Opinion
Civil Action 21-cv-4176
09-13-2024
WILLIAM LEWIS, Petitioner, v. SUPERINTENDENT JOSEPH TERRA, et al., Respondents.
REPORT AND RECOMMENDATION
LYNNE A. SITARSKI UNITED STATES MAGISTRATE JUDGE
Before the Court is a pro se Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by William Lewis (“Petitioner”), an individual currently incarcerated at the State Correctional Institution - Phoenix, located in Collegeville, Pennsylvania. The Honorable Gene E.K. Pratter referred this matter to me for a Report and Recommendation. (Order, ECF No. 13). The matter has been reassigned to the Honorable Kai N. Scott. (Order, ECF No. 22). For the following reasons, I respectfully recommend that Petitioner's petition be DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
The Court has received and reviewed the state court record in this matter. It has consulted the Chester County Court of Common Pleas criminal docket sheet in Commonwealth v. Lewis, No. CP-51-CR-0008916-2008 (Chester Cnty. Com. Pl.), available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-15-CR-0001072-2000&dnh=EzmhJkMcSs%2F1cmiwhekQdA%3D%3D (last visited June 10, 2024) [hereinafter “Crim. Docket”], and the Pennsylvania Supreme Court docket sheets in Commonwealth v. Lewis, 85 MM 2022 (Pa.), available at https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=85%20MM%202022&dnh =YwyaF77G3pSfdqeXItPMvw%3D%3D (last visited Apr. 22, 2024) [hereinafter “Misc. Docket”], and Commonwealth v. Lewis, 327 MAL 2023 (Pa.), available at https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=327%20MAL%202023&d nh=IkZjz29GzsbcoFfM2ychZA%3D%3D (last visited June 10, 2024) [hereinafter “Allocatur Docket”].
A. The Facts and State Court Procedural History
In its April 5, 2022 decision affirming the denial of Petitioner's petition for collateral relief under Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. § 9541 et seq., the Pennsylvania Superior Court set forth the following facts, and the procedural history through that point:
The facts underlying Appellant's convictions are as follows. On January 9, 2000, Appellant and four co-conspirators committed an armed robbery of a Genuardi's Supermarket in East Goshen Township, Chester County, Pennsylvania. At 10:37 p.m., four of the men, including Appellant, entered the store dressed like “terrorists.” PCRA Ct. Op., 10/14/21, at 5. The fifth co-conspirator was an employee of that supermarket and was working that night. Id. “During the commission of the robbery, multiple victims were taken at gunpoint, bound, gagged, and threatened with death.” Id. at 5 n.3. Appellant personally held a gun to the store manager's head to force her to open the office safe. See Order, 8/10/21, at 2 n.2. The gunmen then absconded with $28,146.20 from the office safe. See PCRA [Ct. Op.] at 5. During the robbery, three victims were injured, one of whom was hospitalized for head trauma. Id.
Thereafter, Appellant fled to North Carolina, where he lived under a false identity for 14 years. Id. On July 24, 2014, Appellant was arrested and then extradited to Chester County.
The matter proceeded to jury trial. On October 5, 2015, the jury convicted Appellant of 12 counts each of robbery (threaten or intentionally put in fear of serious bodily injury), robbery (inflict or intentionally put in fear of serious bodily injury), simple assault (physical menace), terroristic threats, unlawful restraint (risk of injury), unlawful restraint (involuntary servitude); two counts of simple assault (causing or attempting to cause bodily injury); and one count each of conspiracy to commit both above types of robbery, theft by unlawful taking, and receiving stolen property. PCRA Ct. Op. at 1-2. Appellant was also acquitted of one count of carrying a firearm without a license and one count of possessing an instrument of crime. Id.
On January 20, 2016, the court sentenced Appellant to an aggregate term of 29 1/2 to 75 years' imprisonment. See PCRA Ct. Op at 2.
On January 29, 2016, Appellant timely filed a post sentence motion, which was granted in part and denied in part on October 12, 2016. The trial court agreed with Appellant that one of the theft offenses
should have merged with one of the robbery counts for sentencing purposes. Consequently, on November 10, 2016, the court vacated the one-to-five-year sentence related to the theft crime. All other terms and conditions of the original sentence remained unchanged. As such, Appellant's aggregate sentence was now 28 1/2 to 70 years' incarceration.
Appellant thereafter filed a direct appeal on December 8, 2016. This Court affirmed the judgment of sentence on December 19, 2017. See Commonwealth v. Lewis, 256 A.3d 38, *10 (unpub. memo) (Pa. Super. May 18, 2021). Appellant did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania.
On August 6, 2018, Appellant timely filed a pro se PCRA petition. [A series of attorneys were appointed to represent Appellant, a counseled amended PCRA petition was filed on April 29, 2019, and the Commonwealth filed an answer on August 8, 2019.]
Following multiple filing extensions, on May 19, 2020, [new appointed counsel] adopted the amended PCRA petition as previously filed by [his predecessor]. On July 20, 2020, the PCRA [court] issued a Pa.R.Crim.P. 907 notice, stating that Appellant's issues lacked merit. Appellant did not file a response. The PCRA court then dismissed the petition without a hearing on August 25, 2020. Appellant filed a timely, counseled appeal to this Court.
On May 18, 2021, a panel of this Court affirmed in part and vacated in part the PCRA court's August 25 order. The panel remanded the matter for an evidentiary hearing to address the question of whether trial counsel was ineffective for “failing to advise [Appellant] on the impact of his prior record score at sentencing, the applicable sentencing guidelines, and the statutory maximum sentences.” See Commonwealth v. Lewis, 1724 EDA 2020 (unpub. memo) (Pa. Super. May 18, 2021). The PCRA court held an evidentiary hearing on July 23, 2021.
....
. . . . On August 10, 2021, the PCRA court entered an order, denying Appellant relief because it found counsel was not ineffective. This appeal followed.Commonwealth v. Lewis, No. 1778 EDA 2021, 2022 WL 1016633, at *1 (Pa. Super. Ct. Apr. 5, 2022) (mem.) (footnotes omitted).
The Superior Court affirmed the PCRA court's denial of collateral relief on the remanded claim on April 5, 2022. Lewis, 2022 WL 1016633, at *1-6. Petitioner filed a pro se petition for leave to file a petition for allowance of appeal nunc pro tunc on July 28, 2022. Misc. Docket at 4. On February 1, 2023, the Pennsylvania Supreme Court granted leave to file a petition for allowance of appeal nunc pro tunc on the grounds that Petitioner was abandoned by his court-appointed PCRA counsel. Misc. Docket at 4. The matter was remanded to the PCRA court to determine whether Petitioner was entitled to appointment of new counsel. Id.
After conducting a hearing on March 31, 2023, the PCRA court appointed new counsel. Crim. Docket at 56-57. A petition for allowance of appeal was filed on June 21, 2023 and denied on September 22, 2023. Allocatur Docket at 3; Commonwealth v. Lewis, 304 A.3d 712 (Pa. 2023) (unpublished table decision).
B. Federal Habeas Procedural History
Petitioner filed a pro se federal habeas petition on September 20, 2021. (Hab. Pet., ECF No. 2). He raised four claims that trial counsel was ineffective for: (1) failing to advise Petitioner of the impact of his prior record score at sentencing, the applicable sentencing guidelines, and the statutory maximums applicable to his case; (2) failing to impeach Commonwealth witnesses with available impeachment evidence and to exploit the use of the witnesses' leniency agreements with the Commonwealth; (3) failing to request necessary jury instructions and to object to improper instructions; and (4) failing to object to inadmissible evidence that he was incarcerated. (Hab. Pet., ECF No. 2, at 8-14).
Pennsylvania and federal courts employ the prisoner mailbox rule, pursuant to which the pro se petition is deemed filed when it is given to prison officials for mailing. See Perry v. Diguglielmo, 169 Fed.Appx. 134, 136 n.3 (3d Cir. 2006) (citing Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998)); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998); Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa. Super. 2001). However, Petitioner's petition does not include the page certifying the date on which it was given to officials for mailing. (See generally Hab. Pet., ECF No. 2). Accordingly, this Court shall deem the petition filed as of September 20, 2021, the date it was entered into the electronic filing system.
Judge Pratter referred this matter to me for a Report and Recommendation. (Order, ECF No. 6). On September 23, 2021, Petitioner filed a memorandum of law in support of his petition. (Mem. of Law., ECF No. 7). On October 27, 2021, the Commonwealth filed a response. (Resp., ECF No. 9).
On November 2, 2021, I recommended that the habeas petition be stayed and held in abeyance until Petitioner's state court proceedings concluded. Lewis v. Harry, No. 21-cv-4176, 2021 WL 11581363, at *1-3 (E.D. Pa. Nov. 2, 2021). On December 1, 2021, Judge Pratter adopted the report and recommendation and stayed the petition while Petitioner litigates his PCRA petition in the state courts. Lewis v. Harry, No. 21-cv-4176, 2021 WL 11583719, at *1 (E.D. Pa. Dec. 2, 2021).
On October 2, 2022, Petitioner filed a Supplemental Amended Petition for Writ of Habeas Corpus. (Suppl. Am. Hab. Pet., ECF No. 12). He raises nine claims for relief. This Court has renumbered, and rearticulated Petitioner's claims as follows:
(5)(a) The Superior Court erred in not granting Petitioner a new trial and an evidentiary hearing, and in resentencing him to an illegal sentence; and (b) trial counsel, (c) direct appeal counsel, and (d) PCRA counsel failed to preserve Petitioner's claims for review;
(6) Petitioner is entitled to reinstatement of direct appeal rights nunc pro tunc due to appointed counsel's failure to raise certain issues on direct appeal to the Pennsylvania Superior Court and to file the requested appeal to the Pennsylvania Supreme Court;
(7)(a) The prosecutor's failure to disclose discovery materials concerning the two Commonwealth witnesses' criminal histories and the plea deals they entered in exchange for their testimony against Petitioner violated Brady/Giglio; and (b) trial counsel was ineffective for failing to challenge the prosecutor's failure to disclose Brady materials and presentation of perjured testimony;
(8)(a) The trial court erred in not merging the criminal charges in sentencing and thereby imposed an unconstitutional and illegal sentence; (b) sentencing counsel was ineffective for failing to
challenge the sentence based on the merger doctrine; (c) counsel on direct appeal was ineffective for failing to challenge the sentence on merger grounds and to raise the ineffectiveness of sentencing counsel for failing to raise a merger objection; and (d) PCRA counsel were ineffective for failing to raise the ineffectiveness of preceding counsel concerning the merger issue;
(9)(a) The trial court erred in sentencing Petitioner to an unconstitutional sentence under the “prior record score statute;” and (b) sentencing counsel was ineffective for failing to consult the sentencing guidelines/enhancements;
(10) Trial counsel was ineffective for failing to consult on the plea offers by the prosecutor;
(11)(a) The trial court erred by allowing the prosecutor to present “Impermissible Unduly Suggestive Eyewitness Testimony” violating the Due Process Clause and by failing to give the proper cautionary instruction under Kloiber; and (b) trial counsel was ineffective for failing to object to the impermissible evidence and to request a Kloiber instruction;
(12)(a) The prosecutor violated Petitioner's due process rights by relying on hearsay evidence at the preliminary hearing; and (b) trial counsel was ineffective for failing to challenge the prosecutor's actions; and
(13)(a) The trial court gave erroneous jury instructions on reasonable doubt, accomplice liability, and conspiracy, and failed to give jury instructions on alibi, pending cases, identification, and perjury in violation of the Sixth and Fourteenth Amendments; and (b) trial counsel was ineffective for failing to object to the erroneous instructions and to request the additional instructions.(Id. at 4-26). Judge Pratter referred this matter to me for a Report and Recommendation on October 25, 2022. (Order, ECF No. 13). On February 27, 2023, the Commonwealth filed its response to the supplemental amended habeas petition. (Resp., ECF No. 21). On May 21, 2024, the Clerk reassigned this case to Judge Scott. (Order, ECF No. 22).
The PCRA proceeding has concluded, and the federal habeas matter is fully briefed and ready for disposition.
II. LEGAL STANDARDS
A. Exhaustion and Procedural Default
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) grants to persons in state or federal custody the right to file a petition in a federal court seeking the issuance of a writ of habeas corpus. 28 U.S.C. § 2254. Pursuant to the AEDPA:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254(b)(1). The exhaustion requirement is rooted in considerations of comity, to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509, 518 (1982); Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007); Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
Respect for the state court system requires that the habeas petitioner demonstrate that the claims in question have been “fairly presented to the state courts.” Castille, 489 U.S. at 351. To “fairly present” a claim, a petitioner must present its “factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts). A state prisoner exhausts state remedies by giving the “state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Pennsylvania, one complete round includes presenting the federal claim through the Superior Court on direct or collateral review. Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). The habeas petitioner bears the burden of proving exhaustion of all state remedies. Boyd v. Walmart, 579 F.3d 330, 367 (3d Cir. 2009).
If a habeas petition contains unexhausted claims, the federal district court must ordinarily dismiss the petition without prejudice so that the petitioner can return to state court to exhaust his remedies. Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). However, if state law would clearly foreclose review of the claims, the exhaustion requirement is technically satisfied because there is an absence of a state corrective process. Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002); Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000). The failure to properly present claims to the state court generally results in a procedural default. Lines, 208 F.3d at 683.
The doctrine of procedural default bars federal habeas relief when a state court relies upon, or would rely upon, “‘a state law ground that is independent of the federal question and adequate to support the judgment'” to foreclose review of the federal claim. Nolan v. Wynder, 363 Fed.Appx. 868, 871 (3d Cir. 2010) (not precedential) (quoting Beard v. Kindler, 558 U.S. 53, 53 (2009)); see also Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007) (citing Coleman v. Thompson, 501 U.S. 722, 730 (1991)).
The requirements of “independence” and “adequacy” are distinct. Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004). State procedural grounds are not independent, and will not bar federal habeas relief, if the state law ground is so “interwoven with federal law” that it cannot be said to be independent of the merits of a petitioner's federal claims. Coleman, 501 U.S. at 739-40. A state rule is “adequate” for procedural default purposes if it is “firmly established and regularly followed.” Johnson v. Lee, 578 U.S. 605, 606 (2016) (per curiam) (citation omitted); see also Kellam v. Kerestes, No. 13-6392, 2015 WL 2399302, at *4 (E.D. Pa. May 18, 2015) (citations omitted). These requirements ensure that “federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule,” Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005), and that “review is foreclosed by what may honestly be called ‘rules' . . . of general applicability[,] rather than by whim or prejudice against a claim or claimant.” Id. at 708.
Like the exhaustion requirement, the doctrine of procedural default is grounded in principles of comity and federalism. As the Supreme Court has explained:
In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).
Federal habeas review is not available to a petitioner whose constitutional claims have not been addressed on the merits by the state courts due to procedural default, unless such petitioner can demonstrate: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 451; Coleman, 501 U.S. at 750. To demonstrate cause and prejudice, the petitioner must show some objective factor external to the defense that impeded counsel's efforts to comply with some state procedural rule. Slutzker, 393 F.3d at 381 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To demonstrate a fundamental miscarriage of justice, a habeas petitioner must typically demonstrate actual innocence. Schlup v. Delo, 513 U.S. 298, 324-26 (1995).
B. Merits Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) grants to persons in state or federal custody the right to file a petition in a federal court seeking the issuance of a writ of habeas corpus. See 28 U.S.C. § 2254. The AEDPA increased the deference federal courts must give to the factual findings and legal determinations of the state courts. Woodford v. Viscotti, 537 U.S. 19, 24 (2002); Werts, 228 F.3d at 192. Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may be granted only if: (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, “clearly established Federal law, as determined by the Supreme Court of United States;” or (2) the 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)(1)-(2). Determinations of factual issues are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)). Courts reviewing a habeas petition “consider the ‘last reasoned decision' of the state courts in the AEDPA context.” Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008).
The Supreme Court has explained that, “[u]nder 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 [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000); see also Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2000). “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. The “unreasonable application” inquiry requires the habeas court to “ask whether the state court's application of clearly established federal law was objectively unreasonable.” Hameen, 212 F.3d at 235 (citing Williams, 529 U.S. at 388-89). “In further delineating the ‘unreasonable application of' component, the Supreme Court stressed that an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable.” Werts, 228 F.3d at 196 (citation omitted).
III. DISCUSSION
A. Merits Review: Claims One through Four
Claims One through Four were exhausted and decided on the merits in the state courts. See generally Lewis, 2022 WL 1016633, at *3-6; Lewis, 2021 WL 1986576, at *2-3; PCRA Order, 8/10/21 [hereinafter “8/10/21 PCRA Order”]; Rule 907 Notice, 7/20/20, at 2-20 n.4 [hereinafter “7/20/20 Rule 907 Notice”]. This Court's review of the claims is thereby governed by the deferential standards in § 2254(d).
Petitioner asserts that § 2254(d)(2) and (e)(1) do not apply because the state courts did not conduct an evidentiary hearing on his claims and did not make any findings of fact. (Mem. of Law, ECF No. 7, at 5-8). However, the PCRA court conducted an evidentiary hearing on Claim One. (See generally N.T. 7/23/21).
Additionally, the habeas statute “no longer explicitly conditions federal deference to state court factual findings on whether the state court held a hearing.” Lambert, 387 F.3d at 237 (citing Mendiola v. Schomig, 224 F.3d 589, 592-93 (7th Cir.2000)). The PCRA court and the Superior Court made specific findings of fact disposing of Petitioner's four claims. See, e.g., Rolan v. Vaughn, 445 F.3d 671, 678-80 (3d Cir. 2006) (holding that federal habeas court must defer to state appellate court's findings of fact); see infra Section III.A.1.-4.
Petitioner's four exhausted claims allege ineffective assistance of trial counsel. Claims of ineffective assistance of counsel are governed by Stricklandv. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court set forth the elements of such a claim:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. at 687. Because “it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable,” a court must be “highly deferential” to counsel's performance and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. In determining prejudice, “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695; see also Harrington v. Richter, 562 U.S. 86 (2011) (the question is “whether it is ‘reasonably likely' the result would have been different”).
The state courts disposed of the claims under Pennsylvania's three-prong test for ineffectiveness claims. Lewis, 2022 WL 1016633, at *3-6; Lewis, 2021 WL 1986576, at *2-3; 8/10/21 PCRA Order at 4-5 n.2; 7/20/20 Rule 907 Notice at 2-20 n.4. This test requires the petitioner to establish: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable basis for his or her conduct; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. See, e.g., Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). The Third Circuit has found the Pennsylvania ineffectiveness test is not contrary to the Strickland standard. See, e.g., Werts, 228 F.3d at 204.
Because the state courts did not apply law contrary to clearly established United States Supreme Court precedent, Petitioner is entitled to relief only if he can demonstrate that their adjudication involved an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence. As the Supreme Court has stated, though, establishing that a state court's application of Strickland was unreasonable under § 2254(d) is no easy task. Premo v. Moore, 562 U.S. 115, 121-22 (2011). The Strickland standard and § 2254(d) are “both highly deferential,” and, accordingly, “when the two apply in tandem, review is ‘doubly' so.” Id. at 122 (quoting Harrington v. Richter, 562 U.S. 86, 104-05 (2011)). On habeas review, the court should not ask whether counsel's actions were reasonable. Id. Rather, the habeas court should ask whether there is any reasonable basis to support the conclusion that counsel satisfied Strickland's deferential standard. Id. In addition, the United States Supreme Court has explained that state court factual determinations are not unreasonable “merely because the federal habeas court would have reached a different conclusion in the first instance.” Woodv. Allen, 558 U.S. 290, 301 (2010). If ‘“[Reasonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's ... determination.'” Id. (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)).
I conclude that the state courts' disposition of these four claims neither involved an unreasonable application of clearly established federal law, nor was based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceedings.
1. Claim One: Ineffective Assistance of Trial Counsel for Failing to Advise Petitioner of the Impact of his Prior Record Score at Sentencing, the Applicable Sentencing Guidelines, and the Applicable Statutory Maximums
In Claim One, Petitioner asserts that he was denied effective assistance of trial counsel because, during plea negotiations, his counsel failed to advise him of the impact of his prior record score at sentencing, the applicable Sentencing Guidelines, and the applicable statutory maximums. (Mem. of Law, ECF No. 7, at 9). He claims that, at their first meeting, trial counsel advised him he had a strong case and there was no discussion of the merits of an offer or Petitioner's potential sentencing exposure. (Id.). Purportedly, the Commonwealth made an initial offer of eleven-and-a-half to twenty-three-and-a-half years' imprisonment and, on the first day of trial, it made an amended offer of thirteen to thirty years. (Id.). Petitioner allegedly rejected the amended offer because he was not informed of the potential sentences if he were convicted and believed he had a strong case. (Id. at 10-11). He indicates trial counsel had no reasonable basis for failing to inform him of his sentencing exposure and that, if he had been informed of the applicable Sentencing Guidelines range given his prior record score, he would have accepted the initial offer. (Id. at 11).
Strickland applies in the plea bargain context. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); United States v. Vaughn, 704 Fed.Appx. 207, 212 (3d Cir. 2015). “[D]efense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, 566 U.S. 134, 145 (2012). Failure to communicate a plea deal constitutes deficient performance under the first prong of Strickland. Id. at 149. In terms of the prejudice prong of Strickland, “[h]aving to stand trial, not choosing to waive it, is the prejudice alleged.” Lafler, 566 U.S. at 163-64. To prove prejudice,
a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
Id. at 164; see also United States v. Seeley, 574 Fed.Appx. 75, 80 (3d Cir. 2014) (not precedential)
Because the Superior Court “discern[ed] no abuse as to the PCRA court's determination that counsel did have a reasonable basis for his actions,” it affirmed the denial of relief. Id. (citing Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018)). The Superior Court noted that Petitioner and his trial counsel provided contradictory accounts of their plea discussions. Lewis, 2022 WL 1016633, at *5. It determined that the PCRA court properly credited trial counsel's testimony that, although he did not discuss the specifics of his client's proper record score, the offense gravity score, or the Sentencing Guidelines, he did tell him that “he would not receive a sentence of less than 23 years (as received by co-defendant Kevin Smith) and that the outstanding offer of 13 years was a ‘good deal.'” Lewis, 2022 WL 1016633, at *5 (quoting 8/10/21 PCRA Order at 2 n.2). It also upheld the PCRA court's determination that Petitioner steadfastly maintained his innocence. Id. The Superior Court concluded that, “[b]ased on the PCRA court's analysis[,] it is evident the court credited trial counsel's strategy and advice as reasonable,” and the appellate court affirmed this assessment Id. at *6.
The Superior Court's ruling under the “reasonable basis” prong of Pennsylvania's three-prong test for ineffectiveness claims did not involve an unreasonable application of clearly established federal law. It reasonably determined that trial counsel's strategy and advice was reasonable because counsel provided Petitioner with a general idea of his sentencing exposure. Id. In fact, trial counsel advised Petitioner that he would not receive an aggregate sentence of less than twenty-three years, and, as the Superior Court observed, the counsel's statement was “not far off from what he received” after his trial, specifically an aggregate sentence of twenty-nine and a half years' imprisonment. Id. Likewise, it reasonably rejected as legally unsupported Petitioner's contention that “when a defendant proclaims his innocence, counsel is ineffective for failing to advise him to take a plea offer and admit guilt.” Id.
Furthermore, the Superior Court's ruling was not based on an unreasonable factual determination.
As the Superior Court observed, the PCRA court credited trial counsel's testimony that he told Petitioner he would not receive a sentence of less than twenty-three years and that the outstanding offer of a minimum of thirteen years was a “good deal.” Id. at *5 (quoting 8/10/21 PCRA Order at 2 n.2). This Court must accept the PCRA court's factual findings and credibility determinations unless rebutted by clear and convincing evidence. See § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 290 (3d Cir. 2000); Dicker v. Glunt, No. 10-5240, 2011 WL 286090, at *6 (E.D. Pa. May 25, 2011), report and recommendation adopted, 2011 WL 3862012 (E.D. Pa. Aug. 31, 2011). Petitioner has not rebutted the PCRA court's findings concerning the plea discussions.
The PCRA court's findings are supported by the trial counsel's testimony that he forwarded to Petitioner the e-mail correspondence between the prosecutor and Petitioner's initial trial attorney specifying the Commonwealth's plea offers and that he discussed the plea offers with his client. (N.T. 7/23/21 at 34-37). He testified that he strongly recommended that Petitioner consider taking the thirteen-year plea offer because the co-defendant (Kevin Smith) had been sentenced to twenty-two or twenty-three years and Petitioner, if convicted, would probably receive a sentence of “at least 23 years if not more.” (Id. at 36-39). In his testimony, Petitioner admitted that counsel told him he would receive a “lot of time” and that he knew Smith had been sentenced to “something like” twenty-three years' imprisonment. (Id. at 26).
Accordingly, I recommend that Claim One be denied.
2. Claim Two: Ineffective Assistance of Trial Counsel for Failing to Impeach the Commonwealth's Witnesses with Available Impeachment Evidence and to Exploit the Use of Leniency Agreements
In his second claim, Petitioner argues that his trial counsel was ineffective because he did not impeach two Commonwealth witnesses, James Sadler and Edward Davis, with their respective prior criminal convictions on cross-examination. (Mem. of Law, ECF No. 7, at 13). He notes that Davis's prior record score was discussed during the trial, but claims that trial counsel, for no logical reason, did not “further” challenge his credibility. (Id.) According to Petitioner, “the verbatim circumstances” apply to Sadler's testimony. (Id.) Furthermore, he contends that trial counsel failed to advise the jury of the witnesses' deals with the Commonwealth, which the Commonwealth concealed. (Id.). The Commonwealth responds that the PCRA court properly found that the claims related to Sadler were waived, testimony concerning Davis's prior criminal history was presented to the jury, and, in any event, Davis's testimony was not harmful to Petitioner. (Resp., ECF No. 9, at 29).
The PCRA court found that evidence concerning Davis's prior guilty plea and sentence for his role in the Genuardi's robbery was presented to the jury. 7/20/20 Rule 907 Notice at 11 n.4 (citing N.T. 9/29/15 at 141-42, 167, 170-71, 178-79, 182-87, 190-91, 196, 202, 205). It also concluded that trial counsel had a reasonable trial strategy to refrain from further challenging the witness's credibility because Davis's testimony was not inculpatory and, in fact, provided corroboration for the defense's theory that another individual committed the crime. Id. With respect to Sadler's testimony, the PCRA court found that this issue was waived, while further indicating that Sadler's testimony was also not adverse to Petitioner. Id. at 10-11 n.4.
In its May 18, 2021 decision, the Superior Court stated that it affirmed the denial of this claim on the basis of the PCRA court's opinion. Lewis, 2021 WL 1986576, at *3. It specifically determined that Sadler's and Davis's testimony established either that Petitioner was not present at the scene or that he was not involved in the robbery. The Superior Court accordingly concluded that the trial counsel's decision not to impeach the witnesses was reasonable.. Id.
The Superior Court acknowledged that the PCRA court “accurately” noted that Petitioner failed to identify the portion of Sadler's testimony, which spanned over a hundred pages, that trial counsel should have impeached. Lewis, 2021 WL 1986576, at *3 (citing 7/20/20 Rule 907 Notice at 2 n.4). However, the Superior Court explicitly refrained from relying on this ground in its decision. Id.
The state courts' rejection of Petitioner's ineffectiveness claim did not involve either an unreasonable application of Strickland or an unreasonable factual determination.
The two witnesses were questioned at trial about their criminal records, the guilty pleas they entered and the sentences they received for their role in the robbery, and the witnesses' prior testimony and statements to the police regarding the robbery. For example, the Commonwealth elicited testimony from Davis that he was convicted for the Genuardi's robbery and was currently on parole. (N.T. 9/30/15 at 141-42). Upon questioning by Petitioner's trial counsel, Davis said that he was not sure whether eight charges were dropped as part of his guilty plea. (Id. at 178-80). He also admitted that he did expect a benefit and that he had to testify as part of his plea. (Id.); see also 7/20/20 Rule 907 Notice at 11 n.4 (stating that evidence concerning Davis's prior guilty plea and sentence were presented to the jury).
Sadler was asked about his criminal history by the Commonwealth and the defense. (N.T. 10/1/15 at 92-94, 98-99). He admitted that he was currently back in prison serving the sentence he received for the robbery after violating his parole and that he knew that the parole board always asks the Commonwealth its position on parole. (Id. at 92-94). Sadler said that he only pled to four out of the twelve counts of robbery. (Id. at 98-99). He stated that he knew that he otherwise faced a longer sentence and that, to get the deal, he had to testify in the way the Commonwealth wanted and implicate Petitioner. (Id. at 98-99).
It was not unreasonable for the state courts to conclude that trial counsel had a reasonable strategic basis to refrain from further challenging Sadler's and Davis's credibility because their testimony was exculpatory. Lewis, 2021 WL 1986576, at *3; see also § 2254(e)(1) (stating that state court findings of fact are presumed correct unless rebutted with clear and convincing evidence); Premo, 562 U.S. at 121-22 (noting that Strickland and § 2254(d) are doubly deferential because habeas court must ask whether there is any reasonable basis to support conclusion that counsel's action satisfied Strickland). Davis indicated that he was unable to recall the Genuardi's robbery or identify Petitioner as a participant. (See N.T. 9/29/15 at 14882). He also testified that he knew Petitioner as “Choo-choo,” and he said that he saw “Chew”- not “Choo-choo”-on the night of the robbery. (Id. at 175-76). As the PCRA court noted, it was the defense's theory of the case that another individual named Chew committed the robbery. 7/20/20 Rule 907 Notice at 11 n.4. Additionally, Sadler testified that Petitioner was not involved in the crimes and indicated that his prior statements and testimony implicating Petitioner were lies “just to try to cover my own behind.” (N.T. 10/1/15 at 40-41, 162).
I recommend that Claim Two be denied under § 2254(d).
3. Claim Three: Ineffective Assistance of Trial Counsel for Failing to Request Necessary Jury Instructions and to Object to Improper Jury Instructions
Petitioner claims that trial counsel was ineffective because he failed to request jury instructions concerning: (1) crimes of dishonesty, (2) pending cases, and (3) other crimes evidence. (Mem. of Law, ECF No. 7, at 11). He argues that both Davis and Sadler had convictions for five counts of robbery, which is a crime of dishonesty. (Id. at 12). He also contends that counsel was ineffective for failing to object to an instruction that purportedly relieved the Commonwealth of its burden of proof to prove every element of the crimes charged against Petitioner. (Id. at 11-12). The Commonwealth argues that Petitioner's claim relies on the false assumption that trial counsel should have impeached Davis and Sadler, and it asserts that the jury was properly instructed on how to evaluate witness credibility and evidence of flight. (Resp., ECF No. 9, at 29-33).
The Pennsylvania Superior Court affirmed the denial of this claim based on the PCRA court's opinion. Lewis, 2021 WL 1986576, at *3. It agreed with the PCRA court's reasoning that the “requested jury instructions were not justified by the record and the trial court did not misstate the Commonwealth's burden of proof.” Id. (citing 7/20/20 Rule 907 Notice at 2.n.4). I find that the PCRA court's rejection of Petitioner's ineffectiveness claim did not involve either an unreasonable application of clearly established federal law or an unreasonable factual determination.
As I explain in Section III.A.2., supra, Davis's and Sadler's testimony supported the defense. Accordingly, it was not unreasonable for the state court to determine that trial counsel had a reasonable basis for not requesting “crimes of dishonesty” and “pending cases” instructions. 7/20/20 Rule 907 Notice at 12 n.4; see also Premo, 562 U.S. at 122-23 (explaining that, when § 2254(d) applies, question is whether there is any reasonable argument that counsel's actions were reasonable).
With respect to trial counsel's failure to request a cautionary instruction regarding evidence of other crimes, the PCRA court reasonably rejected this claim on the grounds that it was “devoid of arguable merit.” 7/20/20 Rule 907 Notice at 13 n.4; see also United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (“There can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument.” (citing Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989)) (additional citation omitted)). The Commonwealth cross-examined Petitioner concerning his flight and the measures he took to hide his identity after the Genuardi's robbery. (N.T. 10/2/15 at 141-80). Petitioner admitted that he obtained a fraudulent birth certificate and Social Security card. (Id. at 158-66). This evidence was relevant and admissible to show consciousness of guilt, and the trial court appropriately instructed the jury on how it should handle such evidence. See Commonwealth v. Dollman, 541 A.2d 319, 321-23 (Pa. 1988) (stating that evidence of flight or concealment has long been recognized as relevant and admissible to advance an inference of guilt).
Finally, the PCRA court reasonably disposed of Petitioner's contention that his counsel was ineffective for failing to object to the “reasonable doubt” instruction. It explained that trial counsel was not ineffective because the jury was properly instructed on the issue of reasonable doubt. 7/20/20 Rule 907 Rule at 14 n.4; (N.T. 10/5/15 at 81, 102). In fact, the instruction is substantially identical to the Pennsylvania suggested jury charge on reasonable doubt. See Pa. Suggested Standard Crim. Jury Instr. § 7.01; Labrake v. Stowitzky, No. 07-212, 2009 WL 2924808 at *22 (E.D. Pa. Jan. 3, 2009) (holding that instruction that tracked language from Pennsylvania Suggested Standard Instructions on witness credibility and reasonable doubt were “presumptively proper”).
Accordingly, I recommend that Claim Three be denied.
4. Claim Four: Ineffective Assistance of Trial Counsel for Failing to Object to Inadmissible Evidence of Petitioner's Incarceration
In his fourth claim, Petitioner asserts that trial counsel was ineffective because he failed to object to multiple references to Petitioner's incarceration by the Commonwealth and its witnesses. (Mem. of Law, ECF No. 7, at 14). Such references purportedly suggested to the jury that Petitioner was a dangerous individual who needed to be imprisoned. (Id.). In response, the Commonwealth indicates that its references to Petitioner's incarceration were appropriate, the other references were made by Petitioner and his alibi witness, testimony regarding his pretrial incarceration was admissible and non-objectionable, and Petitioner's underlying claim thereby lacked arguable merit under Pennsylvania's three-prong test for ineffectiveness claims. (Resp., ECF No. 9, at 33-38).
The Superior Court affirmed the PCRA court's denial of Petitioner's claim. Lewis, 2021 WL 1986576, at *3. The PCRA court's denial of Claim Four did not involve an unreasonable application of clearly established federal law, nor did rely on an unreasonable determination of the facts. The state courts observed that there is no per se rule in Pennsylvania prohibiting references to a defendant's pretrial detention. Id.; 7/20/20 Rule 907 Notice at 16 n.4 (citing Commonwealth v. Wilson, 649 A.2d 435, 445-46 (Pa. 1994)). “The mere utterance of the word [jail, prison, or arrest] does not, without regard to context or circumstances, constitute reversible error per se ” under the Due Process Clause. United States v. Faulk, 53 Fed.Appx. 644, 647 (3d Cir. 2002) (quoting United States v. Villabona-Garnica, 63 F.3d 1051, 1058 (11th Cir. 1995)) (additional citation omitted).
Accordingly, it was not unreasonable for the PCRA court to conclude that any objection to the references to Petitioner's pretrial incarceration would have been meritless. 7/20/20 Rule 907 Notice at 16-19. Petitioner does not dispute the PCRA court's finding that the Commonwealth made only “passing” references to his status. Id.; see also § 2254(e)(1). It reasonably explained that the references were relevant and admissible to show that Petitioner misled authorities about his biographical information and whereabouts. 7/20/20 Rule 907 Notice at 16-19. Specifically, Detective Rangi testified that he was instructed to go to the Chester County Prison to process Petitioner on his charges. (N.T. 10/1/15 at 195). The Commonwealth also asked Petitioner questions about his attempts to hide his identity following his arrest. (See N.T.10/2/15 at 172-74). Furthermore, it was the defense that presented Jerome Hooper as an alibi witness, and Hooper volunteered the fact that he had visited Petitioner in prison. (Id. at 104).
Accordingly, I recommend that Claim Four be denied.
Petitioner also indicates that the trial counsel's ineffectiveness collectively or cumulatively prejudiced him, and he asserts that the Superior Court did not rule on whether counsel's performance was deficient with respect to Claims One through Four. (See, e.g., Suppl. Am. Hab. Pet., ECF No. 7, at 8, 14). However, the state courts did rule on counsel's performance by concluding that Petitioner failed to satisfy either the “arguable merit” or the “reasonable basis” prongs of Pennsylvania's three-prong standard for ineffectiveness claims. Lewis, 2022 WL 1016633, at *4-6; Lewis, 2021 WL 1986576, at *3-4; 7/20/20 Rule 907 Notice at 10-19 n.4; see also, e.g., Dixon v. Maholly, No. 15-148, 2016 WL 6962585, at *5 (E.D. Pa. Nov. 28, 2016) (“For example, ‘[a]n attorney cannot be ineffective for failing to raise a claim that lacks merit,' because in such cases, the attorney's performance is not deficient, and would not have affected the outcome of the proceeding.”) (quoting Singletary v. Blaine, 89 Fed.Appx. 790, 794 (3d Cir. 2004)). The cumulative error analysis does not apply without errors by counsel to aggregate. See, e.g., Stokes v. Giroux, No. 15-0412, 2015 WL 9915957, at *25 (E.D. Pa. Aug 11, 2015), report and recommendation adopted, 2016 WL 316812 (E.D. Pa. Jan. 25, 2016). Ineffectiveness allegations resolved under Strickland's performance prong need not be considered in the cumulative error analysis. See, e.g., Saget v. Bickell, No. 12-2047, 2014 WL 4992572, at *25 (E.D. Pa. Oct. 6, 2014) (when counsel's performance was not deficient under Strickland's first prong, there is no need to look to prejudice in the aggregate); Brown v. Bickell, No. 10-428, 2012 WL 2018020, at *16 (E.D. Pa. Mar. 27, 2012), report and recommendation adopted sub nom. Brown v. Lawler, 2012 WL 2130881 (E.D. Pa. June 4, 2012). Accordingly, the cumulative error doctrine is inapplicable.
B. Procedurally Defaulted Claims: Claims Five through Thirteen
In his supplemental amended habeas petition, Petitioner raises nine claims for relief, which I have renumbered Claims Five through Thirteen. (Suppl. Am. Hab. Pet., ECF No. 12, at 4-26). To the extent that the supplemental petition does not merely reiterate the four claims raised in his initial habeas petition, I agree with the Commonwealth that the additional claims should be dismissed as procedurally defaulted. (See, e.g., Suppl. Resp., ECF No. 21, at 28).
Petitioner did not exhaust Claims Five through Thirteen in the state courts because he failed to raise them on either direct appeal or in his PCRA proceeding. See, e.g., Lewis, 2017 WL 6462423, at *1 (listing issues raised on direct appeal); 7/20/20 Rule 907 Notice at 4-5 n.4 (enumerating claims raised in amended PCRA petition); see also Castille, 489 U.S. at 351 (stating that, to satisfy exhaustion requirement, claim must have been fairly presented to the state courts). The judgment of sentence became final o5n January 18, 2018, upon the expiration of the thirty-day period in which Petitioner could have filed a petition for allowance of appeal with the Pennsylvania Supreme Court. See Pa. R. App. P. 903. Accordingly, the deadline to file a PCRA petition was January 18, 2019. See 42 Pa. C.S. § 9545(b)(1).
Therefore, any new and subsequent PCRA petition filed to raise the unexhausted claims would be time-barred. The PCRA statute of limitations is an “adequate” and “independent” state procedural rule, which means that the additional claims are procedurally defaulted. See, e.g., Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001); Smith v. Luther, No. 18-200, 2018 WL 3581140, at *3 (E.D. Pa. June 22, 2018).
Because Claims Five through Thirteen are procedurally defaulted, the Court may not review the merits of the claims unless Petitioner has established cause and prejudice, or a fundamental miscarriage of justice to excuse the default. See Coleman, 501 U.S. at 750. Petitioner alleges cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012). (See, e.g., Suppl. Am. Hab. Pet., ECF No. 12, at 1-3).
Martinez recognized a “narrow exception” to the general rule that attorney errors in collateral proceedings do not establish cause to excuse a procedural default, holding that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9. To successfully invoke the Martinez exception, a petitioner must satisfy two factors: that the underlying, otherwise defaulted, claim of ineffective assistance of trial counsel is “substantial,” meaning that it has “some merit,” Id. at 14; and that petitioner had “no counsel” or “ineffective” counsel during the initial phase of the state collateral review proceeding. Id. at 17; see also Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014).
Both prongs of Martinez implicate the controlling standard for ineffectiveness claims first stated in Strickland: (1) that counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To show that the underlying ineffectiveness claim is “substantial” or has “some merit,” a petitioner must establish that jurists of reason could disagree with the resolution of the underlying claim. Martinez, 566 U.S. at 14 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing standards for certificates of appealability)). Without a substantial underlying claim, the petitioner may not avail himself of Martinez's narrow exception. Id.; see also Cox v. Horn, 757 F.3d 113, 124 (3d. Cir. 2014); Glenn v. Wynder, 743 F.3d 402, 411 (3d Cir. 2014) (default could not be excused under Martinez because petitioner's underlying ineffectiveness claim lacked merit).
I respectfully recommend that the Court dismiss as procedurally defaulted Claim Five, Sub-claims (a), (c), and (d); Claim Six; Claim Seven, Sub-claim (a); Claim Eight, Sub-claims (a), (c), and (d); Claim Nine, Sub-claim (a); Claim Eleven, Sub-claim (a); Claim Twelve, Subclaim (a); and Claim Thirteen, Sub-claim (a). In these claims or sub-claims, Petitioner asserts either error on the part of the Superior Court, the trial court, or the prosecutor, or alleges ineffective assistance of counsel on direct appeal or in his PCRA proceedings. (Suppl. Am. Hab. Pet., ECF No. 12, at 4-26). Nonetheless, it is well established that Martinez is applicable only to procedurally defaulted “claim[s] of ineffective assistance at trial.” Martinez, 566 U.S. at 9 (emphasis added); see also Davila v. Davis, 582 U.S. 521, 524-25 (2017) (refusing to extend Martinez to procedurally defaulted claims of ineffective assistance of appellate counsel); Murray v. Diguglielmo, No. 09-4960, 2016 WL 3476255, at *4 (E.D. Pa. June 27, 2016) (stating that Martinez categorically does not apply to claims of trial court error).
Furthermore, Martinez does not “create a stand-alone ground for habeas relief based on PCRA counsel's ineffectiveness.” Johnson v. McGinley, No. 18-cv-02885-CMR, 2019 WL 10786021, at *8 (E.D. Pa. Nov. 29, 2019) (citing Martinez, 566 U.S. at 16-17). Claims of PCRA counsel ineffectiveness are not cognizable on federal habeas review. See 28 U.S.C. § 2254(i) (“[T]he ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”); Martel v. Clair, 565 U.S. 648, 662 n.3 (2012) (stating that, “‘[m]ost naturally read,” § 2254(i) prohibits a court from granting substantive habeas relief on the basis of a lawyer's ineffectiveness in post-conviction proceedings”). Petitioner cites to the Pennsylvania Supreme Court's ruling in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). (See Suppl. Am. Hab. Pet., ECF No. 12, at 4-5). However, this state case concerning when PCRA petitioners may raise claims of PCRA counsel ineffectiveness has no bearing on what federal habeas claims are available under federal law.
Petitioner alleges ineffective assistance of trial counsel or sentencing counsel in Claim Ten; and in Sub-claims (b) of Claims Five, Seven, Eight, Nine, Eleven, Twelve, and Thirteen. (Suppl. Am. Hab. Pet., ECF No. 12, at 4-5, 7-26). I conclude Petitioner has failed to establish that the underlying ineffectiveness claim is “substantial,” or has “some merit.” Martinez, 566 U.S. at 14.
1. Claim Five, Sub-Claim (b): Trial Counsel Failed to Preserve Petitioner's Claims for Review
In Claim Five, Sub-claim (b), Petitioner asserts that trial counsel was ineffective because he failed to object to the illegal sentence and the erroneous jury instructions, to consult with Petitioner on his prior sentencing score and tell him about the prosecutor's plea offers, and to request additional jury instructions. (Suppl. Am. Hab. Pet., ECF No. 12, at 4-5).
To the extent that Petitioner alleges in Claim Five that his trial counsel was ineffective for failing to consult with him on his prior sentencing score, this assertion is addressed in Section III.A.1, supra. Likewise, I have already considered his claim that trial counsel provided ineffective assistance by failing to request a “pending cases” charge. See supra Section III.A.3. As to his remaining allegations, Petitioner reiterates and further develops his assertions in Claim Ten and in Sub-Claim (b) of Claims Eight, Nine, Eleven, and Thirteen, respectively. (Suppl. Am. Hab. Pet., ECF No. 12, at 13-26). I accordingly consider his additional assertions in my discussion of these specific claims. See infra Sections III.B.3.-6., III.B.8.
2. Claim Seven, Sub-Claim (b): Trial Counsel Was Ineffective for Failing to Challenge the Prosecutor's Failure to Disclose Brady Materials and the Presentation of Perjured Testimony
Petitioner argues that trial counsel was ineffective for not challenging the prosecutor's failure to turn over requested discovery materials concerning Sadler and Davis. (Suppl. Am. Hab. Pet., ECF No. 12, at 2, 7). He alleges that the two witnesses committed perjury and testified falsely against Petitioner knowing that the prosecutor had not disclosed their criminal records and plea deals with the District Attorney's Office. (Id.).
In Brady v, Maryland, the United States Supreme Court held that the Due Process Clause imposes upon the prosecution an affirmative duty to disclose evidence to the accused that is favorable to the defense and material to guilt or punishment. 373 U.S. 83, 87 (1963); see also Kyles v. Whitley, 514 U.S. 419, 432-43 (1995) (reviewing the origins of the prosecution's “affirmative duty”). To mount a successful Brady claim, a petitioner must establish three elements: (1) the evidence must have exculpatory or impeachment value to the accused; (2) the evidence must be either willfully or inadvertently suppressed; and (3) the defendant was prejudiced because the evidence was “material.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011).
It is well established that the state's knowing use of perjured testimony to obtain a conviction violates the Fourteenth Amendment. Lambert, 387 F.3d at 242 (citing Giglio v. United States, 405 U.S. 150, 153 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S. 213, 216 (1942); Mooney v. Holohan, 294 U.S. 103, 112 (1935)). To make out a constitutional violation, a petitioner must show that: (1) the witness committed perjury; (2) the prosecution knew or should have known of the perjury; (3) the testimony went uncorrected; and (4) there is a reasonable likelihood that the false testimony affected the verdict. Id. Petitioner's underlying claim that trial counsel was ineffective because he failed to object to the prosecutor's alleged Brady violations and its knowing presentation of perjured testimony is insubstantial under Martinez because any such objection would have been meritless. See, e.g., Martinez, 566 U.S. at 14; Sanders, 165 F.3d at 253 (stating that attorney's failure to raise a meritless argument does not constitute ineffective assistance under the Sixth Amendment).
There is no evidence that the Commonwealth suppressed any exculpatory or impeachment evidence concerning Davis's and Sadler's criminal histories and plea agreements. In Section III.A.2., supra, I conclude that the state courts reasonably denied Petitioner's claim that trial counsel was ineffective for failing to impeach the two witnesses' testimony. In fact, both witnesses were questioned by the prosecution and the defense regarding their criminal records, the guilty pleas they entered and the sentences they received for their roles in Genuardi's robbery, and their prior testimony and other statement implicating Petitioner. (See, e.g., N.T. 9/30/15 at 141-42, 178-80; N.T. 10/1/15 at 92-94, 98-99).
In turn, Petitioner has failed to rebut with clear and convincing evidence the Pennsylvania Superior Court's factual finding that Sadler's and Davis's trial testimony “established either that Appellant was not present at the scene or that he was not involved.” Lewis, 2021 WL 1986576, at *3 (citing N.T. 10/1/15 at 162; N.T. 9/30/15 at 180); see also § 2254(e)(1).
Petitioner indicates that it was Davis's and Sadler's prior inconsistent statements, which incriminated Petitioner and were presented by the Commonwealth at his trial, that were perjurious. See, e.g., Pa. R. Evid. 801.3 (stating that prior inconsistent statement by declarantwitness is not excluded as hearsay if it was given under oath at a trial or hearing or is a writing signed and adopted by the declarant-witness). For instance, he notes that Sadler testified that “he said a lot of things in these papers and books that you got, that now, [I] look back at it, and the way I answered a lot of them . . . was stupid;” and “back then, [there] was a lot of lying just to try to cover my own behind.” (Suppl. Am. Hab. Pet., ECF No. 12, at 7-8) (quoting N.T. 10/1/15 at 40-43). Petitioner also refers to Detective Cahill's testimony in which he stated that there were no references to “Chew” in statements he took from Sadler and Tracey Farro (the Genuardi's store manager) or in a narrative summary he prepared of the Farro interview. (Id. at 8) (quoting N.T. 10/2/15 at 66-76). The detective admitted that he erroneously referred to Petitioner as “John Chew Lewis” in the affidavit of probable cause. (Id. at 8-9). Furthermore, Detective Cahill testified concerning an interview he conducted of Sadler. (Id. at 9). In his testimony, the detective claimed that, when he interviewed Sadler, the witness was upset and surprised he was being brought from prison to testify against Lewis and told them that he had lied about Petitioner's involvement. (Id. at 9). According to Petitioner, the detective and prosecutor then threatened “Sadler with perjury [charges] before he changed his mind again stating that [Petitioner] was there, and the prosecution thereby lied to get an illegal sentence/conviction bas[ed] on false testimony and did not correct this evidence.” (Id.). With respect to Davis's testimony, Petitioner contends that the prosecutor introduced prior statements made by Davis to confuse the jury into finding that “Chew or Choo-Choo was the same person,” despite Davis's testimony that Petitioner was not “Chew” and was not involved in the robbery. (Id. at 13) (quoting N.T. 9/30/15 at 156-81).
However, Petitioner has failed to show that the prosecution knowingly presented perjured testimony or evidence at his trial. See Lambert, 387 F.3d at 242. “[Contradictions and changes in a witness's testimony alone do not constitute perjury and do not create an inference, let alone prove, that the prosecution knowingly presented perjured testimony.” United States v. Stadtmauer, 620 F.3d 238, 269 (3d Cir. 2010) (quoting Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991)). Additionally, Detective Cahill denied that he or the prosecutor talked about the “perjury end of it” with Sadler, and he also testified that “[w]e made him [Sadler] aware of what he had testified to in the past, and that at that time he told us he was telling truth.” (N.T. 10/2/15 at 74). The detective noted in his report that he believed Sadler would provide truthful testimony. (Id. at 76). Under the circumstances, it was the jury's responsibility to decide whether to believe the witnesses' prior statements implicating Petitioner or to credit their contradictory trial testimony indicating that Petitioner was not involved in the crimes.
Accordingly, because any objection under Brady would have been meritless, I recommend that Claim Seven, Sub-claim (b) be dismissed.
3. Claim Eight, Sub-Claim (b): Sentencing Counsel Was Ineffective for Failing to Challenge the Sentence based on the Merger Doctrine
Petitioner argues that sentencing counsel was ineffective because she did not object to the trial court's failure to merge the robbery sentences, which allegedly resulted in an unconstitutional and illegal sentence.(Suppl. Am. Hab. Pet., ECF No. 12, at 13, 15). Petitioner has not satisfied the Martinez exception because any objection to the sentence on merger grounds would have been meritless and, accordingly, his claim of ineffective assistance of sentencing counsel is insubstantial. See, e.g., Martinez, 566 U.S. at 14; Glenn, 743 F.3d at 411; Sanders, 165 F.3d at 253.
Petitioner also claims that his trial counsel was ineffective because he failed to object to the sentence; however, he was represented by a different attorney in the sentencing proceeding. (Suppl. Am. Hab. Pet., ECF No. 12, at 4, 16-18; see also N.T. 1/20/16).
Petitioner asserts that the sentences should have been merged because all twelve victims were robbed together, and nothing was taken from them. (Suppl. Am. Hab. Pet., ECF No. 12, at 13). But “[w]here there are multiple victims of a defendant's criminal conduct, separate punishments are not barred by merger doctrine,” even if “there is only a single criminal transaction.” Commonwealth v. Burdge, 562 A.2d 864, 867 (Pa. Super. Ct. 1989) (citing Commonwealth v. Gray, 489 A.2d 213 (1985)). Given this rule, the trial court properly imposed consecutive sentences for twelve counts of robbery because there were twelve individual victims who were threatened with or put in fear of immediate serious bodily injury while Petitioner and his co-conspirators were robbing the Genuardi's. See, e.g., Jackson v. Kerestes, No. 15-4882, 2019 WL 8129734, at *26 (E.D. Pa. Sept. 9, 2019) (explaining that Superior Court stated in Commonwealth v. Lockhart, 297 A.2d 883 (Pa. Super. Ct. 1972), that, if five individuals are robbed in a room at gunpoint, five separate robberies have occurred since each victim was placed in apprehension by the acts of the assailant), report and recommendation adopted, 2020 WL 1028174 (E.D. Pa. Mar. 2, 2020).
Accordingly, I recommend that Claim Eight, Sub-claim (b) be dismissed.
4. Claim Nine, Sub-Claim (b): Sentencing Counsel Was Ineffective for Failing to Consult the Sentencing Guidelines/Enhancements
Petitioner indicates that his sentencing counsel was ineffective because she should have consulted with him about his prior record score and the illegality of the sentence and should have challenged the constitutionality of the provision governing sentencing enhancements based on prior juvenile adjudications, see 204 Pa. Code § 303.6. (Suppl. Am. Hab. Pet., ECF No. at 18).
Furthermore, to the extent that Petitioner claims that trial counsel was ineffective because he failed to consult with Petitioner regarding his prior record score during plea negotiations (Suppl. Am. Hab. Pet., ECF No. 12, at 18), I dispose of this claim in Section III.A.1., supra.
Petitioner has failed to meet the substantiality requirement under Martinez because his underlying ineffectiveness claim is meritless. Specifically, the trial court properly applied the applicable state Sentencing Guidelines.
Section 303.5(a) provides that “[p]rior juvenile adjudications are counted in the Prior Record Score when the following criteria are met: (1) the juvenile offense occurred on or after the offender's 14th birthday, and (2) there was an express finding by the juvenile court that the adjudication was for a felony or one of the offenses listed in §303.7(a)(4).” Petitioner's sentencing counsel stated during the sentencing hearing that she “had a little question about the juvenile record.” (N.T. 1/20/16 at 5). She noted that “it looks like from what the PSI indicated he was arrested on one day, and the next day he was adjudicated,” and she questioned whether the court system could have worked so quickly. (Id. at 5-6). The trial court explicitly found that Petitioner had two juvenile adjudications for felony receipt of stolen property and the juvenile offenses occurred after he had turned fourteen, and Petitioner has not presented clear and convincing evidence rebutting its finding of fact. (Id. at 5-8); § 2254(e)(1) . Furthermore, Petitioner does not explain how either his sentencing or § 303.5 has violated the Due Process Clause. See, e.g., Mayle v. Felix, 545 U.S. 644, 655(2005) (a habeas petitioner must “specify all the grounds for relief available” to him and “state the facts supporting each ground”); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (citing Mayberry v. Petsock, 821 F.2d 179, 187 (3d. Cir. 1987)).
Accordingly, I recommend that Claim Nine, Sub-claim (b) be dismissed.
5. Claim Ten: Trial Counsel was Ineffective for Failing to Consult on the Plea Offers by the Prosecutor
Petitioner asserts that trial counsel was ineffective because he failed to consult with him on the prosecutor's plea offers. (Suppl. Am. Hab. Pet., ECF No. 12, at 18). Petitioner alleges that he tried to advise his attorney that, although the prosecutor was “playing games,” he would take a deal of ten to twenty years' imprisonment. (Id.). Trial counsel purportedly failed to communicate this offer to the prosecution, did not take the best plea deal, and advised Petitioner he could win the case at trial despite failing to challenge the illegal sentence, the erroneous jury instructions, the Brady violations, and the trial court's failure to follow the Pennsylvania Statutory Construction Act. (Id. at 18-19).
Based on the PCRA court's findings of fact regarding the plea negotiations, I find that this ineffectiveness claim is not substantial under Martinez. As I explain in Section III.A.1., the PCRA court credited trial counsel's testimony over Petitioner's contradictory account of what was said in their plea discussions. Lewis, 2022 WL 1016633, at *5-6. It determined that trial counsel told Petitioner he would not receive a sentence of less than twenty-three years, which was the sentence received by a co-defendant, and that the outstanding offer of thirteen years was a “good deal.” Id. at *5 (quoting 8/10/21 PCRA Order at 2 n.2). It also found that, in his testimony, Petitioner confirmed his awareness of the pending plea offer before he met with trial counsel. Id. at *2 (quoting 8/10/21 PCRA Order at 4-5 n.2). Petitioner has not rebutted the state court findings of fact under § 2254(e)(1). He has also failed to show that the trial court would have accepted either the Commonwealth's plea offers or his alleged counteroffer. See Lafler, 566 U.S. at 164 (stating that, to show prejudice, petitioner must establish that trial court would have accepted the plea deal). Therefore, I recommend that Claim Ten be dismissed.
The Superior Court agreed with the PCRA court that Petitioner did not establish prejudice because he could not explain “why the court would have accepted the terms of either plea bargain in light of the fact that it was Appellant who had placed a handgun to the head of the store manager and forced her to open the safe.” Lewis, 2022 WL 1016633, at *6 (citing 8/10/21 PCRA Order at 2 n.2). Petitioner does not mention this determination.
6. Claim Eleven, Sub-Claim (b): Trial Counsel Was Ineffective for Failing to Object to the “Impermissible Unduly Suggestive Eyewitness Testimony” and to Request a Kloiber Instruction
Trial counsel purportedly was ineffective because he failed to object to impermissible identification evidence provided by Davis, Sadler, Poole and Farro and to request an instruction under Commonwealth v. Kloiber, 106 A.2d 820 (1954). (Suppl. Am. Hab. Pet., No. 12, at 2, 20).
Petitioner's sub-claim of trial counsel ineffectiveness is insubstantial under Martinez because any due process objection to this evidence or a request for a Kloiber charge would have been meritless. See, e.g., Martinez, 566 U.S. at 14; Glenn, 743 F.3d at 411; Sanders, 165 F.3d at 253.
The Supreme Court has concluded that “due process concerns arise only when law enforcement officers use[d] an identification procedure that is both suggestive and unnecessary.” Sexton v. Beaudreaux, 585 U.S. 961, 965 (2018) (per curiam) (quoting Perry v. New Hampshire, 565 U.S. 228, 238 (2012)). To be “‘impermissibly suggestive,'” the procedure must “give rise to a very substantial likelihood of irreparable misidentification.” Id. (quoting Perry, 565 U.S. at 237-38). Reliability is the linchpin of the inquiry, and factors to be considered in assessing reliability include “the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Id. at 966 (quotingManson v. Braithwaite, 432 U.S. 98, 114 (1977)).
A Kloiber charge instructs the jury that an eyewitness's identification should be viewed with caution when one of three disjunctive circumstances is met: where the eyewitness “(1) did not have an opportunity to clearly view the defendant; (2) equivocated on the identification of the defendant; or (3) had a problem making an identification in the past.” Commonwealth v. Harris, 884 A.2d 920, 932-33 (Pa. Super. Ct. 2005) (internal citations omitted); see also Kloiber, 106 A.2d at 826-29. This instruction is given where a witness might be physically incapable of making a reliable observation or identification. See, e.g., Commonwealth v. Collins, 70 A.3d 1245, 1255 (Pa. Super. Ct. 2013).
Here, Davis and Sadler were not physically unable to identify Petitioner. On the contrary, Sadler identified Petitioner as William Lewis at trial and testified that he had known Petitioner for most of his life. (N.T. 9/30/15 at 210). Lewis also testified that he knew Petitioner as “Choo-Choo.” (Id. at 156-57). There accordingly was no issue as to whether, for instance, the witnesses had an opportunity to view Petitioner at the time of the crime, or were paying sufficiently close attention at the time they allegedly observed the Petitioner. See, e.g., Sexton, 585 U.S. at 966; Harris, 884 A.2d 932-33. Instead, Davis and Sadler admitted to their involvement in the Genuardi's robbery but recanted their prior statements implicating Petitioner, a person they knew at least by nickname, in the crime. See supra Sections III.A.2., III.B.2. Furthermore, Farro and Poole did not make an eyewitness identification of Petitioner; instead, they merely said that they heard the name “Chew.” (See, e.g., Suppl. Am. Hab. Pet., No. 12, at 2, 20).
Accordingly, I recommend that Claim Eleven, Sub-claim (b) be dismissed.
7. Claim Twelve, Sub-claim (b): Trial Counsel was Ineffective for Failing to Challenge the Prosecutor's Reliance on Hearsay Evidence at the Preliminary Hearing
Petitioner claims that, at the preliminary hearing, the Commonwealth relied exclusively on hearsay testimony to identify Petitioner as a participant in the robbery and that trial counsel provided ineffective assistance by failing to challenge this use of hearsay evidence under Commonwealth v. Harris, 269 A.3d 534 (Pa. Super. Ct. 2022), and Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020). (Suppl. Am. Hab. Pet., ECF No. 12, at 2, 21).
Martinez does not excuse the default of this claim of trial counsel ineffectiveness because it is well established that, once a defendant is found guilty after a trial, any alleged defects or errors that occurred are rendered moot, immaterial, and harmless. See, e.g., Commonwealth v. Ricker, 120 A.3d 349, 353 (Pa. Super. Ct. 2015). “Thus, even if [Petitioner] could establish that his [counsel] was ineffective for not challenging the sufficiency of the evidence at his preliminary hearing, Adams cannot demonstrate that . . . counsel's ineffectiveness prejudiced him.” Adams v. Tice, No. 1:17-cv-239, 2022 WL 138043, at *5 (W.D. Pa. Jan. 14, 2022) (citation omitted). Accordingly, I recommend that Claim Twelve, Sub-claim (b) be dismissed.
8. Claim Thirteen, Sub-Claim (b): Trial Counsel Was Ineffective for Failing to Object to Erroneous Jury Instructions and to Request Additional Instructions
Petitioner alleges that his trial counsel was ineffective because he failed to object to the trial court's unconstitutional instructions on the issues of reasonable doubt, accomplice liability, and conspiracy, and did not request instructions addressing the issues of alibi, pending cases, identification, and perjury. (Suppl. Am. Hab. Pet., ECF No. 12, at 22-26).
As I explain in Section III.A.3., supra, Petitioner's claim that his trial counsel was ineffective because he did not request an “other crimes” instruction was decided on the merits by the state courts, and the state court determinations were neither contrary to, nor involved an unreasonable application of, clearly established federal law, nor were they based on an unreasonable determination of the facts in the light of the state court record. I likewise dispose of his “identification” instruction claim in Section III.B.6., supra. I now find the remaining allegations of ineffective assistance of trial counsel for failing to object to, and request, jury instructions are not substantial under Martinez.
Petitioner claims that the trial counsel should have objected to the accomplice liability instruction because it was confusing and shifted the burden of proof to the defense by indicating that it could find him guilty based on the perjured testimony of Sadler and Davis, the alleged accomplices. (Suppl. Am. Hab. Pet., ECF No. 12, at 23).
However, the trial court provided a proper instruction on how the jury should distinguish between “truthful and false accomplice testimony.” (N.T. 10/5/15 at 90). The jury was specifically directed to “view the testimony of an accomplice with disfavor because it comes from a corrupt and polluted source.” (Id.). It could find Petitioner guilty solely based on an accomplice's testimony only if, “after using the special rules I have just told you about, you are satisfied beyond a reasonable doubt that the accomplice testified truthfully and the defendant is guilty.” (Id.). Accordingly, Petitioner's trial counsel had no basis to object to the trial court's accomplice liability instruction. See, e.g., Bey v. Kauffman, No. 19-2127, 2020 WL 5775932, at *15 (E.D. Pa. July 15, 2020) (concluding that “trial counsel cannot be deemed ineffective for failing to object to the . . . jury instruction which accurately reflected Pennsylvania law.”).
Petitioner indicates that trial counsel was ineffective because he did not object to the “reasonable doubt” instruction's purported reference to “the type of doubt that would make someone eager to act” as opposed to a hesitation to act. (Suppl. Am. Hab. Pet., ECF No. 12, at 24). However, the trial court properly phrased the instruction by stating that “[a] reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting.” (N.T. 10/5/15 at 82); see also Brooks v. Gilmore, 2017 WL 3475475, at *4 (E.D. Pa. Aug. 11, 2017) (“The Supreme Court has made clear, however, that a charge on reasonable doubt should be expressed ‘in terms of the kind of doubt that would make a person hesitate to act rather than the kind on which he would be willing to act.'”) (quoting Holland v. United States, 348 U.S. 121, 140 (1954)). Because the trial court provided the proper instruction, there was no basis for counsel to object.
Petitioner also contends that the trial counsel should have objected to the instruction on conspiracy on the grounds of that it created a reasonable likelihood that the jury applied the instruction in a way that relieved the Commonwealth of its burden of proving conspiracy to commit robbery given Sadler's admission that he lied to get a plea deal. (Suppl. Am. Hab. Pet., ECF no. 12, at 24). But the jury was properly instructed on the elements of the conspiracy charges, including that it had to find beyond a reasonable doubt that Petitioner and at least one other person intended to promote or facilitate the committing of the specified crimes and that one of the conspirators committed an act to carry out or advance their agreement.(N.T. 10/5/15 at 103-08); see also Pa. Suggested Standard Crim. Jury Instr. § 12.903B (“Conspiracy as Charged in this Case” (emphasis omitted)); Labrake, 2009 WL 2924808 at *22 (indicating that jury charge that tracked language from Pennsylvania Suggested Standard Instructions was “presumptively proper”).
The Third Circuit case cited by Petitioner concluded that there was a reasonable likelihood that the jury instruction relieved the Commonwealth of its burden of proving the “specific intent to kill” element of first degree murder, in violation of his right to due process. (Suppl. Am. Hab. Pet., ECF No. 12, at 24); Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 284-88 (3d Cir. 2018). Petitioner was not charged or convicted of first degree murder.
Petitioner further indicates that counsel was ineffective for failing to request an instruction directing the jury to give special scrutiny to the two cooperating witnesses' testimony. (Suppl. Am. Hab. Pet, ECF No. 12, at 24) (citing Pa. Suggested Standard Crim. Jury Instr. § 4.06; Commonwealth v. Bohonyi, 900 A.2d 877 (Pa. Super. Ct. 2006)). However, it was not unreasonable for trial counsel to refrain from requesting a specific “perjury” instruction. Under Strickland, a court must be “highly deferential” to counsel's performance and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 668 U.S. at 689. The Superior Court agreed with the PCRA court that the two witnesses' testimony at Petitioner's trial established either that Petitioner was not present at the scene or that he was not involved in the Genuardi's robbery. Lewis, 2021 WL 1986576, at *3 (citing N.T. 10/1/15 at 162; N.T. 9/30/15 at 180). As I note above, see supra Section III.A.2., Petitioner has failed to rebut these findings of fact under § 2254(e)(1). Given these factual findings, the PCRA court reasonably explained that trial counsel had a reasonable basis to refrain from requesting “crimes of dishonesty” and “pending cases” instructions because the two witnesses' testimony at trial bolstered the defense. 7/20/20 Rule 907 Notice at 12 n.4; see supra Section III.A.3. I reach the same conclusion concerning trial counsel's failure to request a similar “perjury” instruction. Accordingly, Petitioner has not shown the requisite deficient performance to make out a “substantial” claim of trial counsel ineffectiveness regarding the omission of an instruction on the issue of perjury.
Petitioner cites to Bohonyi. (Suppl. Am. Hab. Pet., ECF No. 12, at 25). But, in that case, the Superior Court concluded that the trial counsel was not ineffective for failing to request a jury instruction specifying that an element of the solicitation charge was that the defendant knew or believed he was soliciting an individual who was less than sixteen years old. Bohonyi, 900 A.2d at 884-85.
Finally, Petitioner admits that the trial court provided an alibi instruction, but he contends that it was incomplete. (Suppl. Am. Hab. Pet, ECF No. 12, at 25). He argues that the trial court failed to explain that alibi evidence may negate proof beyond a reasonable doubt even if it is not wholly believed and that failure to prove an alibi is not evidence of guilt. (Id.). It is undisputed that, “while a proper alibi instruction need not contain any ‘magic language,' the charge must make it clear to the jury that alibi evidence, by itself or taken together with other evidence may tend to raise a reasonable doubt as to defendant's guilt.” Commonwealth v. Allison, 622 A.2d 950, 953 (Pa. Super. Ct. 1993). The trial court charged the jury that “[t]he defendant's evidence that he was not present either by itself or together with other evidence may be sufficient to raise a reasonable doubt concerning his guilt.” (N.T. 10/5/15 at 96-97). There was no basis for trial counsel to object to the alibi instruction or to request an alternative jury charge.
For the foregoing reasons, I recommend that Claim Thirteen, Sub-claim (b) be dismissed.
C. Petitioner's Request for an Evidentiary Hearing
In both the memorandum of law he filed in support of his initial habeas petition and the supplemental amended petition, Petitioner requests an evidentiary hearing. (See, e.g., Mem. of Law, ECF No. 7, at 3-6; Suppl. Am. Hab. Pet., ECF No. 12, at 26). However, an evidentiary hearing on his claims is barred by the AEDPA.
Petitioner's Claims One through Four were litigated on the merits in the state courts and accordingly review is governed by § 2254(d). The Third Circuit has held that, under Cullen v. Pinholster, 563 U.S. 170 (2011), “district courts cannot conduct evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d).” Fooks v. Superintendent, Smithfield SCI, 96 F.4th 595, 597-98 (3d Cir. 2024) (quoting Brown v. Wenerowicz, 663 F.3d 619, 629 (3d Cir. 2011)). There is an exception where the state court has denied the petitioner a hearing because it believed “he would lose even if his allegations were presumed true.” Id. at 598 (emphasis in original). “In that case, Pinholster's bar does not apply if that ruling was unreasonable as a matter of clear federal law.” Id. (citing Jordan v. Hepp, 831 F.3d 837, 849-50 (7th Cir. 2016)). Accordingly, an evidentiary hearing is not barred if the state court denied the claim without a hearing because it found that, even if the allegations were true, they would not merit relief, the habeas petitioner alleged facts that would make his counsel's conduct objectively unreasonable under Strickland, and the alleged facts would further render the state court's contrary ruling unreasonable under § 2254(d)(1). Id.
The PCRA court conducted an evidentiary hearing on Claim One. (See generally N.T. 7/23/21). In any event, Petitioner has not alleged facts that would render the state court rulings unreasonable on Claims One through Four under the AEDPA. Accordingly, Pinholster bars an evidentiary hearing on the claims that were litigated on the merits in the state courts.
As to Claims Five through Thirteen, “when a state post-conviction attorney negligently fails to develop the facts needed to support a claim, ‘a federal court may order an evidentiary hearing or otherwise expand the state-court record only if the prisoner can satisfy § 2254(e)(2)'s stringent requirements.'” Williams v. SuperintendentMahanoy SCI, 45 F.4th 713, 723 (3d Cir. 2022) (quoting Shinn v. Ramirez, 596 U.S. 366, 384 (2022)). Shinn instructs that, if an evidentiary hearing is barred under AEDPA, federal courts must forego it and deny habeas relief unless the prisoner would prevail on the merits of the underlying ineffectiveness claim. Id. at 724. Petitioner and his PCRA counsel did not develop the factual basis of his procedurally defaulted claims in the state post-conviction review proceedings, and there is no suggestion that the narrow statutory exceptions apply. See id. at 723 (“Williams, through his attorney had a chance to develop the facts to support his current claim in state court. He elected instead to litigate a different [ineffectiveness] claim [in his PCRA proceedings] that was rejected on the merits, and so he failed to develop the record to support his new claim.”) Because Petitioner's “underlying ineffectiveness claim[s cannot] succeed[ ] considering only the state court record,” I recommend that Claims Five through Thirteen be dismissed without an evidentiary hearing. Id. at 724.
IV. CONCLUSION
For the foregoing reasons, I respectfully recommend that the instant habeas petition be denied.
Therefore, I respectfully make the following
RECOMMENDATION
AND NOW this 10TH day of June, I respectfully RECOMMEND that the Petition for Habeas Corpus (ECF No. 1) be DENIED without the issuance of a certificate of appealability.
Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.