant and Mr. [Seretich] shared one outer window,
surrounded by concrete, which contained two individual cell windows
and opened separately. The Lexan glass and screen had been removed
from the window and were found in the defendant's cell. A pry bar
that had been used to pry the [rivets] off the Lexan glass window
panel was found in the toilet of defendant's cell. The outside metal
bars from the shared windows were also found in the defendant's cell.
The defendant's cell also contained strips of cloth, similar to the ones
used by Frank Seretich to construct a 225 foot long rope. There was a
1"x4" hole in the wall of the defendant's cell that ran through the fourinch thick wall into Mr. Seretich's cell. Additionally, there was a line
constructed of prison cloth that inmates used for "fishing", passing
things from cell to cell.
The defense argued that the above evidence was merely
circumstantial evidence and speculation without direct evidence of the
crimes charged. The jury found the defendant guilty.12
It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:
(1) A 1-year period of limitation shall apply to the 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;
11
12

See: Petition at ¶ 12.
See: Appx. at pp.116-117.

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(B) The date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State action;
(C) The date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) The date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
(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.
An untimely post-conviction petition is not “properly filed”. Pace v. DiGulglielmo, 544
U.S. 408 (2005).
In the instant case, the Pennsylvania Supreme Court affirmed the conviction but
remanded for resentencing on February 21, 2012. That resententencing occurred on December 5,
2012, post-sentencing motions were withdraw on February 14, 2013 and no appellate relief was
sought. Thus his conviction and sentence became final on March 16, 2013 when the time in
which to appeal expired. Gonzalez v. Thaler, 132 S.Ct. 641 (2012).13
On March 4, 2014, Jacobs filed a post-conviction petition. Thus the time between his
conviction becoming final and his filing for post-conviction relief was 353 days. Post-conviction
relief was denied, the denial affirmed on appeal and allowance of appeal was denied on October
27, 2015. The instant petition was executed on December 9, 2015 or 43 days after the denial of
allowance of appeal. The effective date of the Antiterrorism and Effective Death Penalty Act
which imposed the one year statute of limitations is April 24, 1996 and thus it is applicable here.
Excluding the time during the pendency of the properly filed post-conviction petition, the time
that elapsed after his conviction become final and his execution of the instant petition was 396
days. Thus in excess of the one year period in which to seek relief has expired, and the petition
here is time barred unless a basis for equitable tolling exists. Holland v. Florida, 560 U.S. 631,
645 (2010).

13

See; Pa R.App.P, 903

5

In his response (ECF No. 44) to the answer raising the statute of limitations defense,
Jacobs states:
Petitioner acted diligently in filing this petition where despite being
told by PRCA counsel that he had until February 6, 2016 to file
petitioner filed it in November 2015 up against nine months of no
access to his legal files and upon gaining access discovering that all of
those files had been destroyed other state interference included no law
books in prison library coupled with no legal aids. (p4, ¶5).
The remainder of his response is a rehash of his arguments in support of the petition.
Even if Jacobs relied on this representation, an attorney's miscalculation of the time in
which to seek federal relief is not a basis for imposition of equitable tolling. Lawrence v. Florida,
549 U.S. 327 (2007).14Thus, the instant petition is subject to dismissal as time barred.
However, even if this was not the case, the issues which petitioner raises here are
meritless.
The first claim he makes is that counsel proceeded to trial on this case when trial had
originally been scheduled on another possession of implements of escape charge.
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).

14

In his letter advising petitioner of the time in which to file for federal relief, counsel stated "that would give you
approximately 3 months to file a federal habeas. I believe that I'm correct, but don't rely on my calculations since
you need someone who does federal habeas work to make sure." (See: ECF No. 44, Exhibit E).

6

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 are 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
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)
Petitioner's first issue was not raised in the appellate courts of the Commonwealth and
cannot now be raised in those courts due to a time bar. 42 Pa.C.S.A. § 9545(b). For this reason it
is procedurally defaulted and need not be considered here. Coleman v. Thompson, 501 U.S.
722,750 (1991).
The second issue which petitioner raises is that he did not consent to jury selection being
conducted without the trial judge being present. This issue is premised on Pa.R. Crim.P. 631(A)
("Voir dire of prospective jurors …shall be conducted … in the presence of the judge, unless the
judge's presence is waived…").
Following the post-conviction hearing, the court wrote:
7

During the PCRA hearing, Defendant continued to allege that he did
not sign his signature on the forms waiving the presence of a judge
and court reporter at jury selection. Trial counsel … stated that
although she does not specifically remember Defendant signing the
jury selection waiver forms, the signature on the forms would have
been Defendant's signature. Trial counsel stated that she did not sign
Defendant's name, and explained that if Defendant had refused to sign
the forms then jury selection would have stopped and they would
have returned to the courtroom. This Court finds trial counsel's
testimony to be credible and the testimony of Defendant not to be
credible… This Court finds that the signature waiving the presence of
a judge and reporter during jury selection was Defendant's signature
(record references omitted).15
Issues of credibility are determined by the fact-finder and those finding are
granted great deference, 28 U.S.C. § 2254(e)(1), Felkner v. Jackson, 131 S.Ct. 1305
(2011). No showing is made here for disturbing those finding and as a matter of
Pennsylvania procedural rule the issue of the presence of the judge is not subject to
review here. Swarthout v. Cooke, 131 S.Ct. 859 (2011). For this reason, petitioner
is not eligible for relief on this issue.
Jacobs' next issue is that counsel was ineffective for failing to present a
"duress" defense but rather advised the petitioner to contend that he was not
involved in the escape. 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, 390-91 (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
15

Id. at p. 353.

8

Strickland test is conjunctive and a habeas petitioner must establish both the
deficiency in the 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).
In addressing this issue, the court wrote:
During the PCRA hearing Defendant testified that he wrote to
[defense counsel] and told her that he participated in the escape
because he was coerced by Mr. Seretich who used threats "… upon
my family and using my personal property to coerce me to help him
escape, but that I told [defense counsel] I never intended to escape."
The Defendant explained that one of the guards stole personal family
photographs from his cell and gave them to Mr. Seretich, who
threatened to kill Defendant's grandmother and other relatives unless
Defendant helped Mr. Seretich escape. Defendant claimed that he
wrote his trial attorney a letter informing her that he wanted to
proceed to trial defending the charges on the bases of coercion, since
he was threatened and forced to participate in the escape, but his trial
attorney rejected that defense. Defendant claimed his trial attorney
corresponded to him, stating that she wanted his defense to be
denying involvement in the escape and denying knowledge of the
escape and claiming he was merely a scapegoat, even though she
knew this was not truthful.
Defendant has not established any of the elements necessary for
ineffective assistance of counsel. This Court does not find any of
Defendant's testimony to be credible. This Court believes that trial
counsel indicated to Defendant that he should be completely
forthright in his testimony. Defendant testified at trial but never stated
he was threatened and forced to participate in the escape attempt,
instead he denied any involvement in the escape.
Furthermore, trial counsel did not recall being informed of any threat
against Defendant, compelling him to participate in the escape, and
the correspondence does not demonstrate such a threat. If Defendant
had told trial counsel about such threats made to obtain his
participation in the escape, she would have further investigated this
and proceeded. Trial counsel testified that Defendant told her about a
drug ring conspiracy … but not about any coercion or threats
compelling him to participate in the escape (transcript citations
omitted).16
16

Id. at pp. 354-355.

9

Because no showing being made here to disturb those factual findings, this
issue is likewise without merit.
Finally, petitioner contends post-conviction counsel was ineffective for
failing to independently investigate and secure photos found on the body of the
escapee which would have demonstrated that the petitioner's actions were coerced.
While post-conviction counsel's alleged ineffectiveness was never raised in the
state courts, Jacobs appears to raise this claim as one arising under Martinez v.
Ryan, 132 S.Ct. 1309, 1315 (2012)("inadequate assistance of counsel at initialreview collateral proceedings may establish cause for a prisoner's procedural
default of a claim of ineffective assistance at trial"). In Martinez the Court held that
where in states like Pennsylvania claims of ineffective assistance of counsel can
only be raised in collateral proceedings rather than on direct review, failure to do so
may establish a basis for procedural default.17 However, this exception is very
narrow and only applies to initial collateral review. Norris v. Brooks, 794 F.3d 401
(3d Cir. 2015), cert. denied 2016 W.L. 763672 (2016).
Petitioner here is not alleging an issue of ineffectiveness of trial counsel but
rather contents that post-conviction counsel was ineffective for failing to conduct
an independent factual investigation. Because, this exception is only applicable to
initial post-conviction proceedings where counsel fails to raise the issue of
ineffective assistance of trial counsel the Martinez, exception is not applicable here.
132 S.Ct. at 1320.
The record demonstrates that the instant petition is time barred. However,
even if this was not the case, the petitioner's conviction was not secured in any
manner contrary to federal law as determined by the United States Supreme Court
nor involved an unreasonable application of that law. For this reason his allegations
are without merit.
Accordingly, the petition of Andre Jacobs 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.
17

Pennsylvania requires that claims of ineffective assistance of trial counsel be raised in collateral proceedings and
not in a direct appeal Com. v. Bozic, 997 A.2d 1211(Pa.Super), leave to appeal denied 608 Pa. 659 (2010), cert
denied 131 S.Ct. 2939 (2011).

10

An appropriate Order will be entered.
Filed: January 4, 2017

s/ Robert C. Mitchell
United States Magistrate Judge

11

ORDER
AND NOW, this 4th day of January 2017, for the reasons set forth in the
foregoing Memorandum, the petition of Andre Jacobs for a writ of habeas corpus
(ECF No.7) is DISMISSED, and because reasonable jurists could not conclude that
a basis for appeal exists, a certificate of appealability is DENIED.
Pursuant to Rule 4(a) F.R.App.P. the parties are advised that if any parties
desire to appeal, a notice of appeal must be filed within thirty (30) days of this date.
s/ Robert C. Mitchell
United States Magistrate Judge

12