BLACK v. UNITED STATES OF AMERICA et al

Filing 19

MEMORANDUM OPINION & ORDER re 1 Petition for Writ of Habeas Corpus, filed by WILLIAM BLACK dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 08/24/2017. (Mitchell, Robert)

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

WILLIAM BLACK, JX-3616,
Petitioner,
v.
DEPARTMENT OF CORRECTIONS,
Et al.,
Respondents.

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MEMORANDUM OPINION and ORDER
William Black, an inmate at the State Correctional Institution-Mahanoy has presented a
petition for a writ of habeas corpus. 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.
Black is presently serving a life sentence imposed following his conviction by a jury of
second degree murder at No. CP-26-CR-943-2009 in the Court of Common Pleas of Fayette
County, Pennsylvania. This sentence was imposed on February 11, 2011.1
An appeal was taken to the Superior Court in which the issues presented were:
1. No scientific link to prove defendant guilty of killing victim.
2. Manifestly against weight and sufficiency of evidence because no
eye witness testimony to place defendant at scene of Pierce's death
or to prove him guilty of killing victim.
3. Attorney for Commonwealth mentioned in closing argument no
proof provided of anyone else who killed victim.2
On June 1, 2012, the judgment of sentence was affirmed3 and allowance of appeal was denied by
the Pennsylvania Supreme Court on March 1, 2013.4

1
2
3
4

See: Petition at ¶¶1-6.
See: Exhibit 10a to the answer at p.7.
See: Exhibit 10 to the answer.
See: Exhibit 11 to the answer.

On November 4, 2013, Black filed a post-conviction petition.5 Relief was denied on
August 28, 20146 and an appeal to the Superior Court was filed in which the issues presented
were:
1. Trial counsel was ineffective for failing to cross examine the forensic gunshot
expert.
2. Trial counsel was ineffective for failing to object to the introduction of the
evidence of the sweatshirt which was the victim's and not the appellant's.
3. Trial counsel was ineffective for failing to request the identification of the
confidential informant whose tip led to the search of the trash.
4. Trial counsel was ineffective for failing to interview or call to testify the alibi
witness who would have testified that the appellant was with him during the
period that the shooting occurred.
5. Prosecutorial misconduct occurred when the Commonwealth introduced the
sweatshirt of the victim as evidence causing the jury to confuse the item with
one taken from the residence of the appellant.7
On May 19, 2016 the denial of post-conviction relief was affirmed.8 Relief was not sought from
the Pennsylvania Supreme Court.9
In the instant petition executed on October 31, 2016 and received in this Court on
November 15, 2016, petitioner contends he is entitled to relief on the following grounds:
1. Ineffective assistance of counsel for failing to request specific notice of the
charges in the indictment relating to 18 Pa.C.S.§2501 criminal homicide. Also
procedural due process was violated when Commonwealth failed to provide
specific notice of the charges in the indictment at arraignment.
2. Attorneys did not adequately prepare for the introduction of gunshot residue
and DNA evidence presented at trial by failing to request of trial judge
funding to hire, obtain, consult expert witnesses or to perform independent
investigation to challenge Commonwealth evidence.
3. Petitioner was denied constitutionally effective counsel when trial and postconviction counsel failed to conduct any pre-trial investigation, hire an
investigator to conduct such an investigation or contact five (5) witnesses
whose testimony would have helped exonerate petitioner of charges and
effectively denied compulsory process and meaningful effective cross
examination in each regard.
4. Suppression court erred in finding sufficient probable cause for admission of
evidence at trial and trial counsel failed to show evidence on affidavit lacked
probable cause to support a search.

5
6
7
8
9

See: Exhibit 12 to the answer.
See: Exhibit 14 to the answer at p.29.
See: Exhibit16 at pp. 5-6.
See: Exhibit 16 to the answer.
See: Exhibit 14 to the answer.

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5. Attorney failed to impeach Tpr. Leiberum concerning his perjury statements
he gave between preliminary hearing and suppression hearing.
6. Petitioner's Fourth, Fifth and Sixth Amendment to the U.S. Constitution and
Article I, §§ 8 & 9 of the Pennsylvania Constitution were violated when
misleading facts were allowed into trial.
7. Petitioner's rights to procedural due process and substantive due process were
violated when typographical error occurred in the Court of Common Pleas
opinion.
8. Ineffective assistance of counsel for failing to have witnesses' drug tested
before testimonial appearance at trial.
9. Violations regarding the conflicting and misapplication of the state concerning
sentence. No statutory authorization for sentence imposed violates due process
of law pursuant to U.S. Constitution Amendments 5 & 14 as well as
Pennsylvania Constitution Article I, Section 9. Also petitioner cannot lawfully
be committed and/or serve sentence on D.O.C. property or under the custody
of the Pennsylvania Department of Corrections.
The background to this prosecution is set forth in the June 1, 2012 Memorandum of the
Superior Court setting forth the opinion of the trial court:
Evidence presented at trial held February 7 through February 11,
2011, included the testimony of Jamie Douglas of Denbo, Fayette
County, who stated that she knew both the victim and [Appellant].
Ms. Douglas testified that earlier in April 2009, [Appellant] asked her
to use her cell phone to call the victim to see about his money. She
knew [Appellant] actually called the victim because his name came
up in her contact list on the phone, [Appellant] appeared to Ms.
Douglas as "pissed", and she overheard him tell the victim that he
wanted his money.
Another witness, Tina Pitcock, testified that she knows [Appellant] as
"Teeni" and thought he was one of her best friends. She told the jury
that she also knew the victim,… and had been with [him] at
[Appellant's] house. On the day of the crime, April 20, 2009,
[Appellant] borrowed her car, a Mustang, from about 7:00 P.M. until
he returned it at about 8:17 P.M., when she then gave him a ride to the
home of his cousin, Brandi. When she allowed [Appellant] to use her
vehicle, Ms. Pitcock knew he was trying to collect money from the
victim. An hour or two after dropping [Appellant] off at Brandi's
residence, Ms. Pitcock went back to Brandi's house to borrow either
cigarettes or money to buy some. While there, she saw [Appellant] for
the last time.
Commonwealth witness April Krushak told the jury that she knows
[Appellant] and was talking to him at approximately 7:30 P.M. on
April 20, 2009, on her front porch when they saw the victim drive by.
3

[Appellant] got into his own silver-colored Mustang and drove off in
the same direction that the victim had been going. Ms. Krushak also
testified that a few weeks before the day of the murder, she had been
involved in a telephone call with [Appellant], during which [he] said
he wanted to get in touch with the victim to "fuck him up" because the
victim allegedly owed him money. When Ms. Krushak saw
[Appellant] on the day of the crime, [Appellant] was wearing a black
hooded sweatshirt and jeans. When she last saw the victim driving
away in his green car and [Appellant] driving after him in the silver
Mustang, both men were headed toward Brownsville, Fayette County.
She heard the next day that somebody had been shot in Brownsville.
At some point later in the evening of April 20th, [Appellant] arrived
alone at the residence of Brandi Brooks, his cousin, on Water Street in
Brownsville. He stayed there for a couple of hours and left [at] about
2:00 A.M. the following morning (April 21st). A couple of days later
[Appellant] called Ms. Brooks to tell her to make sure everything was
cleaned up in her house. He also told her to throw her three garbage
bags in a dumpster located in one of the housing projects some
distance away.[Appellant] told his cousin that she needed to get rid of
her garbage because of the drug paraphernalia in it, and offered to
babysit her children so she could drive the garbage bags to the project
dumpster. Ms. Brooks removed the garbage contained in the three
black plastic bags from her residence, but put it into the trash can
right outside instead of removing it to a dumpster as [Appellant] had
instructed. On April 24, 2009, Trooper Beverly Ashton went to
Brandi Brooks' residence and obtained her consent to take the three
garbage bags from her trash can. Trooper Ashton then drove the bags
to the state police barracks and searched them, eventually finding
therein the victim's cell phone and his wallet which had within it his
driver's license.
Pennsylvania State Police Trooper Cristian Lieberum, the lead
investigator in this case, questioned [Appellant] as to his whereabouts
on April 20, 2009, and the answers [Appellant] provided differed in
germane and relevant details from the statements given by other
witnesses. Trooper Lieberum then obtained a search warrant for
[Appellant's] Brownsville residence, pursuant to which he found a
dark grey hooded sweatshirt, which he confiscated. Said sweatshirt
was later determined to belong to the victim. On April 28, 2009, the
trooper served a search warrant on [Appellant] so as to take his palm
prints and a [buccal] swab. Trooper Lieberum asked no questions
during the execution of the search warrant, but when [Appellant]
asked him how the investigation was going, the officer told him he
was in custody for the crime and he was getting the credit for it.

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[Appellant] then replied that you don’t get any credit for wasting a
basehead.
Alfred J. Schwoeble, a forensic technical advisor [with] the R.J.Lee
Group, an analytical laboratory, testifying as an expert in gunshot
residue analysis, told the jurors that one particle consistent with
gunshot residue was found on the steering wheel of the silver
Mustang. More particles consistent with gunshot residue were found
on the grey sweat shirt belonging to the victim as well as on his wallet
(record references omitted).10
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

10

See: Exhibit 10 to the answer at pp.3-4. We also observe that in its August 27, 2014 opinion, the post-conviction
court wrote (Answer Exhibit 15 at pp.7-8):

[Petitioner] now cites this Court's misstatement/typographical error, which appear
on page 4 of its appeal opinion filed on April 21, 2011, as evidence that the trial
testimony about two different sweatshirts confused the jury. The inaccurate
sentence in the Opinion says that the sweatshirt retrieved by the police belonged
to the victim, when in fact it belonged to Petitioner. Petitioner now asserts that the
Commonwealth's questioning of the police witnesses concerning two sweatshirts,
both of which were grey, caused the jurors to incorrectly believe that the victim's
sweatshirt was found during the search of Petitioner's mother's residence and/or
the Petitioner's sweatshirt was the one tested and found to contain gunpowder
residue. An objective reading of the trial transcript … reveals that one grey
hooded sweatshirt was removed from Petitioner's mother's home, but … it was not
the sweatshirt sent to the laboratory for testing. The sweatshirt tested at the lab
…belonged to the victim. Any confusion on this Court's part, apparent or inferred
from the aforesaid Opinion, as to the ownership of the sweatshirt removed from
Petitioner's mother's residence, is not, in and of itself probative in any way of
confusion on the part of the jury… Petitioner failed to meet his burden to
establish trial counsel's ineffectiveness due to failure to object to the introduction
of the victim's sweatshirt and the related test results as evidence…
5

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).
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 is 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).
There is no showing that petitioner's 1st, 2nd, 3rd, 4th, 7th, 8th and 9th issues where ever
raised or exhausted in the courts of the Commonwealth, and at this juncture those issues can no
longer be raised in those courts. In Coleman v. Thompson, 501 U.S. 722,750 (1991), the Court
held:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claim will result in a fundamental
miscarriage of justice.
6

Because no such showing is made here, the petitioner has failed to exhaust the available state
court remedies on these issues and no further consideration of these issues is warranted here.
In his fifth argument petitioner contends that counsel was ineffective in failing to
challenge the testimony of Trooper Leiberum at the preliminary hearing which allegedly
conflicted with his suppression hearing testimony regarding how he learned of the conversations
between the petitioner and Ms. Brooks regarding her trash.11 In his Sixth claim petitioner appears
to allege that counsel was ineffective in failing to distinguish between victim's sweat shirt
recovered from the victim and the petitioner's sweat shirt which was confiscated from his home.
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
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 his petition, Black contends that
At the preliminary hearing on 6/15/09, Tpr. Leiberum testified that
police received information about a phone call between petitioner and
Brandi Brooks concerning her trash… On 4/24/09 police executed a
search of Ms. Brooks residence and obtained three (3) garbage bags
11

In his affidavit in support of the criminal complaint, Trooper Lieberum set forth "investigation has determined
that [petitioner] contacted Brandi Brooks on 04/24/09. Brooks related that [petitioner] instructed her to get rid of her
garbage. [Petitioner] instructed Brandi Brooks that she should take the garbage to Snowden Terrance and throw [it]
in [the] dumpster up there." (Exhibit L(2) to answer).

7

from her trash … eventually finding therein the victim's cell phone
and wallet …
At suppression hearing which was denied 7/28/10, Tpr. Leiberum
testified that police did not receive any information in investigation
concerning a phone call between petitioner and Ms. Brooks
concerning her trash, which contradicted his testimony at preliminary
hearing…(Petitioner's brief at p.9).
Whether or not there was an inconsistency in the Trooper's testimony at those two
preliminary proceedings, at trial he testified that petitioner admitted to him that he had called Ms.
Brooks and advised her to remove her garbage because he was aware that the garbage contained
marijuana (TT. 458). Petitioner corroborated this testimony (TT. 519-20, 535, 548). Thus, the
fact of the existence or non-existence of inconsistent testimony becomes a non-issue, and does
not provide any basis for relief. In the same manner, the allegation that counsel was ineffective in
failing to determine who alerted the police about the phone call is likewise immaterial since
Black had no standing to challenge the seizure. . United States v. Cortez-Dutrieville, 743 F.3d
288 (3d Cir.), cert. denied 134 S.Ct. 2156 (2014).
In his sixth issue, petitioner contends that counsel was ineffective for permitting
confusion to exist about the sweatshirt seized from his home and the victim's sweatshirt.
Specifically, he focuses on the testimony of the Trooper Lieberum who in response to a question
about seizing a sweatshirt from petitioner's residence testified that it was a grey sweatshirt and it
was not the shirt submitted to the forensic lab for testing (TT. 467-468). An awkward attempt to
clarify confusion between this sweatshirt and the sweatshirt transported to the forensic lab
followed: "so that sweatshirt that you took … was not tested by them for any gunshot residue;
correct? … No, ma'am… The grey sweatshirt that they thought – that Mr. Schwoeble testified to
is the victim's sweatshirt; correct? … Correct)." (TT.468).
At trial the forensic expert Mr.Schwoeble testified that the sweatshirt delivered to his
forensic lab did contain gunshot residue (TT. 171-172) and as Trooper Lieberum testified that
shirt belonged to the victim. While petitioner contends there was some confusion between the
two sweatshirts, the testimony is clear that the tested sweatshirt belonged to the victim and not
the petitioner. Counsel cannot be deemed to have been ineffective for failing to pursue a
meritless issue. Real v. Shannon, 600 F.3d 302, 310 (3d Cir. 2010).
Thus, petitioner's allegations of ineffective assistance of counsel are without merit.
8

Because it appears that the petitioner's conviction was not secured in any manner contrary
to federal law as determined by the Supreme Court nor involved an unreasonable application of
that law, he is not entitled to relief here. 28 U.S.C. § 2254(d)(1). Accordingly, the petition of
William Black for a writ of habeas corpus will be denied 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: August 24, 2017

s/ Robert C. Mitchell
United States Magistrate Judge

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ORDER
AND NOW, this 24th day of August 2017 for the reasons set forth in the foregoing
Memorandum, the petition of William Black for a writ of habeas corpus (ECT No. 1) 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., any party seeking to appeal this order must do so
within thirty (30) days by mailed a notice of appeal to the Clerk, Joseph F. Weis, Jr. United
States Courthouse, 700 Grant Street, Pittsburgh, PA 15219.
s/ Robert C. Mitchell
United States Magistrate Judge

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