Opinion
CIVIL 3:19-cv-1181
08-03-2021
ALPHONZO VAUGHN, Petitioner, v. THOMAS McGINLEY, et al., Respondents.
Brann, Chief Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge.
I. Introduction
Pending before the court is a petition for writ of habeas corpus filed by the petitioner, Alphonzo Vaughn. Vaughn was convicted of drug possession and delivery charges, as well as resisting arrest, on October 15, 2015. On November 8, 2015, he was sentenced to an aggregate term of 110 to 300 months in prison. As we read his petition, Vaughn asserts two grounds for habeas relief, alleging that the trial court erred in allowing the Commonwealth to amend the criminal information prior to trial, and that his direct appeal counsel provided ineffective assistance when he failed to raise or preserve this claim of trial court error. However, after review of the record, we find that Vaughn's claims are without merit. Accordingly, for the reasons set forth below, we will recommend that his petition be denied.
II. Statement of Facts and of the Case
The factual background of the instant case can be summarized as follows:Vaughn was charged in a criminal information with possession with intent to distribute a controlled substance (“PWID”), conspiracy to commit PWID, simple possession, possession of drug paraphernalia, and resisting arrest. These charges stemmed from a February 12, 2013 controlled buy between Vaughn and a confidential informant (“CI”), who purchased three bags of heroin from Vaughn at his home and arranged a second purchase of heroin from Vaughn to take place the following day. Based on the first controlled purchase, a search warrant was issued for Vaughn's room inside 1201 Capouse Avenue in Scranton, Pennsylvania. During the search, Vaughn charged at the police officers and was subdued with a taser. The search of Vaughn's room yielded 62 bags of heroin and $258 in cash, $10 of which was prerecorded money used by the CI in the February 12 purchase of heroin.
This factual background is taken from the Pennsylvania Superior Court's September 19, 2018 decision affirming the denial of Vaughn's petition for postconviction relief.
Following Vaughn's arrest and preliminary hearing, Vaughn moved for the disclosure of the CI's identity, which was denied by the court because Vaughn was not being charged with the drug transaction. However, the Commonwealth eventually moved to amend the criminal information and sought to replace the conspiracy to commit PWID charge with a charge of delivery of a controlled substance based on the February 12, 2013 controlled purchase by the CI. The Commonwealth also filed a motion in limine to admit the CI's testimony regarding the heroin purchase. Both motions were granted by the trial court. The court also granted Vaughn a 21-day extension in order to allow him to gather information about the CI and to prepare a defense for trial. At trial, Vaughn represented himself, and he was convicted on all counts on July 8, 2014. However, his conviction and sentence were vacated by the Pennsylvania Superior Court on direct appeal on August 14, 2015 based on the court's finding that the waiver of counsel colloquy was deficient. Thus, a second trial was held on October 15, 2015 where Vaughn again represented himself, and Vaughn was convicted on all counts. On November 8, 2015, he was sentenced to an aggregate term of 110 to 300 months in prison.
Vaughn was appointed counsel and counsel filed a direct appeal, arguing among other things that the trial court erred in allowing the Commonwealth to amend the criminal information. The Superior Court found that this claim was without merit and denied Vaughn's appeal on October 28, 2016, and Vaughn's judgment and sentence became final. Thereafter, Vaughn filed a petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), in which Vaughn asserted his direct appeal counsel was ineffective for failing to litigate the issue of the amendment of the criminal information and for failing to challenge the Commonwealth's nolle pros of the conspiracy charge without court approval. He also argued that he was given an illegal sentence. The PCRA court denied his petition, and the Superior Court affirmed the denial of the petition on September 19, 2018.
Vaughn then filed this habeas corpus petition on July 10, 2019. (Doc. 1). In his petition, he raises one ground for habeas relief, which we read as advancing two interrelated claims: that the trial court erred when it permitted the Commonwealth to amend the criminal information without nolle prossing the conspiracy charge, and that his direct appeal counsel was ineffective for failing to litigate the issue on appeal. The respondents filed a response to the petition on August 19, 2019. (Doc. 9), and Vaughn filed a reply on September 24, 2019 (Doc. 14). Thus, the petition is ripe for resolution.
After review of the petition and the underlying state court record, we find that these claims have been thoroughly considered by the state courts and denied on their merits. Thus, given the deferential standard of review that applies to habeas petitions like Vaughn's, we will recommend that the court deny Vaughn's petition.
III. Discussion
A. State Prisoner Habeas Relief-The Legal Standard.
(1) Substantive Standards
In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State;
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.28 U.S.C. § 2254(a) and (b).
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a petition must satisfy exacting substantive standards to warrant relief. Federal courts may “entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the Constitution or laws or treaties of the United States, ” § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a “fundamental defect which inherently results in a complete miscarriage of justice” or was completely inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will not entitle a petitioner to § 2254 relief, absent a showing that those violations are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
(2) Deference Owed to State Courts
These same principles which inform the standard of review in habeas petitions and limit habeas relief to errors of a constitutional dimension also call upon federal courts to give an appropriate degree of deference to the factual findings and legal rulings made by the state courts in the course of state criminal proceedings. There are two critical components to this deference mandated by 28 U.S.C. § 2254.
First, with respect to legal rulings by state courts, under § 2254(d), habeas relief is not available to a petitioner for any claim that has been adjudicated on its merits in the state courts unless it can be shown that the decision was either: (1) “contrary to” or involved an unreasonable application of clearly established case law; see 28 U.S.C. § 2254(d)(1); or (2) was “based upon an unreasonable determination of the facts, ” see 28 U.S.C. § 2254(d)(2). Applying this deferential standard of review, federal courts frequently decline invitations by habeas petitioners to substitute their legal judgments for the considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
In addition, § 2254(e) provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1). This presumption in favor of the correctness of state court factual findings has been extended to a host of factual findings made in the course of criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990). This principle applies to state court factual findings made both by the trial court and state appellate courts. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility determinations made by the state courts, and we must give equal deference to both the explicit and implicit factual findings made by the state courts. Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state court judgment rests upon factual findings, it is well-settled that:
A state court decision based on a factual determination, ..., will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceeding. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We must presume that the state court's determination of factual issues was correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000).Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of review, federal courts may only grant habeas relief whenever “[o]ur reading of the PCRA court records convinces us that the Superior Court made an unreasonable finding of fact.” Rolan, 445 F.3d at 681.
(3) Ineffective Assistance of Counsel Claims
These general principles apply with particular force to habeas petitions that are grounded in claims of ineffective assistance of counsel. It is undisputed that the Sixth Amendment to the United States Constitution guarantees the right of every criminal defendant to effective assistance of counsel. Under federal law, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court in order to survive. Specifically, to prevail on a claim of ineffective assistance of counsel, a petitioner must establish that: (1) the performance of counsel fell below an objective standard of reasonableness; and (2) that, but for counsel's errors, the result of the underlying proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 68788, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001). A petitioner must satisfy both of the Strickland prongs in order to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001).
At the outset, Strickland requires a petitioner to “establish first that counsel's performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This threshold showing requires a petitioner to demonstrate that counsel made errors “so serious” that counsel was not functioning as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. However, in making this assessment “[t]here is a ‘strong presumption' that counsel's performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)).
But a mere showing of deficiencies by counsel is not sufficient to secure habeas relief. Under the second Strickland prong, a petitioner also “must demonstrate that he was prejudiced by counsel's errors.” Id. This prejudice requirement compels the petitioner to show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. A “reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id.
Thus, as set forth in Strickland, a petitioner claiming that his criminal defense counsel was constitutionally ineffective must show that his lawyer's “representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “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.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). The petitioner must then prove prejudice arising from counsel's failings. “Furthermore, in considering whether a petitioner suffered prejudice, ‘[t]he effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'” Rolan, 445 F.3d at 682 (quoting Strickland, 466 U.S. at 696) (internal quotations omitted).
Although sometimes couched in different language, the standard for evaluating claims of ineffectiveness under Pennsylvania law is substantively consistent with the standard set forth in Strickland. See Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa.1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d Cir. 2000) (“[A] state court decision that applied the Pennsylvania [ineffective assistance of counsel] test did not apply a rule of law that contradicted Strickland and thus was not ‘contrary to' established Supreme Court precedent”). Accordingly, a federal court reviewing a claim of ineffectiveness of counsel brought in a petition under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show that the state court's adjudication of his claim was an “unreasonable application” of Strickland. Billinger v. Cameron, 2010 WL 2632286, at *4 (W.D. Pa. May 13, 2010). In order to prevail against this standard, a petitioner must show that the state court's decision “cannot reasonably be justified under existing Supreme Court precedent.” Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court's application of federal law is challenged, “the state court's decision must be shown to be not only erroneous, but objectively unreasonable”) (internal citations and quotations omitted).
This additional hurdle is added to the petitioner's substantive burden under Strickland. As the Supreme Court has observed a “doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal habeas”). This doubly deferential standard of review applies with particular force to strategic judgment like those thrust upon counsel in the instant case. In this regard, the Court has held that:
“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., at 688, 104 S.Ct. 2052. “Judicial scrutiny of counsel's performance must be highly deferential, ” and “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id., at 689, 104 S.Ct. 2052. “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id., at 690, 104 S.Ct. 2052.Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). The deference which is owed to these strategic choices by trial counsel is great.
Therefore, in evaluating the first prong of the Strickland test, courts “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.' ” Id. The presumption can be rebutted by showing “that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound.”
Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009) (quoting Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir. 2005)) (footnote omitted).
(4) Procedural Benchmarks - Exhaustion and Procedural Default
a. Exhaustion of State Remedies
State prisoners seeking relief under section 2254 must also satisfy specific, additional procedural standards. Among these 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). In instances where a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).
This statutory exhaustion requirement is rooted in principles of comity and reflects the fundamental idea that the state should be given the initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The Supreme Court has explained that “a rigorously enforced total exhaustion rule” is necessary in our dual system of government to prevent a federal district court from upsetting a state court decision without first providing the state courts the opportunity to correct a constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring exhaustion of claims in state court also promotes the important goal of ensuring that a complete factual record is created to aid a federal court in its review of § 2254 petitions. Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of showing that all of the claims alleged have been “fairly presented” to the state courts, and the claims brought in federal court must be the “substantial equivalent” of those presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot avoid this responsibility merely by suggesting that he is unlikely to succeed in obtaining state relief, since it is well-settled that a claim of “likely futility on the merits does not excuse failure to exhaust a claim in state court.” Parker v. Kelchner, 429 F.3d 58, 63 (3d Cir. 2005).
Although this exhaustion requirement compels petitioners to have previously given the state courts a fair “opportunity to apply controlling legal principles to the facts bearing upon [the petitioner's] constitutional claim, ” Picard v. Connor, 404 U.S. 270, 276 (1971), this requirement is to be applied in a commonsense fashion. Thus, the exhaustion requirement is met when a petitioner submits the gist of his federal complaint to the state courts for consideration, without the necessity that the petitioner engage in some “talismanic” recitation of specific constitutional clams. Evans, 959 F.2d at 1230-33. Similarly, a petitioner meets his obligation by fairly presenting a claim to state courts, even if the state courts decline to address that claim. Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004).
b. Procedural Default
A necessary corollary of this exhaustion requirement is the procedural default doctrine, which applies in habeas corpus cases. Certain habeas claims, while not exhausted in state court, may also be incapable of exhaustion in the state legal system by the time a petitioner files a federal habeas petition because state procedural rules bar further review of the claim. In such instances:
In order for a claim to be exhausted, it must be “fairly presented” to the state courts “by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 84445, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). If a claim has not been fairly presented to the state courts and it is still possible for the claim to be raised in the state courts, the claim is unexhausted ....
If a claim has not been fairly presented to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play. A procedural default occurs when a prisoner's federal claim is barred from consideration in the state courts by an “independent and adequate” state procedural rule. Federal courts may not consider the merits of a procedurally defaulted claim unless the default and actual “prejudice” as a result of the alleged violation of the federal law or unless the applicant demonstrates that failure to consider the claim will result in a fundamental “miscarriage ofjustice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002).
“[A] federal court will ordinarily not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus ‘[o]ut of respect for finality, comity, and the orderly administration of justice.' This is a reflection of the rule that ‘federal courts will not disturb state court judgments based on adequate and independent state law procedural ground.'” Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004) (citations omitted). Given these concerns of comity, the exceptions to the procedural default rule, while well-recognized, are narrowly defined. Thus, for purposes of excusing a procedural default of a state prisoner seeking federal habeas relief, “[t]he Supreme Court has delineated what constitutes ‘cause' for the procedural default: the petitioner must ‘show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'” Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (citations omitted). Similarly, when examining the second component of this “cause and prejudice” exception to the procedural default rule, it is clear that:
With regard to the prejudice requirement, the habeas petitioner must prove “‘not merely that the errors at ... trial created the possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” This standard essentially requires the petitioner to show he was denied “fundamental fairness” at trial. In the context of an ineffective assistance claim, we have stated that prejudice occurs where “there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.”Id. at 193 (citations omitted).
Likewise, the “miscarriage of justice” exception to this procedural bar rule is also narrowly tailored, and requires a credible assertion of actual innocence to justify a petitioner's failure to comply with state procedural rules. Hubbard, 378 F.3d at 338.
Procedural bar claims typically arise in one of two factual contexts. First, in many instances, the procedural bar doctrine is asserted because an express state court ruling in prior litigation denying consideration of a habeas petitioner's state claims on some state procedural ground. In such a situation, courts have held that:
A habeas claim has been procedurally defaulted when “a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). For a federal habeas claim to be barred by procedural default, however, the state rule must have been announced prior to its application in the petitioner's case and must have been “firmly established and regularly followed.” Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). Whether the rule was firmly established and regularly followed is determined as of the date the default occurred, not the date the state court relied on it, Doctor v. Walters, 96 F.3d 675, 684 (3d Cir. 1996), because a petitioner is entitled to notice of how to present a claim in state court.Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007). (citing Ford, 498 U.S. at 42324).
In other instances, the procedural default arises, not because of an express state court ruling, but as a consequence of a tactical choice by a habeas petitioner, who elects to waive or forego a claim in the course of his state proceedings, and thus fails to fully exhaust the claim within the time limits prescribed by state statute or procedural rules. In such instances the petitioner's tactical choices in state court litigation also yield procedural defaults and waivers of claims federally. See, e.g,, Johnson v. Pinchak, 392 F.3d 551 (3d Cir. 2004) (procedural default where petitioner failed to timely pursue state claim); Hull v. Freeman, 991 F.2d 86 (3d Cir. 1993) (same). Accordingly, a petitioner's strategic choices in state court waiving or abandoning state claims may act as a procedural bar to federal consideration of his claims, unless the petitioner can show either “cause and prejudice” or demonstrate a “fundamental miscarriage of justice.”
It is against these legal benchmarks that we assess Vaughn's petition.
B. This Petition Should Be Denied.
In this habeas petition, Vaughn raises one ground for habeas relief, which we read as advancing two interrelated claims: first, that the trial court erred when it allowed the Commonwealth to amend the criminal information prior to Vaughn's first trial, and second, that counsel was ineffective for failing to litigate this issue on direct appeal. However, as we will discuss below, the state courts thoroughly considered the merits of these claims and concluded that they were meritless. Accordingly, this petition should be denied.
While the respondents argue that Vaughn's claims are unexhausted due to his failure to raise the issue on appeal to the Pennsylvania Supreme Court, as we have noted in the past, “in light of the Pennsylvania Supreme Court's Order No. 218, which expressly allows petitioners to forego state Supreme Court review of legal claims exhausted in the Superior Court, it has been held that ‘Order No. 218 renders review from the Pennsylvania Supreme Court “unavailable” for purposes of exhausting state court remedies under § 2254(c).'” McClure v. Pennsylvania, 2021 WL 1264289, at *6 (M.D. Pa. April 6, 2021) (quoting Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004)). Accordingly, we view these claims as properly exhausted and will address them on the merits.
Vaughn contends that he was denied a fair trial because the trial court permitted the Commonwealth to amend the criminal information without nolle prossing the conspiracy charge in open court. He asserts that the court allowed the Commonwealth to amend the information pursuant to Pennsylvania Rule of Criminal Procedure 564, rather than Rule 585, and thus he was denied a fair trial. This claim was raised on direct appeal, albeit in a different fashion, and the Superior Court affirmed Vaughn's conviction. (Doc. 11-4, at 6-11). The court first noted the purpose of the amendment rules, which is “to ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed.” (Id., at 6 (quoting Commonwealth v. Mentzer, 18 A.3d 1200, 1202 (Pa. Super. Ct. 2011)). The court then found that Vaughn was not prejudiced, as the amendment was made prior to trial and Vaughn was granted a 21-day continuance, and ultimately had 482 days to prepare his defense before his second trial. (Id., at 10).
The Pennsylvania Superior Court also addressed this claim in the context of Vaughn's ineffective assistance claim when it denied his PCRA appeal:
The purpose of Rule 585 is to give the defendant notice and an opportunity to oppose a motion for nolle pros. Commonwealth v. Rega, 856 A.2d 1242m 1247 (Pa. Super. 2004). The reason a defendant might oppose charges against him being withdrawn is that a nolle pros is a withdrawal of charges without prejudice. See, e.g., Commonwealth v.
Golamdn, 70 A.3d 874, 878 (Pa. Super. 2013) (“A nolle prosequi may be lifted ‘at any time in the future,' on appropriate motion, to revive the original charges.”). Since nolle-prossed counts may be revived in the future, the following considerations apply in ruling upon a nolle pros motion: whether the Commonwealth has a valid and reasonable basis for the request, and whether the defendant has a valid speedy trial claim. Rega, supra at 1245 (citing Commonwealth v. Reinhart, 353 A.2d 848 (Pa. 1976)).
Here, the Commonwealth did not file a motion to nolle pros the conspiracy charge under Rule 585. Rather, it sought to amend the information, pursuant to Rule 564, to substitute a delivery count for the conspiracy count. See Commonwealth's Pretrial Motion, 6/9/14, at 56. Appellant had notice of the motion, and opposed the substitution of delivery for conspiracy in open court. See N.T., 6/16/14, at 17-19. The trial court granted the motion in open court. Id. at 17. Further, this court held that the leave to amend was properly granted. Vaughn, supra (unpublished memorandum at 9-10).
Moreover, the case against Appellant based upon his possession and sale of heroin in Lackawanna County on February 12-13, 2013 is complete. Appellant simply does not face revival of the original conspiracy count at a later date. As such, the record does not support a viable claim based upon Rule 585, and direct appeal counsel was not ineffective in failing to raise a Rule 585 claim. Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012) (“[C]ounsel cannot be deemed ineffective for failing to pursue a meritless claim.”).(Doc. 11-9, at 7-9); see also (Id., at 9 n.3 (finding that the argument was nonetheless moot because the Commonwealth had not sought to revive the conspiracy count, and Vaughn's conviction and sentence were final). Accordingly, the Superior Court concluded that the claim of trial court error was without merit, and thus, counsel was not ineffective for failing to raise the claim.
We agree.
Based on the foregoing, we cannot conclude that Vaughn's claims entitle him to habeas relief. To the contrary, the Superior Court thoroughly explained why Vaughn's claim that the trial court erred was meritless, both on direct appeal and in his PCRA appeal. Vaughn had notice of the amendment to the information and opposed it in open court, although the motion was ultimately granted. Vaughn was granted a 21-day continuance to prepare for trial, and ultimately had 482 days to prepare a defense between the time of the amended information and his second trial. Moreover, the Commonwealth never sought to revive the charges that Vaughn asserts should have been nolle-prossed in accordance with Rule 585, and his conviction and sentence are final, thus rendering any claim under Rule 585 moot.
Moreover, Vaughn's argument fails because it runs contrary to a rising tide of case law which has rejected such claims. In the past state prisoners have sought federal habeas corpus relief based upon allegations that the prosecution improperly amended their charges. Yet, such arguments, while frequently made, have been rarely embraced by the courts. Jones v. Mooney, No. 1:13-CV-2526, 2015 WL 4950792, at *14 (M.D. Pa. Aug. 19, 2015); Coffield v. Carroll, No. CIV. 03-367-SLR, 2004 WL 2851801, at *6 (D. Del. Dec. 1, 2004). Instead:
These cases all recognize a fundamental truth: the amendment of a criminal charge, or any variance between the charge and the proof at trial, only provides grounds for setting aside a conviction:
[I]f it is likely to have surprised or otherwise has prejudiced the defense. United States v. Schurr, 775 F.2d 549, 553-54 (3d Cir.1985). To demonstrate prejudice from a variance, a defendant “must show (1) that there was a variance between the indictment and the proof adduced at trial and (2) that the variance prejudiced some substantial right.” United States v. Balter, 91 F.3d 427, 441 (3d Cir.1996). “A variance does not prejudice a defendant's substantial rights (1) if the indictment sufficiently informs the defendant of the charges against him so that he may prepare his defense and not be misled or surprised at trial, [or] (2) if the variance is not such that it will present a danger that the defendant may be prosecuted a second time for the same offense.” United States v. Schoenhut, 576 F.2d 1010, 1021-22 (3d Cir.1978).
United States v. Daraio, 445 F.3d 253, 262 (3d Cir.2006).Jones, 2015 WL 4950792, at *13-14.
Here the state courts concluded that Vaughn had made no such showing of prejudice or unfair surprise, noting that Vaughn ultimately had 482 days to prepare his defense to this amended charge before his second trial. Moreover, the new charge rose out of a single, simple series of transactions, all of which were well known to Vaughn. Simply put, Vaughn has not and cannot show any discernable prejudice as a result of this decision to amend the charges to more closely conform to the proof. Therefore, this claim fails.
In addition, because this claim of trial court error is meritless, counsel had no obligation to raise this issue on appeal. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000); McCleaf v. Carroll, 416 F.Supp.2d 283, 293 (D. Del. 2006). Thus, given the deference that we must afford to the state court's findings, we conclude that neither of these claims entitle Vaughn to habeas relief.
In sum, we are mindful that the Supreme Court has observed that a “doubly deferential judicial review . . . applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal habeas”). Given this deferential standard, we cannot conclude that the state courts' decisions relating to this ineffective assistance of counsel claim were an unreasonable application of Strickland or based on an unreasonable determination of the facts.
To the contrary, the Superior Court's analysis of the underlying claim of trial court error, and the subsequent ineffective assistance of counsel claim, is thorough and well-supported by both the law and the facts of the petitioner's case. Accordingly, these claims do not warrant habeas relief and we recommend that Vaughn's petition be denied.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the petition for a writ of habeas corpus in this case be DENIED, and that a certificate of appealability should not issue.
The petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.