YOUNG v. OVERMYER et al

Filing 23

MEMORANDUM OPINION and ORDER. The petition for writ of habeas corpus is DENIED. A certificate of appealability is DENIED. The Clerk of Court shall mark this CASE CLOSED. Signed by Magistrate Judge Maureen P. Kelly on 10/15/18. A copy of this Order will be mailed to Petitioner this day, 10/15/18. (eca)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANDRE D. YOUNG,
Petitioner,
V.

MICHAEL OVERMYER and THE
ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA,

)
)
)
)
)
)
)
)
)

Civil Action No. 16-320
Magistrate Judge Maureen P. Kelly

Respondents.
MEMORANDUM OPINION AND ORDER

Andre D. Young ("Petitioner"), a state prisoner, has filed a Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"). ECF No. 1. For
the reasons that follow the Petition will be denied as will a certificate of appealability.
I. FACTUAL AND PROCEDURAL HISTORY
A. State Court Factual and Procedural History

This case arises from criminal convictions of Petitioner in the Court of Common Pleas of
Jefferson County, Pennsylvania. ECF No. 4 at 1. The Pennsylvania Superior Court summarized
the factual basis for Petitioner's convictions and procedural history in the state courts as follows:
The relevant facts and procedural history of this appeal are as follows. On
April 24, 2012, state police utilized a confidential informant ("CI-1") to conduct a
controlled purchase of heroin from Appellant and co-defendant, Anthony Harris, at
229½ Cranberry Alley in Punxsutawney. On April 30, 2012, police utilized another
informant ("CI-2") to conduct a second controlled purchase of heroin directly from
Appellant at the Cranberry Alley residence. Following the second transaction,
police stopped Appellant outside the residence, performed a frisk, and recovered
prerecorded buy money from his pocket.
At No. 315 of 2012, the Commonwealth filed a criminal information
charging Appellant with conspiracy in conjunction with the April 24, 2012
controlled purchase. At No. 316 of 2012, the Commonwealth filed a criminal
information charging Appellant with possession of a controlled substance and
delivery of a controlled substance in conjunction with the April 30, 2012 controlled
purchase. On September 7, 2012, Appellant filed omnibus pretrial motions to
suppress evidence and compel discovery. The court conducted a hearing on the

motions on October 31, 2012. After receiving testimony, the court denied the
suppression motions and granted the motion to compel discovery. At the
conclusion of the hearing, the Commonwealth moved to consolidate the charges for
trial. Appellant objected to consolidation, but the court granted the
Commonwealth's motion.
Following trial, a jury convicted Appellant of all charges. On November 14,
2012, the court sentenced Appellant to thirty-two (32) months to six (6) years'
imprisonment for the conspiracy conviction at No. 315 of 2012. The court imposed
a consecutive sentence of seven and one-half (7 ½) to fifteen (15) years'
imprisonment for the drug convictions at No. 316 of 2012. Appellant timely filed
post-sentence motions at both docket numbers on Monday, November 26, 2012,
which included a challenge to the weight of the evidence. On November 30, 2012,
the court denied the post-sentence motions. Appellant did not file a notice of
appeal.
On January 3, 2013, Appellant filed a counseled motion for leave to file a
notice of appeal nune pro tune at both docket numbers. That same day, the court
granted Appellant's motion. Also on January 3, 2013, Appellant timely filed notices
of appeal nunc pro tune at both docket numbers. On January 10, 2013, the court
ordered Appellant to file a concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P.1925(b). Appellant timely filed a Rule 1925(b) statement on
January 29, 2013. On June 25, 2013, this Court consolidated the appeals sua
sponte.
Com. v. Young, 40 WDA 2013, 2013 WL 11254642, at *1 (Pa. Super. Oct. 25, 2013)
In his direct appeal to the Pennsylvania Superior Court, Petitioner raised only two issues in
the body of his appeal brief: "DID THE [TRIAL] COURT ERR IN GRANTING THE
COMMONWEALTH'S MOTION TO CONSOLIDATE? WAS THE JURY'S VERDICT OF
GUILTY ENTERED AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT
TRIAL?" Id. at 2. The Superior Court affirmed. No Petition for Allowance of Appeal was filed
with the Pennsylvania Supreme Court.
Thereafter, Petitioner filed a timely Post Conviction Relief Act ("PCRA") Petition. The
Superior Court described the PCRA proceedings as follows:
On September 29, 2014, Appellant timely filed a prose PCRA petition. The PCRA
court appointed counsel on October 7, 2014. On January 22, 2015, Appellant's
PCRA counsel filed a petition to withdraw along with a no-merit letter pursuant
to Turner and Finley. That same day, the court issued a notice of intent to dismiss
the petition without a hearing, pursuant to Pennsylvania Rule of Criminal
2

Procedure 907. On January 30, 2015, Appellant filed a response to the court's
Pa.R.Crim.P. 907 notice, requesting the court appoint him new counsel to proceed
with his appeal. On February 17, 2015, the court denied Appellant's request for
additional PCRA counsel, dismissed Appellant's PCRA petition, and granted
counsel's petition to withdraw.
On February 20, 2015, Appellant timely filed a pro se notice of appeal. On
February 25, 2015, the PCRA court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), and he timely complied on March 9, 2015.
Appellant raises the following issues for our review:
DID THE PCRA COURT ERR INSOFAR AS ADOPTING PCRA
COUNSEL[']S "NO[-]MERIT" LETTER SEEKING THEN
GRANTING WITHDRAWAL AS ATTORNEY FOR
APPELLANT IN LIEU OF FILING A PCRA OPINION WHEN
SUCH A PRACTICE DID NOT DEMONSTRATE IN THE
CERTIFIED RECORD ON APPEAL THAT THE PCRA COURT
CONDUCTED A MEANINGFUL INDEPENDENT REVIEW OF
APPEAL ISSUES OF APPELLANT[?]
WHETHER [PCRA] COUNSEL['S] PRETEXTED TENDERED
DEFENSE AND PERFUNCTORY PERFORMANCE
SUMMARIZED IN THE FOLLOWING DERELICTIONS OF
DUTY AND BREACH OF PROFESSIONAL RESPONSIBILITY
TO THE [LAWYER][-]CLIENT RELATIONS, RENDERED HIS
BELOW EFFECTIVE ASSISTANCE, THAT FORFEITING AND
DEPRIVING APPELLANT OF HIS RIGHT TO A MEANINGFUL
REVIEW UNDER THE [PCRA]?
WAS TRIAL COUNSEL INEFFECTIVE IN FAILING TO
ADVISE APPELLANT OF [THE POSSIBILITY] OF [A] 15
YEAR MAXIMUM SENTENCE AS HE WAS GIVEN [AND]
PREVENTING HIM FROM ACCEPTING THE 5 YEAR
MAXIMUM OFFERED IN A PLEA DEAL [WHEN]
APPELLANT WAS UNDER THE IMPRESSION THAT 5 YEARS
WAS THE ABSOLUTE MAXIMUM SENTENCED ALLOWED?
WAS TRIAL COUNSEL INEFFECTIVE INF AILING TO
CHALLENGE [NUMEROUS] ASPECTS OF APPELLANT'S
SENTENCE WHICH WERE UNREASONABLE, AND BASED
ON INCORRECT INFORMATION WHICH RESULTED IN AN
EXCESS[IVE SENTENCE]?
WAS TRIAL COUNSEL INEFFECTIVE IN FAILING TO
CHALLENGE AND PRESERVE APPELLANT[']S SIXTH
AMENDMENT RIGHT TO CONFRONT WITNESS[ES] WHEN
3

[THE] TRIAL COURT UNCONSTITUTIONALLY ALLOWED
INTRODUCTION OF AFFIDAVIT TO LAB REPORTS OF NON
TESTIFYING WITNESS[?]
DID THE PCRA COURT ERR [IN] DENYING APPELLANT
PCRA RELIEF WITHOUT AN [EVIDENTIARY] HEARING ON
APPELLANT'S PCRA CLAIM OF TRIAL COUNSEL[']S
INEFFECTIVENESS?
Appellant's Brief at ii. 6•7

6

We note that Appellant failed to provide a statement of questions
involved as required under Pa.R.A.P. 2116. His table of contents
indicates that the "Statement of Questions Involved" will appear on
page v, but page vis not included in his brief. However, because he
has identified the specific issues he asks us to review in his "Table
of Contents" section, his failure to comply with Pa.R.A.P. does not
impede our ability to review the issues. Accordingly, we will
address the merits of Appellant's claims. See Commonwealth v.
Long, 786 A.2d 237,239 n. 3 (Pa. Super. 2001) affd, 819 A.2d 544
(Pa.2003).
7

We have re-ordered Appellant's issues for purposes of disposition.

Com. v. Young. 408 WDA 2015, 2015 WL 7187672, at *1-2 (Pa. Super. Nov. 16, 2015) (some
footnotes omitted).
The Superior Court affirmed the denial of PCRA relief. No Petition for Allowance of
Appeal was filed with the Pennsylvania Supreme Court.

B. Federal Court Procedural History
After curing the deficiency of not paying the filing fee, the instant Petition was filed. ECF
No. 4. In the Petition, he raised the following eight Grounds for Relief.
GROUND ONE: IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, STATE TRIAL
COUNSEL WAS INEFFECTIVE BY STIPULATING TO THE IN-COURT
INTRODUCTION OF THE ABSENT CRIME LAB ANAL YSIST [sic] REPORT.
ECF No. 4 at 6.

4

GROUND TWO: IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, TRIAL/SENTENCING
COUNSEL FAILED TO CHALLENGE THE BLATANT MISCALCULATIONS
OF DEFENDANT'S PRIOR RECORD SCORE THAT RESULTED TO THE
EXCESSIVE SENTENCE.
Id. at 8.
GROUND THREE: IN VIOLATION OF DEFNDANT'S U.S.
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND AF AIR
TRIAL THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE.
Id. at 9.
GROUND FOUR: IN VIOLATION OF DEFENDANT'S U.S.
CONSTITUTIONAL FOURTEENTH AMENDMENT RIGHTS THE LOWER
COURT COMMITTED A FUNDAMENTAL UNFAIR ERROR OF LAW BY
DENYING DEFENDANT'S OMNIBUS PRE-TRIAL SUPPRESSION MOTION.
Id. at 11.
Ground Five: THE PCRA COURT ERR [sic] BY DENYING APPELLANT'S
PCRA PETITION WITHOUT AN EVIDENTIARY HEARING WHICH
VIOLATED PETITIONER[' s] DUE PROCESS RIGHT UNDER THE
FOURTEENTH AMEMDMENT OF THE UNITED STATES CONSTITUTION.
Ground Six: THE PCRA COURT ERR [sic] INSOFAR AS ADOPTING THE
PCRA COUNSEL"S [sic] NO-MERIT LETTER SEEKING THEN GRANTING
WITHDRAWAL AS ATTORNEY FOR APPELLANT IN LIEU OF FILING A
PCRA OPINION WHEN SUCH A PRACTICE DID NOT DEMONSTRATE IN
THE CERTIFIED RECORD ON APPEAL THAT THE PCRA COURT
CONDUCTED A MEANINGFUL INDEPENDENT REVIEW OF APPEAL
. ISSUES WHICH VIOLATED PETITIONER'S FOURTEENTH AMENDMENT
RIGHTS TO DUE PROCESS OF LAW.
Ground Seven: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
ADVISE APPELLANT OF THE POSSIBILITY OF 15 YEAR MAXIMUM
SENTENCE AS HEWAS GIVEN, THUS PREVENTING HIM FROM
ACCEPTING THE 5 year MAXIMUM OFFERED IN A PLEA DEAL.
APPELLANT WAS UNDER THE IMPRESSION THAT 5 YEARS WAS THE
ABSOLUTE MAXIMUM SENTENCE ALLOWED.

5

Ground Eight: IN VIOLATION OF DEFENDANT'S SIXTH AMENDMENT
U.S. CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
CHALLENGE NUMEROUS ASPECTS OF APPELLANT'S SENTENCE
WHICH WERE UNREASONABLE AND BASED ON INCORECT
INFORMATION WHICH RESULTED IN AN EXCESSIVE SENTENCE.
Id. at 14.
After being granted an extension of time, Respondents filed their Answer, ECF No. 13,
along with copies of much of the state court record attached as exhibits to the Answer. In the
Answer, Respondents denied that Petitioner was entitled to federal habeas relief. After being
granted an extension of time, Petitioner filed a Response or Traverse to the Answer. ECF No. 22.
All parties have consented to the plenary exercise of jurisdiction by the United States Magistrate
Judge. ECF Nos. 16, 19.

II. DISCUSSION
A. The AEDP A is Applicable.
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I,§
101 (1996) (the "AEDPA") which amended the standards for reviewing state court judgments in
federal habeas petitions filed under 28 U.S.C. § 2254 was enacted on April 24, 1996. Because
Petitioner's habeas Petition was filed after its effective date, the AEDPA is applicable to this case.
Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000).
Where the state courts have reviewed a federal issue presented to them and disposed of the
issue on the merits, and that issue is also raised in a federal habeas petition, the AEDP A provides
the applicable deferential standards by which the federal habeas court is to review the state courts'
disposition of that issue. See 28 U.S.C. § 2254(d) and (e).

B. Ground One - Counsel was Ineffective for Confrontation Clause Error.
In Ground One, Petitioner asserts that his trial counsel was ineffective when counsel

6

·1

✓

stipulated to the admission of the Commonwealth's crime lab report that analyzed the substance,
which the confidential informants bought. The report indicated that the substance contained
heroin. Petitioner contends that this stipulation deprived him of his Constitutional right to
confront witnesses against him.
The Superior Court addressed this issue on the merits as follows:
In this case, the Commonwealth introduced a lab report that indicated the
substance of the controlled buy was heroin, and the lab analyst did not testify.
Defense counsel, however, had no reason to object to the introduction of the lab
report because Appellant was not arguing that the substance sold was not heroin.
Appellant admitted that someone was selling heroin, but claimed it was not him,
and the Commonwealth's evidence did not prove his guilt beyond a reasonable
doubt. See N.T., 11/13/12, at 121.
Further, counsel's failure to object to the admission of this testimony did not
prejudice Appellant. In addition to introducing the lab report, the Commonwealth
presented seven witnesses who testified against Appellant, four of whom testified
that the substance in question was heroin. See N.T. at 21, 41, 51, 78. Thus,
Appellant's ineffective assistance of counsel claim fails. See Spatz, 896 A.2d at
, 1231 ("A defendant is not prejudiced by the failure of counsel to present merely
cumulative evidence.").
Com. v. Young, 408 WDA 2015, 2015 WL 7187672, at *8 (Pa. Super. Nov. 16, 2015).
To prove ineffectiveness, a petitioner must show that his counsel's performance was
deficient and that the petitioner suffered prejudice as the result of the deficient performance.
Strickland v. Washington, 466 U.S. 66 (1984). The Superior Court found that Petitioner's trial
counsel was not deficient in stipulating to the admission of the lab report under the facts of this
case because there was no factual dispute that heroin was sold to the confidential informants but
the dispute was whether it was Petitioner who sold it. Hence, the Superior Court found that
Petitioner failed to carry his burden to show the deficient performance prong of Strickland.
The Superior Court also found that Petitioner was not prejudiced by this stipulation given
that there was more than sufficient other evidence that the substance sold was heroin. This
application of the prejudice standard was clearly not contrary to or an unreasonable application of
7

Strickland's prejudice standard. Harrington v. Richter, 562 U.S. 86, 111-12 (2011) ("In assessing
prejudice under Strickland, the question is not whether a court can be certain counsel's
performance had no effect on the outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. Instead, Strickland asks whether it is "reasonably
likely" the result would have been different. This does not require a showing that counsel's actions
"more likely than not altered the outcome," but the difference between Strickland's prejudice
standard and a more-probable-than-not standard is slight and matters "only in the rarest case." The
likelihood of a different result must be substantial, not just conceivable.") (citations omitted).
Petitioner does not specifically argue that the Superior Court's disposition of Ground One
was contrary to or an unreasonable application of Strickland. Hence, he has failed to carry his
burden under the AEDPA to merit relief. Indeed, we find that the Superior Court's disposition
was neither contrary to or an unreasonable application of Strickland under either prong of deficient
performance or prejudice. Accordingly, Ground One does not merit any relief in this federal
habeas proceeding.

C. Grounds Two and Eight - Ineffective Assistance of Trial Counsel re: Sentencing
In Ground Two, Petitioner complains that his trial/sentencing counsel was ineffective
because the trial court relied upon incorrect information contained in the Pre-Sentence
Investigation ("PSI") report that reflected allegedly: 1) erroneous "subsequent possession
charges;" and 2) misrepresented Petitioner's prior record score by relying upon a prior juvenile
adjudication of guilt for a simple assault misdemeanor charge whereas the PSI listed the
conviction as being an Aggravated Assault conviction. ECF No. 4 at 8.
Similarly, in Ground Eight, Petitioner raises the claim that his trial counsel was ineffective
for "failing to challenge numerous aspects of appellant's sentence which were unreasonable and

8

based on incorrect information which resulted in an excessive sentence." ECF No. 4 at 14
(capitalization altered).
Although Petitioner contends that his trial/sentencing counsel was ineffective for failing to
raise these sentencing claims, it appears in fact, that his trial/sentencing counsel indeed raised
these claims in the post sentence motions, ECF No. 13-7 at 28-30, challenging the sentence as
being excessive, denying that Petitioner had any juvenile adjudication for aggravated assault, id. 1
21, and arguing for concurrent rather than consecutive sentences. Hence, we do not see how
Petitioner is factually correct in contending that his trial/sentencing counsel was ineffective for not
challenging the sentence. Thus, we do not find that his trial/sentencing counsel was ineffective for
failing to challenge the sentence because trial/sentencing counsel did indeed challenge the
sentence.
Petitioner may instead be arguing that his direct appeal counsel was ineffective for not
raising this claim on appeal. We note that Petitioner's trial/sentencing counsel was also his direct
appeal counsel, i.e., Attorney J.D. Ryan. While Attorney Ryan raised the sentencing challenge in
post sentence motions as previously noted, and also raised the sentencing challenge in the Pa. R.A.
P. 1925(b) Statement of Matters Complained of on Appeal, ECF No. 13-9at213, Attorney Ryan,
withdrew the sentencing claims from consideration in his direct appeal brief. ECF No. 13-10 at 7
1 IV ("In light of a review of Com. v. Gibson, 716 A.2d 1275 (Pa. Super. 1998), the issue
regarding Appellant's sentencing is withdrawn. The lower court's written statement pursuant to
42 Pa.C.S.A.§9721(b) is attached as Appendix 'A-3."'). Accordingly, we find that any claim of
sentencing error was itself procedurally defaulted by the withdrawal of this sentencing claim and
Petitioner's only claim now would be that his direct appeal counsel was ineffective for
withdrawing this sentencing claim from consideration on direct appeal.

9

....

Furthermore, we note that a claim that direct appeal counsel was ineffective for
withdrawing the sentencing challenge was never raised. Hence, such a claim of direct appeal
counsel's alleged ineffectiveness for withdrawing the sentence challenge is procedurally defaulted.

D. Ground Three - Weight of the Evidence Claim is not Cognizable.
In Ground Three, Petitioner contends that the verdict of guilt is against the weight of the
evidence. However, such a claim that the verdict is against the weight of the evidence is not a
claim that is cognizable in federal habeas proceedings. McKinnon v. Superintendent, Great
Meadow Correctional Facility, 422 F. App'x 69, 75 (2d Cir. 2011) ("the argument that a verdict is
against the weight of the evidence states a claim under state law, which is not cognizable on
habeas corpus,"); Young v. Kemp, 760 F.2d 1097, 1105(11 th Cir. 1985)("A federal habeas court
has no power to grant habeas corpus relief because it finds that the state conviction is against the
'weight' of the evidence"); Davis v. Lavan, NO. CIV.03-40211, 2004 WL 2166283, at *9 (E.D.
Pa. Sept. 23, 2004)("a claim that a verdict is against the weight of the evidence is not cognizable
on habeas review because it requires an assessment of the credibility of the evidence presented at
trial, and a state court's credibility determinations are binding on a federal habeas court.").
Accordingly, Ground Three cannot provide a basis for federal habeas relief.

E. Ground Four -The Suppression Claim is Barred by Stone v. Powell.
In Ground Four, Petitioner complains that the state courts erred by denying his omnibus
pre-trial suppression motion. Specifically, Petitioner complains that the "the search and
subsequent arrest of defendant's person was unlawful as neither [were] supported by probable
cause nor reasonable suspicion to believe that petitioner committed any of the charged acts." ECF
No. 4 at 11. 1

1

Although Petitioner invokes the Fourteenth Amendment in support of Ground Four, we
understand Petitioner to be making a Fourth Amendment claim whose standards have been
(... footnote continued)

10

Petitioner's attempt to raise the alleged error of the trial court in denying his suppression
motion in this federal habeas court is barred by the doctrine of Stone v. Powell, 428 U.S. 465
(1976). As has been previously explained:
This is quintessentially a Fourth Amendment argument, i.e., I was illegally seized
and hence all fruits of that seizure including any statements from me must be
suppressed, which is barred by Stone v. Powell. See, e.g., Hampton v. Wyant, 296
F.3d 560, 562 (7th Cir. 2002) ( "Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49
L.Ed.2d 1067 (1976), holds that, although both state and federal courts must apply
the exclusionary rule at trial and on direct appeal, it is inappropriate to use the
exclusionary rule as the basis of collateral relief because it would not appreciably
augment the deterrence of improper police conduct."); Jones v. Johnson, 171 F.3d
270 (5th Cir. 1999) (on federal habeas review, federal court could not reexamine
petitioner's Fourth Amendment claim alleging that post-arrest statements should
have been suppressed as "poisonous fruit" of his illegal arrest, since state provided
opportunity for full and fair litigation of petitioner's Fourth Amendment claim prior
to trial and thus was barred by Stone v. Powell); Jones v. Superintendent of
Rahway State Prison, 725 F.2d 40, 42 (3d Cir. 1984) (contention that defendant's
confession and all other evidence admitted at his trial should have been suppressed
as fruit of illegal arrest was not proper subject for consideration by federal habeas
corpus court under Stone v. Powell). Hence, this issue is barred under Stone v.
Powell and cannot afford a ground ofreliefherein. Thus, even ifwe assume for the
sake of argument that the state courts "got it wrong" regarding the suppression of
the September 2, 1999 statement, such would not afford Petitioner relief because
violation of the exclusionary rule simply does not afford Petitioner a ground for
relief in federal habeas proceedings. See e.g., Guzman v. City of Chicago, 565 F.3d
393, 398 n. 1 (7th Cir. 2009) ("It is also interesting to note that the vast majority of
suppression motions based on alleged Fourth Amendment violations are heard by
state court judges, and their decisions not to grant the motions are immune from
review by lower federal courts in habeas cases.") (citing Stone v. Powell); White v.
Galaza, No. C 99-2900, 2000 WL 630861, at *3 (N.D. Cal. May 8, 2000) ("If
[petitioner] White had the opportunity to litigate his Fourth Amendment claim, it
cannot be the basis for granting his habeas petition, even if the state court's decision
on his claim was contrary to clearly established Supreme Court precedent or
incorporated into the Fourteenth Amendment's due process clause and thereby made applicable to
the States. Bailey v. U.S., 568 U.S. 186, 192 (2013) ("For purposes of applying the Fourth
Amendment to the states, the protections of the Fourth Amendment are incorporated into the Due
Process Clause of the Fourteenth Amendment of the United States Constitution. The Fourth
Amendment, applicable through the Fourteenth Amendment to the St_ates, provides: 'The right of
the people to be secure in their persons ... against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause ... particularly describing the place
to be searched, and the persons or things to be seized.' This Court has stated 'the general rule that
Fourth Amendment seizures are 'reasonable' only if based on probable cause' to believe that the
individual has committed a crime."); Mapp v. Ohio, 367 U.S. 643 (1961).
11

involved an objectively unreasonable application of such precedent.")
(citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1503, 146 L.Ed.2d 389
(2000) (wherein the Supreme Court noted it is "well settled that the fact that
constitutional error occurred in the proceedings that led to a state-court conviction
may not alone be sufficient reason" to grant a habeas petition[.]
Young v. D.A. of County of Allegheny, CIV.A 08-91, 2010 WL 411752, at *6 (W.D. Pa. Jan. 28,
2010). See also Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir. 1986) ("The Courts of Appeals ...
have consistently held that an erroneous determination of a habeas petitioner's Fourth Amendment
claim does not overcome the Stone v. Powell bar."). Accordingly, Ground Four does not provide
a ground for relief in this federal habeas proceeding.
F. Grounds Five and Six do not Provide a Basis for Relief.
In Grounds Five and Six, Petitioner complains that the PCRA trial court erred in denying
his PCRA Petition without conducting a hearing first and in adopting the "no-merit" letter of his
PCRA counsel as the opinion of the trial court. ECF No. 4 at 14. Clearly, Petitioner is
complaining of the conduct of the PCRA proceedings. Such complaints about PCRA proceedings
provide no basis for affording relief in federal habeas proceedings. Hassine v. Zimmerman, 160
F.3d 941, 954 (3d Cir. 1998) ("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.... Federal habeas power is 'limited ... to a determination of whether there
has been an improper detention by virtue of the state court judgment.'"); Lambert v. Blackwell,
387 F.3d 210,247 (3d~Cir. 2004) ("alleged errors in collateral proceedings ... are not a proper
basis for habeas relief from the original conviction."). Accordingly, Grounds Five and Six do not
afford a basis for the granting of a writ of habeas corpus in these federal proceedings.
G. Ground Seven is Procedurally Defaulted and Meritless.

12

"

In Ground Seven, Petitioner complains that his trial counsel was ineffective for failing to
advise Petitioner that he was possibly facing a maximum sentence of fifteen years, which
allegedly prevented Petitioner from accepting an alleged five year maximum plea deal allegedly
offered to him by the prosecution before the trial. ECF No. 4 at 14.
This issue was raised before the Superior Court on appeal in the PCRA proceedings. The
Superior Court addressed this issue as follows:
First, Appellant claims that if he had known the maximum sentence for his
crimes, he would have entered into a plea deal with the Commonwealth. He
contends the Commonwealth offered him a two and one half (2 ½) to five (5) year
sentence in exchange for a guilty plea that he would have taken if he had known
that he could have received a fifteen (15) year sentence. He argues his trial counsel
was ineffective for failing to advise him of the length of the maximum sentence
allowed for his crimes.
Appellant has waived this issue because he failed to include it in his PCRA
petition or his Pa.R.A.P.1925(b) statement. See Commonwealth v. Jones, 912 A.2d
268, 278 (Pa. 2006) ("[A]n issue is waived where it was not presented in the
original or amended PCRA petition below."). Moreover, our independent review of
the record did not reveal evidence of a possible plea bargain with the
Commonwealth. Thus, Appellant's issue merits no relief.
Com. v. Young. 2015 WL 7187672, at *5.
In light of the foregoing, we find Ground Seven to be procedurally defaulted because
Petitioner failed to raise it in his pro-se PCRA petition or in his pro-se 1925(b) Statement. We
find the state law rules of waiver for failure to raise the issue in the PCRA petition and/or for
failure to raise the issue in the 1925(b) statement to be independent and adequate, thus rendering
the state law waiver, a procedural default for federal habeas purposes. Edwards v. Wenerowicz,
Civ.A. No. 11-3227, 2012 WL 568849, at *4 (E.D. Pa. Jan. 31, 2012) ("The Third Circuit has
specifically recognized that a failure to comply with Rule 1925(b) and identify all issues to be
reviewed on appeal resulting in waiver at the state court level constitutes procedural default on
independent and adequate state grounds. Buck v. Colleran, 115 F. App'x 526, 528 (3d Cir.
2004)."), report adopted by, 2012 WL 569015 (E.D. Pa. Feb. 22, 2012); Hall v. Beard, 55 F. Supp.
13

.

"'

3d 618, 641 (E.D. Pa. 2014) ("any of petitioner's claims not raised on PCRA review, but raised for
the first time to the Supreme Court of Pennsylvania on PCRA appeal, which were held to be
'

waived, are procedurally defaulted and are not subject to federal habeas review.").
Nor does Petitioner have cause to excuse his procedural default as the responsibility for
failing to raise the claim in his pro-se PCRA petition or in his pro-se 1925(b) Statement lies solely
with Petitioner himself. Gonzalez v. Superintendent Graterford SCI, 655 F. App'x. 96, 100 (3d
Cir. 2016) ("The Supreme Court later clarified in Coleman v. Thompson 'that 'cause' under the
cause and prejudice test must be something external to the petitioner, something that cannot fairly
be attributed to him .... "'). Nor can Petitioner show any miscarriage of justice to excuse this
procedural default. Accordingly, Ground Seven is procedurally defaulted.
In the alternative, Ground Seven is meritless given that the Superior Court found that there
was simply no evidence of any plea deal, and, therefore, under the facts of this case, Petitioner
could not have been prejudiced by the fact that counsel allegedly failed to tell Petitioner that he
could face a maximum sentence of fifteen years given that there was no plea deal for five years
which Petitioner "erroneously" rejected. Therefore, Ground Seven provides no basis for federal
habeas relief.

14

......

, ··"

III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Petition is DENIED. A
Certificate of Appealability is likewise DENIED given that jurists of reason would not find the
foregoing debatable.

MAUREENP.
LY
CHIEF UNITED STATES MAG
Date: Octoberf-§.2018
ANDRE D. YOUNG
KU-7339
SCI Forest
Post Office Box 45
Marienville, PA 16239
All Counsel of record via CM-ECF

15

III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Petition is DENIED. A
Certificate of Appealability is likewise DENIED given that jurists of reason would not find the
foregoing debatable.
BY THE COURT:

MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
Date: October /$2018
ANDRE D. YOUNG
KU-7339
SCI Forest
Post Office Box 45
Marienville, PA 16239
All Counsel of record via CM-ECF

15