Opinion
Civil Action 2:20-cv-0896
07-08-2021
GARY SMITH, Petitioner, v. OFFICE OF DISTRICT ATTORNEY OF ALLEGHENY COUNTY, THE ATTORNEY GENERAL OF PENNSYLVANIA, and SUPERINTENDENT OF SCI HUNTINGDON, Respondents.
Marilyn J. Horan United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy Chief United States Magistrate Judge
I. RECOMMENDATION
Petitioner, Gary Smith, a prisoner currently confined at the State Correctional Institution - Huntingdon, in Huntingdon, Pennsylvania, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 5). He is challenging the October 17, 2013, judgment of sentence imposed on him by the Court of Common Pleas of Allegheny County, Pennsylvania, at its criminal case at CP-02-CR-0013605-2011. 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). It is Smith'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 shooting death of Justin Charles during a robbery on October 14, 2011. Smith was charged with one count Criminal Homicide, one count Robbery, two counts Criminal Conspiracy, one count Persons Not to Possess a Firearm, and three counts Recklessly Endangering Another Person (REAP). Smith was represented by Michael J. Machen, Esquire, during the pre-trial and trial proceedings. Following a two-day bench trial presided over by the Honorable Beth A. Lazzara, Smith was convicted of Second-Degree Murder, robbery, and the related crimes. He was sentenced to a term of life imprisonment on the second-degree murder charge and a concurrent term of five to ten years on the robbery charge. No further penalty was imposed on the remaining convictions. Quoting from its memorandum on direct appeal, the Pennsylvania Superior Court recounted the factual background and evidence that led to Smith's arrest and conviction:
Co-[d]efendant Eugene McMiller and this [d]efendant, Gary Smith, were accused of killing Justin Charles during a robbery on October 14, 2011[.] On that day, Michael Elko and Charles Coddington were at Mr. Elko's home at 3103 Miles Street in C[l]airton. Both Mr. Elko and Mr. Coddington were admitted heroin users. A friend of the pair, Justin Charles, came to the home with two (2) African-American males, one of whom Mr. Elko later identified as [Smith]. Mr. Charles, also a heroin user, was trying to arrange a drug deal with the two (2) men. Mr. Charles asked to buy two (2) stamp bags of heroin from the men in order to sample what the men were selling and then offered that he would buy a bundle of stamp bags if he liked the first two (2). The men indicated that they did not have the drugs with them and would have to leave the house to go get the heroin. The men then left the house. Mr. Charles asked Mr. Elko if he would get some heroin for him in the meantime, and Mr. Elko left the house to do so.
As Mr. Elko was walking in front of his house, he saw [McMiller] enter the front door of his home, and [Smith] entering the back door[.] Mr. Elko immediately returned to his home, entering the house shortly after [McMiller]. As he entered his home, Mr. Elko heard [Smith], who was in the kitchen, tell someone to lock the front door because there were police in the area. According to Mr. Elko, [McMiller] then pulled out a gun and demanded money from Justin Charles. Mr. Elko tried to give [McMiller] the $20 that Mr. Charles had given him to buy two (2) stamp bags, but [McMiller] did not even acknowledge the offer.
[McMiller] threatened that, if Mr. Charles did not give him the money, he would give the gun to [Smith], who would use it. [McMiller] gave the gun to [Smith], and another demand for money was made. In response, Mr. Charles indicated that the money was upstairs. Mr. Elko stated that there was no money upstairs because Mr. Charles did not live in the home, and then the three (3) men walked up the stairs.
When the three (3) men began walking upstairs, Mr. Elko called 911, and, during his report to the 911 operator, he heard shots coming from upstairs. Mr. Charles ran down the stairs, followed by [Smith] with the gun and then [McMiller]. As the three (3) ran toward the back door, there was another gunshot. After the shooting, Mr. Elko saw the two (2) African-American men jump over Mr. Charles and then run together behind some nearby buildings. Mr. Elko was in the back of the house with Mr. Charles when the paramedics arrived. Unfortunately, Mr. Charles was already dead by the time that the paramedics reached him.
Mr. Elko described one of the men who entered his home that day to the 911 operator. He indicated that one of the men was a larger black man with a Muslim-style beard, meaning a beard that went from ear to ear, but with no mustache. Mr. Elko met with a detective from the Allegheny County Police, Homicide Unit, later that day and was presented with photographs of individuals who could have been in his home that day. Mr. Elko identified [Smith] as one of the men who came into his house, and as the man who was originally in the kitchen, when shown a photo array by Detective Hitchings of the Allegheny County police. Mr. Elko identified [Smith] in court as the man whose photo he selected in the photo array and as the man who was in his kitchen that day.
The cases of [McMiller] (2011-13606) and [Smith], were originally joined. Counsel for [McMiller] filed a [m]otion for [s]everance pursuant to Rule of Criminal Procedure 583, stating that [McMiller's] version of events was so antagonistic to [Smith's] defense that it would be impossible for a trier-of-fact to believe both. Specifically, [McMiller] acknowledged in his [m]otion being present at Mr. Elko's residence, with [Smith], at the time of the shooting. The court granted the severance motion on February 16, 2012. While the cases were still joined,
counsel for [Smith] filed a motion seeking to preclude the identification testimony of Mr. Charles Coddington, also an eyewitness to the events of October 14, 2011. [The trial court] granted the motion as to [Smith] on March 13, 2012. As such, the only person to present eyewitness testimony in this case was Mr. Elko.Commonwealth v. Smith, No. 1189 WDA 2018, (Pa. Super. May 29, 2019) (unpublished memorandum) (quoting from Commonwealth v. Smith, 2015 WL 6750722 at ** 1-3 (Pa Super. Jul. 21, 2015) (unpublished memorandum) (record citations omitted in original)). (ECF No. 9-10 at 2-3).
The record reflects that the Commonwealth elected to try the co-defendant, Eugene McMiller, first. See Commonwealth's Application for Postponement, 3/29/12. The public docket reflects that McMiller proceeded to a jury trial in October 2012 and was found guilty of criminal homicide, robbery, and related charges. McMiller was sentenced on January 23, 2013 to life imprisonment. See https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR-0013606 2011.
Smith, represented by Suzanne M. Swan, Esquire, appealed his conviction to the Pennsylvania Superior Court, presenting two issues for review, both arguing trial court error: (1) that the trial court erred in not permitting him to present expert testimony as to the limits on eyewitness identification and (2) that the trial court erred in not finding that the conviction was against the weight of the evidence. After briefing, the Superior Court affirmed the judgment of sentence by Memorandum filed July 15, 2015, in which it adopted as its own the trial court's opinion filed on September 15, 2014. Id. The Pennsylvania Supreme Court denied allocator on December 30, 2015. (ECF No. 9-7 at 1).
Unsuccessful on direct appeal, Smith next sought relief under the Pennsylvania's Post-Conviction Relief Act (“PCRA”) by filing a timely pro se petition in which he raised seven issues for review: one sufficiency of the evidence claim; one challenge to the credibility of a Commonwealth witness; and five ineffective assistance of counsel claims. The trial court, now the PCRA court, appointed Diana Lynn Stavroulakis, Esquire, to represent Smith through his PCRA proceedings. On March 29, 2017, Attorney Stavroulakis filed an extensive Turner/Finley letter and a Motion to Withdraw. The PCRA court granted counsel's motion to withdraw, issued a notice of its intent to dismiss, and ultimately dismissed the petition on August 23, 2017, without a hearing. Smith thereafter filed pro se requests to amend the petition, which the PCRA court granted, and on December 4, 2017, Smith filed a 50-page handwritten amended PCRA Petition. In the Amended Petition, Smith raised eight claims: one claim that the trial court erred in denying expert witness regarding eyewitness identification; one claim that the verdict was against the weight of the evidence; and six ineffective assistance of counsel claims.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.3d 213 (Pa. Super. Ct. 1988) (en banc).
The PCRA court dismissed the Amended Petition on June 19, 2018, and Smith, pro se, filed a timely appeal from the PCRA dismissal order to the Superior Court. The PCRA court issued its Rule 1925(a) opinion on October 25, 2018, finding that Smith was not entitled to relief on any of his claims. The Superior Court affirmed the dismissal of the PCRA Petition on May 29, 2019, concluding “that all the issues raised in Smith's appellate brief were either previously litigated, waived, or lacking in merit” and therefore “the PCRA court did not err in dismissing Smith's petition.” Commonwealth v. Smith, No. 1189 WDA 2018 (Pa. Super. May 29, 2019) (ECF No. 9-10 at 11).
2. Federal Court Proceedings
Having been denied relief in state court, Smith filed pro se the instant federal habeas petition and memorandum in support on June 4, 2020, in which claims he received ineffective assistance of counsel, that he is “factually” innocent, and that the prosecutor committed misconduct at trial. (ECF No. 5). Respondents filed an Answer in which they argue that the petition is time-barred and, in the alternative, that the claims are procedurally defaulted and/or not cognizable by a federal court entertaining a habeas petition from a state prisoner. (ECF No. 9). The Court has reviewed the filings of the parties, the original state court record which Respondents provided the Court, including the trial transcript, the Memorandum Opinions of the Superior Court filed July 21, 2015, and May 29, 2019 (ECF Nos. 9-6 and 9-10, respectfully), and Smith's appellant briefs filed in his direct appeal and PCRA appeal proceedings (ECF Nos. 9-3 and 9-9, respectfully). The matter is fully briefed and ready for disposition..
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”).
On PRCA appeal, the Superior Court noted that “because of the scattershot nature of Smith's brief, it is exceedingly difficult to parse the specifics of his claims.” Memo. 5/29/2019 at 6 (ECF No. 9-10 at 6). The undersigned notes that the instant petition and supporting memorandum have a similar “scattershot nature” and each ground for relief has a variety of claims, some with tangentially related subissues, that makes it difficult for the Court to ensure that it has a complete picture of each claim. The undersigned has endeavored to identify and address each of Smith's claims. [5] Smith also states that “it is not upon or required for Petitioner to help nor in any way assist the respondent in their pleadings of any legal or factual finding or way.” Resp. at ¶ 5 (ECF No. 19). The Court never ordered Smith to assist the Respondents. He was ordered to respond to Respondents' affirmative defense that the petition was time barred by AEDPA's one year statute of limitations. Filing a timely petition is the sole responsibility of a petitioner and a petitioner carries the initial burden to prove that his habeas petition was filed within the requisites of 28 U.S.C. § 2244(d).
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 Smith'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 argue that the instant petition is time-barred by 39 days. According to Respondents, the PCRA petition was filed 253 days after Smith's conviction became final. Respondents use the date on which Smith's PCRA petition was docketed in state court, as the record is void of any evidence reflecting when Smith likely delivered his PCRA petition to prisoner officials. The PAA was denied on January 5, 2020. According to Respondents, this left 112 days, or until April 27, 2020, for Smith to file his federal habeas petition. The instant petition was not filed until June 4, 2020. Thus, a critical date for determining whether the instant petition is time-barred is the date Smith delivered his PCRA petition to prison officials for mailing.
The Court ordered Smith to respond to Respondents' untimeliness argument and to verify the date he placed his PCRA petition in the prison mail system. (ECF No. 15). Smith responded that at the time he submitted his PCRA petition, “he was in the hole and subject to very limited and scrutinized restriction” and the original petition “had all pertinent/ relevant dates that are in question.” ECF No. 19. Smith states that he sent the petition, “on or about the 15th - 21st, . . . 15-18 days before the clerk filed the lower petition.” Id. The undersigned has reviewed the original petition which is in the original state court record and notes that, while the petition is signed, it is not dated and does not contain a declaration of the date it was placed in the prison mailing system. Additionally, the postage-stamped envelope which contained the petition is not in the state court record. As a result, the mailing date of Smith's PCRA Petition is not clear from the record.
The PCRA Petition was docketed in state court on December 8, 2016. Pennsylvania state courts apply the prison mailbox rule to PCRA petitions. See Jenkins v. Superintendent Laurel Highlands, 705 F.3d 80, 83 n.1 (3d Cir. 2013) (citing Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa Super. Ct. 2001). Smith is unable to provide any documentation which verifies when he placed his petition in the prison mail system. However, the undersigned recommends that given the circumstances presented here, the Court should bypass the question of untimeliness as it would be more expedient for the Court to reach the merits of Smith's claims. See Means, Postconviction Remedies, §§ 25:3, 25:20 (West 2015 ed.).
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 raises three grounds for relief: ineffective assistance of all prior counsel (Claims One and Three), “Factual Innocence”/structural error (Claim Two), and prosecutorial misconduct at trial (Claim Four). Smith's claims of ineffectiveness of trial counsel and direct appeal counsel, trial error, and due process violations are cognizable. However, as will be discussed below, to the extent Smith is raising a standalone claim of actual innocence, or claims regarding the weight of the evidence or PCRA counsel's ineffectiveness, such claims are not cognizable in this federal habeas case.
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 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).
This is an intentionally difficult standard to meet. Richter, 562 U.S. at 102. Section 2254(d) “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” clearly established Supreme Court precedent. Id. Thus, to obtain federal habeas relief on an exhausted claim, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Id. at 103.
Finally, “[i]f a claim has been adjudicated on the merits by a state court, 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). “[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.
Although mandatory, the exhaustion requirement “turns on an inquiry into what procedures are ‘available' under state law.” O'Sullivan, 526 U.S. at 847. Under Pennsylvania law, a federal claim becomes exhausted once it is presented to the Pennsylvania Superior Court, either as a direct appeal from a state criminal conviction or as an appeal from a PCRA Court's denial of post- conviction relief. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004) (finding that review from the Pennsylvania Supreme Court is unavailable, and therefore not required, for purposes of exhausting state court remedies).
Nor may a federal court grant a habeas petition if the state court's decision rests on a violation of a state procedural rule, even if the claim is properly exhausted. Johnston v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is “independent of the federal question [presented] and adequate to support the judgment.” Leyva v. Williams, 504 F.3d 357, 365-66 (3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187 (3d Cir. 2007)).
4. Federal Habeas Review of Unexhausted, Defaulted Claims
If a state prisoner has not fairly presented a claim “to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play.” Carpenter, 296 F.3d at 146 (citations omitted). The doctrine of procedural default serves as a corollary to the exhaustion requirement and provides a basis for a federal court to refuse to review a habeas claim. Federal courts may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate “cause” to excuse the default and “actual prejudice resulting from the alleged constitutional violation.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 (3d Cir. 2018) (quoting Davila v. Davis, __U.S. __, 137 S.Ct. 2058, 2065 (2017) (quoting Wainwright v. Skyes, 433 U.S. 72 (1977)), cert. denied, __ U.S. __, 139 S.Ct. 1613 (2019). The burden lies with a petitioner to demonstrate circumstances that would serve to excuse a procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also Coleman, 501 U.S. at 750.
A petitioner, alternatively, can overcome a procedural default by demonstrating that the court's failure to review the defaulted claim will result in a “miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 748 (1991); McCandless v. Vaughn, 172 F.3d 225, 260 (3d Cir. 1999). “However, this exception is limited to a ‘severely confined category [] [of] cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner]'.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 n.11 (3d Cir. 2018) (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (internal alteration in original) (quoting Schlup v. Delo, 514 U.S. 298, 329 (1995)). Further, the undersigned concludes that nothing in the record suggests that Smith could met the Schlup test. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (explaining that the miscarriage of justice standard “requires ‘new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.'”).
“Cause for a procedural default exists where something external to the petitioner, something that cannot fairly be attributed to him[, ] . . . impeded [his] efforts to comply with the State's procedural rule.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original) (citations and internal quotation marks omitted). To establish prejudice, a petitioner must show not merely that there were errors that created a possibility of prejudice, but that they “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). If cause and prejudice are established, the federal court reviews the claim “de novo because the state court did not consider the claim on the merits.” Bey, 856 F.3d at 236 (citation omitted).
Each of Smith's claims will be reviewed with these standards in mind.
D. Discussion
1. Claim One - Ineffective Assistance of Counsel
Claim One consists of multiple layered ineffective assistance of counsel claims:
(a) Trial counsel coerced Smith into waiving his right to a jury trial;
(b) Trial counsel failed to investigate a potential alibi witness, Lolita Page;
(c) Direct appeal counsel failed to raise either of these issues and failed to argue issues which would warrant relief;
(d) PCRA counsel “failed to legally review the claims available . . . and filed No-Merit Letter that makes false claims . . . .” Br. at 6.
Claims alleging ineffectiveness of counsel are grounded in rights guaranteed under the Sixth Amendment. 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 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).
Claims One (a), (c), and (d)
Claims One (a), (c), and (d) were raised by Smith in his PCRA appeal, but the Superior Court found that Smith had waived these claims as he had not raised them in his Rule 1925(b) statement:
Here, Smith did not raise his claims that trial counsel was ineffective for coercing him into waiving his right to a jury trial, as well as all his claims regarding ineffective assistance of direct and PCRA counsel in his Rule 1925(b) statement. See Statement of Errors Complained of on Appeal, 10/16/18, at unnumbered pages 1-10. As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925 provides that issues that are not included in the Rule 1925(b) statement or raised in accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Heggins, 80 A.2d 908 911 (Pa. Super, 2011), appeal denied, 827 A.2d 430 (Pa. 2003) (“[A Rule 1925(b)] [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no [c]oncise [s]tatement at all.”); Commonwealth v. Lord, 71 A.2d 306, 308 (Pa. 1988), superseded by rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009). Thus, Smith waived these claims.Commonwealth v. Smith, Memo. 5/29/2019 at 7-8 (ECF No. 9-10 at 7-8).
A federal court ordinarily may not review a claim on the merits if the state court's denial of relief is based on a procedural default that rests on a state law ground that is independent of the federal question and adequate to support that judgment. Maples v. Thomas, 565 U.S. 266, 820 (2012); Coleman v. Thompson, 501 U.S. 722, 729 (1991). Here, the Superior Court's decision rests comfortably on such basis.
Rule 1925(b)(4)(vii) specifically states that “[i]ssues not included in the Statement [of Errors Complained of on Appeal] and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.” Because the Superior Court's decision was based on an independent and adequate state procedural rule, this claim is procedurally defaulted. See Coleman, 501 U.S. at 731-32; Griggs v. DiGuglielmo, No. 06-1512, 2007 WL 207971, at *5 (E.D.Pa. July 3, 2007) (“the Pennsylvania Rules of Appellate Procedure and PCRA waiver rules are independent and adequate state grounds which may bar federal habeas review”); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (Pennsylvania “jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered [and] any issues not raised in a Rule 1925(b) statement will be deemed waived.”).
This Court cannot consider these claims unless Smith establishes cause and prejudice or a fundamental miscarriage of justice sufficient to excuse the default. Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 (3d Cir. 2018) (stating that federal courts may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate “cause” to excuse the default and “actual prejudice resulting from the alleged constitutional violation.) Smith has not met this burden. As a result, it is recommended that Claims One (a), (c), and (d) be denied because they are procedurally defaulted and federal review is barred.
Even if Claim One (a) was not procedurally defaulted, the undersigned would recommend that it be denied on its merits. Smith signed an Explanation of Defendant's Rights - Non-Jury Trial on July 15, 2013, and answered “NO” to the question, “Has anybody forced you, or attempted to force you, in your decision to waive your constitutional right by jury?” Additionally, prior to the commencement of the trial, Judge Lazzaro engaged in a lengthy colloquy with Smith about the waiver and confirmed that he understood he was waiving his right to a jury trial and that no one had forced, threatened, coerced or promised him anything in return for his request for a non-jury trial. N.T. at 3-8.
Additionally, to the extent Smith is claiming his PCRA counsel was ineffective for failing “to legally review the claims available for argument in a P.C.R.A. Petition and filed No-Merit Letter and makes false claims that she mad a thorough and conscientious review of the entire Case File, . . ., ” such claim is not cognizable. Memo. at 6 (ECF No. 6). Smith did not have a federal constitutional right to counsel during his first PCRA proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Therefore, he cannot receive habeas relief on a stand-alone claim that his PCRA counsel was ineffective, a fact codified by statute at 28 U.S.C. § 2254(i), which expressly provides that “[t]he ineffectiveness of counsel during Federal or State collateral post-conviction proceedings shall not be ground for relief in a proceeding arising under section 2254.” See also Coleman v. Thompson, 501 U.S. 722, 752-53 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings. . . . Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”). Accordingly, to the extent that Smith is raising any stand-alone claims of PCRA counsel's ineffective assistance, those claims must be dismissed because they are not cognizable in a habeas case filed under 28 U.S.C. § 2254.
Claim One (b)
On PCRA review, Smith raised the issue that counsel failed to call Lolita Page as a witness at trial. The Superior Court addressed the issue and found the claim to be insufficiently pled and found such omissions were fatal to his claim. Smith now has changed the focus of the claim, and in Claim One (b) asserts that trial counsel was ineffective for failing to properly investigate and present alibi evidence. His argument regarding the alibi evidence focuses on a statement given to the police by Lolita Page about the whereabouts of Smith at the time of the shooting. As Respondents correctly point out, this claim is procedurally defaulted as Smith has never raised it in any state court and this Court cannot consider the claim unless Smith establishes cause and prejudice or a fundamental miscarriage of justice sufficient to excuse the default. Again, Smith as not met this burden.
In the alternative, even if not procedurally defaulted, and even if the Court were to address this issue on the merits, the undersigned recommends adopting the analysis of the issue made by the PCRA trial court as its own and denying the claim on the merits:
In doing so, the Court is not applying the deferential standards of AEDPA to the PCRA trial court's analysis and determining that the PCRA trial court's analysis was not contrary to or an unreasonable application of federal Supreme Court precedent. See e.g., Thomas v. Horn, 570 F.3d 105 (3d Cir. 2009) (holding that if a state trial court addresses an issue on the merits but the state appellate court finds the issue to be waived under state law, the federal habeas courts may not look through the state appellate court's finding of waiver and conduct a contrary to or unreasonable analysis of the state trial court's disposition on the merits). Rather, in conducting a de novo review of this claim, the Court is merely adopting as its own the PCRA trial court's analysis of this issue.
The Defendant also attempts to assert his claim that counsel was ineffective for failing to present an alibi witness even though this claim was address in PCRA Counsel's No-Merit and this court already deemed that claim meritless. (Pro Se Amended PCRA Petition, pp. 45-47). However, the court notes agrees (sic) with the Commonwealth that the alibi claim fails because he cannot demonstrate actual prejudice. First, the Defendant has not met his burden of proving that his purported alibi witness - Lolita Page - was available at the time of trial and that she was prepared to testify on his behalf. See Commonwealth v. Wright, 961 A.2d 119, 115 (Pa. 2008). Moreover, the alibi claim appears to be fabricated given that the Defendant initially told Detective Costa that he was with Eugene McMiller at the time of the shooting. As noted by PCRA Counsel in her No-Merit Letter, trial counsel's decision to forego Lolita Page's alibi testify at trial would have been a reasonable trial strategy given that it would have directly contracted the Defendant's own statement to the police. (No Merit Letter, p. 19-20). Given that this court was sitting as fact-finder, it can say with great confidence that her alibi testimony would not have changed the outcome of the trial.
PCRA Order, 6/19/2018 at ¶ 9 (emphasis added).
Here, the police report indicated that Lolita Page's statement contradicted Smith's own statement made to the police concerning his whereabouts at the time of the shooting. (N.T. 7/16/13, pp. 78-79, 106-107). Thus, the undersigned concludes that Smith has not demonstrated that a reasonable probability exists that, if trial counsel had interviewed, subpoenaed and called Lolita Page as an alibi witness, Smith would not have been found guilty. Lewis v. Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990) (holding that in order to show ineffective assistance of counsel, a petitioner must show that “a reasonable likelihood that . . . information [not presented] would have dictated a different trial strategy or led to a different result at trial.”). Further, Smith has not shown that trial counsel's alleged failure to properly investigate and call Lolita Page as an alibi witness “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686; Accordingly, the undersigned recommends that this claim be denied as Smith has not met his burden under Strickland to prove that he was prejudiced by his counsel's failure to properly investigate and call Lolita Page as an alibi witness.
For all these reasons, it is recommended that each part of Claim One be denied.
Count Two - “Factual Innocence of Crimes of Robbery and Murder”
In his second ground for relief, Smith argues:
The victim was never robbed and had his wallet and money on his person in his pocket, the fingerprint at the residence did not match me and the store surveillance does not show me with the victim. I was physically somewhere else and could not have committed or participated in the crimes.
Pet. at 6. Smith, citing Jackson v. Virginia, 43 U.S. 307, 330 (1970), argues that his “Conviction and Sentence must be vacated and a new trial awarded.” Memo. at 14 (ECF No. 6).
Smith raised this issue on PCRA appeal and the Superior Court denied the claim as follows:
In his fourth claim, Smith seems to challenge both the weight and sufficiency of the evidence, claiming he is actually innocent of the crimes. Smith's Brief, at 18-21.8 However, to the extent that Smith alleges that the evidence was not sufficient to sustain his conviction; the claim is again waived because it was not presented on direct appeal. See 42 Pa.C.S.A. § 9544(b). To the extent that Smith is challenging the weight of the evidence, that issue was previously litigated (and rejected) on direct appeal. See Smith, supra, 2015 WL 6750722, at ** 5-6. See also Commonwealth v. Spotz, 47 A.3d 63, 101 (Pa. 2012) (issue previously litigated is not cognizable under PCRA). Thus, Smith's fourth claim fails.
8 Like Smith's second and third claims, his fourth claim is a direct challenge to the weight and sufficiency of the evidence, made separately from his ineffective assistance of counsel claims. See Smith's Brief, at 18-21.
Superior Court Memorandum, 5/29/2019 at 10 (ECF No. 9-10 at 10). As Respondents correctly point out, the Superior Court determined (i) the sufficiency of the evidence claim was waived because it was not presented on direct appeal and (ii) the weight of the evidence claim was previously litigated in the direct appeal. Smith has not argued that the state procedural rules are inadequate or not independent. Nor has Smith argued any other reason to excuse the procedural default, as is his burden. Smith has not met his burden to overcome the default and, as such, it is recommended that this claim be dismissed as it is barred from federal habeas review.
Moreover, even if not procedurally defaulted, and even if the Court were to address this issue on the merits, the undersigned would recommend the claim with all its sub-parts be denied on its merits for the following reasons.
First, Smith appears to claim that solely on the basis of being actually innocent of the murder and robbery, he is deserving of federal habeas relief. By this claim, Smith is making a freestanding claim of actual innocence, but such a claim is simply not cognizable in federal habeas proceedings. Albrecht v. Horn, 485 F.3d 103, 121-22 (3d Cir. 2007) (citing Herrera v. Collins, 506 U.S. 390 (1993)). In Herrera, the Supreme Court of the United States held that federal habeas review is not available “absent an independent constitutional violation occurring in the underlying state criminal proceeding, ” and that “a claim of ‘actual innocence' is not itself a constitutional claim.” 506 U.S. at 400, 404. The Supreme Court explained that once a defendant is found guilty after a fair trial in the state court, he no longer is entitled to a presumption of innocence, and thus comes before the federal habeas court not as one who is innocent, but as a convicted criminal. Id. at 399-400. Because such a determination in the state criminal trial is “a decisive and portentous event” and “[s]ociety's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the guilt or innocence of one of its citizens, ” freestanding claims of actual innocence are not reviewable in federal habeas actions. Id. at 401 (internal quotations and citations omitted). The Supreme Court noted that “[f]ederal courts are not forums in which to relitigate state trials.” Id. (quotations and citation omitted). Thus, Smith's freestanding claim of actual innocence is not cognizable under the federal habeas corpus statute and cannot afford a basis for relief in these federal habeas proceedings. Based on the clear law, Smith has not and cannot overcome this rule of non-cognizability.
Next, Smith's weight of the evidence claim also is not cognizable under the federal habeas corpus statute. A challenge to the weight of the evidence necessarily “concedes that there is sufficient evidence to sustain the verdict. . . . An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. . . . [T]he role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Rainey v. Varner, 603 F.3d 189, 199 (3d Cir. 2010) (quoting Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)). Such a “weight of the evidence” claim is simply not cognizable by a federal court, entertaining a habeas petition from a state prisoner. See Tibbs v. Florida, 457 U.S. 31, 37-38 (1982) (weight of the evidence raises questions of credibility); Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“[F]ederal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court”). Accordingly, this claim cannot afford Smith relief.
And as to Smith's sufficiency of the evidence claim, the undersigned recommends adopting the analysis and factual determinations made by the trial court as its own and deny the claim on the merits. The trial court evaluated Smith's claim in its Rule 1925(a) opinion and advised the Superior Court that it should affirm Petitioner's judgment of sentence. It further explained that the Commonwealth introduced sufficient evidence to support Smith's convictions for robbery and felony murder:
In Smith's Statement of Matters Complaint of in Appeal, he asserted two errors, that the court erred in refusing to allow expert testimony regarding eyewitness identification and the guilty verdicts were against the weight of the evidence. On appeal, Smith pursued only the claim pertaining to trial court error in not allowing expert testimony regarding eyewitness identification. Again, the Court is not applying the deferential standards of AEDPA to the trial court's analysis and determining that the trial court's analysis was not contrary to or an unreasonable application of federal Supreme Court precedent. Rather, in conducting a de novo review of this claim, the Court is merely adopting as its own the trial court's factual determinations and analysis of this issue.
This court will analyze the sufficiency of the evidence on the Robbery charge since that is the predicate offense upon which the felony murder rule applied. In order to be found guilty of Robbery - Serious Bodily Injury under 18 PA.C.S.A. § 3701(a)(1)(i), the Commonwealth was required to prove that the Defendant, during the course of a theft, inflicted serious bodily injury upon another. 18 PA.C.S.A. § 3701(a)(i). When believed, Mr. Elko's testimony proves, beyond a reasonable doubt, all of the necessary elements to convict the Defendant of robbery.
Mr. Elko testified that it was the Defendant who entered his home on October 14, 2011 with Justin Charles, returned to the home a short time later and entered through the back door and was in the kitchen during the initial demands for money and a “scuffle.” He further testified that it was the Defendant who had possession of the gun when the Defendant, the co-Defendant and Mr. Charles went upstairs, when the three (3) men came back downstairs after a shot had been fired, and in the seconds before a second shot was fired. These shots ultimately caused the death of Mr. Justin Charles, thereby satisfying the element of infliction of serious bodily injury. Mr. Elko testified that these events occurred during the course of a theft and while the Defendants were fleeing after attempting to commit a theft. Mr. Elko's testimony alone, when believed, is sufficient to convict the Defendant of Robbery, the predicate offense to the Second Degree Murder charge, as well as all other crimes charged.
. . .
This court found Mr. Elko to be credible for a number of reasons. Perhaps the most important was his certainty as to the identities of the men who entered his home that day. Mr. Elko never wavered in his identification of the Defendant from his initial identification when presented with a photo array by Detective Hitchings to his trial testimony where he was subjected to an intense cross-examination about the alleged deficiencies in his credibility and perception cited in the paragraph above. Despite the aggressive cross-examination about the length of time that Mr. Elko saw the Defendant and his inability to remember what the Defendant was wearing at the time of the murder, Mr. Elko made clear that he remembered the Defendant's face and was able to identify him as one of the perpetrators of the crimes that occurred on October 14, 2011.
Trial Court Opinion, 9/15/2014, at 9-11 (ECF No. 9-5 at 9-11) (internal citations omitted). The credibility determinations made by the trial court is a factual finding. A finding of fact made by a state court always has 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). Smith has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id. He has not met this burden.
Recently, the Court of Appeals for the Third Circuit has instructed,
When a petitioner alleges entitlement to habeas relief by challenging the sufficiency of the evidence supporting his state court conviction, . . ., the clearly established federal law governing the insufficient evidence claim is the standard set out by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). See, e.g., Eley, 712 F.3d at 847 (“The clearly established federal law governing Eley's [insufficient evidence] claim was determined in Jackson”). 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.” Jackson, 443 U.S. at 319 (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)).
This reasonable doubt standard of proof requires the finder of fact “to reach a subjective state of near certitude of the accused.” Id. at 315 (citing In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring)) (emph. added). It “`plays a vital role in the American scheme of criminal procedure,' because it operates to give ‘concrete substance' to the presumption of innocence to ensure against unjust convictions and to reduce the risk of factual error in a criminal proceeding.” Id. (quoting Winship, 397 U.S. at 363). A conviction that fails to satisfy the Jackson standard violates due process, see Jackson, 443 U.S. at 319, and thus a convicted habeas petitioner is entitled to relief if the state court's adjudication denying the insufficient evidence claim was objectively unreasonable, see Parker v. Matthews, 567 U.S. 37 43 (2012).Travillion v. Superintendent Rockview SCI, 982 F.3d 896, 902 (3d Cir. 2020).
Smith has no viable argument that the state court's decision was an “unreasonable application of” Jackson or based on an unreasonable determination of the facts. In actuality, his complaint is that the verdict was against the weight of the evidence because Mr. Elko's testimony should not have been credited. And as explained, supra, that is purely a state law claim that is distinct from a federal due process claim, and, as such, it is not a claim that is 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).
For all these reasons, it is recommended that each part of Claim Two be denied.
Count Three - “14th Amendment Right to Fair Trial”
In his third ground for relief, Smith states,
Structural errors occurred from counsel failing to present a defense and promoting a defense expert theory without the expert with full knowledge that it was designed for a jury but had coerced me to give up my right to a jury, the trial court acknowledged this but allowed counsel to promote it.
Pet. at 9 (ECF No. 5 at 8). In his Memorandum, Smith explains:
The Trial Court committed error at the onset of trial by allowing [unreadable] opening Defense being placed on the Record by trial Counsel after erroneously accepting Mr. Smith's unknowing and unintelligent waiver of his 6th Amendment right to a Jury Trial after learning that Trial Counsels Strategy was to have an Expert Witness Testify to Misidentification knowing fully that it was not allowed under Pennsylvania law and that it was best effective being presented to a jury . . ., the Trial Court knew that Counsel had no defense presented to argue and had the sole legally frivolous strategy to discredit the Commonwealth's Witness through an impermissible Expert without any support for Mr. Smith's whereabouts at the time of the crime, even though there is a Clear Defense of Alibi, this error is structural in nature as shown by McCoy v. Louisiana, #16-8255, 138 S.Ct.__, 200 L.ED 821 (2018) . . . .
Memo. at 9-10 (ECF No. 6 at 9-10).
This argument is nearly verbatim to the argument presented in Smith's pro se appellant brief submitted on PCRA review at pages 16 - 17. (ECF No. 9-9 at 21-22). Smith began the argument by asserting that the trial court's rulings were not impartial because it also heard his co-defendant's case, but then later asserted that structural error occurred “after learning that Trial Counsel's strategy was to have a Expert Witness testify to Misidentification knowing that that strategy was best effective being presented to a jury. . . . This error is structural in nature as shown by McCoy v. Louisiana, # 16-8255, 138 S.Ct.--, 200 L.Ed 821 (2018). . . . ”
Respondents interpret this claim as an ineffectiveness of counsel claim for presenting a defense theory without an expert witness and argue that Smith failed to raise this claim in state court and thus the claim is procedurally defaulted and barred from federal review. (Ans. at 9; ECF 9). If this claim is construed an ineffectiveness claim, the undersigned agrees with Respondents and finds that the claim is procedurally defaulted. As such, this Court cannot consider the claim unless Smith establishes cause and prejudice or a fundamental miscarriage of justice sufficient to excuse the default. Smith as not met this burden.
And Smith fares no better if this claim is construed as a direct claim of trial court error. The Superior Court appears only to have addressed Smith's claim that the trial court's rulings were not impartial because it also heard the co-defendant's case. Superior Court, Memo., dated 5/29/2019 at 9 (ECF No. 9-10 at 9). In denying this issue, the Superior Court found the claim waived as Smith had failed to raise it on direct appeal and “generally, claims of trial court error, . . ., are not cognizable under the PCRA.” Id. Moreover, the Superior Court noted that Smith had not raised the claim in his Rule 1925(b) statement and the claim was waived for that reason as well. Smith, however, has not raised that issue in this federal habeas case.
But Smith did raise the issue of “structural error” on PCRA appeal, and the Superior Court does not appear to have addressed it. In the interest of judicial economy, the undersigned will undertake a de novo review of the claim. “A structural error is a defect in the trial mechanism itself, affecting the entire trial process, and is per se prejudicial.” Hassine v. Zimmerman, 160 F.3d 941, 949 (3d Cir. 1998) (internal quotations omitted). Structural errors have been found in a very limited class of cases: 1) a total deprivation of the right to counsel, 2) lack of an impartial trial judge; 3) unlawful exclusion of grand jurors on the basis of race; 4) denial of the right to self-representation at trial; 5) denial of the right to a public trial; and 6) an erroneous reasonable doubt instruction to the jury. Lewis v. Pinchak, 348 F.3d 355, 357 (3d Cir. 2003). Smith's ground for relief does not fall within this limited class of cases and the undersigned finds that no “defect in the trial mechanism itself, affecting the entire trial process” occurred in Smith's trial.
For all these reasons, it is recommended that Claim Three be denied.
Count Four - Prosecutorial Misconduct
In Smith's final claim, he presents a direct claim of prosecutorial misconduct alleging the prosecutor made several false statements. Smith raised this claim on PCRA review, but the Superior Court found that the claim was waived as Smith had failed to raise prosecutorial misconduct on direct appeal and had not raised the claim in his Rule 1925(b) statement.Respondents point out that this issue is procedurally defaulted as it was decided by the Superior Court on independent and adequate state law grounds. (ECF No. 9 at 10).
Essentially, if Smith had wanted to bring this issue in the PCRA proceeding, he should have cast it as one of ineffective assistance of counsel of trial and appellate counsel for failing to raise the issue of prosecutorial misconduct.
Smith has not argued that the state procedural rule of waiver for failing to raise an issue on direct appeal is inadequate or not independent. See, e.g, Tillery v. Horn, 142 Fed.Appx. 66, 68 (3d Cir. 2005) (“Tillery has not furnished any argument or evidence germane to the adequacy inquiry.”). Nor has Smith argued any other reason to excuse the procedural default, as is his burden. Perry v. Diguglielmo, Civ. A. No. 06-1560, 2008 WL 564981, at *12 (W.D.Pa., Feb.29, 2008) (“Moreover, notwithstanding the fact that the Respondents invoked the procedural default defense, Petitioner failed to allege, as is his burden, either cause or prejudice for the procedural default. . . . In addition, Petitioner fails to allege a miscarriage of justice as is his burden in order to overcome the procedural default.”) (footnote omitted). Accordingly, because this issue is procedurally defaulted and is barred from federal habeas review, the undersigned recommends this claim be denied.
E. Request for Evidentiary Hearing
A district court has discretion to grant an evidentiary hearing if the petitioner meets the limitations of section 2254(e)(2). Goldblum v. Klem, 510 F.3d 204, 220-21 (3d Cir. 2007). The decision to hold an evidentiary hearing should focus on whether the hearing would be meaningful. Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir. 2000). A petitioner bears the burden of “forecast[ing] . . . evidence beyond that already contained in the record' that would help his cause, ‘or otherwise . . . explain[ing] how his claim would be advanced by an evidentiary hearing.' ” Id. (quoting Cardwell v. Greene, 152 F.3d 331, 338 (4th Cir. 1998)). An evidentiary hearing “is not required on issues that can be resolved by reference to the state record.” Id. at 221 (quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)).
The undersigned finds that the record in this case is sufficient to allow review of Smith's claims, which are either non-cognizable, defaulted, or meritless. Furthermore, Smith has failed to demonstrate how an evidentiary hearing could assist him in avoiding those inevitable legal conclusions. Thus, the undersigned finds no basis on which an evidentiary hearing would be meaningful, and the request for an evidentiary hearing should be denied.
F. 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 denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 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.” Id. Applying that standard here, the undersigned concludes that jurists of reason would not find it debatable whether each of Smith's claims are either non-cognizable, defaulted, or meritless 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 is permitted to 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, Smith, because he is a non-electronically registered party, may file written objections to this Report and Recommendation by July 26, 2021, and Respondents, because they are electronically registered parties, may file written objections by July 23, 2021. 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).