Opinion
Civil Action 2: 19-cv-1442
06-08-2020
TRACY MEDLEN, Petitioner, v. SUPERINTENDENT SCI FAYETTE, DISTRICT ATTORNEY OF WASHINGTON COUNTY, ATTORNEY GENERAL OF PENNSYLVANIA, Respondents.
Robert J. Colville, United States District Judge.
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge.
I. RECOMMENDATION
Petitioner, Tracy Medlen, a prisoner currently confined at the State Correctional Institution - Fayette, in Labelle, Pennsylvania, has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 7). He is challenging the judgment of sentence imposed on him on January 27, 2014, by the Court of Common Pleas of Washington County, Pennsylvania, at its criminal case at CP-63-CR-0000328-2013. For the reasons outlined below, it is recommended that the Petition be denied and a certificate of appealability should also be denied.
II. REPORT
A. Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. That provision allows a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). It is Medlen's burden, as petitioner, to prove he is entitled to the writ. Id., see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017).
II. Relevant and Procedural Background
1. State Court Proceedings
A jury trial commenced on September 17, 2013, before the Honorable John F. DiSalle. Medlen was represented at trial by the Washington County Office of the Public Defender, Rose A. Semple, Esquire. The Pennsylvania Superior Court, in its Memorandum dated November 19, 2018, affirming the dismissal of Medlen's PCRA petition, recounted the factual background that led to Medlen's arrest and conviction:
On January 17, 2013, Appellant was arrested and charged with various offenses arising from the stabbing of Brandon Sarasnick with a kitchen knife. Following a jury trial, Appellant was convicted of criminal attempt (homicide), aggravated assault, and recklessly endangering another person. The trial court sentenced Appellant to twenty to forty years' incarceration. A panel of this Court affirmed Appellant's judgment of sentence. See Commonwealth v. Medlen, No. 344 WDA 2014 (Pa. Super. filed Feb. 5, 2016) (unpublished memorandum).Commonwealth v. Medlen, No. 1552 WDA 2017, 2018 WL 6038560, at *1 (Pa. Super. Nov. 19, 2018) (unpublished memorandum).
The Superior Court summarized the facts adduced at Medlen's trial in its Memorandum filed February 5, 2016, in which it affirmed the judgment of sentence. Commonwealth v. Medlen, No. 344 WDA 2014, 2016 WL 490170 (Pa. Super. Feb. 5, 2016) (unpublished memorandum).
Medlen, represented by Attorney Semple, filed a timely Notice of Appeal. On appeal, Medlen presented eight issues for review regarding the admission of certain evidence, alleged prosecutorial misconduct at trial, and alleged error by the trial court in jury instructions and admission of evidence at sentencing. The Superior Court affirmed the judgment of sentence by Memorandum filed February 5, 2016. Commonwealth v. Medlen, No. 344 WDA 2014, 2016 WL 490170 (Pa. Super. Feb. 5, 2016) (unpublished memorandum). No further appellate review was sought.
On April 15, 2016, Medlen filed a pro se petition for post-conviction collateral relief under Pennsylvania's Post-Conviction Relief Act (“PCRA”), in which he raised four issues for review. (Id. at 290-301). The PCRA court appointed, Stephen C. Paul, Esquire, to represent Medlin through his PCRA proceedings. (Id. at 289). On May 17, 2017, Attorney Paul filed a 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), and a Motion to Withdraw. (Id. at 276 -86). The PCRA court granted counsel's motion to withdraw, issued a notice of its intent to dismiss, and ultimately dismissed the petition on September 20, 2017, without a hearing. On October 20, 2017, Medlen filed a timely Notice of Appeal from the PRCA court's order dismissing his PCRA petition. (Id. at 259).
On November 3, 2017, the PCRA court ordered Medlen to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). (Id. at 260). Medlen, acting pro se, then filed a concise statement raising eight issues. (Id. at 249-53). On January 8, 2018, without leave of court, Medlen filed an amended concise statement raising ten issues. (Id. at 24446). The PCRA court issued its Rule 1925(a) opinion on June 5, 2018, finding that Medlen was not entitled to relief on any of his claims. (Id. at 213-235).
Medlen, acting pro se, filed a Notice of Appeal and filed his appellant brief on July 3, 2018. (Id. at 136-57). He raised four ineffective assistance of trial claims (Claims 1 - 4); three claims of trial court error (Claims 5 - 7), and two claims of prosecutorial misconduct (Claims 8-9). The Superior Court found that the claims of trial court error (Claims 5-7) were waived as Medlen had failed to raise those issues on direct appeal; that the claims of prosecutorial misconduct (Claims 8 - 9) were waived as Medlen could have raised these claims in his direct appeal, but did not do so; and that three of his ineffective assistance of trial claims (Claims 1-3) were waived because they were not raised in his Rule 1925(b) statement. Commonwealth v. Medlen, 2018 WL 6038560, at *2-3. That left only one issue - Claim 1, trial counsel's alleged failure to object to the trial testimony of Commonwealth witness Rashae Watts - for the Superior Court to review, which it denied on the merits on November 19, 2018. Id. at *4. No further appellate review was taken.
The Superior Court noted in its Memorandum of 11/19/2018, that Medlen's “statement of questions on appeal was convoluted and each ‘question' contained more than one issue per question. For ease of disposition, [the Superior Court] restated and renumbered the issues Appellant raises through his statement on appeal.” Commonwealth v. Medlen, 2018 WL 6038560, at *1, n.1.
II. Federal Court Proceedings
Having been denied relief in state court, Medlen filed the instant federal habeas petition, in which he raises four issues. (ECF No. 7). Respondents filed an Answer in which they argue that the state courts properly disposed of the issues presented in the PCRA petition and that Medlen has not fully litigated any federal constitutional issues he now raises. (ECF No. 19). Medlen filed a Traverse which is focused on his due process claim. (ECF No. 20). The Court has reviewed the filings of the parties, the electronic copies of the state court record which Respondents provided the Court, including the trial transcript (ECF No. 19-3, 19-4, and 19-5), and the Memorandum Opinions of the Superior Court filed February 5, 2016, and November 19, 2018. The matter is fully briefed and ready for disposition.
Similar to his concise statement on appeal, Claim One of the instant federal habeas petition, actually consists of three distinct claims alleging trial counsel ineffectiveness and Claim Two contains two separate claims.
Copies of the Superior Court decisions provided to the Court by Respondents were incomplete. However, the Court was able to access these unpublished Opinions through WestLaw: Commonwealth v. Medlen, No. 344 WDA 2014, 2016 WL 490170 (Pa. Super. Feb. 5, 2016) and Commonwealth v. Medlen, No. 1552 WDA 2017, 2018 WL 6038560, at *1 (Pa. Super. Nov. 19, 2018).
C. The Standard for Habeas Relief under 28 U.S.C. § 2254
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing habeas corpus petitions “must be vigilant and independent . . . a commitment that entails substantial judicial resources.” Id. This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “which imposes significant procedural and substantive limitations on the scope” of the Court's review. Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017). Under 28 U.S.C. § 2254, federal courts in habeas cases must give considerable deference to determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010). Various standards must be met before the Court can review the merits of this habeas petition.
1. Timeliness
Before the Court can address the merits of Medlen's petition, it must first decide whether it was timely filed. Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019). Pursuant to AEDPA, a state prisoner must file his federal habeas claims within one year of the date his judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). Respondents do not contest that the petition was timely filed. (ECF No. 19 at 12).
Because Medlen did not seek direct review from the Pennsylvania Supreme Court, his sentence became final for purposes of the one-year PCRA statute of limitations and the one-year federal habeas statute of limitations on March 7, 2016, thirty days after the Pennsylvania Superior Court affirmed his conviction and sentence. See 28 U.S.C. § 2244(d)(1)(A) (the one-year federal limitations period generally begins on the date the petitioner's judgment of sentence became final “by the conclusion of direct review or the expiration of the time for seeking such review”); Pa. R. App. P. 1113(a) (“[A] petition for allowance of appeal shall [generally] be filed ... within 30 days after the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed.”). When Medlen filed his PCRA petition on April 15, 2016, the one-year habeas statute was “immediately tolled.” Nelson v. Superintendent of SCI-Retreat, 2019 WL 897296 *2 n.4 (E.D. Pa. Jan. 31, 2019). At that point, only thirty-nine days of the limitations period had expired. Medlen's PCRA petition remained pending in the state court system until November 19, 2018, when the Pennsylvania Superior Court affirmed the dismissal of his PCRA petition. Because Medlen did not seek review by the Pennsylvania Supreme Court, the AEDPA statute of limitations began to run again on December 19, 2018. Medlen had until November 12, 2019, to timely file a federal habeas petition. The instant Petition was filed on October 29, 2019. Thus, the Court agrees that the instant petition was timely filed.
Pennsylvania and federal courts employ the prisoner mailbox rule, pursuant to which the pro se petition is deemed filed when it is given to prison officials for mailing. See Perry v. Diguglielmo, 169 Fed.Appx. 134, 136 n.3 (3d Cir. 2006) (citing Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998)). In this case, Medlen certified that he gave his habeas petition to prison officials on October 29, 2019, and it will be deemed filed on that date.
2. Has the Petition Presented Cognizable Habeas Claims?
Habeas relief may be afforded to a state prisoner only when his or her custody violates federal law. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 6 (2010). The Petition raises three grounds for relief: ineffective assistance of counsel, trial error, and due process / illegal sentence. All of these claims are cognizable in habeas proceedings.
3. 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).
Nor may a federal court grant a habeas petition if the state court's decision rests on a violation of a state procedural rule, even if the claim is properly exhausted. Johnston v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is “independent of the federal question [presented] and adequate to support the judgment.” Leyva v. Williams, 504 F.3d 357, 365-66 (3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187 (3d Cir. 2007)).
4. 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). 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 Medlen 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).
Each of Medlen's claims will be reviewed with these standards in mind.
D. Discussion
1. Claim One - Ineffective Assistance of Counsel
Claim One consists of three distinct ineffective assistance of counsel claims:
(a) Appellate counsel failed to cite to relevant case law in his appellant brief on direct appeal;
(b) Trial counsel failed to move for a continuance for trial after her appointment a week before trial; and
(c) Trial counsel failed to follow up on his instructions that he would sign an 8-16 year plea agreement.
Claims alleging ineffectiveness of counsel are grounded in rights guaranteed under the Sixth Amendment. The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1994), announced the test that a habeas petitioner must satisfy before a federal court could find that counsel failed to provide effective assistance under the Sixth Amendment. This same standard has been incorporated by Pennsylvania courts as the proper basis to consider challenges for ineffective assistance of counsel under the Pennsylvania constitution. See Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (stating that Pennsylvania courts apply elements of the Strickland test to ineffective assistance of counsel claims). A Pennsylvania court's resolution of an ineffective assistance claim, therefore, is presumed to apply clearly established federal law and is due the substantial deference required by 28 U.S.C. § 2254(d).
Under the two-prong Strickland test, a petitioner must show: (1) that his attorney's representation fell well below an objective standard of reasonableness; and (2) that there is a reasonable probability that, absent counsel's errors, the result of the proceeding would have been different. 466 U.S. at 688-96. To satisfy the first prong of the Strickland test, a petitioner must show that “counsel made errors so serious that counsel was not functioning as ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. To meet the second prong of the Strickland test, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceeding. Id. It is self-evident that counsel cannot be ineffective for failing to pursue meritless claims or objections. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).
Claims One (a) and (b)
Respondents argue that Claims One(a) and (b) do not warrant a merits review because the Superior Court found the claims to be waived based upon a violation of state procedural rules, and, thus, the claims are procedurally defaulted and Medlen has not presented any exception to this bar which would warrant a merits review by this Court. The record reflects that Medlen presented both claims in his pro se PCRA Petition; however, he did not raise these issues in his timely Rule 1925(b) Concise Statement of Matters Complained of an Appeal. Instead, he raised these issues in an untimely amended Rule 1925(b) statement, filed without leave of court. (ECF No. 19-1 at 244).
As the Superior Court explained:
[Medlen] has also failed to preserve issues one, two, and three as well because he did not include them in his timely Rule 1925(b) statement. Instead, Appellant only included these issues in an untimely supplemental Rule 1925(b) statement, filed without leave of court. “Any issues not raised in a [Rule] 1925(b) statement
will be deemed waived.” Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citation omitted). This rule of waiver extends to issues raised in an untimely supplemental Rule 1925(b) statement filed without leave of course. See Commonwealth v. Jackson, 900 A.2d 936, 939 (Pa. Super. 2006). Thus, we find these three issues waived.Commonwealth v. Medlen, 2018 WL 6038560, at *2.
Medlen's first ineffective assistance of counsel claim presented on PCRA review was that counsel failed to cite to relevant case law in appellant's brief on direct appeal, the same issue as raised in the instant petition as Claim One(a). The second ineffective assistance of counsel claim presented was that trial counsel failed to move for a continuance of trial after her appointment a week before trial, the same issue as raised in Claim One(b). The third ineffective assistance of counsel claim was that trial counsel failed to object to the improper addition of criminal attempt (homicide) to the criminal complaint. In the instant federal petition, Medlen has not raised this issue as an ineffective assistance of counsel claim. Rather, in Claim Four, he presents the issue as a due process claim of an illegal sentence.
A federal court ordinarily may not review a claim on the merits if the state court's denial of relief is based on a procedural default that rests on a state law ground that is independent of the federal question and adequate to support that judgment. Maples v. Thomas, 565 U.S. 266, 820 (2012); Coleman v. Thompson, 501 U.S. 722, 729 (1991). Here, the Superior Court's decision to rests comfortably on such basis.
Rule 1925(b)(4)(vii) specifically states that “[i]ssues not included in the Statement [of Errors Complained of on Appeal] and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.” Because the Superior Court's decision was based on an independent and adequate state procedural rule, this claim is procedurally defaulted. See Coleman, 501 U.S. at 731-32; Griggs v. DiGuglielmo, No. 06-1512, 2007 WL 207971, at *5 (E.D.Pa. July 3, 2007) (“the Pennsylvania Rules of Appellate Procedure and PCRA waiver rules are independent and adequate state grounds which may bar federal habeas review”); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (Pennsylvania “jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered [and] any issues not raised in a Rule 1925(b) statement will be deemed waived.”).
This Court cannot consider these claims unless Medlen establishes cause and prejudice or a fundamental miscarriage of justice sufficient to excuse the default. Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 (3d Cir. 2018) (stating that 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.) Medlen has not met this burden. As a result, it is recommended that Claims One(a) and (b) be denied because they are procedurally defaulted and federal review is barred.
Claim One(c)
Claim One(c) was addressed by the Superior Court and rejected on the merits. As a result of the Superior Court denying the claim on its merits, this Court's review is governed by AEDPA's standard of review. Pennsylvania courts are presumed to apply clearly established federal law and the decisions of those courts are due the substantial deference required by 28 U.S.C. §2254(d).
The Superior Court began its analysis by applying the Pennsylvania test for ineffective assistance of counsel derived from Commonwealth v. Pierce, 527 A.3d 973 (Pa. 1987):
We presume counsel's effectiveness, and an appellant bears the burden of proving otherwise. See Commonwealth v. Brown, 161 A.3d 60, 965 (Pa. Super. 2017). To establish ineffectiveness of counsel, a PCRA petitioner must plead and prove the following: his underlying legal claim has arguable merit; counsel's actions lacked any reasonable basis; and counsel's actions prejudiced the petitioner. See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to satisfy any prong of the ineffectiveness test requires dismissal of the claim. See Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa. Super. 2004). Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome.” Commonwealth v. Stewart, 84 A.3d 701, 717 (Pa. Super. 2013) (en banc) (citations and internal quotations marks omitted).
The Commonwealth contends that Appellant's claim of ineffectiveness fails because he fails to plead, or even attempt to prove, resultant prejudice. We agree.
While Appellant vague asserts prejudice due to the surprise nature of Watts's testimony. he fails to show how the introduction of that testimony actually prejudiced him. In fact, Appellant does not even address the contends of Watts's testimony in his appellate brief. Given this, we cannot conclude that but
for counsel's errors, the results of the proceedings would have been different.
Appellant's sole preserved ineffective assistance of counsel claim fails.Commonwealth v. Medlen, 2018 WL 6038560, at *3.
The “Pierce Test” has been found to be materially identical to the Strickland test. Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2008). See also Grant v. Wilson, 282 Fed.Appx. 138 (3d Cir. 2008). Thus, the Superior Court did not apply a rule of law that contradicts established Supreme Court precedent and therefore its decision was not contrary to clearly established Supreme Court precedent.
The only question here is whether the Pennsylvania Superior Court unreasonably applied the Strickland standard or otherwise based its decision upon an unreasonable factual determination. That is, this Court must also analyze Medlen's ineffectiveness claim under the “unreasonable application” provision of 28 U.S.C. §2254(d). “Under that provision, the appropriate inquiry is whether the Pennsylvania courts' application of Strickland to [Medlen's] ineffectiveness claim was objective unreasonable, i.e., the state court decision evaluated objectively and on the merits, resulted in an outcome that cannot reasonable be justified under Strickland.” Werts, 228 F.3d at 204. The question then is whether “the Pennsylvania Superior Court's determination that trial counsel rendered effective assistance was not an unreasonable applicable of Strickland.” Id.
This Court's review is limited to the last state court decision to pass on the merits of a particular claim. See Wright v. Vaughn, 473 F.3d 85, 90 (3d Cir. 2006). Thus, this Court's review centers on the Superior Court's decision of November 19, 2018.
To prevail on a claim that the state court has adjudicated on the merits, Medlen 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”). Medlen has not met that high threshold. Viewing the Superior Court's disposition of this claim through the deferential lens of AEDPA, the Court has no hesitancy in concluding that Medlen has failed to carry his burden to persuade this Court that the Superior Court's disposition was unreasonable, yet alone incorrect. For this reason, it is recommended that Claim One(c) be denied.
2. Claims Two and Three - Trial Court Error
Claim Two consists of two distinct issues: (a) the trial court erred in allowing Charles Carpenelli, Esquire, to withdraw a week before trial and (b) the trial court erred in allowing Rose A. Semple, Esquire, to represent Medlen without granting a postponement sua sponte. And Claim Three presents an allegation that the trial court erred in allowing the Commonwealth to add the charge of criminal attempt homicide to the criminal complaint. As Respondents correctly point out, all three of these issues are procedurally defaulted. The Superior Court explained,
The PCRA, however, procedurally bars claims of trial court error, by requiring a requiring a petitioner to show the allegation of error is not previously litigated or waived. 42 Pa.C.S.A. §§ 9543(a)(3), 9544. At the PCRA stage, claims of trial court error are either previously litigated (if raised on direct appeal) or waived (if not). Commonwealth v. Spotz, 18 A.3d 244, 260-61 (Pa. 2011) (rejecting claims of trial court error as either previously litigated where raised on direct appeal or waived where not raised on direct appeal. Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc).
Appellant failed to raise issues five, six, and seven on direct appeal. So, we find those issues waived.Commonwealth v. Medlen, 2018 WL 6038560, at *2.
Like Claims One(a) and (b), because these claims are procedurally defaulted, this Court cannot consider them unless Medlen establishes cause and prejudice or a fundamental miscarriage of justice sufficient to excuse the default. Preston, 902 F.3d at 375. Again, Medlen has not met this burden. As a result, it is recommended that Claims Two(a) and (b), and Three be denied because they are procedurally defaulted and federal review is barred.
3. Claim Four - Due Process Violation / Illegal Sentence
Medlen's final claim is that his sentence is illegal because
[t]he charge of Attempted-Homicide which was illegally added and I was never given any notice lacked elements such as SBI [serious bodily injury] which is a mandatory requirement to sentence me to an aggravated sentence of a 40 yr maximum. I was convicted and sentenced on evidence outside of indictments scope. I was only charged w/Attempted-Homicide 901. And all of the elements of said offense must be transcribed and included within said amended criminal complaint. In the absence of any elements that can enhance sentence, Attempted Homicide w/o SBI only carries 20 yr. I'm seeking to be resentenced to something to 10 to 20 years or less.Petition, Ground Four (ECF No. 7).
Medlen raised this claim in his PCRA Petition. (ECF No. 19-1 at 293). PCRA counsel addressed the issue in his Turner/Finley “no merit” letter and determined “nothing shows the Defendant's sentence was illegal.” (ECF No. 19-1 at 285.) The Superior Court did not address the issue because it was not raised in the appellate brief. See Pa.R.A.P. 2116. As such, Medlen's due process / illegal sentence claim was not fairly presented to the Superior Court and is procedurally defaulted. Because Medlen has not met his burden to overcome the procedural default, it is recommended that Claim Four be denied because it is procedurally defaulted and federal review is barred.
Nevertheless, despite the fact that this claim is procedurally defaulted, the claim is without merit. Medlen's claim that he was never given notice that the Criminal AttemptHomicide charge included serious bodily injury is belied by the record. As explained by the PCRA court in response to the PCRA petition,
The circumstances demonstrate that the count of Criminal AttemptHomicide was inadvertently omitted from the police criminal complaint and was added by amendment upon presentation to the magisterial district judge. A review of the record will show that the criminal complaint in question was dated January 4, 2013. Before the first two counts on page 2 of the criminal complaint, there is a handwritten count of Criminal Attempt-Homicide followed by the signature of the person who added the count. This criminal complaint was then reviewed and signed by Magisterial District Judge Robert Redlinger when filed, including the charge of Criminal Attempt-Homicide. The Defendant waived his right to his preliminary hearing on January 23, 2013. The magisterial docket transcript, along with the police criminal complaint, was filed on February 1, 2013 including Criminal Attempt-Homicide as one of the charges. Subsequently, on March 18, 2013, the Commonwealth filed the criminal information charging Defendant with multiple crimes including Criminal Attempt-Homicide.
PCRA Opinion, 6/5/2010 (ECF No. 19-1 at 232) (internal footnotes omitted). See ECF Nos. 19-1 at 110, 115, 119. Count 1 of the Criminal Information, charged as follows:
Count 1 - CRIMINAL ATTEMPT to Criminal Homicide
18 Pa.C.S.A. 901(a) - Felony 1st DEGREE
The actor, with the intent to commit the crime of Criminal Homicide, that is, a violation of section 2501 of the Pennsylvania Crimes Code, did an act or acts that constituted a substantial step toward the commission of that crime, that is, the actor did use a knife to stab Brandon Sarasnick in the chest, in violation of Section 901(a) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S.A. § 901(a), as amended.
Criminal Information (ECF No. 19-1 at 109). And the Notice of Alibi Defense filed on August 5, 2013, specifically states that “On January 4, 2013, Detective Daniel Rush of the Washington City Police Department filed a Criminal Complaint charging the defendant with Criminal Attempt-Homicide, Aggravated Assault; and Recklessly Endangering Another Person.” (ECF No. 19-1 at 94).
The trial court instructed the jury:
You must determine whether, as a result of the defendant's attempt to commit murder, whether serious bodily injury resulted to the victim. Serious bodily injury is a bodily injury that creates a substantial risk of death or that caused serious impairment, disfigurement or protracted loss or impairment of the function of any bodily member or bodily organ. Again, this is the victim's lung, the stabbing into the lung, and you heard the testimony on that. I don't think that
is in question.N.T. at 297 (ECF No. 19-4 at 145). And in reaching its verdict, the jury answered in the affirmative the following questions:
Do you find that Brandon Sarasnick suffered serious bodily injury?
Do you find that a deadly weapon was used?Verdict (ECF No. 19-1 at 84). The applicable sentencing statute provides that,
A person who has been convicted of attempt, solicitation or conspiracy to commit murder, . . ., where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years. Where serious bodily injury does not result, the person may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 20 years.18 Pa.C.S. § 1102(c).
There is no need for additional explanation for why Medlen's claims about his sentence are incorrect. Medlen knew that the body of the charge clearly stated that Medlen was accused of stabbing the victim in the chest with a knife. The trial court properly instructed the jury and Medlen was found guilty of Criminal Attempt-Homicide with Serious Bodily Injury. Because Medlen is not entitled to habeas relief on this claim, it is recommended that this claim be denied.
E. 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 denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying that standard here, the undersigned concludes that jurists of reason would not find it debatable whether each of Medlen's claims should be denied. For these reasons, it is recommended that a certificate of appealability 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 written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Medlen, because he is a non-electronically registered party, may file written objections to this Report and Recommendation by June 28, 2021, and Respondents, because they are electronically registered parties, may file written objections by June 25, 2021. The parties are advised that failure to file timely and specific objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).