CALDWELL v. MAHALLY et al
Filing
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MEMORANDUM OPINION & ORDER dismissing the 15 Amended Petition for Writ of Habeas Corpus as untimely, denying it in the alternative. IT IS FURTHER ORDERED that a Certificate of Appealability is denied. The Clerk of Court is directed to enter judgment in favor of Respondents and to mark this case CLOSED. Petitioner has thirty (30) days in which to file a notice of appeal. Signed by Magistrate Judge Lisa Pupo Lenihan on November 5, 2019. (kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KEITH CALDWELL,
Petitioner,
v.
LARRY MAHALLY and THE
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.
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Civil Action No. 16 – 1848
Magistrate Judge Lisa Pupo Lenihan
MEMORANDUM OPINION 1
Pending before the Court is an Amended Petition for Writ of Habeas Corpus (“Habeas
Petition”) filed by Petitioner Keith Caldwell (“Petitioner”) pursuant to 28 U.S.C. § 2254. (ECF
No. 15). Petitioner challenges the judgment of sentence imposed after he was convicted by a
jury of first-degree murder for the shooting death of his grandfather. For the following reasons,
the Habeas Petition will be dismissed as untimely and denied in the alternative. A Certificate of
Appealability will also be denied.
A.
Factual Background
The factual background of this case was outlined by the trial court as follows:
This matter arises out of the murder of Nathaniel Caldwell on March 9,
2007. Defendant, Keith Caldwell, was the victim’s grandson and lived with the
victim in a first floor apartment at 7013 Frankstown Avenue for approximately
two years prior to the murder. Defendant previously lived with his mother and
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
the entry of a final judgment. (ECF Nos. 8, 19.)
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stepfather until he was sixteen and then lived with an aunt for a short period of
time before moving in with his grandfather. At one time after moving in with the
victim, Defendant had a disagreement with the victim and was forced to leave the
residence but Defendant was later allowed to move back. The victim’s wife and
Defendant’s grandmother, Mary Caldwell, lived in a second floor apartment at the
Frankstown Avenue address. Although they lived in separate apartments, Mrs.
Caldwell prepared meals for her husband and Defendant and would routinely see
them throughout the course of the day. On the day of the murder Mrs. Caldwell
first saw the victim at approximately 7:00 a.m. when he came to her apartment for
breakfast, staying until approximately 9:30 a.m. He then returned to his
apartment while she prepared to go to work. At approximately 11:00 a.m. she
called the victim to tell him she was leaving for work. Mrs. Caldwell did not see
Defendant during the course of the morning. Mrs. Caldwell described
Defendant’s relationship with the victim as close, but acknowledged that there
were occasional disagreement between them because of Defendant’s lack of
motivation and not wanting to go to school.
The evidence further established that Ernie Daniels, a next door neighbor
who knew the victim and Defendant, came home on the afternoon of March 9th
and was putting away groceries in his kitchen second floor apartment. The
window in the kitchen was opened and Daniels heard a sound he described like
someone kicking or banging in his back door. When Daniels heard the noise he
looked out his back window and saw Defendant running from the back of the
apartment building next door towards the front. Daniels testified that although
Defendant was wearing a “hoodie” it was daylight and he could clearly see his
face. Daniels testified that it was approximately 45 minutes later that he saw the
police outside the victim’s home.
The victim’s daughter, Valerie Caldwell, testified that she went to visit her
father’s apartment after work, arriving shortly before 5:00 p.m. and found him
with a gunshot wound to his head and called 911 at 5:04 p.m. She noted the smell
of gunpowder when she entered the apartment. Uniformed officers responded
within minutes, finding the victim sitting in a chair with a gunshot wound to the
head. The officers secured both the first and second floor apartments finding no
one present. They also searched the basement area and found the basement door
partially kicked in with a footprint on the door. However, the basement door was
only opened approximately two to three inches because a forty foot ladder
prevented the door from opening further. The rear kitchen door was locked and
there were no other signs of forced entry. There was no evidence that either
apartment was ransacked and nearby wrapped coins and the victim’s wallet, under
his mattress, were undisturbed. A search outside the apartment revealed a .357
Magnum handgun, later identified as being owned by the victim and used in the
shooting, lying on the ground in the rear of the building near the steps leading to
the basement door that was partially kicked in. The victim’s son, Nathaniel
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Caldwell, testified that when he went through his father’s belongings the day after
the shooting he found nothing missing.
Paramedics found the victim’s body sitting in a chair with a gunshot
wound to the head. The body was still warm and there were no rigor or stiffening
of the body at the time that he was pronounced dead at 5:08 p.m. The coroner’s
office retrieved the body at 7:19 p.m. and a liver core body temperature and the
lack of rigor indicated that the victim had died within two to four hours of the
taking of the core body temperature.
An autopsy performed by Dr. Michael Panella of the Allegheny County
Coroner’s Office determined that the victim died of a single gunshot wound to the
head with a bullet traversing the brain and lodging in the back of the neck on the
left side. Dr. Panella opined that the wound was a close contact wound indicating
that the shooter had placed the gun directly against the victim’s skull when firing
the gun. The bullet was retrieved and found on ballistic examination to be a 38
caliber bullet that was fired from the victim’s .357 handgun, the gun that was
found at the rear of the house.
Detective George Sattler also testified that while on the scene
investigating, Defendant was seen returning to the residence and had to be
restrained from entering the apartment to see his grandfather. At that time
Defendant was shown the gun that was found at the rear of the residence, which
Defendant identified as being the victim’s gun. As Defendant lived with the
victim, Defendant was then taken to the Detective’s office where he was
questioned at approximately 7:45 p.m. that evening. Defendant acknowledged
that he had some disagreements with his grandfather in the past and at one point
was made to leave the home but ultimately was allowed to return. Defendant
further informed Detective Sattler that on the night before the murder he had
come home late and the victim was upset with him and wanted him out of the
residence. However, he was allowed to stay the night. Defendant stated that he
saw the victim go upstairs at approximately 7:00 a.m. the following morning but
Defendant remained in bed until late morning or early afternoon. Defendant
stated he did not see his grandfather again but remained in the residence until
approximately 4:30 p.m. at which time he called the emergency 911 number to
ask if his grandfather could throw him out of the house.
The evidence established that Defendant called the Allegheny
County 911 at 4:06 p.m. to ask what he characterized as a “legal question”.
Defendant then asked the 911 dispatcher, “I am only 19 and my family, my
lawyer never gave me a chance to get like secure in life. Is it legal for them to
kick me out at 19 years old?” The transcript of the phone call indicates that the
dispatcher informed Defendant that he could not answer the question but could
either send an officer to assist him or give him a phone number to talk to an
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officer over the phone. Defendant was then given the phone number for the Zone
5 police station and the call to 911 ended.
Officer Henry Wilson testified that he was the Zone 5 desk officer on
March 9, 2007 and that at approximately 4:20 p.m. he received a call from an
unknown male asking if he could be kicked out of his home. Officer Wilson
advised the caller that if he was 18 years of age he could be. Officer Wilson told
him there was nothing that could be done and that the caller then thanked him and
hung up. Officer Wilson described the caller as being “pleasant”.
During the initial interview on March 9, 2007 Defendant also told
Detective Sattler that after calling 911 and the Zone 5 station, he had called a
cousin to see if he could move in with him but it was “left up in the air whether or
not he could move in”. Defendant then said that he had left the residence and
went approximately two blocks to a local market, locking the door to the
apartment after he left. Defendant produced a receipt showing the purchase of
items at 5:09 p.m. Defendant then indicated that shortly after leaving the market
he received a phone call from a relative telling him that his grandfather was shot
and he immediately went back to the residence. Further, as he was making his
way home he heard a cell phone ringing that was lying on the ground and he
picked it up and recognized it as his grandfather’s. Detective Sattler also
indicated that Defendant told him he was not upset at all about his grandfather
kicking him out of the house. Defendant acknowledged that he knew that his
grandfather kept a .357 revolver handgun in the residence. During the interview
Detective Sattler noticed what he believed to be a stain on the Defendant’s right
boot and consent was obtained to collect Defendant’s boots and clothing. Buccal
swabs for DNA testing and a gunshot residue kit were also obtained.
DNA testing of the gun used in the shooting, Defendant’s jacket, jersey,
sweatshirt, shirt and jeans were either negative or inconclusive for blood stains or
consistent with Defendant’s own blood. However, a blood stain on Defendant’s
right boot matched the victim’s blood.
Detective Kimberly Braddock also interviewed Defendant on March 9,
2007 at approximately 10:45 p.m. Defendant also acknowledged to Detective
Braddock that he came home late the night before the victim was killed and they
had a “little confrontation” because Defendant was late. Defendant indicated that
it was not an argument and denied that there was any conversation about him
being kicked out of the house. He again repeated his accounts of that day,
including going to the store in the afternoon.
Detective Braddock also testified that as she and her partner took the
Defendant home that evening he “was overheard talking on the phone asking why
someone would shoot grandpa in the head.” At that point his partner asked
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Defendant how he knew his grandfather was shot in the head and Defendant
responded by saying “he must have been shot in the head if he died instantly.”
(Resp’t Exh. 11, ECF No. 10-3, pp.3-8) (internal citations to trial transcript omitted).
B.
Procedural Background
Petitioner was charged by Criminal Information filed in the Court of Common Pleas of
Allegheny County, Pennsylvania, Criminal Division, with one count of Criminal Homicide, 18
Pa. C.S.A. § 2501, in connection with the murder of his grandfather on March 9, 2007. (Resp’t
Exh. 2; ECF No. 10-1, pp.19-21.) On March 10, 2008, Petitioner, represented by Robert
Foreman, Esq. (“Attorney Foreman”), appeared for a jury trial before the Honorable Randal B.
Todd (“Judge Todd”). Two days later, the jury found Petitioner guilty of first-degree murder and
he was sentenced to life imprisonment on April 24, 2008. (Resp’t Ex. 2; ECF No. 10-1, p.19.)
Petitioner, through Thomas N. Farrell, Esq. (“Attorney Farrell”) filed a post-sentence motion on
May 5, 2008 (Resp’t Ex. 4; ECF No. 10-1, pp.32-36), which Judge Todd denied on May 7, 2008
(Resp’t Ex. 5; ECF No. 10-1, p.37).
On June 3, 2008, Petitioner, through Attorney Farrell, appealed his judgment of sentence
arguing that there was insufficient evidence to support his first-degree murder conviction.
(Resp’t Exh. 6; ECF No. 10-2, pp.1-17); (Resp’t Exh. 9; ECF No. 10-2, pp.34-37.) On January
18, 2011, Judge Todd filed his Opinion pursuant to Pennsylvania Rule of Appellate Procedure
(“Pa. R.A.P.”) 1925(a). (Resp’t Exh. 11; ECF No. 10-3, pp.1-25.) The Superior Court of
Pennsylvania affirmed Petitioner’s judgment of sentence on November 14, 2011. (Resp’t Exh.
15; ECF No. 10-7, pp.1-13.) Petitioner, through Attorney Farrell, filed a Petition for Allowance
of Appeal (Resp’t Exh. 17; ECF Nos. 10-8, 10-9), which the Supreme Court of Pennsylvania
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denied on April 25, 2012 (Resp’t Exh. 19; ECF No. 10-10, p.2). Petitioner did not file a petition
for writ of certiorari with the United States Supreme Court.
On December 5, 2012, Petitioner filed a pro se Motion to Set Aside and/or Vacate
Judgment Procured Through Fraud, which the court construed as a petition pursuant to
Pennsylvania’s Post-Conviction Relief Act (“PCRA”). (Resp’t Exh. 20; ECF Nos. 11-1, 11-2.)
Judge Todd, acting as the PCRA court, appointed Charles Robert Pass, III, Esquire, (“Attorney
Pass”) to represent Petitioner for those proceedings, and on February 4, 2013, Attorney Pass filed
a Motion for Leave to Withdraw as counsel pursuant to Turner 2 and Finley 3. (Resp’t Exh. 21;
ECF No. 11-3.) On May 20, 2013, Judge Todd issued an order that granted Attorney Pass leave
to withdraw and gave Petitioner notice that his PCRA petition would be dismissed. (Resp’t Exh.
22; ECF No. 11-4, pp.1-4.) Petitioner filed a pro se response to the PCRA court’s notice (Resp’t
Exh. 23; ECF No. 11-4, pp.5-9), and the petition was dismissed without a hearing on June 28,
2013 (Resp’t Exh. 24; ECF No. 11-4, pp.10-11). Petitioner appealed pro se (Resp’t Exh. 25;
ECF No. 11-4, pp.12-19), and, on January 6, 2014, Judge Todd issued his Opinion pursuant to
Pa. R.A.P. 1925(a) (Resp’t Exh. 26; ECF No. 11-4, pp.20-40). The Superior Court affirmed the
dismissal of the PCRA petition on July 15, 2014. (Resp’t Exh. 30; ECF No. 11-7.) Petitioner
moved for reconsideration (Resp’t Exh. 31; ECF Nos. 12-1, 12-2), but his motion was denied by
the appellate court on September 4, 2014 (Resp’t Exh. 32; ECF No. 12-3, p.1). He then filed a
pro se Petition for Allowance of Appeal (Resp’t Exh. 34; ECF Nos. 12-4, 12-5), which the
Pennsylvania Supreme Court denied on December 30, 2014 (Resp’t Exh. 36; ECF No. 12-6, p.2).
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Commonwealth v. Turner, 544 A.2d 927 (1988)
Commonwealth v. Finley, 550 A.2d 213 (1988)
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On January 9, 2014, while Petitioner’s appeal of his PCRA petition was pending before
the Superior Court, he filed a pro se Application Seeking an Order to Conduct Forensic D.N.A.
Testing pursuant to 42 Pa. C.S.A. § 9543.1. (Resp’t Exh. 37; ECF No. 12-6, pp.3-7.) The
Commonwealth was directed to respond and they filed an Answer to the motion on February 7,
2014. (Resp’t Exh. 38; ECF No. 12-6, pp.8-32.) On March 27, 2014, Judge Todd entered an
order staying the request for testing until the conclusion of Petitioner’s appeal. (Resp’t Exh. 39;
ECF No. 12-6, pp.33-34.) On July 17, 2014, after the Superior Court had affirmed dismissal of
Petitioner’s PCRA petition, Judge Todd entered an order giving notice of the court’s intention to
dismiss Petitioner’s motion for DNA testing. (Resp’t Exh. 40; ECF No. 12-7, pp.1-3.) Petitioner
filed a response to the court’s notice on August 11, 2014 (Resp’t Exh. 42; ECF No. 12-7, pp.1120), and, on September 4, 2014, the court dismissed the motion (Resp’t Exh. 43; ECF No. 12-7,
p.21).
On September 19, 2014, Petitioner filed a pro se Affidavit and Notice/Motion to Compel,
which the court construed as a second PCRA petition. (Resp’t Exh. 44; ECF No. 12-7, pp.2233.) On October 27, 2014, Judge Todd entered an order giving notice of the court’s intention to
dismiss the petition. (Resp’t Exh. 45; ECF No. 12-7, pp.34-36.) On November 19, 2014, the
petition was dismissed as untimely. (Resp’t Exh. 46; ECF No. 12-7, pp.37-38.) Petitioner
appealed pro se (Resp’t Exh. 47; ECF No. 12-7, pp.39-45), and Judge Todd filed his Pa. R.A.P.
1925(a) Opinion on July 20, 2015 (Resp’t Exh. 49; ECF No. 12-8, pp.7-13). On April 15, 2016,
the Superior Court affirmed the dismissal of the second PCRA petition. (Resp’t Exh. 53; ECF
No. 13-5, pp.1-4.) Petitioner moved for reconsideration (Resp’t Exh. 54; ECF No. 13-5, pp.514) and his motion was denied on June 6, 2016 (Resp’t Exh. 55; ECF No. 13-5, p.15). On July
5, 2016, Petitioner filed a pro se Petition for Allowance of Appeal (Resp’t Exh. 57; ECF No. 137
6, pp.1-17) and the Pennsylvania Supreme Court denied it on November 1, 2016 (Resp’t Exh.
58; ECF No. 13-6, p.18).
On January 5, 2015, while the appeal of Petitioner’s second PCRA petition was pending
before the Superior Court, Petitioner filed another pro se Application Seeking an Order to
Conduct Forensic D.N.A. Testing pursuant to 42 Pa. C.S.A. § 9543.1. (Resp’t Exh. 59; ECF No.
13-6, pp.19-39.) The Commonwealth responded to the motion on February 12, 2015 (Resp’t
Exh. 60; ECF No. 13-7, pp.1-28), and, on March 3, 2015, Judge Todd denied the motion (Resp’t
Exh. 61; ECF No. 13-7, pp.29-30). Petitioner appealed pro se (Resp’t Exh. 62; ECF No. 13-7,
pp.31-37), and, on July 20, 2015, Judge Todd filed his Pa. R.A.P. 1925(a) Opinion (Resp’t Exh.
63; ECF No. 13-7, pp.38-47). On April 15, 2016, the Superior Court affirmed the denial of
Petitioner’s motion for DNA testing. (Resp’t Exh. 67; ECF No. 14-5, pp.1-6.) Petitioner’s
motion for reconsideration that he filed on May 2, 2016 (Resp’t Exh. 68; ECF No. 14-5, pp.728), was denied by the Superior Court on June 6, 2016 (Resp’t Exh. 69; ECF No. 14-5, p.29).
On July 1, 2016, Petitioner filed a pro se Petition for Allowance of Appeal (Resp’t Exh. 71; ECF
No. 14-6, pp.4-21) that the Pennsylvania Supreme Court denied on November 15, 2016 (Resp’t
Exh. 72; ECF No. 14-6, p.22).
Petitioner’s original Petition for Writ of Habeas Corpus was signed on December 6, 2016
and postmarked the following day. (ECF No. 1.) The case was closed following the Court’s
denial of Petitioner’s motion to proceed in forma pauperis and then subsequently reopened when
Petitioner paid the filing fee on January 6, 2017. (ECF Nos. 2, 3.) His original Petition for Writ
of Habeas Corpus was docketed by the Clerk on January 6, 2017 (ECF No. 4), and Respondents
filed an Answer to it on February 15, 2017 (ECF Nos. 9-14). Petitioner then filed what the Court
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construed as an Amended Petition for Writ of Habeas Corpus (“the Habeas Petition”) on April 5,
2017 (ECF Nos. 15, 16), and Respondents filed an Answer to it on April 18, 2017 (ECF No. 17).
C. Petitioner’s Claims
Petitioner raises three claims for relief in his Habeas Petition. First, he claims that he was
denied the effective assistance of counsel when his trial counsel improperly argued the
significance of the DNA evidence, and he also claims that trial counsel was ineffective for failing
to object to the Commonwealth’s presentation of the DNA evidence. Second, Petitioner claims
that all counsel were ineffective for failing to raise a claim that he was questioned by detectives
in violation of his constitutional rights. Third, he alleges a violation of due process because the
Commonwealth did not present sufficient evidence to prove him guilty of first-degree murder.
D. AEDPA Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a oneyear limitations period for state prisoners seeking federal habeas review. It is codified at 28
U.S.C. § 2244(d) and it provides:
(1)
A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of –
(A)
the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B)
the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from
filing by such State action;
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
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(D)
(2)
the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation
under this section.
28 U.S.C. § 2244(d).
The statute of limitations set out in § 2244(d)(1) must be applied on a claim-by-claim
basis. Fielder v. Varner, 379 F.3d 113 (3d Cir. 2004), cert denied, 543 U.S. 1067 (2005). In
analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year
limitations period, a federal court must undertake a three-part inquiry. First, the court must
determine the “trigger date” for the one-year limitations period pursuant to section 2244(d)(1).
Second, the court must determine whether any “properly filed” applications for post-conviction
or collateral relief were pending during the limitations period that would toll the statute pursuant
to section 2244(d)(2). Third, the court must determine whether any of the other statutory
exceptions or equitable tolling should be applied on the facts presented.
The three claims raised by Petitioner in his Habeas Petition concern matters which
occurred at the time of trial. They do not involve newly enunciated constitutional rights and are
not based on facts that were discovered at a later date. Furthermore, there were no state-created
impediments that prevented Petitioner from raising the claims sooner. Consequently, the “trigger
date” for Petitioner’s one-year limitations period is the date on which his judgment of sentence
became final, which, in this case, was the last day that Petitioner had to file a petition for writ of
certiorari in the United States Supreme Court. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.
2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration
10
of time for seeking such review, including the time limit (90 days) for filing a writ of certiorari in
the Supreme Court). In this case, the Pennsylvania Supreme Court denied Petitioner’s Petition
for Allowance of Appeal on April 25, 2012, and he had ninety-days from that day, or until July
24, 2012, to file a petition for writ of certiorari. He did not file a petition for writ of certiorari, so
his judgment of sentence became final on July 24, 2012. Absent any tolling for “properly filed”
applications for post-conviction relief, Petitioner had until July 24, 2013 to file a timely federal
habeas petition challenging his conviction. For purposes of the prisoner mailbox rule,
Petitioner’s Habeas Petition was filed on December 6, 2016, the date he signed it, so the Court
must determine whether Petitioner can take advantage of the tolling provision in section
2244(d)(2).
Section 2244(d)(2) provides that the one-year limitations period is tolled during the
pendency of a “properly filed” state post-conviction proceeding. Petitioner filed his first PCRA
petition on December 5, 2012, at which time 133 days of his one-year limitations period had
expired (July 25, 2012 thru December 4, 2012). Those proceedings were “properly filed,” and,
as such, the statute of limitations was tolled until they concluded when the Pennsylvania
Supreme Court denied Petitioner’s Petition for Allowance of Appeal on December 30, 2014.
The statute of limitations started to run again the following day, and, at that point in time,
Petitioner only had 232 days (365-133=232) remaining to file a timely habeas petition, or until
August 19, 2015. As previously noted, he did not file his Habeas Petition until December 6,
2016, over a year after the statute of limitations expired.
Petitioner appears to argue that he is entitled to tolling for the time his second PCRA
petition was pending in the state courts. While Petitioner did file a second PCRA petition on
September 19, 2014, that petition was dismissed as untimely and was thus not “properly filed”
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within the meaning of section 2244(d)(2). See Artuz v. Bennett, 121 S. Ct. 361, 364 (2000) (An
application for state post-conviction relief or collateral review is “properly filed” as required to
toll AEDPA’s statute of limitations period for filing a federal habeas petition “when its delivery
and acceptance are in compliance with the applicable laws and rules governing filings[,]”
notwithstanding the substance or merits of the claims contained within the application itself.
These “applicable laws and rules governing filings” usually prescribe “the form of the document,
the time limits upon its delivery, the court and office in which it must be lodged, and the
requisite filing fee . . . .”). See also Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (a federal
court is bound by a state court’s finding that a petitioner’s PCRA petition was untimely, even
where the petitioner sought to pursue his PCRA petition under a statutory exception to the
PCRA’s time bar). Therefore, the pendency of those proceedings cannot be tolled.
Petitioner also argues that he is entitled to tolling for the time his two motions for DNA
testing were pending in the state courts. The Third Circuit Court of Appeals has yet to resolve
the question of whether a post-conviction request for DNA testing in Pennsylvania constitutes a
“properly filed application for . . . other collateral review” under section 2244(d)(2).
Petitioner’s motions were filed pursuant to 42 Pa. C.S.A. § 9543.1, which states, in
relevant part:
An individual convicted of a criminal offense in a court of this Commonwealth
and serving a term of imprisonment or awaiting execution because of a sentence
of death may apply by making a written motion to the sentencing court for the
performance of forensic DNA testing on specific evidence that is related to the
investigation or prosecution that resulted in the judgment of conviction.
42 Pa. C.S.A. § 9543.1(a)(1). If the request for DNA testing is granted, the statute stipulates that
“the applicant may, pursuant to section 9545(b)(2) (relating to jurisdiction and proceedings),
during the 60-day period beginning on the date on which the applicant is notified of the test
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results, petition to the court for post conviction relief pursuant to section 9543(a)(2)(vi) (relating
to eligibility for relief).” 42 Pa. C.S.A. § 9543.1(f)(1).
Pennsylvania state courts have recognized that “[p]ost conviction DNA testing does not
directly create an exception to § 9545’s one-year time bar . . . . Rather it allows for a convicted
individual to first obtain DNA testing which could then be used within a PCRA petition to
establish new facts in order to satisfy the requirements of an exception under 42 Pa. C.S. §
9545(b)(2).” Commonwealth v. Weeks, 831 A.2d 1194, 1196 (2003). In other words, a motion
for post-conviction DNA testing does not constitute an application for collateral review in and of
itself; rather, it is a motion to obtain evidence, which, if favorable, could then be used in support
of an application for collateral review.
Three Circuit Courts of Appeals that have confronted this issue have come to the same
conclusion. The Eleventh Circuit Court of Appeals held that Florida’s DNA testing statute does
not toll AEDPA’s statute of limitations because it “involves an application for discovery only,
pursuant to which the court lacks authority to order relief from the movant’s sentence or
conviction based on the DNA test results.” Brown v. Secretary for Dept. of Corrections, 530
F.3d 1335, 1337 (11th Cir. 2008). Consistent with the Eleventh Circuit, the Seventh Circuit
Court of Appeals also held that a motion for DNA testing in Illinois does not toll AEDPA’s
statute of limitations because a successful motion merely entitles the petitioner to evidence, not
release, under Illinois’ DNA statute. See Price v. Pierce, 617 F.3d 947, 952-53 (7th Cir. 2010).
The Tenth Circuit Court of Appeals followed suit and held that a prisoner’s post-conviction
motion for DNA testing in Kansas did not toll AEDPA’s statute of limitations because it is
merely as request for discovery and not a request for relief from a judgment of sentence.
Woodward v. Cline, 693 F.3d 1289, 1293 (10th Cir. 2012). Finally, although not specifically
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addressing a post-conviction motion for DNA testing, the Second and Ninth Circuit Courts of
Appeals have held that a petitioner’s state-court motion or petition to obtain additional
documents or discovery does not toll AEDPA’s statute of limitations. See Hodge v. Greiner, 269
F.3d 104, 107 (2d Cir. 2001); Ramirez v. Yates, 571 F.3d 993, 999-1000 (9th Cir. 2009)
(following Hodge).
The Fifth Circuit Court of Appeals has reached the opposite conclusion with respect to
Texas’ DNA testing statute. In Hutson v. Quarterman, 508 F.3d 236 (5th Cir. 2007), the Fifth
Circuit held that Texas’ DNA testing statute did constitute an application for collateral review
that tolls AEDPA’s statute of limitations. However, unlike the DNA testing statutes at issue in
Brown, Price and Woodward, the Texas DNA testing statute provides for an automatic judicial
reconsideration of the judgment imposing the applicant’s sentence. Specifically, after granting
DNA testing and examining the results,
the convicting court shall hold a hearing and make a finding as to whether it is
reasonably probable that the person would not have been convicted had the results
been available during the trial of the offense. If the convicting court decides that
the finding is favorable to the convicted person . . . , the court may release the
convicted person on bail . . . .
Hutson, 508 F.3d at 238-39 (internal footnotes omitted). The Fifth Circuit characterized a
number of Texas state court opinions as equating “the Texas statute providing for postconviction DNA proceedings with habeas corpus proceedings in that both make a collateral
inquiry into the validity of the conviction.” Id. at 239 (internal quotation and footnote omitted).
Unlike Texas, but similar to Florida, Illinois and Kansas, a motion for post-conviction
DNA testing in Pennsylvania does not provide for an automatic judicial reconsideration of the
judgment imposing the applicant’s sentence, or for immediate release, but rather entitles an
applicant only to discovery that can then be used to support a subsequently filed PCRA petition.
14
As such, Petitioner’s two motions for DNA testing did not toll any portion of his one-year statute
of limitations under section 2244(d)(2).
In an effort to excuse the untimely filing of his Habeas Petition, Petitioner argues that he
is actually innocent of shooting and killing his grandfather. See (ECF No. 15-6.) In this regard,
the Supreme Court has held that a credible showing of actual innocence can overcome AEDPA’s
one-year statute of limitations for filing habeas petition. McQuiggin v. Perkins, 569 U.S. 383,
392, 397 (2013). “This rule, or fundamental miscarriage of justice exception, is grounded in the
‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the
incarceration of innocence persons.” Herrera v. Collins, 506 U.S. 390, 404 (1993). However, to
invoke this exception, the Supreme Court has stressed that a petitioner “must show that it is more
likely than not that no reasonable juror would have convicted him in the light of [ ] new
evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). It
further stressed the demanding nature of this standard by stating that “[t]hey gateway should
open only when a petition presents ‘evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the trial was free of
nonharmless constitutional error.’” Id. at 401 (quoting Schlup, 513 U.S. at 316)).
The evidence to which Petitioner points that purportedly supports his innocence is neither
new nor exculpatory. Instead, Petitioner simply challenges the presentation and characterization
of the DNA evidence that was presented at his trial and relies on the lack of direct evidence that
would establish his guilt. This does not demonstrate a credible claim of innocence under the
governing standard, and thus the “actual innocence” exception to the limitations period is not
applicable. See Bousley v. United States, 523 U.S. 614, 623 (1998) (actual innocence means
factual innocence, not mere legal insufficiency).
15
Finally, Petitioner suggests that he should be granted “equitable tolling” because he
pursued his rights diligently and was prevented from filing a timely habeas petition because he
had to file a second PCRA petition in order to “address an issue that was left out of his 1st PCRA
due to [g]overnment [i]nterference . . . .” (ECF No. 15-6, p.2.) The alleged governmental
interference referenced by Petitioner apparently relates to Judge Todd’s recharacterization of the
motion Petitioner filed on December 5, 2012 to be a PCRA petition. Petitioner maintains that
had he been given the appropriate time to research and file a developed PCRA petition, which he
states that he specifically requested if the court were to characterize his motion as a PCRA
petition, then he would have been able to present a claim regarding a Miranda violation (claim
two in the instant Habeas Petition) that he claims he ultimately had to raise in a second PCRA
petition because of Judge Todd’s “hasty interference” with his first PCRA proceedings and
because his initial PCRA counsel, Attorney Pass, failed to present certain claims that Petitioner
requested he present. He states that the instant Habeas Petition was untimely filed because he
had to file that second PCRA petition. See (ECF No. 12-8, pp.1-6.)
Despite the fact that Judge Todd found no merit to Petitioner’s complaints about Attorney
Pass failing to present certain claims that Petitioner allegedly requested he present, see (ECF No.
12-8, p.12-13), the circumstances described by Petitioner do not rise to the level of
“extraordinary” that would justify granting equitable tolling. See Holland v. Florida, 560 U.S.
631, 649 (2010). As such, the Habeas Petition will be dismissed as untimely. However, out of
an abundance of caution, the Court will proceed to review Petitioner’s three claims as if they
were not time-barred.
16
E. AEDPA Standard of Review
Pursuant to the AEDPA, a federal habeas court may overturn a state court’s resolution of
the merits of a constitutional issue only if the state court decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal
law,” as the term is used in section 2254(d)(1) is restricted “to the holdings, as opposed to the
dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000).
If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court
decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de
novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent
Graterford SCI, 677 F. App’x 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S.
930, 953 (2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[,] [a] federal
court must then resolve the claim without the deference AEDPA otherwise requires.”). Indeed,
the Third Circuit recently explained that,
[w]hile a determination that a state court’s analysis is contrary to or an
unreasonable application of clearly established federal law is necessary to grant
habeas relief, it is not alone sufficient. That is because, despite applying an
improper analysis, the state court still may have reached the correct result, and a
federal court can only grant the Great Writ if it is “firmly convinced that a federal
constitutional right has been violated,” Williams, 529 U.S. at 389, 120 S.Ct. 1495.
See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301
(2002) (“[w]hile it is of course a necessary prerequisite to federal habeas relief
that a prisoner satisfy the AEDPA standard of review . . . none of our postAEDPA cases have suggested that a writ of habeas corpus should automatically
issue if a prisoner satisfies the AEDPA standard”). Thus, when a federal court
reviewing a habeas petition concludes that the state court analyzed the petitioner’s
claim in a manner that contravenes clearly established federal law, it then must
proceed to review the merits of the claim de novo to evaluate if a constitutional
17
violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182
L.Ed.2d 398 (2012).
Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote
omitted).
The AEDPA further provides for relief if an adjudication “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). Under § 2254(d)(2), a state court decision is
based on an “unreasonable determination of the facts” if the state court’s factual findings are
“objectively unreasonable in light of the evidence presented in the state-court proceeding,”
which requires review of whether there was sufficient evidence to support the state court’s
factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Within this overarching
standard, a petitioner may attack specific factual determinations that were made by the state
court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play,
instructing that the state court’s determination must be afforded a presumption of correctness that
the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d
210, 235 (3d Cir. 2004).
F.
Discussion
1. Claim 1: Ineffective Assistance of Counsel
Petitioner’s first claim involves allegations of ineffective assistance of counsel. As it is
phrased in his Habeas Petition, Petitioner claims that he was denied the effective assistance of
counsel “when counsel exaggerated/falsified facts concerning DNA Evidence in a way that only
hurt the defense, Counsel allowed The Commonwealth to exaggerate and falsify facts without
objection and took no measure to ensure that important evidence was properly represented[.]”
18
(ECF No. 15, p.6.) In discussing this claim, Petitioner maintains that his attorney for his
preliminary hearing, James Ecker, was ineffective for “failing to investigate” and “understand
the facts and law” regarding the stain/DNA sample that was recovered from Petitioner’s boot and
that had he done so his case would not have been bound over for trial. Id. at p.10. Petitioner
also maintains that his trial counsel, Robert Foreman, was ineffective for failing to understand
the same “facts and law” and as a result he failed to ensure that the DNA evidence was “properly
represented and not exaggerated” at trial. Id. He further maintains that his direct appeal counsel,
Thomas Farrell, was ineffective for failing to raise a claim regarding Attorney Foreman’s
ineffectiveness and that his PCRA counsel, Charles Pass III, was ineffective for failing to raise
claims challenging the effectiveness of both Attorney Farrell and Attorney Foreman. Id. at p.14.
Finally, he maintains that Judge Todd erred and abused his discretion by ruling that the DNA
sample on Petitioner’s boot was correctly identified as blood from the victim. Id.
The “facts and law” that Petitioner states his counsel failed to understand, and which
form the basis of his claims of ineffectiveness, appear to be based on the admissibility and/or
weight to be afforded to phenolphthalein test results, presumptive evidence of the presence of
blood. While Petitioner raised numerous ineffective assistance of counsel claims in his postconviction proceedings, the factual basis of this particular claim, however, was never raised in
those proceedings. For purposes of the exhaustion requirement in 28 U.S.C. § 2254(b)(1),
“[b]oth the legal theory and the facts on which a federal claim rests must have been presented to
the state courts.” Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986) (citing Picard v.
Connor, 404 U.S. 270, 275 (1971)). “This requires that the claim brought in federal court be the
substantial equivalent of that presented to the state court.” Id. Since Petitioner did not give the
state court an opportunity to act on this claim before he raised it in his Habeas Petition, it is
19
unexhausted before this Court. See O’Sullivan v. Boerckel, 526 U.S. 842 (1999) (“Before a
federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies
in state court. In other words, the state prisoner must give the state courts an opportunity to act
on his claims before he presents those claims to a federal court in a habeas petition.”)
Furthermore, this claim is also procedurally defaulted since it is now barred by the statute
of limitations contained in the PCRA, 42 Pa. C.S.A. § 9545(b). See Rolan v. Coleman, 680 F.3d
317 (3d Cir. 2012) (“Procedural default occurs when a claim has not been fairly presented to the
state courts . . . and there is no additional state remedies available to pursue . . . or, when an issue
is properly asserted in the state system but not addressed on the merits because of an independent
and adequate state procedural rule . . . .).
Nevertheless, a petitioner whose constitutional claims have not been addressed on the
merits due to procedural default can overcome the default, thereby allowing federal court review,
if he or she can demonstrate either: (1) “cause” for the default and “actual prejudice” as a result
of the alleged violation of federal law; or (2) that the failure to consider the claim will result in a
“fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Petitioner has demonstrated neither. However, given the allegations of ineffective assistance of
PCRA counsel, it appears that Petitioner may be attempting to take advantage of Martinez v.
Ryan, 132 S. Ct. 1309 (2012), where the Supreme Court held that “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s default of a
claim of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1315. This requires that a
petitioner “demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the claim has some
merit.” Id. at 1318. However, a substantial claim alone is not sufficient to excuse a petitioner’s
20
procedural default. The Supreme Court held that state post-conviction counsel must also be
“ineffective under the standards of Strickland v. Washington” to excuse the procedural default of
the underlying claim. Martinez, 132 S. Ct. at 1318. In sum, if a petitioner “shows that his
underlying ineffective-assistance-of-trial-counsel claim has some merit and that his state postconviction counsel’s performance fell below an objective standard of reasonableness, he has
shown sufficient prejudice from counsel’s ineffective assistance that his procedural default must
be excused under Martinez.” Workman v. Superintendent Albion SCI, 915 F.3d 928, 941 (3d
Cir. 2019).
The following background is relevant to this claim. At trial, it was revealed that there
were six samples of staining identified on Petitioner’s right boot that were tested for the
presumptive presence of blood, only one of which yielded a positive result. (T., p.235.) That
stain was later tested for DNA which revealed a major component profile that matched the
victim’s DNA profile. (T., pp.235-36, 239.) In other words, the sample that tested positive for
the presumptive presence of blood contained Nathaniel Caldwell’s DNA. (T., p.239.) Statistical
analysis performed on that DNA profile showed that Nathaniel Caldwell was 21 quintillion times
more likely than another unrelated black person chosen at random to have been a contributor to
the sample, while the number generated for the Caucasian population was 1 in 43 quintillion, and
in the Hispanic population 1 in 110 quintillion. (T., p.242.) According to Robert Askew, the
Serologist who testified at Petitioner’s trial, confirmatory tests are not performed when a sample
tests positive for the presumptive presence of blood because “the presumptive positive result is
the more conservative of the two tests.” (T., p.232.)
Even though it tested positive under the presumptive test, Petitioner claims that the
sample in question should not have been called “blood” because it was never verified as blood
21
through a confirmatory test, which he claims is required before a sample can be identified as
blood. (ECF No. 15, p.11.) In support of his position, Petitioner relies on a criminal case out of
the District of Hawaii, United States v. Williams, No. 06-79, 2013 WL 4518215 (D. HI, Aug. 26,
2013), where the defendant argued that the “results of phenolphthalein testing on their own,
without confirmatory testing, is inadmissible.” Id., at *8. However, that court ruled that the
defendant’s objection to the admissibility of the evidence was moot because the government did
not intend to introduce evidence of the phenolphthalein testing unless there was further
confirmatory testing performed. Id.
While there is no controlling case law in Pennsylvania, the admissibility of a presumptive
blood test was addressed by the Pennsylvania Superior Court in Commonwealth v. Hetzel, 822
A.2d 747 (Pa. Super. Ct. 2003). In Hetzel, the court stated that
[i]n considering whether presumptive test results such as the phenol test are
admissible, some states hold that the test results satisfy the fundamental
requirements of expert testimony in that they constitute specialized knowledge
that is beyond that of the average layperson and so are helpful to the jury. See
Stenson, supra at 1263 (collecting cases that admit presumptive tests, including
People v. Coleman, 759 P.2d 1260 (1988); State v. Moseley, 445 S.E.2d 906
(1994); Johnston v. State, 497 So.2d 863 (Fla.1986); Graham v. State, 374 So.2d
929 (Ala.Crim.App.1979)). With regard to the possibility that some substance
other than blood may trigger a positive test, courts rely on the fact that the jury
was made aware of such possibilities and the issue then becomes one of weight to
be accorded the evidence, not admissibility. See Stenson, supra, at 1264-65. See
also Commonwealth v. Duguay, 720 N.E.2d 458 (1999) (fact that substances
other than blood can trigger positive result in ortho-tolidine test goes to weight,
not admissibility); State v. Leep, 569 S.E.2d 133 (2002) (limitations on STD test
results do not render it inadmissible; they affect only weight).
Hetzel, 822 A.2d at 762. Acknowledging that some states deem presumptive blood tests like
phenol inadmissible where they form the basis of an expert’s opinion that blood was present, the
Superior Court recognized that the expert gave no such testimony in that case. Id. (citing State v.
Moody, 573 A.2d 716 (1990)). Instead, the expert’s opinion “was not that the water surely
22
contained blood, but rather that it had an indication of blood, a fact confirmed by the
presumptive test she conducted.” Id.
Petitioner states that he is not challenging the admissibility of the presumptive blood test
results but argues that his trial counsel should have highlighted its limitations and not referred to
the sample as blood without it being confirmed as such. (ECF No. 15, p.12.) However, much
like the expert who testified in Hetzel, Mr. Askew also testified that the sample from Petitioner’s
right boot tested positive only for the presumptive presence of blood, which he explained was the
result of a “very simple chemical test which takes advantages of the oxidation of blood.” (T.,
p.231.) He did not testify that the stain was, in fact, blood, and explained that “[a]ny reaction
can produce that oxygen and produce a highly oxidated material and can yield a positive result.
That is why this is a presumptive test.” (T., pp.231-32.) Therefore, like Hetzel, the jury was
made aware that a substance other than blood can trigger a positive result and was not left with
the impression that the test was conclusive for the presence of blood. Furthermore, limitations of
that test and DNA testing were exposed when, on cross-examination, Mr. Askew admitted that
the technology used did not enable him to place an age on the sample that he tested and that
anomalies can occur in chemical processing. (T., pp.244, 246.) This allowed trial counsel to
argue in closing that the stain on Petitioner’s boot could have been an old stain, which would not
be unexpected since Petitioner and the victim lived and worked together. 4 (Closing Arg. T., p.7.)
Accordingly, just as the Superior Court found in Hetzel, the results of the presumptive test in this
case specifically “assisted the trier of fact” and “[a]ny uncertainties went to the weight to be
Although not relevant to the presumptive test, trial counsel also argued that the DNA testing on
the stain was not reliable because one of the loci displayed an allele or human marker which Mr.
Askew testified may have been the result of “the presence of DNA from more than one
individual” or “technical artifacts”. (T., pp.246-47); (Closing Arg. T., pp.6-7.)
4
23
accorded to the results,” which trial counsel “aptly brought out on cross-examination.” Hetzel,
822 A.2d at 763.
To undergo a review of whether Petitioner’s claim is “substantial” under the standard
contemplated by Martinez, the Court must look to the law governing ineffective assistance of
counsel claims. The familiar two-prong test for such claims was set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, a habeas petitioner must demonstrate that:
(1) counsel’s representation fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s error, the result would have been different. Id. at
687. For the deficient performance prong, “[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.” Id. at 688. To establish
prejudice, “[t]he 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. With respect to the sequence of the two prongs, the Strickland Court held that “a court need
not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies . . . . If 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.
Under the standards enunciated by the Supreme Court in Strickland, trial counsel was not
ineffective in the manner Petitioner describes with regard to the sample recovered from his boot,
nor were any subsequent counsel ineffective in failing to challenge trial counsel’s handling of
said sample at trial, including the DNA evidence derived therefrom. To the extent Petitioner
24
specifically challenges the reference of the sample as “blood” by his trial counsel, 5 the
Commonwealth and Judge Todd, he suffered no prejudice since it was made clear to the jury that
the sample tested positive only for the presence of blood and that other substances can also
produce a positive result. Most importantly, however, Petitioner was not prejudiced because the
potential absence of blood did not preclude the fact that the victim’s DNA was a major
contributor to the sample. Therefore, the Court finds that Petitioner’s claim is not “substantial”
as that term has been defined by the Supreme Court. 6
Also, a part of this claim is an argument Petitioner makes involving the ineffectiveness of
his counsel at his preliminary hearing presumably for not properly challenging the stain found on
Petitioner’s boot that was alleged to be the victim’s blood. Petitioner maintains that the blood
found on his boot was the sole reason the magistrate held the case over for trial and that had his
attorney for his preliminary hearing made the same arguments Petitioner claims that his trial
counsel should have made, mainly that the sample could not be referred to as blood because no
While there were times throughout the trial that the sample was referred to as “blood,” trial
counsel took pains in his closing argument to highlight the fact that it was merely a stain, even
referring to it as a “material” and “biological fluid”. (Closing Arg. T., p.7.) Furthermore, it was
the defense’s position that even if it was blood, it was an old stain, and it had the DNA of both
Petitioner and the victim because they lived and worked together. Id. This was not an
unreasonable trial strategy.
5
The case on which the Supreme Court based its description of what a “substantial claim” entails
concerns the standards for issuing a certificate of appealability. Martinez, 132 S. Ct. at 1318-19
(citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). In order for a petitioner to demonstrate that
his claim has “some merit” under this standard, he must “show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 336 (internal citation, quotation marks and alteration omitted).
By relying on this standard, the Supreme Court implied that the underlying ineffective assistance
of trial counsel claim must be evaluated under a standard less exacting than Strickland prejudice.
Workman, 915 F.3d at 939.
6
25
confirmatory testing had been performed, then there would not have been enough evidence to
establish a prima facie case. For substantially the same reasons noted above with regard to trial
counsel, Petitioner’s ineffective assistance of preliminary hearing counsel is also not a
“substantial” claim.
In sum, Petitioner has failed to overcome the procedural default of claim one. Therefore,
even though the Habeas Petition is time-barred, this claim is denied in the alternative.
2. Claim Two: Ineffective Assistance of Counsel
Petitioner’s second claim involves allegations of ineffective assistance of counsel
regarding his counsels’ failure to seek suppression of any and all evidence obtained as a result of
custodial interrogations that took place without him first being read his Miranda 7 warnings. In
support of this claim, Petitioner refers to the testimony of Detective Satler at the preliminary
hearing on April 27, 2007. Specifically, Detective Satler testified on cross-examination as
follows:
Q:
A:
No.
Q:
By video or audio or anything else?
A:
No.
Q:
Did you read Miranda Rights?
A:
No.
Q:
So anything he told you was -- he was not Mirandized, is that correct?
A:
7
Let me ask you this. Did you record or take his statements?
That’s correct.
Miranda v. Arizona, 382 U.S. 436 (1966)
26
(Prelim. Hear. T., p.33-34.)
The first time Petitioner presented this claim to the state courts was in what the court
considered his second PCRA petition that he filed on September 19, 2014. That petition was
dismissed as untimely under the PCRA statute of limitations, but Judge Todd nevertheless
explained that Detective Satler’s interview with Petitioner was not a custodial interrogation that
required him to be given Miranda warnings. This was because Petitioner was not in custody and
he voluntarily consented to speak to Detective Satler. Also, Petitioner was not arrested and was
taken home after the interview. In response to the court’s notice of intent to dismiss the second
PCRA petition as time-barred, Petitioner alleged that the claim should be considered timely
because he repeatedly informed Attorney Pass, his PCRA counsel, that he wanted to raise the
Miranda issue but his counsel did not raise it. Judge Todd, however, did not credit Petitioner’s
objections, specifically noting that Petitioner did not raise the claim on appeal from the dismissal
of his first PCRA petition even though he raised 18 issues for review by the Superior Court.
Judge Todd also noted that while Petitioner did request his PCRA counsel to raise various issues,
all those issues were addressed in counsel’s Brief in Support of his Motion to Withdraw under
Turner/Finley and none involved trial counsel’s failure to seek suppression of evidence due to a
Miranda violation. See (ECF No. 12-8, pp.7-13.) On appeal, the Superior Court affirmed the
dismissal of the second PCRA petition as untimely. (ECF No. 13-5, pp.1-4.)
Like claim one, this claim is also procedurally defaulted. Although Petitioner did present
this claim to the state courts, he did not do so in a timely filed PCRA petition and a federal court
ordinarily may not review a claim on the merits if the state court’s denial of relief is based on a
state procedural rule that rests on a state law ground that is independent of the federal question
and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). The
27
Supreme Court has explained that state procedural rules are “independent” if they do not depend
for their resolution on answering any federal constitutional question, see, e.g., Ake v. Oklahoma,
470 U.S. 68, 75 (1985), and they are inadequate if they are not “firmly established and regularly
followed,” Ford v. Georgia, 498 U.S. 411, 424 (1991), or if they are “novel [ ]” and
unforeseeable. NAACP v. Alabama es rel. Patterson, 357 U.S. 449, 457 (1958); see also Ford,
498 U.S. at 424. A state procedural ground for denying a PCRA claim in Pennsylvania includes
the PCRA’s timeliness requirement, 42 Pa. C.S. § 9545(b), which requires that a petitioner file
his PCRA petition within one-year of his conviction becoming final. This statutory law is
“independent” of federal law, and since at the time Petitioner filed his PCRA petition
Pennsylvania courts consistently and regularly denied review of claims when not filed within the
time proscribed by § 9545(b), it was also “adequate”. See Commonwealth v. Murray, 753 A.2d
201, 203 (Pa. 2000) (time requirement for filing PCRA petition is mandatory and jurisdictional
in nature), abrogated on other grounds by Commonwealth v. Brown, 943 A.2d 264 (Pa. 2008).
Once again, Petitioner can overcome this procedural default if he can demonstrate cause
and prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750, but,
recognizing that the claim is defaulted, he again appears to rely on Martinez, contending that it
was the ineffectiveness of his PCRA counsel, Attorney Pass, that caused the default of this claim.
(ECF No. 15, pp.16-17.) He claims that Attorney Pass never met or spoke with him in person
and only wrote two letters to him even after he allegedly informed Pass that he had additional
issues that he wanted to present. (ECF No. 15, p.17.) The PCRA court, however, found no merit
to these allegations and pointed out that Petitioner himself raised 18 issues for review in his
PCRA appeal, which he filed pro se, and none of the issues presented related to counsel’s
ineffectiveness for failing to seek suppression of evidence because of the purported Miranda
28
violation. Notwithstanding the fact that Petitioner’s allegations against Attorney Pass appear to
be unsupported by the record, Petitioner has not demonstrated that this claim is “substantial” as
that term is defined in Martinez and he therefore cannot overcome its default.
Pursuant to Miranda, statements made by a defendant during a custodial interrogation
must be suppressed unless the defendant was provided certain warnings and voluntarily,
knowingly, and intelligently waived his or her right to have an attorney present during the
interrogation. 384 U.S. at 475. The Supreme Court has emphasized that whether a suspect is “in
custody” is an objective inquiry.
Two discrete inquiries are essential to the determination: first, what were the
circumstances surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he or she was at liberty to
terminate the interrogation and leave. Once the scene is set and the players’ lines
and actions are reconstructed, the court must apply an objective test to resolve the
ultimate inquiry: was there a formal arrest or restraint on freedom of movement
of the degree associated with formal arrest.
Thomas v. Keohane, 516 U.S. 99, 112 (1995) (internal quotation marks, alteration, and footnote
omitted). Courts undertaking this inquiry must “examine all of the circumstances surrounding
the interrogation,” including any circumstances that “would have affected how a reasonable
person” in the suspect’s position “would perceive his or her freedom to leave.” Stansbury v.
California, 511 U.S. 318, 322, 325 (1994). The “subjective views harbored by either the
interrogating officers or the person being questioned” are irrelevant. Id. at 323. In other words,
the test involves no consideration of the “actual mindset” of the particular suspect subjected to
police questioning. Yarborough v. Alvarado, 541 U.S. 652, 668 (2004). Ultimately, however,
the determinative question is whether the person was subject to “‘a formal arrest or restraint on
freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463
U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).
29
The circumstances of Petitioner’s interview with police following the murder were
detailed by Detective George Satler who testified at trial that about an hour after he arrived on
scene, Petitioner agreed to be transported to police headquarters for an interview. (T., pp.15758.) He said that his interview with Petitioner began at approximately 7:45 p.m and was
conducted in an eight by eight room in the homicide office. (T., pp.157-58.) When asked what
his interview consisted of, he testified that it was “to get some background information and find
out his relationship with the victim.” (T., p.159.) This included finding out how long Petitioner
had lived with his grandfather and where he lived in the residence, and that information was
relayed back to detectives who were processing the scene in order to assist in locating items and
make sure they didn’t overlook anything during the initial investigation. (T., p.159.) He testified
that the interview lasted about three to three-and-a-half hours during which time Petitioner was
very cooperative and provided verbal and written consent to the collection of his DNA as well as
his clothing and boots. (T., p.180.) He also consented to a gunshot residue kit in order to
determine if he had recently fired a weapon. (T., pp.180-81.) Detective Satler testified that the
interview with Petitioner was neither tape nor video recorded and that he did not prepare a report
until after Petitioner had been taken home. (T., p.182.)
Following his interview with Detective Satler, Petitioner was interviewed by Detective
Kimberly Braddick at approximately 10:45 p.m. (T., p.195.) Detective Braddick testified that
before the interview with Petitioner, she read him his rights from the Miranda form at which time
he agreed to speak to her. (T., p.195.) The interview lasted for about an hour to an hour-and-ahalf after which she and another detective drove Petitioner home. (T., pp.199, 201.)
Although the PCRA court did not rule on the merits of Petitioner’s claim that his counsel
was ineffective for failing to seek suppression of evidence due to the purported Miranda
30
violation, the court did note that the interview with Detective Satler was not a custodial
interrogation and that Petitioner was in fact read his Miranda rights before his interview with
Detective Braddick. Petitioner, however, disagrees with the court’s findings.
In his Habeas Petition, Petitioner states that the “interrogations conducted by Detective
George Salter [sic] and Kimberly Braddick were not done voluntarily,” that he was not free to
leave because his belongings and cellphone had been seized, and that Detective Braddick never
administered Miranda warnings despite her testimony that she did. (ECF No. 15, pp.18-19, 21.)
He also states that when he asked to be transported to the hospital to check on the victim,
Detective Satler told him that he could not leave because he was under arrest and the only way
he would consider letting him go was if he could “pass his tests.” (ECF No. 15, p.23.)
According to Petitioner, this included turning over his clothes and boots and allowing them to
collect his DNA and do a gunshot residue kit test. (ECF No. 15, pp.23-24.) Petitioner states that
after he complied, Detective Satler still would not let him leave because Petitioner had “failed his
tests” and was still under arrest. (ECF No. 15, p.24.) He then told Petitioner that he would let
him go only if he passed a polygraph test. (ECF No. 15, p.24.)
Petitioner also maintains that Detective Satler never read or advised him of his rights
before he consented to the search and seizure of his clothing and DNA and performance of the
gunshot residue kit test and that it was Detective Satler, and not him, that checked the box on the
consent to search and seizure form that read, “Do you understand each of these rights that have
been explained to you?”. (ECF No. 15, pp.24-25.) Petitioner claims that he signed his name on
the form only because he “was under the impression [he] had to meet all of Detective Salter’s
[sic] demands in order to be released.” (ECF No. 15, p.25.) Petitioner maintains that had his
attorneys, which includes counsel for his preliminary hearing through counsel for his PCRA
31
proceedings, sought to suppress the statements and evidence obtained from his interviews with
Detectives Satler and Braddick, the case would never have gone to trial and/or the outcome of
the proceedings would have been different. (ECF No. 15, pp.26-28.)
There is nothing in the state court record supporting the allegations made in Petitioner’s
Habeas Petition against Detectives Satler and Braddick. In fact, as far as the Court can tell, this
is the first time that Petitioner has alleged that Detective Satler told him that he would not let him
leave because he was under arrest. Furthermore, there is nothing to support Petitioner’s
statement that the claim is defaulted due to the fault of PCRA counsel because he only requested
that his PCRA counsel raise his “most meritorious issues” and not this specific Miranda violation
issue. 8 Moreover, Petitioner himself did not include this claim on appeal from the PCRA that he
filed pro se and in which he raised 18 issues for review. Most importantly, however, Petitioner
was not subjected to a custodial interrogation. He was taken home following his interview with
detectives and was not arrested until approximately six weeks later. As such, there was no basis
for any of his attorneys to seek suppression of his statements made to Detectives Satler and
Braddick or the evidence seized from him that day, and thus, counsel could not have been
deemed ineffective. Therefore, this claim is not a substantial claim for which procedural default
could be excused under Martinez, and in addition to being time-barred, it is not subject to review
because of the procedural default.
3. Claim three: Sufficiency of the Evidence
Petitioner’s final claim is a challenge to the sufficiency of the evidence, specifically
because 1) there was no eyewitness to the murder, 2) no one suggesting that he committed it, and
8
See Resp’t Exh. 47, ECF No. 12-5, p.41.
32
3) no physical or forensic evidence linking him to the actual shooting of the victim. (ECF No.
15, p.29.) Petitioner raised this claim on direct appeal, and it was adjudicated on the merits. As
such, it is deemed exhausted for purposes of federal habeas review, and the inquiry before this
Court is whether the Superior Court’s adjudication of this claim was contrary to, or involved an
unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).
The clearly established federal law to analyze a sufficiency of the evidence claim is set
forth in Jackson v. Virginia, 443 U.S. 307, 324 (1979), where the United States Supreme Court
held that “in a challenge to a state conviction brought under 28 U.S.C. § 2254 . . . the applicant is
entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.” In a federal
habeas corpus proceeding where the sufficiency of the evidence is in contention:
[T]he critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction . . . does not require a court to ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt . . . .
Instead, the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Jackson, 443 U.S. at 318-19 (internal citations omitted) (emphasis in original). See also
Robertson v. Klem, 580 F.3d 159, 165 (3d Cir. 2009); Orban v. Vaughn, 123 F.3d 727, 731-33
(3d Cir. 1997).
In applying the Jackson standard, the reviewing court must consider each substantive
element of the criminal offense at issue as defined under state law. Coleman v. Jackson, 132 S.
Ct. 2060, 2064 (2012); Jackson, 443 U.S. at 324, n.16. “While the elements of a criminal
conviction are to be defined by state law, a reviewing court’s determination of whether sufficient
33
evidence was produced to satisfy each element is governed by federal law. Vaughter v. Folino,
2014 WL 1152540, at *15 (E.D. Pa. Mar. 24, 2014) (citing Coleman, 132 S. Ct. at 2064).
a. “Contrary to”
In this case, both the trial judge (in his Pa. R.A.P. 1925(a) Opinion) and the Pennsylvania
Superior Court applied a well-known Pennsylvania test for evaluating a challenge to the
sufficiency of the evidence set forth by the Pennsylvania Superior Court in previous decisions.
See (Resp’t Ex. 11, ECF No. 10-3, p.9) (citing Commonwealth v. McNair, 603 A.2d 1014 (Pa.
1992). See also (Resp’t Ex. 15, ECF No. 10-7, pp.4-5) (citing Commonwealth v. O’Brien, 939
A.2d 912, 913 (Pa. Super. Ct. 2007). While neither state court cited to Jackson, the Third Circuit
has found that the Pennsylvania test for sufficiency of the evidence challenges is identical to the
federal standard set forth in Jackson. See Evans v. Court of Common Pleas, Delaware County,
959 F.2d 1227, 1233 (3d Cir. 1992) (“the formulation of the Pennsylvania test for insufficiency
of the evidence is almost identical to that under federal law”). As such, the adjudication of this
claim by the Pennsylvania Superior Court was not contrary to clearly established federal law.
b. “Unreasonable application of”
The Court’s next inquiry is whether the adjudication of Petitioner’s sufficiency of the
evidence claim was an unreasonable application of Jackson. The Supreme Court has said that
under the “unreasonable application” clause of 28 U.S.C. § 2254(d)(1), “a federal habeas court
may not grant relief simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411. The Supreme
Court later expanded on this interpretation of the “unreasonable application” clause explaining
that the state court’s decision must be “objectively unreasonable,” not merely wrong; even “clear
34
error” will not suffice. Locklyer v. Andrade, 538 U.S. 63, 75 (2003). “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.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
To have been entitled to relief on this claim in his direct appeal, Petitioner had to show
that the evidence, viewed in the light most favorable to the Commonwealth, was insufficient to
enable a fact-finder to find beyond a reasonable doubt that he was the individual who killed the
victim and that he had the specific intent to do so. The Superior Court, as required, identified the
elements of first-degree murder and quoted the applicable statutory language defining an
“intentional killing.” (Resp’t Ex. 15, ECF No. 10-7, pp.8-9).
Petitioner argued that the evidence was insufficient to prove that he was the murderer of
his grandfather. In his Pa. R.A.P. 1925(a) Opinion, Judge Todd explained why he believed there
was sufficient evidence to support the verdict against Petitioner. He summarized the evidence
presented by the Commonwealth as follows:
. . . . The jury was presented with evidence which established that the
night before the murder Defendant and the victim had an argument or
confrontation during which Defendant was told he was being forced to leave the
home he had lived in for approximately two years without an apparent alternative
place to live. Defendant told the police that this did not upset him but he was
apparently concerned enough about being forced to leave that Defendant placed a
call to 911 and the Zone 5 police station shortly after 4:00 p.m. from the residence
on the day of the murder to see if, in fact, his grandfather could legally force him
to leave the house and Defendant was told he could. The victim’s daughter then
found the victim dead in the home shortly before 5:00 p.m., less than an hour
later. At approximately the same time a neighbor heard a banging noise near the
rear of the apartment building and saw Defendant running from the rear of the
building to the front of the building. The neighbor testified that his occurred
approximately forty-five minutes before the police appeared. The police and
paramedics were dispatched at 5:05 p.m., arriving within minutes and the victim
35
was pronounced dead at 5:08 p.m. There was still the smell of gunpowder in the
air and an examination showed that the body was still warm and that rigor had not
set in. A liver core body temperature taken by the coroner’s office approximately
two hours later placed the time of death two to four hours earlier, which included
the period from 4:00 p.m. to 5:00 p.m. The time line suggested by this evidence
would certainly allow the jury to find that the victim was shot between the time
that Defendant placed the phone call to 911 and the Zone 5 police station from the
residence shortly after 4:00 p.m. and when the victim was found dead at 5:00 p.m.
This evidence not only placed Defendant in the home at approximately that time
but Defendant was also seen by a neighbor running from the rear of the house, the
area where the murder weapon was found and where the basement door was
partially kicked in.
The jury could also find that although the rear door was partially kicked
in, it was not opened wide enough to allow an intruder to actually enter, due to the
ladder blocking the door. In addition, the basement showed no other signs of an
intruder walking through it, such as footprints left in the dust on the floor. There
were no other signs of forced entry elsewhere in the residence and, therefore, the
jury could conclude that the murderer was someone, such as the Defendant, who
had unrestricted access to the apartment and only kicked the door in to create the
appearance of a break in. The evidence also showed that neither the victim’s nor
his wife’s apartment had been ransacked and nothing appeared to be missing. The
victim’s wallet and some coins were left untouched in the room in which he was
found. The victim was killed by his own gun, which Defendant acknowledged he
knew was kept in the house. In addition, a stain of the victim’s blood was found
on Defendant’s shoe. The jury could also consider Defendant’s apparent
knowledge that his grandfather had been shot in the head, when there was no
evidence that Defendant had been in the apartment after the shooting to observe
the wound or had been informed by anyone of the nature of his grandfather’s fatal
wound.
The jury could reasonably find, based on the evidence adduced at trial,
that Defendant became angry and upset that his grandfather was forcing him to
move from the house. When Defendant learned during his phone calls to 911 and
the Zone 5 police station shortly after 4:00 p.m. that his grandfather could legally
force him to leave, he then retrieved his grandfather’s gun and shot and killed
him. The jury could also find that Defendant then attempted to make it appear
that an intruder had entered the apartment by attempting to kick in the basement
door. Defendant was seen by the neighbor coming from the rear of the house at
the time that the neighbor heard the door being kicked in. Other evidence
supported a finding that another intruder had not entered the house and items left
appeared to indicate that a theft had not occurred. Finally, the evidence of a blood
stain on Defendant’s shoe buttresses an argument that blood from the gunshot
wound landed on Defendant’s boot.
36
****
The jury was free to accept or reject either the Commonwealth’s evidence
or Defendant’s attacks upon this evidence. It is also clear, however, that should
the jury elect to accept the Commonwealth evidence, there was more than
sufficient evidence to support the verdict that it was Defendant that committed the
murder.
(Resp’t Exh. 11, ECF No. 10-3, pp.9-12.) On appeal, the Superior Court referenced thr portion
of Judge Todd’s opinion cited above and concluded that there was amble circumstantial evidence
to support Petitioner’s conviction for first-degree murder. (Resp’t Ex. 15, ECF No. 10-7, pp.912.)
The above analysis shows that in accordance with the proper standard in reviewing a
sufficiency of the evidence claim, the state courts viewed the evidence in the light most favorable
to the Commonwealth, as the verdict winner, and reasonably determined that the evidence was
sufficient to find that Petitioner was the individual who shot and killed the victim. The Superior
Court’s determination was the result of an objectively reasonable application of clearly
established federal law. Accordingly, Petitioner is not entitled to habeas relief on this claim even
if it was not time-barred, nor is he entitled to relief to the extent he argues that he is under 28
U.S.C. § 2254(d)(2).
G.
Certificate of Appealability
A court should issue a certificate of appealability where a petitioner makes a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner meets this
burden by showing that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). A
certificate of appealability will be denied in this case because jurists of reason would not
disagree with the Court’s resolution of Petitioner’s claims or conclude that they are “adequate to
37
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack, 529 U.S. at 484). A separate Order will issue.
Dated: November 5, 2019.
________________________
Lisa Pupo Lenihan
United States Magistrate Judge
Cc:
Keith Caldwell
HP-2240
SCI Dallas
1000 Follies Road
Dallas, PA 18612
Counsel of Record
(via CM/ECF electronic mail)
38
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KEITH CALDWELL,
Petitioner,
v.
LARRY MAHALLY and THE
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 16 – 1848
Magistrate Judge Lisa Pupo Lenihan
ORDER
AND NOW, this 5th day of November, 2019;
IT IS HEREBY ORDERED that the Amended Petition for Writ of Habeas Corpus
(ECF No. 15) is dismissed as untimely and denied in the alternative.
IT IS FURTHER ORDERED that a Certificate of Appealability is denied.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment in favor of
Respondents and mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
_______________________
Lisa Pupo Lenihan
United States Magistrate Judge
39
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