Opinion
1:21-cv-178
12-12-2022
DAWAUN DUPREE CARSON, Petitioner v. MORRIS L. HOUSER, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and DISTRICT ATTORNEY OF ERIE COUNTY, Respondents
SUSAN PARADISE BAXTER, United States District Judge
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 4)
RICHARD A. LANZILLO, Chief United States Magistrate Judge
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the petition for writ of habeas corpus, ECF No. 4, be denied and that no certificate of appealability issue.
II. Report
A. Procedural history
Before the Court is a petition for a writ of habeas corpus filed by Petitioner Dawaun Dupree Carson pursuant to 28 U.S.C. § 2254. ECF No. 4. Petitioner is incarcerated at the State Correctional Institution at Benner Township, serving a sentence of imprisonment imposed by the Court of Common Pleas of Erie County, Pennsylvania.
The record and the criminal docket for Petitioner's underlying convictions in Commonwealth v. Carson, No. CP-25-CR-0000371-2016 (Erie Cnty. Com. Pl.) reveal the following. Petitioner was convicted at a jury trial of, inter alia, murder of the first degree. The trial court summarized the evidence of the crime as follows:
On July 2, 2015 at approximately 12:20 a.m., the City of Erie Police were called to the scene of 19th and Chestnut Streets in Erie, Pennsylvania where they found the victim, Justin Wiley, a 22 year old black male, shot in the back of the head. Wiley was unresponsive in the driver's seat of a silver Grand Am in the yard of a house located at the northwest comer of 19th and Chestnut Streets. Parked across the street from [] Wiley's vehicle was a silver Subaru Tribeca. There were no occupants in the Tribeca; its windows were down; and the hood and area over the radiator grill were hot, indicating the engine of the Tribeca had been running recently.
Justin Wiley died from a single gunshot wound to the back of the head. The bullet removed from his head during the autopsy was a nine millimeter .38 caliber class bullet.
The police also found bullet holes on the rear door of driver's side of Wiley's vehicle. The glass of the driver's side window was shattered. There was a bullet hole in the wood siding of the house next to where the Wiley's vehicle came to rest. The bullet that struck the house was not found. Forty-five caliber ballistics evidence was recovered from the scene. With the exceptions of the bullet recovered from the victim's head and a lead fragment of unknown origin, the ballistics evidence recovered from the scene was a .45 caliber variety. The investigation revealed no less than two guns were used in the incident: the .38 caliber gun used to kill Wiley and at least one .45 caliber weapon. No weapons were recovered from the scene. None of the weapons recovered during the investigation were of a .38 caliber or .45 caliber variety.
It was known that [Petitioner] had an ongoing dispute with Wiley because Wiley had thrown a bottle at [Petitioner's] Jaguar outside a local bar in the area not long before Wiley was killed. On May 31, 2015, Wiley reported to police [Petitioner] fired shots at him at approximately 2:00 a.m. that morning near another local bar in the area. The investigation into the May 31st incident was closed after Wiley did not respond to detectives' efforts to contact him.
At the time of the homicide, Ashley Anderson, 29 years old, and Tonya Bennett, 31 years old, resided together and used heroin together. On a daily basis Anderson purchased heroin from [Petitioner], [Petitioner] was Anderson's sole supplier. Bennett also obtained heroin from [Petitioner], Anderson regularly “rented” or loaned [Petitioner] her boyfriend's Subaru Tribeca in exchange for heroin. Anderson testified the Tribeca had a history of “electrical problems” which caused it to short out, stall and require a jump to become operable again.
The evening of July 1,2015, Anderson loaned [Petitioner] the Tribeca in exchange for heroin. [Petitioner] left Anderson's residence with the vehicle. At approximately 2:30 a.m. on July 2, 2015, [Petitioner] returned to Anderson's residence and reported the Tribeca had stalled out on him at 19th and Chestnut Streets. [Petitioner] asked Anderson if she would jump the vehicle later in the
morning when he returned with jumper cables. At 8:00 a.m. on July 2nd [Petitioner] returned to Anderson's residence with jumper cables and the keys to the Tribeca. [Petitioner] asked Anderson and Bennett to retrieve the Tribeca and notify him once this occurred. [Petitioner] supplied Anderson and Bennett with heroin before they left to get the Tribeca.
When Anderson and Bennett arrived at 19th and Chestnut Streets the morning of July 2nd, the Tribeca had already been removed and crime scene tape was wrapped around the comer. Anderson and Bennett were asked to go to the police station, where they initially lied during their separate interviews with the police about who had possession of the Tribeca the previous evening.
During Anderson's fourth interview with the police on July 2nd, she admitted she loaned the Tribeca to [Petitioner] at the relevant time. Bennett confirmed [Petitioner] had possession of the Tribeca at the relevant time.
Late evening on July 1, 2015, a passerby, Megan Canto, encountered [Petitioner] operating an SUV-type vehicle in an easterly direction on 19th Street near the intersection of 19th and Chestnut Streets. Canto was a long-time friend of the victim and an acquaintance of [Petitioner], She had just crossed Chestnut Street, and was walking west on 19th Street when [Petitioner] called out to her. [Petitioner] pulled his vehicle over. Canto walked up to the vehicle and looked inside the open passenger window. She observed two passengers in the vehicle. Canto observed [Petitioner] was holding a small gun about the size of a cell phone. [Petitioner] told Canto he knew it was Wiley who had thrown the bottle at his Jaguar and [Petitioner] was going to kill him. [Petitioner] showed Canto the gun he was holding. [Petitioner] warned Canto to stay away from him that night because he did not want to shoot her as a stand-by. Canto told [Petitioner] to leave Wiley alone. Canto told [Petitioner] she had to go home and observed the time on the clock in [Petitioner's] vehicle was 12:07 a.m. [Petitioner] stated he was going to remain there. Canto proceeded to her residence. Approximately 30 minutes later, Canto learned Wiley was dead.
Two witnesses, Georgianna Arbaugh and Sheila Cox, testified they encountered several black males near a disabled vehicle in the vicinity of the homicide. Shortly after midnight, two of the black males asked Arbaugh for a jump. Arbaugh declined and left the area. A short time later the witnesses returned to the scene after learning someone had been shot. Cox identified to the police the Tribeca as the disabled vehicle.
Another passerby, Tracy Beldin, left her residence on Chestnut Street near West 19th Street just prior to the homicide. She walked north on Chestnut Street with her companion toward 19th Street. As Beldin and the companion approached the intersection, they observed five black males walking on Chestnut Street, in the vicinity. As Beldin reached the comer, she observed the victim's silver vehicle headed west on 19th Street at the stop sign. Beldin turned to the right at the comer
to head east on 19th Street. Shortly thereafter, Beldin heard six gunshots. She turned around and observed the victim's vehicle jump the curb and head toward a house. Beldin observed one of the black males had a gun. Beldin and her companion ran from the scene. Beldin's companion called 911 to report the shooting.
After [Petitioner] was arrested and incarcerated, mail from [Petitioner] to a third party was returned to prison, marked “return to sender.” In this correspondence, in an effort to remove himself from the scene of the crime, [Petitioner] requested the third person to provide an alibi for the time of the shooting.ECF No. 18 at 22-26 (citations to trial transcript omitted).
On December 7, 2016, Petitioner was sentenced to life imprisonment for the murder conviction plus an aggregate term or 24 to 48 years' imprisonment on related charges. Following the denial of his post-sentence motion, Petitioner filed an appeal. The Superior Court of Pennsylvania affirmed the judgment of sentence on June 1, 2018. Commonwealth v. Carson, 193 A.3d 1039 (Pa. Super. 2018) (unpublished memorandum); ECF No. 14-2. Petitioner did not file a petition for allowance of appeal to the Supreme Court of Pennsylvania.
On June 12, 2019, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Counsel was appointed and filed an amended PCRA petition, which was dismissed. The Superior Court affirmed the dismissal on January 13, 2021. Commonwealth v. Carson, 248 A.3d 480 (Pa. Super. 2021) (unpublished memorandum); ECF No. 5-1 at 19-28. The Supreme Court denied a petition for allowance of appeal on June 22, 2021. Commonwealth v. Carson, 257A.3d 696 (Pa. 2021).
Petitioner commenced this litigation by placing his petition in the prison mailing system on July 3, 2021. ECF No. 4 at 15. Respondents filed a response. ECF No. 14. Petitioner filed a traverse. ECF No. 23. The petition is now ripe for review.
B. Analysis
Petitioner presents seven grounds for relief.
Following the seven enumerated grounds for relief, Petitioner adds a paragraph requesting that the Court consider the cumulative effect of the errors that occurred in this case. ECF No. 5 at 36-37. This paragraph is not sufficiently developed to permit meaningful review thereof.
1. Ground One: Brady violations
Petitioner first asserts that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose and/or present at trial Amy Markham, her location, and a photo array she was shown by police near the time of the crime. ECF No. 5 at 8-15. Petitioner raised this claim in his PCRA petition. In the PCRA appeal, the Superior Court held as follows:
Appellant first contends that a material witness, Amy Markham, “was not produced by the Commonwealth and instead her inability to identify the Appellant was suppressed.” He argues that this action was a Brady violation. He also maintains that the Commonwealth committed an additional Brady violation “by withholding the photo line-up array that was displayed to Amy Markham by the homicide detectives after she willingly gave them a statement placing her near the crime scene along with Commonwealth witness Beldin.” He asserts that he was prejudiced by the Commonwealth's actions, because the jury should have known that Markham, “who was similarly situated to Beldin, who was called as a witness by the Commonwealth, was unable to make any identification of [A]ppellant as being at the crime scene or else she would have been called for that purpose.”
“To establish a Brady violation, [A]ppellant must demonstrate that: (1) the prosecution concealed evidence; (2) the evidence was either exculpatory or impeachment evidence favorable to him; and (3) he was prejudiced.” Commonwealth v. Treiber, 632 Pa. 449, 121 A.3d 435, 460-61 (Pa. 2015).
Appellant cannot establish the first prong of this test, because he was well-aware of Markham's existence prior to or, at least, by the time of trial. Specifically, he was aware that Markham had called 911, as the recording was stipulated to by both counsel. Rule 907 Notice at 12. The Commonwealth's tactical decision not to present Markham as a witness at trial was not a “concealment,” and the Commonwealth was under no obligation to do so. As for the photographic array, Appellant has failed to demonstrate how he was prejudiced by the Commonwealth's failure to provide it to him, as he could have merely asked the investigating officer whether Markham identified Appellant from the photographic array, without having to produce the array itself.
Accordingly, the prosecution did not conceal the evidence of Markham's existence as a witness from Appellant. As Appellant has failed to establish this first prong, his entire Brady claim related to Markham fails.ECF No. 5-1 at 23-24 (citations to appellate brief omitted).
Because the state court reviewed this claim and rejected it on its merits, the following standard is applicable. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), if a state court rejects a claimed federal violation on the merits, to obtain habeas relief a petitioner must show that the ruling:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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). See also Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004); Thomas v. Horn, 570 F.3d 105 (3d Cir. 2009).
An unreasonable application of federal law focuses on whether the state court unreasonably applied relevant United States Supreme Court holdings. White v. Woodall, 572 U.S. 415, 419-20 (2014). A petitioner must show an error so egregious “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 for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).
An unreasonable determination of the facts is one where the petitioner proves by clear and convincing evidence, see 28 U.S.C. § 2254(e)(1), that the conclusion drawn from the evidence by the state court is so improbable that it “blinks reality.” Miller-El v. Dretke, 545 U.S. 231, 266 (2005). As long as reasonable minds might disagree about the correctness of a factual determination, a federal habeas court must defer to the state court's determination. Rice v. Collins, 546 U.S. 333,341-42 (2006).
Petitioner first asserts that the Superior Court's holding was an unreasonable application of federal law because its conclusion that the Commonwealth was under no obligation to present Markham as a witness at trial conflicts with law concerning a prosecutor's duty to seek justice. ECF No. 5 at 10-12. The sole United States Supreme Court majority opinion to which Petitioner cites for this proposition is Berger v. United States, 295 U.S. 78 (1935). Berger concerns neither a duty to call a witness nor any SrarZy-related topic. In short, nothing in Berger conflicts with the Superior Court's holding. Petitioner's argument fails.
Petitioner next asserts that, when the Superior Court analyzed his Brady claim, it failed to address the prosecution's failure to disclose Markham's location to him. ECF No. 5 at 12-14. However, a review of his appellate brief reveals that Petitioner did not raise this issue to the Superior Court as part of his Brady claim. ECF No. 18-1 at 7-10. Thus, he waived this assertion as a basis for habeas relief.
Finally, Petitioner asserts that the Superior Court shifted the prosecution's burden to him in violation of federal law when it held that Petitioner was not prejudiced by the prosecution's failure to provide the photographic array because he could have asked the investigating officer whether Markham identified him from the photographic array. ECF No. 5 at 14-15. Petition has not cited any relevant United States Supreme Court authority for this assertion and, thus, has failed to carry his burden to merit habeas relief.
For all of these reasons, Petitioner is not entitled to habeas relief on this ground.
2. Ground Two: Ineffectiveness for failing to request missing witness instruction
Petitioner next asserts that his trial counsel was ineffective for failing to request that a missing witness instruction concerning Markham be provided to the jury. ECF No. 5 at 15-18. Petitioner concedes that this claim (as well as the claims in Grounds Three, Four and Five) was not exhausted in state court. Id. at 15.
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. This “exhaustion” requirement is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722. 731 (1991)). See also O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A petitioner shall not be deemed to have exhausted state remedies if he has the right to raise his claims by any available state procedure. 28 U.S.C. § 2254(c).
In order to exhaust a claim, a petitioner must “fairly present” it to each level of the state courts. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citing 28 U.S.C. § 2254(b)); O 'Sullivan, 526 U.S. at 848. In Pennsylvania, this requirement means that a petitioner in a non-capital case must have presented every federal constitutional claim raised in his habeas petition to the Court of Common Pleas and then the Superior Court either on direct or collateral appeal. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
“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 v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (quoting 28 U.S.C. § 2254(b)). In such cases, however, applicants are considered to have procedurally defaulted their claims, Rolan v. Coleman, 680 F.3d 311,317 (3d Cir. 2012) (“Procedural default occurs when a claim has not been fairly presented to the state courts ... and there are no additional state remedies available to pursue ... or, when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule ....), and federal courts may not consider procedurally defaulted claims unless “the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To show cause, a petitioner must demonstrate “some objective factor external to the defense” that prevented compliance with the state's procedural requirements. Id. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime, McCleskey v. Zant, 499 U.S. 467, 494 (1991), by presenting new evidence of innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995).
As Petitioner concedes, this claim was not exhausted. Because Petitioner is now time-barred from raising this claim in state court, the exhaustion requirement is excused; however, the claim is procedurally defaulted. See, e.g, Lines, 208 F.3d at 162-66.
Petitioner seeks to avoid procedural default by couching this claim in PCRA counsel's ineffectiveness for failing to raise the claim of trial counsel's ineffectiveness before the PCRA court. ECF No. 5 at 15-17. Generally, because there is no federal constitutional right to counsel in a PCRA proceeding, a petitioner cannot rely on PCRA counsel's ineffectiveness to establish the “cause” necessary to overcome the procedural default of a federal habeas claim. Davila v. Davis, 137 S.Ct. 2058, 2062 (2017). In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Supreme Court announced a narrow, but significant, exception to this rule. In relevant part, it held that in states like Pennsylvania, where the law requires that claims of ineffective assistance of trial counsel be raised for the first time in a collateral proceeding, a petitioner may overcome the default of a claim of trial counsel's ineffectiveness if the petitioner demonstrates: (1) the defaulted claim of trial counsel's ineffectiveness is “substantial,” and (2) PCRA counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984) for failing to raise that claim in the initial review collateral proceeding. Martinez, 566 U.S. at 17.
Petitioner's mere assertion of PCRA counsel's ineffectiveness falls well short of establishing the requirements of Strickland, i.e., a showing that counsel's performance was deficient, without strategic or reasonable basis, and the deficiency prejudiced the defendant.
Further, the following Pennsylvania law is instructive:
A missing witness instruction may be given in limited circumstances. “‘When a potential witness is available to only one of the parties to a trial, [] it appears this witness has special information material to the issue, and this person's testimony would not merely be cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference that it would have been unfavorable.'” Commonwealth v. Miller, 2017 PA Super 330, 172 A.3d 632, 645646 (Pa. Super. 2017) (quoting Commonwealth v. Boyle, 1999 PA Super 142, 733 A.2d 633, 638 (Pa. Super. 1999) (citation and quotation omitted)). However, this Court has clarified at least six circumstances where a party is not entitled to the missing witness adverse inference instruction:
1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining unbiased truth;
2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties',
4. There is a satisfactory explanation as to why the party failed to call such a witness;
5. The witness is not available or not within the control of the party against whom the negative inference is desired; and
6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.
Miller, 172 A.3d at 645-646 (internal citations and quotations omitted) (emphasis added). In order to determine whether a witness was “available” to a party, the trial court must ascertain whether the witness was “peculiarly within the knowledge and reach” of one party. Commonwealth v. Boyd, 356 Pa.Super. 302, 514 A.2d 623, 625 (Pa. Super. 1986).Commonwealth v. Hemphill, 2021 WL 2624689, at *2-3 (Pa. Super. June 25, 2021).
Petitioner does not assert that Markham was available only to the Commonwealth. For this reason alone, he cannot show that PCRA counsel's failure to raise this claim violated Strickland because the underlying claim is without merit and failure to raise it could not have prejudiced Petitioner.
Petitioner is not entitled to habeas relief on this ground.
3. Ground Three: Ineffectiveness for failing to challenge evidence of uncharged conduct
Petitioner next asserts that trial counsel was ineffective for failing to object to the admission of evidence of uncharged criminal conduct. ECF No. 5 at 19-22. As set forth above, this claim is procedurally defaulted. In an effort to overcome the procedural default of this claim, Petitioner asserts PCRA counsel's ineffectiveness in failing to raise this claim, citing Martinez. Id. at 15.
This Court need not resolve the more complex issue of procedural default, however, if it determines that the ineffectiveness claim has no merit, even under a de novo review. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (where analysis of procedural default is complex, the court may skip the issue and proceed to the merits). That course is followed here.
Petitioner's claim is based on the admission of testimony from a police officer, Jason Russell, in which he described a May 31, 2015, “shots fired” call to which he responded. ECF No. 5 at 19. When Officer Russell arrived at the location, he spoke to Justin Wiley, who informed him that Petitioner had fired shots at Wiley. Id. at 20.
Petitioner argues that “this evidence came in for one reason and that one reason was, to demonstrate [his] propensity to act in a particular manner, i.e., to be a violent man whose violence made the murder more likely. Admitting evidence of other bad acts for this purpose is, of course, prohibited.” Id. at 21.
Indeed, admission of other criminal conduct is prohibited in the circumstances identified by Petitioner; however, admission is permitted in other circumstances. As the Supreme Court of Pennsylvania has explained:
Generally, evidence of other criminal conduct is inadmissible against a defendant on trial for a different charge. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (Pa. 1988). Past conduct or information of other crimes cannot be introduced solely to show a defendant is of bad character and has a propensity to commit criminal acts. Id. However, evidence of other crimes may be admissible in special circumstances where it is relevant to a legitimate purpose and not merely to prejudice the defendant. Evidence of other crimes may be relevant and admissible to show the sequence of events, which are part of the history of the case. Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (Pa. 1993), cert, denied, 511 U.S. 1115, 128 L.Ed.2d 678, 114 S.Ct. 2123 (1994). Evidence of other criminal acts is also admissible to establish motive or intent. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (Pa. 1978).Commonwealth v. Rizzuto, 777 A.2d 1069, 1079 (Pa. 2001).
As the above-stated law makes clear, and as Respondents point out, Officer Russell's testimony could have been admitted for multiple purposes other than to prove Petitioner's propensity for violence. ECF No. 14 at 9-10. Even Petitioner concedes that “there may have been some probative value” in the evidence, although he argues that the prejudicial effect of its introduction outweighed that value. ECF No. 5 at 21.
Strickland requires that a petitioner demonstrate that he was prejudiced by his trial counsel's deficient performance. This places the burden on him to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Because the evidence could very well have been admitted for one of the permitted purposes set forth above, Petitioner has failed to show that if counsel had objected to the admission of this evidence, it would have been excluded. Thus, he has failed to show that the result of trial would have been different. His failure to show prejudice from counsel's inaction is fatal to his ineffectiveness claim.
The Court acknowledges that counsel may have been able to obtain an instruction limiting the jury's consideration of the evidence to the specific purpose for which it was admitted; however, Petitioner makes no argument that counsel was ineffective for failing to request such an instruction.
Petitioner is not entitled to habeas relief on this ground.
4. Ground Four: Ineffectiveness for interfering with right to testify
Petitioner next asserts that trial counsel was ineffective for erroneously advising Petitioner that if he testified, he could be impeached on the basis of a prior robbery conviction. ECF No. 5 at 22-26. In an effort to overcome the procedural default of this claim, Petitioner asserts PCRA counsel's ineffectiveness in failing to raise this claim, citing Martinez. Id. at 15. As with the prior claim, however, this Court will not resolve the more complex issue of procedural default, because the ineffectiveness claim has no merit, even under a de novo review. See Lambrix, 520 U.S. at 525.
Petitioner asserts that trial counsel's advice was erroneous because his robbery conviction could not be “used against him” because it did not involve “dishonesty or false statement.” ECF No. 5 at 24. This assertion is unsupported by legal authority, which is unsurprising, because it is not an accurate statement of the law. In Pennsylvania, robbery is a crimen falsi offense and a conviction for robbery is admissible for impeachment purposes. Commonwealth v. May, 898 A.2d 559, 569 (2006) (citing Commonwealth v. Yarris, 549 A.2d 513, 521 (Pa. 1988)). Accordingly, there is no merit to the claim of trial counsel's ineffectiveness.
Petitioner is not entitled to habeas relief on this ground.
5. Ground Five: Ineffectiveness for failing to challenge admission of prison letter
Petitioner next asserts that trial counsel was ineffective for failing to object to or otherwise seek exclusion from evidence a letter Petitioner wrote from prison. ECF No. 5 at 27-29. In an effort to overcome the procedural default of this claim, Petitioner asserts PCRA counsel's ineffectiveness in failing to raise this claim, citing Martinez. As with the prior claim, however, this Court will not resolve the more complex issue of procedural default, because the ineffectiveness claim has no merit, even under a de novo review. See Lambrix, 520 U.S. at 525.
Petitioner asserts that the subject letter was written by him, sent to its intended recipient, but returned to the prison because the address on it was unverifiable. ECF No. 5 at 27-28. When it was returned to the prison, the letter was opened, read and confiscated by prison officials. Id.
Petitioner argues that the letter was unlawfully admitted at trial because it was obtained by prison officials in violation of his procedural due process rights, his First Amendment right to reasonable correspondence, and his Fifth Amendment right to remain silent. His arguments are nonsensical and he fails to cite to any legal authority that would require the suppression of the letter. Even assuming arguendo that “prison officials interfered with [Petitioner's] constitutionally protected right to reasonable correspondence with the outside world,” id. at 29, that issue is separate from whether the letter was admissible at Petitioner's criminal trial. He has not shown that the letter was inadmissible; therefore, his claim of trial counsel's ineffectiveness for failing to object to its admission is without merit.
Petitioner is not entitled to habeas relief on this ground.
6. Ground Six: Ineffectiveness for failing to challenge sufficiency of the evidence
Petitioner next asserts that PCRA counsel was ineffective for failing to present a claim that trial counsel and direct appeal counsel were ineffective for failing to challenge the sufficiency of the evidence supporting the crimes of which he was convicted. Id. at 30-35. This claim fails for multiple reasons.
First, Petitioner appears to be challenging PCRA counsel's ineffectiveness itself, not as a means of invoking Martinez. See ECF No. 5 at 15 (Petitioner invoking Martinez for Grounds Two through Five). Petitioner did not have a federal constitutional right to counsel during his PCRA proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). As a result, he cannot obtain habeas relief on a claim that his PCRA counsel was ineffective, an outcome dictated by 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, 501 U.S. at 752-53 (“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.”)
The precise nature of this claim is unclear because Petitioner does not develop at all the ineffectiveness portion thereof, instead he only baldly asserts that “all his attorneys were ineffective for failing to argue and raise” the insufficiency of the evidence supporting his convictions. ECF No. 5 at 30.
To the extent Petitioner intended this claim to apply to trial and direct appeal counsels' ineffectiveness and raised PCRA counsel's ineffectiveness in order to avoid procedural default of his claim (which was not raised in state court), as set forth above, Martinez only concerns default of a claim of trial counsel's ineffectiveness. Thus, the default of any claim of direct appeal counsel's ineffectiveness cannot be overcome through the application of Martinez
As to a claim of trial counsel's ineffectiveness, it is well-settled Pennsylvania law that trial counsel need not challenge the sufficiency of the evidence in the trial court in order to preserve the issue. See Commonwealth v. Orellana, 86 A.3d 877 (Pa. Super. 2014); Pa.R.Crim.P. 606(A). In other words, a failure to raise the claim at the trial level does not waive the claim. Thus, the prejudice stemming from trial counsel's failure to raise the sufficiency of the evidence is dubious. Further, Petitioner's argument in support of the merits of his sufficiency challenge wholly disregards the standard of review for such claims. His principal argument is that the Commonwealth “intentionally suppressed evidence that was material to Petitioner's innocence.” ECF No. 5 at 31. That argument is not relevant to a sufficiency claim, wherein the reviewing court considers only the evidence actually received at trial. See Commonwealth . Houck, 102 A.3d 443, 449 (Pa. Super. 2014) (citations omitted).
In short, this claim of PCRA counsel's ineffectiveness is not cognizable in a federal habeas action and even a cursory review of its underlying merits reveals multiple defects. Petitioner is not entitled to habeas relief on this ground.
It is worth noting that direct appeal counsel did raise a claim that the evidence supporting Petitioner's conviction of conspiracy to commit criminal homicide, which was unsuccessful. ECF No. 14-2 at 1-4. Petitioner fails to address this event.
7. Ground Seven: Ineffectiveness for failing to impeach witnesses
In his final claim, Petitioner asserts that PCRA counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to impeach police and other witnesses with material police reports. ECF No. 5 at 35-37. This claim of PCRA counsel's ineffectiveness, like that in Ground Six, is not cognizable in a federal habeas action. 28 U.S.C. § 2254(i); Coleman, 501 U.S. at 752-53.
To the extent that this claim could be entertained in some form, review would nonetheless be impossible because the claim is insufficiently developed. Therein, Petitioner states that “trial counsel possessed documentary evidence of police report which seriously undermines the police and other witnesses that testified in this case.” ECF No. 5 at 35. Petitioner does not specify which witnesses or which parts of these witnesses' testimony were affected by which parts of the police report. The Court notes that the PCRA court addressed this claim raised in that court by Petitioner pro se and found that Petitioner failed to develop it in any manner to permit meaningful review. The PCRA court explained:
A review of the transcript reveals at least seven different police officers testified at trial. Petitioner has failed to identify which officer's testimony is at issue or what part of his or her testimony was subject to impeachment. The Court is unable to assess the merits of the claim and thus the claim is waived for vagueness.ECF No. 5-1 at 13.
Petitioner has not further developed this claim for this Court's review. Thus, even if it was presented in a cognizable form, it could not entitle Petitioner to habeas relief.
Petitioner is not entitled to habeas relief on this ground.
C. 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). Where 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, jurists of reason would not find it debatable whether Petitioner's claims should be denied for the reasons given herein. Accordingly, no certificate of appealability should issue.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).