Opinion
1:20-cv-00339 (Erie)
08-11-2021
PATRICK FORTNEY, Petitioner v. LYNEAL WAINWRIGHT, ET AL., Defendants
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS ECF NO. 1
RICHARD A. LANZILLO, United States Magistrate Judge
Pending before the Court is a Petition for a Writ of Habeas Corpus filed by state prisoner Patrick Fortney Jr., (“Fortney”) under 28 U.S.C. § 2254. ECF No. I. He is challenging the judgment of sentence imposed on him by the Court of Common Pleas of Erie County, Pennsylvania at its criminal docket number CP-25-CR-4128-2016. The Petition has been referred to the undersigned for a Report and Recommendation. For the reasons that follow, it is recommended that the Petition be DENIED. And because reasonable jurists would not find this disposition debatable, a certificate of appealability should also be DENIED.
When Fortney's petition was imported into the Court's CM/ECF system, a technical error during scanning resulted in several missing and unordered pages. To correct that error, the Petition was re-scanned and re-docketed. For clarity, the Court will cite to pages and paragraphs of the re-scanned document, ECF No. 3, when discussing Fortney's Petition.
I. Relevant Factual and Procedural Background
The facts and procedural history were obtained from Fortney's habeas petition, the Court of Common Pleas criminal docket sheets for Petitioner's underlying conviction in Commonwealth a Fortney, No. CP-25-CR-0001495 (Erie Cnty. Com. Pl.), available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-25-CR-0004128-2016&dnh=CS2AlsgjEZ28%2Fbt3zu42ig%3D%3D [hereinafter “State Court Docket”], and from the Pennsylvania Superior Court's docket in Commonwealth v. Fortney, 1393 WDA 2017, available at https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=1393%20WDA%202017&dnh=FYIyCmUwFF aRhR Vklsgy0w%3D %3D [hereinafter “Superior Court Docket”]. Where relevant, the Pennsylvania Superior Court's decision will also be cited.
Incorporated into the Superior Court's Memorandum denying Fortney's direct appeal was the trial judge's Statement Pursuant to Pa. R.A.P. 1925(a). The Rule 1925(a) Statement provides background and procedural history relevant to the instant petition, including the following:
This Rule requires, with exceptions, that “the judge who entered the order giving rise to the notice of appeal... file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.” Rule 1925(b), in turn, requires the appellant, when directed by the trial judge, to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal.” See Pa. R.A.P. 1925(a)-(b).
On March 7, 9, 16, 25, and 28, 2016 a string of daytime burglaries occurred certain (sic) rural areas of Erie County near the Ohio border. The burglaries all bore loosely overlapping similarities with each other and with a sixth burglary committed on Monday, March 28, 2016, in Ashtabula County, Ohio. Appellant and his co-defendant were apprehended in the Ohio burglary, to which they later pled guilty. All of the burglaries involved at least two or more of the following elements; (1) a small red sedan was observed at or near the scene of the crime; (2) two Caucasian men were observed at or near the crime scenes; (3) one or both of the men had tattoos on their forearms; (4) the crimes were committed on a Monday, Wednesday, or Friday; (5) the crimes were committed during the daytime, usually before noon or 1:00 p.m. N.T. Trial, 6/22/17, (Day 1) 50-168; (6) the burglarized properties were in geographically close, rural areas near the Pennsylvania/Ohio border; (7) all of the burglaries occurred within a three-week period in March of 2016.
Furthermore, law enforcement testified at trial that the tire tread prints from the red VW Jetta driven by Appellant during the Ashtabula, Ohio burglary was (sic) similar to tire tread prints found at the Cafardi residence. N.T. (Day 2) at 61. Trooper Youngberg also testified that sneaker prints found at the Cafardi Residence appeared similar to the distinctive tread on Appellant's shoes, Nike Air Jordans. N.T. (Day 2) at 59.
Appellant's girlfriend, Yvette Santiago, turned over a stolen diamond bracelet to the police. Ms. Santiago credibly testified that Appellant gave her the diamond bracelet. N.T. Trial, 6/23/17, (Day 2) at 4-21. Other stolen items were recovered from Ashtabula County pawn shops, with the pawn shop receipt made out to the co-defendant's sister.. .or co-defendant's girlfriend.. .N.T. Trial, 6/23/17, (Day 2) at 1-33. Notably, (the co-defendant's sister) admitted during cross-examination that she received the stolen cameras found at her residence from both Patrick Fortney and Walter Sterling. N.T. Trial (Day 2) at 185. Finally, Appellant's girlfriend, Yvette Santiago, testified that she would routinely let Appellant drive her car, a 2008
Volkswagen Jetta, a small red four door sedan, on Monday, Wednesday, and Friday mornings when she was at work. He would join her regularly for lunch between 12:30 and 1:00 p.m. N.T. Trial (Day 2) at 8-13, 20.Commonwealth v. Fortney, 2018 WL 5118345, at *1 (Pa. Supr. Ct. Oct. 22, 2018). The Superior Court summarized farther:
[Fortney was convicted of] four counts of burglary, which occurred at four separate residences over a period of March 7, 2016, through March 28, 2016. The Commonwealth's case was largely circumstantial and relied, in part on the admission of a separate burglary that occurred in Ashtabula County in Ohio, just over the Pennsylvania border.Id. Fortney was sentenced to ninety to one-hundred and eighty-months incarceration. Id.
Fortney appealed to the Pennsylvania Superior Court and raised two issues:
Whether the Commonwealth failed to present sufficient evidence to find the Appellant guilty beyond a reasonable doubt of the crimes charged; and
Whether the Trial Court committed an abuse of discretion and/or error of law when it permitted the Commonwealth to introduce evidence of other crimes or bad acts pursuant to Pa. R. Evid. 404(b).ECF No. 14-6, p. 6 (Fortney's Superior Court brief). In affirming his conviction, the Superior Court adopted the reasoning set out by the trial judge in his Rule 1925(a) Statement. Specifically, the Superior Court noted that “the evidence was sufficient to sustain the jury's convictions ... the Commonwealth built its case piece by piece. Once arranged by the finder of fact, however, the evidentiary pieces created a clear picture of [Fortney's] absolute complicity in each and every one of the four burglaries of which he was convicted.” Fortney, 2018 WL 5118345 at *1. In rejecting Fortney's argument that there was no evidence placing him inside the victimized residences, the Superior Court noted the “direct evidence implicating” Fortney in the crimes, notably that Fortney's girlfriend testified against him, that he gave her a diamond bracelet that was identified as stolen from one of the homes; and that other stolen items were recovered from pawn shops in Ashtabula County, receipts for which were made out to the sister of Fortney's co-defendant, who testified that both Fortney and his co-defendant gave her those items to pawn. Id. Recognizing that the Commonwealth may prove its case with circumstantial evidence and that-as the verdict winner- the Commonwealth received the benefit of all reasonable inferences drawn from that evidence, the Superior Court concluded that Fortney's sufficiency claim failed. Id. As to the second issue regarding the admission of evidence of other bad acts, the Superior Court concluded that the trial court did not abuse its discretion. Id.
Fortney filed a petition for allowance of appeal with the Supreme Court of Pennsylvania on November 16, 2018. Superior Court Docket at p. 3. The Supreme Court denied his petition and affirmed Fortney's judgment of sentence on August 20. 2019. Id; see also Commonwealth v. Fortney, 217 A.3d 207 (Table) (Pa. Aug. 20, 2019). Fortney did not file a petition for Writ of Certiorari with the United States Supreme Court.
B. Federal Proceedings
Fortney filed the instant Petition for habeas corpus relief with this Court on November 6, 2020. See ECF No. 2, p. 16. He also supplemented his Petition with a document entitled “Introduction to Habeas Action and Request for the Appointment of Counsel.” ECF No. 2. By previous order, this Court denied Fortney's motion for appointment of counsel as there is no constitutional right to counsel in habeas proceedings. See ECF No. 5 (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). The Respondents filed an Answer to Fortney's Petition on May 13, 2021, and Fortney has filed a Reply. See ECF Nos. 14, 20. The Petition is now ripe for disposition.
II. Petitioner's Claims
Fortney's Petition raises two grounds for relief. First, he contends that there was insufficient evidence to support any of his convictions under the 5th and 14th Amendments (Ground One). ECF No. 3, p. 6. Fortney's second ground for relief asserts a claim that the state court improperly allowed the introduction of prior bad acts, in violation of Pennsylvania Rule of Evidence 404(b) as well as the 5th and the 14th Amendments (Ground Two). Id., at p. 8. He contends that all of these claims were properly exhausted in state court. Id., generally.
The Respondents disagree. They argue that Fortney's petition is untimely and, in the alternative, meridess. See generally, ECF No. 14.
III. The Habeas Corpus Legal Standard
A. Jurisdiction
The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state-court judgment. The statute permits a federal court to grant a state prisoner a 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). Errors of state law are not cognizable. Id; see, e.g, Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
It is Fortney's burden to prove that he is entitled to the writ. 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 (for example, he must overcome the burden imposed upon him by the standard of review set forth at 28 U.S.C. § 2254(d)), but, ultimately, Fortney cannot receive federal habeas relief unless he demonstrates 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. Exhaustion and Procedural Default
The “exhaustion doctrine” requires that a state prisoner raise his federal constitutional claims in state court through the proper procedures before he litigates them in a federal habeas petition. See, e.g, Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It 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.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). It “is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts[.]” O'Sullivan v, Boerckel, 526 U.S. 838, 845 (1999). Importantly, a petitioner must have “invoke[d] one complete round of the State's established appellate review process [,]” in order to satisfy the exhaustion requirement. O'Sullivan, 526 U.S. at 845. 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, eg., Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
The doctrine of procedural default, like the doctrine of exhaustion, is “grounded in concerns of comity and federalism.” Coleman, 501 U.S. at 730. To succinctly summarize this doctrine, it provides that a Pennsylvania state prisoner in a non-capital case defaults a federal habeas claim if he: (a) failed to present it to the Superior Court and cannot do so now because the state courts would decline to address the claims on the merits since state procedural rules (such as, for example, the PCRA's one-year statute of limitations) bar such consideration; or (b) failed to comply with a state procedural rule when he presented the claim to the state court, and for that reason, the Superior Court declined to address the federal claim on the merits. See, eg., Edwards v. Carpenter, 529 U.S. 446, 451 (2000); O'Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting) (describing the history of the procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72 (1977); Lines v. Larkins, 208 F.3d 153, 162-69 (3d Cir. 2000).
When a claim is procedurally defaulted, a petitioner can overcome the default if he demonstrates “cause for the default and actual prejudice as a result of the alleged violation of federal law[.]” Coleman, 501 U.S. at 750. “'Cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him[.]” Id. at 753 (emphasis in original). It is a petitioner's burden to prove “cause” and “prejudice” to overcome the default of a claim. Id. at 750.
A petitioner may also overcome his default by demonstrating “that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. This means that a procedural default may be excused if the petitioner presents evidence of “actual innocence” that is “so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error[.]” Schlup v. Delo, 513 U.S. 298, 316 (1995). In only the extraordinary case will a petitioner be able to establish a “fundamental miscarriage of justice.”
C. Standard of Review
In 1996, Congress made important amendments to the federal habeas statutes with the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Among other things, AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bed v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotations and citation omitted).
A finding of fact made by a state court always has been afforded considerable deference in a federal habeas proceeding. AEDPA continues that deference and mandates that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.
AEDPA also put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d). It applies “to any claim that was adjudicated on the merits” by the Superior Court 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).
(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). For the purposes of § 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when the state court (here, the Superior 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).
Section 2254(d)(1) applies to questions of law and mixed questions of law and fact. In applying it, this Court's first task is to ascertain what law falls within the scope of the “clearly established Federal law, as determined by the Supreme Court of the United States [,]” 28 U.S.C. § 2254(d)(1). It is “'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'” Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).
Once the “clearly established Federal law, as determined by the Supreme Court of the United States,” is ascertained, this Court must determine whether the Superior Court's adjudication of the claim at issue was “contrary to” that law. Williams, 529 U.S. at 404-05 (explaining that the “contrary to” and “unreasonable application of' clauses of § 2254(d)(1) have independent meaning). A state-court adjudication is “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States” § 2254(d)(1), “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” Williams, 529 U.S. at 405, or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent,” Id. at 406. A “run-of-the-mill” state-court adjudication applying the correct legal rule from Supreme Court decisions to the facts of a particular case will not be “contrary to” Supreme Court precedent. Williams, 529 U.S. at 406. Therefore, the issue in most federal habeas cases is whether the adjudication by the state court survives review under § 2254(d) (1)'s “unreasonable application” clause.
“A state court decision is an 'unreasonable application of federal law' if the state court 'identifies the correct governing legal principle,' but 'unreasonably applies that principle to the facts of the prisoner's case.'” Dennis, 834 F.3d at 281 (quoting Williams, 529 U.S. at 413). To satisfy his burden under this provision of AEDPA's standard of review, Petitioner must do more than convince this Court that the Superior Court's decision was incorrect. Id. He must show that it '“was objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409) (emphasis added by Court of Appeals). This means that Petitioner must demonstrate that the Superior Court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103 (emphasis added). As the Supreme Court noted:
It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See Lockyer, supra, at 75, 123 S.Ct. 1166. If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664,116 S.Ct. 2333,135 L.Ed.2d 827 (1996) (discussing AEDPA's “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further.Id. at 102.
The standard of review set forth at § 2254(d)(2) applies when a petitioner “challenges the factual basis for” the state court's “decision rejecting a claim[.]” Hurt v. Titlow, 571 U.S. 12, 18 (2013). “[A] state court decision is based on an 'unreasonable determination of the facts' if the state court's factual findings are 'objectively unreasonable in light of the evidence presented in the state court proceeding,' which requires review of whether there was sufficient evidence to support the state court's factual findings.” Dennis, 834 F.3d at 281 (quoting § 2254(d)(2) and citing Miller-Pl v. Cockrell, 537 U.S. 322, 340 (2003)). '''[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'” Titlow, 571 U.S. at 18 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)); see Rise v. Collins, 546 U.S. 333, 342 (2006) (reversing court of appeals' decision because ''[t]he panel majority's attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AEDPA's requirements for granting a writ of habeas corpus.”). Thus, "if '[r]easonable minds reviewing the record might disagree' about the finding in question, 'on habeas review that does not suffice to supersede'” the state court's adjudication. Wood, 558 U.S at 301 (quoting Collins, 546 U.S. at 341-42).
In those instances in which the Superior Court did not adjudicate one of Fortney's constitutional claims on the merits, this Court must determine whether that was because he procedurally defaulted it because he did not raise it on direct appeal or on appeal in his PCRA proceeding. Only if the claim is not defaulted, or if Fortney has established grounds to excuse his default, would this Court review a claim de novo. See, e.g., Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
D. Timeliness
Finally, before the Court can address the merits of Fortney's petition, it must determine whether it was timely filed. Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019). Pursuant to AEDPA, a state prisoner must file his federal habeas claims within one year of the date his judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). Because he did not seek review from the United States Supreme Court on direct appeal and did not file a petition seeking post-conviction relief, Fortney's sentence became final for purposes of the one-year federal habeas statute of limitations on November 18, 2019, which was ninety days after the Supreme Court of Pennsylvania denied him permission for allowance of appeal. See 28 U.S.C. § 2244(d)(1)(A) (the one-year federal limitations period generally begins on the date the petitioner's judgment of sentence became final “by the conclusion of direct review or the expiration of the time for seeking such review”); U.S. Sup. Ct. R. 13(1). See also Burno v. Wetzel, 2021 WL 3288654, at *4 (E.D. Pa. Aug. 2, 2021). Thus, any petition for habeas corpus relief was due on or before November 18, 2020.
IV. Discussion and Analysis
A. The Court should conclude that Fortney's petition has been timely filed.
Respondents assert that Fortney's petition is not timely, pointing out that it was filed on December 1, 2020, the day it appeared on this Court's docket. See ECF No. 14, p. 3. But the federal “prisoner mailbox rule” provides that a pro se prisoner's habeas petition is deemed filed on the date he signed it and “delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 275-76 (1988); see also Fenton v. Clark, 2021 WL 681039, at *4 (W.D. Pa. Feb. 22, 2021); Grier v. Dalbalso, 2020 WL 3064841, at *6 (W.D. Pa. June 9, 2020). Here, Fortney is deemed to have filed his Petition on November 6, 2020, the day he signed it, which was well before the one-year time period for doing so expired on November 18, 2020. Thus, the Court should conclude that his petition was timely filed.
B. The Court should conclude that Fortney's first claim has been exhausted in the state court; but deny relief.
The Court should also conclude that Fortney has exhausted his first claim for relief in state court. This ground for relief, sufficiency of the evidence, was raised in his brief on direct appeal and thus, has been “fairly presented” to the state courts. See, e.g., See Nara v. Frank, 488 F.3d 188, 198-99 (3d Cir. 2007) (holding that a federal claim is fairly presented to the state courts where the petitioner has raised “the same factual and legal basis for the claim to the state courts”); Williams v. Clark, 2020 WL 5407915, at *5 (W.D. Pa. Sept. 9, 2020), motion for relief from judgment denied, 2021 WL 3022040 (W.D.Pa. July 16, 2021).
Fortney first contends he is in entitied to habeas relief by challenging the sufficiency of the evidence supporting his state court convictions. ECF No. 3, p. 6. He asserts that the Commonwealth introduced insufficient evidence to support the trial court's verdicts. Id. The Superior Court denied this claim on the merits. Commonwealth v. Fortney, 2018 WL 5118345, at *1. The Superior Court noted that although the evidence against Fortney was “largely circumstantial,” it adopted the trial judge's “twenty-nine page opinion,” which provided a detailed summary of the evidence the Commonwealth introduced at the trial and set forth the standard for analyzing a claim challenging the sufficiency of the evidence. Id. The Superior Court agreed with the Commonwealth that, although there was no direct eyewitness testimony or any forensic evidence that Fortney was present at the scene of the burglaries, it had presented sufficient circumstantial evidence to support Fortney's conviction. Id.
Although it is not clear that he is raising such a claim, to the extent Fortney contends that the jury's verdict was against the weight of the evidence, such a claim would fail because there is no basis for federal habeas review. “[A] claim that the verdict is against the weight of the evidence raises solely a state law claim and, as such, is not a claim that is even cognizable in federal habeas proceedings.” Brunner v. Clark, 2019 WL 1506006, at *7 (W.D. Pa. Apr. 5, 2019) (collecting cases).
Because the Superior Court adjudicated this claim on the merits, AEDPA's standard of review applies to this Courts' review of that determination. When a petitioner alleges entitlement to habeas relief by challenging the sufficiency of the evidence supporting his state court conviction, as Fortney does, the clearly established federal law governing the insufficient evidence claim is the standard set out by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). Travillion v. Superintendent Rockview SCI, 982 F.3d 896, 902 (3d Cir. 2020) (citations omitted). In that decision, the United States Supreme Court explained that “[t]he Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt” of each element of the offense. Jackson, 443 U.S. at 309. Evidence is sufficient to support a conviction if, “after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319 (emphasis in original). “Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors 'draw reasonable inferences from basic facts to ultimate facts.'” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (per curiam) (quoting Jackson, 443 U.S. at 319). '
When it denied this claim, the Superior Court applied the Pennsylvania equivalent of the Jackson standard. See Evans v. Court of Common Pleas, Delaware Cnty., 959 F.2d 1227, 1233 (3d Cir. 1992) (the test for insufficiency of the evidence is the same under both Pennsylvania and federal law). Because it applied the correct legal standard, its adjudication satisfies review under the “contrary to” clause of § 2254(d)(1). Williams, 529 U.S. at 406. The next inquiry for this Court, then, is whether the Superior Court's decision was an “unreasonable application of' Jackson under § 2254(d)(1) or based on an unreasonable determination of the facts under § 2254(d)(2). The Supreme Court has stressed to federal habeas courts conducting this analysis that:
The trial judge noted that “when reviewing a sufficiency of the evidence claim, an appellate court must view all the evidence and reasonable inferences therefrom in a light must favorable to the Commonwealth as verdict winner and must determine whether the evidence was such as to enable a fact finder to find that all of the elements of the offense [ ] were established beyond a reasonable doubt.” ECF No. 14-6, p. 24.
[w]e have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, “it is the responsibility of the jury [or the court in a bench trial] ... to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the ... verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury [or trial court].” Cavazos v. Smith, 565 U.S. 1,___(2011) (per curiam) (slip op., at 1). And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was ‘objectively unreasonable.' ” Ibid, (quoting Renico v. Lett, 559 U.S.___(2010) (slip op., at 5)).Coleman, 566 U.S. at 651.
Here, Fortney has not satisfied his burden of proving that the Superior Court's decision to deny his challenge to the sufficiency of the evidence was an “unreasonable application of' Jackson or based on an unreasonable determination of the facts. He asserts that there was no evidence that he entered any of the burgled residences and this neither his fingerprints nor DNA evidence implicating him was recovered from those crime scenes. ECF No. 3, p. 6. Thus, he challenges the fact that the Commonwealth relied upon circumstantial evidence to prove his guilt on some counts. But these arguments are not persuasive. The jury, as finder of fact, determined that the totality of the identification evidence proved that he was the culprit, and the Commonwealth could rely upon circumstantial evidence to prove its case against him. See, eg., Thomas v. Tice, 2020 WL 7263545, at *10 (W.D. Pa. Dec. 10, 2020).
Based upon all of the foregoing, this claim should be denied. This Court, which must give “considerable deference under AEDPA” to the Superior Court's determination that the Commonwealth introduced sufficient evidence to support the trial court's verdicts, Coleman, 566 U.S. at 656, cannot grant Fortney relief under the circumstances presented here.
C. The Court should deny relief on the second claim, improper admission of bad acts evidence, because this claim has not been exhausted and is procedurally defaulted.
As a second ground for relief, Fortney contends that, because there was “no physical evidence of any burglary,” the trial court erred by admitting “evidence or testimony that this petitioner had committed other burglaries.” ECF No. 3, p. 8. At trial, a detective from the Ashtabula, Ohio Sheriffs Office testified that Fortney and an accomplice pleaded guilty to a burglary in Ashtabula, Ohio that occurred on March 28, 2016. ECF No. 14-6, p. 42. Fortney contends he is entitled to habeas relief because the introduction of this evidence violated “the due process clause of the constitution” and “the fair trial clause.” Id. The Court should deny relief because Fortney did not fairly present this claim to the state courts in form of a federal constitutional violation.
A petitioner can “fairly present” his claim through: (a) reliance on pertinent federal cases; (b) reliance on state cases employing constitutional analysis in like fact situations; (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; [or]](d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. Robinson v. Bickell, 2015 WL 9647540, at *7 (W.D. Pa. Nov. 4, 2015), report and recommendation adopted, 2016 WL 80220 (W.D. Pa. Jan. 6, 2016) (citing Nara v. Frank, 488 F.3d 187, 198 (3d Cir. 2007). Fortney did none of those things when raising this claim to the state court.
In his direct appeal, Fortney argued that the trial court abused its discretion in admitting the detective's testimony because it was offered “to prove the Commonwealth's entire case” and “to prejudice the jury.” ECF No. 14-6, p. 15 (brief on direct appeal). Fortney limited his claim, however, to purported violations of the Pennsylvania Rules of Evidence, never connecting it a federal due process violation concerning the introduction of this evidence. See ECF No. 14-6, pp. 14-15. See also Duncan, 513 U.S. at 366 (“If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.”); Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001) (“[A] petitioner must ‘present a federal clam's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.'” (quoting McCandless, 172 F.3d at 261)). He did not rely on pertinent federal cases, or state cases employing a due process analysis in similar factual situation. See Robison, 2015 WL 9647540, at *7. Nor did Fortney's brief on direct appeal assert a due process claim in terms so particular as to call to mind his due process rights in connection to the introduction of this evidence. Id. Instead, Fortney's sufficiency claim was characterized and argued in terms of a violation of state evidentiary rules. It made no mention of a due process violation and thus cannot be considered to have put the state court on notice that he was raising a federal claim. Id. Thus, it is not properly exhausted
Fortney's Brief to the Supreme Court raised the following issue: "WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION AND/OR ERROR OF LAW WHEN IT PERMITTED THE COMMONWEALTH TO INTRODUCE EVIDENCE OF OTHER CRIMES OR BAD ACTS PURSUANT TO PA. R. EVID. 404(b)?” See Commonwealth of Pennsylvania, Appellee, v. Fortney, Appellant, 2018 WL 6584406 (Pa. Super. Ct.), Appellant's Brief at 11-12. Fortney's argument was stated as follows: “Pursuant to Pennsylvania Rule of Evidence 404(b), “evidence of prior bad acts is admissible to prove motive, intent, opportunity, common plan or scheme, preparation, knowledge, identity, absence of mistake of accident.” In the present case, the Commonwealth was permitted, over objection, to introduce evidence relating to the Appellant's conviction for Burglary in Ashtabula, Ohio. The Commonwealth argued that this information was probative and not prejudicial due to the fact that it established part of the conspiracy between the Appellant and Mr. Sterling. Further, the similarities between the incidents were offered to prove the plan or common scheme between the Appellant and Mr. Sterling. While Rule 404(b) authorizes evidence of prior crimes or bad acts to give “a complete story” for a charged crime, it is not permissible as evidence to prove the Commonwealth's entire case. In allowing this information to be presented to the jury, the Commonwealth was essentially permitted to present completely insufficient evidence to the jury that, on its own, would not even meet the prima facie standard, in order to allude to the jury - well this guy was convicted in Ohio for a similar crime, so he must be guilty here too. Nevermind that there is not one scintilla of evidence that connects the Appellant to the crimes charged in the present case outside of the fact that he plead guilty to a burglary in Ohio; die introduction of the evidence only served one purpose - to prejudice the jury in this case and have them convict the Appellant of these charges simply because he plead guilty to a similar offense in Ohio.” Id.
Further, because the time has long passed to raise this claim in the state courts, it is procedurally defaulted, and Fortney has not supplied a justification for relief from default. See 42 Pa. C.S. § 9545(b)(1) (a claim in a PCRA petition, “including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final,” absent an applicable exception such as an inability to discover the basis for the claim). See also Brunner, 2019 WL 15060006, at *8 (quoting Clemons v. Harlow, 2011 WL 8476653 (E.D. Pa. Sept. 15, 2011), report and recommendation approved, 2012 WL 3104393 (E.D. Pa. July 30, 2012). Accordingly, this claim cannot be reviewed on its merits.
The Respondents did not argue in their Answer that Fortney's claim is procedurally defaulted. See ECF No. 14, p. 12. However, the Court has the authority to raise the issue of procedural default sua sponte[,]” Evans v. Secretary Pennsylvania Dept, of Corr., 645 F.3d 650, 656 n.12 (3d Cir. 2011), as long as the petitioner is given fair notice and an opportunity to respond and is not prejudiced. Id. (citing Szuchon v. Lehman, 273 F.3d 299, 321 n.13 (3d Cir. 2001)); Sweger v. Chesney, 294 F.3d 506, 520 n.3 (3d Cir. 2002) (courts may consider sua sponte whether procedural default bars claim). See Day v. McDonough, 547 U.S. 198, 205-10 (2006) (raising statute of limitations sua sponte); United States v. Bendolph, 409 F.3d 155, 161-70 (3d Cir. 200 banc) (same). This report and recommendation gives Fortney the required notice and he has an opportunity to respond to the issue of procedural default in his objections.
V. 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, 529 U.S. at 484. Applying that standard here, jurists of reason would not find it debatable whether Fortney's claims should be dismissed because they lack merit or are procedurally defaulted. For these reasons, the Court should not issue a certificate of appealability.
V. Conclusion
For the reasons set forth above, it is respectfully recommended that Fortney's Petition for a Writ of Habeas Corpus is dismissed, and no certificate of appealability should issue.
VI. Notice Regarding the Filing of Objections
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiffs failure to file timely objections will constitute a waiver of his appellate rights.