GREELEY v. GILMORE et al
Filing
26
MEMORANDUM OPINION & ORDER re 3 Petition for Writ of Habeas Corpus, filed by ALBERT T. GREELEY, III dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 09/08/2016. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALBERT T. GREELEY, III, JU-7219,
Petitioner,
v.
ROBERT D. GILMORE, et al.,
Respondents.
)
)
)
) 2:16-cv-89
)
)
)
MEMORANDUM and ORDER
Albert T. Greeley, III and inmate at the State Correctional Institution – Greene has
presented a petition for a writ of habeas corpus (ECF No.3). 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.
Greeley is presently serving a seven to twenty year period of incarceration imposed
following his conviction by a jury of possession with intent to deliver and possession of a
controlled substance at CP-26-CR-133-2009 in the Court of Common Pleas of Fayette County,
Pennsylvania. He also pled guilty to charges of a summary offense of driving without a license.
This sentence was imposed on October 31, 2011.1
Although a timely appeal was not filed, petitioner was granted leave to appeal nunc pro
tunc, and raised the following issues in the Superior Court:
1. Did the Commonwealth present insufficient evidence to support the intent to
deliver and possession of a controlled substance charges; in that the
Commonwealth failed to establish [that Greeley] was aware there were drugs
in the vehicle, and the drugs were in [Greeley's] possession and control as the
vehicle was not owned by [Greeley]?
2. Did the Commonwealth present insufficient evidence to support the intent to
delive[r] charge, in that there was no indicia that [Greeley] had sold drugs or
the quantity was not enough to support the charge?
1
See: Petition at ¶¶ 1-6.
3. Did the trial court err when the court denied the request for a mistrial based on
the testimony presented by the officer related to funds forfeited, when at the
previous trial[,] a mistrial was granted for the same testimony.
On February 21, 2013, the judgment of sentence was affirmed.2
On April 23, 2013, Greeley filed a post-conviction petition. That petition was denied and
an appeal to the Superior Court was filed in which the issues raised were:
A. Mr. Greeley's trial counsel was ineffective thus violating his rights to a fair trial.
B. Mr. Greeley was denied his right to appeal based upon the ineffectiveness of his
appellate counsel.3
The denial of post-conviction relief was affirmed on February 11, 20154 and leave to appeal was
denied by the Pennsylvania Supreme Court. Commonwealth v. Greeley, 118 A.3d 1108 (Pa.
2015).
In the instant petition, executed on January 13, 2016 and received on January 20, 2016
Greeley raises the following issues:
1. Petitioner's counsel was ineffective in failing to conduct a reasonable pre-trial
investigation, in violation of Petitioner's right under the 6th and 14th
Amendments. Specifically, trial counsel failed to summons fact witnesses and
to put on defense witnesses at trial. Wiggins v. Smith, 539 U.S. 510 (2003).
2. Petitioner's counsel was ineffective for failing to object or seek exclusion of
Commonwealth's expert witness testimony in violation of petitioner's rights
under the 6th and 14th Amendments of the U.S. Constitution. Strickland v.
Washington, 466 U.S. 668 (1984).
3. Petitioner's counsel was ineffective for failing to object to the expert's and
other witness testimony regarding the "wad of cash". The forfeiture issue in
violation of the 6th and 14th Amendments of the U.S. Constitution. Strickland
v. Washington, 466 U.S. 668 (1984).
4. Petitioner's counsel was ineffective for failing to request a proper jury
instruction in violation of the 5th, 6th and 14th Amendments of the U.S.
Constitution. Specifically trial counsel failed to request a standard expert
witness jury instruction. Strickland v. Washington, 466 U.S. 668 (1984).5
It is provided in 28 U.S.C. §2254(b) that:
2
See: Exhibit 5 to the answer. The Superior Court concluded as did the trial court that the petitioner did not move
for a mistrial.
3
See: Exhibit 10A to the answer at pp.1-2.
4
See: Exhibit 10 to the answer.
5
See: Attachments to the petition.
2
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). The Commonwealth concedes that the instant
petition is both timely and that the petitioner has exhausted the available state court remedies.6
The background to this prosecution is set forth in the February 11, 2015 Memorandum of
the Superior Court:
On October 30, 2008, Trooper James Pierce observed Greeley operating a vehicle
he later confirmed to be a vehicle owned by another [person]. Pierce testified he
initially approached Greeley "because he knew" Greeley did not possess a valid
driver's license.
Upon stopping behind Greeley's vehicle to purportedly investigate why Greeley
was operating a vehicle without a driver's license and also to determine who was
the owner of the vehicle, Greeley identified to the trooper that the vehicle was
owned by James Silbaugh. The trooper requested proof of ownership and Greeley
opened the passenger side of the vehicle whereupon Trooper Pierce smelled burnt
marijuana emanating from inside the vehicle.
Trooper Pierce was given permission by Greeley to conduct a pat-down search of
his person, wherein, Pierce discovered a small quantity of marijuana inside
Greeley's pants pocket. Almost immediately thereafter, Greeley's mother-in-law
and father-in-law, Darnice and Dennis Sykes, arrived at the scene. Greeley's
mother-in-law walked over to Greeley and gave him a hug.
Pierce "pulled Greeley away from Mrs. Sykes" and noticed he was "holding a wad
of cash in his left hand." … After separating Greeley away from Mrs. Sykes,
another vehicle arrived at the scene and Mrs. Sherry Silbaugh (the wife of the
putative owner of the vehicle) was approached by the trooper to obtain consent to
search the vehicle Greeley had been operating.
As a result of the vehicle search, Pierce recovered from the enclosed vehicle
console a plastic baggie containing a white powder later confirmed to be cocaine.
6
Response at p.6.
3
The seized vegetable matter recovered from the Greeley's pants pocket was also
confirmed to be marijuana.
At trial, Corporal Dennis Ulery of the Pennsylvania State Police was qualified as
an expert witness. Corporal Ulery provided his opinion that the cocaine was
possessed by Mr. Greeley … with the intent to deliver for sale. … Based upon
the Corporal's experience in narcotics investigations, the cash "possessed by
Greeley was indicative of a drug dealer's 'stack.'" Corporal Ulery cogently
testified that he was not aware that when Trooper Pierce initially patted down
Greeley, Pierce did not "feel" the wad or stack of cash. Corporal Ulery also
testified he was not aware of where the cocaine was located, once discovered, by
Trooper Pierce.
During the course of the trial, the Commonwealth failed to produce the actual
funds or wad of cash attributed to Greeley and attributed by Ulery as what "drug
dealers" possess incident to distribution activity. Instead, the Commonwealth
produced photographs of the cash.
During the trial, Trooper Morrison was allowed to testify regarding the cash
allegedly obtained from Greeley, in response to whether any DNA evidence was
obtained from the cash, that the cash "went to forfeiture."7
The issues which the petitioner seeks to raise here all involve allegations of
ineffectiveness of trial counsel.
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
7
See: Exhibit 10 to the answer at pp.1-3.
4
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).
Pennsylvania requires that claims of ineffective assistance of counsel be raised in
post-conviction proceedings rather than on 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). The issues which the petitioner raises here alleging the ineffectiveness of counsel
were addressed by the Superior Court in response to his post-conviction appeal and the
latter court adopted the opinion of the trial court (Ex.10) which thoroughly reviewed
these claims (Ex.8).
Greeley's first issue is that counsel was ineffective for failing to conduct a
reasonable pre-trial investigation and in failing to summon certain fact witness to testify
for the defense. Specifically, he contends that counsel was ineffective in failing to call
Darniese Sykes as a witness who would have testified that the "wad" of money that the
petitioner possessed was a payment to her for child-care expenses thereby rebutting the
inference that the funds were drug proceeds; secondly he alleges that trial counsel was
ineffective in failing to call Sherry Silbaugh as a witness and that she would have
testified that her car had been used by several individuals that day.
At the continued post-conviction hearing held on March 18, 2014 (Ex. 8(a)), trial
counsel testified that he was aware that a mistrial had been declared in the petitioner's
first trial due to testimony that the funds seized from the petitioner had been forfeited but
determined that at best he could secure was a jury instruction on the testimony regarding
forfeiture (pp.7,12-13); that the petitioner informed him about his mother and
grandmother but not about other potential witnesses although other individuals were
named in the police report (p.8); that he recalled something about the petitioner receiving
money from another individual [Greeley's girlfriend] to use for his daughter's tuition but
lacked specific information about this matter and did not see any reason to attempt to
contact her (pp.9-11); that the Commonwealth's expert was new to the case and had just
learned about the packet of money recovered from the petitioner but was willing to testify
that in his expert opinion it reasonably represented drug proceeds (pp.10,15); that he did
not believe that testimony regarding the source of the money would have made any
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difference (p.16); that since the person with control of the vehicle was an admitted drug
abuser, he did not believe her testimony about authorizing petitioner to use the vehicle
would have made any difference and in fact would have been detrimental (p.19); that
even with an explanation about receiving the funds from petitioner for his daughter's
tuition any testimony from Darneise Sykes would have been detrimental to the defense
(pp.19-20) and that he believed the trial was a "clean" trial (p.18).
Testimony was also received from Dianne Zerega who was petitioner's direct
appeal counsel (p.24-35). She testified that as "conflicts" counsel she deals with her
clients through correspondence at which the petitioner was very adept (p.24-35); that the
petitioner had related to her about trial counsel's failure to subpoena witnesses, a matter
of ineffective assistance of counsel, which she determined had to be raised under
Pennsylvania's post-conviction act and not in a direct appeal (p.28-29); that she did not
discuss the jury instructions with the petitioner (p.29) and that she did not believe
petitioner wanted her to appeal from the Superior Court decision to the Pennsylvania
Supreme Court (pp.30-31,33).
The petitioner also testified at the March 18, 2014 hearing (p.35-52). He testified
that appellate counsel did not contact him (p.36); that he wrote to appeals counsel about
the issues he believed should be raised (pp.37-39); that although he wanted to appeal to
the Pennsylvania Supreme Court, counsel informed him that there were no credible issues
to raise on appeal (p.39); that his post-conviction issues were ineffective assistance of
counsel in failing to interview the car owner, failing to interview persons who observed
him giving the tuition money to Sykes, and failing to move for a mistrial rather than a
curative instruction concerning the forfeiture of the money (pp.40-42); that at the time the
police stopped him he did possess marijuana but not cocaine (p.42); that his lawyer
advised him not to testify at trial (pp.49-50) and that he had a record of prior drug
convictions (p.49-50).
At the initial post-conviction hearing held on February 19, 2014 (Ex.8(a)),
Darneise Sykes testified that petitioner was arrested outside her home (p.9); that he was
coming to visit his daughter and provide some financial support (pp.10,12); that he
occasionally helped with his daughter's expenses (p.12); that petitioner worked as a
dishwasher at Denny's (p.15); that he attempted to give her the money (pp.10,16,17); that
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he normally did not give her $6000 for support of his child (pp.14-15) and that she was
never contacted by petitioner's attorney and would have been willing to testify at trial
(pp.11-2, 31-32).
Sherri Silbaugh also testified at the February 19, 2014 hearing that she had let
other individuals use her vehicle in exchange for drugs (p.28); that others had used the
vehicle in the very recent past (p.20); that petitioner only had the vehicle for ten minutes
when he was stopped by the police (pp.20-21) and that although she would have testified
at trial she was never contacted (pp.26, 30).
In reviewing the absence of testimony from Ms. Sykes, the post-conviction court
observed that had she testified, her testimony about the $6000 would have cast greater
suspicion on the petitioner's source of that sum. (Ex.8 p.8). Regarding Ms. Silbaugh's
possible testimony the court concluded that as an admitted drug user her testimony was
not credible and "would have almost certainly caused prejudice." (Ex.8 p 9). At the postconviction hearing trial counsel testified that he did not believe any of this testimony
would have been helpful (Ex. 8(a)). In light of the post-conviction court's interpretation
of the proposed testimony of these two witnesses, counsel cannot be faulted for making
the tactical decision not to investigate their involvement and call them as witnesses .
Rolan v. Vaughn, 445 F.3d 671 (3d Cir. 2006). The same may be said about appellate
counsel. For this reason, Greeley's first claim does not provide a basis for relief.
Petitioner's next argument is that counsel was ineffective for failing to move to
exclude the Commonwealth's expert witness, Corporal Dennis Ulrey of the Pennsylvania
State Police. At trial, Ulrey testified about his thirteen years of experience in
investigating drug crimes (TT.10/5/11 p.48); that he has received special drug training
education (Id. p. 48-49) that he has engaged in many undercover cocaine and marijuana
purchases (Id. p.49); that he had previously been accepted as a narcotics expert by the
courts (Id. p.50) and by stipulation he was accepted as an expert (Id. 50). He testified that
he had no doubt that an individual possessing 124 grams of cocaine which had a street
value of about $12,400 as well as $6000 in cash would be indicative of possession with
intent to deliver, since personal users normally possess a gram or less of cocaine (Id.
52,53,56); that normally drug proceeds are packaged in $1000 bundles (Id. p.53) and that
in the past he had refused to testify as an expert if he was not comfortable with his
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conclusions (Id. p.55). There was no basis upon which counsel could have reasonable
argued to exclude Ulrey as an expert, and this claim does not provide a basis for
supporting a claim of ineffective counsel. Real v. Shannon, 600 F.3d 302, 310 (3d
Cir.2010)("counsel was not ineffective for failing to raise a meritless claim").
Petitioner's next argument is that counsel was ineffective for failing to object to
testimony regarding the "forfeiture" of the $6000 that was seized. At petitioner's first trial
testimony of the "forfeiture" resulted in the declaration of a mistrial. At petitioner's
second trial, witness Morrison again testified. He testified that he was a Pennsylvania
State Police forensic technician (TT.10/5/11 p.33); that he received the cocaine,
marijuana and cash that were seized evidence from a Trooper whereupon he
photographed, packaged and put it into evidence storage (Id. p.33-35); that after field
testing the suspected drugs he forwarded them to the crime lab for processing (Id. p.3637); that he also processed and photographed the cash (Id. p.38) and that the packaged
cash went to forfeiture (Id. p.44). Defense counsel immediately objected and requested a
curative instruction regarding forfeiture (Id. p.44) whereupon with approval of all
counsel, the Court instructed "ladies and gentlemen of the jury, the fact that the currency
would have been submitted to asset forfeiture has no bearing upon this case. It has no
bearing upon the guilt or innocence of the defendant" (Id. p.44). While counsel did not
move for a mistrial, at the post-conviction hearing he testified that he thought the best he
could secure was a jury instruction on this issue, and the court delivered the instruction
set forth above. Again, as a strategic decision of counsel, this matter should not be second
guessed here. Real v. Shannon, supra.
Finally, petitioner contends that he is entitled to relief as a result of counsel's
failure to request a jury instruction on expert testimony. In its instructions, the trial court
informed the jury,
One of the elements of the crime of possession with intent to deliver is that the
defendant possessed the substance with that specific intent, that is with the intent
to deliver. There are basically three ways to determine whether that intent exists
… In determining whether it has been proven that the defendant had the intent to
deliver the substances you should consider all of the evidence including the
evidence as to quantity and quality of the items, the monetary value, the
defendant's circumstances and the circumstances of possession. You may
conclude that the defendant had the intent to deliver based on circumstantial
evidence alone but only if the circumstantial evidence is strong enough to
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convince you that the Commonwealth has established this intent beyond a
reasonable doubt.
(TT.10/5/11 pp.75-76).
In reviewing this issue, the post-conviction court wrote,
Expert testimony is but one factor among many. Expert testimony, at best, assists
the trier of fact in finding the intent required under the statute. Review of the
record establishes that petitioner's case presented a number of the noted factors,
independent of the need for expert opinion. The trial court's instructions also show
due acknowledgment of these factors. (Ex.8, p.16)(emphasis in original).
At the post-conviction hearing, defense counsel conceded that he did not request a jury
instruction on expert testimony but when asked whether he believed such an instruction could
have helped or hurt the petitioner, he "[did not] think it mattered" (TT. 3/18/14 p.23, Ex.8(a)).
Ulrey's testimony was that he received 124 grams of cocaine with a street value of about
$12,400 as well as $6000 in cash which lead him to conclude that this evidence was inconsistent
with personal use but was consistent with possession with intent to deliver (TT.10/5/11
52,53,56). As the post-conviction court determined this testimony was not of the nature that
required the testimony of an expert; that the jury was never instructed on the relevance of expert
testimony, and that the jury was instructed to make its determination based on the evidence
before it.8
As defense counsel testified, an expert witness instruction would not have made any
difference or as the post-conviction court wrote,
Expert testimony is but one factor among many. Expert testimony, at best, assists
the trier of fact in finding the intent required under the statute. Review of the
record establishes that Petitioner's case presented a number of the noted factors,
independent of the need for expert opinion. The trial court's instruction also show
due acknowledgment of those factors. (Ex. 8 p.16).
8
Pa.S.S.J.I. § 4.80 provides:
To assist juries in deciding cases such as this one, involving scientific, technical,
or other specialized knowledge beyond that possessed by a layperson, the law
allows an expert witness with special education and experience to present opinion
testimony.
An expert witness gives his or her opinion, to a reasonable degree of professional
certainty, based upon the assumption of certain facts. You do not have to accept
an expert's opinion just because he or she is considered an expert in his or her
field.
9
For this reason, counsel cannot be deemed ineffective for failing to request an expert witness
instruction
Because there is nothing in the record which would enable one to conclude that
petitioner's conviction was secured in any manner contrary to federal law as determined by the
Supreme Court, nor involved an inappropriate application of that law, he is not entitled to relief
here. For this reason, the petition of Albert T. Greeley, III 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.
Filed: September 8, 2016
s/ Robert C. Mitchell
United States Magistrate Judge
10
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