PRITCHETT v. MOONEY et al
Filing
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MEMORANDUM OPINION, for the reasons set forth, the 18 Petition for Writ of Habeas Corpus filed by DREW PRITCHETT will be denied and a certificate of appealability will be denied. Signed by Chief Magistrate Judge Cynthia Reed Eddy on 4/2/2020. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DREW PRITCHETT,
Petitioner,
v.
SUPERINTENDENT, SCI Laurel
Highlands; DISTRICT ATTORNEY OF
ALLEGHENY COUNTY; and THE
ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA,
Respondents.
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Civil Action No. 2: 16-cv-1751
Chief United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM OPINION 1
Before the Court is the counseled Amended Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (“Petition”) filed on behalf of Petitioner, Drew Pritchett (“Petitioner” or
“Pritchett”) (ECF No. 18). Respondents have filed an Answer (ECF No. 27), to which Petitioner
has filed a Reply. (ECF No. 34). For the reasons that follow, the Amended Petition will be
denied and a certificate of appealability also will be denied.
Relevant and Procedural Background
This case arises from two shooting incidents which occurred on the evening of September
13, 2007: (1) the fatal shooting of Terrence Monroe and (2) the non-fatal shooting of Maurice
Johnson. At CC200716115, Pritchett was charged with criminal homicide, criminal conspiracy,
and possession of a prohibited offense weapon, as to the fatal shooting of Terrence Monroe. At
CC20081813, Pritchett was charged with criminal attempt to commit criminal homicide,
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to jurisdiction by a United States Magistrate Judge, including entry of a final
judgment. (ECF Nos. 22 and 36).
1
1
criminal conspiracy, aggravated assault, and recklessly endangering another person (“REAP”),
as to the non-fatal shooting of Maurice Johnson.
Pritchett and his co-defendant, Dorian
Peterson, were jointly tried before a jury in front of Judge David R. Cashman, in the Court of
Common Pleas of Allegheny County. Pritchett was convicted of first-degree murder, criminal
conspiracy, and possession of prohibited offensive weapon at CC No. 200716115. He was
convicted of criminal conspiracy, aggravated assault and REAP at CC No. 200801813.
On March 1, 2010, Pritchett was sentenced to life imprisonment on the first-degree
murder count at CC No. 200716115 and received a consecutive sentence of 10 to 20 years on the
count of criminal conspiracy at CC No. 200801813. On direct appeal, the Superior Court
affirmed in part and reversed in part, vacating the conviction for first-degree murder and
remanding for resentencing at the other counts at CC No. 200716115.
On July 19, 2012, Pritchett was resentenced to a term of imprisonment of 20 to 40 years
on the criminal conspiracy count, with a consecutive sentence of 2-1/2 to 5 years of confinement
on the prohibited offensive weapon count, resulting in an aggregate sentence of 32-1/2 to 65
years. No direct appeal was filed from the judgment of sentence imposed on July 19, 2012.
Pritchett filed a counseled PCRA petition on November 7, 2012, and a counseled
amended petition on November 19, 2012. Evidentiary hearings were held before Judge Cashman
on June 24, 2013 and July 13, 2013. On March 11, 2014, the court denied the petition. On
November 17, 2015, the Superior Court of Pennsylvania affirmed the order denying the PCRA
Petition, ECF No. 7-1 at 48-64, and on January 27, 2016, the appellate court denied
reconsideration. On June 8, 2016, the Pennsylvania Supreme Court denied the petition for
allowance of appeal. (ECF No. 7-1 at 65).
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Having been denied relief in state court, Pritchett filed in this Court a counseled habeas
corpus petition pursuant to 28 U.S.C. § 2254 on November 22, 2016. (ECF No. 1). Respondents
filed a motion to dismiss on February 21, 2017. (ECF No. 7). In light of the issues raised in the
motion, the Court ordered Pritchett to file an amended petition and memorandum of law. (ECF
No. 8). On June 19, 2017, an Amended Petition and Brief in Support of Amended Habeas
Corpus Petition were filed. (ECF Nos. 18 and 19). The Amended Petition remains Pritchett’s
operative pleading. Respondents filed an Answer to the Petition (ECF No. 27), to which Pritchett
filed a Reply. (ECF No. 34). The matter is fully briefed and ripe for disposition.
Factual Background
The Superior Court in affirming the Order denying the PCRA petition summarized the
facts underlying Pritchett’s convictions as follows:
On September 13, 2007, Carl Richardson and his cousin, Jamal Younger,
took a jitney to Mandy’s Pizza and Restaurant in the Northside Section of the City
of Pittsburgh. After they finished their meal, they attempted to get another jitney
to go home, but were unsuccessful. Richardson then called Pritchett, who he
knew had a vehicle, and asked for a ride.
[Appellant] arrived a short while later with another individual, Dorian
Peterson, who was riding in the passenger seat. Richardson and Younger got into
the back seat. However, rather then take Richardson and Younger home,
[Appellant] decided to drive to the Northside Section of Pittsburgh, which was
controlled by a rival gang, the Crips.1 [Appellant] stated that he wanted to do
some “G-Shit,” which Younger understood to mean shooting.
1
[Appellant] and Peterson were both members of the Manchester
OGs (Original Gangsters).
While driving down North Charles Street, Peterson spotted the first victim,
Maurice Johnson, standing on the side of the road. Peterson pointed a sawed-off
.22 caliber rifle out of the front passenger window and fired two shots, striking
Johnson once in the chest. Johnson was able to leave the scene and get to a
hospital, which successfully treated his gunshot wound. [Appellant] then turned
onto Morrison Street where Peterson spotted the second victim, Terrence Monroe.
Again, Peterson took aim with the sawed-off rifle and shot Monroe twice, killing
3
him. [Appellant] headed back into the Manchester Section of Pittsburgh and
turned onto Columbus Street.
Shortly after the two shootings, a police radio report was broadcast to
nearby officers informing them of the incident and providing a description of the
vehicle involved. Pittsburgh Police Officer Holly Murphy, who was patrolling
along Columbus Street, received the report and noticed that [Appellant’s] vehicle
fit the description. Officer Murphy initiated a traffic stop of [Appellant’s] vehicle
and ordered the occupants to the ground. [Appellant], Richardson and Young
complied; however, Peterson fled on foot to a nearby home. Police took
[Appellant], Younger and Richardson into custody to interview.
After
interviewing Richardson and Younger, police determined that [Appellant] was the
driver and that Peterson was the shooter. Police subsequently arrested Peterson.
Superior Court Memorandum, 11/17/2015 (quoting Commonwealth v. Pritchett, No. 396 WDA
2020, unpublished memorandum at 1-3 (citations to the record omitted). (ECF No. 7-1 at 48-49).
The Standard for Habeas Relief under 28 U.S.C. § 2254
The parties agree this case is governed by the federal habeas statute applicable to state
prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
1996, Pub.L.No. 104-132, 110 Stat. 1214, enacted on April 24, 1996 (“AEDPA”), “which
imposes significant procedural and substantive limitations on the scope” of the Court’s review. 2
Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017), cert. denied, No. 177437, -- U.S.---, 138 S.Ct. 1170 (Feb. 26, 2018). As such, this Court may not grant a writ of
habeas corpus with respect to a claim that was adjudicated on the merits in state court
proceedings unless the state courts' adjudication “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable
The first consideration in reviewing a federal habeas petition is whether the petition was
timely filed under AEDPA’s one-year limitations period. 28 U.S.C. § 2244(d). Respondents do
not dispute that Pritchett’s petition was timely filed.
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determination of the facts in light of the evidence presented in the State court proceedings.” 28
U.S.C. § 2254(d)(1) and (2). Also, under the AEDPA standard, the “[s]tate court[s'] relevant
factual determinations are presumed to be correct unless the petitioner rebuts [that] presumption
by clear and convincing evidence.” Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012)
(citing 28 U.S.C. § 2254(e)(1)). AEDPA imposes a “highly deferential” standard for evaluating
state-court rulings and demands that state-court decisions be given the benefit of the doubt.
Blystone v. Horn, 664 F.3d 397, 417 (3d Cir. 2011).
1. Exhaustion of State Remedies
Among AEDPA’s procedural prerequisites is a requirement that the petitioner “has
exhausted the remedies available in the courts of the State” before seeking relief in federal court.
28 U.S.C. § 2254(b); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. §
2254(b)(1)(A)). “The exhaustion requirement is satisfied only if the petitioner can show that he
fairly presented the federal claim at each level of the established state-court system for review.”
Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). In instances where a state prisoner has
failed to exhaust the legal remedies available to him in the state courts, federal courts typically
will refuse to entertain a petition for habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir.
2002).
Although mandatory, the exhaustion requirement “turns on an inquiry into what
procedures are ‘available’ under state law.” O’Sullivan, 526 U.S. at 847. Under Pennsylvania
law, a federal claim becomes exhausted once it is presented to the Pennsylvania Superior Court,
either as a direct appeal from a state criminal conviction or as an appeal from a PCRA Court’s
denial of post conviction relief. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004)
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finding that review from the Pennsylvania Supreme Court is unavailable, and therefore not
required, for purposes of exhausting state court remedies). 3
2. Procedural Default and the Martinez Exception to the Procedural Default Doctrine
The doctrine of procedural default serves as a corollary to the exhaustion requirement and
provides a basis for a federal court to refuse to review a habeas claim. “When a claim is not
exhausted because it has not been ‘fairly presented’ to the state courts, but state procedural rules
bar the applicant from seeking further relief in state courts, the exhaustion requirement is
satisfied because there is ‘an absence of available State corrective process.’ ” McCandless v.
Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (quoting 28 U.S.C. § 2254(b)(1)(B)(i)). “However,
claims deemed exhausted because of a state procedural bar are procedurally defaulted. . . .”
Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). Thus, claims are procedurally defaulted
where “a state prisoner has defaulted his federal claims in state court pursuant to an independent
and adequate state procedural rule. . . .” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Federal courts may not consider the merits of a procedurally defaulted claim unless the
petitioner can demonstrate “cause” to excuse the default and “actual prejudice resulting from the
3
Traditionally, under Pennsylvania law, exhaustion meant that a claim must be presented
to the trial court, the Pennsylvania Superior Court, and the Pennsylvania Supreme Court. See
Evans v. Court of Common Pleas, Delaware County, PA, 959 F.2d 1227, 1230 (3d Cir. 1992).
However on May 9, 2000, the Pennsylvania Supreme Court issued Judicial Administration Order
218, which provides, in relevant part, that “in all appeals from criminal convictions or postconviction relief matters, a litigant shall not be required to petition for rehearing or allowance of
appeal following an adverse decision by the Superior Court in order to be deemed to have
exhausted all available state remedies respecting a claim of error. When a claim has been
presented to the Superior Court, or to the Supreme Court of Pennsylvania, and relief has been
denied in a final order, the litigant shall be deemed to have exhausted all available state remedies
for purposes of federal habeas corpus relief. . . . ” In re: Exhaustion of State Remedies in
Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa.
May 9, 2000) (per curiam).
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alleged constitutional violation.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375
(3d Cir. 2018) (quoting Davila v. Davis, -- U.S. ---, 137 S.Ct. 2058, 2065 (2017) (quoting
Wainwright v. Skyes, 433 U.S. 72 (1977)). 4 To demonstrate “cause,” a petitioner must “show
that some objective factor external to the defense impeded counsel’s efforts to comply with the
State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner satisfies the
“prejudice” requirement by establishing that the trial was “unreliable or . . . fundamentally
unfair” because of a violation of federal law. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
The burden lies with a petitioner to demonstrate circumstances that would serve to excuse a
procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also Coleman,
501 U.S. at 750.
In Martinez v. Ryan, 506 U.S. 1 (2012), the Supreme Court held that, under some
circumstances, ineffective assistance of counsel can provide cause to excuse procedural default:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.
Martinez, 566 U.S. at 18; see also Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014). To emphasize
the limited application of the Martinez exception, the Supreme Court has specifically directed
that this exception does not apply to claims of ineffective assistance of appellate counsel.
4
A petitioner, alternatively, can overcome a procedural default by demonstrating that the
court’s failure to review the defaulted claim will result in a “miscarriage of justice.” See
Coleman v. Thompson, 501 U.S. 722, 748 (1991); McCandless v. Vaughn, 172 F.3d 225, 260
(3d Cir. 1999). “However, this exception is limited to a ‘severely confined category [] [of] cases
in which new evidence shows ‘it is more likely than not that no reasonable juror would have
convicted [the petitioner]’.” Preston, 2018 WL 4212055, at *7 (quoting McQuiggin v. Perkins,
569 U.S. 383, 395 (2013) (internal alteration in original) (quoting Schlup v. Delo, 514 U.S. 298,
329 (1995)).
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Davilla v. Davis, -- U.S. ---, 137 S.Ct. 2058, 2066 (2017); see also Richardson v. Superintendent
Coal Twp. SCI, 905 F.3d 750, 761 (3d Cir. 2018) (“[P]risoners who want to challenge the
ineffectiveness of their appellant counsel on federal habeas cannot turn to Martinez.”).
Accordingly, where state law requires a prisoner to raise ineffective assistance of counsel
claims in a collateral proceeding, procedural default will be excused under the Martinez
exception only when the following conditions are met:
(1) “the default was caused by
ineffective assistance of counsel or the absence of counsel”; 5 (2) the default occurred “in the
initial-review collateral proceeding (i.e., the first collateral proceeding in which the claim could
be heard)”; and (3) “the underlying claim of trial counsel ineffectiveness is ‘substantial,’
meaning ‘the claim has some merit,’ analogous to the substantiality requirement for a certificate
of appealability.” 6 Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014) (quoting Martinez, 566 U.S. at
13-1); accord Richardson v. Superintendent Coal Twp. SCI, 905 F.3d 750, 760 (3d Cir. 2018).
Discussion
The constitutional claims at the heart of Pritchett’s habeas petition are that his trial
counsel provided ineffective assistance of counsel during the pretrial and trial phases of his
criminal proceedings. Pritchett must show that his counsel was ineffective under the standards
of Strickland v. Washington, 466 U.S. 668 (1984). Strickland has two components. Under the
first prong, often referred to as the “performance” prong, a petitioner must show that counsel’s
performance fell below an below an objective standard of reasonableness.” Id. at 688. Under
This condition goes to the “cause” inquiry for excusing procedural default. To show
cause under the Martinez exception, the petitioner must demonstrate that collateral review
counsel was not appointed or was ineffective under the standard set forth in Strickland, 466 U.S.
at 695.
5
6
This condition goes to the “actual prejudice” inquiry for excusing procedural default.
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the second prong, often referred to as the “prejudice” prong, a petitioner must demonstrate
prejudice as a result of counsel’s deficient performance. Id. at 692. Although a petitioner must
satisfy both prongs to succeed on his ineffectiveness claim, the Supreme Court noted that “[i]f it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Id. at 697. See also Mathias
v. Superintendent Frackville SCI, 876 F.2d 462, 477 (3d Cir. 2017).
Each of the claims raised in the Pritchett’s habeas petition were denied on the merits by
the Superior Court on PCRA review. As such, as explained supra, the Court will not be
reviewing the claims de novo and Pritchett must demonstrate more than a violation of his Sixth
Amendment rights. He also must overcome the AEDPA deferential standard, as well as the
presumption of correctness this Court must afford the state court findings under § 2254(e).
Before addressing any of the claims before it, the Superior Court set out the standard for
reviewing claims of ineffectiveness of counsel:
[Appellant] will be granted relief only when he proves, by a preponderance of the
evidence, that his conviction or sentence resulted from the ineffective assistance
of counsel which, in the circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of guilt or innocence could
have taken place. Counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel’s performance was deficient
and that such deficiency prejudiced him. In Pennsylvania, we have refined the
Strickland [v. Washington, 104 S.Ct. 2052 (1984)] performance and prejudice test
into a three-part inquiry. See [Commonwealth v.] Pierce, [527 A.2d 973 Pa.
1987)]. Thus, to prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no reasonable basis for his
action or inaction; and 3) the petitioner suffered actual prejudice as a result. If a
petitioner fails to prove any of these prongs, his claim fails. Generally, counsel’s
assistance is deemed constitutionally effective if he chose a particular course that
had some reasonable basis designed to effectuate his client’s interests. Where
matters of strategy and tactics are concerned, a finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be concluded that an
alternative not chosen offered a potential for success substantially greater than the
course actually pursued. To demonstrate prejudice, the petitioner must show that
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there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different. A reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.
Superior Court Opinion, 11/15/2015 (quoting Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa.
2012)).
Claim One - IATC – Right to Public Trial
In his first claim, Pritchett argues that he was denied his Sixth Amendment right to a
public trial when trial counsel advised his family that they were not permitted in the courtroom
during voir dire and when trial counsel did not object to the public being excluded from jury
selection. Pritchett raised this same claim to the state court in his collateral proceedings. The
PCRA court denied Pritchett’s claim on the merits and the Superior Court of Pennsylvania
affirmed finding that the claim lacked arguable merit. Commonwealth v. Pritchett, No. 436
WDA 2014, slip op. (Pa. Super. Ct. Nov. 27, 2015), pet. for allowance of appeal denied, No. 76
WAL 2016, slip op. (Pa. Sup. Ct. June 8, 2016). 7
After an evidentiary hearing at which both Pritchett and trial counsel testified, the PCRA
court found that Pritchett’s claim was without merit stating that,
While trial counsel may have given Pritchett’s family bad advice, it is clear that
the Trial Court did not exclude the public from the Courtroom during jury
selection in this matter. Pritchett cannot show prejudice from the fact that his
counsel may have misled his family regarding their ability to be present during
jury selection. See, Commonwealth v. Rega, 70 A.3d 77, 786-787 (Pa. Super.
2013).
PCRA 1925(a) Opinion at 7-8, 3/23/15 (ECF No. 7-1 at 41-42). The Pennsylvania Superior
Court affirmed, embracing the PCRA trial court’s reasoning, as follows:
The PCRA court’s Rule 1925(a) opinion is filed at ECF No. 7-1 at 35-47; the Superior
Court’s memorandum is filed at ECF No. 7-1 at 48-64, and the Pennsylvania Supreme Court’s
order denying the Petition for Allowance of Appeal is filed at ECF No. 7-1 at 65.
7
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[I]t is apparent from the record that the trial court did not exclude the public from
the jury voir dire proceeding. Moreover, Attorney McCune did not have the
authority, nor did he attempt, to exclude the public . . . While Attorney McCune
conceded at the PCRA hearing that he informed Appellant’s parents that they
could not be in the courtroom during the jury selection proceeding, that incorrect
information did not constitute the exclusion of the public from Appellant’s trial.
Therefore, Appellant’s contention that his right to a public trial was violated due
to Attorney McCune’s conduct lacks arguable merit.
Superior Court Memorandum at 12, 11/17/2015 (emphasis in original) (ECF No. 7-1 at 59). The
Superior Court also concluded that Pritchett had failed to demonstrate prejudice:
In any event, we note that even if Appellant’s underlying claim had
arguable merit, we would conclude that he has not demonstrated that he was
prejudiced by Attorney McCune’s conduct. Appellant argues in his brief to this
Court that “no showing of prejudice is required where a violation of an accused’s
right to a public trial is asserted[,]” as such a violation constitutes a “structural
error” that carries a presumption of prejudice. Appellant’s Brief at 25.
Appellant’s ‘presumption of prejudice’ argument is correct in the context of a
direct appeal. . . . However, where as here, a public-trial violation is asserted in
the context of an ineffective assistance of counsel claim, the petitioner must prove
that prejudice resulted from counsel’s conduct. . . . Here, Appellant offers no
discussion of how he was prejudiced by Attorney McCune’s improperly
informing his parents that they could not attend the jury selection proceeding. . . .
Accordingly, even if Appellant’s underlying claim had arguable merit, we would
conclude that he has failed to demonstrate that he was prejudiced by Attorney
McCune’s conduct.
Id. at 12 n. 1 (emphasis in original) (internal citations omitted) (ECF No. 7-1 at 59-60).
Pritchett argues that the state court decisions are contrary to “clearly established” Federal
law “because trial counsel’s deficient performance resulted in a structural error, which gives rise
to a presumption of prejudice.” Pet’s Br. at 10 (ECF No. 19). In support of this argument,
Petitioner relies on various appellate court decisions. However, it is firmly established in habeas
jurisprudence, that AEDPA’s “contrary to . . . clearly established Federal law” language refers to
the holdings of United States Supreme Court’s decisions at the time of the relevant state-court
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decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Greene v. Pulakovich, 606 F.3d 85, 95
(3d Cir. 2016).
Pritchett has failed to meet his burden to overcome AEDPA’s deferential review. 8
Pritchett has not demonstrated that the Superior Court’s decision was contrary to, or involved an
unreasonable application of, established Federal law, as determined by the Supreme Court of the
United States, or is there anything in the record to suggest the Superior Court’s decision was
based on unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.
Accordingly, the petition will be denied on the merits with respect to
Pritchett’s first claim.
Although not pertinent to the Court’s decision in this case because the Superior Court’s
memorandum was issued in 2015, the Court notes that the United States Court of Appeals for the
Third Circuit has recently held:
8
When a defendant on collateral review raises an ineffective assistance of counsel
claim involving counsel’s failure to raise a structural error, the defendant will
typically bear the burden to show both deficient performance of counsel and
prejudice under the familiar Strickland framework. The Supreme Court recently
addressed a similar situation in Weaver v. Massachusetts, ––– U.S. ––––, 137
S.Ct. 1899, 1911, 198 L.Ed.2d 420 (2017) (plurality).
There, a plurality of the Court held that, “when a defendant raises a public trialviolation via an ineffective-assistance-of-counsel claim, Strickland prejudice is
not shown automatically.” Id. at 1911. The plurality suggested that only structural
errors that “always result[ ] in fundamental unfairness[,]” such as when an
indigent defendant is denied an attorney, will result in the presumption of
prejudice in a Strickland analysis. Id. at 1908, 1911. Otherwise, the plurality
continued, the defendant must bear the burden “to show either a reasonable
probability of a different outcome in his or her case or . . . to show that the
particular [error in his or her case] was so serious as to render his or her trial
fundamentally unfair.” Id. at 1911.
United States v. Thomas, 750 F. App'x 120, 128 (3d Cir. 2018), cert. denied, -- U.S. --, 139 S.
Ct. 1218 (2019).
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Claim Two: IATC – Corrupt Source Jury Instruction
In his second claim, Pritchett argues that he was denied his Sixth Amendment right to
effective assistance of counsel when trial counsel failed to object to the court’s charge which
excluded a “corrupt source” jury instruction regarding witnesses Carl Richardson and Jamal
Younger.
Pritchett raised this same claim to the state court in his collateral proceedings.
The
PCRA court denied Pritchett’s claim on the merits finding that Pritchett had failed to
demonstrate prejudice and the Superior Court of Pennsylvania affirmed finding that the claim
lacked arguable merit. In rejecting this claim, the Superior Court concluded as follows:
Here, Appellant contends that a corrupt source charge was warranted
because Younger and Richardson were accomplices in the shootings. Appellant’s
co-defendant, Peterson, asserted this same argument on direct appeal, and this
Court rejected it. See Commonwealth v. Peterson, No. 368 WDA 2010,
unpublished memorandum at 5 (Pa. Super. filed March 16, 2010). In doing so,
we relied on the rationale expressed in the trial court’s Rule 1925(a) opinion. See
id. The trial court opinion in Peterson’s case was identical to the trial court
opinion issued in Appellant’s case.
In that decision, the trial court concluded that Peterson’s and Appellant’s
claim that Younger and Richardson were accomplices was a “bald assertion” that
was not supported by the evidence presented at trial. See Trial Court Opinion,
9/6/11, at 20-22. The trial court instead found that “[t]he only evidence in the
record that touche[d] upon Richardson[‘s] and Younger’s involvements in the
shootings was the fact that they were present at the scene of these shootings. Id.
at 21. Therefore, the court concluded that “Peterson and Pritchett were not
entitled to the corrupt and polluted source instruction since the record fail[ed] to
demonstrate how either Richardson[‘s] or Younger’s presence at these shootings
could ever implicate them as an accomplice or co-conspirator.” Id. at 22. In
Peterson’s appeal, this Court agreed with the trial court’s conclusion, and
affirmed the court’s decision not to provide the requested ‘corrupt source’ jury
instruction. Peterson, No. 368 WDA 2010, unpublished memorandum at 5.
This Court’s decision in Peterson’s direct appeal convinces us that
Appellant’s underlying claim that a corrupt source jury charge was warranted
lacks arguable merit. This is especially true where Appellant offers no discussion
of how or why this Court would have concluded that Younger and Richardson
13
were Appellant’s accomplices, yet not Peterson’s. Consequently, Appellant’s . . .
claim that Attorney McCune acted ineffectively is meritless.
Superior Court Memorandum, 11/17/2015 (emphasis in original).
This Court finds that the decision of the Superior Court easily withstands review under
AEDPA. Pritchett has not demonstrated that the Superior Court’s decision was contrary to, or
involved an unreasonable application of, Strickland or is there anything in the record to suggest
the Superior Court’s decision was based on unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
Accordingly, the petition will be denied on the merits with respect to Pritchett’s second
claim. 9
Claim Three: IATC –Violation of Confrontation Clause
Pritchett’s third claim is that counsel was ineffective for failing to object to the
Commonwealth’s introduction of the Preliminary Hearing Transcript testimony of Karl
Richardson at trial, denying Pritchett of his Sixth Amendment right to confrontation.
It is not
disputed that Richardson was not available to testify at trial.
Pritchett raised this same claim to the state court in his collateral proceedings and it was
denied on the merits by both the PCRA court and the Superior Court. The Superior Court
rejected the claim on the “actual prejudice” prong of the ineffectiveness of counsel standard:
Richardson was not the only witness who testified that Appellant was
present during the shootings; Jamal Younger also testified that Appellant was
driving the vehicle when the shootings occurred. N.T. Trial 10/17/09-10/29/09, at
289. Additionally, the jury heard evidence, that, on the night of the shootings,
Younger told police that Appellant said he “was on G shit[,]” id. at 295, which
In support of his claim, Pritchett relies upon Commonwealth v. Bricker, 581 A.2d 147
(Pa. 1990); Commonwealth v. Upshur, 410 A.2d 810 (Pa. 1980); and Commonwealth v. Thomas,
387 A.2d 820 (Pa. 1978). Pritchett’s reliance upon these cases is misplaced, however, as each
was decided by the Supreme Court of Pennsylvania on direct review.
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Younger understood as meaning that Appellant was “doing some gangster shit
which is shooting at Crips . . . .” Id. at 301. Younger also told police that
Appellant drove toward an area of the city called “the cave,” id. at 295, and stated
“[t]here is no other reason to go to the cave other than to shoot someone.” Id. at
296. Younger explained that once in the “the cave,” Appellant “drove past a
group of people on Morrison” and then “made a U-turn” to drive past the group
again while “[t]he front passenger pulled out and fired two shots into the group . .
.” Id. at 295.
Based on Younger’s testimony alone, the jury could have concluded that
Appellant was not only present during the shootings, but that he participated in
those offenses by driving the vehicle from which Peterson fired at the victims.
Appellant fails to explain how the absence of Richardson’s preliminary hearing
testimony would have cast doubt on Younger’s trial testimony. Therefore,
Appellant’s scant argument regarding the prejudice prong of the IAC test has
failed to convince us that the jury’s verdict would have been different had
Richardson’s preliminary hearing testimony been objected to by Attorney
McCune, and not admitted into evidence.
Superior Court Memorandum at 10-11, 11/17/2017 (emphasis added) (ECF No. 7-1 at 57-58).
Pritchett asserts that the state court adjudication was contrary to Federal law as the
Superior Court “overlooked” Jamal Younger’s trial testimony that Richardson, not Pritchett, was
driving the car at the time of the shootings. Pritchett appears to argue that because the Superior
Court only cited to Younger’s preliminary hearing testimony, which Younger recanted during his
trial testimony, the appellate court must have “overlooked” Younger’s trial testimony. Pritchett
also lists other evidence that supports Younger’s trial testimony, including forensic evidence that
Richardson’s DNA was on the steering wheel of the car and Pritchett’s DNA on the rear
passenger door handles, (T.T., Vol. II, 164-68), and the position of the driver’s seat was
consistent with Richardson’s short stature. (T.T., Vol. I, 275-276, 303, Vol. II, 184, 191) .
During closing argument, Pritchett’s counsel argued that the evidence at trial “proved that
Karl Richardson was probably the driver[.]”
Counsel further argued that Richardson and
Younger initially lied to detectives to “dig [themselves] out of a murder prosecution, . . . and
15
picked an innocent guy to use his car and to frame him that night[.]” (T.T., Vol. II, 230, 239).
The defense maintained that Younger and Richardson were unworthy of belief. (T.T., Vol. II,
242). See Pet’s Br. at 2 (ECF No. 19).
It is a well established principle that the jury is afforded the opportunity to believe all,
part, or none of the evidence. It is not this Court’s role to determine the credibility of witnesses,
see Schlup v. Delo, 513 U.S. 298, 330 (1995); that task is left to the trier of fact. The Superior
Court’s recitation of Younger’s prior testimony at the preliminary hearing shows there was
ample evidence, if believed, to warrant a guilty verdict. The Superior Court found that Pritchett
had failed to convince it that the jury’s verdict would have been different had Richardson’s
preliminary hearing testimony been objected to by Attorney McCune and not admitted into
evidence.
The habeas petitioner must show that the state court decision was objectively
unreasonable and not merely incorrect. Williams v. Taylor, 529 U.S. 362, 410–411 (2000);
Blystone, 664 F.3d at 417. “[S]o long as ‘fairminded jurists could disagree’ on the correctness of
the state court's decision,” the state court's application of federal law cannot be considered
unreasonable. Harrington v. Richter, 526 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)).
If this standard is difficult to meet, that is because it was meant to be. As amended
by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court
relitigation of claims already rejected in state proceedings. It preserves authority
to issue the writ in cases where there is no possibility fairminded jurists could
disagree that the state court's decision conflicts with this Court's precedents. . . .
As a condition for obtaining habeas corpus from a federal court, a state prisoner
must show that the state court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.
16
Id. at 102-03 (citations omitted). A state court decision rests on an unreasonable determination
of the facts only if the state court's findings of fact are objectively unreasonable in light of the
evidence presented in state court at the time of the state court's adjudication. Blystone, 664 F.3d
at 418; see also Cullen v. Pinholster, 563 U.S. 170, 185 (2011). In general, the state court's
findings of fact are presumed to be correct, but the petitioner may rebut this presumption by
“clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Pritchett has not met his burden to
overcome the AEDPA deferential standard. He has not shown that the state court decision rests
on an unreasonable determination of facts.
For all these reasons, the Court finds that the decision of the Superior Court withstands
review under AEDPA. Pritchett has not demonstrated that the Superior Court’s decision was
contrary to, or involved an unreasonable application of, Strickland or is there anything in the
record to suggest the Superior Court’s decision rests on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding. Accordingly, the petition
will be denied on the merits with respect to Pritchett’s third claim.
Claim Four – IAC – Failure to Call Pritchett to Testify
Pritchett’s fourth claim is a layered ineffectiveness of counsel claim. He asserts that he is
entitled to relief under Martinez v. Ryan because PCRA counsel was ineffective for failing to
introduce his proffered trial testimony at the PCRA hearing to show trial counsel’s
ineffectiveness for failing to call Pritchett to testify at trial.
To the extent Pritchett is attempting to bring a freestanding claim of ineffective assistance
of PCRA counsel, such a claim is not cognizable in federal habeas proceedings. See 28 U.S.C. §
2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under section
17
2254.”); see also Pennsylvania v. Finley, 481 U.S. 551, 555–56 (1987) (no constitutional right to
counsel in collateral post-conviction proceedings); Coleman v. Thompson, 501 U.S. 722, 755
(1991) (no constitutional right to counsel on appeal from initial collateral post-conviction
proceedings). Accordingly, the petition will be denied with respect to Pritchett’s ineffective
assistance of PCRA counsel claim on the ground that this claim is not cognizable on federal
habeas review.
As to the underlying claim, that trial counsel was ineffective for failing to call Pritchett to
testify at trial, Pritchett raised this same claim to the state court in his collateral proceedings.
The PCRA court denied the claim on the merits finding it had no merit and the Superior Court of
Pennsylvania affirmed incorporating the PCRA trial court’s findings in its memorandum.
The PCRA court, citing the trial transcript, denied Pritchett’s claim finding that the record
reflects that Pritchett “was fully advised of his rights concerning his ability to testify, thoroughly
discussed the matter with his lawyer, and decided not to testify, despite counsel’s belief that he
wanted Pritchett to testify.” PCRA 1925(a) Opinion at 10 (ECF No. 77-1 at 44). The Superior
Court. quoting from the PCRA order, noted that trial counsel testified at the PCRA hearing,
that he and [Appellant] spoke extensively about the question as to whether or not
[Appellant] should testify. [Attorney] McCune noted [Appellant’s] concerns
about testifying based on concerns for his family’s safety, specifically his sister.
[Counsel] testified that he really wanted [Appellant] to testify, despite
[Appellant’s] fears. [Attorney] McCune testified that [Appellant’s] decision was
made at the Allegheny County Jail during a “solemn moment[.]”
Superior Court memorandum, 11/17/2015 at 15 (quoting PCRA Court opinion at 9-10) (ECF No.
7-1 at 62). The Superior Court affirmed, finding that “[a]fter reviewing portions of the trial
record cited by the court, as well as the PCRA hearing transcripts, we ascertain no legal error in
the PCRA court’s decision.” Id. at 17 (ECF No. 7-1 at 64).
18
This Court finds that the decision of the Superior Court easily withstands review under
AEDPA. Pritchett has not demonstrated that the Superior Court’s decision was contrary to, or
involved an unreasonable application of, Strickland or is there anything in the record to suggest
the Superior Court’s decision was based on unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
Accordingly, the petition will be denied on the merits with respect to Pritchett’s fourth
claim. 10
Claim Five: IATC – Failure to Object to Court’s Charge
In his fifth and final claim, Pritchett argues that he was denied his Sixth Amendment right
to effective assistance of counsel where trial counsel failed to object to an erroneous jury
instruction on the aggravated assault charge. 11 The claim was raised in Pritchett’s counseled
Pritchett has requested that the record be expanded with new affidavits and certifications.
(ECF No. 19, Exh. A – D). This request is denied. Because the claim was “adjudicated on the
merits in State court proceedings,” it is being reviewed under 28 U.S.C. § 2254(d)(2), which
limits review to the record before the state court. Cullen v. Pinholster, 563 U.S. 170 (2011).
10
Pritchett was charged with aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), which
provides:
11
(a) Offense defined. – A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury
intentionally, knowingly, or recklessly under circumstances manifesting extreme
indifference to the value of human life[.]
Pritchett contends the instruction was erroneous and concerned a different offense, 18 Pa.
C.S.A § 2702(a)(4), which provides:
(4) attempts to cause or intentionally or knowingly causes bodily injury to another
with a deadly weapon[.]
The trial court gave the following jury instruction without objection from defense counsel:
The defendants have also been charged with the crime of aggravated
assault. In order for you to find the defendants guilty of this charge you must be
19
Amended PCRA Petition and denied on the merits. PCRA appellate counsel did not raise this
issue on appeal following the PCRA court’s decision dismissing the claim. Pritchett argues that
“appellate counsel dropped the issue without good cause.” Pet’s Memo at 10 (ECF No. 34-10).
Pritchett concedes this claim is procedurally defaulted but argues that he has “cause” to excuse
the procedural default pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).
Magistrate Judge Maureen P. Kelly recently ruled on a similar issue and found as
follows:
As this Court has previously explained,
The decision of the United States Supreme Court in Martinez v. Ryan
created a sea change in the doctrine of procedural default, holding for the
first time that a claim of ineffective assistance of post-conviction relief
counsel could serve as cause to excuse the procedural default of a claim of
trial counsel’s ineffectiveness.
Taylor v. Pa., CIV. A. 15-1532, 2018 WL 446669, at *9 (W.D. Pa. Jan. 16, 2018).
However, Martinez only serves as cause to excuse the procedural default of a trial
counsel claim of ineffectiveness based only upon the ineffectiveness of PCRA
trial counsel and not by any ineffectiveness engaged in by PCRA appellate
counsel. As Petitioner’s PCRA trial counsel raised these issues in the first PCRA
satisfied that the following elements have been proven beyond a reasonable doubt.
First, that the defendants caused bodily injury to another. Bodily injury means the
impairment of any physical condition or substantial pain. Second, that the
defendants acted intentionally or knowingly. And third, that the defendants
caused such injury with a deadly weapon.
A person acts intentionally with respect to bodily injury if it is his
conscious object or purpose to cause that injury and a person acts knowingly with
respect to bodily injury when he is aware that it is practically certain that his
conduct will cause such results. You are not required to find both states of mind,
only required to find either one.
In order to find the defendants guilty of aggravated assault, you must be
satisfied that they caused bodily injury to Maurice Johnson and they did so
intentionally, knowingly, and they did so with a deadly weapon.
Trial Transcript, Vol. II, at 279.
20
Petition, he was not ineffective and there is no cause under Martinez to excuse
Petitioner’s procedural default. Norris v. Brooks, 794 F.3d 401, 405 (3d Cir.
2015) (“Martinez made very clear that its exception to the general rule of
Coleman applies only to attorney error causing procedural default during initialreview collateral proceedings, not collateral appeals. 132 S.Ct. at 1316, 1320; see
also Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012). Because Norris’s
claim of ineffective assistance of trial counsel was presented on initial collateral
review and only waived on collateral appeal, we hold that Martinez does not
justify relief ...”).6
__________
FN 6:
This rule that Martinez does not apply to claims of ineffective
assistance of PCRA counsel acting in an appellate capacity has been
uniformly applied in this Circuit. We have held in prior cases, which
attempt to raise Martinez so as to excuse procedural default based on the
PCRA appellate counsel’s behavior, that such a claim does not fall within
the narrow Martinez exception:
Instead, we find a procedural default based on what PCRA
counsel did at the appellate level, i.e., raise only the two
claims on appeal addressed above and abandon the other
claims. Martinez does not provide that ineffective
assistance of PCRA counsel at the appellate level of post
conviction proceedings can serve as cause to excuse a
procedural default. The Supreme Court in Martinez
expressly stated that “[t]he holding in this case does not
concern attorney errors in other kinds of proceedings,
including
appeals
from
initial-review
collateral
proceedings, second or successive collateral proceedings,
and petitions for discretionary review in a State’s appellate
courts. It does not extend to attorney errors in any
proceeding beyond the first occasion the State allows a
prisoner to raise a claim of ineffective assistance at trial[.]”
132 S.Ct. at 1320 (emphasis added) (citing Coleman, 501
U.S. at 754; Carrier, 477 U.S. at 488). Therefore,
“Martinez offers no support . . . for the contention that the
failure to preserve claims on appeal from a postconviction
proceeding can constitute cause.” Arnold v. Dormire, 675
F.3d 1082 (8th Cir. 2012) (declining to extend Martinez to
claims of ineffective assistance in appeals from initialreview collateral proceedings). Accord Johnson v. Warden
of Broad River Correctional Inst., F. App'x ––––, 2013 WL
856731, at *1 (4th Cir. 2013); Ramos v. Collins, NO.
CIV.A. 13–433, 2013 WL 5429267, at *4 (E.D. Pa. April
23, 2013).
21
Lenhart v. Rozum, CIV.A. 10-218J, 2014 WL 807995, at *16 (W.D. Pa. Feb. 28,
2014). Accord Ingram v. Sauers, 1:12-CV-1900, 2015 WL 1608501, at *14 (M.D.
Pa. Apr. 10, 2015); Shiloh v. Wilkes, 1:14-CV-860, 2015 WL 5342704, at *10
(M.D. Pa. Sept. 14, 2015) (“Thus, to the extent Shiloh contends that PCRA
counsel’s ineffectiveness should excuse her procedural default pursuant to
Martinez, she ‘is provided no relief because PCRA counsel advanced this claim in
h[er] initial-review proceedings before the PCRA trial court.’ Glenn v. Wynder,
No. CIV.A. 06–513, 2012 WL 4107827, at *45 (W.D. Pa. Sept. 19, 2012) aff'd,
743 F.3d 402 (3d Cir. 2014).”).
Deep v. Wingard, No. CV 14-831, 2020 WL 908259, at *12 (W.D. Pa. Feb. 25, 2020) (emphasis
added).
Here, Pritchett’s PCRA trial counsel raised the issue of an erroneous jury instruction in
the Amended PCRA Petition; therefore, he was not ineffective and there is no cause under
Martinez to excuse Petitioner’s procedural default. Notably, Pritchett’s PCRA trial counsel also
served as his PCRA appellate counsel. After the evidentiary hearing and the issuance of the
PCRA court’s 1925(a) opinion, PCRA appellate counsel did not seek to have the claim reviewed
on appeal. This Court, adopting the reasoning in the Deep case, finds that Martinez provides no
relief on this claim as Martinez does not apply to excuse procedural default based on PCRA
appellate counsel’s behavior.
However, even assuming arguendo, that Martinez applied, the Court finds that Pritchett
has not overcome the procedural default as he has failed to demonstrate that the underlying
ineffective-assistance-at-trial claim is substantial. In denying the claim on the merits, the PCRA
court stated:
Finally, Pritchett argues that counsel was ineffective for failing to object to
an erroneous jury instruction on the aggravated assault charge. The Court’s
instruction apparently failed to include the word serious when defining the type of
bodily injury necessary for aggravated assault. (Trial Transcript at 278). This
error was not prejudicial nor did it determine the outcome of this case. The victim
in question, Maurice Johnson, testified that he had been shot in the chest. (Trial
Transcript 85-90). This testimony clearly constitutes the demonstration of serious
22
bodily injury. The omission of the word serious was not outcome-determinative
in this matter. Accordingly, this assignment of error must fail.
PCRA 1925(a) Opinion at 12-13 (ECF No. 7-1 at 46-47. Martinez speaks only to the complete
failure to raise a “substantial” claim of trial counsel ineffectiveness. PCRA appellate counsel
cannot be found to be ineffective for failing to raise a claim which had no merit.
Accordingly, the petition will be denied on the merits with respect to Pritchett’s fifth
claim.
Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a
certificate of appealability for appellate review of a district court's disposition of a habeas
petition. It provides that “[a] certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” “When the district court
denies a habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at
least, that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong.” Id. Applying those standards here, the Court concludes that jurists
of reason would not find it debatable whether each of Pritchett’s claims should be denied.
Accordingly, a certificate of appealability also will be denied.
23
Conclusion
For all of the above reasons, the petition for a writ of habeas corpus will be denied and a
certificate of appealability will be denied.
Dated: April 2, 2020
cc:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge
All Counsel of Record
(via ECF electronic notification)
24
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