Opinion
Civil Action 2: 17-cv-0839
12-01-2022
AARON HENDERSON, Petitioner, v. THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, DISTRICT ATTORNEY OF ALLEGHENY COUNTY, and SUPERINTENDENT OF SCI HOUTZDALE, Respondents.
Arthur J. Schwab, United States District Judge
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
Cynthia Reed Eddy, United States Magistrate Judge
I. RECOMMENDATION
Petitioner, Aaron Henderson (Henderson), is a state prisoner in the custody of the Pennsylvania Department of Corrections and currently confined at the State Correctional Institution at Houtzdale in Houtzdale, Pennsylvania. He filed pro se a Petition and Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the judgment of sentence imposed on him on February 29, 2012, by the Court of Common Pleas of Allegheny County, Pennsylvania, at Criminal Case CP-02-CR-0014877-2010. For the reasons below, it is recommended that the Petition be denied and a certificate of appealability be denied.
II. REPORT
A. Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. It permits a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). It is Henderson's burden to prove that he is entitled to the writ. 28 U.S.C. § 2254(a) ; see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims. For example, the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (which is discussed below). But, ultimately, Henderson cannot receive federal habeas relief unless he establishes that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
B. Relevant and Procedural Background
The case arises from the shooting death of Justin Strothers-Owens on October 4, 2010. The Superior Court of Pennsylvania recounted the relevant facts underlying Henderson's conviction in its decision affirming the judgment of sentence:
[O]n October 4, 2010, [police officers were] dispatched to the intersection of Penn Avenue at Princeton Boulevard in Wilkinsburg, Allegheny County, for a report of shots fired at a Port Authority bus stop. When first-responders arrived at the scene, they discovered the victim, Justin Strothers-Owens [“Owens”], lying on the sidewalk in [] front of the bus stop. He was pronounced dead at the scene, having suffered from numerous gunshot wounds [from an AK-47]. Also located at the scene was Rhonda Johnson [“Johnson”]. [] Johnson was not injured [,] but she was located near the bus stop, where she had been waiting for a bus. She took cover when the shooting occurred. [] Johnson identified [Henderson] as the person who shot the victim[.] [Johnson stated that Henderson] was driving a red Chevrolet Sebring automobile [and that] he had circled the area of the bus stop a few times.Commonwealth v. Henderson, No. 533 WDA 2012, slip op. (Super. Ct. Dec. 24, 2013) (quoting Trial Court Opinion, 12/12/12) (ECF No. 56-1 at pp. 307-08). Henderson was arrested and charged by Criminal Information with one count of each of the following: criminal homicide, aggravated assault, and recklessly endangering another person. Henderson was represented by Attorney Lee Rothman at his preliminary hearing. At the conclusion of the preliminary hearing, the charge of aggravated assault was dismissed. (N.T., prel. hearing, 11/5/2010, T10-2205, at p. 41).
On January 11, 2011, the Honorable Anthony M. Mariani appointed the Allegheny County Office of the Public Defender to represent Henderson. Four months later, the Office of the Public Defender filed a motion to withdraw as counsel. The trial court granted the motion to withdraw and appointed Attorney John F. Dwyer to represent Henderson. However, on June 8, 2011, Attorney James Wymard entered his appearance as privately retained counsel.
A jury trial commenced on November 29, 2011, before Judge Mariani. The crucial piece of evidence linking Henderson to the murder was the eyewitness testimony of Rhonda Johnson, who positively identified Henderson as the shooter. On December 2, 2011, at the conclusion of trial, the jury found Henderson guilty of first degree murder and recklessly endangering another person. N.T., Jury Trial, at p. 848.
Henderson was sentenced to a mandatory sentence of life without parole for first degree murder and to a consecutive one to two years' incarceration for recklessly endangering another person. At the conclusion of the sentencing hearing, Attorney Wymard was permitted to withdraw and Attorney Sandra Kozlowski was appointed to represent Henderson on direct appeal.
Following the denial of his post-sentence motions, Henderson, through Attorney Koslowski, filed a Notice of Appeal to the Superior Court of Pennsylvania. On November 29, 2012, Attorney Koslowski filed a motion to withdraw which was granted that same day. Attorney Thomas N. Farrell was then appointed by the court to represent Henderson. On direct appeal, Henderson, through Attorney Farrell, raised three issues for review:
1. Whether the trial court erred as a matter of law by admitting [an] alleged statement by the deceased pursuant to the excited utterance exception to the rule against hearsay ....
2. Whether the trial court erred as a matter of law in allowing the Commonwealth to proceed, over defense objection, with his closing argument, which suggested to the jury that they were free to speculate on the existence and content of such evidence, thereby bolstering the Commonwealth's motive argument, which in turn, bolstered both the issue of the identify of the killer and the grading of the homicide?
3. Whether the trial court erred by denying defense counsel's request for a jury instruction specifically discussing the jury's deliberations with regard to the Commonwealth's chief witness[,] who received approximately $15,000 over a four-month period from the Commonwealth and [the] police to testify[?].Superior Court Op., 12/24/2013 (ECF No. 56-1 at pp. 308-09). On December 24, 2013, a three-judge panel of the Superior Court affirmed the judgment of conviction. Henderson filed a counseled Petition for Allowance of Appeal (PAA) in the Supreme Court of Pennsylvania, which raised the same three claims as was raised with the Superior Court. The Supreme Court of Pennsylvania denied the PAA on July 7, 2014. Henderson did not seek further review. The judgment became final on October 5, 2014, ninety days after he could have sought a writ of certiorari with the Supreme Court of the United States. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct.R. 13.
After his direct appeal concluded, Henderson, through new privately retained counsel, Attorney Chris Rand Eyster, filed a timely petition for post-conviction collateral relief under Pennsylvania's Post-Conviction Relief Act (PCRA), in which he raised only one issue: “Trial Counsel was ineffective for failing to call an expert in perception and memory to testify regarding matters affecting the reliability of eyewitness identification.” (ECF No. 56-1 at p. 338, citing Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014)). Henderson argued that “a miscarriage of justice occurred based on the unreliable and inaccurate eyewitness identification testimony of Rhonda Johnson.” Id. at p. 341. In support of his argument, Henderson submitted an “expert report” from legal psychologist Dr. Jonathan P. Vallano regarding matters of eyewitness identification. (Id. at pp. 346-56). The trial court, now the PCRA court, issued a notice of intent to dismiss the PCRA petition, to which Henderson, through counsel, filed a response in opposition. Attached to the reply is the “Affidavit of James A. Wymard, Esquire,” which states in relevant part:
In essence, Henderson argued that trial counsel was ineffective because counsel should have known that an allowance of appeal had been granted in Walker and counsel should have attempted to call the expert at trial and properly preserved the issue. The Walker decision is discussed in more detail below.
I represented Aaron Henderson on a homicide case at No. 2010-14877. I did not retain an expert to consult with or testify about the eyewitness identification testimony presented in this case. My sole reason for not doing so was that the law at the time made such testimony inadmissible. I do feel that the identification made at trial was weak, in particular because the witness' opportunity to observe the shooter was poor. Specifically, the observation was a brief profile view through a car window, with the shooter's face partially further obscured by a bandanna.
Had I been aware of the allocator grant in Commonwealth v. Walker, No. 534 EAL 2010, I would have retained an expert and called that expert at trial. I believe that Mr. Henderson would have, in all likelihood, been acquitted had such testimony been presented. Mr. Henderson consistently denied his guilt and I am deeply troubled by the outcome of the trial.
Had such testimony been offered but excluded, I believe, in light of the Walker decision, that Mr. Henderson would have been granted a new trial on appeal.Affidavit of James A. Wymard. (Id. at p. 377). On December 1, 2015, the PCRA court dismissed Henderson's PCRA petition without a hearing. (Id. at p. 380).
Attorney Eyster was then granted permission to withdraw and the PCRA court appointed the Office of the Public Defender to represent Henderson on collateral review. (Id. at p. 384). Assistant Public Defender Jamie Schuman filed a Notice of Appeal in the Superior Court on Henderson's behalf. Henderson presented only the following issue in his counseled PCRA appellate brief:
Did the Trial Court err when it denied without a hearing Mr. Henderson's PCRA petition, which included the meritorious claim that Attorney Wymard was ineffective for failing to call an expert witness on the topic of eyewitness identification.Appellant Brief. (Id. at p. 424). On May 18, 2018, the Superior Court in a 2-1 decision denied the claim on its merits and affirmed the PCRA court's denial of relief finding that at the time of trial, Pennsylvania law did not permit counsel to call such an expert and that counsel “will not be deemed ineffective for failing to anticipate a change in the law.” Commonwealth v. Henderson, No. 533 WDA 2012 (Pa. Super. 2013) (ECF No. 56-1 at p. 307). And while the Superior Court noted that the issue of “whether counsel was ineffective for failing to preserve an issue in Henderson's case that, at the time of his trial, was pending before our Supreme Court on petition for allowance of appeal” was not before it, it went on to address the issue on its merits:
The trial court considered the issue before it and cogently discussed the fact that even if counsel had attempted to introduce the testimony of an eye witness identification expert, it would not have been admissible at the time of Henderson's trial. See Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996) (eyewitness identification expert testimony per se inadmissible). If counsel is not ineffective for failing to introduce such testimony, it defies logic to credit that we could find counsel ineffective for failing to preserve the same issue for appeal. See, e.g., Commonwealth v. Todaro, 701 A.2d 1343 (Pa. 1997) (citing Commonwealth v. Dunbar, 470 A.2d 74, 77 (Pa. 1983) (it is well established that the effectiveness of counsel is examined under the standards existing at the time of performance rather than at the point when an ineffectiveness claim is made). It is true that if Henderson raised said issue on direct appeal and said direct appeal had been pending at the time our Supreme Court decided Walker, supra, (admissibility of eyewitness identification expert testimony subject to discretionary review of trial court), Henderson would be entitled to benefit from the decision. It is also true that even if the direct appeal had been pending and even if it had announced the issue decided by
Walker, if such an appeal concluded before Walker was decided, Henderson would not be entitled to relief. It is not appropriate to determine if defense counsel was ineffective by reviewing the matter applying hindsight or the application of post hoc reasoning. Nor is counsel charged with being prescient. Cf. Commonwealth v. Rivera, 154 A.3d 370 (Pa. Super. 20170 (en banc) (plea counsel was ineffective for failing to consult with defendant regarding whether he wishes to appeal the non-frivolous issue concerning the legality of his negotiated sentence, not for failing to anticipate a change in the law).Commonwealth v. Henderson, No. 15 WDA 2016, 05/18/2017, at pp. 3-4, n.2 (ECF No. 56-1 at pp. 489-490) (emphasis added). Henderson's application for reconsideration or reargument en banc was denied. On August 22, 2017, Henderson filed a counseled PAA raising the following claim:
Can trial counsel be deemed ineffective for failing to preserve in the trial court the issue of whether expert testimony on eyewitness identification should be permitted when, at the time of defendant's trial, the Supreme Court of Pennsylvania had already granted allocator on the same issue in order to determine whether Pennsylvania should join 44 other states that permit such testimony?Pet. for Allowance of Appeal (ECF No. 56-1 at p. 509). The Supreme Court denied discretionary review on February 7, 2018. Commonwealth v. Henderson, 181 A.3d 1071 (Pa. 2018) (ECF No. 56-1 at p. 531). Henderson sought no further review.
The undersigned notes that at the time the Walker decision was issued, Henderson's direct was pending as his PAA was not denied until two months after the Walker decision. However, the issue whether expert testimony on eye witness identification should have been admissible at trial was never raised at any stage of the direct appeal process.
Having been denied relief in state court, Henderson filed a pro se federal habeas petition on June 20, 2017. The case was administratively closed and stayed pending Henderson's exhaustion of a second PCRA petition he filed pro se in state court on March 7, 2018. The PCRA court appointed Attorney P. Donovan Morris to represent Henderson and ordered counsel to file an amended petition. On June 18, 2018, Attorney Morris filed an Amended Petition in which he raised a claim of layered ineffectiveness of prior counsel, namely that direct appeal counsel was ineffective in failing “to file a supplemental pleading with the Superior Court of the Supreme Court's ruling in Commonwealth v. Walker, even though it was handed down a full forty days before that ill-informed body denied the Petitioner's appeal on the basis of pre-Walker case law” and that PCRA counsel was ineffective in failing to raise the issue in the counseled first PCRA petition. Second PCRA Pet. (ECF No. 56-1 at p. 557-58) (emphasis in original).
Pursuant to the “prison mailbox rule,” a pro se prisoner's federal habeas application is deemed filed on the date the petitioner delivers it to prisoner officials for mailing to the district court, not on the date the application is filed in court. Houston v. Lack, 487 U.S. 266 (1988).
In the second PCRA Petition, Henderson acknowledged that the trial court in denying the first PCRA Petition “correctly pointed out that inasmuch as Pennsylvania did not permit the admission of such testimony at the time of trial, then Trial Counsel could not have been ineffective within the intended meaning of the Act, almost by definition.” Second PCRA Petition, ECF No. 56-1 at p. 557 (emphasis in original).
On August 30, 2018, the PCRA court heard argument from counsel regarding whether the second PCRA Petition was timely filed. That same day, the PCRA court dismissed the second petition as untimely filed. (ECF No. 56-1 at p. 585; see also N.T., 8/30/2028, T18-2063). Counsel then filed a timely Notice of Appeal to the Superior Court, raising the following two claims:
It appears that counsel abandoned his layered ineffective assistance of counsel claim during the hearing and argued that trial counsel was ineffective for not preserving the issue. (T18-2063).
1. Did the Trial Court err in denying Appellant's 2nd PCRA petition since the Trial Court erred in denying Appellant's Motion to Introduce Expert Evidence on Eyewitness Testimony?
2. Did the Trial Court err in denying Petitioner's 2nd PCRA petition since Appellate Counsel was ineffective for failing to timely notify the court of a material change in the law on experts while Petitioner's case was still pending review?Appellant's Brief (ECF No. 56-1 at p. 614). A three judge panel of the Superior Court affirmed the dismissal of the second PCRA Petition finding that the petition was untimely and that Henderson had not met his burden in proving an exception to the PCRA's time bar. Commonwealth v. Henderson, No. 1367 WDA 2018 (Pa. Super. 2019) (ECF No. 56-1 at pp. 664-671). It appears from the docket that Henderson filed a late PAA and, as a result, it was not accepted for filing.
On February 26, 2020, Henderson advised this Court of the completion of his PCRA proceedings in state court (ECF No. 10) and the case was reopened and the stay lifted. On March 26, 2020, prior to the petition being served, Henderson pro se filed an Amended Petition, raising six issues:
1. the trial court erred in admitting an “excited utterance” statement;
2. the trial court erred in failing to find that the prosecutor, during closing arguments, engaged in prosecutorial misconduct when he ‘speculated' about Petitioner's motives to kill the victim;
3. the trial court erred when it failed to instruct the jury that Rhonda Henderson had a pecuniary bias based on her receipt of $15,000 in housing and subsistence payments as part of her participation in the witness relocation program;
4. trial counsel was ineffective for failing to request an eyewitness identification expert to be present at trial when allocator had been granted by the Pennsylvania Supreme Court in Commonwealth v. Walker, 11 A.3d 1034 (Pa. 2010), prior to Henderson's trial;
5. direct appeal counsel was ineffective for failing to advise the Pennsylvania Supreme Court that the newly decided Walker decision was applicable to Henderson's pending case; and
6. direct appeal counsel was ineffective for failing to challenge the trial court's erroneous failure to suppress the identification testimony of Rhonda Johnson.Amended Petition. (ECF No. 13 at pp. 19-20).
On June 22, 2020, Attorney Michael Wiseman entered his appearance for Henderson and filed a motion for an extension of time in which to file a Second Amended Petition and brief in support. (ECF Nos. 18 and 19). The request was granted and on July 6, 2021, Attorney Wiseman filed a Brief in Support of the Amended Petition. (ECF No. 33). Notably, in his brief, counsel stated that “after consultation with his client, counsel briefs only one of the six issues identified by Mr. Henderson in his Amended Petition - that is number four” - the ineffective assistance of trial counsel in failing to call an expert in eyewitness identification. (Id. at p. 13). Respondents filed an Answer in which they addressed all six issues raised in the Amended Petition. (ECF No. 56). Henderson, through counsel, filed a Reply Brief, in which counsel again represented that Henderson “was only pursuing one of the six pro se claims” that which “has been denominated as Claim Four.” Reply Br. (ECF No. 61 at p. 2).
Attorney Wiseman did not file a counseled Second Amended Petition.
The undersigned has reviewed the filings of the parties, as well as the state court record. The matter is fully briefed and ripe for disposition.
Respondents electronically filed as exhibits to their Answer (ECF No. 56) relevant parts of the state court record. For ease of reference, the Court uses the page numbers from the CM/ECF header. Respondents also submitted a hard copy of the Court of Common Pleas' file for Henderson's criminal case, including the transcripts from the preliminary hearing (T10-2205, dated November 5, 2010); the hearing on the motion to sever (T16-1321, dated November 28, 2011); the trial proceedings (T12-0687, dated November 29, 2011 through December 2, 2011); the sentencing hearing (T12-0570, dated February 29, 2012); and the PCRA hearing (T18-2063, dated August 30, 2018).
C. The Standard for Habeas Relief Under 28 U.S.C. § 2254
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing habeas corpus petitions “must be vigilant and independent . . . a commitment that entails substantial judicial resources.” Id. This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by AEDPA, “which imposes significant procedural and substantive limitations on the scope” of the Court's review. Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017).
A finding of fact made by a state court, including credibility determinations, always has been afforded considerable deference in a federal habeas proceeding. Vickers, 858 F.3d at 850 (even in pre-AEDPA cases, “ ‘federal habeas courts [had] no license to redetermine credibility of witnesses who demeanor ha[d] been observed by the state trial court, but not by them' ”) (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). AEDPA continued 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 federal habeas claim “that was adjudicated on the merits” by the state courts and it prohibits a federal habeas court from granting relief unless the petitioner established that the Superior Court's “adjudication of the claim”:
When applying § 2254(d), the federal habeas court considers the “last reasoned decision” of the state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Sup't Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016).
was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”Becker v. Sec'y Pennsylvania Dep't of Corr., 28 F.4th 459, 460 (3d Cir. 2022) (quoting 28 U.S.C. § 2254(d)). For the purposes of § 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when the state court made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. at 98-100; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).
If the Superior Court did not adjudicate a federal habeas claim on the merits, this Court must determine whether the absence of an adjudication is because petitioner did not raise the claim to the Superior Court and, as a result, it is now procedurally defaulted. If the claim is procedurally defaulted, this Court should deny it for that reason. If the claim is not defaulted, or if the petitioner established grounds to excuse his default, the standard of review at § 2254(d) does not apply and this Court reviews the claim de novo. See, e.g., Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
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 determine 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). “The clearly established law” 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 (3d Cir. 2003)).
Once the “clearly established Federal law, as determined by the Supreme Court of the United States,” is identified, this Court must determine whether the state 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 “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” id. 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. Id. For that reason, the issue in most federal habeas cases is whether the adjudication by the state court survives review under the “unreasonable application” clause of § 2254(d)(1).
“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 the burden under this provision of AEDPA's standard of review, a petitioner must do more than convince this Court that the state court's decision was incorrect. Id. The petitioner must show that it “‘was objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409) (emphasis added by Dennis). This means that a petitioner must prove that the state 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. 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[.]” Burt 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-El 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 also Becker, 28 F.4th at 464 (stating that “close calls - decisions upon which reasonable minds might disagree - are essentially insulated from federal court reversal AEDPA, which requires federal judges to defer to the reasonable state trial court findings . . .).
Sections 2254(d)(2) and (e)(1) “express the same fundamental principle of deference to state court findings[,]” and federal habeas courts “have tended to lump the two provisions together as generally indicative of the deference AEDPA requires of state court factual determinations.” Lambert, 387 F.3d at 235. Our Court of Appeals has instructed that§ 2254(d)(2), when it applies, provides the “overarching standard” that a petitioner must overcome to receive habeas relief, while 2254(e)(1) applies to “specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision.” Id.
When a habeas petitioner claims ineffective assistance of counsel, “review is ‘doubly deferential,' because counsel is ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment'.” Woods v. Etherton, 578 U.S. 113, 116 (2016) (quoting Titlow, 571 U.S. at 22).
Various standards must be met before the Court can review the merits of Henderson's habeas petition.
1. Timeliness
First, the Court must determine whether the habeas petition was timely filed. Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019). Here, the undersigned agrees with the parties that the federal habeas petition was timely filed.
2. Procedural Benchmarks - Exhaustion and Procedural Default
a. Exhaustion of State Court Remedies
Among AEDPA's procedural prerequisites is a requirement that the petitioner “has exhausted the remedies available in the courts of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). 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). The United States Court of Appeals for the Third Circuit has explained:
A claim is exhausted if it was “fairly presented” to the state courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. at 848; Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). A petitioner has fairly presented his claim if he presented the same factual and legal basis for the claim to the state courts. See Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam). 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; and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).Nara v. Frank, 48 F.3d 187, 197-98 (3d Cir. 2007).
Moreover, 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, e.g., Lambert, 387 F.3d at 233-34.
On May 9, 2000, the Supreme Court of Pennsylvania issued Order No. 218 declaring that federal habeas petitioners no longer have to appeal to the state supreme court to satisfy the exhaustion requirement. In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam). The Court of Appeals for the Third Circuit has recognized the validity of this Order. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
b. Procedural Default
If a claim has not been fairly presented “to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play.” Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (citations omitted). As the Supreme Court of the United States recently explained:
State prisoners . . . often fail to raise their federal claims in compliance with state procedures, or even raise those claims in state court at all. If a state court would dismiss these claims for their procedural failures, such claims are technically exhausted because, in the habeas context, “state-court remedies are . . . ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). But to allow a state prisoner simply to ignore state procedure on the way to federal court would defeat the evident goal of the exhaustion rule. See Coleman, 501 U.S. at 732. Thus, federal habeas courts must apply “an important ‘corollary' to the exhaustion requirement”: the doctrine of procedural default. Davila v. Davis, 582 ___U.S.___, 137 S.Ct. 2058, 2064 [2017]. Under that doctrine, federal courts generally decline to hear any federal claim that was not presented to the state courts
“consistent with [the State's] own procedural rules.” Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).
Together, exhaustion and procedural default promote federal-state comity. Exhaustion affords States “an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights,” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam), and procedural default protects against “the significant harm to the States that results from the failure of federal courts to respect” state procedural rules, Coleman, 501 U.S. at 750. Ultimately, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without [giving] an opportunity to the state courts to correct a constitutional violation,” Darr v. Burford, 339 U.S. 200, 204 (1950), and to do so consistent with their own procedures, see Edwards, 529 U.S. at 452-453.Shinn v. Ramirez, ___ U.S. ___, 142 S.Ct. 1718, 1732 (2022).
Federal courts may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate “cause” to excuse the default and “actual prejudice resulting from the alleged constitutional violation.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 (3d Cir. 2018) (quoting Davila v. Davis, ___ U.S. ___, 137 S.Ct. 2058, 2065 (2017) (quoting Wainwright v. Skyes, 433 U.S. 72 (1977)), cert. denied, ___ U.S. ___, 139 S.Ct. 1613 (2019)). The burden lies with a petitioner to demonstrate circumstances that would excuse a procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also Coleman, 501 U.S. at 750.
A petitioner, alternatively, can overcome a procedural default by demonstrating that the court's failure to review the defaulted claim will result in a “miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 748 (1991); McCandless v. Vaughn, 172 F.3d 225, 260 (3d Cir. 1999). “However, this exception is limited to a ‘severely confined category [] [of] cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner]'.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 n.11 (3d Cir. 2018) (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (internal alteration in original) (quoting Schlup v. Delo, 514 U.S. 298, 329 (1995)).
If the petitioner has established grounds to excuse the default, the standard of review of §2254(d) does not apply and the federal court reviews the claim “de novo because the state court did not consider the claim on the merits.” Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017) (citation omitted). In any event, in all cases and whether or not the § 2254(d) standard of review applies, the state court's factual determinations are presumed to be correct under § 2254(e)(1) unless the petitioner rebuts that presumption by clear and convincing evidence. Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010); Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007) (“the § 2254(e)(1) presumption of correctness applies regardless of whether there has been an ‘adjudication on the merits' for purposes of § 2254(d).”) (citing Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)).
D. Discussion
Henderson, through counsel, is pursuing two distinct arguments, both relating to trial counsel's alleged ineffectiveness for failing to call an expert in eyewitness identification. Distilled to its essence, Henderson's argument is that had trial counsel made the request to the trial court for an expert in eyewitness identification to testify, “the issue would have been preserved for appellate review.” Reply (ECF No. 61 at p. 4). Respondents assert in their Answer that trial counsel's alleged ineffectiveness was presented to the Superior Court and rejected on the merits and, as such, the claim should be denied under AEDPA's standard of review.
In their Answer, Respondents only address the argument that trial counsel was ineffective for failing to call an identification expert at trial. Respondents do not address the distinct argument that by failing to make such a request, trial counsel failed to preserve the issue for appellate review. Because the Superior Court addressed the failure to preserve issue on its merits, the undersigned finds that both arguments should be analyzed under the AEDPA deferential standard of review.
Ineffective assistance of counsel claims are grounded in rights guaranteed under the Sixth Amendment. The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1994), announced the test that a habeas petitioner must satisfy before a federal court could find that counsel failed to provide effective assistance under the Sixth Amendment. This same standard has been incorporated by Pennsylvania courts as the proper basis to consider challenges for ineffective assistance of counsel under the Pennsylvania constitution. See Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (stating that Pennsylvania courts apply elements of the Strickland test to ineffective assistance of counsel claims). A Pennsylvania court's resolution of an ineffective assistance claim, therefore, is presumed to apply clearly established federal law and is due the substantial deference required by 28 U.S.C. § 2254(d).
But as both the Supreme Court of the United States and the Court of Appeals for the Third Circuit have recently stated, “ ‘there is no right to counsel in state collateral proceedings,' including state post conviction proceedings.” Williams v. Superintendent Mahanoy SCI, 45 F.4th 713 (3rd Cir. 2022) (citing Coleman v. Thompson, 501 U.S. 722, 755 (1991); see also Shinn v. Ramirez, ___U.S. ___, 142 S.Ct. 1718, 1737 (2022) (“[W]e have repeatedly reaffirmed that there is no constitutional right to counsel in state post conviction proceedings.”)).
“Under Strickland, a defendant who claims ineffective assistance of counsel must prove (1) ‘that counsel's representation fell below an objective standard of reasonableness; and (2) that any such deficiency was ‘prejudicial to the defense.'” Williams v. Superintendent Mahanoy, SCI, 45 F.4th 713, 724 (3d Cir. 2022) (quoting Garza v. Idaho, ___ U.S. ___, 139 S.Ct. 738 (2019) (quoting Strickland, 466 U.S. at 687-88)). To satisfy the first prong of the Strickland test, a petitioner must show that “counsel made errors so serious that counsel was not functioning as ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. To meet the second prong of the Strickland test, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Id. at 694.
Henderson raised the claim before this Court in his PCRA proceeding and it was adjudicated by the Superior Court on the merits. As such, it is deemed exhausted for purposes of federal habeas review, and this Court's decision is governed by AEDPA's standard of review: whether the Superior Court's adjudication of this claim was contrary to, or involved an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1).
The Superior Court, citing Strickland, first noted that the PCRA court applied the appropriate standard for reviewing challenges to the effectiveness of trial counsel and then found,
that Pennsylvania law, at the time of Henderson's trial, barred expert identification testimony. The trial court would have been constrained to deny any attempt to submit such evidence to the jury. As this Court cannot deem counsel ineffective for failing to assert a meritless claim, Henderson's claim fails. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008).
After careful review of the parties' briefs, the record and the relevant law, we agree with Judge Mariani's analysis and affirm on the basis of his decision. . . .Superior Court Opinion, 5/18/2017 (ECF No. 56-1 at p. 490-91). The Superior Court also stated that “[i]f counsel is not ineffective for failing to introduce such testimony, it defies logic to credit that we could find counsel ineffective for failing to preserve the same issue for appeal.” Id. at n.2. The undersigned finds that the Superior Court applied clearly established Federal law and its adjudication of the claim was not “contrary” to that law. 28 U.S.C. § 2254(d)(1).
In his Rule 1925(a) opinion, Judge Mariani found as follows:
In this case, trial counsel did not render ineffective assistance of counsel at the time of trial because any claim that trial counsel should have presented expert identification testimony at the time of trial is meritless. Even had trial counsel attempted to admit expert testimony concerning identification, this Court would have been constrained to deny those attempts because such evidence was not admissible. Though trial counsel has submitted an affidavit explaining that he had no reasonable basis for failing to call an expert witness on identification, this Court notes that Petitioner's trial occurred between November 30, 2011 and December 2, 2011. Pennsylvania law at that time absolutely barred expert identification testimony. Trial counsel would not have been permitted to call an expert witness on identification at that time. It was not until May 8, 2014 that the Supreme Court altered the state of the law. Trial counsel was not even representing petitioner at that time. Therefore, trial counsel could not have been ineffective for pursuing a meritless strategy.Rule 1925(a) Opinion, 6/22/2016. (ECF No. 56-1 at pp. 452 - 55).
Next, the Court must determine whether the adjudication survives review under the “unreasonable application” clause of § 2254(d)(1). The Court must determine whether the Pennsylvania Superior Court unreasonably applied the Strickland standard or otherwise based its decision upon an unreasonable factual determination. Furthermore, as noted above, pursuant to § 2254(e)(1), a determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that the factual finding was erroneous. Applying this deferential standard of review, the undersigned finds that this claim is without merit.
To prevail on a claim that the state court has adjudicated on the merits, Henderson must demonstrate that the state 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.” Harrington v. Richter, 562 U.S. 86, 103 (2011). See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold”). Henderson has not met that high threshold.
At the time of Henderson's trial, the Pennsylvania decisional law absolutely banned expert testimony to aid a jury in understanding eyewitness identifications. Although in 2014 the Pennsylvania Supreme Court held such testimony may be admissible, this decision post-dated Henderson's trial, and Henderson's trial counsel could not have been ineffective for failing to request such testimony that was not permitted by Pennsylvania law at that time.
The Pennsylvania Supreme Court specifically held that “such expert testimony on the limited issue of eyewitness identification . . . may be admissible, at the discretion of the trial court, and assuming the expert is qualified, the proffered testimony relevant, and will assist the trier of fact.” Walker, 92 A.3d 766, 792 (Pa. 2014).
At the time of Henderson's trial in 2011, the law in Pennsylvania per se barred identification expert testimony. Id. at 793 (prospectively affording the trial court discretion to admit expert testimony regarding eyewitness identification). Henderson concedes the state of the law at the time of his trial and acknowledges that any attempt by trial counsel to introduce such testimony would have been unsuccessful. Nevertheless, Henderson argues that trial counsel should have preserved this evidentiary issue for appellate purposes, noting that the Pennsylvania Supreme Court had granted allocator in Walker in April 2011 - seven months prior to his trial. According to Henderson, had counsel done so, the Superior Court on direct appeal would have granted him a new trial.
Henderson's petition for allowance of appeal was pending at the time the Pennsylvania Supreme Court issued its decision in Walker. His petition for allowance of appeal was denied on July 7, 2014, two months after the decision in Walker was issued. It is troubling to the undersigned that direct appeal counsel failed to seek permission to file supplemental briefing in light of the Walker decision and that Henderson's first PCRA counsel did not raise an ineffective assistance of appellate counsel claim on collateral review, which claim would have been governed by the Strickland standard. United States v. Mannino, 212 F.3d 835, 840 n. 4 (3d Cir. 2000). However, this Court is constrained to address only the issue raised in the pending federal habeas petition, i.e., whether trial counsel was ineffective for failing to call and preserve the issue of expert testimony on eyewitness identification. The issue of appellate counsel's ineffectiveness was not raised in the state courts until Henderson filed a second PCRA petition in March of 2018, a petition which was dismissed by the state courts as time-barred.
It is a bedrock principle that “counsel's stewardship must be judged under the existing law at the time of trial[.]” Commonwealth v. Todaro, 701 A.3d 1343, 1346 (Pa. 1997). “An attorney cannot be deemed ineffective for failing to anticipate a change or development in the law.” Commonwealth v. Mason, 130 A.3d 601, 652 (Pa. 2017), and the Pennsylvania Supreme Court has recognized that “it is not ineffective assistance of counsel to fail to predict (and hence comply with) future changes in governing law.” Commonwealth v. Brown, 196 A.3d 130, 178 (Pa. 2018) (applying this principle to a claim premised upon Walker) (citing Mason, 130 A.3d at 650).
Viewing the Superior Court's disposition of this claim through the deferential lens of AEDPA, the undersigned has no hesitancy in concluding that Henderson has failed to carry his burden to persuade this Court that the Superior Court's disposition was unreasonable, yet alone incorrect. It is recommended, therefore, that Henderson's claim for relief be denied as the Superior Court's adjudication of the claim withstands review under § 2254(d)(1).
III. CERTIFICATE OF APPEALABILITY
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
“When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying those standards here, the undersigned concludes that jurists of reason would not find it debatable that Henderson's claim should be denied. For these reasons, it is recommended that a certificate of appealability not be issued.
IV. CONCLUSION
For all of the above reasons, it is respectfully recommended that the instant habeas petition for writ of habeas corpus be denied. It is also recommended that a certificate of appealability not be issued as there is no basis upon which to grant one on the raised claim.
Any party is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, the parties may file written objections to this Report and Recommendation by December 15, 2022. Responses to objections may be filed by December 29, 2022. The parties are advised that failure to file timely and specific objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).