Opinion
2:18-cv-70
12-06-2018
JASON DAVIS JG-3518, Petitioner, v. KATHY BRITTAIN, et al., Respondents.
REPORT AND RECOMMENDATION
ROBERT C. MITCHELL, UNITED STATES MAGISTRATE JUDGE
I. Recommendation:
It is respectfully recommended that the petition of Jason Davis for a writ of habeas corpus (ECF.No.4) be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
II. Report:
Jason Davis, an inmate at the State Correctional Institution-Frackville has presented a petition for a writ of habeas corpus. Davis is presently serving a twenty-seven to fifty-four year period of incarceration to be followed by a twenty-seven year period of probation following his conviction by the court of burglary, conspiracy, criminal trespass, theft, receiving stolen property and criminal mischief at Nos. CP-63-CR-345, 346, 347, 348, 349, 350, 351-2009 in the Court of Common Pleas of Washington County, Pennsylvania. This sentence was imposed on October 28, 2009.
See: Petition at ¶¶ 1-6.
An appeal was taken to the Superior Court in which the issues presented were:
I. Whether the evidence was insufficient as a matter of law to convict [Davis] on the charges, including burglary and criminal conspiracy?
II. Whether the verdict was against the weight of the evidence in the conviction of [Davis] of the charges, including burglary and criminal conspiracy?
III. Whether the trial court erred/abused its discretion in allowing the admission of hearsay evidence of Jesika Gray [“Gray”], by Trooper Vanderaar, and other inadmissible evidence at the trial of this matter? Whether the trial court erred/abused [its discretion] in allowing the admission of [the] statements of [Gray} and other inadmissible evidence at the trial of this matter, which were coerced and which resulted from the illegal search, seizure and detention of [Davis] and witness Gray, and without probable cause under the circumstances?
IV. Whether the trial court erred/abused its discretion in sentencing [Davis] contrary to Pennsylvania law and the Guidelines under the circumstances?
V. Whether trial counsel was ineffective in the representation of [Davis] generally and in failing to obtain a continuance in order to properly prepare for trial, to timely obtain complete discovery materials, a transcript of the preliminary hearing, and in failing to present an alibi defense and to call witnesses on behalf of [Davis] including alibi witnesses, and in failing to file a suppression motion and habeas corpus motion as instructed by [Davis] under the circumstances?
See: State Court Records Ex. 54.
On December 16, 2011, the judgment of sentence was affirmed. Allowance of appeal was denied on April 17, 2012.
Id.
Id. at Ex. 52.
A post-conviction petition was filed on May 31, 2012. That petition was dismissed on June 10, 2014. Petitioner alleges that he had not received notice of the dismissal and as a result his rights were reinstated. Davis filed an amended post-conviction petition which was denied on June 10, 2014. An appeal was filed in which the following issues were raised:
Id. at Ex. 73.
1. Were trial and appellate counsel ineffective for failing to challenge the illegal stop of Appellant's motor vehicle, the subsequent seizure of his person, and the incriminating statements made by Jesika Gray as a result of this illegal detention?
2. Was trial counsel ineffective for failing to interview and subpoena witnesses to aid in the Appellant's defense, as he specifically requested counsel to do?
3. Was the evidence insufficient to support a conviction for the offense of burglary?
4. Was trial counsel ineffective for failing to object to the hearsay testimony of Trooper Vanderaar, as it was offered in evidence to prove the truth of the matter asserted?
5. Did the PCRA court abdicate [its] responsibility in conducting an independent review of appointed counsel's Finley letter?
6. Did the Appellant enter an unknowing and unlawful jury trial waiver when it was unknown to him at the time of the waiver that [the trial judge] was engaging in criminal activity, while his sitting judge and under the influence of illegal narcotics? [sic].
7. Was the Appellant denied his constitutional right to a trial before a fair and impartial tribunal when it [was] discovered that [the trial judge] was stealing narcotics from evidence and using the same during the period of time that he presided over the Appellant's bench trial?
Id. at Ex. 93 (unnumbered).
Davis now comes before this court seeking habeas corpus relief, and alleges in support thereof:
The Commonwealth concedes that the instant petition is timely, 28 U.S.C. § 2244(d)(1) (Answer at ¶ 24).
1. Denial of Due Process: Following trial, the court pleaded guilty to stealing and using illegal narcotics during the time in which he [p]resided over petitioner's bench trial. As a result, petitioner[] did not knowingly waive trial by jury.
2. Insufficient evidence.
3. Verdict against weight of evidence. The only evidence supporting the verdict is the hearsay of an alleged coconspirator. That evidence raises nothing but suspicion.
4. Ineffective assistance of counsel: failure to challenge the illegal stop of petitioner's motor vehicle which produced incriminating statements of coconspirator. Petitioner's vehicle was stopped without probable cause and both occupants seized. That illegal detention produced the only inculpatory evidence, petitioner's alleged accomplice.
See: Petition at ¶ 12.
The background to Davis' convictions is set forth in the July 8, 2011 opinion of the trial court:
One of the victims was Thomas Jerko, whose home was burglarized November 14, 2008. Mr. Jerko and his wife came home, and as they pulled onto their street, they noticed a Lincoln Continental parked across the street. When they got into their home, the Jerkos discovered that they had been robbed. Mr. Jerko immediately went outside, but the Lincoln was already gone. Mr. Jerko told police that there was a small man or a woman sitting in the car, and that he would be able to identify the car if he saw it again.
In December 2008, Trooper David Vanderaar became aware of several daytime burglaries which occurred in the Nottingham Township area. Tpr. Vanderaar then met with police from Nottingham and the surrounding jurisdictions to discuss these burglaries. After looking at various reports, the police connected several reports that had multiple things in common, such as the time of day when the crimes were committed and what items were stolen. These cases all occurred during the day and involved stolen handguns and jewelry.
On December 29, 2008, a Lincoln Continental similar to the one described by Mr. Jerko was seen in the Nottingham area. Police made contact with the vehicle and asked the two occupants to come to the police barracks. The occupants were Jesika Gray and Jason Davis. Mr. Jerko then came to the station and positively identified the Lincoln as the car he had seen outside his home.
While Mr. Jerko identified the car, Tpr. Vanderaar interviewed Jesika Gray. Ms. Gray changed her story a number of times during the interview. When Tpr. Vanderaar confronted her with the inconsistencies in her statement, she said that she would cooperate with the investigation, at which time she was read her Miranda rights.
At trial, Tpr. Vanderaar testified at length to the statements that Ms. Gray gave to him. At no point did Defendant's attorney object. Indeed, counsel specifically noted that he would not object to the testimony [in light of the fact that Ms. Gray was going to be called as a prosecution witness] … Tpr. Vanderaar then testified to the statement made by Ms. Gray. His testimony was then corroborated by Ms. Gray, who testified later that day…
The next day, Ms. Gray went with Tpr. Vanderaar on a ride-along to point various homes that were robbed. Tpr. Vanderaar drove, and Ms. Gray directed him to various homes. To test her veracity, Tpr.
Vanderaar would occasionally stop in front of a random home and ask her if it was one of the homes she assisted Defendant in robbing, and she always denied that those homes were involved. Throughout the day and after a second ride-along, Ms. Gray identified nine homes that she robbed with Defendant. She was able to recall what was taken from four of the homes…
At the conclusion of testimony … the Court then found Defendant guilty of nine counts of Burglary, nine counts of Criminal Conspiracy to Commit Burglary, nine counts of Criminal Trespass, nine counts of Theft, nine counts of Receiving Stolen Property, four counts of Criminal Conspiracy to Commit Theft, and one count of Criminal Mischief (footnotes and record references omitted).
See: Exhibit 44.
Because the issues which the petitioner seeks to raise here have been previously presented to the courts of the Commonwealth, they are properly before this Court for consideration. 28 U.S.C. § 2254(b)(1)(A).
Davis' first issue is that he was denied due process as a result of the trial court subsequently pleading guilty to stealing and the illegal use of narcotics during the time in which he presided over petitioner's non-jury trial. In its answer, the Commonwealth stipulated that petitioner's trial judge pled guilty to theft by unlawful taking, obstructing administration of law, and misapplication of entrusted property during a time period subsequent to petitioner's trial and conviction. However, the Commonwealth contends that the petitioner is unable to demonstrate that the trial judge was under the influence of cocaine during his criminal prosecution. Citing the opinion of the post-conviction court, the Superior Court wrote:
See: Answer at ¶¶ 35-39.
Id. at ¶ 41.
Appellant's trial judge pled guilty to theft by unlawful taking, obstruction of the administration of law and misappropriation of entrusted property. The [Appellant] makes no allegation of a nexus between [the judge's] illegal activity and the case at bar. No. allegation was made that [the trial judge] misappropriated anything in this case or how [the judge] would have an interest in the outcome of this case. In the prosecution of [the trial judge], there was no allegation or inference that he was under the influence of drugs while he was presiding as a judge in any case. Without any nexus between the judge's conduct and this case, [Appellant's] claim fails.
See: Exhibit 93 at p.9.
Other than the bald allegation that “the court pleaded guilty to stealing and using illegal narcotics during the time in which he presided over petitioner's bench trial” Davis has failed to set forth any basis upon which one might conclude that as a result he was denied due process. This conclusion is further bolstered by the fact that the petitioner's case was assigned to the judge on February 24, 2009 and sentence was imposed on October 28, 2009. The judge was assigned petitioner's post-conviction petition on May 31, 2012 but it was disposed of by another member of the court on June 10, 2104. The Commonwealth has stipulated that the trial judge was convicted of offenses occurring during the period between March 1, 2011 and May 9, 2012. Thus, at no time is there any record evidence suggesting that the trial judge was convicted of any offense committed during the period in which he presided over the petitioner's prosecution other than its July 8, 2011 response to matters raised in the direct appeal. For this reason, his claim of not knowingly waiving his rights to a jury trial as a result of the judge's conduct is meritless.
See: CP-63-CR-345-2009.
See: Answer at ¶ 39.
Davis' second and third allegations challenge the sufficiency of the evidence to sustain his conviction and allege that the verdict was against the weight of the evidence. When a challenge to the sufficiency of the evidence is raised, the issue before a federal habeas corpus court is whether based on the evidence presented any rational fact finder could determine guilt beyond a reasonable doubt. Coleman v. Johnson, 566 U.S. 650. 656 (2012); Jackson v. Virginia, 443 U.S. 307, 319 (1979). As set forth in the factual recitation above, the evidence was more than sufficient to sustain the conviction, nor is there any support for the contention that the verdict was against the weight of the evidence. Thus, petitioner's second and third claims are likewise without merit and do not provide a basis for relief here.
See: Exhibit 39 at p.6, Superior Court opinion on direct appeal holding that the weight of the evidence argument was waived.
Davis' final argument is that counsel was ineffective for failing to challenge the stop of petitioner's vehicle which resulted in incriminating statements from his codefendant. According to petitioner the later statements were “fruits of the poisonous tree.”
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court explained that there are two components to demonstrating a violation of the right to the effective assistance of counsel. First, the petitioner must show that counsel's performance was deficient. This requires showing that "counsel's representation fell below an objective standard of reasonableness." Id. at 688; see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000). Second, under Strickland, the defendant must show that he was prejudiced by the deficient performance. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To establish prejudice, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Strickland test is conjunctive and a habeas petitioner must establish both the deficiency in performance prong and the prejudice prong. See Strickland, 466 U.S. at 687; Rainey v. Varner, 603 F.3d 189, 197 (3d Cir.2010) cert. denied 131 S.Ct. 1673 (2011). As a result, if a petitioner fails on either prong, he loses. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). As previously noted:
On December 29, 2008, a Lincoln Continental similar to the one described by [victim] Jerko was seen in the Nottingham area. Police made contact with the vehicle and asked the two occupants to come to the police barracks. The occupants were Jesika Gray and Jason Davis. [Victim] Jerko then came to the station and positively identified the Lincoln as the car he had seen outside his home.
While [victim] Jerko identified the car, Tpr. Vanderaar interviewed Jesika Gray. Ms. Gray changed her story a number of time during the interview. When Tpr. Vanderaar confronted her with the inconsistencies in her statement, she said that she would cooperate with the investigation…
See: Exhibit 44 at p.2.
While the vehicle was stopped on reasonable suspicion, no evidence was seized from the vehicle, but rather it was Gray's testimony implicating the petitioner which formed the basis of the prosecution's case and he has no standing to assert Gray's rights. Byrd v. United States, 138 S.Ct. 1518, 1526 (2018). While defense counsel acknowledged that permitting Trp. Vanderaar to testify as to what Gray related to him was hearsay, he further stated that he had no intention to object to that testimony since Gray herself was being called as a prosecution witness. Indeed she did testify at length as defense counsel had been advised and was subject to cross examination. While the Trooper's testimony concerning Gray's statements would be inadmissible, United States v. Lafferty, 503 F.3d 293 (3d Cir. 2007), in the present case an objection would not have served any purpose since as noted Gray was the prosecution's primary witness. For this reason, counsel cannot be deemed to have been ineffective in failing to raise a meritless claim. Real v. Shannon, 600 F.3d 302, 310 (3d Cir. 2010).
See: TT. at pp.13-15.
See: TT. at pp. 154-224.
Because the petitioner has failed to demonstrate that his conviction was secured in any manner contrary to the laws of the United States as determined by the Supreme Court, nor that his conviction was based on an improper application of those decisions, he is not entitled to relief here. Accordingly, it is recommended that the petition of Jason Davis for a writ of habeas corpus be dismissed, and because reasonable jurists could not conclude that a basis to appeal exists, that a certificate of appealability be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections within fourteen (14) days of this date and mailing them to United States District Court, 700 Grant Street, Pittsburgh PA 15219-1957. Failure to file timely objections will waive the right to appeal.