Opinion
Civil Action 2:19-cv-139
01-28-2022
SHAWN SADIK, Petitioner, v. SUPERINTENDENT ERIC TICE, et al., Respondents.
Mark R. Hornak, Chief Judge
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Pending before the Court is the Petition for a Writ of Habeas Corpus (ECF 5) filed by state prisoner Shawn Sadik (“Petitioner”) under 28 U.S.C. § 2254. It is respectfully recommended that the Court deny each of Petitioner's claims and deny a certificate of appealability.
Respondents attached as exhibits to their Answer (ECF 13) the relevant state-court filings and decisions. The documents shall be cited to by their exhibit and Bates number as follows: “Resp's Ex. __at ___.” Respondents also submitted Petitioner's original state court record, which includes the transcripts from his October 2010 trial and the hearing held in November 2015 on his state collateral proceeding under Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq.
A. Relevant Background
Very early in the morning on July 13, 1993, Petitioner and his co-defendant, Stevenson Rose, brutally beat Mary Mitchell (the “victim”) for around a half hour in a park in the East Liberty neighborhood of Pittsburgh. Later that same day, Petitioner gave a statement to Detective Howard Parsons in which he to confessed his involvement in the assault of the victim.
The victim sustained major injuries during the assault, which are summarized below. She would spend the rest of her life in hospitals and then a nursing home. Although she did regain some level of consciousness, she remained incoherent and could not recognize her children. She was completely bedridden and could not care for herself in any way. (Trial Tr. at 226-30.)
Following a jury trial in February 1994, Petitioner was convicted of criminal attempt (homicide), aggravated assault, reckless endangerment and conspiracy. He was sentenced to a term of 10-20 years on the aggravated assault count, to be followed by a term of 5-10 years on the conspiracy count. He received no further penalties at the remaining counts. The Superior Court of Pennsylvania affirmed that judgment of sentence in Commonwealth v. Sadik, No. 630 PGH 1994, slip op. (Pa. Super. Ct. May 16, 1995) (“Sadik I”), Resp's Ex. 11 at 169-80.)
The victim died in September 2007. The Commonwealth then charged Petitioner and Rose with criminal homicide. Their cases were severed and Petitioner's five-day jury trial was held in October 2010. Petitioner retained Attorney Angela Carsia (“trial counsel”) to represent him.
A jury convicted Rose of third-degree murder. See Commonwealth v. Rose, No. 1832 WDA 2016, 2018 WL 1110904, at *1 (Pa. Super. Ct. Feb. 28, 2018).
Attorney Carsia was Petitioner's lead counsel. Attorney Christy Foreman also represented Petitioner as co-counsel. (PCRA Hr'g Tr. at 32-33.)
The Superior Court summarized the evidence introduced at Petitioner's October 2010 trial as follows:
In the early morning hours of July 13, 1993, Pittsburgh police found the naked, bleeding body of [the victim] lying on a sidewalk near the entrance to a park. Her head was swollen, and she was gasping for air. She had a large wound on her neck that was bleeding profusely. It was later determined that a sharp object had been forced through her vagina, and into her intestine where it cut a blood vessel. After the attackers removed the object from her body, they placed it on the ground, where police later found it and identified it as a piece of aluminum window frame.
Based on leads they received from the two men who found the victim in the park, police arrested [Petitioner] and Stevenson Rose for the attack. When police arrested Rose they found a pair of blood spattered white shorts and a white tee shirt
with blood on it in his room. When police arrested [Petitioner] at his residence they found a pair of blood-stained Timberland black combat-type boots in his room.
[Petitioner] agreed to be interviewed by police shortly after his arrest. He told them that he, Rose and a third man saw the victim walk past them toward the park. She was with some young men who were saying that they wanted her to perform oral sex on them. [Petitioner] said that twenty to thirty minutes later, Rose walked into the park and spoke with the young men. [Petitioner], who had been in a nearby alley, then went into the park where he saw Rose punch the victim, who was unclothed.
- - -
The victim spent several months in the hospital, and then was transferred to a rehabilitation hospital. Although she regained some level of consciousness, she was unable to recognize her children and was incoherent. She was completely bedridden, and could only move one arm. The victim was transferred to a nursing home where she remained for fourteen years until her death on September 17, 2007.
- - -
The Commonwealth presented to the jury a tape recording of the July 13, 1993 interrogation of [Petitioner] by Detective Howard Parsons of the Pittsburgh Police Department, which included the following exchange:
Q. [Rose] said he was going to kill her?
A. Uh-huh.
Q. And she would never talk on him again?
A. Right.
Q. And he related that [he] was going to kill her two times?
A. Yes.
Q. Then what did he do?
A. Then-I kicked her like four times.
Q. You kicked her. What kind of shoes did you have on?
A. I had on some boots.
Q. Like-
A. Timberlands.
Q. Timberlands?
A. Uh-huh.
* * *
Q. Okay. You kicked her after he kicked her a few times?
A. He kicked her like three, and I kicked her like four after he did. And then-
Q. And when you kicked her, I mean you meant it that she would feel it, right?
A. Yeah, she did feel-
Q. I mean you're a big guy. You are over six feet tall; right?
A. Uh-huh.
Q. Her body moved when you kicked her?
A. The first time, yeah.
Q. Okay. And when you kicked her, did you kick her-did you stomp down on her face, or did you kick her like you were kicking a football?
A. I just kicked her, like-you could say like a football.
* * *
Q. Okay. How many times would you say [Rose] kicked her? A. At least about up to eighty times.
* * *
Q. And how long did this take?
A. Well, I could say at least close to a half hour.
* * *
Q. Did [Rose] ever fall on [the victim]?
A. He fell on her like eight times or something, eight, seven times.
Q. And what would happen when he would fall on her?
A. I'd pick him up.
[Trial Tr.] at 271-274.
The Commonwealth also introduced the testimony of Dorothy Menges, a forensic serologist who in 1993 performed tests on the blood-stained shorts and
Timberland boots that [Petitioner] wore the night of the attack. She determined that the blood matched the victim[. Trial Tr.] at 122-128. Following he victim's death, due to scientific advances, Thomas Meyers of the Allegheny County Office of the Medical Examiner was able to perform DNA testing on the items Ms. Menges had previously analyzed. He concluded that the genetic marks in the stain from the shorts matched the victim and [Petitioner], and that the genetic markers on the blood stains from [Petitioner's] Timberland boots matched the victim. Id. at 168-176.
Dr. Karl E. Williams, the medical examiner of Allegheny County, was also a Commonwealth witness. He performed the autopsy on the victim, and sent her brain to neuropathologists at the University of Pittsburgh for examination. Dr. Williams testified as follow:
Q. And what was your finding as to the manner of death, sir?
A. It was a homicide. If you can trace a direct consequence back to any particular act and it's uninterrupted, as this was, then you get back to the original cause of the trauma.
In this case the original insult to her was caused by a blunt force trauma to the head, to the neck, to the abdomen, vaginal vault. That's what begins the sequence of events that continued in an unbroken chain until the time of her death years later at Kane Hospital.
Q. And to the extent you've given us opinions, sir, are those opinions to a reasonable degree of medical certainty?
A. Yes. They are.
Id. at 198. Dr. Williams noted that the victim had an enlarged heart, inflamed lungs, and suffered from chronic urinary tract infections. Id. at 208. She also suffered from bedsores that were mostly healed, id. at 191, and flexion contractures. Id. at 194. He testified that she would not have suffered from these conditions had she not been assaulted several years before. Id. at 208-09. With regard to her general condition, Dr. Williams testified that “[s]he presented in remarkable good care for being in any hospital for that length of time.” Id. at 207.(Commonwealth v. Sadik, No. 979 WDA 2011, slip op. (Pa. Super. Ct. Feb. 3, 2012) (“Sadik II”), Resp's Ex. 26 at 381-82, 387-90.)
In her closing statement, trial counsel argued that the jury should conclude that the Commonwealth failed to meet its burden of proving the requisite causal connection between the injuries the victim suffered as a result of Petitioner and Rose's 1993 attack on her and her 2007 death. (Trial Tr. at 357.) Trial counsel also argued that the Commonwealth failed to meets its burden of proving that Petitioner acted with the specific intent to kill the victim and that, at most, he was guilty of third degree murder because of his voluntary intoxication. (Trial Tr. at 348-561.) Petitioner's brother, Alfonso Sadik, testified in support of this voluntary intoxication defense. He stated that he was awake when Petitioner came home after the July 13, 1993 beating of the victim. (Id. at 333.) According to Alfonso, Petitioner “stumble[d] up the steps.” (Id. at 334.) Although Petitioner's speech was not slurred, Alfonso said that he could tell that Petitioner was drunk because he smelled of alcohol and was unsteady on his feet. (Id. at 334-35, 340.) Trial counsel also pointed out to the jury during her closing argument that in the statement Petitioner gave to Det. Parsons later in the day on July 13, 1993, Petitioner stated that he had been drinking vodka before the he and Rose beat the victim. (Id. at 267-68, 350-51.)
Under Pennsylvania law, a defendant may introduce evidence of his or her voluntary intoxication to negate the first-degree element of specific intent to kill. “[T]he mere fact of intoxication does not make out a diminished capacity defense. Rather, to warrant that a homicide does not rise to the level of first-degree murder, the evidence must demonstrate that the defendant was intoxicated to such an extent that the defendant was overwhelmed to the point of losing his sensibilities.” Commonwealth v. Spotz, 896 A.2d 1191, 1218 (Pa. 2006). “Even ‘ample evidence' that a defendant ‘used mind-altering drugs at the time of the offense,' standing alone, is insufficient because such drugs must be shown to have intoxicated a defendant ‘to such an extent that he was unable to form the requisite intent.'” Saranchak v. Beard, 616 F.3d 292, 307-08 (3d Cir. 2010) (quoting Spotz, 896 A.2d at 1218).
The trial court instructed the jury on the crimes of first and third-degree murder, and explained that to find Petitioner guilty of either degree of murder the jury must find beyond a reasonable doubt that his conduct was a direct cause of the victim's death. (Id. at 391-96.) The trial court also instructed the jury on the defense of voluntary intoxication, which the Commonwealth had the burden of disproving. (Id. at 396-97.)
They jury convicted Petitioner of first-degree murder and the trial court sentenced him to the mandatory term of life imprisonment without the possibility of parole.
Petitioner raises these claims in this federal habeas case:
Claim 1 Trial counsel provided him with ineffective assistance for failing to:
(a) move to suppress the statement he gave to Det. Parsons on July 13, 1993;
(b) “put on a sufficient defense of intellectual disability” to support a diminished capacity defense; and,
(c) “present [a] sufficient defense of voluntary intoxication[.]”
Claim 2 The life sentence imposed upon him violates the Eighth Amendment's prohibition against cruel and unusual punishment because he was twenty years old when he attacked the victim and he is intellectually disabled.
Claim 3 The Commonwealth introduced insufficient evidence to support the jury's verdict and its verdict was against the weight of the evidence.
Claim 4 The sentence imposed upon him on his 2010 conviction of first-degree murder violates the Double Jeopardy Clause's prohibition against multiple punishments for the same offense because in 1994 he was convicted and sentenced for the crime of aggravated assault, which is a lesser included offense of murder.(Petition, ECF 5 at 5, 7-8, 10.) Petitioner raised Claims 3 and 4 in his counseled direct appeal to the Superior Court.(Resp's Ex. 24, Pet's Appellate Br., at 281-327.) In Sadik II, the Superior Court denied those claims on the merits and affirmed Petitioner's judgment of sentence. (Id. at 385-97.)
Attorney Charles Pass III represented Petitioner in his direct appeal.
After the Superior Court issued Sadik II, Petitioner filed a petition for allowance of appeal, which the Supreme Court of Pennsylvania denied. (Resp's Ex. 30 at 463.) He then filed a petition for a writ of certiorari with the Supreme Court of the United States in which he raised his double jeopardy claim (Claim 4). (Resp's Ex. 32 at 466-502.) The Supreme Court denied that petition. (Resp's Ex. 31 at 464.)
Petitioner raised Claims 1 and 2 in his counseled PCRA proceeding, which he filed after his direct appeal concluded. (Resp's Ex. 34 at 527-44; Resp's Ex. 36, Pet's Br. in Support of PCRA petition, at 559-76.) The trial court, now the PCRA court, held an evidentiary hearing at which trial counsel, Petitioner and his mother testified. Following the hearing, the PCRA court issued an order denying the PCRA petition. (Resp's Ex. 38 at 586.) The Superior Court denied Claims 1 and 2 on the merits in Commonwealth v. Sadik, No. 889 WDA 2016, slip op. (Pa. Super. Ct. Dec. 20, 2017) (“Sadik III”).
Attorney Lea Bickerton represented Petitioner in his PCRA proceeding.
After the Superior Court issued Sadik III, the Supreme Court of Pennsylvania denied a petition for allowance of appeal. (Resp's Ex. 49 at 723.) Petitioner then filed a petition for writ of certiorari in the Supreme Court of the United States in which he claimed that the Eighth Amendment bars individuals with intellectual and developmental disabilities from receiving mandatory life imprisonment without parole sentences (Claim 2). (Resp's Ex. 51 at 726-53.) The Supreme Court denied that petition. (Resp's Ex. 50.)
Pending before the Court is the Petition for a Writ of Habeas Corpus (ECF 5) that Petitioner filed pro se. Respondents have filed the Answer (ECF 13) and the relevant state court records. Petitioner did not file a reply or request another extension to file one. See Local Rule 2254(E)(2) (“the petitioner may file a Reply (also known as ‘a Traverse') within 30 days of the date the respondent files its Answer.”).
III. Discussion
A. Jurisdiction
The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state-court judgment. It permits a federal court to grant a state prisoner a 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. Id.; see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
It is Petitioner's burden to prove that he is entitled to the writ. See, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims (for example, the burden imposed on him by the standard of review enacted by AEDPA, which is discussed below), but, ultimately, Petitioner cannot receive federal habeas relief unless he shows that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
B. Standard of Review
In 1996, Congress made significant amendments to the federal habeas statutes with the enactment of the AEDPA. Among other things, AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotations and citation omitted).
A finding of fact made by a state court has always been afforded considerable deference in a federal habeas proceeding. AEDPA continued that deference and mandates that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.
State court factual determinations are presumed to be correct under § 2254(e)(1) in all cases and regardless of whether the standard of review at § 2254(d) applies. Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010); Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007).
AEDPA also put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d). It applies “to any claim that was adjudicated on the merits” by the Superior Court and, in relevant part, it prohibits a federal habeas court from granting relief unless the petitioner established that the Superior Court's “adjudication of the claim”:
When applying § 2254(d), the federal habeas court considers the “last reasoned decision” of the state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Sup't Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016).
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]28 U.S.C. § 2254(d)(1). For the purposes of § 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when the state court (here, the Superior Court) made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. at 98-100; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).
Section 2254(d)(1) applies to questions of law and mixed questions of law and fact. Here, all of Petitioner's claims present mixed questions of law and fact and, therefore, the Court applies the standard of review at § 2254(d)(1) to them. See Jermyn v. Horn, 266 F.3d 257, 305-06 & n.24 (3d Cir. 2001). Another provision of AEDPA's standard of review, codified at § 2254(d)(2), provides that a petitioner must show that the state court's adjudication of a claim “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.” This provision applies when a petitioner “challenges the factual basis for” the state court's “decision rejecting a claim[.]” Burt v. Titlow, 571 U.S. 12, 18 (2013). Here, Petitioner has not challenged a determination of fact made by a state court that led to the denial of any of his claims and, therefore, the standard of review set forth at § 2254(d)(2) is not applicable to this case.
If the Superior Court did not adjudicate a claim on the merits, it may be because the petitioner procedurally defaulted it. The doctrine of procedural default, like the related doctrine of exhaustion, is “grounded in concerns of comity and federalism, ” Coleman v. Thompson, 501 U.S. 722, 730 (1991). To summarize it, it provides that a Pennsylvania state prisoner in a non-capital case defaults a federal habeas claim if he: (a) failed to present it to the Superior Court and he cannot do so now because the state courts would decline to address the claims on the merits because state procedural rules (such as the PCRA's one-year statute of limitations) bar such consideration; or (b) failed to comply with a state procedural rule when he presented the claim to the state court, and for that reason the Superior Court declined to address the federal claim on the merits. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451 (2000); O'Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting) (describing the history of the procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72 (1977); Lines v. Larkins, 208 F.3d 153, 162-69 (3d Cir. 2000).
If, when evaluating a claim, the Court determines that the petitioner has satisfied his burden under § 2254(d), the Court must then “proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred.” Vickers, 858 F.3d at 849 (citing Lafler v. Cooper, 566 U.S. 156, 174 (2012)). That is because “a federal court can only grant the Great Writ if it is ‘firmly convinced that a federal constitutional right has been violated[.]'” Id. (citing Williams, 529 U.S. at 389, and Horn v. Banks, 536 U.S. 266, 272 (2001) (“[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review…none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]”)).
These steps “sometimes merge in cases in which the federal habeas court determines that the state court engaged in an ‘unreasonable application' of clearly established Supreme Court precedent because it will be apparent from the explication of why the state court unreasonably applied that precedent that, under any reasonable application, a constitutional violation did occur.” Vickers, 858 F.3d at 849 n.8.
In applying § 2254(d)(1), this Court's first task is to ascertain what law falls within the scope of the “clearly established Federal law, as determined by the Supreme Court of the United States[, ]” 28 U.S.C. § 2254(d)(1). It is “‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'” Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (emphasis added). It “includes only ‘the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'” White v. Woodall, 572 U.S. 415, 420 (2014) (quoting Howes v. Fields, 565 U.S. 499, 505 (2012), which quoted Williams, 529 U.S. at 412).
The Supreme Court “has repeatedly emphasized” that “circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.'” Glebe v. Frost, 574 U.S. 21, 24 (2014) (per curiam) (quoting § 2254(d)(1) and citing Lopez v. Smith, 574 U.S. 1 (2014) (per curiam)). See, e.g., Renico v. Lett, 559 U.S. 766, 779 (2010) (state court's failure to apply decision by federal circuit court “cannot independently authorize habeas relief under AEDPA.”). Additionally, “[c]ircuit precedent cannot ‘refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced.'” Lopez, 574 U.S. at 2 (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)).
Once the “clearly established Federal law, as determined by the Supreme Court of the United States, ” is ascertained, this Court must determine whether the Superior Court's adjudication of the claim at issue was “contrary to” that law. Williams, 529 U.S. at 404-05 (explaining that the “contrary to” and “unreasonable application of” clauses of § 2254(d)(1) have independent meaning). A state-court adjudication is “contrary to…clearly established Federal law, as determined by the Supreme Court of the United States” § 2254(d)(1), “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” Williams, 529 U.S. at 405, or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent, ” id. at 406.
A “run-of-the-mill” state-court adjudication applying the correct legal rule from Supreme Court decisions to the facts of a particular case will not be “contrary to” Supreme Court precedent. Williams, 529 U.S. at 406. Thus, the issue in most federal habeas cases is whether the adjudication by the state court survives review under § 2254(d)(1)'s “unreasonable application” clause.
“A state court decision is an ‘unreasonable application of federal law' if the state court ‘identifies the correct governing legal principle,' but ‘unreasonably applies that principle to the facts of the prisoner's case.'” Dennis, 834 F.3d at 281 (quoting Williams, 529 U.S. at 413). To satisfy his burden under this provision of AEDPA's standard of review, Petitioner must do more than convince this Court that the Superior Court's decision was incorrect. Id. He must show that it “‘was objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409) (emphasis added by Court of Appeals). This means that Petitioner must show that the Superior Court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103 (emphasis added). As the Supreme Court noted:
It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See Lockyer, supra, at 75, 123 S.Ct. 1166. If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further.Id. at 102.
C. Petitioner's Claims
Claim 1
In Claim1, Petitioner raises three separate claims of ineffective assistance of trial counsel. These claims are governed by the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), which represents the “clearly established Federal law, as determined by the Supreme Court of the United States[, ]” 28 U.S.C. § 2254(d)(1), in which to analyze them under AEDPA's standard of review. Strickland recognized that a defendant's Sixth Amendment right to the assistance of counsel for his defense entails the right to be represented by an attorney who meets at least a minimal standard of competence. 466 U.S. at 685-87. “[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance[.]” Titlow, 571 U.S. at 24.
Under Strickland, it is Petitioner's burden to establish that his “counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 688. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. The Supreme Court has emphasized that “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]'” Titlow, 571 U.S. at 22 (quoting Strickland, 466 U.S. at 690); Richter, 562 U.S. at 104 (“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.”) (quoting Strickland, 466 U.S. at 689).
As the Supreme Court observed in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and 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's was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.466 U.S. at 689 (internal citations and quotations omitted); Richter, 562 U.S. at 104 (“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.”) (quoting Strickland, 466 U.S. at 689).
Strickland also requires that Petitioner demonstrate that he was prejudiced by his trial counsel's deficient performance. This places the burden on him to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
[Petitioner] “need not show that counsel's deficient performance ‘more likely than not altered the outcome of the case'-rather, he must show only ‘a probability sufficient to undermine confidence in the outcome.'” Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 693-94). On the other hand, it is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” [Richter, 562 U.S. at 104] (citing Strickland, 466 U.S. at 693). Counsel's errors must be “so serious as to deprive the defendant of a fair trial.” Id. (citing Strickland, 466 U.S. at 687). The likelihood of a different result must be substantial, not just conceivable. Id.Brown v. Wenerowicz, 663 F.3d 619, 630 (3d Cir. 2011).
Because a petitioner cannot prevail on a Sixth Amendment claim unless he establishes both prongs of the Strickland test, the Supreme Court permits courts to address only the prejudice prong if it is more efficient to proceed in that way. 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”).
Failure to File a Motion to Suppress
In Claim 1(a), Petitioner argues that counsel was ineffective for failing to move to suppress the statement he gave to Det. Parsons “despite advancements in the understanding of intellectual disabilities and their impact on voluntariness that have occurred since [his] first trial.” (Petition, ECF 5 at 4.) Under the rule established in Miranda v. Arizona, 384 U.S. 436 (1966), a statement made by a defendant during a custodial interrogation is inadmissible at trial unless the defendant is advised of his rights-that he has the right to remain silent, that anything he says can be used against him, that he has the right to an attorney, and that an attorney will be appointed for him
before questioning if he so chooses-and “in fact knowingly and voluntarily waived [these] rights.” Berghuis v. Thompkins, 560 U.S. 370, 380-82 (2010).
To the extent that the Respondents suggest that Claim 1(a) is not cognizable under Stone v. Powell, 428 U.S. 465 (1976) (ECF 13 at 31-32), they are incorrect. In Stone, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” The holding in Stone does not apply to Fifth Amendment Miranda claims, Withrow v. Williams, 507 U.S. 681, 683 (1993), or preclude a federal habeas corpus court from considering a claim that trial counsel rendered ineffective assistance for failing to move to suppress.
A valid Miranda waiver has two distinct dimensions:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). “The ultimate question in the voluntariness calculus is ‘whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution.'” Fahy v. Horn, 516 F.3d 169, 194 (3d Cir. 2008) (quoting Miller v. Fenton, 474 U.S. 104, 112 (1985)).
Before his first trial in 1994, Petitioner moved to suppress the statement he gave Det. Parsons on the grounds that he lacked the mental capability to make an intelligent, knowing and voluntary waiver of his Miranda rights. (Resp's Ex. 3 at 15-19.) The 1994 trial court held a hearing on Petitioner's motion in February 1994 at which the Commonwealth presented testimony from Det. Parsons and the defense presented testimony from Petitioner, his mother, a learning support specialist who had worked with Petitioner when he was in grade school, and Dr. Lloyd Bell, a clinical psychologist who had examined Petitioner before the hearing. (Sup. Hr'g Tr. 2/7/94, Resp's Ex. 4 at 20-139.)
Det. Parsons testified that during his interview with Petitioner, he “seemed to be alert at all times. He was civil minded. He was just acting in an ordinary manner, going through his normal day.” (Id. at 39.) Petitioner told Det. Parsons that he understood what was happening, that he had an eleventh grade education and that he was applying for his GED. (Id. at 52.)
Dr. Bell testified that Petitioner had a verbal IQ score of 72, which he described as “borderline retarded.” (Id. at 76.) He testified that a person with Petitioner's level of intelligence would tend to be cooperative, write down answers suggested to him, and also would “obsess” and write down the same answer to every question. In Dr. Bell's opinion, Petitioner did not understand the rights read to him during his July 13, 1993 police interview. (Id. at 77-82.)
More recent authorities use the phrase “intellectually disabled” instead of “mentally retarded.” See Hall v. Florida, 572 U.S. 701, 704 (2014). Except for quotations, this Court will do the same.
Petitioner testified that although he listened to the officer when he was being read his Miranda rights, he did not understand what was being read to him. (Id. at 102.) On cross-examination, however, Petitioner testified as follows:
Q. And you were paying attention to him when he read you your rights?
A. Yes, I was listening.
Q. You listened to everything he said, right?
A. As far as when he was reading my rights, “You have the right to remain silent, ” when he was going through all that I was listening.
Q. You knew what he meant by that, you had the right to remain silent, right?
A. I only hear that type of stuff on TV, but I don't really know as far as how to go about it.
Q. What does the right to remain silent mean to you?
A. You can be quiet.
Q. You knew you had the right to be quiet, right?
A. Right.
Q. And he told you you had a right to have an attorney there. Do you know what an attorney is?
A. Right, yeah.
Q. In other words, he was telling you you could have your lawyer there with you if you wanted to, correct?
A. Yes.
Q. And you understood that, right?
A. Yes.
Q. And he said that you could stop answering questions at any time, right?
A. Yes.
Q. And you understood what he meant by that?
A. Yes.
Q. In other words, you could say: “Hold up. No. more questions. I don't want to answer any more of your questions, Mr. Parsons.” You understood that, correct?
A. Yes, I understood.(Id. at 113-14.)
At the end of the suppression hearing, the court held that “I believe that [Petitioner] is learning disabled…that's evident in his school records, that's evident from Dr. Bell's evaluation.” (Id. at 130-31). The court noted, however, that “a low I.Q. does not make a statement involuntary.” (Id. at 133.) The court did not credit Dr. Bell's testimony that Petitioner did not understand his Miranda rights (id. at 129-38), and also explained:
…I would also state on the record…that in [Petitioner's] taped statement there were no pauses or hesitations, the answers were responsive. I don't think that despite
what Dr. Bell said that [Petitioner] isn't obsessive and goes and answers the same answer over and over again. That was not in fact what occurred, that many of the answers were narrative in form, and that I found no indication from [Petitioner's] testimony today or from what was revealed, that although he may be learning disabled, that he did not understand his constitutional rights, and therefore the motion is denied.(Id. at 138.)
The Superior Court affirmed that decision in Sadik I. It first explained that there is no “per se rule of incapacity to waive constitutional rights based upon mental deficiencies[, ]” and that “[a] defendant's low I.Q. does not in and of itself render his confession involuntary.” (Sadik I, Resp's Ex. 11 at 171-72, citing Commonwealth v. Hicks, 353 A.2d 803, 805 (Pa. 1976) and Commonwealth v. Whitney, 512 A.2d 1152, 1156-57 (Pa. 1986)). “‘The line of distinction between a voluntary and an involuntary confession[, ]” the Superior Court noted, “is that at which governing self-direction is lost and compulsion propels the confession.” (Id. at 172, quoting Whitney, 512 A.2d at 1157.) “Only if the ‘totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may this court conclude that Miranda rights have been waived.” (Id. at 172, quoting Moran, 475 U.S. at 421.
The Superior Court then summarized the evidence and testimony introduced at the suppression hearing and held:
Although there is testimony which supports the conclusion that [Petitioner] is of limited intelligence, the record demonstrates that [he] was of sufficient intelligence to understand and answer questions posed by the Commonwealth at the suppression hearing. Moreover, the testimony presented at the suppression hearing supports the suppression court's finding that [Petitioner] understood his Miranda rights and issued a voluntary waiver of those rights.(Id. at 175.)
Fast forwarding to Petitioner's October 2010 trial, his trial counsel opted before it not to file a motion to suppress his confession. Petitioner claimed in his subsequent PCRA proceeding that trial counsel was ineffective for failing to do so. (Claim 1(a)). At the 2015 PCRA hearing, trial counsel indicated that she did not move to suppress because Petitioner's statement had been found to be admissible prior to his 1994 trial. (PCRA Hr'g Tr., 11/2/15, at 29.)
Petitioner did not offer any new evidence at the PCRA hearing to support his claim that he lacked the mental capacity to voluntarily waive his Miranda rights. Rather, he relied on the evidence introduced at his 1994 suppression hearing and argued generally that advances in science and case law since 1994 reflect a better understanding of how cognitive deficiencies can increase the likelihood of false confessions. (Resp's Ex. 43, Pet's PCRA Appellate Br., at 616-18, citing Atkins v. Virginia, 536 U.S. 304, 320 & n.25 (2002) and Morgan Cloud et al., Words Without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. Chi. L. Rev. 495, 502 (2002)).
The Superior Court denied Claim 1(a), holding:
Our review indicates that [Petitioner] failed to meet his burden of proving that the underlying [Miranda] claim has merit or that he was prejudiced by trial counsel's failure to revive the suppression motion. In light of the fact that the same confession had previously been found admissible, and the admissibility had been upheld on an appeal before this Court [in Sadik I], trial counsel's decision not to file a Motion to Suppress was reasonable. The parties are already familiar with this Court's thorough analysis [in Sadik I] of the voluntariness of [Petitioner's] confession, and we need not replicate it here. Petitioner's citations to a single case and a single law review article fail to establish that either science or the law have evolved such that there is a reasonable probability that [trial counsel] would have prevailed where his 1994 counsel had failed.(Sadik III, Resp's Ex. 45 at 673-74.)
Here, the Superior Court applied the correct Strickland analysis when it evaluated Claim 1(a). (Id. at 670-72.) Thus, Petitioner cannot show that the Superior Court's adjudication was “contrary to” Strickland. Williams, 529 U.S. at 406; Mosley v. Att'y Gen. Pennsylvania, No. 20-3495, 2022 WL 101932, at *2 (3d Cir. Jan. 11, 2022) (“Pennsylvania's ineffective assistance test is not contrary to Strickland.”) (citing Mathias v. Sup't Frackville SCI, 876 F.3d 462, 476 (3d Cir. 2017)). Petitioner also has not shown that the Superior Court's adjudication of Claim 1(a) was an unreasonable application of Strickland since trial counsel cannot be deemed ineffective for failing to raise a meritless claim. See, e.g., Preston v. Sup't Graterford SCI, 902 F.3d 365, 379 (3d Cir. 2018).
Petitioner also has not satisfied his burden of establishing that the Superior Court's adjudication of Claim 1(a) was “contrary to” Miranda, since it incorporated by reference its opinion in Sadik I, which applied the governing law set forth in Supreme Court cases. Nor has Petitioner demonstrated that the Superior Court's determination that his underlying Miranda claim had no merit was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, the Superior Court's decision was not an “unreasonable application of” the rule of Miranda.
When, as is the case here, the Superior Court ruled on the merits of an underlying constitutional claim of error in adjudicating an ineffective assistance claim, this Court must apply § 2254(d)'s standard of review to its adjudication of that underlying constitutional claim. See, e.g., Mathias, 876 F.3d at 479-80.
Finally, when Petitioner litigated Claim 1(a) in his PCRA proceeding, he relied on the evidence Petitioner offered at his 1994 suppression hearing. The judge who presided over that suppression hearing did not credit Dr. Bell's opinion that Petitioner lacked the intellectual capacity to comprehend his Miranda rights, however. This Court is bound by such credibility determinations. 28 U.S.C. § 2254(e)(1); see also Vickers, 858 F.3d at 850.
In conclusion, the Court should deny Claim 1(a) because the Superior Court's adjudication of it withstands review under § 2254(d)(1).
Failure to Present a Diminished Capacity Defense
In Claim 1(b), Petitioner asserts that trial counsel was ineffective for failing to “put on a sufficient defense of intellectual disability” to support a diminished capacity defense. (Petition, ECF 5 at 5.)
Diminished capacity is an extremely limited defense under Pennsylvania law. See, e.g., Saranchak, 616 F.3d at 308; Commonwealth v. Taylor, 876 A.2d 916, 926 (Pa. 2005); Commonwealth v. Legg, 711 A.2d 430, 444 (Pa. 1998); Commonwealth v. Zettlemoyer, 454 A.2d 937, 943 (Pa. 1982); Commonwealth v. Weinstein, 451 A.2d 1344, 1347 (Pa. 1982). It “requires a defendant to establish through ‘extensive psychiatric testimony [that he] suffered from one or more mental disorders which prevented him from formulating the specific intent to kill.'” Id. at 308 (quoting Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003), which cited Zettlemoyer, 454 A.2d at 943) (altered text supplied by Court of Appeals). “Psychiatric testimony that addresses mental disorders affecting the cognitive functions of deliberation and premeditation necessary to formulate a specific intent is admissible [to support a diminished capacity defense]. However, psychiatric evidence that a defendant lacked the ability to control his actions or that he acted impulsively is irrelevant and inadmissible on the issue of the defendant's specific intent to kill.” Legg, 711 A.2d at 433.
At his PCRA hearing, Petitioner did not introduce any new evidence to support his contention that he had a diminished capacity defense available to him that trial counsel failed to present at his trial. Rather, he relied on the evidence introduced at his 1994 suppression hearing and argued that trial counsel should have introduced similar evidence “to attempt a diminished capacity defense[.]” (Resp's Ex. 43, Pet's PCRA Appellate Br, at 623; id. at 613, 617, 623-34.)
In denying Claim 1(b), the Superior Court observed that Petitioner presented no evidence to support it and offered only boilerplate assertions that counsel was ineffective for failing to present evidence of his “intellectual disability.” (Sadik III, Resp's Ex. 45 at 675-76.) Respondents contend that the Superior Court's decision amounted to a finding that Petitioner waived Claim 1(b) for failing to develop it and that, therefore, this Court must conclude that the claim is procedurally defaulted. (See ECF 13 at 29.)
Since Claim 1(b) has no merit, this Court should simply review it de novo and deny it on that basis. See Lambrex v. Singletary, 520 U.S. 518, 525 (1997) (the court may avoid the more complex issue of procedural default and evaluate the claim on the merits if it is more efficient to do so). When Petitioner had the opportunity to introduce evidence at his PCRA hearing to support Claim 1(b) he did not do so. Evidence from his 1994 suppression hearing that he has a verbal IQ of 72 and a learning disability is not the type of mental health evidence that supports a diminished capacity defense under Pennsylvania law. See, e.g., Commonwealth. v. Mason, 130 A.3d 601, 631-32 (Pa. 2015) (evidence that the defendant was “low functioning, ” his IQ was “barely above the [intellectually disabled] level, ” he had “learning difficulties” did not suggest his “cognitive abilities of deliberation and premeditation were so compromised by mental defect that he was unable to formulate the specific intent to kill, much less that he suffered from such mental deficit at the time of the stabbing.”) Thus, Petitioner has not established that trial counsel rendered constitutionally deficient representation by failing to present a defense that was not available to him.
Moreover, given that the strength of the evidence introduced at the trial that Rose and Petitioner brutally beat victim with the intent to kill her and then left her for dead on a sidewalk, Petitioner has not established that there is a reasonable probability that the outcome of his trial would have been different if counsel had presented evidence of his low IQ and learning disability to support a diminished capacity defense. See, e.g., Woo v. Beard, No. 2:05-cv-1105, 2006 WL 3813986, at *6 (W.D. Pa. Dec. 27, 2006) (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 297 (3d Cir. 1991) and explaining that “a federal habeas court must consider evidence of specific intent when determining whether an attorney's failure to present a diminished capacity defense constituted ineffective assistance.”) Thus, Petitioner has not satisfied his burden of showing he was prejudiced by trial counsel's alleged deficient performance.
Based on the above, the Court should deny Claim 1(b) under a de novo review because it lacks merit.
Failure to Present Additional Evidence of Voluntary Intoxication
As discussed above, Petitioner presented a voluntary intoxication defense at his trial. In Claim 1(c), he asserts that trial counsel was ineffective because she “failed to present sufficient” evidence to support that defense. (Petition, ECF 5 at 5.) When he litigated this claim in his PCRA proceeding, Petitioner acknowledged that trial counsel presented evidence of his intoxication through his brother's testimony. He argued she also should have presented testimony from him (Petitioner) that he drank a half of a bottle of vodka. (Resp's Ex. 43, Pet's PCRA Appellate Br., at 623.) In support of this claim, Petitioner cited the testimony he gave at the 1994 suppression hearing during which he said that he consumed half of a fifth of vodka (or half a bottle) before the attack of the victim, as well as to his PCRA hearing testimony in which he stated he consumed that same amount of vodka. (Id.)
The Superior Court denied Claim 1(c) because it held that Petitioner failed to establish that he was prejudiced by trial counsel's failure to introduce evidence of the amount of vodka he drank. (Sadik III, Resp's Ex. 45 at 674-75.) It pointed out that Alfonso Sadik testified at the trial that Petitioner “was drunk, unsteady on his feet and smelled of alcohol.” (Id. at 674, citing Trial Tr. at 334-35.) The Superior Court also noted that “[i]n her closing argument, trial counsel pointed out that in his [July 13, 1993] statement to police, [Petitioner] told officers that he had been drinking vodka prior to the assault.” (Id., citing Trial Tr. at 350-51). The Superior Court held:
[Petitioner]…avers that the [voluntary intoxication] defense was inadequate because trial counsel failed to present evidence that [he] ‘drank half a fifth of vodka.” (Apellant's Brief at 22.) Although [Petitioner] makes the bald assertion that he was prejudiced, he fails to articulate how the outcome of his trial would have been different if the jury had heard the exact amount of vodka he allegedly consumed that night. Given the other evidence of intoxication that trial counsel presented and argued to the jury, we concluded that [Petitioner] has failed to meet his burden of establishing that he was prejudiced by trial counsel's alleged failure to adequately prepare a voluntary intoxication defense.(Id. at 674-75.)
As explained above, the Superior Court in Sadik III applied the correct Strickland analysis when it evaluated Petitioner's ineffective assistance of counsel claims. See, e.g., Mathias, 876 F.3d at 476. Because it did so, the Superior Court's adjudication of Claim 1(c) was not “contrary to” Strickland under § 2254(d)(1). Williams, 529 U.S. at 406. The only remaining question for this Court is whether the Superior Court's adjudication was an “unreasonable application of” Strickland under § 2254(d)(1). To prove this, Petitioner must do more than convince this Court that the Superior Court's decision was incorrect. See, e.g., Dennis, 834 F.3d at 281. He must show that its decision was objectively unreasonable, meaning that it “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Petitioner has not met this difficult burden.
In conclusion, the Court should deny Claim 1(c) because the Superior Court's adjudication of it withstands review under § 2254(d)(1).
Claim 2
In Claim 2, Petitioner contends that because “[a]t the time of the incident…[he] was twenty years old” and he also “suffered from an intellectual disability, ” his mandatory life sentence without the possibility of parole amounts to cruel and unusual punishment in violation of his rights under the Eighth Amendment. (Petition, ECF 5 at 7.) Petitioner raised this claim in his PCRA proceeding. In support of it, he argued that his life sentence is unconstitutional under “the Miller v. Alabama, [567 U.S. 460 (2012)] and Atkins [v. Virginia, 536 U.S. 304 (2002)] lines of precedent[.]” (Resp's Ex. 43, Pet's PCRA Appellate Br., at 625).
In his brief to the Superior Court, Petitioner asserted that he was 18 years old on July 13, 1993. (Resp's Ex. 43, Pet's PCRA Appellate Br., at 608.) The Superior Court found as fact that he was twenty years old on that date. (Sadik III, Resp's Ex. 45 at 678) (“Although [Petitioner] avers that he was eighteen at the time he beat [the victim] and left her for dead on a sidewalk, the record is clear that [he] was twenty years old on July 13, 1993. See, e.g., Criminal Information, filed 1/24/08 (listing [Petitioner's] Date of Birth as 10/1/1972); Sentencing Guidelines, filed 1/11/11 (same).”) Petitioner concedes in his federal habeas petition that he was twenty years old at the time of the offense. (Petition, ECF 5 at 7.)
The Superior Court held that neither Miller nor Atkins applied to Petitioner's case and, therefore, it denied Claim 2:
In Atkins v. Virginia, the United States Supreme Court considered whether the execution of “mentally retarded offenders” violates the Eighth Amendment's ban on cruel and unusual punishment. The Court recognized a myriad of ways in which individuals with intellectual disabilities differ from their counterparts, including their diminished culpability and the increased likelihood of wrongful execution. Atkins, supra at 319-21. Ultimately the Court concluded that “death is not a suitable punishment for a mentally retarded criminal.” Id. at 321.
In Miller v. Alabama, the United States Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.'” Miller, supra at 465. The Court's reasoning was based on the recognition that children are fundamentally different from adults, lacking the maturity required to be considered fully culpable offenders and capable of ready rehabilitation as they develop into adulthood. Id. at 471-72.
Neither case applies to the instant set of facts. Although there is evidence to suggest that [Petitioner] suffers from an intellectual disability, he has not been sentenced to death, and is, therefore, ineligible for relief under Atkins.
Nor is he entitled to relief under Miller. This Court has previously ruled that Miller does not apply to individuals who were 18 or older at the time they committed murder. See Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) (holding that Miller did not apply to a 19-year-old appellant convicted of homicide, even though that appellant claimed he was a “technical juvenile” and relied on neuroscientific theories regarding immature brain development to support his claim).(Sadik III, Resp's Ex. 45 at 676-77.)
The Superior Court's adjudication of Claim 2 survives review under § 2254(d)(1). When it adjudicated Claim 2 there was no “clearly established Federal law, as determined by the Supreme Court of the United States” on the Eighth Amendment issued raised in the claim (nor, for that matter, is there any at this time). The rule in Atkins does not apply to Petitioner because his is not a capital case, and the rule in Miller does not apply to him because he was aged twenty when he committed the offense. See, e.g., In re Rosado, 7 F.4th 152, 160 (3d Cir. 2021) (denying state prisoner's application to file a second or successive habeas petition to litigate a Miller claim because, among other things, “Miller set a clear age limit” to prisoners who were under eighteen when they committed their crime, and the applicant, who was “almost eighteen and a half when he committed” his crime, “falls on the wrong side of that limit.”); Woodward v. Debalso, No. 2:17-cv-224, 2019 WL 5677700, at *9 (E.D. Pa. Nov. 1, 2019) (prisoner's Miller claim “is completely without merit” because he was twenty years old at the time of the offense and “countless courts have agreed that [Miller's] holding applies exclusively to juveniles.”), cert. of appealability denied by Order, Woodward v. Sup't, Mahanoy SCI, No. 19-3793 (3d Cir. Oct. 26, 2021) (the prisoner “was 20 when he committed his crime and thus does not fall with the scope of Miller.”).
The “clearly established law” for temporal purposes under § 2254(d)(1) is the law as it stood when the Superior Court made its adjudication in Sadik III. See, e.g., Greene v. Fisher, 565 U.S. 34, 38-39 (2011) (“§ 2254(d)(1) requires federal courts to focus on what a state court knew and did, and to measure state-court decisions against this Court's precedents as of the time the state court renders its decision.”)
In White v. Woodall, 572 U.S. 415, 426 (2014), the Supreme Court explained that “[s]ection 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. Thus, if a habeas court must extend a rationale before it can apply to the facts at hand, then by definition the rationale was not “clearly established at the time of the state-court decision.” (Emphasis added and internal quotations and citations omitted.); see also Washington v. Secretary Pa. Dept. of Corr., 801 F.3d 160, 169-70 (3d Cir. 2015) (“it is permissible under § 2254(d)(1) to apply the rationales of Supreme Court decisions to new and different facts and circumstances as long as the new facts and circumstances…[are] substantially the same that were in the mind of the Supreme Court when it laid down the rule…. [However, to] widen the scope of or to enlarge Supreme Court rules is impermissible.”) (bracketed text added by the Court of Appeals, internal quotations and citations omitted).
In conclusion, it is recommended that the Court deny Claim 2 because the Superior Court's adjudication of it withstands review under § 2254(d)(1).
Claim 3
In Claim 3, Petitioner contends that the Commonwealth introduced insufficient evidence “to support the jury's finding beyond a reasonable doubt that the victim's death occurred as a result of the events taking place in 1993” or that he had the specific intent to kill the victim. (Petition, ECF 5 at 8.) Alternatively, Petitioner argues that the jury's verdict was against the weight of the evidence. (Id.) Petitioner raised Claim 3 in his counseled direct appeal. (Resp's Ex. 24, Br. for Appellant, at 312-23.) The Superior Court denied it on the merits in Sadik II. (Resp's Ex. 26 at 385-95.)
As to the causation issue, Pennsylvania law requires the Commonwealth to prove beyond a reasonable doubt a direct causal relationship between the defendant's acts and the victim's death. See, e.g., Commonwealth v. Rementer, 598 A.2d 1300, 1304 (Pa. Super. Ct. 1991). The Commonwealth must meet a two-part test. First, the defendant's “conduct must be ‘an antecedent but for which the result in question would not have occurred.'” Id. at 1305 (quoting 18 Pa. Cons. Stat. § 303(a)(1)). “Thus, if the victim's death is attributable entirely to the other factors and not at all brought about by the defendant's conduct, no causal connection exists and no criminal liability for the result can attach.” Id. (emphasis supplied by the Superior Court.) “[T]he defendant's conduct need not be the sole cause of the victim's death in order to establish the causal connection.” Id.
Second, the results of the defendant's actions cannot be “so extraordinary, remote or attenuated that it would be unfair to hold the defendant criminal responsible for it.” Id. at 1306. “‘The second part of the test is satisfied when the victim's death is the natural or foreseeable consequence of the defendant's actions. Where the fatal result was an unnatural or obscure consequence of the defendant's actions, justice would prevent [a court] from allowing the result to have an impact upon a finding of the defendant's guilt.'” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super. Ct. 2014) (quoting Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. Ct. 2008)). “In evaluating the second part of this two-part test, courts often note that the ‘chain of causation' between the acts of the defendant and the victim's death must be unbroken by supervening factors independent of the defendant's conduct.” 14 West's Pa. Prac., Crim. Offenses & Defenses § 1:105 (6th ed.) (available on Westlaw, update Mar. 2021) (citing cases.); see also Buterbaugh, 91 A.3d at 1258; Rementer, 598 A.2d at 1306-07; Commonwealth v. Thompson, 660 A.2d 68, 70 (Pa. Super. Ct. 1995).
As discussed above, Dr. Williams conducted the autopsy of the victim. He testified at Petitioner's trial as an expert in forensic pathology. Dr. Williams stated that when he examined the victim's body, the major injuries she sustained during the July 1993 attack, including to her head, were evident. He submitted her brain to neuropathologists for testing. (Trial Tr. at 189, 191-92.)
According to Dr. Williams, the victim “[s]howed pretty profound signs that anybody would have it you lie immobilized for a period of time. Wasting of the muscles from inactivity.” (Id. at 192.) His examination revealed that the victim had longstanding kidney infections, fluid in the lungs, and an enlarged heart because of high blood pressure that may have been caused from being immobilized for so long. (Id. at 192-194, 196-97.) She also suffered from loss of muscle mass, or flexion contraction, which Dr. Williams explained “happens…in people that are essentially paralyzed, without the normal movement of limbs and joints[.]” (Id. at 194.) Dr. Williams testified, however, that the “primary disease process[, ]” evident in the victim “was of the head and the brain where there was a marked atrophy, a marked swelling of the brain related to the trauma she received” during the July 1993 attack. (Id. at 192-93.)
All of the victim's other conditions and chronic infections, which “could have killed [the victim] at any time[, ]” Dr. Williams stated, were “a consequence of her being in that kind of vegetative state for that period of time.” (Id. at 208.) As discussed, Dr. Williams testified that in his expert opinion, “the original insult to [the victim] was caused by a blunt force trauma to the head, to the neck, to the abdomen, the vaginal vault. That's what began the sequence of events that continued in an unbroken chain until the time of her death years later at Kane Hospital.” (Id. at 198.) He stated that he held his opinions within a reasonable degree of medical certainty. (Id.)
In Petitioner's brief to the Superior Court, he acknowledged that Dr. Williams “certainly testified to cause-in-fact[.]” (Resp's Ex. 24, Br. for Appellant, at 317.) Petitioner argued, however, that the jury should not have credited Dr. Williams' testimony (“said evidence was false[.]”) (Id. at 312). He also argued that the Commonwealth did not meet its burden of proof because the evidence was that “[t]he immediate cause of the victim's death was the complications resulting from several infections which were due to questionable medical care.” (Id. at 317.)
The Commonwealth countered that it was within the province of the jury whether to credit Dr. Williams' testimony. (Resp's Ex. 25, Br. for Appellee, at 363-64.) See also Thompson, 660 A.2d at 71 (“The jury, as fact-finder, was entitled to believe this properly admitted expert medical testimony and find causation.”) It also pointed out that Dr. Williams did not state that the victim received “questionable care” at the nursing home which led to an infection that caused her death. (Id. at 363.) In fact, Dr. Williams testified that “anybody that's immobilized for a long period of time, no matter how well they're taken care of, at some point starts to develop flexion contractures.” (Trial Tr. at 194.) He also stated that “[i]n some ways it's more surprising that she survived as long as she did, which is a result of I'm sure the quality of nursing care as much as anything else.” (Id. at 197.)
The victim's sister testified that while the victim was in the nursing facility she “could have been treated a little better.” (Trial Tr. at 234.) She stated that the victim kept getting infections and that her body had contracted into a fetal position. (Id. at 230.) She also stated that “sometimes I would come there, and her bed wouldn't be changed all day. They didn't brush her teeth, you know, comb her hair and, you know, things like that.” (Id. at 235.)
Petitioner also asserted in his brief to the Superior Court that the evidence that he had been drinking before the assault negated any intent to kill. (Resp's Ex. 24, Br. for Appellant, at 320-21.) He also argued that “the life-threatening nature of the beating” would not have been apparent to him when he was committing the offense. (Id. at 321.)
In disposing of Claim 3 in Sadik II, the Superior Court first set out the standard that applies when challenging the sufficiency of the evidence, including that it requires that the reviewing court view all of the evidence submitted at trial in the light most favorable to the verdict winner. (Sadik II, Resp's Ex. 26 at 385.) The Superior Court next explained that “[e]vidence is sufficient to sustain a conviction for first-degree murder where the Commonwealth establishes that a human being was unlawfully killed; that the accused is responsible for the killing; and that the accused acted with specific intent.” (Id. at 386, citing 18 Pa. Cons. Stat. § 2502(a); additional citations omitted). “The Commonwealth can prove this specific intent to kill from circumstantial evidence[, ]” and the jury “may infer that that the defendant had the specific intent to kill based on the defendant's use of a deadly weapon upon a vital party of the body.” (Id., quoting Commonwealth v. Brown, 711 A.2d 444 (Pa. 1998), other internal quotations and citations omitted.)
The Superior Court then addressed Petitioner's argument that the Commonwealth introduced insufficient evidence from which the jury could find causation. It explained that “[t]he Commonwealth is required to prove a direct causal connection between a defendant's conduct and the victim's death[, ]” (id. at 386, citing Rementer, 598 A.2d at 1304), and that “because the assault occurred in 1993, and the victim died in 2007, the Commonwealth was required to show that the attack on the victim began a ‘chain of causation' that led to her death. (Id. at 387, citing Thompson, 660 A.2d at 70.) The Superior Court next summarized the evidence introduced at the trial, including Petitioner's confession and Dr. Williams' testimony. (Id. at 387-90). It held:
Viewed in the light most favorable to the Commonwealth as verdict winner, [Dr. Williams'] testimony and other evidence presented established that [Petitioner's] participation in the attack on the victim began an unbroken chain of causation that culminated in the victim's death. The jury was free to credit the opinion of the Commonwealth's expert and find causation.(Id. at 390.)
In addressing Petitioner's contention that there was insufficient evidence that he possessed the specific intent to kill, the Superior Court first noted that the jury simply “did not believe that the evidence support a conclusion that [his] drinking caused him to lose his sensibilities the night of the attack.” (Id. at 393.) In rejecting Petitioner's argument that “there was no evidence that he knew the effect his beating was having on the victim, ” the Superior Court held:
This is not borne out be the evidence presented. As previously noted, [Petitioner] told police that he saw Rose punch the unclothed victim, knock her to the ground and threaten to kill her. [Petitioner] then admitted that he kicked the victim once in the face and three times in the head while wearing heavy boots. He estimated that
Rose kicked the victim eighty time, and stated that the seven or eight times that Rose fell on the victim, he would help him get back up. Furthermore, it was later discovered that a piece of aluminum window frame had been inserted in the victim's vagina. This evidence was sufficient to establish [Petitioner's] intent to commit first-degree murder.(Id. at 394.)
The “clearly established Federal law, ” 28 U.S.C. § 2254(d)(1), in which to analyze the Superior Court's adjudication of Claim 3 is set forth in Jackson v. Virginia, 443 U.S. 307 (1979). In Jackson, the Supreme Court explained that “[t]he Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt” of each element of the offense. 443 U.S. at 309. “This reasonable doubt standard of proof requires the finding of fact ‘to reach a subjective state of near certitude of the guilt of the accused.” Travillion v. Sup't Rockview SCI, 982 F.3d 896, 902 (3d Cir. 2020) (quoting Jackson, 443 U.S. at 315) (emphasis supplied by Court of Appeals).
“Under Jackson, ‘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.'” Id. (quoting Jackson, 443 U.S. at 319) (emphasis supplied by the Supreme Court). “Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to ultimate facts.'” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per curiam) (quoting Jackson, 443 U.S. at 319).
When it denied Claim 3, the Superior Court applied the Pennsylvania equivalent of the Jackson standard. (Sadik II, Resp's Ex. 26 at 385); see also Evans v. Court of Common Pleas, Delaware Cnty., 959 F.2d 1227, 1233 (3d Cir. 1992) (the test for insufficiency of the evidence is the same under both Pennsylvania and federal law). Because it applied the correct legal standard, its adjudication satisfies review under the “contrary to” clause of § 2254(d)(1). Williams, 529 U.S. at 406.
The next inquiry for this Court, then, is whether the Superior Court's decision was an “unreasonable application of” Jackson under § 2254(d)(1). The Supreme Court has stressed to federal habeas courts conducting this analysis that:
[w]e have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, “it is the responsibility of the jury to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the…verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, __ (2011) (per curiam) (slip op., at 1). And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Ibid. (quoting Renico v. Lett, 559 U.S. __, __ (2010) (slip op., at 5)).Coleman, 566 U.S. at 651.
Here, Petitioner has not shown that the Superior Court's adjudication of any part of Claim 3 was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Thus, Petitioner has not satisfied his burden of proving that the Superior Court's decision to deny his challenge to the sufficiency of the evidence was an “unreasonable application of” Jackson.
Petitioner's actual challenge is that the jury's verdict was against the weight of the evidence, which is the alternative basis on which he seeks habeas relief in Claim 3. (Petition, ECF at 8.) Such a claim, however, is purely a state law claim that is distinct from a federal due process claim, and, as such, it is not cognizable in federal habeas corpus. Tibbs v. Florida, 457 U.S. 31, 37-45 (1982) (weight of evidence claims raise questions of credibility; it is different from a claim that the evidence was insufficient to support the conviction); McKinnon v. Sup't, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 75 (2d Cir. 2011) (“the argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus[.]”); see, e.g., Anger v. Wenerowicz, No. 2:11-cv-1421, 2012 WL 5208554, *2 (W.D. Pa. Sept. 10, 2012) (a claim that the verdict was against the weight of the evidence “is simply not a cognizable claim in federal habeas proceedings as it raises solely a state law claim.”), report and recommendation adopted by 2012 WL 5208654 (W.D. Pa. Oct. 22, 2012); Davis v. Lavan, No. 2:04-cv-456, 2004 WL 2166283, *9 (E.D. Pa. Sept. 23, 2004) (same).
In conclusion, to the extent that Petitioner asserts in Claim 3 that the Commonwealth introduced insufficient evidence to sustain the jury's verdict, the Court should deny the claim because the Superior Court's adjudication of it withstands review under § 2254(d)(1). To the extent that Petitioner asserts in Claim 3 that the jury's verdict was against the weight of the evidence, the Court should deny the claim because it is state law claim that is not cognizable under § 2254.
Claim 4
Petitioner asserts in Claim 4 that because he was convicted of and sentenced for the crime of aggravated assault in 1994, “his subsequent sentence for first degree murder was a violation of [his] double jeopardy rights.” (Petition, ECF 5 at 10.) Petitioner raised this claim in his counseled direct appeal. (Resp's Ex. 24, Pet's Appellate Br., at 324-27.) His argument to the state court was predicated on the fact that aggravated assault is a lesser-included offense of first degree murder. Thus, if Petitioner had been tried and convicted of both aggravated assault and homicide in the same trial, he argued, his sentence for aggravated assault would have merged with that for first-degree murder in accordance with 42 Pa. Cons. Stat. § 9765, the state merger statute. Petitioner contended that since the Superior Court lacked jurisdiction to vacate his 1994 sentence for aggravate assault, it must vacate his life sentence for first-degree murder to cure the alleged violation of § 9765, and/or the Double Jeopardy Clauses of the state and federal constitutions.(Id. at 327.)
Section 9765 provides that “[n]o crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense.”
Petitioner does not specifically argue in his federal habeas petition that his sentence for first-degree murder violates any state law. In any event, to succeed on Claim 4, Petitioner must show that his rights under the Double Jeopardy Clause of the federal constitution were violated. Errors of state law are not cognizable under 28 U.S.C. § 2254.
The Double Jeopardy Clause of the Fifth Amendment “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 166 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The Supreme Court explained in Brown:
Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). Where successive prosecutions are at stake, the guarantee serves “a constitutional policy of finality for the defendant's benefit.” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); cf. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); cf. North Carolina v. Pearce, supra.
The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of an additional fact which the other does not. . . . ”
This test emphasizes the elements of the two crimes. “If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes….” Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616 (1975).Id. at 165-66.
Pennsylvania's merger statute, § 9765, is an adoption of Blockburger's “same elements” test for sentencing purposes. See Commonwealth v. Wade, 33 A.3d 108, 116, 121 (Pa. Super. Ct. 2011) (“Our merger statute merely codified the adoption…of the Blockburger test and upholds the long-standing merger doctrine relative to greater and lesser-included offenses.”) The Superior Court acknowledged when it ruled on Claim 4 in Sadik II that if the victim had died before Petitioner's first trial, and if he had been tried and convicted of aggravated assault and murder at the same trial, under § 9765 the sentence for aggravated assault would have merged with that for first-degree murder. (Resp's Ex. 26 at 395-97.)
“[Section] 9765 prohibits the merger of sentences unless a strict two-part test is met. First, the convictions must be based on a single criminal act. Second, all of the statutory elements of one of the offenses must be included in the statutory elements of the other.” Wade, 33 A.3d at 116.
It does not follow that the victim's delayed death prohibited the Commonwealth from prosecuting Petitioner for homicide without violating the Double Jeopardy Clause, however. In Brown, the Supreme Court explained that “[i]f two offenses are the same under [the Bockburger] test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.” 432 U.S. at 166. But importantly, the Supreme Court recognized that, although “the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense[, ]” “[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” Id. at 169 & n.7 (emphasis added). In support, the Brown Court cited Diaz v. United States, 223 U.S. 442 (1912). In Diaz, the Court held that the prohibition against double jeopardy did not bar the defendant's prosecution for homicide subsequent to a conviction for assault and battery where the victim died after the first conviction.
The circumstances of Petitioner's case falls within the possible exception recognized in Brown. Petitioner has not directed this Court to any case-and this Court has found none after independent research-that would support the conclusion that the Superior Court's adjudication of Claim 4 “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). Petitioner's claim that his double jeopardy rights have been violated has no merit. See, e.g., New Hampshire v. Hutchinson, 156 N.H. 790, 795, 942 A.2d 1289, 1293 (2008) (double jeopardy no bar to prosecution for murder when the victim died following the defendant's conviction for attempted murder); People v. Scott, 15 Cal.4th 1188, 65 Cal.Rptr.2d 240, 939 P.2d 354, 362 (1997) (prosecution for murder following conviction of attempted murder and rape did not violate double jeopardy); People v. Latham, 83 N.Y.2d 233, 238-39 (1994) (“In the case of delayed death...Blockburger does not bar a second prosecution for homicide following conviction of assault or another nonhomicide offense because the consummating element of death distinguishes the two offenses, and is not known to or discoverable by the [State] at the time of the first prosecution.”); Ohio v. Clark, 20 Ohio App.3d 266, 268, 485 N.E.2d 810, 812 (1984) (defendant's conviction of driving while intoxicated did not preclude a subsequent indictment for vehicular homicide following the death of the victim).
Based on the above, it is recommended that the Court deny Claim 4 because the Superior Court's adjudication of it withstands review under § 2254(d)(1).
D. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from…the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue...only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
When the district court 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, jurists of reason would not find it debatable whether each of Petitioner's claims should be denied for the reasons given herein. Accordingly, the Court should not issue a certificate of appealability on any of Petitioner's grounds for relief.
IV. CONCLUSION
Based on the foregoing, it is respectfully recommended that the Court deny each claim raised in the Petition (ECF 5) and deny a certificate of appealability as to each claim. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017); Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).