Opinion
Civil Action 2:20-cv-0020
01-24-2022
EUGENE J. McCARTHY, JR., Petitioner, v. MARK CAPOZZA, Superintendent, THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Respondents.
Ronald M. Wabby, Jr. Office of the District Attorney Allegheny County
Ronald M. Wabby, Jr.
Office of the District Attorney
Allegheny County
Mark R. Hornak, Chief United States District Judge
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Petitioner, Eugene J. McCarthy, Jr., a prisoner in the custody of the Pennsylvania Department of Corrections, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 6). He is challenging the August 19, 2012, judgment of sentence imposed on him by the Court of Common Pleas of Allegheny County, Pennsylvania, at its criminal case CP-02-CR-0011401-2012. For the reasons outlined below, it is recommended that the Court deny each of Petitioner's claims and deny a certificate of appealability.
II. REPORT
A. Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. That provision allows a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). Errors of state law are not cognizable in a federal habeas action. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 1 It is McCarthy's burden, as petitioner, to prove he is entitled to the writ. 28 U.S.C. § 2254(a) ; see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017).
B. Relevant and Procedural Background
1. State Court Proceedings
This case arises from the “robbery-induced homicide” of Brandon Johns on August 7, 2012. Commonwealth v. McCarthy, No. 11 WDA 2014, slip op., filed Jan. 15, 2016 (unpublished) (ECF No. 15-5). McCarthy was charged by Criminal Information with one count each of the following: Criminal Homicide, Robbery - Inflict Serious Bodily Injury, Tampering with Physical Evidence, and Criminal Conspiracy (Robbery). McCarthy was represented by Lisa G. Middleman, Esquire, of the Office of Public Defender, during the pre-trial, trial, sentencing, and post-sentencing proceedings. Following a jury trial presided over by the Honorable Anthony M. Mariani, McCarthy was found guilty of Third Degree Murder, Robbery, and Criminal Conspiracy (Robbery) and not guilty of Tampering with Physical Evidence. On November 1, 2014, McCarthy was sentenced to ten (10) to twenty (20) years' incarceration for third-degree murder and three (3) to six (6) years' incarceration for conspiracy to commit robbery, to be served consecutively to the third-degree murder sentence. No. further penalty was imposed on the robbery conviction.
At trial, McCarthy's case was joined with that of Quintelle Anthony Rankin's case. Rankin was charged by Criminal Information filed at CP-02-CR-0011400-2012 and charged with Criminal Homicide, Robbery, Firearms Not To Be Carried Without a License, and Criminal Conspiracy. The same jury convicted Rankin of second-degree murder, robbery (serious bodily injury), criminal conspiracy (robbery), and carrying a firearm without a license. Rankin was acquitted of first-degree murder. Having been sentenced to second-degree murder, Rankin was sentenced to life in prison. Rankin was represented at trial by J. Richard Narvin, Esquire, of the Office of Conflict Counsel.
The Trial Court, in its Rule 1925(a) Opinion, recounted the factual background and evidence that led to McCarthy's arrest and conviction: 2
The convictions in this case are based heavily on the testimony of Cory Estes. Mr. Estes is the nephew of Quintelle Rankin and he is related to the defendant, Eugene McCarthy, by marriage. At the time of trial, Mr. Estes was 19 years old. At trial, Mr. Estes testified that on August 7, 2012, he was at the Brinton Manor Apartments. He met Mr. Rankin and the defendant around noon that day. They then left that area together in the defendant's car and proceeded to the Hill District area of Pittsburgh attempting to locate someone from whom they could purchase marijuana. Having been unsuccessful in their efforts to obtain marijuana, they then left that area and drove to McKeesport, Pennsylvania, to continue their efforts to purchase marijuana. At approximately 4:00 p.m,, they returned to the Brinton Manor Apartments because they were unsuccessful in reaching their goal to obtain marijuana. While they were still in the car, defendant stated aloud that it appeared as though there were some “licks” in the area. Mr. Estes testified that the term “licks” referred to persons who were potential robbery targets. The defendant parked the car and the three men began to walk around the area. They soon encountered two other men and asked those men if they could get them marijuana. One of the other men, Brandon Johns, directed Mr. Estes, Mr. Rankin and the defendant to follow him into a building. All four men entered the building. Mr. Estes testified that Brandon Johns then sat down on steps and pulled out a scale and large bag of marijuana and discussed cost. The scale and marijuana were recovered from the scene. At that point, the defendant attempted to steal the marijuana by grabbing the bag of marijuana and telling Brandon Johns that “you might as well give me all the shit”. A few seconds later, Mr. Rankin pulled out a gun. Brandon Johns then stated “you can have it all”. He then reached with both hands into his pockets and he pulled out a black handgun. Mr. Estes testified that the defendant and Brandon Johns began to “tussle” over the black handgun. Mr. Estes ran up the steps of the building and, as he was running, he heard a gunshot. He testified that he did not know who fired it. Mr. Estes heard another shot and he observed his uncle, Mr. Rankin, slump over as though he had been shot. Mr. Rankin then fired his weapon at Brandon Johns. Mr. Estes believed he heard three or four gunshots. A nearby witness, who was outside of the building, testified that he heard approximately six gunshots. In total, eight spent cartridges were found at the scene. Six .40 caliber Smith & Weston cartridges were found at the scene and two .380 caliber cartridges were found. Mr. Rankin admitted at trial that he possessed a .40 caliber handgun during the incident and he did shoot Brandon Johns. Mr. Estes testified that immediately after the shooting, the three men left the scene and the defendant drove Mr. Rankin to the hospital. The defendant and Mr. Rankin were subsequently arrested. . . .
Trial evidence included the defendant's tan cargo shorts. DNA analysis confirmed that there were two blood spots on the shorts that matched his DNA profile. There was also a blood stain on the rear of the shorts that matched the DNA profile of Brandon Johns.3
Trial testimony also established that Brandon Johns died from multiple gunshot wounds to his neck and chest. He was shot seven times. He was shot twice in the neck. One wound was in the back of the neck and one was in the front of the neck. Because of the gunpowder stippling on the skin, trial testimony indicated that these shots had been fired within four inches of the skin. He was also shot in the right shoulder, the right upper back, the right lower chest, the left posterior shoulder and the right anterior thigh.
Although Mr. Rankin admitted that he shot Brandon Johns, his trial testimony differed from the testimony of Mr. Estes. Mr. Rankin testified that once Mr. Estes, the defendant and he entered the building, Brandon Johns sat on the steps. The defendant asked his two companions if they were going to “pitch in” for marijuana. Mr. Rankin advised that he wanted to buy his own marijuana. Then, according to Mr. Rankin, Brandon Johns pulled out a gun. Mr. Rankin testified that the defendant then began to scuffle with Brandon Johns at which time a shot went off from Brandon Johns' gun. A second shot from that gun was fired. Mr. Rankin testified that he began firing shots from his gun. He testified that [he] closed his eyes and began firing his weapon “uncontrollably”. At that point, according to Mr. Rankin, the defendant ran up the steps. After he realized that Brandon Johns was no longer firing his weapon and was slumped against the stairway wall, Mr. Rankin, Mr. Estes and the defendant left the scene to take Mr. Rankin to the hospital.
The defendant also presented the testimony of Georgia Ford, a caretaker of the daycare facility that the defendant's child attended. Ms. Ford testified that she saw the defendant sometime after 4:00 - 4:30 pm on the day of the shooting while he was waiting to pick up his child from daycare.Trial Court 1925(a) Opinion, No. 201211401, slip op. (C.P. Allegheny, July 17, 2014) (ECF No. 14-5).
On December 31, 2013, McCarthy, represented by Scott B. Rudolf, Esquire, of the Office of Public Defender, appealed his convictions to the Pennsylvania Superior Court, presenting four (4) issues for review, each challenging the sufficiency of the evidence:
1. Was Appellant erroneously convicted of Third Degree Murder and Robbery via Serious Bodily Injury Inflicted or Threatened given that the Commonwealth failed to prove, beyond a reasonable doubt, that Appellant's co-defendant, Quintelle Rankin, did not act justifiably when he shot and killed the decedent, Brandon Johns such action being justifiable since it was taken in defense of himself and of Appellant)?
2. Was Appellant erroneously convicted of Third Degree Murder given that the Commonwealth failed to prove, beyond a reasonable doubt, that Appellant was4
vicariously liable for Brandon Johns' death under either the rule of accomplice liability or the rule of conspiratorial liability, given that (a) Appellant did not act with recklessness or extreme indifference to the value of human life, as was necessary in order to convict him of Third Degree Murder under the rule of accomplice liability; (b) the rule of conspiratorial liability did not survive the enactment of the Crimes Code; and (c) even if conspiratorial liability was a viable option, Quintelle Rankin's fatal shooting of Johns was not foreseeable to Appellant since Appellant was unaware, so far as the evidence indicated, that Rankin was even armed?
3. Was Appellant (a) erroneously convicted of Robbery via Serious Bodily Injury Inflicted or Threatened given that the Commonwealth failed to prove, beyond a reasonable doubt, that Appellant was vicariously liable for Rankins fatal shooting of Johns (Appellant, as noted, being unaware that Rankin was armed), and (b) erroneously convicted of conspiracy to commit robbery via serious bodily injury inflicted or threatened given that the Commonwealth failed to prove, beyond a reasonable doubt, that the parties agreed to commit a crime and, if they did, that the crime was robbery via serious bodily injury inflicted or threatened rather than robbery via physical force?
4. Were Appellant's due process rights under the Fourteenth Amendment to the United States Constitution and Article I, §9 of the Pennsylvania Constitution violated when he was convicted of Third Degree Murder, Robbery via Serious Bodily Injury Inflicted, and Conspiracy to Commit Robbery via Serious Bodily Injury Inflicted or Threatened based on legally insufficient evidence?Appellant Br. at 3-4 (ECF No. 15-2 at 12-13). After briefing, the Superior Court affirmed the judgment of sentence by Memorandum filed January 15, 2016. Commonwealth v. McCarthy, No. 11 WDA 2014 (Pa. Super. Ct. Jan 15, 2016) (unpublished opinion). (ECF No. 15-5). The Pennsylvania Supreme Court denied allocator on June 13, 2016. (ECF No. 15-10).
Unsuccessful on direct appeal, McCarthy next sought relief under Pennsylvania's Post-Conviction Relief Act (“PCRA”) by filing a timely pro se petition in which he raised four (4) ineffective assistance of counsel claims. (ECF No. 16-1). The trial court, now presiding as the PCRA court, appointed Scott Coffey, Esquire, to represent McCarthy through his PCRA 5 proceedings. On February 21, 2017, Attorney Coffey filed an extensive Turner/Finley letter and a Motion to Withdraw. (ECF No. 16-2 at 3-15). On March 6, 2017, McCarthy filed pro se objections to Attorney Coffey's Turner/Finley letter. (ECF No. 16-2 at 17 - 27). McCarthy then retained private counsel, Paul Gettleman, Esquire, who filed an amended PCRA petition on June 22, 2017. (ECF No. 16-2 at 28-45). In the Amended Petition, McCarthy, through counsel, raised two (2) ineffective assistance of trial counsel claims:
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.3d 213 (Pa. Super. Ct. 1988) (en banc).
1. Trial counsel was ineffective and had a conflict of interest where she acted as both an advocate and a witness.
2. Trial counsel was ineffective for not requesting an “accomplice charge” regarding the testimony of Estes.Id. at 28.
On September 18, 2018, the Commonwealth filed its Answer to the PCRA Petition. (ECF No. 16-3 at 1-34). On January 8, 2018, the PCRA court presided over an evidentiary hearing. McCarthy was present at the hearing and was represented by Paul Gettleman, Esquire. The sole witness testifying at the hearing was McCarthy's trial attorney, Lisa Middleman, Esquire. (T18-0225). Following the hearing, Judge Mariani dismissed the petition. (ECF No. 16-3 at 41).
On January 22, 2018, McCarthy, through Attorney Gettleman, filed a timely notice of appeal from the PCRA dismissal order to the Superior Court. McCarthy challenged the denial of his ineffective assistance of counsel claims and presented these two (2) issues:
1. Was Trial Counsel ineffective for failing to request an accomplice charge at trial?
2. Was Trial Counsel ineffective, causing a conflict of interest for acting as both a witness and an advocate at trial?6
The Superior Court affirmed the dismissal of the PCRA Petition on November 5, 2018. Commonwealth v. McCarthy, No. 145 WDA 2018 (Pa. Super. Ct. Nov. 5, 2018) (unpublished opinion) (Id. at 16-7 at 1). The Pennsylvania Supreme Court denied allocator on May 6, 2019. (Id. at 33).
2. Federal Court Proceedings
Having been denied relief in state court, McCarthy filed pro se the instant federal habeas petition and memorandum in support on December 20, 2019, in which he raises three (3) issues:
The “prisoner mailbox rule” provides that a prisoner's pleadings are deemed filed at the moment he delivers the documents to prison officials to be mailed, and not the date the documents were actually filed in court. Houston v. Lack, 487 U.S. 266, 275-76 (1988); see also Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (explaining that “a pro se prisoner's . . . petition is deemed filed at the moment he delivers it to prison officials for mailing”).
ISSUE ONE: Was Petitioner erroneously convicted of Third Degree Murder, given that the Commonwealth failed to prove beyond a reasonable doubt that Petitioner was vicariously liable for Brandon Johns' death under either the rule of accomplice liability or the rule of conspiratorial liability.
ISSUE TWO: Trial counsel was ineffective for not requesting a corrupt and polluted source jury instruction regarding the testimony of accomplice Corey Estes.
ISSUE THREE: Trial counsel was ineffective and had a conflict of interest where she acted as both an advocate and a witness for herself to the detriment of the Petitioner's defense.(ECF No. 7). Respondents filed an Answer in which they argue that the claims are meritless. (ECF No. 13). The Court has reviewed the filings of the parties, the original state court record which Respondents provided the Court, including the transcripts from the bail hearing held on December 11, 2012 (T13-0526); the pretrial conference held on April 9, 2013 (T14-0838); three volumes of trial transcripts (T14-0214, T14-2015, and T14-2016), the jury trial verdict (T14 0245); 7 the sentencing hearing (T14-0023); and the PCRA hearing (T18-0225). The matter is fully briefed and ready for disposition..
C. The Standard for Habeas Relief under 28 U.S.C. § 2254
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing habeas corpus petitions “must be vigilant and independent . . . a commitment that entails substantial judicial resources.” Id. This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “which imposes significant procedural and substantive limitations on the scope” of the Court's review. Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017). Under 28 U.S.C. § 2254, federal courts in habeas cases must give considerable deference to determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010). Various standards must be met before the Court can review the merits of this habeas petition.
1. Timeliness
Before the Court can address the merits of McCarthy's petition, it must first decide whether it was timely filed. Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019). Pursuant to AEDPA, a state prisoner must file his federal habeas claims within one year of the date his judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). Respondents do not dispute that the instant petition was timely filed.
2. Has the Petition Presented Cognizable Habeas Claims?
Habeas relief may be afforded to a state prisoner only when his or her custody violates federal law. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 6 (2010). The instant Petition 8 raises three grounds for relief: a sufficiency of the evidence claim (Claim One) and two ineffective assistance of trial counsel (Claims Two and Three). Each of the three claims presents a cognizable habeas claim.
3. Federal Habeas Review of Properly Exhausted Claims
Among AEDPA's procedural prerequisites is a requirement that the petitioner “has exhausted the remedies available in the courts of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). An exhausted claim is one that has been “fairly presented” to the state courts “by invoking one complete round of the State's established appellate review process, ” and which has been adjudicated on the merits. Carpenter v. Vaughn, 296, F.3d 138, 146 (3d Cir. 2002) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)); Johnson v. Williams, 568 U.S. 298, 302 (2013). “Fair presentation” of a claim merely requires the petitioner to “present [the] federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” Greene v. Palakovich, 606 F.3d 85, 93 (3d Cir. 2010) (citation omitted). For § 2254(d) purposes, a claim has been adjudicated on the merits “when a state court has made a decision that finally resolves the claim on the basis of its substance, rather than on a procedural, or other, ground.” Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d 528, 545 (3d Cir. 2014) (quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009)).
When a claim is properly exhausted in the state courts and then raised on federal habeas review, the level of deference afforded to the state-court decision is substantial. Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017), cert. denied sub nom., Gilmore v. Bey, 138 S.Ct. 740 (2018). AEDPA “does not ‘permit federal judges to . . . casually second-guess the decisions of their state-court colleagues or defense attorneys.' ” Collins, 742 F.3d at 543 (quoting Burt v. Titlow, 571 U.S. 12, 14 (2013)). As a result, under § 2254(d), federal habeas relief 9 is unavailable for exhausted claims unless the state-court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law . . . 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).
“A state court decision is ‘contrary to' clearly established federal law if it ‘applies a rule that contradicts the governing law set forth' in Supreme Court precedent, or it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different' from that reached by the Supreme Court.” Randolph v. Secretary Pennsylvania Dept. of Corr., 5 F.4th 362, 373 (3d Cir. 2021) (quoting Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)) (citation omitted) (alteration in original); see also Travillion v. Superintendent Rockview SCI, 982 F.3d 896, 901 (3d Cir. 2020).
“By contrast, a state court decision reflects an ‘unreasonable application of such law' only ‘where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents, a standard the Supreme Court has advised is ‘difficult to meet' because it was ‘meant to be'.” Randolph, 5 F.4th at 373 (quoting Harrington v. Richter, 562 U.S. 86 100 (2011). “A state-court decision ‘involve[s] an unreasonable application' of clearly established federal law if the state court (1) ‘identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case'; or (2) ‘unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.' ” Lambert v. Blackwell, 387 F.3d 210 at 210 (quoting Williams, 529 U.S. at 407). 10
“Finally, ‘a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding'.” Randolph, 5 F.4th at 373 (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Lambert v. Blackwell, 387 F.3d 210, 234-35 (3d Cir. 2004). “A federal habeas petition[er] must overcome the limitation of § 2254(d)[ ] on the record that was before that state court”; “evidence introduced in federal court has no bearing on § 2254(d)[ ] review.” Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (footnote omitted). If a reasonable basis existed for the factual findings reached in the state courts, then habeas relief is not warranted. Burt v. Titlow, 571 U.S. 12, 18 (2013). A federal habeas court “may not deem state-court factual determinations unreasonable ‘merely because [we] would have reached a different conclusion in the first instance'.” Randolph, F.4th at 373 (quoting Brumfield v. Cain, 576 U.S. 305, 313-1 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
“[D]istrict courts cannot conduct evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d). Otherwise, federal habeas petitioners would be able to circumvent the finality of state court judgments by establishing a new factual record.” Brown v. Wenerowicz, 663 F.3d 619, 629 (3d Cir. 2011). “This would contravene AEDPA, which requires petitioners to diligently present the facts in state court before proceeding to the federal courthouse.” Id.
A state court's factual determination is afforded substantial deference. 28 U.S.C. § 2254(d)(2). “A determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Respondents do not dispute that McCarthy has exhausted each of the three claims raised in this federal habeas petition and that no claim is procedurally defaulted. Thus, each of McCarthy's 11 claims will be reviewed under the deferential standard of review under AEDPA. See 28 U.S.C. § 2254(d).
D. Discussion
1. Claim One - Sufficiency of the Evidence
On direct appeal, McCarthy claimed, as he does in the instant federal habeas petition, that the evidence presented at trial was insufficient to prove he had the requisite malice for third degree murder. A claim that the evidence is insufficient to sustain the verdict is cognizable in habeas corpus as a due process claim. Jackson v. Byrd, 105 F.3d 145 (3d Cir. 1997). The test is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 148 (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)(emphasis in Jackson v. Virginia). The court is not to make its own subjective determinations of guilt or innocence. Jackson v. Virginia, 443 U.S. at 319 n.13. When reviewing a sufficiency of the evidence claim on habeas corpus review, the court looks to state law to determine whether the prosecution proved each element of the offense. Byrd, 105 F.3d at 149.
McCarthy claims that he was erroneously convicted of Third Degree Murder because the Commonwealth failed to prove beyond a reasonable doubt that he was vicariously liable for the death of Brandon Johns under either the rule of accomplice liability or the rule of conspiratorial liability. Pet.'s Memo at 3 (Issue One). Respondents maintain that the Superior Court correctly addressed McCarthy's challenge of the sufficiency of the evidence and that the state court's decision was neither contrary to federal law as determined by the Supreme Court of the United States nor was the state court's determination an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. 12
The “clearly established Federal law” for reviewing this claim under 28 U.S.C. § 2254(d)(1) is set forth in Jackson v. Virginia, 443 U.S. 307 (1979). In a habeas corpus proceeding, where the sufficiency of the evidence is in contention:
[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Byrd, 105 F.3d 145, 147 (3d Cir. 1997) (quoting Jackson v. Virginia, 443 U.S. at 318- 19) (internal citations and quotes omitted).
In rejecting McCarthy's contention that the Commonwealth failed to present sufficient evidence of third-degree murder, the Superior Court applied the Pennsylvania equivalent of the Jackson v. Virginia standard. See Evans v. Court of Common Pleas, Delaware Cnty., 959 F.2d 1227, 1233 (3d Cir. 1992) (holding that the test for insufficiency of the evidence is the same under both Pennsylvania and federal law). In its analysis, the Pennsylvania Superior Court was guided by the following standard of review:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the factfinder. In addition, we note that the facts of circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of fact13
while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. McCarthy, Memorandum filed Jan. 1, 2016, at 5 (unpublished) (ECF No. 15-5) (quoting Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011), appeal denied, 32 A.3d 1275 (Pa. 2011) (quoting Commonwealth v. Jones, 874 A.2d 108, 120-21 Pa. Super. 2005)).
The trial court reviewed the factual record and concluded,
The defendant next claims that the evidence was insufficient to convict him of Third Degree Murder because the evidence did not demonstrate that he was legally responsible for the creation of a substantial and unjustified risk of serious bodily injury, that he was not aware that such a risk existed or that he acted with extreme indifference to the value of human life. The defendant essentially claims that he could not have been convicted of Third Degree Murder because he did not know that Mr. Rankin or Brandon Johns were armed and intended to use deadly force. However, the defendant ignores the concept of accomplice liability and pursuant to that legal theory, his conviction should stand.
The evidence was clear that the defendant did not shoot Brandon Jones. However, the evidence was more than ample to convince Mr. Rankin of Third Degree Murder. . . . [T]he evidence was also sufficient to prove beyond a reasonable doubt that the defendant was an accomplice to Third Degree Murder. The defendant came up with the idea to rob Brandon Johns. The defendant stole the marijuana by force as Mr. Rankin was pointing a gun at Brandon Johns. During the robbery, Mr. Rankin shot Brandon Johns multiple times, killing him. The actions of the defendant and Mr. Rankin were clearly coordinated. This Court believes the evidence was sufficient to prove that the defendant acted in concert with Mr. Rankin to aid and assist in the robbery which resulted in the shooting of Brandon Jones. According the Third Degree Murder conviction should be affirmed as the evidence was sufficient to demonstrate that the defendant acted as an accomplice of Mr. Rankin.2
2 In this Court's view, the evidence was also sufficient to convict the defendant of Second Degree Murder as an accomplice to Mr. Rankin. The malice shown by the commission of the robbery by the defendant and Mr. Rankin also supports the defendant's conviction for Third Degree Murder in this case.
Trial Court 1925(a) Opinion, filed July 19, 2014 at 9-10 (ECF No. 14-5 at 9-10). The Superior Court agreed with the trial court, concluding that,14
[b]ecause a homicide occurred while [McCarthy] was committing the enumerated offense of robbery, [McCarthy] exhibited the ‘wickedness of disposition, hardness of heart, cruelty, reckless of consequences, and . . . mind regardless of social duty” required to find malice for purposes of third degree murder. Thus, the Commonwealth presented sufficient evidence for the jury to find, beyond a reasonable doubt, that [McCarthy] committed third-degree murder.Superior Court Memorandum filed Jan. 1, 2016, at 22 (ECF No. 15-5).
The Superior Court applied the correct legal standard when it evaluated this claim. As a result, its adjudication satisfies review under the “contrary to” clause of § 2254(d)(1). The question then becomes whether the Pennsylvania Superior Court's adjudication of McCarthy's sufficiency of the evidence claim was an unreasonable application of Jackson. “A state court decision is ‘an unreasonable application of' clearly established federal law if it ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case'.” Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (quoting Williams, 529 U.S. 407-08)) “We may not grant habeas relief merely because we believe that ‘the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. (quoting Renico v. Lett, 599 U.S. 766, 130 S.Ct. 1855, 1862 (2010). “Rather, that application must be objectively unreasonable.” Renico, 130 S.Ct. at 1862. “Thus, ‘even a strong case for relief does not mean the state court's contrary conclusion was unreasonable'.” Eley, 712 F.3d at 846 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011)).
The Superior Court set forth a full analysis of the mens rea requirement needed to sustain a conviction for third degree murder. The Superior Court began its analysis by setting forth the statutory definition of murder, defining murder of the first degree, murder of the second degree, and murder of the third degree. Superior Court Memorandum at 15, 1/15/2016 at 14-15. The Superior Court then generally discussed malice and specifically addressed the malice required to be proven for a third-degree murder conviction. 15
Next, the Superior Court set forth the elements of third degree murder:
A person may be convicted of third-degree murder where the murder is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice aforethought. Malice consists of a wickedness of disposition, hardness of heart, cruelty, reckless of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.Commonwealth v. Pigg, 571 A.2d 438, 441-42 (Pa. Super. 190), appeal denied, 581 A.2d 571 (Pa. 1990) (internal quotations and citations omitted).
The elements of third degree murder, as developed by case law, are a killing done with legal malice but without specific intent to kill required in first degree murder. Malice is the essential element of third degree murder, and is the distinguishing factor between murder and manslaughter.Commonwealth v. Cruz-Centeno, 668 A.2d 36, 539 (Pa. Super.1995), appeal denied, 676 A.2d 1195 (Pa. 1966).
[E]vidence of intent to kill is simply irrelevant to third degree murder. The elements of third degree murder absolutely include an intentional act, but not an act defined by the statute as intentional murder. The act sufficient for third degree is still a purposeful one, committed with malice, which results in death - clearly, one can conspire to such an intentional act.Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013), cert. denied sub nom. Best v. Pennsylvania, 134 S.Ct. 2314, 189 L.Ed.2d 192 (2014) (emphasis in original).
Here, Appellant was convicted of conspiracy to commit robbery (serious bodily injury), robbery (serious bodily injury inflicted), and third-degree murder, and Appellant's co-conspirator was convicted of conspiracy to commit robbery, robbery, carrying a firearm without a license, and second-degree murder. The jury acquitted Appellant of second-degree murder.
The requisite malice for second-degree murder can be inferred by the underlying felonious act, and Appellant was convicted of robbery (inflicts serious bodily injury) which is an enumerated felony in the statute. Thus, the jury could have convicted him of second-degree murder. See Lambert, supra. 16
During the sentencing hearing, the court noted:
The total sentence is 13 to 26 years. . . . To those on the side of Mr. Johns in this case, who think this is a lesser sentence than the defendant deserves, I understand why you might feel that way.
But I think the evidence is clear - I shouldn't say clear, I think the evidence presented and the jury's verdict supports the view of this case that while Defendant agreed to get involved in an armed robbery, he did not expect his co-defendant to execute Mr. Johns as he did. And we are to sentence defendants on what their legally responsible conduct is.
And there is no other reason the court can think of why the jury would come back on murder of the third degree on Defendant, as opposed to murder in the second degree, that they didn't feel that to some degree Mr. Rankin even acted beyond what Defendant expected, or what was planned on.
I think Defendant is entitled to the benefit of the differences in the verdict.Sentencing Transcript, 11/18/2013, at 69-70. (T1-0023).
Appellant claims that because the Commonwealth did not prove Appellant was aware of his co-conspirator's weapon, it did not establish that Appellant acted with malice. Appellant contends that accomplice liability does not render him culpable for a homicide that results from a robbery in which he was an accomplice if he was not aware that his accomplice was armed. . . .
Although the jury did not convict Appellant of second-degree murder, it convicted him of robbery. As a result, the Commonwealth presented sufficient evidence for the jury to conclude that Appellant exhibited malice by committing a robbery during which a victim was recklessly killed. See Lambert, supra.
. . .
Just because the jurors did not convict Appellant of second-degree murder, as they could have done, does not mean Appellant lacked the malice that resulted in this robbery-induced homicide. Because a homicide occurred while Appellant was committing the enumerated offense of robbery, Appellant exhibited the “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and . . . mind regardless of social duty” required to find malice for purposes of third degree murder. Thus, the Commonwealth presented sufficient17
evidence for the jury to find, beyond a reasonable doubt, that Appellant committed third-degree murder.Superior Court Memorandum, 1/15/2016 at 14-22 (ECF No. 15-5).
A reading of the state court record convinces the undersigned that the Superior Court's conclusion was not unreasonable. First, the record clearly establishes that the trial court correctly charged the jury on second and third degree murder and advised the jury that it could find McCarthy guilty or not guilty of either of those offenses. The trial court gave the following jury instruction on criminal homicide and the requisite malice for each degree of murder:
Each of the Defendants has been charged with criminal homicide. They're charged with taking the life of Brandon Johns. As to the Defendant Rankin, there are five possible verdicts that you might reach in this case, not guilty or guilty of one of the following crimes: Murder of the first degree, murder of the second degree, murder of the third degree or voluntary manslaughter.
As to the Defendant McCarthy, there are three possible verdicts you might reach in this case, not guilty or guilty of one of the following crimes: Murder of the second degree or murder of the third degree. . . .
Before defining each of these crimes, I will tell you about malice, which is an element of murder but not of manslaughter. A person who kills must act with malice to be guilty of any degree of murder.
The word “malice, ” as I am using it, has a special legal meaning. It does not mean simply hatred, spite or ill will. Malice is a shorthand way of referring to any of the three different mental states that the law regards as being bad enough to make a killing murder.
The type of malice differs for each degree of murder. Thus, for murder of the first degree, a killing is with malice if the perpetrator acts with: First, an intent to kill, or as I will explain later in my definition of first-degree murder, the killing is willful, deliberate and premediated.
For murder of the second degree or felony murder, as second-degree murder is common called, a killing with the malice if the perpetrator engages in one of certain enumerated felonies and a killing occurs, since the law, through the felony-murder rule, allows the finder of fact to infer that the killing was malicious from the fact that the actor was engaged in a felony of such a dangerous nature to human life that the perpetrator, as held to the standard of a reasonable man, knew or should have known that death might result from the felony.18
For murder of the third degree, a killing is with malice if the perpetrator's actions show his wanton and willful disregard of an unjustified and extremely high risk that his conduct would result in death or serious bodily injury to another. In this form of malice the Commonwealth need not prove that the perpetrator specifically intended to kill another.
The Commonwealth must prove, however, that he took action while consciously, that is, knowingly, disregarding the most serious risk he was creating and that by this disregard of that risk he demonstrated his extreme indifference to the value of human life.
On the other hand, a killing is without malice if the perpetrator acts under circumstances that reduced the killing to voluntary manslaughter. I will tell you what those circumstances are when I define voluntary manslaughter.
A killing is likewise without malice if the perpetrator acts with lawful justification or excuse. Lawful justification or excuse not only negates malice but also is a complete defense to any charge of criminal homicide . . . .
When deciding whether a Defendant acted with malice, you should consider all the evidence regarding his words, conduct and the attending circumstances that may show his state of mind.N.T., 8/5-16/2013, Vol. III, at 1698-1701, 1706 (T14-0216).
Next, the undersigned concludes that a reasonable jury could have certainly found malice to exist here based upon the following evidence adduced at trial. Corey Estes testified that before encountering Brandon Johns, McCarthy spoke aloud that there were “licks” in the area indicating his desire to rob someone. Once McCarthy was inside the building with Brandon Johns, he tried to steal Johns' marijuana. According to Estes, as soon as Brandon Johns placed some marijuana on a scale, both McCarthy and Rankin went into action. McCarthy seized Johns' marijuana and declared “you might as well give me all of it” while Rankin simultaneously pulled out a gun. (TT 197; 199-200; Voluntary Recorded Statement of Corey Estes at 9-10). A reasonable jury could find that based on this evidence the Commonwealth adequately demonstrated that McCarthy and his co-defendant attempted to rob Brandon Johns by force, thereby provoking the events that led 19 to the deadly shooting. Such evidence is sufficient to demonstrate that McCarthy acted as an accomplice of Mr. Rankin.
McCarthy may take issue with the jury's crediting of the Commonwealth's case, but it was within its province to treat the evidence as it saw fit. And as noted above, in reviewing this claim, this Court must consider the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at 319. In sum, the undersigned finds that the Superior Court's decision was neither “contrary to” nor involved an unreasonable application of Jackson v. Virginia. 28 U.S.C. § 2254(d)(1). The undersigned finds that the Superior Court's decision did not result “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). For all these reasons, it is recommended that Claim One be denied.
2. Claims Two and Three - Ineffective Assistance of Trial Counsel
McCarthy asserts two claims of ineffective assistance of counsel in violation of the Sixth Amendment. Both claims were raised on collateral review appeal and adjudicated on their merits by the Superior Court. Thus, both claims will be reviewed under the deferential standard of review under AEDPA. See 28 U.S.C. § 2254(d).
The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1994), announced the test that a habeas petitioner must satisfy before a federal court could find that counsel failed to provide effective assistance under the Sixth Amendment. This same standard has been incorporated by Pennsylvania courts as the proper basis to consider challenges for ineffective assistance of counsel under the Pennsylvania constitution. See Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (stating that Pennsylvania courts apply elements of the Strickland test to ineffective assistance of counsel claims). A Pennsylvania court's resolution of an ineffective 20 assistance claim, therefore, is presumed to apply clearly established federal law and is due the substantial deference required by 28 U.S.C. § 2254(d).
Under the two-prong Strickland test, a petitioner must show: (1) that his attorney's representation fell well below an objective standard of reasonableness; and (2) that there is a reasonable probability that, absent counsel's errors, the result of the proceeding would have been different. 466 U.S. at 688-96. To satisfy the first prong of the Strickland test, a petitioner must show that “counsel made errors so serious that counsel was not functioning as ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. To meet the second prong of the Strickland test, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceeding. Id. It is self-evident that counsel cannot be ineffective for failing to pursue meritless claims or objections. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).
a. Claim Two - Failure to Request a Corrupt and Polluted Source Jury Instruction Regarding Corey Estes' Testimony As An Accomplice
In his second claim for relief, McCarthy contends that trial counsel was ineffective in failing to request a “corrupt and polluted source” jury instruction. In support of his position, McCarthy argues that,
Counsel could have no reason for the jury not to hear that the testimony of Estes should be viewed with great caution, Counsel testified that there was no strategy for objecting to the jury hearing this charge. Petitioner suffered prejudice by counsel's objection to the charge, which would have further discredited Estes. Counsel affirmed this as well in her testimony at the PCRA hearing. If the jury was instructed with the corrupt source charge, they well might have totally discounted Estes' testimony and the outcome of the case would have been different.Pet.'s Memo at ¶¶ 35 - 37. 21
In evaluating counsel's performance in accordance with Strickland, the Superior Court concluded that “it was a reasonable strategy” for counsel to object to such an instruction as it conflicted with McCarthy's trial strategy:
The “corrupt and polluted source” instruction informs the jury that an accomplice's trial testimony, which implicates the defendant, should be viewed with great caution. See Commonwealth v. Wholaver, 177 A.3d 136, 165 (Pa. 2018) (original quotations and citation omitted). “Our courts have regularly recognized a reasonable strategy in trial counsel's decision to forego a discretionary corrupt source charge where the charge is inconsistent with a defendant's assertion that he has not committed the crime in question.” Commonwealth v. Lawrence, 165 A.3d 34, 45 (Pa. Super. 2017), citing Commonwealth v. Karabin, 426 A.2d 91 (Pa. 1981) (deeming reasonable tactic to forego corrupt source instruction against girlfriend witness, who allegedly rode in car with defendant during shootings; defendant advanced innocence defense and alleged jealously motivated girlfriend to testify falsely) and Commonwealth v. Johnson, 437 A.2d 1175 (Pa. 1981) (holding decision to forego instruction was within realm of reasonable defense strategy to accuse witness, a leader of street gang splinter group, of framing gang member defendant who asserted complete innocence). Here, Appellant claimed he was innocent of the robbery and homicide. Thus, it was a reasonable strategy for counsel to weigh the cautionary judicial instruction against the downside of tacitly admitting to the jury that Estes was an accomplice of Appellant in the commission of the instant offenses. As such, Appellant's second issue fails.Superior Court Memorandum, 11/05/2018 at 7-8 (ECF No. 16-7). In support of its determination, the Superior Court quoted from the PCRA court's opinion:
During the PCRA hearing, trial counsel explained that her trial strategy was that [Appellant] was not an accomplice with anyone to a robbery or a homicide. [Appellant's] trial strategy was that he planned to purchase marijuana and he had no knowledge that a robbery or homicide was going to occur. It is illogical [...] for trial counsel to pursue a theory that [Appellant] had no involvement in or knowledge about a robbery and/or a homicide and then ask for a jury instruction informing the jury that the central Commonwealth witness was an accomplice with the [Appellant] in those crimes. Keeping such an instruction from the jury was rationally related to [Appellant's] trial strategy. Therefore, the record reflects that trial counsel had a sound strategy for not requesting (and even objecting to) an instruction concerning the credibility of accomplices.Id. at 6 (quoting PCRA Court 1925(a) Opinion, 5/10/2018 at 6-7). 22
The foregoing demonstrates that the Pennsylvania courts' application of Strickland was objectively reasonable, and resulted in an outcome that can reasonably be justified under Strickland. Thus, the undersigned recommends that Claim Two be denied.
b. Claim Three - Conflict of Interest
In his third and final claim for relief, McCarthy contends that trial counsel was “ineffective and had a conflict of interest where she acted as both an advocate and witness in the defense of her own credibility.” Pet's Memo at ¶ 39. More specifically, McCarthy contends that Corey Estes testified that Attorney Middleman visited him while he was in jail and tried to get him to change his testimony. McCarthy argues, as he did on PCRA appellate review, that once trial counsel's credibility was questioned, she should have withdrawn from the case.
The Superior Court found the claim lacked merit. In explaining its conclusion, the appellate court stated:
We agree with the PCRA court's assessment. Trial counsel had a reasonable basis that supported her attempt to impeach a key Commonwealth23
witness' credibility at trial. The Commonwealth elicited testimony from Estes that Appellant's counsel visited him in jail to question him without his attorney present. N.T., 8/6/2013, at 273-277. Estes testified on cross-examination that he told police that trial counsel asked him to perjure himself. Id . at 302. The Commonwealth raised the issue, thereby opening the door to cross-examining Estes regarding his interactions with trial counsel. Moreover, Appellant has not explained how there was an actual conflict of interest. Instead, trial counsel was solely advocating for Appellant. Cross-examining Commonwealth witness Estes regarding his history for truthfully describing the events related to this case aligned completely with Appellant's defense. As such, trial counsel had a reasonable basis for her actions and we conclude Appellant's first ineffective assistance of counsel claims fails.Superior Court Memorandum, 11/05/2018 at 5-6 (ECF No. 16-7).
The PCRA Court opined:
The record establishes that trial counsel visited Corey Estes two times (once with an investigator) in the Allegheny County Jail to interview him about his trial testimony. Just before trial, trial counsel learned that Estes was falsely claiming that [during a visit] trial counsel attempted to convince him to alter his statements and testify favorably for [Appellant] at trial. [At trial], counsel [ ] cross-examined Estes on these allegations [ ] and essentially attempted to argue to the jury that Estes' lies about her attempts to suborn perjury should cause the jury to have doubts about the remainder of his trial testimony that incriminated [Appellant]. [Appellant] claims that trial counsel's efforts to link Estes' lack of credibility about [Appellant's] involvement in the crimes charges in the case to [the lack of credibility to be inferred from Estes' allegations] against trial counsel created a conflict of interest because trial counsel was acting as both a witness and an advocate in this case. The record belies such conclusion.
Trial counsel's efforts on cross-examination to establish that Estes had lied when he accused her of exhorting him to alter his previous statements to the authorities and provide exculpatory testimony for [Appellant] was based on a sound trial strategy. Trial counsel was attempting to convince the jury that if Estes was lying about her, he was lying about [Appellant's] involvement in the robbery/homicide. Trial counsel was cleverly attempting to discredit Estes by arguing that he had lied to the District Attorney's Office about her actions. Trial counsel testified [at the PCRA evidentiary hearing] that the efforts to buttress her integrity by arguing that Estes was a liar were designed to benefit her client in the trial. [The PCRA c]ourt [found] no fault with such a tactic or strategy and believe[d] it was consistent with the effective representation of[Appellant].Superior Court Memorandum, 11/05/2018 at 4-5 (quoting PCRA Court 1024(a) Opinion, 5/10/2018, at 5-6 (ECF No. 16-7).
In Mickens v. Taylor, the Supreme Court of the United States defined an “actual conflict” as “precisely a conflict that affected counsel's performance - as opposed to a mere theoretical division of loyalties.” 535 U.S. 162, 171 (2002). Under the first Strickland prong, the Supreme Court has held that there is a strong presumption that counsel's conduct was reasonable. Strickland, 466 U.S. at 689. And under the second prong, the Supreme Court has held that “the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. 24
As with Claim Two, the record demonstrates that the Pennsylvania courts' application of Strickland was objectively reasonable, and resulted in an outcome that can reasonably be justified under Strickland. The undersigned thus recommends that Claim Three also be denied.
E. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” When the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, the undersigned concludes that jurists of reason would not find it debatable whether each of McCarthy's claims is without merit and should be denied. For these reasons, it is recommended that a certificate of appealability be denied.
III. CONCLUSION
For all of the above reasons, it is respectfully recommended that the instant habeas petition for a writ of habeas corpus be denied. It is also recommended that a certificate of appealability be denied as well.
Any party may file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, McCarthy because he is a non-electronically registered party, may file written objections to this Report and Recommendation by February 11, 2022, and Respondents, because they are electronically registered parties, may file written objections by 25 February 8, 2022. The parties are advised that failure to file timely and specific objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error). 26