Opinion
1:19-cv-46 Erie
09-30-2020
GEROD MAURICE JARRETT, Petitioner v. JAMEY LUTHER, THE ATTORNEY GENERAL OF THE STATE OF PENS YLVANIA, and DISTRICT ATTORNEY OF ERIE COUNTY, Respondents
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 4]
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the petition for writ of habeas corpus, ECF No. 4, be denied.
II. Report
A. Background
Before the Court is a pro se petition for a writ of habeas corpus filed by Gerod Maurice Jarrett pursuant to 28 U.S.C. § 2254. ECF No. 3. Jarrett is incarcerated at the State Correctional Institution at Greene, serving a sentence of 30 to 60 years' imprisonment imposed on June 27, 2014, by the Court of Common Pleas of Erie County, Pennsylvania. Jarrett was convicted by a jury of robbery, theft by unlawful taking, recklessly endangering another person, possession of a firearm by a person prohibited, possession of an instrument of crime, terroristic threats, and receiving stolen property.
The trial court summarized the factual and procedural history of the criminal case as follows:
This case involves the robbery of Bryce Dupree Moffett that took place on April 8, 2013. On that date, at approximately 2:00 p.m., Moffett drove his two cousins to Latia Flemings' residence on East 21st Street in the City of Erie, Pa. When they arrived, Moffett observed [Jarrett] sitting alone in the driver's seat of a parked black SUV in front of Flemings' home.[fn] Moffett and his two cousins entered Flemings' residence.
After approximately ten minutes, Moffett exited the residence and [Jarrett] approached him with a black handgun. [Jarrett] pointed the gun at Moffett's head and told Moffett to hand over his belongings or he would shoot him. [Jarrett] took $400.00 in cash and approximately $2, 200.00 worth of jewelry from Moffett. After Appellant fled the scene, witnesses informed Moffett that [Jarrett] was from Pittsburgh and known as “Smoke”.
Moffett left the scene and immediately returned with a shotgun. Police were called and arrested Moffett for having the shotgun. Moffett was transported to the police station, where he informed investigators that “Smoke” from Pittsburgh robbed him at gunpoint. Erie Police Detective Jason Triana knew that [Jarrett] was known as “Smoke” and prepared a photo lineup that included [Jarrett's] picture. Moffett immediately identified [Jarrett's] picture as the assailant. Moffett further described his stolen jewelry and the black semi-automatic pistol used in the robbery.
Police later arrested [Jarrett] and recovered a black handgun under the driver's seat of the black SUV. Police also recovered Moffett's jewelry from [Jarrett] and inside the vehicle.
On April 10, 2014, [Jarrett] proceeded to a jury trial on all counts except for the § 6105 count (possession of firearm prohibited). The trial was bifurcated, and trial on the § 6105 count was deferred. During the first portion of the trial, Moffett identified the recovered firearm as the weapon used in the robbery. Moffett also identified the recovered jewelry.
On April 11, 2014, after the first portion of the bifurcated trial, the jury reached a guilty verdict on the foregoing counts. Over [Jarrett's] objections, the second portion of the trial commenced and the Commonwealth presented evidence regarding [Jarrett's] prior criminal record to the jury. After deliberation, the jury found [Jarrett] guilty of the § 6105 offense.
On June 27, 2014, [Jarrett] was sentenced as follows: 25 to 50 years' imprisonment at Count 1 (robbery), consecutive to his current state sentence; 1 to 2 years' imprisonment for Count 4 (REAP), concurrent to Count 1; 5 to 10 years' imprisonment for Count 5 (possession of firearm prohibited), consecutive to Count
1; 30 to 60 months' imprisonment at Count 6 (possession of a firearm), concurrent to Count 1; and 2 to 5 years' imprisonment for Count 7 (terroristic threats), concurrent to Count 1. Counts 3 and 8 merged for sentencing purposes.
[fn] Moffett never met [Jarrett] before this incident.ECF No. 14-2 at 8-10 (trial transcript citations omitted).
Jarrett filed a direct appeal from his judgment of sentence in which he raised one issue: whether the trial court abused its discretion in denying a motion to sever the possession of a firearm by a person prohibited and by allowing the Commonwealth to present evidence of Jarrett's prior conviction. Id. at 37-42. The Pennsylvania Superior Court affirmed the judgment of sentence. Id. On December 22, 2015, Jarrett's petition for allowance of appeal was denied by the Pennsylvania Supreme Court. Id. at 45.
On January 23, 2017, Jarrett filed a Motion for Post Conviction Collateral Relief pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”). ECF No. 14-3 at 1-18. In its Notice of Intent to Dismiss, the PCRA court found that the following issues were raised in the pro se motion and its counseled supplement: (1) illegality of sentence; (2) ineffective assistance of trial counsel for failing to move to suppress a gun; (3) a sentencing claim related to Alleyne v. United States, 133 S.Ct. 2151 (2013); (4) ineffective assistance of trial counsel for failure to object to nondisclosure of photographs of jewelry; (5) ineffective assistance of trial counsel for failing to call an exculpatory witness. ECF No. 14-3 at 55-70. The PCRA court denied Jarrett relief. Id. at 7172. Plaintiff filed an appeal from the PCRA court's order. Id. at 73. The Pennsylvania Superior Court affirmed. ECF No. 14-4 at 52-68.
The instant petition was filed on March 29, 2019. ECF No. 4. The District Attorney of . Erie County filed a response thereto on July 5, 2019. ECF No. 14. The petition is now ripe for review.
B. Ground One: Brady violation concerning Bryce Moffett deal
Jarrett first asserts that, during his closing argument, the prosecutor admitted that Bryce Moffett had received “a deal, ” which Moffett had previously denied, and which was not disclosed to the defense, ECF No. 4 at 5. Respondent asserts that this ground is unexhausted and without merit. ECF No. 14 at 4-7.
As this Court has explained:
As a general matter, a federal district court may not consider the merits of a habeas petition unless the petitioner has “exhausted the remedies available” in state court. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A petitioner satisfies the exhaustion requirement “only if [the petitioner] can show that [he or she] fairly presented the federal claim at each level of the established state-court system for review.” Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). The purpose of the exhaustion requirement is to “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts ... by invoking one complete round of the State's established appellate review process.” O'Sullivan, 526 U.S. at 845.
To “fairly present” a claim for exhaustion purposes, the petitioner must advance the claim's “factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir. 2018) (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). A petitioner may exhaust a federal claim either by raising it on direct appeal or presenting it in post-conviction PCRA proceedings. O'Sullivan, 526 U.S. at 845. Either way, the petitioner must present his federal constitutional claims “to each level of the state courts empowered to hear those claims.” Id. at 847 (“requiring state prisoners [in order to fully exhaust their claims] to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State”). “Once a petitioner's federal claims have been fairly presented to the state's highest court, the exhaustion requirement is satisfied.” Stoss v. Estock, 2019 U.S. Dist. LEXIS 83240, 2019 WL 2160464, at *3 (M.D. Pa. May 17, 2019) (citing Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989)).Dean v. Tice, 2020 U.S. Dist. LEXIS 96328, at *12-13 (W.D. Pa. June 1, 2020).
Jarrett concedes that he did not raise this claim before the state court. ECF No. 4 at 5. However, he baldly asserts that the failure to do so was due to PCRA counsel's ineffectiveness and that he will be arguing “cause” and “prejudice” under Martinez v. Ryan, 132S.Ct 1309(2012). Id.
The relevant law is as follows:
The general rule is that, because there is no federal constitutional right to counsel in a PCRA proceeding, a petitioner cannot rely upon PCRA counsel's ineffectiveness to overcome the default of a federal habeas claim. See, e.g., Coleman [v. Thompson], 501 U.S. [722] at 752-54 [1991]; Davila v. Davis, 137 S.Ct. 2058, 2062, 198 L.Ed.2d 603 (2017) (“An attorney error does not qualify as ‘cause' to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default.”). In Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), the Supreme Court announced a limited, but significant, exception to this rule. Under Martinez, a Pennsylvania prisoner may argue that his PCRA counsel “caused” the default of a claim that trial counsel was ineffective. 566 U.S. at 9; Workman v. Sup't Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019). The holding in Martinez is limited to defaulted ineffective-assistance-of-trial-counsel claims. See, e.g, Davila, 137 S.Ct. at 2062-70. It does not apply to any other type of claim. Id.Hensley v. Cappoza, 2019 U.S. Dist. LEXIS 185175, at *14-15 (W.D. Pa. Oct. 24, 2019).
Jarrett's Brady claim is obviously not a claim of trial court's ineffective assistance; thus Martinez v. Ryan cannot excuse his procedural default. Further, a review of the prosecutor's closing argument in Jarrett's trial belies the premise of this claim. Therein, the prosecutor spoke about Bryce Moffett as follows:
... [T]he story that [Moffett] told the police, what he told Officers [sic] Janus, what he told Detective Triana, he admitted to a crime. He admits that I was robbed and rather than calling the police, I went to my buddy's house, got a “sawed-off' shotgun that's illegal for me to have, and I went to retaliate, that's a crime, that he admits to a crime. And he doesn't mitigate it at all with what he said. You know, I often say in instances like this, if you're going to lie, lie well, which means, if you're going to lie to get out of trouble, say a lie that gets you out of trouble. Why doesn't he say, well, I was robbed with this shotgun and I wrestled it away from him and I was trying to defend myself and that's why I had the gun. He doesn't say that. He admits to the crime, as well as all offering all of this detail about what happened. And in reality it didn't - if, you know, he didn 't get any break. It didn't get him out of trouble. He still pled guilty to a felony gun charge and spent - and as the defense did not point out, also spent nine months in jail, as well as, is on
probation. So he still ended up with a felony and ended up in jail, so if this was his master plan it certainly didn't work out and it was a horrible plan to begin with.ECF No. 22-2 at 25-26 (emphasis added).
Jarrett is not entitled to relief on this claim. It is procedurally defaulted and obviously without merit.
C. Ground Two: Ineffective assistance of trial counsel for failure to object to closing argument
Jarrett next asserts that his trial counsel was ineffective for failing to object during the prosecutor's closing argument when the prosecutor improperly vouched for the credibility of Bryce Moffett. ECF No. 4 at 7. Jarrett explains, “During closing arguments, the prosecutor candidly stated that the detective verified Bryce Moffett's account of the facts without evidence to support verification leaving the jury to believe other evidence existed that was not before them that proved [Jarrett] was the culprit.” Id. Respondent asserts that this ground is unexhausted and without merit ECF No. 14 at 4-8.
As he did with Ground One, Jarrett concedes that he did not exhaust his state remedies with regard to this claim. ECF No. 4 at 7. Again, Jarrett baldly cites to PCRA counsel's ineffectiveness to excuse the failure to exhaust. Id. Unlike Ground One, however, this claim does concern trial counsel's ineffectiveness and thus Martinez v. Ryan may be applicable. The additional relevant law is as follows:
Under Martinez, in order to avoid the default of an ineffective-assistance-of-trial-counsel claim, Petitioner must establish two things: (1) the ineffective-assistance-of-trial-counsel claim is “substantial”; and (2) [PCRA counsel] was ineffective within the meaning of Strickland [v. Washington, 466 U.S. 668 (1984)]. Martinez, 566 U.S. at 14; Workman, 915 F.3d at 937. ...
The Court of Appeals has explained that an ineffective-assistance-of-trial-counsel claim is “substantial” if it has “some merit.” Workman, 915 F.3d at 938. The evaluation of whether a claim has “some merit” is the same one that a federal court undertakes when it considers whether to grant a certificate of appealability. Id.
Thus, Petitioner “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Workman, 915 F.3d a 938 (a petitioner “must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should be resolved in a different manner of that the issues presented were adequate to deserve encouragement to proceed further.'”), quoting Martinez, 566 U.S. at 14, which cited Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).Hensley, 2019 U.S. Dist. LEXIS 185175, at *15-16.
The Strickland test is explained as follows:
Ineffective assistance of counsel claims are governed by the familiar standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance under Strickland, the Petitioner has the burden of establishing that his trial “counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 688. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. Importantly, the Supreme Court emphasized that “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]”' Burt v; Titlow, ___ U.S. ___, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013) (quoting Strickland, 466 U.S. at 690). See also Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.”) (quoting Strickland, 466 U.S. at 689).
The Supreme Court also instructed:
“Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive posttrial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S. at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard forjudging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.Richter, 562 U.S. at 105. .
Strickland also requires that the Petitioner demonstrate that he was prejudiced by his trial counsel's alleged deficient performance. This places the burden on him to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, ” the result of his trial “would have been different.” Strickland, 466 U.S. at 694. As the United States Court of Appeals for the Third Circuit explained:
[The Petitioner] “need not show that counsel's deficient performance ‘more likely than not altered the outcome of the case' - rather, he must show only ‘a probability sufficient to undermine confidence in the outcome.'” Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 69394). On the other hand, it is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” [Richter], 131 S.Ct. at 787 (citing Strickland, 466 U.S. at 693). Counsel's errors must be “so serious as to deprive the defendant of a fair trial.” Id. at 787-88 (citing Strickland, 466 U.S. at 687). The likelihood of a different result must be substantial, not just conceivable. Id.
Brown v. Wenerowicz, 663 F.3d 619, 630 (3d Cir. 2011).Howard v. Delbalso, 2017 U.S. Dist. LEXIS 126581, at *5-7 (W.D. Pa. Aug. 10, 2017) (footnote omitted).
Although Jarrett does not cite to a specific statement in the closing argument, the Court assumes he is referring to the beginning of the prosecutor's closing argument, and the following statement:
Ladies and gentlemen, let me make one thing clear, all right? I agree, this case is about whether or not you believe Bryce Moffett, okay? And I'm not going to stand up here and say you should believe because I said so or because Detective Triana said so, I - you should believe Bryce Moffett because the evidence in this case corroborates what he said, it verifies what he said.ECF No. 22-2 at 22.
As with Ground One, a review of the closing argument belies the premise of Jarrett's claim. The prosecutor did not vouch for Moffett's credibility by stating that Detective Triana verified Moffett's account of the facts. The prosecutor specifically denounced this basis as one upon which the jury should rely. Trial counsel could not have been ineffective for failing to make a baseless objection; thus, the claim of trial counsel's ineffectiveness has no merit. Because Jarrett has not established that the ineffective-assistance-of-trial-counsel claim is substantial, he cannot avoid procedural default of this claim.
D. Ground Three: Ineffective assistance of trial counsel for failure to object to introduction of other crimes/bad character evidence
Jarrett next asserts that his trial counsel was ineffective for failing to object to the prosecution's introduction of other crimes/bad character evidence. ECF No. 4 at 8-9. Jarrett explains, “During trial, the prosecution admitted evidence that Detective Triana knew [Jarrett] as ‘Smoke' conveying to the jury that he was known to the police as a bad guy.” Id. at 8. Respondent asserts that this ground is unexhausted and without merit. ECF No. 14 at. 4-9. Again, Jarrett concedes that he did not exhaust his state remedies with regard to this claim and baldly cites to PCRA counsel's ineffectiveness to excuse the failure to exhaust. ECF No. 4 at. 9.
Respondent misapprehends the crimes to which Jarrett refers, assuming that he challenges the admission of his convictions in the second phase of his trial to meet the element of possession of a firearm by a person prohibited. ECF No. 14 at 8-9.
The Court first notes that Detective Triana testified that he was aware of an individual who went by the nickname “Smoke, ” but he did not explain how he became aware of that individual. ECF No. 21-1 at 85. Thus, no direct evidence of prior bad acts or crimes was admitted in this way. However, to the extent that prior bad acts or crimes could be indirectly inferred from Detective Triana's testimony, the following Pennsylvania law is applicable:
“Evidence is admissible if it is relevant - that is, if it tends to establish a material fact, makes a. fact at issue more or less probable, or supports a reasonable inference supporting a material fact - and its probative value outweighs the likelihood of unfair prejudice.” Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75, 88 (Pa. 2004) (citations omitted). Admissibility of evidence is within the sound discretion of the trial court and we will not disturb an evidentiary ruling absent an abuse of that discretion. Commonwealth v. Arrington, 624 Pa. 506, 86 A.3d 831, 842 (Pa. 2014), citing Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (Pa. 2010). Moreover, “evidence of prior bad acts, while generally not admissible to prove bad character or criminal propensity, is admissible when proffered for some
other relevant purpose so long as the probative value outweighs the prejudicial effect.” Boczkowski, 846 A.2d at 88. See also Arrington, 86 A.3d at 842, citing Pa.R.E. 404(b)(1); Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715, 720 (Pa. 1981) (law does not allow use of evidence which tends solely to prove accused has “criminal disposition”). Such evidence may be admitted to show motive, identity, lack of accident or common plan or scheme. Arrington, 86 A.3d at 842, citing Pa.R.E. 404(b)(2); Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 337 (Pa.2011) (Rule 404(b)(2) permits other acts evidence to prove motive, lack of accident, common plan or scheme and identity). In order for other crimes evidence to be admissible, its probative value must outweigh its potential for unfair prejudice against the defendant, Pa.R.E. 404 (b)(2), and a comparison of the crimes proffered must show a logical connection between them and the crime currently charged. Arrington, 86 A.3d at 842.Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017).
In this case, Detective Triana's testimony as to his prior knowledge of an individual nicknamed “Smoke” explained the steps that he took in the investigation and how Jarrett was introduced into the lineup presented to Moffett. There is no indication that this evidence was admitted for the purpose of proving that Jarrett had a criminal disposition. The prejudicial effect of this evidence was thus minimal, given the lack of any reference to prior bad acts or crimes. The probative value, however, was significant because the evidence bolstered the identity of Jarrett as the perpetrator of the robbery and explained how he came to be introduced into the investigation. The evidence was therefore admissible, and Jarrett has failed to establish that the ineffective-assistance-of-trial-counsel claim for failure to object thereto has any merit, i.e., is substantial; accordingly, he cannot avoid procedural default of this claim.
D. Ground Four: Ineffective assistance of trial counsel for failure to object to,, investigate and present crime scene photos to show tampering by prosecution
Jarrett finally asserts that his trial counsel was ineffective for failing to investigate and present crime scene photos that would have showed that the prosecution tampered with evidence. ECF No. 4 at 10-11. Jarrett explains, “During a federal court hearing evidence i.e. crime photos was shown with gun present under driver's seat. During state trial, the same picture supposedly showed no gun and the ring was moved. This would have impeach[ed] Detective Triana[']s testimony that nothing was touched or moved.” Id. at 10. Respondent asserts that this ground is unexhausted and completely baseless. ECF No. 14 at. 4-9. Again, Jarrett concedes that he did not exhaust his state remedies with regard to this claim and baldly cites to PCRA counsel's ineffectiveness to excuse the failure to exhaust. ECF No. 4 at. 9.
In response to question number 13(a) on his form petition, concerning whether the grounds for relief raised in the petition have been presented in state court, Jarrett responds, “All but claim five were not raised in state court. These claims i.e. 1-4 will be argued under the standard enunciated in Martinez v. Ryan.” ECF No. 4 at 12. However, no fifth claim is included in the petition.
Although Jarrett provides no identifying information as to the “federal hearing” to which he refers, the Court assumes he refers to a suppression hearing held in his federal criminal case on November 21, 2013, before the Honorable Maurice B. Cohill. United States v. Jarrett, 1:13-cr-00028, ECF No. 46. At that hearing, there was testimony about certain photographs of the vehicle in which Jarrett was arrested. These photographs, which were taken by Officer Lorah, were of the vehicle on the street at the location where Jarrett was stopped. Id. ECF No. 46 at 21-23; ECF No. 46-2 at 42. After these photographs were taken, Officer Lorah removed the gun found under the driver's seat, and Detective Triana subsequently drove the vehicle to the basement of Erie City Hall. Id. ECF No. 46 at 23-25; ECF No. 46-2 at 43. Detective Triana later conducted a search of the vehicle and took photographs during that search. Id. ECF No. 46 at 30.
Jarrett was charged with violating 18 U.S.C. § 922(g)(1), Possession of a firearm by a convicted felon. The indictment was ultimately dismissed.
At Jarrett's state criminal trial, the only photographs of the vehicle admitted were those taken by Detective Triana during his search. ECF No. 22-1 at 102. The search took place after the gun had been removed from the vehicle. Id. at 93-94, 101-103.
Thus, the vehicle was photographed at two times, two locations, by two officers: once with the gun in it and once without. Based on this fact, Jarrett's contention that certain photographs admitted at the federal hearing showed a gun in the vehicle and those at the state trial did not is not at all indicative of evidence tampering. Instead, it is consistent with the relevant testimony of the officers at both proceedings. Contrary to Jarrett's assertion, Detective Triana did not testify that nothing was moved; he testified that the gun was removed.
Additionally, Detective Triana testified that he found a ring under the driver's seat of the vehicle. Id. at 95. Assuming that the respective photographs indeed reflect a change in location of the ring the vehicle between the time of stop and the search, which was conducted after the gun had been removed from under the driver's seat and the vehicle had been driven to another location underground, that change is no more indicative of evidence tampering than the absence of the gun in the second set of photographs.
In short, Jarrett has failed to establish that there was any basis upon which his trial counsel was ineffective for failing to investigate evidence tampering. Thus, he has failed to establish that his ineffective-assistance-of-trial-counsel claim is substantial. Accordingly, he cannot avoid procedural default of this claim.
E. Certificate of Appealability
The Antiterrorism and Effective Death Penalty Act of 1996 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). Applying that standard here, jurists of reason would not find it debatable whether Jarrett's claims should be dismissed because they are procedurally defaulted.
For the reasons stated herein, it is respectfully recommended that the petition for a writ of habeas corpus be denied and that no certificate of appealability should issue.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).