Opinion
Civil Action 19-4723
12-29-2020
LAWRENCE CUSTIS, Petitioner, v. ROBERT GILMORE, et al., Respondents.
REPORT & RECOMMENDATION
TIMOTHY R. RICE, U.S. MAGISTRATE JUDGE.
Petitioner Lawrence Custis, a prisoner at the State Correctional Institution-Greene, in Waynesburg, Pennsylvania, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting claims of counsel ineffectiveness and trial court error. I recommend that Custis's petition be denied with prejudice because his claims are noncognizable and/or meritless.
FACTUAL AND PROCEDURAL HISTORY
In July 2013, Custis was charged with the January 2012 murder of Will Street (the “Victim”). See Commonwealth v. Custis, CP-51- CR-0008834-2013, Crim. Dkt. at 2, 5. During Custis's November 2014 trial, the Commonwealth admitted photograph and video footage from a grocery store near the crime scene that showed Custis in the area around the time of the crime. N.T. 11/4/2014 at 58-59, 127, 133, 164-65; N.T. 11/5/2014 at 124, 127-32. Shantel Hill, a longtime acquaintance of Custis, testified that she spoke to Custis near the crime scene before the murder. Id. at 123-24. Afterwards, Hill heard three gunshots, then turned around to see the Victim on the ground and Custis walking away from him. Id. at 124-25. Gerald Harvey, an acquaintance of Custis and the Victim, testified that immediately after the murder, Custis said he killed the Victim because “[the Victim's] brother gave him some bad pills and he couldn't get to [the Victim's] brother.” Id. at 163.
The Commonwealth also called Daniel Scott as a witness because in April 2012, Scott told police that he “saw the guy who did the shooting, ” and the shooter was “a black guy, five-nine to five-eleven wearing a grey jacket with stripes on the sleeves and ear phones.” N.T. 11/5/2014 at 10-11. Scott later identified a photograph of Custis as the shooter. Id. at 12. At trial, however, Scott contradicted his police statement, testifying he did not see the shooting and said otherwise in his police statement after multiple hours of questioning. Id. at 5-9, 13.
On November 7, 2014, the jury found Custis guilty of first-degree murder, possession of instruments of crime, and carrying a firearm on Philadelphia's public streets. See Crim Dkt. at 4. On the same day, the trial court sentenced Custis to life imprisonment. See id. at 4, 9. In May 2016, the Superior Court affirmed, and Custis did not seek Pennsylvania Supreme Court review. See Crim. Dkt. at 11; 5/6/19 Super. Ct. Op. at 4.
In May 2017, Custis filed a pro se petition pursuant to Pennsylvania's Post-Conviction Relief Act, 41 Pa. C.S. § 9541 et. seq. (“PCRA”). See Crim. Dkt. at 11. The PCRA court appointed counsel, who later sought to withdraw because he believed Custis's claims lacked merit. Id. at 12; see also Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (allowing counsel to seek to withdraw by filing a letter explaining his review of the case and why he believes petitioner's claims lack merit). In May 2018, the court dismissed the PCRA petition. Id. In May 2019, the Superior Court of Pennsylvania affirmed, and in October 2019, the Pennsylvania Supreme Court denied review. Id. at 13.
On October 4, 2019, Custis filed his timely habeas petition. Hab. Pet. (doc. 1) at 19. On September 21, 2020, the Commonwealth responded. Resp. (doc. 11). On October 7, 2020, I filed a Report and Recommendation (doc. 14) to dismiss Custis's case with prejudice. However, on October 14, 2020, Custis requested time to reply to the Commonwealth's response. 10/14/20 Letter (doc. 16). On October 15, 2020, the Honorable Edward G. Smith vacated my Report and Recommendation and ordered Custis to reply by December 14, 2020. Order (doc. 17). Custis has not replied.
DISCUSSION
I. Failure to Request a Kloiber Instruction
Custis argues trial counsel was ineffective for failing to request an instruction cautioning the jury about Scott's identification testimony. See Commonwealth v. Kloiber, 106 A.2d 820, 826-27 (Pa. 1954) (“where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution”).
Custis raised this claim in his PCRA petition and the Superior Court denied it as meritless, finding a Kloiber instruction was unnecessary because “Scott did not actually identify [Custis] as the shooter at trial and he claimed that he did not witness the shooting.” 5/6/19 Super. Ct. Op. at 13. Because “a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States, ” it is “not in the province of a federal habeas court to re-examine state-court determinations on state-law questions, ” such as whether the Kloiber jury instruction applied. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, as the Superior Court determined, as a matter of state law, that a Kloiber instruction was not applicable, trial counsel could not have been ineffective for failing to request such an instruction. See Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) (petitioner could not demonstrate that counsel was deficient for not objecting to jury instruction where state court determined that instruction comported with state law); United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (“There can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument.”). This issue is meritless.
II. PCRA Counsel's Finley Letter
Custis argues PCRA counsel was ineffective for moving for withdraw. However, because there is no constitutional right to post-conviction counsel, this claim is noncognizable. See 28 U.S.C. 2254(i) (“the ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under Section 2254.”); Martel v. Clair, 565 U.S. 648, 662 n.3 (2012) (“§ 2254(i) prohibits a court from granting substantive habeas relief on the basis of lawyer's ineffectiveness in post-conviction proceedings”).
This claim is also procedurally defaulted because Custis failed to raise it before the state courts and he no longer has the right to raise the claim. See 28 U.S.C. § 2254(b)(1) (before seeking habeas relief, a petitioner must exhaust state court remedies); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (where a petitioner fails to exhaust state remedies, and the state courts would now find the claims procedurally barred, then the federal habeas claim is procedurally defaulted).
III. Denial of Defense Counsel's Motion for Mistrial
Custis argues the trial court erred in denying defense counsel's motion for mistrial based on testimony from the Victim's cousin, Kevin Johnson. Johnson testified that three weeks before the murder, he witnessed Custis tell the Victim, “I should have shot you last month.” N.T. 11/4/14 at 87-88. Defense counsel objected and moved for a mistrial, alleging this information was never turned over during discovery. Id. at 89. The Commonwealth stated that it was unaware of Johnson's testimony. Id. at 90-91. It noted that Johnson had reviewed his police statement the day before his testimony and Johnson did not make any changes or provide new information. Id. The court denied the motion for mistrial, accepting the Commonwealth's assertion that it did not know about the statement prior to trial. Id. at 90-96. On direct appeal, the Superior Court affirmed, “concluding that the court did not abuse its discretion by denying Custis the extreme remedy of a mistrial.” 5/4/16 Super. Ct. Op. at 7.
The state courts' decisions were not contrary to Supreme Court law or based on an unreasonable determination considering the facts presented. See 28 U.S.C. § 2254(d) (habeas corpus should not be granted unless state court decision (1) 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”); Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (§ 2254(d) is a “difficult to meet and highly deferential standard . . . which demands that state-court decisions be given the benefit of the doubt”); Strohl v. Grace, 354 Fed. App'x. 650, 654 (3d Cir. 2009) (“The state court's decision [that the prosecution did not suppress hospital records not in its possession] was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court.”).
Even if the Commonwealth knew Johnson's testimony, it was not required to disclose it because the testimony was not favorable to Custis. Brady v. Maryland, 373 U.S. 83, 87 (1963) (prosecution must disclose evidence that is favorable to the defense and material either to guilt or to punishment).
This claim is meritless.
R E C O M M E N D A T I O N
AND NOW, on December 29, 2020, it is respectfully recommended that the petition for writ of habeas corpus be DENIED with prejudice. It is further recommended that there is no probable cause to issue a certificate of appealability. Petitioner may file objections to this Report and Recommendation within fourteen days after being served with a copy. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007).
Because jurists of reason would not debate my recommended procedural or substantive dispositions of the petitioner's claims, no certificate of appealability should be granted. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).