BOOKER v. CAPOZZA et al
Filing
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MEMORANDUM OPINION indicating that, for reasons more fully stated within, the 1 Petition for Writ of Habeas Corpus filed by FRANK DONTE BOOKER will be denied and a Certificate of Appealability will also be denied. Signed by Chief Magistrate Judge Cynthia Reed Eddy on 07/06/2020. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
FRANK DONTE BOOKER,
Petitioner,
v.
SUPERINTENDENT MARK CAPOZZA,
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA, and THE
DISTRICT ATTORNEY OF
ALLEGHENY COUNTY,
Respondents.
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Civil Action No. 2: 18-cv-0091
Chief United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM OPINION 1
0F
Petitioner, Frank Donte Booker (“Booker”) initiated this action with the filing of a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (ECF No. 1). In
it, he alleges trial court error and ineffective assistance of counsel. For relief, Booker seeks a
new trial. (Id. at 19). For the reasons that follow, the Petition will be denied, as will a certificate
of appealability.
Background
This case arises from the fatal shooting of Clavonne Rollins by Petitioner, Frank Donte
Booker, on May 11, 2012, which occurred inside a car in which Rollins was the driver, Tamira
Scheuermann was the front seat passenger, Darrell Brown was seated behind Scheuermann, and
Booker was seated behind Rollins, with Rollins and Scheuermann’s child in a baby seat between
1
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 final judgment.
(ECF Nos. 6 and 13).
1
the two men in the back seat. The background of this case was aptly summarized by the
Pennsylvania Superior Court in its opinion affirming Booker’s judgment of sentence as follows:
On May 11, 2012, [Rollins] picked up his girlfriend, Tamira Scheuermann, at
work and drove to the Get Go gas station located in Penn Hills where they were to
meet some other people. Rollins was driving and Scheuermann was the front seat
passenger and the one-year-old son that she had with Rollins was in a car seat in
the middle of the back seat. At the Get Go station they met up with James Ingram
whom they knew and Frank Booker, whom they had never met before. Ingram
asked Rollins to give him a ride back to his house so that he could get his phone
charger and he got into Rollins’ vehicle. Since they did not know Booker, they
left him at the Get Go gas station.
Rollins drove Ingram to his house and they agreed to meet a little while later so
all of them could smoke some marijuana. Later that day they met up with Gerald
Brown and they smoked the marijuana. Rollins decided to go back to the Get Go
station and was travelling along Coal Hollow Road when they ran into Ingram
who was leaving his girlfriend’s house who asked them to give Booker a ride and
he would pay for it. They met up with Booker a short time later and he agreed to
pay for the ride to go to Blackadore Street. Booker was seated directly behind
Rollins in the left rear passenger seat. When they approached the intersection of
Blackadore and Ravina, Rollins stopped the car. Scheuermann, who was on the
phone, thought that Booker was going to pay Rollins for the jitney ride since he
was fiddling with something inside of his hoodie. Booker then pulled a silver gun
and put it to Rollins head and told him to “give it up.” When Brown saw the gun,
he opened the right rear passenger door and ran from the car. Rollins attempted to
swat the gun away from Booker and Scheuermann grabbed his wrist in an effort
to get it away from Booker. Rollins then attempted to push Booker toward the
open right rear door when Booker started to fire anywhere between five and six
shots at Rollins. Booker then fled from the scene. The Escalade started to drift
back down Blackadore until it hit another car and came to rest. Rollins then
opened the driver’s door and rolled out of the car and was lying on the ground.
Scheuermann called 911 and requested the police and paramedics who arrived
within ten minutes of that call. It is obvious that Rollins was in critical condition
as a result of the life-threatening wounds that he received. When he was
transported by the paramedics to Presbyterian-University Hospital, he had no
pulse and was subsequently declared dead by the physicians who initially treated
him at the hospital. No weapon was found on Rollins by the paramedics or the
emergency room personnel who attempted to treat Rollins.
In processing the Escalade, two bullet fragments were found, one in the driver’s
door and the other one in the driver’s footwell. It was determined that the bullet
fragments were the same caliber and although they had similar markings, the
criminalist who examined these fragments was unable to determine if they had
2
been fired from the same weapon because one of the fragments was so small.
Brown and Scheuermann were interviewed that evening and told the Allegheny
County Police that Booker was the shooter. The police prepared photo arrays for
both Brown and Scheuermann and both of these individuals identified Booker as
the individual who shot Rollins. An arrest warrant was issued for Booker and
several weeks later, he was arrested in Williamsport, Pennsylvania.
Commonwealth v. Booker, No. 862 WLD 2014, slip op., at 1-3 (Pa. Super. Ct. Oct. 26, 2015)
(quoting Trial Court 1925(b) Opinion, March 2, 2015, pp. 3-5)) (ECF No. 9-1 at 181-83).
Booker was charged by criminal information filed in the Court of Common Pleas of
Allegheny County at CP-02-CR-0008338-2012 with one count of criminal homicide, one count
of robbery – inflicting serious bodily injury, one count of possession of a firearm by a person
prohibited, one count of carrying a firearm without a license, and three counts of recklessly
endangering another person.
Booker’s case proceeded to jury trial from August 20 – 22, 2013, before The Honorable
David R. Cashman. At the start of the trial, the court severed the charge of possession of a
firearm by person prohibited, which was then tried by the bench along with Booker’s remaining
charges. 2
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At the conclusion of the trial, the jury convicted Booker of third degree murder;
carrying a firearm without a license, and three counts of recklessly endangering another. The
jury acquitted Booker of robbery. Judge Cashman convicted Booker of possession of a firearm
by a person prohibited.
On November 26, 2013, Judge Cashman sentenced Booker to an aggregate sentence of
285 months (23.75 years) to 570 months (47.5 years) of incarceration for third degree murder
and possession of a firearm, to be followed by seven years of probation.
2
The severed charge was docketed at CP-02-CR-0011318-2013.
3
Booker, through counsel, filed a series of post-sentence motions. The trial court did not
rule on the motions and on May 7, 2014, the motions were denied by operation of law under
Pennsylvania Rule of Criminal Procedure 720(B)(3)(b). On direct appeal, Booker, through
counsel, raised these two claims:
(i) The trial court erred in failing to instruct the jury on the defense of
justification; and
(ii) The trial court erred in failing to instruct the jury on the lesser-included
offense of manslaughter.
Defendant-Appellant’s Opening Brief (ECF No 9-1 at 118). On October 26, 2015, the Superior
Court found the claims were waived for failure to object as required by Pa.R.Crim.P. 647(C) and
affirmed the judgment of sentence on that basis. The Pennsylvania Supreme Court denied
discretionary review on February 8, 2016. (ECF No. 9-1 at 221).
On March 11, 2016, Booker filed a pro se petition under the Post-Conviction Relief Act
(“PCRA”) claiming that his trial counsel, Elizabeth Delosa, Esquire, was ineffective for failing to
do the following:
(i)
appropriately object to the trial court’s denial to charge the jury on the
defense of justification / self-defense;
(ii)
appropriately object to the trial court’s denial to charge the jury on the
lesser-included offense of manslaughter;
(iii) adequately consult Booker on his right to testify and in giving Booker
unreasonable advice regarding that right; and
(iv)
present Alice Applegate, Ph.D., to testify as an expert on Booker’s
unreasonable belief in using deadly force.
PCRA Petition, at 7 (ECF No. 9-1 at 228). On May 18, 2016, attorney Charles R. Pass III,
Esquire was appointed counsel for Booker.
4
On June 16, 2017, Attorney Pass filed a motion for leave to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. Ct. 1988) (en banc), along with an accompanying fifty-five page no-merit brief.
(ECF No. 9-2 at 9-68).
On July 14, 2016, the trial court issued a notice of intent to dismiss the
PCRA petition without a hearing, to which Booker filed a pro se response. (ECF Nos. 9-2 at 7078). On September 20, 2016, the trial court dismissed the PCRA petition.
On May 3, 2017, acting pro se, Booker appealed the denial of his PCRA petition to the
Superior Court and raised these four issues:
(i) Did the PCRA Court err in rejecting without a hearing Booker’s claim that
the trial counsel was ineffective for failing to lodge a timely and specific
objection to the Court’s refusal to charge the jury on justification / self-defense?
(2) Did the PCRA Court err in rejecting without a hearing Booker’s claim that
the trial counsel was ineffective for failing to lodge a timely and specific
objection to the Court’s refusal to charge the jury on the lesser-included offense
of manslaughter?
(3) Did the PCRA Court err in rejecting without a hearing Booker’s claim that
the trial counsel was ineffective where she failed to provide a full consultation
about Booker’s right to testify, offered unreasonable advice to Petitioner not to
testify, and thereby depriving Booker of his right to testify and the right to a
planned and coherent trial strategy?
(4) Did the PCRA Court err in rejecting without a hearing Petitioner’s claim that
trial counsel was ineffective for failing to present Dr. Alice Applegate, Ph.D., an
expert in forensic psychology, as a witness to support the “unreasonable belief”
facet of the defense?
Booker’s Appellate Brief at 2. (ECF No. 9-2 at 118). On October 12, 2017, the Superior Court
of Pennsylvania affirmed the order denying the PCRA Petition, ECF No. 9-2 at 228-233. No
further appeals were taken.
Having been denied relief in state court, Booker filed in this Court a pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254 raising these six claims:
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(1) Trial court error for refusal to charge the jury on justification/ self-defense;
(2) Trial court error for refusal to charge the jury on voluntary manslaughter;
(3) Ineffective assistance of counsel for failure to object to the lack of jury
instruction as to justification /self-defense;
(4) Ineffective assistance of counsel for failure to object to the lack of jury
instruction as to voluntary manslaughter;
(5) Ineffective assistance of counsel for giving unreasonable advice to Booker not
to testify at trial; and
(6) Ineffective assistance of counsel for failure to call Dr. Alice Applegate to
bolster the claim of self-defense.
Respondents filed an Answer (ECF No. 9), in which they argue (i) that Claims 1 and 2
are procedurally defaulted and, in the alternative, that the claims lack merit; and (ii) that Claims
3-6, inclusive, were denied on the merits by both the PCRA court and the Superior Court and
thus should be denied given AEDPA’s highly deferential standard of review.
In response, Booker filed a Memorandum of Law (ECF No. 10) and a Reply (ECF No.
11). The Court has reviewed the filings of the parties, as well as the state court record, including
the transcripts from the trial (T14-0052), verdict (T14-0367), sentencing hearing (T14-0405), and
post-trial motion hearing on 4/24/2014 (T14-1767).
The Standard for Habeas Relief under 28 U.S.C. § 2254
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
6
significant procedural and substantive limitations on the scope” of the Court’s review. 3
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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 a result, this Court may not grant a writ of
habeas corpus on 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
determination of the facts in light of the evidence presented in the State court proceedings.” 28
U.S.C. § 2254(d)(1) and (2). And 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.”
3
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 Booker’s petition was timely filed.
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Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). When 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)
(finding that review from the Pennsylvania Supreme Court is unavailable, and therefore not
required, to exhaust state court remedies). 4
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2. 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.
4
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 that “in all appeals from criminal convictions or post-conviction 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).
8
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
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)), cert. denied, -- U.S. ---, 139 S. Ct. 1613 (2019). 5 To
4F
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
5
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 v. Superintendent Graterford SCI, 902 F.3d 365,375 n.11
(3d Cir. 2018) (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (internal alteration in
original) (quoting Schlup v. Delo, 514 U.S. 298, 329 (1995)). Booker does not argue that his
defaulted claims should be excused because failure to do so would result in a miscarriage of
justice. Further, the Court concludes that nothing in the record suggests that Booker could meet
the Schlup test. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (explaining that the miscarriage of
justice standard “requires ‘new reliable evidence - whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence - that was not presented at
trial.’”).
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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.
Discussion
1.
Claims One and Two – Trial Court Errors in Refusing to Charge the Jury on
Justifiable Self-Defense and The Lesser-Included Offense of Voluntary
Manslaughter.
Booker raised both these claims to the Pennsylvania Superior Court on direct appeal.
The state appellate court found that the claims were waived for failure to lodge a timely
objection at trial as required by Pennsylvania Rule of Criminal Procedure 647(C) 6 finding that
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“while defense counsel requested that the trial court instruct the jury on the issue of self-defense,
she did not object after the actual instruction did not include this issue. Under Pressley 7 and
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Parker, 8 this failure results in waiver of Booker’s challenges to the jury instructions.” Superior
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Rule 647(C) provides as follows: “No portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections are made thereto before the jury
retires to deliberate. All such objections shall be made beyond the hearing of the jury.”
(emphasis added).
6
7
Commonwealth v. Pressley, 887 A.3d 220 (Pa. 2005). The issue in Pressley, strikingly
similar to the issue here, was whether trial counsel properly preserved an objection to the trial
court's jury instructions. In that case, defense counsel requested an instruction on the record,
which the court declined to give to the jury. Pressley, 87 A.3d at 222. Defense counsel did not
make a specific objection, and the superior court held that under Pa.Crim.R. 647(B) (renumbered as Pa.R.Crim.P. 647(C)), counsel waived any issues regarding jury instructions. Id. On
appeal, defense counsel cited a line of divergent cases in which jury instructions were preserved,
“even in the absence of a specific objection following the charge where . . . points for charge
were timely offered and rejected by the trial court.” Id. at 223. Because of the conflicting case
law, the Pennsylvania Supreme Court allowed appeal to clarify the procedure. Id. The
Pennsylvania Supreme Court held that § 647(C) requires a “specific objection to the [jury]
charge or an exception to the trial court's ruling on a proposed point to preserve an issue
involving a jury instruction.” Id.
8
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014).
10
Court Memorandum, 10/26/15 at 4 (ECF No. 9-1 at 186). Respondents argue that the claims are
procedurally defaulted, and Booker cannot prove cause for the default and prejudice therefrom.
The procedural default doctrine prohibits federal habeas courts from reviewing a state
court decision involving a federal question if the state court declined to rule on the merits of the
claim because it determined that the petitioner did not comply with a state procedural rule, and
that rule is independent of the federal question and adequate to support the judgment. See, e.g.,
Gray v. Netherland, 518 U.S. 152, 162 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991).
A state rule of procedure is “independent” if it does not depend for its resolution on answering
any federal constitutional question. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 75 (1985). That is
the case here, as the Superior Court's decision turned on the application of Pennsylvania Rule of
Criminal Procedure 647(C), which does not rely, in whole or in part, on federal law.
Further, Pennsylvania Rule of Criminal Procedure 647(C) is “adequate” to support the
judgment. A state rule is “adequate” if: (1) the state procedural rule was sufficiently clear at the
time of the default to have put the petitioner on notice of what conduct was required; (2) the state
appellate court reviewing the petitioner's claim refused to review it on the merits because the
petitioner failed to comply with the rule; and (3) the state court's refusal was consistent with
other decisions. Shotts v. Wetzel, 724 F.3d 364, 370 (3d Cir. 2013); Nara v. Frank, 488 F.3d 187,
199 (3d Cir. 2007). See also Beard v. Kindler, 558 U.S. 53, 60 (2009) (discretionary state rules
can be “adequate”); Ford v. Georgia, 498 U.S. 411, 423–24, (1991) (a state procedural rule is
“adequate” if it is “firmly established and regularly followed” at the time that the alleged
procedural default occurred).
Here, Rule 647(C) put counsel on notice of what conduct was required; the Superior
Court refused to review the claims on the merits because counsel failed to comply with the rule;
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and the Superior Court’s refusal was consistent with other decisions. This rule has been
consistently followed in Pennsylvania since 2005, when Pressley was decided by the
Pennsylvania Supreme Court. As a result, Booker’s claims are procedurally defaulted due to an
independent and adequate state procedural rule.
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) failure to consider the claims will result in a “fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750; Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir.
1995). On the record before this Court, there does not appear to be any excuse to overlook the
procedural default of these claims. 9
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Even if the jury instruction claims were not waived, the Court even under de novo
review, finds that the claims are without merit. Although not binding on this Court, the Court
finds the reasoning of the trial court to be persuasive and supported by the record. Trial Court
1925(b) Opinion, 3/2/2015 (ECF No. 9-1, at 99-112). The proposed defense of justifiable selfdefense was premised not upon facts of record but was supposition and the inferences to be
drawn from those suppositions. And similarly, the issue of voluntary manslaughter never arose
since there was insufficient factual basis to establish that Booker killed Rollins in a heated
passion or did so with the unjustifiable belief of a right of self-defense.
For all these reasons, Claims One and Two will be denied.
9
Booker has also raised these claims in his habeas Petition on the basis that his trial
counsel was ineffective for failing to assert a timely objection to the Court’s refusal to charge on
justification and manslaughter. See discussion of Claims Three and Four.
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2.
Ineffective Assistance of Trial Claims – Claims Three through Six, Inclusive.
Booker claims that his trial counsel provided ineffective assistance during the trial phase
of his criminal proceedings. To prevail on these four claims, Booker 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 called the “performance” prong, a petitioner
must show that counsel’s performance fell below an objective standard of reasonableness.” Id. at
688. Under the second prong, often called 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).
Claims Three through Six raised in Booker’s habeas petition were denied on the merits
by the Superior Court on PCRA review. As a result, as explained above, this Court will not be
reviewing the claims de novo and Booker 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, as follows:
Our Supreme Court has stated:
Counsel is presumed effective, and the petitioner bears the burden
of proving otherwise. Commonwealth v. Roney, 622 Pa. 1, 79
A.3d 595, 604 (2013). To prevail on an ineffectiveness claim, the
petitioner must plead and prove, by a preponderance of the
evidence, the Sixth Amendment performance and prejudice
standard set forth in Strickland v. Washington, 466 U.S. 668, 104
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S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This Court has divided the
performance component of Strickland into two sub-parts dealing
with arguable merit and reasonable strategy. Commonwealth v.
Baumhammers, . . . 92 A.3d 708, 719 ([Pa.] 2014). Thus, to
prevail on an ineffectiveness claim, the petitioner must show: that
the underlying legal claim has arguable merit; that counsel had no
reasonable basis for his or her action or omission; and that the
petitioner suffered prejudice as a result. Id. (citing Commonwealth
v. Pierce, 515 Pa. 153, 527 A.2d 973, 975–76 (1987)).
Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014). In other words, to
satisfy his burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and (3) but for counsel’s ineffectiveness, there
is a reasonable probability that the outcome of the challenged proceedings would
have been different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
Failure to satisfy any prong of this test will result in rejection of the petitioner’s
ineffective assistance of counsel claim. Commonwealth v. Jones, 811 A.2d 994,
1002 (Pa. 2002). Therefore, if a petitioner fails to prove by a preponderance of
the evidence any of the prongs, the court need not address the remaining prongs.
Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009), appeal
denied, 990 A.2d 727 (Pa. 2010). Where the underlying claim is meritless, “the
derivative claim of ineffective assistance of counsel for failing to object has no
arguable merit.” Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012). Further,
“counsel cannot be considered ineffective for failing to pursue a meritless claim.”
Commonwealth v. Lopez, 739 A.2d 485, 495 (Pa. 1999), cert. denied, 530 U.S.
1206 (2000).
Superior Court Opinion, 10/12/2017, at pp. 4-5 (ECF No. 9-2 at 231-32).
The Superior Court then added:
Consistent with the foregoing, we have reviewed the record and determined that
the PCRA court did not err in concluding that Appellant’s claims of trial counsel
ineffectiveness did not warrant relief. The PCRA court’s reasoning is supported
by the record and free of legal error. The Honorable David R. Cashman, who sat
as both the trial and PCRA court, has ably addressed Appellant’s four claims,
referencing prevailing precedents, as well as the evidence presented at trial.
Accordingly, we adopt Judge Cashman’s opinion in affirming the order denying
Appellant post-conviction relief.
Id. at 5-6 (ECF No. 9-2 at 232-33).
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a.
Claims Three and Four – Ineffective Assistance of Counsel For Failing to Lodge
a Timely and Specific Objection to the Court’s Refusal to Charge the Jury on
Justification / Self-Defense and For Failing to Lodge a Timely and Specific
Objection to the Court’s Refusal to Charge the Jury on the Lesser-Included
Offense of Manslaughter
The PCRA court addressed these claims by first stating that “[w]ith respect to the
two claims of error regarding the ineffectiveness of Booker’s trial counsel for failure to object to
this Court’s refusal to charge the jury on the defense of justification and on the less-included
offense of manslaughter, the Court’s rationale on why those underlying claims had no merit was
previously set forth in its original Opinion and that rationale has not changed.” PCRA opinion,
2/27/2017 at 9 (ECF No. 9-2 at 97). The PCRA court went on to quote at length its own opinion
from direct appeal in which it concluded that the underlying claims had no merit, id. at 9-18
(ECF No. 9-2 at 97-106) and concluded that “since the underlying claims had no merit, Booker’s
trial counsel could not have been ineffective for failing to object to this Court’s refusal to charge
on his claims.” Id. at 18. (ECF No. 9-2 at 106).
The Superior Court adopted the PCRA
court’s reasoning and conclusion as its own. (ECF No. 9-1 at 228).
After thoroughly reviewing the record, this Court finds that Booker has failed to meet his
burden to overcome AEDPA’s deferential review. The Superior Court adopted the PCRA
court’s finding that,
There was no evidence presented as to the defendant’s state of
mind or what an individual’s state of mind would have been had
they been in the position that Booker fund himself. There was no
evidence to conclude that anyone in the Cadillac Escalade, other
than Booker, had a weapon. There was no evidence of a fight or
altercation between Booker and Rollins nor was there any evidence
which one could reasonably infer that it was then and there
necessary for Booker to use deadly force to repel an attack being
perpetrated against him by his victim. In light of Booker’s failure
to point to evidence from which one could reasonable conclude
that he was in fear of serious bodily injury or death, the claim of
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justifiable defense was rejected and this Court properly refused to
charge on that purported defense.
...
The issue of voluntary manslaughter never arose since there was
insufficient factual basis to establish that Booker killed Rollins in a
heated passion or did so with the unjustifiable belief of a right of
self-defense. This Court charged the jury based upon the facts of
record and limited those issues for its consideration to first-degree
murder, second-degree murder and third-degree murder. As with
Booker’s first claim of error, this current contention has no merit.
Since the underlying claims had no merit, Booker’s trial counsel could not have
been ineffective for failing to object to this Court’s refusal to charge on his
claims.
PCRA Opinion, 2/27/2017 at 6, 18 (ECF No. 9-2 at 104, 106).
The PCRA court and the
Superior Court addressed the claims on their merits claims, and referenced the prevailing
precedents, as well as the evidence presented at trial.
This Court finds that Booker has not demonstrated that the Superior Court’s decision was
contrary to, or involved an unreasonable application of, established Federal law — Strickland —
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, Claims Three and
Four will be denied on the merits.
b.
Claim Five - Ineffective Assistance of Counsel for Failing to Provide a Full
Consultation About Petitioner’s Right to Testify and Offered Unreasonable
Advice to Petitioner Not to Testify
As with Claims Three and Four, the PCRA court thoroughly addressed this issue and
found that “[t]he fallacy of this claim of error is demonstrated by the colloquy that this Court
undertook with Booker with respect to his right to remain silent or to testify, which is contained
in pages two hundred twenty-six through two hundred thirty-two of the trial transcript.” PCRA
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Opinion, 2/27/2017 at 18 (ECF No. 9-2 at 106). The PCRA court proceeded to discuss in detail
the advice Booker was given by the Court during the colloquy. The PCRA court concluded,
It is abundantly clear that Booker understood his right to testify and his
right to remain silent. It is also clear that if in fact his counsel suggested that he
not testify, there was a legitimate reason for him not to testify since his testimony
could have been impeached by his 2000 convictions for burglary, theft by
unlawful taking and theft by deception. In addition, he had a conviction for the
unauthorized use of a motor vehicle in 2010 and in 2011 he had a conviction for
criminal attempt to commit criminal trespass. Booker knew of these convictions
and his counsel was also well aware of them and it would have been a reasonable
strategy to suggest that he not testify since these convictions would be used to
impeach any evidence that he might have attempted to educe (sic) with respect to
his state of mind and belief that he had the defense of justification and also,
whether or not he acted in the heat of passion or an unjustifiable belief of the right
of self defense which would have entitled him to the charge of manslaughter. It is
abundantly clear that Booker was well aware of his right to testify and he, and he
alone, made the decision not testify.
Id. at 20 (ECF No. 9-2 at 108). Again, the Superior Court adopted the reasoning of the PCRA
court finding that “the PCRA court’s reasoning is supported by the record and free of legal
error.” Superior Court Memorandum, 10/12/2017 at 5 (ECF No. 9-2 at 232).
This Court finds that Booker has not demonstrated that the Superior Court’s decision was
contrary to, or involved an unreasonable application of, established Federal law — Strickland —
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
given the evidence presented in the State court proceeding. For these reasons, Claim Five will be
denied on the merits.
c.
Claim Six - Ineffective Assistance of Counsel For Failing to Present Dr. Alice
Applegate, Ph.D, An Expert in Forensic Psychology, As A Witness to Support the
“Unreasonable Belief” Facet of the Defense
As with Booker’s first three claims of ineffectiveness of trial counsel, his final claim also
was thoroughly addressed and rejected on the merits by the PCRA court. After quoting at length
17
the elements necessary to establish the reasonable belief that deadly force is needed to protect
oneself from death or serious bodily injury, as set forth by the Pennsylvania Supreme Court in
Commonwealth v. Rivera, 108 A.3d 779, 791-92 (Pa. 2014), the PCRA court determined as
follows:
There is no need to present expert testimony if a reasonable person
believed that his or her life was in danger or believed that the situation they were
in made it necessary to use deadly force to protect himself or herself. The
problem with this particular contention, however, is that there is no basis for
suggesting that [Booker] had a reasonable belief. Booker did not testify, his state
of mind was never placed at issue, the facts of the case were such that he was the
aggressor, he was the one that had the weapon and he was the one that was
attempting to commit a robbery since he placed a gun at the victim’s head initially
and demanded the victim’s money. What Booker was attempting to do was
establish the facts through a proposed expert since he decided not to testify. It
also should be noted that Dr Applegate did not testify during trial, she testified at
sentencing and not once through her testimony did she ever make reference to an
unjustifiable belief that Booker had in the commission of these crimes. Rather,
she attempted to present mitigating testimony with respect to his sentencing . . . .
It is abundantly clear that this claim of error is not predicated upon a claim
of ineffectiveness but, rather, on Booker’s desire to have that expert testimony
substituted for his own on his state of mind when he knew that his testimony
would not be filled with challenges as a result of his numerous prior convictions.
PCRA Opinion, 2/27/2017 at 22-23 (ECF No. 9-2 at 110-11). Again, the Superior Court adopted
the reasoning of the PCRA court finding that “the PCRA court’s reasoning is supported by the
record and free of legal error.” Superior Court Memorandum, 10/12/2017 at 5 (ECF No. 9-2 at
232).
And as this Court found with his prior three claims, the Court again finds that Booker has
not demonstrated that the Superior Court’s decision was contrary to, or involved an unreasonable
application of, established Federal law, i.e., Strickland, 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
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based on unreasonable determination of the facts given the evidence presented in the State court
proceeding. Thus, Claim Six will be denied on the merits.
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).
When 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 Slater’s claims should be dismissed. For
these reasons, a certificate of appealability will be denied.
Conclusion
For all of the above reasons, the Petition for a Writ of Habeas Corpus will be denied and
a certificate of appealability will also be denied. An appropriate Order follows.
Dated: July 6th, 2020
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge
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cc:
FRANK DONTE BOOKER
LJ8774
48 Overlook Dr.
LaBelle, PA 15450
(via U.S. First Class Mail)
C. Leon Sherman
Allegheny County District Attorney
(via ECF electronic notification)
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