JOHNSON v. MCGINLEY et al
Filing
40
MEMORANDUM OPINION and ORDER overruling Petitioner's Objection and adopting the May 5, 2021 31 Report and Recommendation as the Opinion of the Court as supplemented by this Memorandum Opinion.. Signed by Judge Marilyn J. Horan on 11/4/21 (rtw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LONNELLE M. JOHNSON, JR.,
Petitioner,
v.
THOMAS McGINLEY, et al.,
Respondents.
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Civil Action No. 17-429
MEMORANDUM OPINION and ORDER
Lonnelle M. Johnson, Jr. (Petitioner) has filed an Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, challenging his judgment of sentence following his
conviction for first-degree murder, aggravated assault, carrying a firearm without a license, and
two counts of robbery in the Court of Common Pleas of Allegheny County at CP-02-CR0011414-2009. ECF No. 14. The case was referred to Magistrate Judge Cynthia Reed Eddy in
accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Civil Rules 72.C
and D. Magistrate Judge Eddy issued a Report and Recommendation, ECF No. 31, filed May 5,
2021, recommending that the Amended Petition for Writ of Habeas Corpus be denied and that a
certificate of appealability be denied. Petitioner sought, and was granted, extensions of time to
file Objections. Petitioner timely filed Objections September 17, 2021. ECF No. 38. .
Petitioner raised twelve claims in his Amended Petition. He objects only to the recommendation
to dismiss Claim Six. As explained below, the Court finds that Petitioner’s Objection does not
undermine the recommendation of the Magistrate Judge.
Discussion
The factual background and procedural background of this case is presented at length in
the Magistrate Judge’s Report and will not be repeated here. ECF No. 31, at 2-7. The
Magistrate Judge recommended that Claim Six be denied under the deferential Antiterrorism and
Effective Death Penalty Act 1standard of review, finding that Petitioner had not met his burden to
demonstrate that the Superior Court’s disposition of the ineffective assistance of counsel claim
was unreasonable. ECF No. 31, at 11-12.
Claim Six
In Claim Six, which was raised in Mr. Johnson’s first Post-Conviction Relief Act
(PCRA) Petition, he asserted that his counsel was ineffective for failing to investigate and
present Andrew Davis as a witness at trial. As noted by the Magistrate Judge, the PCRA Court,
in its Memorandum Opinion filed 8/11/2015, denied Claim Six on the merits, which was then
affirmed by the Superior Court of Pennsylvania. The PCRA Court determined that Mr. Johnson
failed to demonstrate that he was prejudiced by trial counsel’s alleged ineffectiveness as Andrew
Davis would not have offered any exculpatory testimony. Moreover, the PCRA Court pointed
out that trial counsel did interview Andrew Davis and completed a report, which Mr. Johnson
had attached to his pleadings. The investigative report demonstrated that Andrew Davis stated
that he could not identify any of the three individuals on the scene when the victim was shot.
The investigative report specifically reported that, “Andrew Davis stated that he could not
positively identify the black male that shot into the gray vehicle, and or the other two black
males standing by the vehicle.” ECF No. 20-2, at 56. The report indicated that Andrew Davis’s
statement was the same statement he gave the Police. Id. The Superior Court agreed with the
PCRA Court’s analysis and concluded that Mr. Johnson was not entitled to relief on this claim.
In his Objection, Mr. Johnson is now focusing on statements in the defense investigator’s
report, and in the police report, that he argues show that Andrew Davis could have testified,
1
AEDPA, 28 U.S.C. 2254(d).
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consistent with the defense’s trial strategy, that whoever pulled the trigger shot into the vehicle.
The Superior Court was aware of Andrew Davis’s statements and possessed all other necessary
evidence (such as evidence supporting the defense trial strategy) to conclude that Andre Davis
would not have offered any exculpatory testimony.2 The Superior Court’s application of
Strickland v. Washington, 466 U.S. 668 (1984) to Mr. Johnson’s claim that, his counsel was
ineffective for failing to investigate and present Andrew Davis as a witness, was not objectively
unreasonable. Thus, the Magistrate Judge correctly concluded that the Superior Court’s decision
was not “so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fair-minded disagreement.” ECF No. 31, at 28 (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)). Accordingly, Petitioner’s Objection is
overruled.
ORDER
After de novo review of the pleadings and the documents in the case, together with the
Report and Recommendation, the following order is entered:
AND NOW, this 4th day of November 2021,
IT IS HEREBY ORDERED that Petitioner’s Objection to the by Magistrate Judge’s
Report and Recommendation regarding Claim Six of his Amended Petition for Writ of Habeas
Corpus is overruled.
2
Assuming that Andrew Davis would have testified as Mr. Johnson contends, such testimony would have been
cumulative of the physical evidence presented to the jury in support of the defense’s strategy, which Mr. Johnson
summarizes in his Objections. See ECF No. 38, at 16-17.
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IT IS FURTHER ORDERED that the Report and Recommendation, ECF No. 31, filed on
May 5, 2021, by Magistrate Judge Eddy, is adopted as the Opinion of the Court as supplemented
by this Memorandum Opinion. A certificate of appealability is DENIED, as jurists of reason
would not disagree with the analysis of the Report.
IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure, if the Petitioner desires to appeal from this Order he must do so within
thirty days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P.
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H n
Marilyn J. Horan
Horan
United States District Court Judge
cc:
Lonnelle M. Johnson, Jr., pro se
JR-8828
SCI Coal Township
One Kelley Drive
Coal Township, PA 17866-1020
(via U.S. First Class Mail)
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