MCDONALD v. DELBALSO et al
Filing
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MEMORANDUM OPINION & ORDER denying 1 the Petition for Writ of Habeas Corpus filed by JULIAN DAIN MCDONALD and further denying a Certificate of Appealability. The Clerk of Court shall mark this case closed. Petitioner has thirty (30) days in which to file a notice of appeal. Signed by Magistrate Judge Lisa Pupo Lenihan on March 9, 2018. (kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JULIAN DAIN MCDONALD,
Petitioner,
v.
THERESA DELBALSO,
Superintendent, ESQ. WILLIAM J.
HIGGINS, District Attorney, and
KATHLEEN KANE, Attorney General
of the State,
Respondents.
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Civil Action No. 15 – 138J
Magistrate Judge Lisa Pupo Lenihan
MEMORANDUM OPINION
A. Background
Pending before the Court is a Petition for Writ of Habeas Corpus filed by Petitioner
Julian D. McDonald (“Petitioner”) pursuant to 28 U.S.C.§ 2254, wherein he challenges his
September 9, 2010 conviction out of Bedford County, Pennsylvania at Docket Number CP-05CR-0000328-2009, after a jury found him guilty of Possession of a Controlled Substance with
the Intent to Deliver, Conspiracy to Deliver a Controlled Substance, and Possession of Drug
Paraphernalia. 1 For these crimes, he was sentenced to an aggregate sentence of six to eleven
years of incarceration on October 18, 2010. 2
Petitioner was tried with his brother and co-defendant, Michael McDonald. The charges
stemmed from the discovery of 177 pounds of marijuana in the trunk of a rental car that was
driven by Michael and pulled over for tailgating a mini-van on August 1, 2009.
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Petitioner appealed his judgment of sentence, and his direct appeal proceedings ended
with the Pennsylvania Supreme Court denying his Petition for Allowance of Appeal (“PAA”) on
February 23, 2012.
Next, Petitioner filed a petition seeking relief under Pennsylvania’s Post Conviction
Relief Act (“PCRA”) on March 15, 2012. On June 27, 2013, a hearing was held on his PCRA
petition, but the petition was later denied in a Memorandum Opinion dated September 23, 2013.
After the Pennsylvania Superior Court affirmed the PCRA court’s denial of relief, the
Pennsylvania Supreme Court denied his PAA on April 24, 2015.
Petitioner filed the instant Petition for Writ of Habeas Corpus on May 8, 2015, to which
the Respondents filed their Response on September 21, 2015. Petitioner then filed a Response in
Opposition to that Response on October 13, 2015. For the following reasons, the Petition will be
denied.
B. Standard of Review
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
federal habeas court may overturn a state court’s resolution of the merits of a constitutional issue
only if the state court decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). The Supreme Court of the United States, in Williams v. Taylor, 529 U.S.
362 (2000), discussed the analysis required by § 2254(d)(1):
[Under the “contrary to” clause], a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by this Court on a
The Court takes judicial notice that Petitioner was released from the custody of the
Pennsylvania Department of Corrections on August 25, 2016, and is currently on bond awaiting
deportation proceedings.
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question of law or if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Id. at 1498. The Third Circuit Court of Appeals, consistent with the Williams v. Taylor
interpretation, set forth in Matteo v. Superintendent, SCI-Albion, 171 F.3d 877 (3d Cir. 1999),
cert. denied 528 U.S. 824 (1999), a two-tier approach to reviewing § 2254(d)(1) issues:
First, the federal habeas court must determine whether the state court decision
was “contrary to” Supreme Court precedent that governs the petitioner’s claim.
Relief is appropriate only if the petitioner shows that “Supreme Court precedent
requires an outcome contrary to that reached by the relevant state court.” O’Brien
[v. Dubois], 145 F.3d [16], 24-25 [1st Cir. 1998)]. In the absence of such a
showing, the federal habeas court must ask whether the state court decision
represents an “unreasonable application” of Supreme Court precedent; that is,
whether the state court decision, evaluated objectively and on the merits, resulted
in an outcome that cannot reasonably be justified. If so, then the petition should
be granted.
Id. at 891. The phrase “clearly established Federal law,” as the term is used in Section
2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme
Court] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 365.
Under the “unreasonable application” clause,
a federal habeas court may not grant relief simply because that court concludes in
its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.
Id. If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision
is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo
evaluation of the constitutional claim on the merits. See Tucker v. Superintendent Graterford
SCI, 677 F. App’x 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S. 930, 953
(2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[,] [a] federal court must
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then resolve the claim without the deference AEDPA otherwise requires.”). Indeed, the Third
Circuit recently explained that,
[w]hile a determination that a state court’s analysis is contrary to or an
unreasonable application of clearly established federal law is necessary to grant
habeas relief, it is not alone sufficient. That is because, despite applying an
improper analysis, the state court still may have reached the correct result, and a
federal court can only grant the Great Writ if it is “firmly convinced that a federal
constitutional right has been violated,” Williams, 529 U.S. at 389, 120 S.Ct. 1495.
See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301
(2002) (“[w]hile it is of course a necessary prerequisite to federal habeas relief
that a prisoner satisfy the AEDPA standard of review . . . none of our postAEDPA cases have suggested that a writ of habeas corpus should automatically
issue if a prisoner satisfies the AEDPA standard”). Thus, when a federal court
reviewing a habeas petition concludes that the state court analyzed the petitioner’s
claim in a manner that contravenes clearly established federal law, it then must
proceed to review the merits of the claim de novo to evaluate if a constitutional
violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182
L.Ed.2d 398 (2012).
Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote
omitted).
The AEDPA further provides for relief if an adjudication “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). Under § 2254(d)(2), a state court decision is
based on an “unreasonable determination of the facts” if the state court’s factual findings are
“objectively unreasonable in light of the evidence presented in the state-court proceeding,”
which requires review of whether there was sufficient evidence to support the state court’s
factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Within this overarching
standard, of course, a petitioner may attack specific factual determinations that were made by the
state court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play,
instructing that the state court’s determination must be afforded a presumption of correctness that
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the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d
210, 235 (3d Cir. 2004).
C. Discussion
Petitioner presents two claims for review in his Petition. His first claim is that the PCRA
court erred in concluding that the after discovered evidence offered by his brother, and codefendant, did not justify a new trial. His second claim is that the PCRA court erred in denying
relief on his ineffective assistance of trial counsel claim.
1. After discovered evidence claim
In his PCRA petition, Petitioner argued that he was entitled to a new trial based on newly
discovered evidence pursuant to 42 Pa. C.S.A. § 9543(a)(2)(vi), which requires a petitioner to
plead and prove by a preponderance of the evidence that his conviction and sentence resulted
from: “The unavailability at the time of trial of exculpatory evidence that has subsequently
become available and would have changed the outcome of the trial if it had been introduced.”
The newly discovered evidence that Petitioner relied on to support his claim was an affidavit
from his brother and co-defendant, Michael, which stated:
I Michael D. Mcdonald swear that on August 1, 2009 [I] acted alone in the
criminal activity that i [sic] am now incarcerated for, furthermore it is my sworn
statement that [appellant] had no knowledge of the events that took place on the
above mentioned day. It is my sworn testimony that I Michael Mcdonald acted
alone and in no way conspired with [appellant].
(Super. Ct. Memorandum 10/14/14; ECF No. 7-8, p.5) (quoting affidavit of Michael Dain
McDonald, 3/11/13 at 1.) At the PCRA hearing held on June 27, 2013, Michael McDonald
testified that the drugs were his and that Petitioner had no idea that they were in the car. Id.
(citing Notes of testimony, 6/27/13 at 14.) When asked why he waited until March 11, 2013 to
say something, Michael testified that it was because he was scared. Id., p.6 (citing Notes of
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testimony, 6/27/13 at 15.) According to Michael, he did not make this information available to
Petitioner until March 2013 because:
My - - since I’ve been incarcerated, it’s been eating me alive. It’s just now, I
really, really come to me to come out with the truth. Because it’s just been me
holding that in. I couldn’t do it no [sic] more. I just, I just couldn’t because he
didn’t have nothing [sic] to do with this and at that point, that the time I gave up
and I just say, I’m just going to let it out. I don’t know, so.
Id. (quoting Notes of testimony, 6/27/13 at 18-19.)
The PCRA court found that Michael McDonald’s testimony was not credible because he
had “nothing to lose” having already been convicted and sentenced for the crime. (PCRA
Memorandum Opinion 9/23/13; ECF No. 7-7, p.4.) The court further found Michael
McDonald’s confession “unpersuasive if not simply unbelievable when considering the
[Petitioner] had previously confessed to Magisterial District Judge Bingham that ‘he was a
marijuana smoker in a frequent capacity,’ ‘that he was fully responsible for this crime,’ and ‘that
his brother, Michael, had no idea about anything,’ and ‘he claimed all luggage in the vehicle.’”
Id. (quoting Court Transcript 128.) With respect to its classification as after-discovered
evidence, the PCRA court stated that it was not because “[Petitioner] would have known, after
the arrest, whether it was he or his brother who had initially picked up the car and therefore,
more likely than not, know that there was a large quantity of marijuana stored in the trunk.” Id.
The Superior Court agreed on appeal stating that Michael’s affidavit was not newly
discovered evidence “in any traditional sense” because “[Petitioner] knew from day one whether
or not he was aware of the marijuana in the trunk of the car.” (Super. Ct. Memorandum,
10/14/14; ECF No. 7-8, p.7.) Additionally, it noted that either Michael or Petitioner was lying
given the inculpatory statements Petitioner made to the magisterial district judge at arraignment.
Id., p.9. By March 2013, both brothers had taken sole responsibility for the crime and claimed
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that the other brother knew nothing. Id. The Superior Court thus concluded that the PCRA court
did not err in finding Michael’s affidavit unbelievable and denying Petitioner’s newly discovered
evidence claim. Id.
As previously noted, Petitioner raised this claim before the PCRA court under 42 Pa.
C.S.A. § 9543(a)(2)(vi), a provision of the PCRA that is meant to address claims of actual
innocence based on newly discovered evidence. However, this provision of the PCRA does not
have a comparable counterpart in the federal habeas statute. “The [United States] Supreme
Court has yet to decide whether a prisoner can obtain habeas relief based on a freestanding claim
of actual innocence, having left the matter open time and again.” Bruce v. Warden Lewisburg
USP, 868 F.3d 170, 183 (3d Cir. 2017) (citing Herrera v. Collins, 506 U.S. 390, 404-05 (1993);
House v. Bell, 547 U.S. 518, 554-55 (2006); District Attorney’s Office for Third Judicial Dist. v.
Osborne, 557 U.S. 52, 71-72 (2009)). Instead, the Supreme Court has held that a claim of actual
innocence in a federal habeas proceeding “if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar . . . or[] . . . expiration of the
statute of limitations.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). Here, Petitioner
does not assert a procedural or time bar but merely seeks a retrial based on his brother’s affidavit
and testimony at the PCRA hearing. Without more, this claim is not cognizable under 28 U.S.C.
§ 2254.
Nevertheless, Petitioner has not met the extremely difficult standard that a petitioner must
meet to overcome a procedural bar under the basis of actual innocence. In McQuiggin, the
Supreme Court repeatedly emphasized that “a petitioner does not meet the threshold requirement
unless he persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” 133 S. Ct. at 1928
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(quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). There is no question that Petitioner has not
met that threshold here.
Finally, even if this claim was cognizable in this federal habeas case, it would be denied.
The PCRA court denied the claim on its merits, and therefore this Court’s review of it would be
governed by AEDPA’s standard of review, which is codified at 28 U.S.C. § 2254(d).
Furthermore, AEDPA requires that a determination of a factual issue made by a state court shall
be presumed correct and that the petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Reviewing this claim through AEDPA’s deferential standards of review, this Court must
conclude that is has no merit. This Court is bound by the PCRA court’s determination that
Michael McDonald’s confession lacked credibility, and Petitioner has not rebutted that
presumption of correctness through clear and convincing evidence. For this reason, Petitioner’s
claim fails on the merits. It also fails because Petitioner has not demonstrated that the state
court’s adjudication of this claim “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 proceeding.” 28
U.S.C. § 2254(d)(1)-(2).
2. Ineffective assistance of counsel claim
Petitioner’s second claim is that counsel was ineffective pursuant to Strickland v.
Washington, 466 U.S. 668 (1984), for failing to inform him that he could be deported if found
guilty at trial. In his PCRA petition, Petitioner relied on Padilla v. Kentucky, 559 U.S. 356
(2010), in which the United States Supreme Court held that counsel must inform his client
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whether his plea carries a risk of deportation. However, the Superior Court recognized that
Petitioner’s reliance on Padilla was misplaced because Petitioner did not enter a guilty plea.
(Super Ct. Memorandum, 10/14/14; ECF No. 7-8, p.13.) Petitioner argued that “without
knowing about the potential for deportation, [he] could not make a knowing and voluntary
decision whether to go to trial or try to negotiate a plea.” Id. (citing Appellant’s brief at 17.) He
argued that “if he had known he could be deported for a felony drug conviction, he could have
tried to negotiate a plea to a lesser, non-deportable offense.” Id.
In finding that the PCRA court did not err in denying this claim, the Superior Court
explained that
. . . by taking a plea, Padilla was exposing himself to certain deportation. By
exercising his right to a jury trial, appellant did not face the certainty of being
deported. He could conceivably have been found not guilty. In addition,
appellant has a constitutional right to a jury trial but not to enter a plea. The
Commonwealth can force a trial if it chooses. Appellant has cited no case law for
the proposition that the holding of Padilla extends to cases where the defendant is
found guilty after a jury trial, and we are aware of none.
(Super Ct. Memorandum, 10/14/14; ECF No. 7-8, pp.13-14.)
In this case, it is clear that the PCRA court’s decision was not contrary to nor an
unreasonable application of Padilla, Strickland or any other United States Supreme Court
precedent. Petitioner did not plead guilty so Padilla is inapplicable, and the only way Petitioner
could have conceivably avoided certain deportation consequences was to go to trial. Assuming
Petitioner’s allegation about his attorney is true, even if he were informed of the deportation
consequences of a conviction, whether it be by pleading guilty or convicted by a jury, he would
have most certainly taken his chances with the jury, which he did. Petitioner has not, and cannot,
meet his burden under the AEDPA and therefore habeas relief will be denied on this claim.
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D. Certificate of Appealability
A court should issue a Certificate of Appealability where a petitioner makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
petitioner meets this burden by showing that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). Petitioner has not made a substantial showing of the denial of a constitutional right.
Accordingly, this Court should not issue a Certificate of Appealability.
Dated: March 9, 2018.
________________________
Lisa Pupo Lenihan
United States Magistrate Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JULIAN DAIN MCDONALD,
Petitioner,
v.
THERESA DELBALSO,
Superintendent, ESQ. WILLIAM J.
HIGGINS, District Attorney, and
KATHLEEN KANE, Attorney General
of the State,
Respondents.
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Civil Action No. 15 – 138J
Magistrate Judge Lisa Pupo Lenihan
ORDER
AND NOW, this 9th day of March, 2018, and for the reasons stated in this Court’s
Memorandum Opinion filed contemporaneously herewith,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus (ECF No. 1) is
denied.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
________________________
Lisa Pupo Lenihan
United States Magistrate Judge
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cc: Julian Dain McDonald
JU-7758
7903 Bayard Street
Philadelphia, PA 19150
Counsel for Respondents
(Via CM/ECF Electronic Mail)
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