Opinion
Civil Action 2:19-cv-1519
01-26-2023
JOHN IRA BRONSON, JR., Petitioner, v. SUPERINTENDENT KEVIN KAUFFMAN, DISTRICT ATTORNEY OF WASHINGTON COUNTY, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
W. Scott Hardy United States District Judge
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
Cynthia Reed Eddy United States Magistrate Judge
I. RECOMMENDATION
Petitioner, John Ira Bronson, Jr. (“Bronson”), is a state prisoner in the custody of the Pennsylvania Department of Corrections and currently confined at the State Correctional Institution at Huntingdon. He filed pro se a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the judgment of sentence imposed on him on January 24, 2012, by the Court of Common Pleas of Washington County, Pennsylvania, at Criminal Case CP-63-CR-0002217-2011. For the reasons below, it is recommended that the Petition be denied with prejudice and a certificate of appealability be denied on all claims.
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. It permits 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). It is Bronson's burden to prove that 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). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims. For example, the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (which is discussed below). But, ultimately, Bronson cannot receive federal habeas relief unless he establishes that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
B. Relevant and Procedural Background
In recounting the procedural history of this case, the undersigned takes judicial notice of the state court's trial docket in criminal case CP-63-CR-0002217-2011and appellate dockets in cases 195 WDA 2017, 560 WDA 2012 and 30 WM 2018, which are available to the public online at https://ujsportal.pacourts.us, as well as the federal court's docket in criminal case 2:03-cr-00087, which is available to the public through PACER.
The case arises from the shooting death of John Lynn Newman (“Newman”) on February 3, 2003, in California, Pennsylvania. The Superior Court of Pennsylvania set forth a comprehensive factual and procedural background underlying Bronson's conviction in its decision affirming the judgment of sentence; thus, the undersigned need not offer an extensive factual background. In short,
In 2002, Newman was approached by the PSP [(Pennsylvania State Police)] and informed “that he had been investigated and [that] felony drug charges against him [were] pending.” In October of that year, Trooper Aaron Borello (“Trooper Borello”) approached Newman about becoming a confidential informant (“C.I.”) for the PSP. Trooper Borello and Newman then set up performing a buy/bust involving Newman's supplier, [Bronson]. After [Bronson] was observed selling
200 pills of Oxycodone to Newman, he was arrested. The PSP searched [Bronson's] home and found about $384,000 in cash which was seized.1
1 [Bronson] eventually pled guilty to drug trafficking and was incarcerated.
After his arrest, [Bronson] began acting as a C.I., first with the PSP and then for the Federal Bureau of Investigation (“F.B.I.”). While working with the PSP, [Bronson] asked Trooper Borello directly if it was Newman who had informed on him. Unfortunately, [Bronson]'s participation as a C.I. was fruitless and ended “within a week” prior to Newman's death.See Commonwealth v. Bronson, No. 560 WDA 2012, 2014 WL 10790332, at *1 (Pa. Super. Ct. Oct. 1, 2014) (ECF No. 46-3 at p. 1) (quoting Trial Court's 1925(a) Opinion, March 26, 2013) (ECF 46-4)). See also Affidavit of Probable Cause (ECF 46-11 at p. 15). “It took several years for criminal charges to be filed in this ‘cold case'.” Commonwealth v. Duncan, No. 237 WDA 2015, 2016 WL 5858270, slip op. at p. 4 (Pa. Super. Ct. July 7, 2015) (ECF No. 48-2 at p. 5).
On March 5, 2003, a federal grand jury sitting in the Western District of Pennsylvania returned a five-count indictment against Bronson charging him with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine (Count One), conspiracy to distribute and possess with intent to distribute a quantity of oxycodone (Count Two), and possession with intent to distribute oxycodone (Counts Three-Five), in violation of 21 U.S.C. §§ 841(a)(1) and 846. See United States v. Bronson, Criminal Case No. 2: 03-cr-00087. On March 3, 2004, Bronson entered a plea of guilty to Counts One and Three of the Indictment. Bronson was sentenced on July 30, 2004, to a term of imprisonment of 151 months to be followed by a five-year term of supervised released. The Court of Appeals for the Third Circuit affirmed the conviction, but vacated the sentence and remanded the case for resentencing in view of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). On February 3, 2006, the court resentenced Bronson to a term of imprisonment of 135 months, to be followed by a five-year term of supervised release.
Throughout this Report, all citations to page numbers of any documents filed on the Court's Case Management/Electronic Case Files system (“ECF”) are to the page numbers assigned by ECF.
“On August 10, 2011, following the recommendations of the grand jury, the Commonwealth charged [Bronson] by criminal complaint with criminal homicide, criminal solicitation (homicide), and criminal conspiracy (homicide). Superior Court Memo. at *4 (ECF No. 46-3 at p. 3). The Commonwealth's motion to consolidate Bronson's case with that of his co-conspirators Michael Clark Duncan and Howard Irwin, was granted over Bronson's objections.
Irwin pleaded guilty to a lesser charge in exchange for agreeing to testify during the trial. He was released with time served on a one-year sentence.
A jury trial commenced on January 11, 2012, before Judge Janet Moschetta Bell. At the conclusion of the trial, the “jury found that Newman's death was the result of a conspiracy and/or solicitation between John Ira Bronson, Jr. (“Bronson”), the defendant herein, and his co-defendant at trial, Michael Clark Duncan (“Duncan”).” Trial Court's 1925(a) Opinion at p. 1, March 26, 2013. (ECF No. 46-4). Bronson was found guilty of Murder in the First Degree, Solicitation to Commit Murder, and Conspiracy to Commit Murder. Duncan was found guilty of Murder in the First Degree and Conspiracy to Commit Murder. Commonwealth v. Duncan, No. 1751 WDA 2018, 2020 WL 416364, at *1 (Pa. Super. Jan. 27, 2020). Bronson and Duncan were each sentenced to a mandatory term of life imprisonment on their murder convictions. Bronson also received a consecutive term of 10 to 20 years for criminal solicitation. No further penalty was given on the conspiracy conviction. Duncan received a consecutive term of not less than fifteen nor more than thirty years' incarceration for the conspiracy conviction. Id.
Throughout the pre-trial and trial proceedings, Bronson was represented by Attorney Keith Emerick. No post-trial motions were filed. On March 30, 2012, Bronson, through Attorney Emerick, filed a Notice of Appeal to the Superior Court of Pennsylvania, which was docketed at No. 560 WDA 2012. On October 1, 2014, a three-judge panel of the Superior Court affirmed the judgment of conviction and the Supreme Court of Pennsylvania denied Bronson's petition for allowance of appeal on May 1, 2015. Bronson did not seek further review.
While the direct appeal was pending, Bronson filed a PCRA petition on July 7, 2014 (ECF No. 46-7), which was denied by the trial court on July 11, 2014. The trial court lacked jurisdiction to consider the petition because Bronson's case was on direct appeal to the Superior Court at that time. Moreover, the pro se PCRA petition was premature because the proper time to file such a petition is after the conclusion of direct review or the time for seeking such review.
After his direct appeal concluded, Bronson, filed a timely pro se petition for post-conviction collateral relief under Pennsylvania's Post-Conviction Relief Act (“PCRA”), in which he raised seven issues:
ISSUE ONE: Systematic exclusion of blacks from the community were not represented in the jury wheels, pools of names, panels, or venires
ISSUE TWO: Jury biased in favor of the District Attorney's Office polluted the fair trial process
ISSUE THREE: Former District Attorney JOHN C. PETTIT's intentional prejudice to deny fair trial
ISSUE FOUR: Counsel was ineffective for failing to request a missing evidence instruction to charge the jury
ISSUE FIVE: Counsel was ineffective for failing to obtain a demurrer/judgment of acquittal and arrest of judgment because the Commonwealth offered evidence with two opposing propositions and by application of law proved neither
ISSUE SIX: Commonwealth surprise witness admitted his perjury at jury trial to another inmate in confidence
ISSUE SEVEN: BRONSON'S entitlement to relief entitles DUNCAN to relief and vice versaPCRA Petition, filed 9/2/15 (ECF No. 46-6).
The trial court, now the PCRA court, appointed Attorney Stephen Paul as PCRA counsel for Bronson on September 4, 2015. Attorney Paul was subsequently permitted to withdraw as counsel as he previously had been appointed to represent Michael Duncan in his PCRA proceedings. (ECF No. 46-8 at p.1; and ECF No. 46-37 at p. 13). On November 16, 2015, the court appointed Attorney David B. Wolf to represent Bronson during the PCRA proceedings. On July 13, 2016, Attorney Wolf filed a no-merit letter and petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 213 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). (ECF No. 46-8). In the no-merit letter, Attorney Wolf addressed each of the seven issues raised by Bronson in his pro se PCRA Petition and concluded that none of the issues entitled Bronson to relief. After the no-merit letter was filed, the state court docket reflects that on August 30, 2016 and again on September 2, 2016, Bronson filed pro se motions for the appointment of new counsel. These motions were denied by the PCRA court on November 3, 2016.
The trial was conducted by Judge Janet Moschetta Bell. On January 4, 2013, Judge Moschetta Bell retired. The case was then assigned to President Judge Debbie O'Dell Seneca, who authored the 1925(a) opinion filed March 26, 2013. (ECF No. 46-4). Judge O'Dell Seneca retired on January 4, 2015. Upon her retirement, the case was reassigned to Judge Gary Gillman, who presided over the PCRA proceedings and authored the 1925(a) opinion filed February 10, 2017. (ECF No. 46-52).
The undersigned takes judicial notice of the state court's trial docket in Duncan's criminal case, No. CP-63-CR-0000357-2011, which reflects that Duncan filed a pro se PCRA petition on December 3, 2014, and on December 9, 2014, the PCRA court appointed Attorney Paul to represent Duncan in his PCRA proceedings.
Judge Gilman held a hearing on October 4, 2016, only on Bronson's first claim: “whether the Court excluded black persons from the jury pool.” N.T., 10/4/2016 (ECF 46-9 at p. 2). Bronson was present at the hearing, along with Attorney Wolf. Testifying at the hearing was Patrick Grimm, the District Court Administrator for Washington County, and Attorney Keith Emerick, Bronson's trial attorney.
On October 17, 2016, Judge Gilman filed an Order and Notice dated October 14, 2016 (the “Notice of Dismissal”), in which (i) Bronson's “claim that African American persons from Washington County were systematically excluded from prospective jury pools,” was dismissed, (ii) Attorney Wolf's motion to withdraw was granted, and (iii) Bronson was notified that the Court intended to dismiss the remaining six issues raised in the PCRA Petition without a hearing as they were determined to be without merit. (ECF No. 46-10). Bronson was advised that he had until November 14, 2016, to respond to the Notice of Dismissal.
Rather than filing a response to the Notice of Dismissal, the PCRA court received a “Amended Post Relief Act Petition,” dated November 9, 2016, in which Bronson, pro se, raised two new ineffective assistance of trial counsel claims: that counsel was ineffective for failing to move to have Judge Moschetta Bell disqualify herself from presiding over the trial and that counsel was ineffective “for the failure to object to the presentment of known false testimony of Commonwealths key witness Michael Bowman,” (ECF No. 46-11, emphasis in original). The PCRA court considered the second issue a “rehashing” of claims raised in the original petition. (ECF No. 46-52 at p. 9). On January 5, 2017, the PCRA court found that Bronson had failed to file a timely response to the Notice of Dismissal and dismissed the PCRA Petition. (ECF No. 46-12).
After the Notice of Dismissal was filed, Bronson pro se filed a motion for extension of time to file an amended PCRA petition and an Amended PCRA petition on November 16, 2016; and a motion for reconsideration on January 31, 2017. Each of these motions appears on the Common Pleas docket sheet.
In his original pro se PCRA Petition, Bronson framed the issue as only a due process / prosecutorial misconduct claim, e.g., the knowing use of perjured testimony by the Commonwealth. In the pro se Amended Petition, Bronson presented the claim as a layered claim - preserving his due process / prosecutorial misconduct claim, but also raising an ineffective assistance of counsel claim based on counsel's failure to raise the due process / prosecutorial misconduct claim.
Bronson then filed a timely pro se Notice of Appeal to the Pennsylvania Superior Court, which was docketed at No. 195 WDA 2017. The Superior Court issued a briefing schedule on February 24, 2017, which ordered, citing to Pa.R.A.P. 2185(a), that the appellant brief must be filed on or before April 5, 2017, and also cautioned that “[u]pon failure to timely file briefs for the appellant, the court will, on its own motion and without further notice, dismiss the appeal.” (ECF No. 46-32) (emphasis added). Despite being granted six extensions, and over a year of delays, Bronson never filed an Appellant Brief. On March 28, 2018, the Superior Court denied Bronson's seventh request for an extension and dismissed Bronson's appeal for failure to file his appellate brief. (ECF No. 46-34). In response, Bronson filed an “Application for Reconsideration.” (ECF No. 46-35). On April 23, 2018, the Superior Court denied the motion stating that “Appellant has provided no new information concerning his failure to file a brief.” (ECF No. 46-36). The Supreme Court of Pennsylvania denied Bronson's petition for allowance of appeal on December 19, 2018. Commonwealth v. Bronson, No. 253 WAL 2018 (Pa. 2018) (ECF No. 46-38).
The Superior Court docket reflects that the Superior Court issued six Orders granting Bronson an extension in which to file his appellate brief: (1) April 10, 2017; (2) May 17, 2017; (3) July 14, 2017; (4) September 20, 2017; (5) November 8, 2017; and (6) November 19, 2018. Each of these Orders appears on the Superior Court docket sheet.
On March 9, 2018, while Bronson's collateral appeal was pending, he filed a Petition for Writ of Mandamus with the Supreme Court of Pennsylvania “seeking a Writ of Mandamus directing the trial court to appoint counsel to represent him in his appeal in the Superior Court.” (ECF 46-37 at p. 15). On May 17, 2018, the Supreme Court denied the Petition for Writ of Mandamus. Bronson then filed a motion for reconsideration, which was denied by the Supreme Court of Pennsylvania on July 13, 2018. See Supreme Court of Pennsylvania Docket, No. 30 WM 2018, Bronson v. Court of Common Pleas of Washington County.
Having been denied relief in state court, Bronson filed the instant pro se habeas petition in this Court, raising the same seven issues as he raised in his PCRA petition. (ECF No. 4). Respondents filed an Answer in which they argue that Bronson is not eligible for federal habeas relief because all of his claims are procedurally defaulted due to Bronson's failure to file a brief with the Superior Court of Pennsylvania. (ECF No. 46). Bronson did not file a Reply.
The undersigned has reviewed the filings of the parties, as well as the state court record.The matter is fully briefed and ripe for disposition.
Respondents electronically filed as exhibits to their Answer the relevant parts of the state court record. (ECF No. 46-2 through 46-52).
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 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).
AEDPA also put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d). It applies to any federal habeas claim “that was adjudicated on the merits” by the state courts and it prohibits a federal habeas court from granting relief unless the petitioner established that the Superior Court's “adjudication of the claim”:
When applying § 2254(d), the federal habeas court considers the “last reasoned decision” of the state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Sup't Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016).
was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) based
on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”Becker v. Sec'y Pennsylvania Dep't of Corr., 28 F.4th 459, 460 (3d Cir. 2022) (quoting 28 U.S.C. § 2254(d)). For the purposes of § 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when the state court made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. At 98-100; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).
If, as in the present case, the Superior Court did not adjudicate a federal habeas claim on the merits, this Court must determine whether the absence of an adjudication is because petitioner did not raise the claim to the Superior Court and, as a result, it is now procedurally defaulted. If the claim is procedurally defaulted, this Court should deny it for that reason. If the claim is not defaulted, or if the petitioner established grounds to excuse his default, the standard of review at § 2254(d) does not apply and this Court reviews the claim de novo. See, e.g., Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
Various standards must be met before the Court can review the merits of Bronson's habeas claims. “[AEDPA] established a stringent set of procedures that a prisoner ‘in custody pursuant to the judgment of state court' ” must follow when seeking federal habeas relief. Burton v. Stewart, 549 U.S. 147, 152 (2007) (citing 28 U.S.C. §2244(b)). These prerequisites include a statute of limitations for filing a habeas petition and a constraint that any claims be first exhausted in state courts. 28 U.S.C. §2244(b)(1); see also Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010).
1. Timeliness
First, the Court must determine whether the habeas petition was timely filed. 28 U.S.C. §2244(d); Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019). Respondents filed a Motion to Dismiss arguing that the Petition was untimely under AEDPA. (ECF No. ECF 12). The Court, relying on the prisoner mail box rule, found that the Petition was timely filed and denied the motion. See ECF Nos. 42 and 43.
2. Procedural Benchmarks - Exhaustion and Procedural Default
a. Exhaustion of State Court Remedies
As a general matter, a federal district court may not consider the merits of a habeas petition unless the petitioner has “exhausted the remedies available” in state court. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, (1999). A petitioner satisfies the exhaustion requirement “only if [the petitioner] can show that [he or she] fairly presented the federal claim at each level of the established state-court system for review.” Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). The purpose of the exhaustion requirement is to “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . by invoking one complete round of the State's established appellate review process.” O'Sullivan, 526 U.S. at 845.
To “fairly present” a claim for exhaustion purposes, the petitioner must advance the 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.” Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir. 2018) (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). A petitioner may exhaust a federal claim either by raising it on direct appeal or presenting it in post-conviction PCRA proceedings. O'Sullivan, 526 U.S. at 845. Either way, the petitioner must present his federal constitutional claims “to each level of the state courts empowered to hear those claims.” Id. at 847.
In Pennsylvania, this requirement means that a petitioner in a non-capital case must have first presented every federal constitutional claim raised in his federal habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g., Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
On May 9, 2000, the Supreme Court of Pennsylvania issued Order No. 218 declaring that federal habeas petitioners no longer have to appeal to the state supreme court to satisfy the exhaustion requirement. In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam). The Court of Appeals for the Third Circuit has recognized the validity of this Order. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
b. Procedural Default
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.” Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (citations omitted). As the Supreme Court of the United States recently explained:
State prisoners . . . often fail to raise their federal claims in compliance with state procedures, or even fail to raise those claims in state court at all. If a state court would dismiss these claims for their procedural failures, such claims are technically exhausted because, in the habeas context, “state-court remedies are . . . ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). But to allow a state prisoner simply to ignore state procedure on the way to federal court would defeat the evident goal of the exhaustion rule. See Coleman, 501 U.S. at 732. Thus, federal habeas courts must apply “an important ‘corollary' to the exhaustion requirement”: the doctrine of procedural default. Davila v. Davis, 582 __ U.S. __, 137 S.Ct. 2058, 2064 [2017]. Under that doctrine, federal courts generally decline to hear any federal claim that was not presented to the state courts “consistent with [the State's] own procedural rules.” Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).
Together, exhaustion and procedural default promote federal-state comity. Exhaustion affords States “an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights,” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam), and procedural default protects against “the significant harm to the States that results from the failure of federal courts to respect” state procedural rules, Coleman, 501 U.S. at 750. Ultimately, “it would be unseemly in our dual
system of government for a federal district court to upset a state court conviction without [giving] an opportunity to the state courts to correct a constitutional violation,” Darr v. Burford, 339 U.S. 200, 204 (1950), and to do so consistent with their own procedures, see Edwards, 529 U.S. at 452-453.Shinn v. Ramirez, __ U.S. __, 142 S.Ct. 1718, 1732 (2022).
If the state court did not address the merits of a claim because the petitioner failed to comply with the state's procedural rules in presenting the claim, the claim may be procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729 (1991). In order to support a procedural default, the state court's decision must be based on a state procedural law that is independent of the constitutional claim alleged and adequate to support the state court's finding. Id. In addition to determining whether the basis of the state court ruling was independent and adequate, the United States Supreme Court has found that the federal court has a duty to review state law waiver determinations. See Cone v. Bell, 556 U.S. 449, 468-69 (2009) (“we have an independent duty to scrutinize the application of state rules that bar our review of federal claims”). “Even if a state rule itself is adequate [to support a procedural default], the ‘exorbitant application' of the rule may in exceptional cases render the state ground inadequate to erect a procedural bar.” Evans v. Sec'y Pa. Dept. of Corr., 645 F.3d 650, 657 (3d Cir. 2011) (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)).
“Where unusual circumstances cause a litigant to ‘substantially, but imperfectly' comply with a generally adequate state procedural rule, the rule of exorbitant application protects [him] from procedural default. Hill v. Wetzel, 279 F.Supp.3d 550, 559 (E.D. Pa. 2016) (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). Here, the record reflects that Bronson did not “substantially, but imperfectly” comply with the state procedural rule that mandated he file an appellate brief. As a result, the undersigned concludes that the rule of exorbitant application does not protect Bronson from the procedural default of his claims.
If a claim is defaulted, the federal court may address it only if the petitioner establishes cause for the default and prejudice resulting therefrom, or that a failure to consider the claim will result in a fundamental miscarriage of justice. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). “Cause” requires “something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753 (emphasis omitted). “With regard to the prejudice requirement, the habeas petitioner must prove not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Werts, 228 F.3d at 193 (internal quotations omitted). To establish a fundamental miscarriage of justice, a petitioner must show “new reliable evidence” of actual innocence, such as “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup v. Delo, 513 U.S. 298, 321-24 (1995).
With these standards and rules in mind, the undersigned now turns to a discussion of Bronson's claims.
D. Discussion
Respondents argue that Bronson's claims are procedurally defaulted for purposes of federal habeas review due to his failure to file a brief with the Superior Court of Pennsylvania. As such, Respondents submit that the claims were dismissed on the basis of an independent and adequate state procedural rule.
There is no question that the grounds on which Bronson seeks federal habeas relief were never raised to the Superior Court. The state court record reflects that despite numerous opportunities for extensions of time and warnings from the Superior Court that failure to comply would cause a dismissal of his appeal, Bronson failed to file an appellate brief. None of his claims, therefore, was subject to one complete round of state court review required for exhaustion. O'Sullivan, 526 U.S. at 845. “When a claim is not exhausted because it has not been ‘fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process'.” McCandless, 172 F.3d at 260 (quoting 28 U.S.C. § 2254(b)(1)(B)(i)); see also Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state courts meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.”). Thus, Bronson's claims are technically exhausted, as any attempt to now exhaust those claims would be futile.
See 42 Pa. Const. Stat. Ann. §§ 9543(a)(3); 9544(a)(3) and 9545(b).
Nevertheless, without more, technical exhaustion does not allow a federal court to proceed to the merits of a claim. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). Rather, such claims are procedurally defaulted and prevented from habeas review “unless [Bronson] establishes ‘cause and prejudice' or a ‘fundamental miscarriage of justice' to excuse his [] default.” McCandless, 172 F.3d at 260 (citing Coleman, 501 U.S. at 750).
As noted above, if a petitioner has failed to exhaust his state court remedies on a claim and the state court would now refuse to review the claim based on a state procedural rule, this Court may deny that claim as procedurally defaulted. See Coleman, 51 U.S at 735 n.1. Procedural default, however, will not be found based upon failure to comply with the state procedural rule unless the state procedural rule is “independent” and “adequate.” Id. at 750. A rule is considered “independent” if not “so interwoven with federal law that it cannot be said to be independent of the merits of a petitioner's federal claim.” Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir. 2004) (citing Coleman, 501 U.S. at 740); Ake v. Oklahoma, 470 U.S. 68 (1985). “A state rule is ‘adequate' for procedurally default purposes if it was ‘firmly established, readily ascertainable, and regularly followed at the time of the purported default. Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007) (citing Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001)); see also Johnson v. Lee, __U.S. __, 136 S.Ct. 1802, 1804 (2016) (per curiam)(stating that a state rule is “adequate” if it is “firmly established and regularly followed.”) (citation omitted); Davis v. McGinley, No. 16-CV-3807, 2018 WL 3596867, at *4 (E.D. Pa. Feb. 21, 2018), report and recommendation adopted, No. CV 16-3807, 2018 WL 3585171 (E.D. Pa. July 25, 2018). These requirements ensure that federal review is not barred unless a habeas petitioner had fair notice of the need to follow what could fairly be called rules of general applicability. Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005). The threshold question, therefore, is whether the Pennsylvania Superior Court, in dismissing Bronson's appeal, relied on an independent and adequate state procedure. Because independence and adequacy are distinct, it is necessary to address each in turn.
1. The Independence of the State Procedural Rule
Rule 2101 of Pennsylvania Rules of Appellate Procedure states that “[b]riefs [] shall conform in all material respects with the requirements of these rules . . ., otherwise . . . the appeal [] may be [] dismissed.” Pa.R.A.P. 2101 (emphasis added). As the rule of dismissal for failure to comply with the briefing requirements set forth in Pennsylvania's rules of appellate procedure is procedural in nature, it is in no way “interwoven” with federal law governing the merits of Bronson's petition.
2. The Adequacy of the State Procedural Rule
Although the Superior Court did not specify a rule upon which it based its dismissal of Bronson's PCRA appeal for failure to file a brief, its dismissal order stated that the appeal was dismissed because Bronson failed to file a brief. In Saterstad v. Wingard, No. 13-00847, 2015 WL 10435248, at 19 (M.D.Pa. Nov. 2015), report and recommendation adopted, 2016 WL 867122 (M.D. Pa. Mar. 7, 2016), the court held that the Superior Court's dismissal of petitioner's PCRA appeal for failure to file a brief was premised on an “adequate” rule, despite the Superior Court's lack of citation to a particular state procedural rule upon which it based the dismissal. The court reasoned that Pa.R.A.P 2188 requires parties to strictly comply with Pa.R.A.P. 2185, designating the time for serving and filing briefs, and that “the Supreme Court of Pennsylvania [in Commonwealth v. Robinson, 837 A.2d 1157, 1162 (Pa. 2003)] recognized that the Superior Court had maintained an administrative practice dating back to before the amendment of the PCRA in 1995” to dismiss appeals if the appellant's brief has not been filed after a substantial delay. Id. Also, the Saterstad court noted that Pa.R.A.P 2101 “is explicit that the dismissal of an appeal is a possible sanction for not complying with the briefing requirements set forth in Pennsylvania's rules of appellate procedure.” Id.
Other district courts within the Third Circuit also have held that Rule 2101 is an independent and adequate state court rule for the purposes of default. See, e.g., Deshields v. Smith, No. 21-845, 2021 WL 45064819, *4 (E.D.Pa. Sept. 7, 2021) (finding that Rule 2101 is an independent and adequate rule), report and recommendation adopted, 2021 WL 4503359 (E.D.Pa Sept. 30, 2021); Betha v. Lane, No. 17-3078, 2018 WL 3119868, at *3 (E.D.Pa. Apr. 4, 2018) (same), report and recommendation adopted, 2018 WL 3117636 (E.D.Pa. June 22, 2018); Thompson v. Pennsylvania, No. 14-1563, 2015 WL 6067967, at *4 (W.D.Pa. Oct. 15, 2015) (finding that federal habeas claim procedurally defaulted where petitioner failed to file a brief in support of PCRA appeal), report and recommendation adopted, 2017 WL 5587111 (W.D.Pa. Nov. 20, 2017); Sistrunk v. McGinley, No. 176-0815, 2017 WL 5589048, at *9 (M.D. Pa. Nov. 2, 2017) (finding that Rule 2101 is “plainly independent” and “firmly established”); Saterstad v. Wingard, No. 13-0847, 2015 WL 10435248, at *19 (M.D.Pa. Nov. 25, 2015) (Rule 2101 is explicit and consistently applied), report and recommendation adopted, 2016 WL 867122 (M.D.Pa. Mar. 7, 2016).
A rule is considered “adequate” if (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions. Jacobs v. Horn, 395 F.3d 92, 117 (3d Cir. 2005). Here, each of these requirements is met.
First, Rule 2101 speaks in unmistakable terms stating that failure to comply with the briefing requirements allows the court to dismiss the case. Next, both the Superior Court and the Pennsylvania Supreme Court dismissed Bronson's appeal from the PCRA decision without addressing the merits of his claims. And, the third requirement is met as Bronson's appeal was dismissed on a procedural rule that is firmly established as “[t]he Supreme Court of Pennsylvania has acknowledged that there is an administrative practice by the Superior Court of Pennsylvania to ‘dismiss [] appeals if the appellant's brief has not been filed after a substantial delay'.” Saterstad, 2016 WL 867122, at *2 (citing Commonwealth v. Robinson, 837 A.2d 1157, 1162 (Pa. 2003)); see also Thompson v. Pennsylvania, No. Civ. A. 14-1563, 2015 WL 6067967, at *6 (W.D. Pa. Oct. 15, 2015) (finding there was no basis for federal habeas relief when the petitioner's failure to file a brief with the Superior Court of Pennsylvania constituted procedural default).
For these reasons, the undersigned finds that the briefing requirement is an “adequate” state procedural rule.
Accordingly, for all these reasons, the undersigned finds that the Superior Court dismissed Bronson's appeal based on an “independent” and “adequate” state procedural rule and Bronson's failure to file a brief with the Superior Court constitutes procedural default.
3. Bronson has not established any exceptions to excuse the procedural default
Because Bronson's claims are procedurally defaulted, this Court may only review the merits of those claims if he can demonstrate either “cause and prejudice” or that a fundamental miscarriage of justice will result if the claims are not considered. Lines, 208 F.3d at 160; McCandless, 172 F.3d at 260. It is Bronson's burden to demonstrate circumstances excusing procedural default. Coleman, 501 U.S. at 750; Swegar v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002).
Bronson has not met this burden. He did not respond to Respondents' arguments that his claims are procedurally defaulted and he has provided no explanation for his failure to file a brief with the Superior Court. Moreover, the state court record reflects that Bronson was notified of the briefing requirement on multiple occasions, yet he failed to file a brief in accordance with Pennsylvania Rules of Appellate Procedure.
Finally, denying review of Bronson's claims would not constitute a fundamental miscarriage of justice because he fails to present any “new reliable evidence” of actual innocence. See Schulp, 513 U.S. at 316 (“Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.”).
For all these reasons, the undersigned finds that Bronson has not established grounds to excuse his default and, as a result, his claims are not subject to habeas review. It is therefore, recommended, that the Petition be denied with prejudice.
E. The Grant of PCRA Relief to Michael J. Duncan
It would be remiss if the undersigned did not address the Superior Court's grant of PCRA relief to Duncan, Bronson's co-defendant at trial. Commonwealth v. Duncan, No. 1751 WDA 2018, 2020 WL 416364 (Pa. Super. Ct. Jan. 27, 2020). Both Bronson and Duncan filed direct appeals, both of which were denied by three-judge panels of the Superior Court. Duncan raised the immunity issue in direct appeal as a Brady violation. The Superior Court rejected the claim finding that,
there is no indication Commonwealth suppressed or withheld evidence of agreement; existence of agreement was apparent on face of grand jury transcript; defense counsel received copy of grand jury transcript before trial and repeatedly referred to it during cross-examination of Mr. Bowman; therefore, Appellant had equal access to allegedly withheld information no Brady violation occurred.Commonwealth v. Duncan, No. 237 WDA 2015, 2016 WL 5858270, slip op. at p. 13 (Pa. Super. Ct. July 7, 2016) (footnote omitted) (affirming judgment of conviction) (ECF No. 48-2 at p. 24).
Both Bronson and Duncan also filed pro se PCRA petitions and both were appointed counsel to represent them during their PCRA proceedings. Counsel for Bronson filed a Turner/Finley no-merit letter, while counsel for Duncan filed an amended PCRA petition raising multiple claims of ineffective assistance of trial counsel, including a claim that trial counsel failed to impeach Bowman's testimony based on his receiving immunity for his testimony, a claim that Bronson did not raise in either his pro se original PCRA petition or Amended PCRA petition. The PCRA court denied both petitions finding the claims were without merit.
The PCRA court dismissed that claim finding “that in light of counsel's thorough cross-examination of Bowman in front of the jury regarding his prior convictions and pleas involving false reports to police and armed robbery, counsel effectively challenged Bowman's credibility.” Commonwealth v. Duncan, No. 2020 WL 416364, at *6.
Both Bronson, pro se, and Duncan, through counsel, filed Notices of Appeal from the dismissals of their PCRA petitions. As noted above, Bronson's appeal was dismissed for failure to file an appellate brief. Duncan, through counsel, filed a brief in which he again raised an ineffective assistance of counsel claim “that trial counsel failed to adequately challenge the credibility of the Commonwealth witness Michael Bowman (Bowman) because he failed to impeach his testimony based on his receiving immunity for his testimony. ( See Duncan's Brief, at 20-22).” Duncan, 2020 WL 416364, at *5.
On January 27, 2020, a three-judge panel of the Superior Court reversed the PCRA court's order dismissing Duncan's PCRA petition and remanded for a new trial. Specifically, the Superior Court found:
In this case, Bowman was a key witness because he was the only witness to describe the details of the meetings and the only direct evidence to point to a conspiracy. He testified at trial that he was present when Bronson arranged for Duncan to kill Newman and further testified that Duncan told him he then killed Duncan. Disclosure of the immunity agreement was material information that Duncan's jury should have been informed of when weighing Bowman's credibility and the motivation for his testimony. While the jury heard that he had been convicted previously and received what was purportedly a lenient sentence in an armed robbery conviction, those reasons could be used in any case at any time to challenge his credibility. However, his receiving immunity to testify went directly to why he was testifying in this case and was important for a jury to know in determining Bowman's credibility.
There was no strategic reason for defense counsel not to bring out on cross that Bowman was only willing to testify if he received immunity; rather, such questioning would fit squarely within defense counsel's strategy. [footnote omitted].
. . .
Had defense counsel read the grand jury transcript and cross-examined Bowman on immunity, the fact that Bowman received immunity could have tipped the jury to find all of his testimony not credible, weakening the Commonwealth's theory of conspiracy and revenge and making it more likely to acquit him on those charges. Accordingly, because Bowman was a key witness, we conclude that there is a reasonable probability that this information would have changed the outcome of Duncan's trial and his claim of ineffectiveness is justified.Commonwealth v. Duncan, 2020 WL 416364 at **7-8. After remand, on April 16, 2021, Duncan pled guilty to Murder of the Third Degree and Conspiracy - Criminal Homicide. He was sentenced to a concurrent sentence of 120 months - 240 months incarceration. See Duncan's state court docket No. CP-63-CR-0000357-2011.
Bronson first raised the immunity issue in his pro se PCRA petition (ECF No. 46-6). At that time, the issue was raised as a due process / prosecutorial misconduct claim arguing that the Commonwealth knowingly produced perjured testimony. And in his Amended PCRA petition (ECF No. 46-11), Bronson again raised the issue, but this time as a layered claim - renewing the due process /prosecutorial misconduct claim and raising a new ineffective assistance of counsel claim arguing that trial counsel failed to raise the due process / prosecutorial misconduct claim.
Bronson has never raised to any court an ineffective assistance of trial counsel claim for failing to impeach Bowman's testimony based on receiving immunity for his testimony -significantly, the issue that Duncan was granted PCRA relief on.
In the instant federal petition, Bronson raises two ineffective assistance of counsel claims: Ground Four - “counsel was ineffective for failing to request missing evidence instruction to charge the jury” and Ground Five - “counsel was ineffective for failing to obtain a demurrer/judgment of acquittal and arrest of judgment because the Commonwealth offered evidence with two opposing propositions and by application of law proved neither.” Pet. at pp. 20-21 (ECF No. 4). And even if the claims of the pro se Amended PCRA Petition were deemed to be incorporated in the federal petition, Bronson still fails to raise an ineffective assistance of counsel claim based on counsel's failure to impeach Bowman's testimony based on receiving immunity. The two additional ineffective assistance of counsel claims raised in the Amended Petition were based on counsel's (1) failure to move to have the trial judge disqualified and (2) failure to raise a due process/prosecutorial misconduct issue based on the alleged use of perjured testimony.
And therein lies the problem. Because Bronson claims were abandoned due to his failure to file a brief with the Superior Court, he failed to complete his appeal of the dismissal of his PCRA petition. As such, he failed to raise, much less, preserve the claim that trial counsel was ineffective for failing to impeach Bowman based on receiving immunity.
If Bronson had raised such a claim in the instant federal petition, Martinezv.Ryanmay have provided a possible excuse for the default:
One common excuse for procedural default is based on the equitable rule first announced in Martinez v. Ryan, 566 U.S. 1 (2012). Under that equitable rule, when a prisoner's state post-conviction lawyer was negligent for failing to raise an ineffective-assistance claim that ‘has some merit,' we may hear the claim, even though the prisoner never raised it in state court. Workman v. Superintendent Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019) (quoting Martinez, 566 U.S. at 14).Williams v. Superintendent Mahanoy SCI, 45 F.4th 713, 720 (3d Cir. 2022). And while Martinez may have excused the default, our Court of Appeals explained in its recent Williams decision,
AEDPA does not allow us to excuse [Petitioner's] separate failure to develop the record just because his state post-conviction lawyer did a bad job. [Shinn], at 1737. We are therefore limited to the facts developed in state court.Williams, 45 F.4th at 720. See 28 U.S.C. § 2254(e)(2).
III. CERTIFICATE OF APPEALABILITY
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
“When the district court 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 those standards here, the undersigned concludes that jurists of reason would not find it debatable that Bronson's claims should be denied. For these reasons, it is recommended that a certificate of appealability not be issued for any claim.
IV. CONCLUSION
All of Bronson's claims are procedurally defaulted. Therefore, it is respectfully recommended that the instant habeas petition for writ of habeas corpus be denied with prejudice. Because reasonable jurists would not debate the recommended disposition of Bronson's claims, it is also recommended that a certificate of appealability should not issue for any claim. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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, Petitioner, because he is a non-electronically registered party, may file written objections, if any, to this Report and Recommendation by February 16, 2023, and Respondents, because they are electronically registered parties, may file written objections, if any, by February 9, 2023. The parties are cautioned that failure to file 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).
BY THE COURT: