Opinion
CIVIL ACTION 3:19-CV-1512
06-23-2021
ARMONI MASUD JOHNSON, Petitioner, v. SUPERINTENDANT THOMAS MCGINLEY, et al., Respondents.
BRANN, J.
KAROLINE MEHALCHICK, United States Magistrate Judge.
REPORT AND RECOMMENDATION
Before the Court is a petition for writ of habeas corpus (the “Petition) filed by Armoni Masud Johnson (“Johnson”) on September 3, 2019, pursuant to 28 U.S.C. § 2254. (Doc. 1). Johnson lays out his argument in his Memorandum of Law filed on September 30, 2019, as well as multiple supplements filed throughout the course of this action. (Doc. 5; Doc. 7; Doc. 12; Doc. 13; Doc. 23; Doc. 28; Doc. 30). Johnson asserts that his constitutional rights were violated when the “only black juror was automatically struck from being a juror” in the trial which led to his conviction. (Doc. 5, at 2). Additionally, Johnson asserts that the judge who oversaw his trial was biased, resulting in the denial of Johnson’s due process rights. (Doc. 5, at 9-10). Finally, Johnson asserts that his due process rights were violated when the judge did not strike comments by a state witness that Johnson was in jail, as well as when a correctional officer at the jail where Johnson was housed was allowed to be placed on the jury. (Doc. 5, at 15-17). Johnson asks this Court to vacate his criminal conviction, expunge his record, and order his release from incarceration. (Doc. 5, at 17). Alternatively, Johnson asks for a new trial. (Doc. 5, at 17). It is recommended that the Petition be denied for procedural default.
I. Background and Procedural History
Through this Petition, Johnson challenges his conviction from April 26, 2016. (Doc. 1, at 1). Johnson identifies the crimes for which he was convicted as “communication device,” and delivery of drugs. (Doc. 1, at 1). The state court docket for this case shows that bail was set on December 6, 2011, an Information was filed on February 14, 2012, and on March 14, 2016, Johnson was found guilty after a trial. Commonwealth v. Johnson, No. CP-40- CR-0000117-2012 (Luzerne Cnty. Ct. Com. Pl.). The record shows that the Court conducted voir dire, which included introducing the parties, explaining constitutional principles of the criminal justice system, and asking questions of prospective jurors. (Doc. 24-1, at 16-31). Both parties were provided an opportunity to question the jury panel and one juror responded in the affirmative – so was dismissed – when asked if any member was racist or “had a problem with African Americans or black people.” (Doc. 24-1, at 20-21).
This is a matter of public record of which the Court may properly take judicial notice. See Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
After he was informed by the judge that no prospective juror after juror number 30 could be selected for service, Johnson noted that there was only one black person in the panel, juror number 42, and they would not be considered for the jury. (Doc. 24-1, at 27-28). Johnson expressed concern that there would be no one who was Black on the jury for his case, adding that he was worried about the computer-generated jury pool being racist. (Doc. 24-1, at 28). Johnson did not make a formal motion challenging the jury pool. (Doc. 24-1, at 27-28). Both parties exercised their peremptory challenges on the jury list from numbers 1-30, leaving a jury of twelve people and two alternates. (Doc. 24-1, at 30).
After the trial was held, Johnson was found guilty and was sentenced to an aggregate 34-180 months of incarceration. Johnson, No. CP-40- CR-0000117-2012, at 6. Johnson filed a Notice of Appeal which was docketed to 1396 MDA 2016. Johnson, No. CP-40- CR-0000117-2012, at 14. On appeal, the Superior Court affirmed Johnson’s conviction and sentence after determining that “we are unable to discern the issues that Johnson wishes to raise on appeal. Johnson’s brief in no way conforms to our Pennsylvania Rules of Appellate Procedure.” Commonwealth v. Johnson, 1396 MDA 2016 (Pa. Super. Ct.). As such, the Superior Court ruled that Johnson “failed to preserve and waived any and all issues for appellate review.” Johnson, 1396 MDA 2016 (Pa. Super. Ct.). Johnson was denied re-argument in the Superior Court and did not file for a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. Johnson, No. CP-40- CR-0000117-2012, at 15-16.
On February 12, 2018, Johnson filed a petition for relief under the Post-Conviction Relief Act (PCRA). Johnson, No. CP-40- CR-0000117-2012, at 16. A hearing was held on November 5, 2018, at which Johnson claimed: (1) that he did not have meaningful access to the courts during the process of his appeal due to his placement in administrative custody from the correctional officer who was on his jury; (2) that his trial was unfair because a correctional officer from SCI-Dallas, where he was housed during his trial, was on his jury; and (3) that he had a Batson challenge. (Doc. 24-1, at 233-241). Additionally, the PCRA court did not allow Johnson to raise what he termed “Issue No. 2.” (Doc. 24-1, at 241). The Commonwealth argued at this hearing that Johnson identified the correctional officer on the jury during his opening argument at trial and stated that he could be a fair juror. (Doc. 24-1, at 258). Johnson responded that he was not aware the correctional officer worked at the prison where he was housed. (Doc. 24-1, at 261-62). Finally, Johnson stated that he had eight additional issues which the court refused to let him raise at his PCRA hearing. (Doc. 24-1, at 266-67). The PCRA court denied Johnson relief on December 11, 2018. Johnson, No. CP-40- CR-0000117-2012, at 17.
Johnson subsequently appealed the denial of his PCRA decision. Johnson, No. CP-40- CR-0000117-2012, at 17. The denial was affirmed by the Superior Court on August 13, 2019. Johnson, No. CP-40- CR-0000117-2012, at 20. In affirming the PCRA decision, the Superior Court stated, “[W]e are unable to discern the issue or issues that [Johnson] wishes this Court to review because [Johnson] has failed to include a statement of questions involved and his brief is otherwise nonsensical.” (Doc. 24-1, at 338). The Superior Court also determined that Johnson’s brief failed to conform to the Pennsylvania Rules of Appellate Procedure and failed to include citations to legal authority and to the record. (Doc. 24-1, at 339-40). For these reasons, the Superior Court found Johnson’s claims to be waived and so did not overrule the PCRA court’s order. (Doc. 24-1, at 341).
Johnson followed this by filing the instant Petition on September 3, 2019. (Doc. 1). The Response was filed on November 5, 2020, and Johnson filed his Traverse on January 11, 2021. (Doc. 24; Doc. 31). This Petition is now ripe for review. II. Habeas Claims Presented
Nottingham presents the following grounds for relief in his federal habeas Petition:
1) A Batson challenge arising from the lack of Black representation in his jury pool. (Doc. 1, at 2; Doc. 5, at 1-2).
2) A Rule 600 issue. (Doc. 1, at 2).
3) Selective and discriminatory prosecution. (Doc. 1, at 2).
III. Discussion
In his Petition, Johnson raises issues with the jury selection process of his case, as well as his access to the courts on direct appeal. (Doc. 1; Doc. 5). Johnson finds problematic the fact that a correctional officer at the facility where he was housed was on the jury and that there were no Black individuals in the possible jury pool. (Doc. 5). Johnson contends that the correctional officer who was on the jury prevented him from accessing the courts on direct appeal. (Doc. 5).
Respondents submit that Johnson failed to exhaust his state court remedies, as required by law, for any of his claims. (Doc. 24, at 11). “Meaningful appellate review [was] impossible,” according to Respondents, because Johnson’s submissions “did not comply with the Rules of Appellate Procedure and were nonsensical, incoherent, redundant, and confusing.” (Doc. 24, at 11). As such, his claims were not presented to the Pennsylvania courts as required by law. (Doc. 24, at 11). Respondents submit that because Johnson did not exhaust his claims, they are now procedurally defaulted. (Doc. 24, at 11). Additionally, they assert that it is now beyond the one-year period in which Johnson could file a PCRA petition raising his claims. (Doc. 24, at 11).
Generally, a federal district court may not grant a habeas petition unless the petitioner has first exhausted all available state court remedies. See 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion requirement, a petitioner must establish “that he 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). A “fairly presented” federal habeas claim is one that is “the substantial equivalent” of the claim that the state courts reviewed either on direct appeal or collateral review.” Pirela v. Horn, 710 F. App’x 66, 79 (3d Cir. 2017), cert. denied sub nom. Pirela v. Wetzel, 139 S.Ct. 107 (2018). The petitioner must have presented both the “factual and legal substance” of a federal claim “to the state courts in a manner that put[] them on notice that a federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Furthermore, the claim must have been properly presented pursuant to the rules of the court. Woodford v. Ngo, 548 U.S. 81, 92-93 (2006).
A federal court will generally not review a claim that is procedurally defaulted. Johnson v. Folino, 705 F.3d 117, 127 (3d Cir. 2013). A claim is procedurally defaulted when “a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule.” Coleman v. Thompson, 501 U.S. 722, 732 (1991). Failure to abide by the Pennsylvania Rules of Appellate Procedure has been held to be a violation of an independent and adequate state procedural rule. Al-Ghazali v. Beard, No. 04-2122, 2006 WL 1892664, at *9-10 (W.D. Pa. July 10, 2006).
Notwithstanding procedural default, a federal court may review a habeas claim where the petitioner can demonstrate cause for the default and actual prejudice as a result, or that failure to review the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; McCandless, 172 F.3d at 260. It is the petitioner’s burden to demonstrate circumstances excusing procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also Coleman, 501 U.S. at 750; Lines, 208 F.3d at 160. To demonstrate “cause” for a procedural default, the petitioner must show that “some objective factor external to the [petitioner’s] defense impeded [his] efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Meanwhile, to demonstrate “actual prejudice,” the petitioner must show “not merely that the errors at … trial created a possibility of prejudice, but that they worked to his actual and substantive disadvantage, infecting his entire trial with error of constitutional dimensions.” Carrier, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 270 (1982)) (alteration and emphasis in original). Alternatively, to show that a fundamental miscarriage of justice will occur if the claims are not reviewed, a petitioner must present new evidence that he is actually innocent of the crime for which he has been convicted. Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir. 2002); see also Schlup v. Delo, 513 U.S. 298, 327 (1995) (“[A] petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”).
Johnson asserts that he fairly presented his federal claims to the state courts and that his appeals were denied unjustly. (Doc. 31, at 2, 13). He submits that it was “fundamentally unfair” for the Superior Court to not review the record. (Doc. 31, at 16). Citing Bounds v. Smith, 430 U.S. 817 (1977), Johnson asserts that the corrections officer who sat on the jury in his case deprived him of access to file his direct appeal.
First, the Court finds no reason to overturn the state courts’ factual findings regarding Johnson’s compliance with the Rules of Appellate Procedure. The statutory text of § 2254 requires that federal courts give the appropriate deference to the legal rulings and factual findings of state courts made during criminal proceedings. “[A] determination of a factual issue made by a State court shall be presumed to be correct” unless a petition can show, by clear and convincing evidence, that the finding was erroneous. 28 U.S.C. § 2254(e)(1); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (“Under the § 2254 standard, a district court is bound to presume that the state court’s factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence.”). Habeas relief will not be granted pursuant to § 2254(d)(2) if a reasonable basis existed for the state court to make its factual finding. See Burt v. Titlow, 571 U.S. 12, 18 (2013).
The Pennsylvania Superior Court determined that Johnson did not file his briefs in accordance with the Pennsylvania Rules of Appellate Procedure on both his direct appeal and his PCRA petition. (Doc. 24-1, at 133, 339-41). On direct appeal, the Superior Court determined that Johnson “failed to preserve and waived any and all issues for appellate review” due to “deficiencies in Johnson’s Pa.R.A.P. 1925(b) Concise Statement and appellate brief.” (Doc. 24-1, at 133). On review of the PCRA decision, the Superior Court stated, “In reviewing Appellant’s brief, we are unable to discern the issue or issues that he wishes this Court to review because Appellant has failed to include a statement of questions involved and his brief is otherwise nonsensical.” (Doc. 24-1, at 338). After discussing the importance of a statement of questions, the court listed the sections mandated by the Pennsylvania Rules of Appellate Procedure which Johnson’s brief lacked. (Doc. 24-1, at 339). Johnson’s claims were deemed waived due to the briefing deficiencies. (Doc. 24-1, at 341).
Johnson does not contest these violations, as he fails to mention the Pennsylvania Rules of Appellate Procedure in any of his briefs now before the Court. (Doc. 5; Doc. 7; Doc. 12; Doc. 13; Doc. 23; Doc. 28; Doc. 30). There is certainly no clear and convincing evidence demonstrating that Johnson actually followed the Pennsylvania Rules of Appellate Procedure. (Doc. 24-1, at 74-89; 279-314). Therefore, since there is not clear and convincing evidence showing the Commonwealth courts’ determinations to be incorrect, these determinations will not be overturned. See Simmons, 590 F.3d at 231 (holding that state court findings of fact may only be overturned by clear and convincing evidence).
Even if Johnson were deprived of access to the court on direct appeal due to his placement in administrative custody, he still was granted the opportunity to raise this issue in PCRA court. (Doc. 24-1, at 238-45). The PCRA court denied relief on this issue and Johnson appealed the decision to the Superior Court, which considered all claims waived. (Doc. 24-1, at 341). Having failed to properly present this issue (or any other) to the Superior Court due to his briefing deficiencies, Johnson procedurally defaulted this claim. See Woodford, 548 U.S. 81, 92-93.
Exceptions to the procedural default rule do not apply. Johnson provides no factors external to his defense which impeded his effort to comply with the Pennsylvania Rules of Appellate Procedure. See Carrier, 477 U.S. at 488. Furthermore, Johnson does not establish that he suffered not merely a possibility of prejudice, but an “actual and substantive disadvantage, infecting his entire trial with error of constitutional dimensions.” See Carrier, 477 U.S. at 494 . To bypass the state courts’ determinations that Johnson’s briefs were insufficient, Johnson would have had to establish both an external factor which impeded his ability to comply with the Pennsylvania Rules of Appellate Procedure and that his entire trial was constitutionally deficient. See Carrier, 477 U.S. at 488, 494. The record does not establish these two requirements.
Johnson does not address the Pennsylvania Rules of Appellate Procedure in his briefing. (Doc. 5).
To summarize, the Pennsylvania Superior Court in this case determined that Johnson did not properly present his issues pursuant to the rules of the court both on direct appeal and on PCRA review. (Doc. 24-1, at 133, 339-41). There is no clear and convincing evidence which would compel the undersigned to overturn these determinations. Thus, Johnson’s claims are procedurally defaulted and the Court is unable to review them. See Coleman, 501 U.S. at 732; Folino, 705 F.3d at 127; see also Al-Ghazali, No. 04-2122, 2006 WL 1892664, at *9-10 (failure to follow Pennsylvania Rules of Appellate Procedure constitutes procedural default). For these reasons, it shall be recommended that Johnson’s Petition be denied. IV. Recommendation
Johnson also fails to demonstrate cause for the default and actual prejudice as a result, or that failure to review the claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.
Based on the foregoing, it is recommended that Johnson’s petition (Doc. 1) be DENIED and DISMISSED WITHOUT PREJUDICE to Johnson’s right to seek pre-authorization from the Third Circuit under 28 U.S.C. § 2244(b)(3). The Court further recommends against the issuance of a certificate of appealability, as Johnson has failed to demonstrate “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Finally, it is recommended that Johnson’s Motion for Summary Judgment be DENIED AS MOOT. (Doc. 25).
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 23, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge’s proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.