Opinion
Civil Action 2:17-cv-0429
05-05-2021
LONNELLE M. JOHNSON, JR., Petitioner, v. THOMAS S. McGINLEY, Superintendent, JOSH SHAPIRO, Attorney General of the State of Pennsylvania; and THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY, Respondents.
Marilyn J. Horan United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy Chief United States Magistrate Judge
I. RECOMMENDATION
Petitioner, Lonnelle M. Johnson, Jr., a state prisoner incarcerated at SCI- Coal Township, has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 14), challenging the Judgment of Sentence imposed upon him by the Court of Common Pleas of Allegheny County, on October 25, 2010, in his criminal case at CP-02-CR-0011414-2009. The petition is ripe for disposition. For the reasons outlined below, it is recommended that the Petition be denied and a certificate of appealability likewise be denied.
II. REPORT
A. Relevant Procedural and Factual Background
This case arises from the fatal shooting of Hoang Nguyen on June 26, 2009. The Pennsylvania Superior Court, in a Memorandum dated July 1, 2012, affirming Mr. Johnson's conviction and judgment, recounted the facts that led to his arrest and conviction as follows:
Thomas Nguyen testified that he and his brother, Hoang, were in the Hill District of Pittsburgh at approximately noon on June 26, 2009, dropping his
brother's baby off to the mother. Hoang[ ] was driving and Thomas was in the passenger's seat while the vehicle was stopped on Bedford Avenue. As they were stopped there, a group of people, which included [Appellant], waved toward Hoang. Hoang pulled the vehicle to the side of the road to talk to these individuals. One of the individuals, later identified by [Thomas] as “Woozy, ” was speaking with the brother through the driver's side window. Two other individuals were also present outside the vehicle. While his brother was talking with Woozy, another individual, later identified as [Appellant] [Lonnelle] Maurice Johnson, jumped into the backseat of the car on the driver's side, pointed a gun at Hoang and told him “to give it up.” Thomas took that to mean that he wanted them to give him anything of value that he and his brother had.
At this point, however, Hoang put the car into drive and began to drive away. When he did this, [Appellant] said, “Don't try it. I'll shoot you.” Hoang stepped on the gas pedal. As soon as the car started moving, [Appellant] started shooting. Thomas heard at least three gunshots. The vehicle then crashed into a tree. Thomas blacked out for a few seconds. When he awoke, he did not see his brother in the driver's seat any longer. He tried to get out, but his door would not open. He indicated that he noticed that he had been shot in the leg. He still saw the individual identified as Woozy standing near a building but did not see the individual who had shot him.
While he was at the hospital, the police came and showed him photographs. He stated that he was able to speak to the police and was not under the influence of drugs at that point. He recalls the conversation he had with the police. He was shown several sets of photographs. He identified Woozy from one set and [Appellant] from another set of photographs. Thomas identified [Appellant] in the Courtroom and identified him as the individual who jumped into the back seat of the car, pointed the gun at him and his brother and shot them.
...
Daniel Williams (“Woozy”), also testified. He stated that he saw [] Hoang, drive up and wave[] at him to speak with him. [Williams] spoke with [Hoang] through the driver's side door and noticed that [Hoang's] brother was in the passenger seat. [Williams] stated that he talked to [Hoang] for a few minutes. While standing next to the driver's window, [Williams] saw someone holding a gun jump into the back seat of the car and say something to the two victims. [Williams] testified that [Hoang] drove off with the individual still in the backseat. The car travelled a short distance and then struck a tree. He then saw it crash into a tree....[Williams] said that the individual in the car got out and ran. He then saw [Hoang] get out of the car, put his hand to his head and fall to the ground. [] Williams stated that he stayed at the scene and was placed under arrest when the police showed up. He stated that he provided a description of the
individual he saw but could not provide the name of the person. He admitted that he told them that he was afraid to identify that person.
On cross[-]examination, Williams testified that he knew the [Appellant], Lonnelle [Maurice] Johnson, and had known him for years. He stated that [Appellant] was not the individual who was in the backseat of the vehicle.
Detective Bonzale Boose, with the City of Pittsburgh Homicide Division, testified that he interviewed Williams and that Williams told him that while he was standing at the driver's window talking with [Hoang], and individual walked up to his right side, opened the rear door on the driver's side, and got in with a handgun pointed at the driver. He said the car pulled away and he heard several gunshots. The car then accelerated a few feet, turned and struck the tree, where it came to rest. He said he saw the individual get out of the car and run into the projects. He also said he saw the driver get out of the car and collapse to the ground. When Detective Boose asked him if he could identify the person he saw enter the car[], [Williams], according to Detective Boose, said “He could ID that individual, but he will not ID an individual under any circumstances out of safety for himself and his family.”
The Commonwealth also presented fingerprint evidence. Latent prints were obtained from [the] rear driver's door and door frame, which was where both the surviving victim and Williams said the assailant had entered the vehicle. Of the total of nine latent prints of value obtained from the [] vehicle, three were matched to the [Petitioner]. Two from the rear door matched [Petitioner's] left little finger and one matched his left middle finger.
In addition, the Commonwealth presented testimony from Walter Lorenz, a forensic scientist from the Allegheny County Medical Examiner's Division of Laboratories. Dr. Lorenz testified that DNA samples were obtained from the exterior and interior handles from the rear driver's side door. Samples were also obtained from the [Appellant] and the victim, Hoang Nguyen. The comparison between the sample from the interior door handle and the samples from [Appellant] and the victim resulted in Dr. Lorenz excluding both as significant contributors to the DNA material obtained from the interior door handle. The comparison between the DNA material obtained from the exterior handle and that from the victim and [Petitioner], however, resulted in the exclusion of the victim as being a possible contributor and the determination that the DNA from the door handle and from [Appellant] matched. The possibility of such a match was one in 1.3 billion among African Americans.Commonwealth v. Johnson, No. 1937 WDA 2010, unpublished mem. (Pa. Super. 2012) (quoting Trial Court Opinion, Nov. 18. 2011, at 4-9) (ECF No. 20-2 at 1-4).
Mr. Johnson was charged with one count each of first-degree murder, aggravated assault, carrying firearm without a license, and with two counts of robbery. On July 26, 2010, Mr. Johnson appeared with counsel, Christopher Patarini, Esquire, for a jury trial held in the Court of Common Pleas of Allegheny County before The Honorable Jeffrey A. Manning. At the conclusion of the trial on July 29, 2010, the jury found Mr. Johnson guilty on all charges. On October 25, 2010, Mr. Johnson was sentenced to life imprisonment without the possibility of parole on the first-degree murder conviction, and a concurrent aggregate 20 to 60-year sentence on the remaining convictions.
Mr. Johnson, through appellate counsel, Candace Stockey Seymour, Esquire, filed a timely Notice of Appeal to the Superior Court of Pennsylvania raising five claims. See Appellant Br. (ECF No. 20-1 at 40-41). The Superior Court affirmed the convictions, but vacated the judgment of sentence and remanded for the sole purpose of resentencing Mr. Johnson to credit him for his time served while in pre-trial custody. Mr. Johnson filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, which was denied. On May 5, 2013, Mr. Johnson was resentenced to receive appropriate time credit.
On August 26, 2013, Mr. Johnson filed a pro se petition under the Pennsylvania PostConviction Relief Act (“PCRA”) in which he raised three claims of ineffective assistance of trial and appellate counsel. On June 2, 2014, court-appointed PCRA counsel, Ryan H. James, Esquire, filed a motion to withdraw and no-merit letter, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). (ECF No. 20-2 at 39-59). The PCRA court filed a Notice of Intention to Dismiss the PCRA petition and allowed counsel to withdraw. In response, Mr. Johnson filed an amended PCRA petition pro se. On August 11, 2015, after reviewing the amended PCRA petition, the PCRA court issued a Memorandum Opinion and Amended Notice of Intention to Dismiss. (ECF No. 20-2 at 61-65).
Mr. Johnson, pro se, filed a timely appeal to the Superior Court of Pennsylvania, in which he raised two distinct issues: (i) ineffective assistance of trial counsel for failing to investigate and present four witnesses at trial; and (2) a challenge to the denial of his PCRA Petition without a hearing. (ECF No. 20-3 at 1-37). The Superior Court affirmed the denial of the dismissal of the PCRA Petition on October 21, 2016. (Id. at 3-49).
On March 30, 2017, Mr. Johnson filed pro se a second PCRA Petition. (ECF No. 20-3 at 50-65) and on August 2, 2017, he filed pro se an Amended PRCR Petition. In his petitions, he raised five ineffective assistance of counsel claims. The PCRA court issued a Notice of Intent to Dismiss. On April 24, 2018, the second PCRA petition was dismissed as the PCRA court found that Mr. Johnson's claims were waived, time barred, and without merit as a matter of law. (ECF No. 20-3 at 70-82). Mr. Johnson appealed to the Pennsylvania Superior Court, but on November 13, 2018, the appeal was discontinued per Mr. Johnson's request. (ECF No. 20-3 at 83).
This case was initiated on April 5, 2017, when the Court received the Petition under 28 U.S.C. § 2254 filed by Mr. Johnson. (ECF No. 1). Because the Petition reflected that Mr. Johnson had a pending PCRA petition, the Court stayed the proceedings while Mr. Johnson exhausted his state court remedies. (ECF No. 2). On November 11, 2018, Mr. Johnson requested the stay be lifted as he had exhausted his state court remedies. (ECF No. 3). The stay was lifted on November 28, 2018, and Mr. Johnson was granted an extension until January 7, 2019, to file an amended petition. (ECF No. 5). Mr. Johnson's subsequent requests for extensions of time were granted (ECF Nos. 6, 8, 10, and 12) and on July 9, 2019, the Amended Petition, which remains Mr. Johnson's operative pleading, was filed. (ECF No. 14). The Amended Petition raises twelve claims. Respondents filed an Answer (ECF No. 20), to which Mr. Johnson filed a Traverse. (ECF No. 27).
The Court has reviewed the filings of the parties, as well as the certified original state court record that was sent to this Court, which includes four transcripts: the transcript from the preliminary hearing on July 3, 2009 (T09-1482); the transcript from the suppression hearing held on July 26, 2010 (T11-0513), the trial transcript (T11-0352); and the transcript from the sentencing proceedings held on October 25, 2010 (T10-2168).2F2F The matter is fully briefed and ripe for resolution.
B. 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 the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, enacted on April 24, 1996 (“AEDPA”), “which imposes significant procedural and substantive limitations on the scope” of the Court's review.3F3F Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017).
The first consideration in reviewing a federal habeas petition is whether the petition was timely filed under AEDPA's one-year limitations period. 28 U.S.C. § 2244(d). Respondents do not dispute that Mr. Johnson's petition was timely filed.
1. Federal Habeas Review of Properly Exhausted Claims
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). An exhausted claim is one that has been “fairly presented” to the state courts “by invoking one complete round of the State's established appellate review process, ” and which has been adjudicated on the merits. Carpenter v. Vaughn, 296, F.3d 138, 146 (3d Cir. 2002) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)); Johnson v. Williams, 568 U.S. 298, 302 (2013). “Fair presentation” of a claim merely requires the petitioner to “present [the] federal 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.” Greene v. Palakovich, 606 F.3d 85, 93 (3d Cir. 2010) (citation omitted). For § 2254(d) purposes, a claim has been adjudicated on the merits “when a state court has made a decision that finally resolves the claim on the basis of its substance, rather than on a procedural, or other, ground.” Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d 528, 545 (3d Cir. 2014) (quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009)).
When a claim is properly exhausted in the state courts and then raised on federal habeas review, the level of deference afforded to the state-court decision is substantial. Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017), cert. denied sub nom., Gilmore v. Bey, 138 S.Ct. 740 (2018). AEDPA “does not ‘permit federal judges to . . . casually second-guess the decisions of their state-court colleagues or defense attorneys.' ” Collins, 742 F.3d at 543 (quoting Burt v. Titlow, 571 U.S. 12, 14 (2013)). As a result, under § 2254(d), federal habeas relief is unavailable for exhausted claims unless the state-court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law . . . or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
This is an intentionally difficult standard to meet. Richter, 562 U.S. at 102. Section 2254(d) “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” clearly established Supreme Court precedent. Id. Thus, to obtain federal habeas relief on an exhausted claim, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Id. at 103.
Finally, “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petition[er] must overcome the limitation of § 2254(d)[ ] on the record that was before that state court”; “evidence introduced in federal court has no bearing on § 2254(d)[ ] review.” Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (footnote omitted). “[D]istrict courts cannot conduct evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d). Otherwise, federal habeas petitioners would be able to circumvent the finality of state court judgments by establishing a new factual record.” Brown v. Wenerowicz, 663 F.3d 619, 629 (3d Cir. 2011). “This would contravene AEDPA, which requires petitioners to diligently present the facts in state court before proceeding to the federal courthouse.” Id.
Although mandatory, the exhaustion requirement “turns on an inquiry into what procedures are ‘available' under state law.” O'Sullivan, 526 U.S. at 847. Under Pennsylvania law, a federal claim becomes exhausted once it is presented to the Pennsylvania Superior Court, either as a direct appeal from a state criminal conviction or as an appeal from a PCRA Court's denial of post-conviction relief. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004) (finding that review from the Pennsylvania Supreme Court is unavailable, and therefore not required, for purposes of exhausting state court remedies).
Traditionally, under Pennsylvania law, exhaustion meant that a claim must be presented to the trial court, the Pennsylvania Superior Court, and the Pennsylvania Supreme Court. See Evans v. Court of Common Pleas, Delaware County, PA, 959 F.2d 1227, 1230 (3d Cir. 1992). However on May 9, 2000, the Pennsylvania Supreme Court issued Judicial Administration Order 218, which provides that “in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing or allowance of appeal following an adverse decision by the Superior Court in order to be deemed to have exhausted all available state remedies respecting a claim of error. When a claim has been presented to the Superior Court, or to the Supreme Court of Pennsylvania, and relief has been denied in a final order, the litigant shall be deemed to have exhausted all available state remedies for purposes of federal habeas corpus relief....” 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).
2. Federal Habeas Review of Unexhausted, Defaulted Claims
If a state prisoner has not fairly presented a claim “to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play.” Carpenter, 296 F.3d at 146 (citations omitted). The doctrine of procedural default serves as a corollary to the exhaustion requirement and provides a basis for a federal court to refuse to review a habeas claim. 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).5F5F The burden lies with a petitioner to demonstrate circumstances that would serve to 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)). Further, the Court concludes that nothing in the record suggests that Mr. Johnson could met the Schlup test. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (explaining that the miscarriage of justice standard “requires ‘new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.'”).
“Cause for a procedural default exists where something external to the petitioner, something that cannot fairly be attributed to him[, ] . . . impeded [his] efforts to comply with the State's procedural rule.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original) (citations and internal quotation marks omitted). To establish prejudice, a petitioner must show not merely that there were errors that created a possibility of prejudice, but that they “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). If cause and prejudice are established, the federal court reviews the claim “de novo because the state court did not consider the claim on the merits.” Bey, 856 F.3d at 236 (citation omitted).
Mr. Johnson's twelve claims will be reviewed with these standards in mind.
C. Discussion
Mr. Johnson's twelve grounds for relief will be discussed in turn.
1. Undeveloped Claims
Respondents argue that Claims One, Two, Three, Four, Five, and Ten are undeveloped and insufficient to require habeas relief. The six claims are:
Throughout this Report and Recommendation, the undersigned does not correct spelling, grammar, or other typographical errors in Mr. Johnson's filings.
CLAIM 1: Whether the PCRA court and Superior Courts was not in accord with 42 Pa. C.S.A. §§§ 9544(a)(3)(ii) and (iii); 9544 and 9545(b) under the Post
Conviction Relief Act (PCRA), and Pa. C.S.A. §§ 9542-9546, and its own State Constitution Law.
CLAIM 2: Whether the PCRA and Superior courts was not in accord with its exception rule regarding the scope and language in a showing of ‘actual innocence' assertion which excuses the failure to comply with limitations which procedural default resulting from an untimely filing could be excused by a state or federal habeas corpus pleading where a constitutional violation had resulted in a conviction of one who is ‘actually innocent.'
CLAIM 3: Whether Defendant was denied the assistance of effective counsels at all levels of his state proceedings via, trial, sentence, appeal and PCRA proceedings.
CLAIM 4: Where a claim involving a failure to invoke compulsory process is inherently different from a normal claim of ineffective assistance of counsel for failure to call exculpatory witnesses. Especially where witnesses willingness to testify cannot be considered as a determining factor in a compulsory process setting.
CLIAM 5: Whether the Strickland standard governs a rule contributed to petitioner's instant claims are where the courts are not divert their ultimate focus from the fundamental fairness or a proceeding whose result is being challenged. Especially when addressing the prejudice analysis where it generally states an accused has the ‘ absolute right ' to meet the prosecution's case with the assistant and aide of witnesses and have an absolute right to elicit the assistance and aid of the prosecution and or the Commonwealth without being denied the opportunity to meet the prosecutor's case by trial counsel. As the Strickland cautioned that its test is (was) not to be applied in a mechanical fashioned.
CLAIM 10: Whether petitioner was subjected to and suffered from a miscarriage of justice from the initial arrest and up to the representation of ‘all' prior counsels in connection to the representation of petitioner throughout his state trial proceedings and appeal.
The undersigned observes that these six claims suffer from the same infirmities noted by the Superior Court regarding Mr. Johnson's claims on direct appeal: “the claims are comprised of repetitive and rambling assertion of errors. . . ” ECF No. 20-3 at 42-43. Each of these six claims makes broad assertions and Mr. Johnson does not offer any elaboration or factual or argumentative support for the claim. The Court of Appeals for the Third Circuit has held that bald assertions and conclusory allegations without specific facts to support a claim of a constitutional violation, do not provide sufficient grounds for habeas relief. Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert. denied, 502 U.S. 902 (1991); Mayberry v. Petsock, 821 F.2d 179, 187 (3d Cir. 1987) (finding that petitioner's vague and general allegations and supporting materials fail to make sufficient showing to justify relief), cert. denied, 484 U.S. 946 (1987)).
For these reasons, it is recommended that Claims 1, 2, 3, 4, 5, and 10 be denied.
2. Claims Alleging Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are grounded in rights guaranteed under the Sixth Amendment. Mr. Johnson raises three ineffective assistance of counsel claims:
In Claim 6, he alleges that trial counsel was ineffective for failing to investigate and present Andrew Davis as a witness at trial.
In Claim 8, he argues that trial counsel was ineffective for failing to call George Lyle, Daniel Williams, and Marcel Green to testify at trial.
And in Claim 12, he argues that trial counsel was ineffective for failing (a) to request a Writ of Habeas Corpus and/or preliminary hearing and (b) to object to the Commonwealth's use of coerced and false testimony.
In Claim 6, it appears that Mr. Johnson is arguing that trial counsel was ineffective for failing to investigate and present Andrew Davis as a witness at trial. Mr. Johnson claims that Andrew Davis's initial statement to the police amounts to crucial and valuable information. Mr. Johnson raised this claim in his first PCRA petition and the Superior Court denied the claim on its merits. As a result, this Court's review is governed by AEDPA's standard of review.
In rejecting this claim the Superior Court quoted from the Rule 1925(a) Opinion of the PCRA Court:
First, trial counsel did, in fact, secure an interview of Andrew Davis through his private investigator. The report from that interview was attached to the
defendant's Motion to Supplement Previous Motion to Withdraw. Second, the report of that interview reveals that Mr. Davis would not have offered testimony favorable to the defendant. He told the investigator that he could not identify any of the three individuals he saw, including the person who shot the victim. His inability to identify the assailants could not possibly have aided Mr. Johnson in his trial. ...
Nowhere in this statement is Andrew Davis reported to have said anything that would have been exculpatory to the defendant. It was the defendant's burden to offer, in his Petition, facts which, if proven at a hearing, would establish his right to relief. Here, as he is alleging that trial counsel was ineffective for failing to present testimony from Andrew Davis, it was his burden to establish what Andrew Davis would have said if called as a witness and how that testimony would have changed the outcome of the trial. He failed to meet that burden because all that Andrew Davis could have said is that he could not identify any of the men. He did not say, as the defendant seems to suggest, that the defendant was not present. He said he could not identify any of the men present. Because Andrew Davis would not have offered any testimony helpful to the defendant, counsel was not ineffective in failing to present him as a witness.Commonwealth v. Johnson, memorandum at 8-9 (Pa. Super. 2016) (ECF No. 20-3 at 45-46). Moreover, the Superior Court noted,
Our review of the record supports the PCRA court's analysis. Accordingly, we conclude that the PCRA court did not err in determining that there were no genuine issues of material fact in controversy, and that Appellant is not entitled to relief on this claim.Id. at 9.
The undisputed state court record reflects that counsel arranged for Andrew Davis to be interviewed by private investigator Russell Semplice on July 19, 2010. (ECF No. 20-2 at 56). Investigator Semplice's report states in pertinent part: “Andrew Davis gave the police the same statement he gave Investigator Semplice. Andrew Davis stated he could not positively identify the black male that shot into the gray vehicle, and or the other two black males standing by the vehicle.” Id.
As noted above, to prevail on a claim that the state court has adjudicated on the merits, Mr. Johnson 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”). Viewing the Superior Court's disposition of these claims through the deferential lens of AEDPA, the Court has no hesitancy in concluding that Mr. Johnson has failed to carry his burden to persuade this Court that the Superior Court's disposition was unreasonable, yet alone even incorrect. Mr. Johnson has not met that high threshold, and it is therefore recommended that Claim 6 be denied.
In Claim 8, Mr. Johnson argues that trial counsel was ineffective in failing to “properly investigate certain exculpatory witnesses supporting petitioner's lack of involvement and his actual innocence.” Am. Pet. at 3, ¶ 8. Mr. Johnson does not identify who these “exculpatory witnesses” would have been, but the Court presumes Mr. Johnson is raising the ineffectiveness claim originally raised in state court; namely, that trial counsel should have called George Lyle, Daniel Williams, and Marcel Green to testify at trial. As a result, this Court's review, as with Claim 6, is governed by AEDPA's standard of review
The Superior Court rejected on the merits the claim that counsel failed to call either George Lyle or Daniel Williams as a witness at trial, stating:
Contrary to Appellant's assertion, both Lyle and Williams testified at trial. Lyle, who testified on Appellant's behalf, told the jury that Appellant was with him at the time of the murder. N.T., 7/28/10, at 249-66. Williams, called as a witness for the Commonwealth, testified to seeing a man with a gun enter the victim's vehicle; threaten him, and run from scene following the crash. N.T.,
7/27/1, at 84-87. On cross-examination by trial counsel, Williams testified that he knew Appellant and that Appellant was not the man he same running from the vehicle. Id. at 92. Accordingly, Appellant's contention fails: trial counsel can hardly be deemed ineffective for failing to call witnesses who did, in fact, testify.
Superior Court decision, 10/21/2016, at 9-10.
Viewing the Superior Court's disposition of these claims through the deferential lens of AEDPA, the Court has no hesitancy in concluding that Mr. Johnson has failed to carry his burden to persuade this Court that the Superior Court's disposition was unreasonable, yet alone incorrect.
As to the claim for the failure to call Marcel Green, the Superior Court determined that this claim was waived because Mr. Johnson failed to comply with state law procedural requirements and explained as follows:
Appellant did not mention Green in his initial pro se PCRA petition, or in his counseled amended PCRA Petition. Moreover, his Brief to this Court contains no information regarding what testimony Appellant believes Green might have given had he been called at trial, or any other elements required under [Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007)]. Instead, Appellant's only reference to, and entire argument regarding, Green is the following single sentence: “The dispositive issue is whether trial counsel's ineffectiveness for failure to investigate other potential exculpatory witnesses [sic]; Daniel Williams, Andrew Davis, and Marcel Green.” Appellant's Brief at. Therefore, Appellant waived all claims regarding Green by failing to raise this claim below or develop it in his Brief to this Court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”); Harkins v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992) (noting that issues raised but not developed the argument section of a brief will be deemed waived.).Id. at 10-11.5
Rule 302(a) of the Pennsylvania Rules of Appellate Procedure states that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.”
Respondents argue that this issue does not warrant merits review because it is procedurally defaulted and Mr. Johnson presents no any exception to this bar which would warrant a merits review by this Court.
If a petitioner has failed to properly exhaust his claim-for example, he failed to comply with a state procedural rule such as Pa.R.A.P. 302(a)'s waiver rule-and as a result the state court declined to adjudicate the claim on the merits, the claim is defaulted in federal habeas corpus under the procedural default doctrine. See, e.g., Coleman, 501 U.S. at 730. The procedural default doctrine prohibits federal habeas courts from reviewing a state court decision involving a federal question if the state court decision is based on a rule of state law that is independent of the federal question and adequate to support the judgment. See, e.g., Gray v. Netherland, 518 U.S. 152, 162 (1996); Coleman, 501 U.S. at 732.
The Court of Appeals for the Third Circuit has held that Pa.R.A.P. 302(a), and other similar state procedural waiver rules, are adequate and independent state rules for the purposes of procedural default. See Thomas v. Sec'y, Dep't of Corrs., 495 Fed.Appx. 200, 205 (3d Cir. 2012) (failure to comply with Pa.R.A.P. 302(a) supports finding of procedural default); Crocker v. Klem, 430 Fed.Appx. 136, 138 (3d Cir. 2011) (finding of waiver under Pa.R.A.P 302(a) is basis for procedural default). As our court of appeals noted in Thomas, “Pennsylvania courts routinely decline to consider on appeal an argument that was not explicitly raised in the PCRA petition.” 495 Fed.Appx. at 205 (citing Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa. 2004) (citations omitted) (stating that “[c]laims not raised in the PCRA court are waived and cannot be raised for the first time on appeal”); Commonwealth v. Bond, 819 A.2d 33, 39 (Pa. 2002) (citations omitted) (finding appellant's claims were “separately and independently waived because, as appellant admit[ed], he failed to raise them in the PCRA court”); Commonwealth v.Bracey, 795 A.2d 935, 940 n. 4 (Pa. 2001) (citation omitted) (declining to consider on appeal an issue that was not properly presented in the post-conviction petition)).
This Court cannot consider this claim unless Mr. Johnson establishes cause and prejudice or a fundamental miscarriage of justice sufficient to excuse the default. Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000). Mr. Johnson has done neither. As a result, it is recommended that Claim 8 be denied.
Turning to Claim 12, Mr. Johnson argues that trial counsel was ineffective for (1) not “requesting a Writ of Habeas Corpus and/or an preliminary hearing, ” and (2) “failure to object to the Commonwealth's use of witness's coerced and false statement and testimony at trial.” Am. Pet. at ¶ 12. It appears that this claim relates to the photo array shown to Thomas Nguyen and Mr. Nguyen's identification of Mr. Johnson from that photo array. As Respondents's correctly point out, this claim was never raised in state court and, as a result, is procedurally defaulted. Mr. Johnson offers no argument on why this default should be excused.
Having procedurally defaulted this claim and having failed to carry his burden to overcome the procedural default, it is recommended that Claim 12 be denied as it does not provide a basis for relief in these federal habeas proceedings.
That said, even if this claim were not procedurally defaulted, the undersigned would recommend that it be denied as it lacks merit. The undisputed record reflects that a preliminary hearing was held on July 31, 2009, before David J. Barton, Magisterial District Judge, during which Thomas Nyugen was questioned about the photo array and the police interview conducted while he was in the hospital. (T09-1482). Additionally, Mr. Johnson provides no support for his argument that the Commonwealth used “coerced and false statement and testimony at trial.”
The docket at MJ-05003-CR-0007251-2009, reflects that Mr. Johnson was present at the preliminary hearing. See https://ujsportal.pacourts.us/Report/MdjDocketSheet?docketNumber=MJ-05003-CR-0007251-2009&dnh=7rCrDc0SiiNeAU9tLQ4t%2BA%3D%3D, page 3.
For all these reasons, it is recommended that Claim 12 be denied.
3. Claims Alleging PCRA Court Error
Mr. Johnson contends that the PCRA court erred in (1) dismissing his petition without a hearing (Claim 7) and (2) allowing PCRA counsel to withdraw his appearance when the no-merit letter revealed a limited investigation (Claim 9). Neither of these claims is cognizable in a federal habeas action.
The “federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas proceeding.” Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (emphasis added) (internal citations omitted); see also Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004) (stating that “alleged errors in collateral proceedings are not a proper basis for habeas relief”).
Thus, it is recommended that Claims 7 and 9 be denied.
4. Claim Involving Evidentiary Ruling of Trial Court
In Claim 11, Mr. Johnson argues that Thomas Nguyen's identification of him,
could not have been reliable or true for reasons that because “[a person's] memory while heavily intoxicated does not ‘improve' the next day. Petitioner posits that the statement of a witness at the hospital under serious of medications and heavily intoxicated was false and manufactured by the questioning police in coercing and pressuring witness to change his identification statement in identifying petitioner from an already prepared photo array at their (police) first
visit at the hospital and to falsely implicate petitioner as the police was merely out to arrest any suspect that favors a fitting description of the actual shooter.Amended Pet. at ¶ 11. Respondents contend that Mr. Johnson raised aspects of this claim on direct appeal - reliability - but to the extent that the claim attacks the witness's credibility, this claim was not raised in state court and is, therefore, unexhausted. Respondents also argue that the claim is not cognizable for federal habeas relief as Mr. Johnson is challenging the admissibility of evidence - a witness' identification - and evidentiary issues are matters of state, not federal law.
Because the issue of the reliability of the photo array was raised in the state courts and denied on the merits, this claim is governed by AEDPA's standard of review. The Superior Court stated:
Whether an out of court identification is to be suppressed as unreliable, and therefore violative of due process, is determined from the totality of the circumstances. Suggestiveness in the identification process is a factor to be considered in determining the admissibility of such evidence, but suggestiveness alone does not warrant exclusion. Identification evidence will not be suppressed unless the facts demonstrate that the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Photographs used in lineups are not unduly suggested if the suspect's picture does not stand out more than the others, and the people depicted all exhibit similar facial characteristics.Superior Court Memo., at 14 (quoting Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011)). On direct appeal, Mr. Johnson argued that the photographic array was unreliable because: (1) as it was based on anonymous tips, (2) it was not a “blind presentation” as Detective Evans knew which photograph depicted Johnson, (3) the detective “may have inadvertently communicated this to Thomas through his words or body language during the presentation of the arrays, ” and (4) Thomas Nguyen's “identification lacked reliability because he was under the influence of morphine, he ‘was likely fixated on his brother's death,' and he ‘may have been overzealous in his attempt to pin his [brother's] murder on one of the suspects in the photo arrays.” Superior Court Memo., 07/11/12 at 15.
Due process requires that an identification from a photographic array be suppressed if the “identification procedure is so suggestive that it undermines the reliability of the resulting identification.” United States v. Lawrence, 349 F.3d 109, 115 (3d Cir. 2003). In evaluating an array, a court is to “examine the totality of the circumstances to determine whether the array's suggestiveness denied the defendant due process.” Id. The admission of a pre-trial identification will also violate due process if the police emphasize the photograph of a particular suspect. Id. The Superior Court found that the photographic array shown to Thomas Nguyen and Thomas Nguyen's identification did not suffer from any of these defects.
In denying this claim on its merits, the Superior Court stated,
Appellant's arguments are mere speculation and are unsupported by any evidence of record. Detective Evans testified at the suppression hearing that Thomas was “lucid, ” “able to speak clearly, ” and “understood what was going on” when he was interviewed in the hospital. N.T. Suppression Hearing at 9. The detective stated that Thomas' speech was not slurred, and he was “bright eyed” and articulate....When Detective Evans showed the arrays to Thomas, he told him that “[i]ndividuals involved in this incident may or may not be in this array, ” and asked Thomas “to concentrate on things that remain constant, ” such as the shape of the person's eyes, nose, or chin. Id. at 12. Detective Evans testified that Appellant (sic) immediately identified Daniel Williams as “Woozy” from the first array he was shown, and then identified Appellant's picture in the fourth photo array, indicating that Appellant was the shooter.
In addition, the court viewed the photo arrays and stated the following:
[Appellant's] photograph did not stand out more than the others in the array. It was therefore not unduly suggestive on that basis. In addition, the circumstances under which [Thomas] had the opportunity to observe [Appellant] were such that the [c]ourt is satisfied that he had sufficient opportunity to see [Appellant] and recall his appearance. [Appellant] sat only a foot or two away from the victim when he entered the vehicle. Although [Appellant] (sic) did indicate that his [attention] was drawn to this individual to
display the handgun, he also clearly had an opportunity to closely observe [Appellant's] face and other physical characteristics for a sufficient amount of time to be able to select his photograph from the array presented to him.
T.C.O. at 9-10. Further, the court noted that “the fact that [Thomas] was in the hospital and potentially under the influence of pain medication did not go to the suggestiveness or admissibility of the identification but rather, to the credibility of the witness testifying.” Id. at 10. (citing Commonwealth v. Kyle, 533 A.2d 120, 132 (Pa. Super. 1987)).
Based on the foregoing, we conclude that the trial court did not err in determining that the photographic arrays shown to Thomas were not unduly suggestive. Accordingly, Appellant's claim that the court erred in admitting this evidence is meritless.Superior Court Memo., 7/11/12, at 16-17.
Viewing the Superior Court's disposition of the reliability aspect of this claim through the deferential lens of AEDPA, the undersigned has no hesitancy in concluding that Mr. Johnson has failed to carry his burden to persuade this Court that the Superior Court's disposition was unreasonable. Thus, it is recommended that this aspect of the claim be denied.
Mr. Johnson also appears to be challenging the credibility of Thomas Nguyen's identification and testimony. This issue was not raised in state court and is therefore unexhausted and procedurally defaulted. Mr. Johnson offers no argument on why this default should be excused. Having procedurally defaulted this claim and having failed to carry his burden to overcome the procedural default, it is recommended that Claim 12 be denied.
But even if this claim were not procedurally defaulted, the undersigned would recommend that it be denied as it does not provide a basis for relief in these federal habeas proceedings. Although the trial transcript reflects that Daniel (Woozy) Williams and George Lyle gave contradictory testimony to that of Mr. Nguyen's, the credibility of witnesses (including Mr. Nguyen who identified Mr. Johnson as the shooter) was for the jury to determine. The credibility of witnesses, the resolution of conflicts of evidence, and the drawing of reasonable inferences from proven facts all fall within the exclusive province of the fact-finder and are therefore beyond the scope of federal habeas review.
The state court record, including the trial transcript, reflects that throughout the pretrial and trial proceedings, defense counsel advanced an alibi defense - that Mr. Johnson was with George Lyle on the date and time of the shooting.
For all these reasons, it is recommended that Claim 11 be denied.
D. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, the Court concludes that jurists of reason would not find it debatable whether Mr. Johnson's petition fails to state a valid claim of the denial of a constitutional right. For these reasons, it is recommended that a certificate of appealability should be denied.
III. CONCLUSION
For all of the above reasons, it is respectfully recommended that the instant habeas petition for a writ of habeas corpus be denied. It is also recommended that there is no basis upon which to grant a certificate of appealability.
Any party is permitted to file 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, Mr. Johnson, because he is a non-electronically registered party, may file written objections to this Report and Recommendation by May 24, 2021, and Respondents, because they are electronically registered parties may file written objections by May 19, 2021. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).