CRISSWALLE v. TICE, et al
MEMORANDUM. Signed by Magistrate Judge Patricia L. Dodge on 1/8/21. (jpe)
Case 2:18-cv-01591-PLD Document 21 Filed 01/08/21 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIC TICE, et al.,
Civil Action No. 2:18-cv-1591
Magistrate Judge Patricia L. Dodge
Pending before the Court 1 is the Petition for a Writ of Habeas Corpus filed by state prisoner
Andra Crisswalle (“Petitioner”) pursuant to 28 U.S.C. § 2254. ECF No. 1. For the reasons set forth
below, the Court will deny the Petition because each of Petitioner’s claims are procedurally
defaulted and will deny a certificate of appealability.
Petitioner challenges the judgment of sentence imposed by the Court of Common Pleas of
Allegheny County on his convictions of three counts of first-degree murder and related crimes. He
raises four grounds for relief in his Petition. He contends that the trial court erred, and violated his
right to due process, when it: denied his request to sever his trial from that of his co-defendant,
William Thompson (Claim I); denied his motion for a line-up (Claim II); and permitted Catrell
Boyd and David Eynon to testify on the hearsay statements of Duane Morris (Claim IV). Petitioner
also claims that he was denied a jury of his peers (Claim III), in violation of his equal protection
rights and the rule of Batson v. Kentucky, 476 U.S. 79 (1986). ECF No. 1 at 11-16.
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to
have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a final judgment.
Case 2:18-cv-01591-PLD Document 21 Filed 01/08/21 Page 2 of 9
In their Answer, Respondents assert that the Court must deny the Petition because
Petitioner procedurally defaulted his claims for failing to raise them to the Superior Court of
Pennsylvania and that there are no grounds to permit him to avoid his default. ECF No. 8. 2
Petitioner did not file a Reply. See Local Rule 2254(E)(2) (“the petitioner may file a Reply (also
known as ‘a Traverse’) within 30 days of the date the respondent files its Answer.”).
Around 7:00 p.m. on January 25, 2002, two masked individuals armed with semi-automatic
weapons entered Mr. Tommy’s, a restaurant located in the Homewood neighborhood of Pittsburgh,
and opened fire. Eight-year-old Taylor Coles was shot three times. Her mother, Terri Coles, was
shot once in the shoulder and Taylor’s father, Parrish Freeman, Sr., was shot three times. Thomas
Mitchell, who was a paraplegic, was shot ten times (nine times in his torso and once, from pointblank range, in his head). Taylor Coles, Freeman, and Mitchell died from the injuries they
sustained in the shooting. See Resp’s Ex. 41, trial court’s Appellate Rule 1925(a) opinion (“Trial
Ct. Op.”) at 8-11. 3
The Commonwealth charged Petitioner and Thompson with three counts of criminal
homicide, one count of aggravated assault as to Terri Coles, one count of carrying a firearm without
a license, six counts of recklessly endangering another person, 4 and one count of criminal
Respondents electronically filed as exhibits to their Answer (ECF Nos. 9, 11-13) the relevant
parts of the state court record, including Petitioner’s state court appellate briefs and the state court
opinions cited herein. They have also submitted a hard copy of the state court record.
In its Appellate Rule 1925(a) opinion the trial court provided a 20-page summary of the events
leading up to Petitioner’s and Thompson’s arrests and the evidence introduced at their trials. Trial
Ct. Op. at 8-28. Additionally, in their Answer Respondents set forth a detailed summarization of
the procedural history of Petitioner’s state criminal proceeding, ECF No. 8 at 1-20, and the
evidence introduced at his second trial, id. at 20-32. In this Memorandum the Court discusses only
that background which is necessary to the disposition of the Petition.
One charge of recklessly endangering another person was later withdrawn.
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conspiracy. It also filed a notice of its intention to seek the death penalty in the event either
defendant was convicted of first-degree murder. Id. at 2.
Petitioner and Thompson’s first joint trial ended in a mistrial in November 2004 when the
jury was not able to reach verdicts on any of the counts as to both defendants. Id. at 2, 21. The
Commonwealth subsequently withdrew its certifications as a capital case and their second trial
was held on February 22, 2005 through March 23, 2005. Id. at 2. Attorney James A. Wymard was
Petitioner’s trial attorney. The jury convicted Petitioner of three counts of first-degree murder and
also found him guilty of the other charges filed against him. The jury was deadlocked with respect
to the charges filed against Thompson and, therefore, a mistrial was declared as to his case.
Thompson was retried in September 2005 and at the conclusion of this trial the jury found him
guilty on all charges. Id. at 2-3.
The trial court sentenced Petitioner on June 20, 2005 to three consecutive terms of life
imprisonment on the first-degree murder counts plus a consecutive aggregate sentence of 28 ½ to
57 years’ imprisonment on the other counts.
Attorney Norma Chase represented Petitioner in his direct appeal. She filed a concise
statement of matters complained of on appeal which raised 29 issues, including the four claims of
trial court error that Petitioner brings before this Court in his Petition. Resp’s Ex. 38. In its
Appellate Rule 1925(a) opinion the trial court addressed all of Petitioner’s claims on the merits
and determined that they had no merit. Id. at 28-31 (Claim I); id. at 31-34 (Claim II); id. at 43-47
(Claim III); id. at 49-53 (Claim IV); id. at 34-72 (disposing of Petitioner’s other claims).
Thereafter, Petitioner filed his counseled brief to the Superior Court. Resp’s Ex. 43.
Importantly, Petitioner no longer raised any of the claims he now brings before this Court in his
Petition. He raised only the following three claims to the Superior Court:
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1. The trial court erred in admitting testimony about the drugs found on the individuals
who were arrested with Petitioner and about his drug dealing during his
2. The trial court erred in refusing to declare a mistrial based on the prosecutor
questioning him about an incident years earlier in which one of the homicide
victims (Mitchell) was shot and rendered a paraplegic; and
3. The trial court erred in refusing to suppress statements he made to a wired informant
while represented by counsel and in permitting him to be questioned about those
Id. at 3, 18, 22-33. 5
The Superior Court affirmed Petitioner’s judgment of sentence in Commonwealth v.
Crisswalle, No. 1261 WDA 2005, slip op. (Pa. Super. Ct. Feb. 22, 2012). Resp’s Ex. 46. It denied
on the merits the three claims before it, adopting in full the reasoning given by the trial court on
The Supreme Court of Pennsylvania denied a petition for allowance of appeal. Resp’s
Ex. 50. The United States Supreme Court denied a petition for a writ of certiorari on
February 25, 2013.
Next, Petitioner, through Attorney Paul Gettleman, filed a petition for relief under
Pennsylvania’s Post Conviction Relief Act (“PCRA”), which he later supplemented. See Resp’s
Exs. 52, 53, 59, 61, 62. Petitioner raised numerous claims of ineffective assistance of trial counsel.
He also asserted that Attorney Chase was ineffective for failing to raise on direct appeal challenges
to: (1) the prosecutor’s question to his aunt about which hand he uses to shoot a gun; (2) the
prosecutor’s impeachment of defense witness Jerome Solomon; and (3) the Commonwealth’s use
of one its confidential informants. Resp’s Ex. 52 at 3-4; Resp’s Ex. 53 at 1-2; Resp’s. Ex. 59 at
Petitioner also asserted in the appellate brief that the number of issues raised in his statement of
matters complained of on appeal should not result in a waiver of the three claims that he was
pursuing before the Superior Court. Resp’s Ex. 43 at 19-21.
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14-15. Notably, Petitioner did not assert that Attorney Chase was ineffective for failing to raise to
the Superior Court in his direct appeal any of the claims Petitioner brings before this Court in his
Judge David R. Cashman, who had presided over Petitioner’s trials, recused himself and
Petitioner’s PCRA case was assigned to Judge Jeffrey A. Manning. Resp’s Ex. 58. Judge Manning
denied all of Petitioner’s PCRA claims. See Resp’s. Exs. 59, 61, 63, 67.
Petitioner, through Attorney Gettleman, filed an appeal with the Superior Court. He raised
the following five claims to the Superior Court:
1. Judge Manning erred in denying his PCRA claims without a hearing;
2. Trial counsel was ineffective for not objecting to the closing argument of the
prosecutor which both improperly bolstered the credibility of a Commonwealth
witness and denigrated the credibility of defense witness Jerome Solomon;
3. Trial counsel was ineffective, and he was denied his constitutional right to a public
trial, when trial counsel informed his mother and aunt that they were not permitted
in the courtroom during the jury selection process;
4. Trial counsel was ineffective for failing to object when the prosecutor, during his
cross-examination of Petitioner, asked him about whether he was responsible for
the prior shooting of Mitchell which had rendered him a paraplegic; and
5. Trial counsel was ineffective for failing to object to the trial court’s alibi instruction.
Resp’s Ex. 69.
On June 1, 2018, the Superior Court affirmed Judge Manning’s decision denying PCRA
relief. Commonwealth v. Crisswalle, No. 349 WDA 2017, slip op. (Pa. Super. Ct. June 1, 2018).
Resp’s Ex. 71. The Supreme Court of Pennsylvania denied a petition for allowance of appeal on
November 20, 2018. Resp’s Ex. 75.
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Thereafter, Petitioner filed his Petition (ECF No. 1) with this Court under 28 U.S.C.
§ 2254 6 within which he raised Claims I, II, III, and IV. As set forth above, in their Answer (ECF
No. 8) Respondents assert that the Court must deny the Petition because Petitioner procedurally
defaulted each of his claims and there are not grounds to excuse his default, 7 and Petitioner did
not file a Reply.
The “exhaustion doctrine” requires that a state prisoner raise his federal constitutional
claims in state court through the proper procedures before he litigates them in a federal habeas
petition. See, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It is “grounded in
principles of comity; in a federal system, the States should have the first opportunity to address
and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S.
722, 731 (1991). It “is designed to give the state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the federal courts[.]” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999).
Importantly, the Supreme Court has held that a petitioner must have “invoke[d] one
complete round of the State’s established appellate review process[,]” in order to satisfy the
This Court has jurisdiction under 28 U.S.C. § 2254, which confers jurisdiction to a federal court
to entertain a habeas petition filed by a state prisoner who is contending that “he or she is in custody
in violation of the Constitution…of the United States.” 28 U.S.C. § 2254(a).
Respondents also assert that the Petition “may be untimely filed” under the applicable statute of
limitations, which was enacted by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) and is codified at 28 U.S.C. § 2244(d). ECF No. 8 at 34-35. However, Respondents
do not provide the date upon which they contend the statute of limitations expired. They also
appear to acknowledge that the Petition was timely filed if the date Petitioner verified he placed it
in the prison mailing system is accurate. The Court will not address the statute-of-limitations issue
“[b]ecause AEDPA’s limitation period is not jurisdictional,” Jenkins v. Sup’t of Laurel Highlands,
705 F.3d 80, 89 (3d Cir. 2013) (citing Holland v. Florida, 560 U.S. 631 (2010)), and each of
Petitioner’s claims are clearly procedurally defaulted and denied for that reason.
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exhaustion requirement. Id. In Pennsylvania, this requirement means that a petitioner in a noncapital case such as this one must have first presented every federal constitutional claim raised in
his federal habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g.,
Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
The doctrine of procedural default, like the doctrine of exhaustion, is “grounded in
concerns of comity and federalism,” Coleman, 501 U.S. at 730. It provides that a Pennsylvania
state prisoner in a non-capital case defaults a federal habeas claim if he: (1) failed to present it to
the Superior Court and he cannot do so now because the state courts would decline to address the
claim on the merits as state procedural rules (such as, for example, the state’s waiver rules or the
PCRA’s one-year statute of limitations) bar such consideration; or (2) failed to comply with a state
procedural rule when he presented the claim to the state court, and for that reason the Superior
Court declined to address the federal claim on the merits. See, e.g., Edwards v. Carpenter, 529
U.S. 446, 451 (2000); O’Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting)
(describing the history of the procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72
(1977); Lines v. Larkins, 208 F.3d 153, 162-69 (3d Cir. 2000).
The first scenario is what has occurred here. As Respondents correctly point out, Petitioner
did not properly exhaust any his claims because he did not raise them on appeal to the Superior
Court. Because he cannot return to state court and now attempt to litigate his claims because they
would be barred by state waiver rules and also by the PCRA’s one-year statute of limitations, he
has procedurally defaulted each of his claims.
A petitioner may avoid the default of a claim by demonstrating “cause for the default and
actual prejudice as a result of the alleged violation of federal law[.]” Coleman, 501 U.S. at 750.
“‘Cause’ under the cause and prejudice test must be something external to the petitioner, something
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that cannot fairly be attributed to him[.]” Id. at 753 (emphasis in original). Petitioner does not
invoke the “cause” and “actual prejudice” exception to the procedural default doctrine. For
example, he does not contend in this case (and he did not assert in his PCRA proceeding when he
could raise claims that direct appeal counsel was ineffective), that Attorney Chase “caused” his
default of his claims by deciding not to raise them in Petitioner’s appellate brief to the Superior
A petitioner may also avoid the default of a claim by demonstrating that the federal habeas
court’s failure to consider it will result in a fundamental miscarriage of justice. Coleman, 501 U.S.
at 750. This type of “gateway” actual innocence claim requires evidence of “actual innocence”
that is “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[.]” Schlup v. Delo, 513 U.S.
298, 316 (1995); see, e.g., Reeves v. Fayette, SCI, 897 F.3d 154, 157 (3d Cir. 2018). The Supreme
Court has cautioned that “tenable actual-innocence gateway pleas are rare[,]” McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013), and that “[t]he 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). Petitioner does not invoke this exception to the
procedural default doctrine either, and this is not one of those rare cases where the actual-innocence
gateway would apply.
Based upon all of the foregoing, Petitioner has procedurally defaulted each of the claims
he raised in his Petition and they are denied for that reason.
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Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for
appellate review of a district court’s disposition of a habeas petition. It provides that “[u]nless a
circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court
of appeals from…the final order in a habeas corpus proceeding in which the detention complained
of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that
“[a] certificate of appealability may issue...only if the applicant has made a substantial showing of
the denial of a constitutional right.” Id. § 2253(c)(2).
“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). Applying that standard here, jurists of reason would not find it debatable whether each
of Petitioner’s claims should be denied because they are procedurally defaulted. Accordingly, the
Court will not issue a certificate of appealability on any of Petitioner’s grounds for relief.
Based upon the foregoing, the Court will deny his Petition and will deny a certificate of
An appropriate Order follows.
/s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge
Date: January 8, 2021
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