TIGNEY v. WARDEN S.C.I. FAYETTE, et al
Filing
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MEMORANDUM OPINION indicating that, for reasons more fully stated within, the 4 Petition for Writ of Habeas Corpus filed by MAURICE LONZO TIGNEY will be denied and a certificate of appealability will also be denied. Signed by Chief Magistrate Judge Cynthia Reed Eddy on 10/20/2020. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MAURICE LONZO TIGNEY,
Petitioner,
v.
WARDEN S.C.I. FAYETTE, DISTRICT
ATTORNEY OF ALLEGHENY
COUNTY, and THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA,
Respondents.
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Civil Action No. 2: 18-cv-0408
Chief United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM OPINION 1
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Petitioner, Maurice Lonzo Tigney (“Tigney”), a state prisoner presently incarcerated at
the State Correction Institution - Fayette, has filed a pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (“Petition”), challenging the Judgment of Sentence imposed on him
at Criminal Case No. CP-02-CR-0012277-2012, by the Court of Common Pleas of Allegheny
County, on June 14, 2014. (ECF No. 4). For the reasons that follow, the Petition will be denied
because none of the grounds for relief merits the grant of federal habeas relief. Furthermore,
because jurists of reason would not find this disposition of the Petition debatable, a certificate of
appealability will also be denied.
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. 8 and 11).
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Factual and Procedural History
This case arises from the fatal shooting of Gary Hager on August 25, 2012. Tigney was
charged with criminal homicide and criminal conspiracy along with co-defendant Darrell Tigney,
the Petitioner’s father. The facts surrounding Tigney’s underlying conviction are set forth in the
Trial Court’s Opinion of January 5, 2015. (ECF No. 9-2 at 13-15). Between March 18, 2014,
and March 21, 2014, Tigney and his father were tried together before a jury before the Honorable
Beth A. Lazzara. At the conclusion of the trial, Tigney was convicted of third-degree murder
and acquitted of conspiracy. His co-defendant was acquitted of all charges. On June 4, 2014,
Tigney was sentenced to 20 to 40 years of imprisonment. Tigney filed post-sentence motions,
which were denied on August 14, 2014.
Tigney timely filed a direct appeal and on July 8, 2015, the Superior Court of
Pennsylvania affirmed Tigney’s judgment of sentence. Commonwealth v. Tigney, 1500 WDA
2014 (Pa. Super. filed July 8, 215) (unpublished memorandum) (ECF No. 9-4 at 1-5).
After an unsuccessful direct appeal, on January 20, 2016, Tigney filed a pro se petition
under the Post-Conviction Relief Act (“PCRA”). See PCRA Petition (ECF No. 9-4 at 7-18;
Exh.17). On January 26, 2016, Judge Lazzaro appointed Scott Coffey, Esquire, to represent
Tigney during the PCRA proceedings. (Id. at 24; Exh. 18). On April 29, 2016, Attorney Coffey
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 no-merit brief. (Id. at 25-38). On May 5, 2016, Judge Lazzaro issued a Notice
of Intent to Dismiss (id. at 41-42; Exh. 20), to which Tigney filed a pro se response on August
11, 2016. (Id. at 43-53; Exh. 21). The PCRA Court dismissed the PCRA petition on December
13, 2016. (ECF No. 9-5 at 1-2; Exh. 22).
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On or about January 6, 2017, Tigney filed a pro se Notice of Appeal from the dismissal
of his PCRA petition to the Superior Court raising four questions for review attacking the
discretionary aspects of his sentence and alleging trial counsel ineffectiveness. See Tigney’s
Appellant Brief (ECF No. 9-5 at 33; Exh. 27). On November 30, 2017, the Superior Court
affirmed the order dismissing the PCRA Petition. (ECF No 9-6 at 49-56; Exh. 29). No further
appeals were taken.
Having been denied relief in state court, Tigney filed in this Court a pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254 raising four claims. Respondents filed an Answer in which
they argue that Claims One and Two should be denied based on AEDPA’s highly deferential
standard of review as both claims were raised on collateral review and denied by the Superior
Court on the merits and that Claims Three and Four should be dismissed because they are
procedurally defaulted and Tigney cannot overcome the procedural default. (ECF No. 9).
In January 2019, the Court granted Tigney’s request to stay the case while he attempted
to retain counsel. (ECF No. 14). In March 2019, Tigney requested the stay be extended while he
finalized negotiations with counsel. (ECF No. 16). His request was granted and the stay extended
until May 31, 2019. (ECF No. 17). Unsuccessful in securing counsel on his own, Tigney filed a
motion for appointment of counsel on August 21, 2019. (ECF No. 19). That request was denied
by the Court and thereafter the stay was lifted and the case reopened.
The Court has reviewed the filings of the parties, as well as the original state court record
that was sent to this Court, which includes the transcripts from the preliminary hearing (T121618), the trial (T-14-1184), and sentencing hearing (T14-1966). The matter is fully briefed and
ripe for disposition.
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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
significant procedural and substantive limitations on the scope” of the Court’s review. 2
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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).
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 Tigney’s petition was timely filed.
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1. Exhaustion of State Remedies
Among AEDPA’s procedural prerequisites is a requirement that the petitioner “has
exhausted the remedies available in the courts of the State” before seeking relief in federal court.
28 U.S.C. § 2254(b); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. §
2254(b)(1)(A)). “The exhaustion requirement is satisfied only if the petitioner can show that he
fairly presented the federal claim at each level of the established state-court system for review.”
Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). 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 v. Boerckel, 526 U.S. 838, 847 (1999).
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). 3
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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).
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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.
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). 4 To
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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)). Tigney 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 Tigney 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,
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demonstrate “cause,” a petitioner must “show that some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477
U.S. 478, 488 (1986). A petitioner satisfies the “prejudice” requirement by establishing that the
trial was “unreliable or . . . fundamentally unfair” because of a violation of federal law.
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The burden lies with a petitioner to demonstrate
circumstances that would serve to excuse a procedural default. See Sweger v. Chesney, 294 F.3d
506, 520 (3d Cir. 2002); see also Coleman, 501 U.S. at 750.
Discussion
Tigney raises four grounds for habeas relief. In Claims One and Two, he challenges trial
counsel’s failure to present mitigated evidence at sentencing and the trial court’s failure to
consider all of the sentencing factors. In Claim Three, Tigney alleges that trial counsel was
ineffective for allowing inflammatory photographs to be shown to the jury. And in Claim Four,
Tigney contends that his due process rights were violated due to counsel’s waiver of Tigney’s
rights to be present during the reading of the final jury instructions and that he was prejudiced by
his attorney’s decision to remove the self-defense instruction from the jury instructions.
Tigney’s ineffective assistance of counsel (“IAC”) claims are grounded in rights
guaranteed under the Sixth Amendment.
Clearly established federal law governing
ineffectiveness claims is set forth in the two-prong test of Strickland v. Washington, 466 U.S.
668 (1984). See Premo v. Moore, 562 U.S. 115, 121 (2011). Under the first prong of Strickland,
often referred to as 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
trustworthy eyewitness accounts, or critical physical evidence - that was not presented at
trial.’”).
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referred to as the “prejudice” prong, a petitioner must demonstrate that the deficient performance
prejudiced him, meaning that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. 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).
The United States Court of Appeals for the Third Circuit has held that Pennsylvania’s test
for assessing IAC claims is not contrary to Strickland. Werts v. Vaughn, 228 F.3d 178, 203 (3d
Cir. 2000); see also Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (expressly stating
that Pennsylvania follows the Strickland standard of review).
Thus, the relevant question is
whether the decisions of the Pennsylvania courts involve an unreasonable application of
Strickland. Jacobs v. Horn, 395 F3d 92, 106 n.9 (3d Cir. 2005). That is, a petitioner must show
that the state courts “applied Strickland to the facts of his case in an objectively unreasonable
manner.” Bell v. Cone, 535 U.S. 685, 699 (2002).
When resolving an IAC issue, the question is not whether the defense was free from
errors of judgment, but whether defense counsel exercised the customary skill and knowledge
that normally prevailed at the time and place. Strickland, 466 U.S. at 689. The Supreme Court
has “declined to articulate specific guidelines for appropriate attorney conduct and ha[s]
emphasized that ‘[t]he proper measure of attorney performance remains simply reasonableness
under prevailing professional norms’.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S.
at 699).
In evaluating counsel’s performance, the court must be “highly deferential” and
“indulge a strong presumption” that counsel’s challenged actions might be considered sound
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strategy. Strickland, 466 U.S. at 689. Counsel’s actions are presumed to reflect a sound strategy
unless the petitioner shows “no sound strategy . . . could have supported” them. Thomas v.
Varner, 428 F.3d 491, 500 (3d Cir. 2005). The relevant inquiry is not whether Petitioner’s
counsel was prudent, appropriate, or perfect. Burger v. Kemp, 483 U.S. 776, 794 (1987).
Rather, the focus is simply to ensure the proceedings resulting in petitioner’s conviction and
sentence were fair. See Strickland, 466 U.S. at 684-85. Review of ineffectiveness claims is
“doubly deferential when it is conducted through the lens of federal habeas.” Yarborough v.
Gentry, 540 U.S. 1, 6 (2003). The Court will address Tigney’s claims in turn.
Claims One and Two – Trial Counsel’s Alleged Failure to Present Mitigated
Evidence at Sentence and the Trial Court’s Failure to Consider All of the
Sentencing Factors.
In his first claim for relief, Tigney asserts:
all prior counsel failed to present mitigated evidence that exist in petitioner’s presentence investigation report (PSI) and police report for the Judge to consider
during the fashioning of his sentence. Counsel failed to ensure the sentencing was
fully equipped to consider all of the requsit (sic) aspects in crafting a sentence in
accordance with the law.
Pet. at ¶ 12. And in his related second claim for relief, Tigney contends that the Trial Court
failed to consider all of the sentencing factors mandated by statute. Tigney raised these claims in
his PCRA petition and the Superior Court denied the claims on their merits. As a result, this
Court’s review is governed by AEDPA’s standard of review.
In rejecting these claims, the Superior Court quoted from the Rule 1925(a) Opinion of the
PCRA Court:
In the event that [Appellant] is referring to trial counsel’s purported
ineffectiveness for failing to “advocate and advance mitigat[ing] factors” relating
to [Appellant’s] character and remorse at sentencing, such a claim [] lacks
arguable merit. [Appellant] fails to specify the existence of any character
witnesses that would have been willing and able to testify at his sentencing
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hearing. Even if such character witnesses existed, [Appellant] is unable to show
that he suffered actual prejudice due to their absence at sentencing. Indeed, this
court presided over the trial and was well-familiar with the facts of the case,
including the fact that [Appellant] did not flee from the scene after he killed the
victim. However, given the cold, calculated, and serious nature of [Appellant’s]
offense conduct, the victim impact evidence presented at sentencing, and the other
relevant sentencing factors, the court is confident that any character testimony
would not have impacted the court’s determination as to his sentence. Similarly,
[Appellant’s] general “remorse” for his crimes also was considered by this court,
but was insufficient to warrant a lesser sentence. The court also notes that the
facts adduced at trial completely rebutted [Appellant’s] claim that he killed the
victim to protect his father, and the jury completely rejected any such notion that
[Appellant] shot the victim three times in the back in order to protect his father.
Additionally, the court was already aware of certain mitigating factors relating to
[Appellant], his history, and his background, and it did not need trial counsel to
reiterate those factors at sentencing. For example, the court had reviewed the
presentence report prior to sentencing and it was aware of the fact that
[Appellant’s] mother had passed away months before the incident. The mitigating
evidence, however, was insufficient to overcome the other, more compelling
sentencing factors which warranted the standard range sentence of 20-40 years.
Accordingly, this court did not commit error in finding that [Appellant’s]
sentencing claims did not contain arguable merit[.]
Commonwealth v. Tigney, memorandum at 5-6 (Pa. Super. filed November 30, 2017) (ECF No.
9-6 at 53-54). Moreover, the Superior Court noted,
our Supreme Court ‘has determined that where the trial court is informed by a
pre-sentence report, it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed’.” Commonwealth v. Ventura,
975 A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546
A.2d 12, 18-19 (Pa. 1988)).
Id. at 5.
Viewing the Superior Court’s disposition of these claims through the deferential lens of
AEDPA, the Court has no hesitancy in concluding that Tigney has failed to carry his burden to
persuade this Court that the Superior Court’s disposition was unreasonable, yet alone even
incorrect. As noted above, to prevail on a claim that the state court has adjudicated on the
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merits, Tigney must demonstrate that the state court's decision “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). See also Schriro
v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal
court believes the state court's determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold”). Tigney has not met that high threshold, and
therefore these claims must be denied.
Claim Three – The Trial Court Abused Its Discretion When It Admitted
Inflammatory Photographs and Trial Counsel Was Ineffective in Allowing The
Inflammatory Photographs to be Shown to the Jury
In his third claim for relief, Tigney claims that (i) the trial court abused its discretion in
admitting inflammatory photographs of the victim and (ii) his counsel was ineffective in failing
to object to the photographs being shown to the jury. Respondents correctly point out that Tigney
has procedurally defaulted both these claims as he never raised either claim in the state courts.
Because the claims are procedurally defaulted they may not form the basis for habeas relief
unless Tigney can establish cause and prejudice or actual innocence. As explained below,
neither exception to procedural default applies.
Tigney offers contradictory arguments for “cause” to excuse the default. First he states
that “[t]his is the first time this issue is being litigated due to recently developed information.”
Yet, he does not explain what the “recently developed information” is or when it was discovered.
He also argues that “counsel failed to litigate the issue.” The Court takes this argument to be an
invocation of the equitable exception rule to procedural default announced in Martinez.
However, Tigney cannot invoke the Martinez equitable exception rule because this issue was not
raised in Tigney’s pro se PCRA Petition and, after counsel filed a no-merit letter and was
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allowed to withdraw, Tigney represented himself and never raised the issue.
The limited
application of the Martinez exception only applies if there was no counsel or counsel was
ineffective in the initial-review collateral proceeding, neither of which occurred in this case.
However, even if this claim was not procedurally defaulted, the claim that the Trial Court
abused its discretion in admitting the photographs is simply not cognizable in a federal habeas
proceeding because it implicates a violation of state evidentiary rules, not federal law. “A litigant
wishing to raise a federal issue can easily indicate the federal law basis for his claim in a statecourt petition or brief, for example, by citing in conjunction with the claim the federal source of
law on which he relies or on a case deciding such a claim on federal grounds, or by simply
labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S 27, 32 (2004). Tigney does not claim
that the Trial Court’s evidentiary ruling violated his constitutional rights; rather, he has presented
the claim solely as a state evidentiary challenge, i.e., the photographs were cumulative of other
evidence and their probative value did not outweigh the likelihood of inflaming the minds and
passions of the jurors.5 Accordingly, the issue is not a proper claim subject for federal habeas
review.
The Court also finds that the related ineffective assistance of counsel claim fails. From a
review of the trial transcript, it appears six photographs were admitted – four autopsy
photographs and two scene-of-the-crime photographs. The trial transcript reflects the following
exchange occurred between the Court and all counsel, outside the presence of the jury:
Pennsylvania Rule of Evidence 403, Excluding Relevant Evidence for Prejudice,
Confusion, Waste of Time, Or Other Reasons, states: “The court may exclude relevant evidence
if its probative value is outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”
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MS. PHILLIPS: Lisa Phillips on behalf of Maurice Tigney. My understanding is
Karl Williams is the first witness and they will be using photographs to aid his
testimony. We had discussed the video surveillance of the shooting and I would
ask for the inflammatory video instruction just to warn the jury what they are
going to see.
THE COURT: I usually give that in my closing but if you want me to tell them
some of the photos might be graphic and they should not let them affect their
emotions and decision in this case –
MS. PHILLIPS: I’m asking that.
MR. CHERNOSKY: No objection with regard to the photos. The video is what
the incident is. If it is inflammatory and seems violent it is because it is violent.
MS. PHILILPS: I’m asking not let the violent nature cloud their judgment, the
similar instruction of the inflammatory photographs.
THE COURT: Okay.
MR. FARRELL: Just so you know, Mr. Chernosky has gone over all his
photographs with us. I have no objection to any of the photographs that he has
shown me and we are all on the same page. Normally you ask if you have any
objections. We have no objections.
....
MR. FARRELL: They are not that bad.
MS. PHILLIPS: No.
N.T., 3/19/14 at 15-16. Per the discussion with counsel, prior to the testimony of Dr. Williams,
the Trial Court gave the following cautionary instruction, emphasizing to the jury that its
decision should not be influenced by emotion:
Ladies and gentlemen of the jury – the photographs show the nature of the
wounds of the deceased. They are not pleasant photographs to look at and may be
disturbing to you. You should not let the photographs stir up your emotion to the
prejudice of either defendant. Your verdict must be based on a rational and fair
consideration of the evidence and not on passion or prejudice. We’re asking you
not to avert your eyes. That is evidence that you need to look at and consider as
part of this testimony and it may disturb you but it should not make you think
anything adversely towards either of the defendants.
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N.T., 3/19/2014 at 74-75. Here, the record is clear that defense counsel effectively represented
Tigney by requesting a cautionary instruction. Tigney has not shown that counsel’s performance
fell below the Strickland standard. Further, Tigney cannot show he was prejudiced as any
potential for the jury's passions to be inflamed was ameliorated by the cautionary instruction
given by the Trial Court.
Further, Tigney cannot succeed in carrying his heavy burden to invoke the second
exception to the procedural default of a fundamental miscarriage of justice. He points to no new
evidence of his actual innocence and it is hard to imagine the existence of any such evidence
given the record before this Court. Coleman v. Greene, 845 F.3d 73 (3d Cir. 2017).6
Having procedurally defaulted these claims and having failed to carry his burden to
overcome the procedural default by establishing either cause, as the underlying claim lacks merit
and is therefore not substantial, or a fundamental miscarriage of justice, Claim Three will be
denied as it does not provide a basis for relief in these federal habeas proceedings.
6
In Coleman v. Greene, the United States Court of Appeals for the Third Circuit explained
that,
The fundamental miscarriage of justice exception is narrow. The Supreme Court
has applied it “to a severely confined category: cases in which new evidence
shows ‘it is more likely than not that no reasonable juror would have convicted
[the petitioner]’.” McQuiggin, 113 S.Ct. at 1933 (alteration in original) (quoting
Schlup, 513 U.S. at 329, 115 S.Ct. 851). Put differently, the exception is only
available 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 1936 (quoting
Schlup, 13 U.S. at 316, 115 S.Ct. 851). In Schlup, the Supreme Court emphasized
that “[w]ithout any new evidence of innocence, even the existence of a
concededly meritorious constitutional violation is not in itself sufficient to
establish a miscarriage of justice that would allow a habeas court to reach the
merits of a barred claim.”
Coleman, 845 F.3d 73, 76 (3d Cir. 2017).
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Claim Four - Trial Counsel’s Alleged Decision to Waive Tigney’s Right to be
Present During the Reading of the Final Jury Instructions
In his fourth and final claim for relief, Tigney contends his due process rights were
violated due to counsel’s waiver of Tigney’s rights to be present during the reading of the final
jury instructions. He further alleges he was prejudiced by his attorney’s decision to remove the
self-defense instruction from the jury instructions, which he argues would not have happened if
he had been present.
Tigney previously raised the issue of his absence from the jury instruction conference on
direct appeal. The Trial Court and the Superior Court considered the claim and dismissed it on
the merits. To the extent that Tigney intended to bring that argument in this habeas case, same is
denied.
The right of an accused to be present and participate during all critical stages of the trial
is basic and fundamental. United States v. Gagnon, 470 U.S. 522, 526 (1985)(per curiam) (“The
constitutional right to presence is rooted in the Confrontation Clause of the Sixth Amendment
but we have recognized that this right is protected by the Due Process Clause in some situations
where the defendant is not actually confronting witnesses or evidence against him.”)(citation
omitted); Rushen v. Spain, 464 U.S. 114 (1983).7 A defendant is guaranteed the right to be
present at any stage of the criminal proceedings that is critical to its outcome if his presence
would contribute to the fairness of the procedure. See Kentucky v. Stincer, 482 U.S. 730, 745
(1987) A “critical stage” in a criminal proceeding is characterized by an opportunity for the
exercise of judicial discretion or when certain legal rights may be lost if not exercised at
that stage. Mempa v. Rhay, 389 U.S. 128, 135 (1967); Commonwealth v. D'Amato, 856 A.2d
Similarly, Article I, § 9 of the Pennsylvania Constitution guarantees the right of the
accused to be present in the courtroom at every stage of a criminal trial.
7
15
806, 822 (Pa. 2004) (defining “critical stage of a criminal proceeding” as any stage “at which
substantive rights may be preserved or lost”).
Yet the right to be present is not absolute; this, constitutional right is not guaranteed
“when presence would be useless, or the benefit but a shadow.” Snyder v. Commonwealth of
Massachusetts, 291 U.S. 97, 106–07 (1934).
Due process does not require a defendant’s
presence where “there is no indication that [the defendant] ‘could have done [anything] had [he]
been at the [hearing] nor would [he] have gained anything by attending.” Stincer, 482 U.S. at
747 (quoting Gagnon, 470 U.S. at 527).
Tigney conceded before the Superior Court that his presence would not have contributed
to the fairness or accuracy of the proceeding. Viewing the Superior Court’s disposition of the
claim through the deferential lens of AEDPA, the Court has no hesitancy in concluding that
Tigney has failed to carry his burden to persuade this Court that the Superior Court’s disposition
was unreasonable.
Moreover, the claim as stated in the habeas petition is without merit. Tigney now seems
to be challenging his counsel’s decisions to (i) allegedly waive Tigney’s presence during the
reading of the final jury instructions to the jury and (ii) remove a self-defense jury instruction,
both of which are being raised for the first time in this federal habeas petition. Because the
claims are procedurally defaulted they may not form the basis for habeas relief unless Tigney can
overcome the default by establishing either cause or a fundamental miscarriage of justice. As
explained below, neither exception to procedural default applies as both claims lack merit.
Although Tigney argues that he was not present when the final jury instructions were
given to the jury, Tigney has offered nothing to substantiate his claim. The transcript confirms
that he was not present during the jury instruction charge conference (N.T., 3/20/20114 at 164),
16
but it appears that Tigney was present when the final instructions were given to the jury. (Id., at
285-352).
The trial transcript also reflects that counsel consulted with Tigney prior to requesting
that the instruction on self-defense be withdrawn and that Tigney voiced no objection to
counsel’s representation to the Court:
THE COURT: I gave you all 9.501 [self-defense instruction] earlier. I don’t
think we decided if any changes needed to be made in that because at that point
you weren’t requesting that. Do you wish to take a look and tell me if there are
any issues with it? . . . .
....
MS. PHILLIPS: May I have a moment with my client, Your Honor?
THE COURT: Certainly.
...
(Discussion off the record.)
MS. PHILLIPS: Your Honor, after consulting with my client I am requesting that
9.501 not be read to the jury. I will not be arguing self-defense.
THE COURT: All right, it is back out. . . .
N.T., 3/20/2014, at 217-19 (emphasis added).
For all these reasons, Count Four will be denied as the default cannot be excused since
the claims lack merit and are therefore not substantial. Martinez, 566 U.S. at 13-15.
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 has
rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable
17
jurists would find the district court's assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, the Court concludes
that jurists of reason would not find it debatable whether Tigney’s petition fails to state a valid
claim of the denial of a constitutional right. 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.
Further, as there is no basis upon which to grant a certificate of appealability, a certificate of
appealability likewise will be denied. An appropriate Order follows.
Dated: October 20, 2020
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge
cc:
MAURICE LONZO TIGNEY
LQ-3071
S.C.I. Fayette
48 Overlook Drive
LaBelle, PA 15545
(via U.S. First Class Mail)
Alicia H. Searfoss
Office of the District Attorney of Allegheny County
(via ECF electronic notification)
18
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