Opinion
Civil Action 2:20-1070
05-26-2023
RAYMOND J. RIVERA, Petitioner, v. DISTRICT ATTORNEY OF WESTMORELAND COUNTY, et al., Respondents.
ROBERT J. COLVILLE, JUDGE
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Pending before the Court is the Petition for a Writ of Habeas Corpus (ECF 13) and amendment thereto (ECF 25) filed by state prisoner Raymond J. Rivera (“Petitioner”) under 28 U.S.C. § 2254. Petitioner, who is proceeding pro se, is challenging the judgment of sentence imposed on him by the Court of Common Pleas of Westmoreland County in 2013. It is respectfully recommended that the Court deny each of Petitioner's claims and deny a certificate of appealability.
As explained below, Petitioner brings 16 claims for relief in this habeas action. All but one of his claims (Claim 7) are procedurally defaulted because Petitioner did not exhaust his available state court remedies with respect to them.
II. REPORT
A. Relevant Background
On October 21, 2011, Petitioner shot John Evans and Willie Young at the Central City Plaza shopping center in New Kensington, Pennsylvania. Evans died at the scene. Young was seriously injured but survived.
The Commonwealth charged Petitioner with criminal homicide, attempted criminal homicide and related crimes. His six-day trial was held in the Court of Common Pleas of Westmoreland County in August 2013. Assistant Public Defenders Christopher Haidze and Alan J. Manderino (collectively, “trial counsel”) represented Petitioner at his trial.
Petitioner testified in his defense at the trial. He admitted that he shot Evans and Young but contended that he was acting in self-defense or in defense of his girlfriend, April Cevario.
At the end of the trial, the jury convicted Petitioner of first-degree murder in the killing of
Evans, attempted criminal homicide in the shooting of Young, two counts of aggravated assault and one count of possession of a firearm prohibited. The trial court sentenced Petitioner to the mandatory term of life in prison without the possibility of parole on the first-degree murder conviction and concurrent terms of incarceration on the remaining counts.
Petitioner, through counsel, filed post-sentence motions arguing that the jury's verdicts were against the weight of the evidence and that the Commonwealth presented insufficient evidence to support the verdicts. (Resp's Attach. 11 at 512-14.) The trial court denied those motions in an opinion dated May 9, 2014. (Resp's Attach. 12 at 535-44.) It summarized the evidence introduced at Petitioner's trial as follows:
Respondents electronically filed as attachments to the Answer (ECF 35) relevant parts of the state court record. The documents will be cited to by their attachment number and Bates' stamp number as follows: “Resp's Attach. __ at __.” Respondents have also submitted a hard copy of the Court of Common Pleas' file for Petitioner's criminal case, including the transcripts. The documents contained in that file, excluding the transcripts, are indexed and numbered 1 through 135 and will be cited as “SCR at __.”
On the evening of October 20, 2011, John (a/k/a “New York Mike”) Evans, Willie Young, and Laquan (“Zay”) Cargill were at the Central City Plaza shopping center in the City of New Kensington. Evans intended to visit the Family Dollar store, which was one of the businesses in the “strip mall” type plaza, to meet up with another friend called “Tree” [Melvin Hall]. When Evans entered the Family Dollar, Young and Cargill continued to the Shop-n-Save store to buy cigarettes. When Young and Cargill returned to the Family Dollar store, Young briefly entered
the store and told Evans that they had returned, and then waited with Cargill outside the store. As Evans and “Tree” came out of the front doors of the Family Dollar Store, Young heard a woman, later identified as April Cevario,... screaming at Evans. Young noted that Evans did not react to the screaming woman. He saw [Petitioner] pull up in his car in the parking lot near the Family Dollar store. Young testified that Evans told [Petitioner], “Come get your girl,” and [Petitioner] lifted up his shirt, pulled out his gun, and shot Evans two or three times. Evans fell immediately to the ground. [Petitioner] then stepped over Evans, pointed the gun at Young, and stated, “You're next.” [Petitioner] then fired the gun at Young, who turned and ran into the Family Dollar store. Young suffered gunshot wounds to his leg and his arm. (TT 160-173.) Evans died at the scene. [Petitioner] then fled the scene and threw away the gun, but turned himself into police the following day.
John Evans had sustained two gunshot wounds: one to his left thigh and one to his neck. Dr. Cyril Wecht testified that[] the gunshot wound in the neck had perforated the jugular vein, which resulted in a “significant amount of external damage.” (TT 334). In his opinion, the cause of Evans' death was “primarily the gunshot wound of the neck, producing the injuries that I have described, and resulting in a large amount of bleeding, referred to [here] as exsanguination, which simply means bleeding out.” (TT 337).
The events of October 20, 2011 in the Central City Plaza were witnessed by multiple persons and also caught on video tape by various surveillance cameras that had been installed by businesses in that shopping center. [Petitioner] did not deny that he fired the shots that killed John Evans and wounded Willie Young. He claimed, however, that he believed that John Evans was about to shoot him and that his actions that night were in self-defense and, alternatively, in defense of his girlfriend, April Cevario.
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However, the jury disbelieved that claim, which was also contrary to the evidence. While there was evidence to show that historically there was some tension between [Petitioner] and Evans [who may have been involved in a sexual relationship with April Cevario], there is no evidence to show that Evans was the aggressor on [the] evening of October 20, 2011. While two witnesses testified that Evans told [Petitioner] “I should fuck you up,” after Cevario confronted Evans [outside the Family Dollar Store], and also suggested that an extensive argument occurred, the remaining witnesses testified that Evans made no threats toward [Petitioner], he made no aggressive or threatening movements toward [Petitioner], and Evans had no weapon himself, as [Petitioner] suggested. Indeed, the video evidence from the various locations supported the witness testimony that [Petitioner] approached Evans as Cevario was confronting him, pulled his weapon and fired multiple shots at Evans, causing his death[.] The jury was free to believe or disbelieve [Petitioner's] claim of self-defense, and rejected that claim. Additionally, [Petitioner] fled the scene leaving his victims wounded and bleeding in Central City Plaza in New Kensington. He sped off into the night with the headlights of his vehicle extinguished, disposed of the weapon, and eventually met up with his girlfriend, April Cevario in a neighboring county.
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After fatally shooting John Evans [and before he fled the scene], Petitioner turned his attention to Willie Young, who was on the steps leading to Family Dollar. [Petitioner] stated, “You're next,” and fired the gun directly at Willie Young, striking him in the arm and the leg. (TT 169-170, 213). Young was not directedly near Evans at the time that [Petitioner] started shooting at Evans, but was located at the top of the steps, and had been texting on his phone seconds before the gunfire erupted. (TT 167). [Petitioner] testified that he believed that Young posed a threat to him, that Young threatened to kill him in retaliation for his shooting of Evans and reached for his waistband, and [Petitioner] heard a “pop.” This caused him to shoot at Young not once, but several times, even as Young fled into the Family Dollar store. (TT 781-782). Clearly, [Petitioner's] claim of self-defense were not believed by the jury[.]
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[Petitioner] set forth sufficient evidence at trial to permit the question of self-defense to go to the jury. However, the Commonwealth presented sufficient evidence to rebut this allegation and prove beyond a reasonable doubt that he did not act in self-defense. Regardless of any “tension” that may have [existed] between Evans and [Petitioner], whether it be from Evans' suspicion that [Petitioner] was a “snitch” or [Petitioner's] belief that Evans and Cevario were having an affair, the evidence showed that [Petitioner] was the initial aggressor outside the Family Dollar. Indeed, the evidence established that it was Cevario who confronted Evans, that Evans largely ignored Cevario and that Cevario remained in the midst of the situation only until [Petitioner] appeared, departing just before [he] began shooting at Evans. There is no credible evidence to establish that Evans behaved in an aggressive or threatening manner toward either Cevario or [Petitioner]. [Petitioner's] claim of self-defense cannot prevail where the evidence establishes that the was he initial aggressor.(Resp's Attach 12 at 535-42.)
Petitioner, through new counsel Attorney James DePasquale, filed a direct appeal with the Superior Court of Pennsylvania in which he raised one claim: the trial court erred when it granted the Commonwealth's motion in limine to exclude the psychiatric report of defense expert Dr. Robert Wettstein. The Superior Court affirmed Petitioner's judgment of sentence in a two-to-one decision in which the majority held that the trial court did not err. (Resp's Attach. 14 at 61822.)
After the Pennsylvania Supreme Court denied a petition for allowance of appeal, Petitioner filed a pro se petition for collateral relief under Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Const. Stat. § 9541, et seq. (Resp's Attach. 15 at 664-83.) The trial court, now the PCRA court, appointed Attorney Timothy Andrews to represent Petitioner.
In the counseled, amended PCRA petition, Petitioner contended that trial counsel was ineffective for failing to:
1. interview and present at trial testimony from Deon Lee, who allegedly saw Evans with a gun shortly before Petitioner shot him (which is Claim 7 of the instant federal habeas petition);
2. secure an investigator to determine whether any other bullets or shell casings could be retrieved from the crime scene to establish that Evans may have shot at Petitioner and Petitioner responded in self-defense;
3. interview and present at trial testimony from former Arnold Police Chief Eric Doubt that Petitioner told him that Evans had threatened Petitioner's life;
4. advise Petitioner before trial of a plea offer extended by the Commonwealth; and,
5. hire an expert to perform a gunshot residue test on the victims to bolster Petitioner's claim of self-defense.(Resp's Attach. 15 at 684-88; see also Resp's Attach. 23 at 1008-22.)
The PCRA court scheduled an evidentiary hearing for August 4, 2017. At Petitioner's request, the PCRA court continued the hearing and granted his motion for funds to hire an investigator to assist in Petitioner's efforts to locate Deon Lee. (Id. at 693-701.)
In October 2017, Attorney Andrews moved to withdraw as counsel. He explained that Petitioner was dissatisfied with his representation because he declined to file another amended PCRA petition and raise additional claims that Petitioner believed should be raised. (SCR at 92.) The Court granted Attorney Andrews' motion and appointed Attorney Michael DeMatt to represent Petitioner.
Throughout his PCRA proceeding (both before the PCRA court and in his subsequent appeal to the Superior Court), Petitioner submitted various pro se filings in which he tried to assert claims in addition to those raise in the counseled, amended PCRA petition. (See Resp's Attach. 1619 at 709-879). However, Pennsylvania does not permit “hybrid” representation and therefore state courts will not review pro se submissions by represented defendants/petitioners. See, e.g., Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993). Thus, Petitioner's pro se submissions were forwarded to his counsel and the state courts did not consider them. (See SCR at 105.) Petitioner does not assert that he sought leave to proceed pro se and was denied his right to represent himself. Attorney DeMatt continued to represent him before the PCRA court and in his subsequent appeal to the Superior Court.
The PCRA court held an evidentiary hearing on July 6, 2018 at which Petitioner and trial counsel (Attorneys Haidze and Manderino) testified. (See PCRA Hr'g Tr., Resp's Attach. 22 at 952-1007.) In a subsequent opinion and order, the PCRA court denied Petitioner's request for postconviction relief, holding that the five claims raised in the counseled, amended PCRA petition had no merit. (Resp's Attach. 23 at 1008-22.)
Petitioner, through counsel, filed an appeal with the Superior Court in which he presented two claims for review:
1. trial counsel was ineffective for failing to interview and present at trial testimony from Deon Lee (Claim 7 of the instant federal habeas petition);
2. trial counsel was ineffective for failing to retain an expert to determine whether the victims had gunshot residue on them.(Resp's Attach. 24 at 1062-74.)
The Superior Court denied both of Petitioner's claims on the merits. Commonwealth v. Rivera, No. 1535 WDA 2018, 2019 WL 4034499 (Pa. Super. Ct. Aug. 27, 2019). The Supreme Court of Pennsylvania denied a petition for allowance of appeal. (Resp's Attach 26 at 1184).
Petitioner then filed with this Court the instant pro se Petition for a Writ of Habeas Corpus (ECF 13) pursuant to 28 U.S.C. § 2254. He raises fifteen claims in the Petition and also filed an amendment to the Petition in which he raises a sixteenth claim. (ECF 25.)
Petitioner claims that trial counsel were ineffective as follows:
- because Attorney Haidze represented the parents and brother of the lead investigator, Detective Dino Digiacobbe, in unrelated civil matters he did not subject the detective to adequate cross-examination (Claim 1);
- for failing to adequately cross-examine, object and impeach Commonwealth witness Higinio Rivera (Claim 2);
- for failing to impeach Commonwealth witness Robert Simpson with evidence of his criminal record to establish his pattern of dishonesty and that Simpson came forward with information only after he was arrested on unrelated charges (Claim 3);
- because Attorney Haidze shared office space with an attorney who had represented Commonwealth witness Melvin Hall (Claim 4);
- for failing to impeach testimony given by Young and Det. Shearer (the Commonwealth's expert in crime scene analysis) that Young was shot while running from Petitioner (Claim 5);
- for failing to object to the prosecutor's alleged false evidence that there would have been no time for anyone to retrieve and dispose of the gun Petitioner claimed Evans possessed, or present testimony from Joshua Wentzel to support the theory that Young may have run from the scene and disposed of Evans' gun before the police arrived (Claim 6);
- for failing to investigate and present testimony from Deon Lee to support Petitioner's theory that Evans was armed with a gun when Petitioner shot him (Claim 7);
- for failing to present evidence of Evans' criminal history and that Evans was “well known” to Det. Digiacobbe, with whom he allegedly had a “rather close relationship” (Claim 8);
- for failing to argue in post-sentence motions that the trial court erred in denying the defense motion to sever the trial on the firearm charge from the rest of the charges (Claim 9);
- for failing to object to the ballistics report of the Commonwealth's expert (Claim 10);
- for failing to object to the “deadlocked” jury instruction given by the trial court (Claim 11);
- for failing to hire a reliable expert psychiatrist (Claim 12);
- for failing to move for a mistrial based on government interference and alleged Brady violations (Claim 13);
- for failing to have the alleged requisite continuing legal education credits (Claim 14); and,
- for failing to move for a mistrial based on prosecutorial misconduct and an alleged Brady violation “in that spoilation of evidence occurred when the prosecutor introduced altered videos that mislead the jury” (Claim 16).
Petitioner also claims that he was prejudiced by the cumulative effect of trial counsels' alleged errors (Claim 15).
In their Answer (ECF 35), Respondents assert that, except for Claim 7, Petitioner failed to exhaust his available state court remedies and, as result, he procedurally defaulted all of his claims aside from Claim 7. Petitioner filed a Reply (ECF 41). He also moved for leave to conduct discovery (ECF 42, 43), which Respondents opposed (ECF 46) and which the Court denied (ECF 50, 52).
B. Jurisdiction
The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state-court judgment. It permits a federal court to grant a state prisoner a 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 Petitioner's burden to prove that he is entitled to the writ. See, e.g., Vickers v. Sup't Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims (for example, to receive de novo review of a claim he must first overcome the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (which is codified at 28 U.S.C. § 2254(d) and discussed below), but, ultimately, Petitioner cannot receive federal habeas relief unless he shows that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
C. Exhaustion and Procedural Default
The “exhaustion doctrine” requires that a state prisoner raise his federal habeas claims in state court through the proper procedures before he litigates them in a federal habeas petition. 28 U.S.C. § 2254(b), (c); see, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). It “is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts[.]” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Importantly, a petitioner must have “invoke[d] one complete round of the State's established appellate review process[,]” to satisfy the exhaustion requirement. O'Sullivan, 526 U.S. at 845. In Pennsylvania, this requirement means that a petitioner in a non-capital case such as this one must have first presented every federal constitutional claim raised in his federal habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g., Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
On May 9, 2000, the Pennsylvania Supreme Court issued In re: Exhaustion of State Remedies in Criminal and Post Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (“Order 218”). It provides that state prisoners on direct appeal of a criminal case or in a PCRA proceeding need not petition for allowance of review with the Pennsylvania Supreme Court after the Superior Court denies a claim in order to exhaust a claim for the purposes of subsequent federal habeas review. In Lambert, the United States Court of Appeals for the Third Circuit held that Order 218 was sufficient to render discretionary review before the Pennsylvania Supreme Court “unavailable” to state prisoners on direct appeal and in a PCRA appeal. Therefore, Pennsylvania state prisoners challenging their judgments of sentence in a federal habeas case need only show that they presented their federal habeas claims to the Superior Court. Lambert, 387 F.3d at 23134.
The doctrine of procedural default, like the doctrine of exhaustion, is “grounded in concerns of comity and federalism,” Coleman, 501 U.S. at 730. To summarize, it provides that a Pennsylvania state prisoner in a non-capital case defaults a federal habeas claim if he: (a) failed to present it to the Superior Court and cannot do so now because the state courts would decline to address the claim on the merits because state procedural rules (such as the state waiver rules or the one-year statute of limitations that applies to collateral proceedings) bar such consideration; or (b) failed to comply with a state procedural rule when he presented the claim to the state court, and for that reason the Superior Court declined to address the federal claim on the merits. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451 (2000); O'Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting) (describing the history of the procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72 (1977); Lines v. Larkins, 208 F.3d 153, 162-69 (3d Cir. 2000).
As the Supreme Court recently explained:
State prisoners . . . often fail to raise their federal claims in compliance with state procedures, or even raise those claims in state court at all. If a state court would dismiss these claims for their procedural failures, such claims are technically exhausted because, in the habeas context, “state-court remedies are. . . ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). But to allow a state prisoner simply to ignore state procedure on the way to federal court would defeat the evident goal of the exhaustion rule. See Coleman, 501 U.S. at 732, 111 S.Ct. 2546. Thus, federal habeas courts must apply “an important ‘corollary' to the exhaustion requirement”: the doctrine of procedural default. [Davila v. Davis, 582 U.S. 521, 527, 127 S.Ct. 2058, 2064 (2017)]. Under that doctrine, federal courts generally decline to hear any federal claim that was not presented to the state courts “consistent with [the State's] own procedural rules.” Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).
Together, exhaustion and procedural default promote federal-state comity. Exhaustion affords States “an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights,” Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam), and procedural default protects against “the significant harm to the States that results from the failure of federal courts to respect” state procedural rules, Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Ultimately, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without [giving] an opportunity to the state courts to correct a constitutional violation,” Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L .Ed. 761 (1950), and to do so consistent with their own procedures, see Edwards, 529 U.S. at 452-453, 120 S.Ct. 1587.Shinn v. Ramirez, __ U.S. __, 142 S.Ct. 1718, 1732 (2022).
D. Standard of Review
In 1996, Congress made significant amendments to the federal habeas statutes with the enactment of the AEDPA. Among other things, AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Terry Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotations and citation omitted).
One of the things that AEDPA put into place was a new standard of review, which is codified at 28 U.S.C. § 2254(d). It applies to any federal habeas claim “that was adjudicated on the merits” by the Superior Courtand, in relevant part, it prohibits a federal habeas court from granting relief unless the petitioner established that the Superior Court's “adjudication of the claim”:
A finding of fact made by a state court always has been afforded considerable deference in a federal habeas proceeding. AEDPA continued that deference and mandates that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.
When applying § 2254(d), the federal habeas court considers the “last reasoned decision” of the state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Sup't Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016).
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]28 U.S.C. § 2254(d)(1).For the purposes of § 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when the state court (here, the Superior Court) made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. at 98-100; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).
When a federal habeas court conducts its analysis under § 2254(d) it may not consider evidence that was not introduced in the state court proceeding. Cullen v. Pinholster, 563 U.S. 170, 180-86, and 185 n.7 (2011).
If a claim is procedurally defaulted but the case is the rare one in which the petitioner established grounds to excuse the default, the standard of review at § 2254(d) does not apply and the Court reviews the claim de novo. See, e.g., Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). However, in all cases, and regardless of whether the standard of review at § 2254(d) applies to a specific claim, the state court's factual determinations are presumed to be correct under § 2254(e)(1) unless the petitioner rebuts that presumption by clear and convincing evidence. Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010); Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007) (“the § 2254(e)(1) presumption of correctness applies regardless of whether there has been an ‘adjudication on the merits' for purposes of § 2254(d).”) (citing Appel, 250 F.3d at 210).
In applying § 2254(d)(1), this Court's first task is to ascertain what law falls within the scope of the “clearly established Federal law, as determined by the Supreme Court of the United States[,]” 28 U.S.C. § 2254(d)(1). It is “‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'” Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 7172 (2003)).
Once the “clearly established Federal law, as determined by the Supreme Court of the United States” is ascertained, this Court must determine whether the Superior Court's adjudication of the claim at issue was “contrary to” that law. Terry Williams, 529 U.S. at 404-05 (explaining that the “contrary to” and “unreasonable application of” clauses of § 2254(d)(1) have independent meaning). A state-court adjudication is “contrary to... clearly established Federal law, as determined by the Supreme Court of the United States” § 2254(d)(1), “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” Id. at 405, or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent,” id. at 406. A “run-of-the-mill” state-court adjudication applying the correct legal rule from Supreme Court decisions to the facts of a particular case will not be “contrary to” Supreme Court precedent. Id.
“A state court decision is an ‘unreasonable application of federal law' if the state court ‘identifies the correct governing legal principle,' but ‘unreasonably applies that principle to the facts of the prisoner's case.'” Dennis, 834 F.3d at 281 (quoting Terry Williams, 529 U.S. at 413). A petitioner must do more than convince the federal habeas court that the state court's decision was incorrect. Id. The petitioner must show that it “‘was objectively unreasonable.'” Id. (quoting Terry Williams, 529 U.S. at 409) (emphasis added by Court of Appeals). This means that the petitioner must prove that the state court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103 (emphasis added).
If, when evaluating a claim, the Court determines that the petitioner has satisfied his burden under § 2254(d), the Court must then “proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred.” Vickers, 858 F.3d at 849 (citing Lafler v. Cooper, 566 U.S. 156, 174 (2012)).That is because “a federal court can only grant the Great Writ if it is ‘firmly convinced that a federal constitutional right has been violated[.]'” Id. (citing Williams, 529 U.S. at 389, and Horn v. Banks, 536 U.S. 266, 272 (2001) (“[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review.. .none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]”)).
These steps “sometimes merge in cases in which the federal habeas court determines that the state court engaged in an ‘unreasonable application' of clearly established Supreme Court precedent because it will be apparent from the explication of why the state court unreasonably applied that precedent that, under any reasonable application, a constitutional violation did occur.” Vickers, 858 F.3d at 849 n.8.
E. AEDPA's Prohibition on Evidentiary Hearings
AEDPA also put into place “even more ‘stringent requirements'” regarding evidentiary development than those that were in place before its enactment. Shinn, 142 S.Ct. at 1734 (quoting Michael Williams v. Taylor, 529 U.S. 420, 433 (2000)).
AEDPA, as codified at 28 U.S.C. § 2254(e)(2), provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.(Emphasis added).
Importantly, Petitioner cannot avoid § 2254(e)(2)'s requirements by faulting his former counsel for failing to develop the evidence he now wants to present to support any of his federal habeas claims. Shinn, 142 S.Ct. at 1734-35 (“state postconviction counsel's ineffective assistance in developing the state-court record is attributed to the prisoner.”); Williams v. Sup't Mahanoy SCI, 45 F.4th 713, 720 (3d Cir. 2022). Thus, before this Court could hold a hearing so that Petitioner could introduce additional evidence to support any habeas claim, Petitioner first must show that the claim at issue falls within either subsection (A)(i) or (A)(ii) AND that “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense[,]” 28 U.S.C. § 2254(e)(2)(B).
In the rare case in which § 2254(e)(2)'s requirements are satisfied and a district court is not prohibited from holding an evidentiary hearing, it is within the district court's discretion whether to hold one under Rule 8 of the Rules Governing § 2254 Cases in the United States District Courts. See, e.g., Shinn, 142 S.Ct. at 1734; Schriro v. Landrigan, 550 U.S. 465, 473-75 (2007).
F. Discussion
All of Petitioner's claims are claims that his trial counsel provided him with ineffective assistance. Such claims are governed by the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland recognized that a defendant's Sixth Amendment right to the assistance of counsel for his defense entails the right to be represented by an attorney who meets at least a minimal standard of competence. 466 U.S. at 685-87. “[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance[.]” Titlow, 571 U.S. at 24.
Under Strickland, it is Petitioner's burden to establish that his “counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 688. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. Counsel cannot be deemed ineffective for failing to raise a meritless claim. See, e.g., Preston v. Sup't Graterford SCI, 902 F.3d 365, 379 (3d Cir. 2018).
The Supreme Court has emphasized that “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]'” Titlow, 571 U.S. at 22 (quoting Strickland, 466 U.S. at 690); Richter, 562 U.S. at 104 (“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.”) (quoting Strickland, 466 U.S. at 689). It instructed:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel's was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Strickland, 466 U.S. at 689 (internal citations and quotations omitted).
Strickland also requires that Petitioner demonstrate that he was prejudiced by counsel's alleged deficient performance.This places the burden on him to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Under Strickland, “[t]he likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112.
The Supreme Court in Strickland noted that although it had discussed the performance component of an effectiveness before the prejudice component, there is no reason for an analysis of an ineffectiveness claim to proceed in that order. 466 U.S. at 697. If it is more efficient to dispose of an ineffectiveness claim on the ground that the petitioner failed to meet his burden of showing prejudice, a court need address only that prong of Strickland. Id.
Claim 7
In Claim 7, Petitioner asserts that his trial counsel were ineffective for failing to investigate and present testimony from Deon Lee to bolster Petitioner's contention that he was acting in selfdefense when he shot Evans. In support of this claim, Petitioner relies on a letter that he introduced at the PCRA hearing that he claims Lee wrote to trial counsel before the trial. The letter contains Lee's contact information, a description of the history of Evans' alleged harassment of Petitioner and indicates that Lee saw Evans with a gun shortly before the incident during which Petitioner shot and killed Evans. (Resp's Attach. 22 at 959-61.)
As discussed above, although the PCRA court continued the originally-scheduled evidentiary hearing and granted Petitioner's request for funds to hire an investigator to help him locate Lee so that he could testify at the hearing, Petitioner did not present testimony from Lee at the rescheduled hearing held on July 6, 2018. When Petitioner testified at the hearing, he stated that prior to his trial he and Lee were both jailed in the Westmoreland County Prison. It was there, Petitioner said, that Lee told him that he thought Petitioner was being “railroad[ed.]” (Id. at 1002.) Petitioner said that he told Lee to contact his trial counsel. (Id. at 996-97, 1002-03.)
Attorney Haidze testified at the PCRA hearing that he and his co-counsel, Attorney Manderino, tried to contact a number of witnesses to support the theory that Petitioner acted in self-defense when he shot Evans. (Id. at 958.) Attorney Haidze remembered the name Deon Lee and said that he or Attorney Manderino tried to contact him. He could not recall whether they were able to find Lee, however. Attorney Haidze explained that they would have called Lee at trial as a defense witness if Lee had provided them with useful information, but he reiterated that he did not “recall that we were able to find [Lee].” (Id. at 958-59.)
Attorney Manderino testified at the PCRA hearing that it had been at least five years since Petitioner's trial and he simply could not recall if trial counsel had any contact with Lee before Petitioner's trial. (Resp's Attach. 22 at 981-84.)
The PCRA court denied Claim 7 on the merits. (Resp's Attach. 2 at 1014-15.) The Superior Court affirmed in Rivera, 2019 WL 4034499, at *2. Because the Superior Court adjudicated Claim 7 on the merits, this Court must evaluate its decision under AEDPA's standard of review at § 2254(d)(1).
The “clearly established Federal law,” in which to analyze the Superior Court's adjudication of Claim 7 under § 2254(d)(1) is set forth in Strickland. Although the Superior Court recognized that ineffective assistance of counsel claims are generally evaluated under the Strickland standard,it instead applied a five-factor test that Pennsylvania courts have developed and apply when the specific claim before them is that counsel was ineffective for failing to call a witness at trial. Under this test, the Superior Court explained, Petitioner “needed to prove that: [1] Lee existed; [2] Lee was available [3] and willing to testify for the defense; [4] counsel know or should have known of Lee's existence; and [5] the absence of Lee's testimony deprived [Petitioner] of a fair trial.” Rivera, 2019 WL 4034499, at *2 (citing Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 7780 (Pa. Super. Ct. 2015) (en banc)) (emphasis added). The Superior Court then held:
Pennsylvania courts sometimes articulate Strickland's standard in three parts, while federal courts set it out in two. The legal evaluation is the same, and the differences merely reflect a stylistic choice on the part of state courts. See, e.g., Commonwealth. v. Mitchell, 105 A.3d 1257, 1266 (Pa. 2014) (“this Court has divided [Strickland's] performance component into sub-parts dealing with arguable merit and reasonable strategy. Appellant must, therefore, show that: the underlying legal claim has arguable merit; counsel had no reasonable basis for his act or omission; and Appellant suffered prejudice as a result.”) See also Commonwealth v. Sepulveda, 55 A.3d 1108, 1117-18 (Pa. 2012) (“In order to obtain relief on a claim of ineffectiveness, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland[.]”)
[Petitioner] has failed in his burden in this case because he failed to produce Lee at the PCRA hearing. There is no evidence that Lee was available and willing to testify for the defense, or that he would have testified in accordance with [Petitioner's] claim. Indeed, there is no evidence that Lee exists.Id.
The Court of Appeals recently observed that the five-factor test applied by the Superior Court is “of uncertain origin” and is “derived.. .not from federal law, but from a Supreme Court of Pennsylvania decision [Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008)].” Williams v. Sup't Mahanoy SCI, 45 F.4th 713, 720 (3d Cir. 2022). It also explained that this test, which requires a petitioner to show that the witness at issue was willing to testify for the defense, does not comport with federal law because “[u]nwilling witnesses can be made to testify” by subpoenaing them. Id. at 721. See also Grant v. Lockett, 709 F.3d 224, 239 n.10 (3d Cir. 2013) (“[a]bsent extenuating circumstances, such as the existence of a privilege or the witness's incapacity or death, whether a witness is ready and willing to testimony is irrelevant since defense counsel can compel testimony through a trial subpoena.”)
Under the circumstances, the Superior Court's adjudication of Claim 7 was “contrary to” the Strickland standard because it failed to apply that standard when it evaluated this claim of ineffective assistance. This conclusion simply means that this Court now must review Claim 7 de novo to determine whether Petitioner has satisfied his burden of proving that his trial counsel were ineffective under Strickland for failing to present testimony from Lee at the trial. See, e.g., Vickers, 858 F.3d at 849; Gibbs v. VanNatta, 329 F.3d 582, 584 (7th Cir. 2003) (the petitioner “is not entitled to relief in the federal courts unless he can show that he was in fact denied effective assistance of counsel, not merely that the state courts bobbled the issue.”)
Petitioner has not satisfied his burden. His failure to introduce at the PCRA hearing testimony from Lee under oath, or at least a sworn statement from him, is fatal to Claim 7 because he has not established how Lee would have testified had trial counsel called him as a defense witness.Thus, Petitioner cannot demonstrate that trial counsel's representation fell below an objective standard of reasonableness or that he was prejudiced, i.e., that there is a reasonable probability that, but for trial counsel's failure to call Lee, the result of the trial would have been different. Strickland, 466 U.S. at 688, 694. Petitioner also cannot establish that he was prejudiced by trial counsel's alleged deficient performance given the strength of the evidence the Commonwealth introduced at trial to prove to the jury that he acted with the specific intent to kill Evans. Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999) (“It is firmly established that a court must consider the strength of the evidence in deciding whether the Strickland prejudice prong has been satisfied.”).
As the PCRA court observed, “in Lee's absence, the Court is left only with a letter purportedly signed by an individual of unknown credibility who has never testified under oath regarding his statements.” (Resp's Attach. 23 at 1015.)
Petitioner faults his PCRA counsel, Attorney DeMatt, for not presenting testimony from Lee at the evidentiary hearing held on July 6, 2018 and contends that he is entitled to another hearing before this Court. In support of his assertion that this Court should hold an evidentiary hearing, Petitioner relies on Townsend v. Sain, 372 U.S. 293 (1963), Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) and other pre-AEDPA cases. Petitioner's reliance on these cases is misplaced. They were superseded by AEDPA, which applies to all federal habeas cases, such as this one, filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).
This Court may not conduct another evidentiary hearing on Claim 7 because Petitioner has not satisfied either of 2254(e)(2)'s two narrow exceptions to AEDPA's general bar on evidentiary hearings. Accordingly, the Court cannot conduct an evidentiary hearing on Claim 7.
Based on the above, the Court should deny Claim 7.
Petitioner's Remaining Claims
In his remaining claims (Claim 1 through 6 and Claims 8 through 16), Petitioner contends that trial counsel was ineffective for various reasons. Respondents assert that the Court should deny each of these claims because Petitioner did not raise them to the Superior Court in his PCRA proceedingand there are no grounds to excuse his default. They are correct.
In Pennsylvania, a petitioner typically must litigate claims of ineffective assistance of counsel in a PCRA proceeding. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (abrogated in part on other grounds by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021)).
As Respondents point out, Petitioner did not exhaust Claim 1 through 6 and Claims 8 through 16 because he did not raise them on appeal to the Superior Court. Because he cannot return to state court and now try to litigate the claims at issue because they would be barred by state waiver rules and also by the PCRA's one-year statute of limitations, he procedurally defaulted each of the claims.
A petitioner may avoid the default of a claim by showing “cause for the default and actual prejudice as a result of the alleged violation of federal law[.]” Coleman, 501 U.S. at 750. “‘Cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him[.]” Id. at 753 (emphasis in original). The general rule is that, because there is no federal constitutional right to counsel in a PCRA proceeding, a petitioner cannot rely on PCRA counsel's ineffectiveness to establish the “cause” necessary to overcome the default of a federal habeas claim. Id.; Davila v. Davis, 582 U.S. 521, 524 (2017).
A petitioner may also avoid the default of a claim by showing that the federal habeas court's failure to consider it will result in a fundamental miscarriage of justice. See, e.g., Lines, 208 F.3d at 160. This type of “gateway” actual innocence claim requires newly presented evidence of “actual innocence” that is “so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error[.]” Schlup v. Delo, 513 U.S. 298, 316 (1995); see also McQuiggin v. Perkins, 569 U.S. 383 (2013). In Schlup, the Supreme Court held that a viable claim of actual innocence requires a petitioner “to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” 513 U.S. at 324. “‘Actual innocence' means factual innocence, not mere legal insufficiency.” Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). This case is not one of those rare cases where the actualinnocence gateway would apply to permit Petitioner to avoid the default of any of his claims.
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court announced a narrow exception to this rule. Martinez held that in states like Pennsylvania, where the law requires that claims of ineffective assistance of trial counsel be raised for the first time in a collateral proceeding, a petitioner may overcome the default of a claim of trial counsel's ineffectiveness. To do so, the petitioner must demonstrate: (1) the defaulted claim of trial counsel's ineffectiveness is “substantial” and (2) PCRA counsel was ineffective under Strickland for (3) failing to raise that claim in the “initial review collateral proceeding” (meaning to the PCRA court). Martinez, 566 U.S. at 17. The holding in Martinez is limited to defaulted claims asserting that trial counsel was ineffective. See, e.g., Davila, 582 U.S. at 524-38. It does not apply to any other type of defaulted claim. Id.
Here, Petitioner makes only the boilerplate allegation that he can overcome the default of his claims under Martinez because his PCRA counsel was allegedly ineffective, but he has put forth no grounds to excuse his default on this basis. The Court should therefore deny all of Petitioner's claims aside from Claim 7 because they are procedurally defaulted.
Moreover, this Court may not conduct an evidentiary hearing on the merits of any of Petitioner's defaulted claims because he has not satisfied either of 2254(e)(2)'s two narrow exceptions to AEDPA's general bar on evidentiary hearings. Nor is Petitioner entitled to an evidentiary hearing on whether the Court should excuse his default under Martinez. Before the Supreme Court's recent decision in Shinn v. Ramirez, 142 S.Ct. 1718 (2022), the rule in the Third Circuit (and in many other circuits) was that the § 2254(e)(2)'s prohibition on evidentiary hearings did not apply to the issue of whether a petitioner could overcome the default of a claim. Cristin v. Brennan, 281 F.3d 404, 413 (3d Cir. 2002).Rather, the decision to hold a hearing on that issue was a discretionary one. If the federal habeas court held a hearing on whether the petitioner could overcome the default of a claim, and if the petitioner successfully showed that he could do so, the court could then consider the evidence introduced at the hearing when it issued a de novo ruling on the merits of the underlying habeas claim. See, e.g., Shinn, 142 S.Ct. at 1729-30.
In Cristin, the Court of Appeals concluded “that the plaining meaning of § 2254(e)(2)'s introductory language does not preclude federal hearings on excuses for procedural default at the state level.” 281 F.3d at 413. The Court of Appeals' conclusion was based on two principal reasons. First, that a hearing used to support an excuse for procedural default is not a hearing on “a claim” under AEDPA because it is not a claim for relief on the merits. Id. at 417-18. Second, that a state prisoner “cannot be faulted.. .for not having previously presented the facts underlying arguments that would have been, on the whole, irrelevant or premature before state courts.” Id. at 417. As explained below, Shinn “suggests that [t]here is good reasons to doubt' [the Court of Appeals'] reading of the word ‘claim' in Cristin, [but] it [did] not abrogate [Cristin's] holding that, generally, AEDPA's text does not forbid federal courts from developing the facts needed to excuse a procedural default.” Williams, 45 F.4th at 723. However, Shinn set significant limits on Cristin's reach, which are discussed below.
Shinn clarified that a federal habeas court cannot proceed that way. The Supreme Court reiterated in Shinn that “state postconviction counsel's ineffective assistance in developing the state-court record is attributed to the prisoner.” 142 S.Ct. at 1734. Thus, when, as is the case here, the petitioner faults state post-conviction counsel for failing to develop evidence to support a defaulted habeas claim, the federal habeas court is prohibited from holding an evidentiary hearing or otherwise expanding the state court record to introduce evidence to support that claim unless the petitioner has satisfied one of 2254(e)(2)'s two narrow exceptions to AEDPA's general bar on evidentiary hearings. Id. at 1735. See also Williams, 45 F.4th at 724 (AEDPA's prohibition is not limited to formal evidentiary hearings and applies whenever the petitioner wants to expand the record beyond that developed in state court) (citing Shinn, 142 S.Ct. at 1738 and Holland v. Jackson, 542 U.S. 649, 653 (2004)).
The Supreme Court also held in Shinn that if a federal habeas court holds a hearing on whether a petitioner can overcome the default of a claim, it may not consider evidence introduced at that hearing in evaluating the merits of the underlying habeas claim unless the petitioner has satisfied one of 2254(e)(2)'s narrow exceptions to AEDPA's general bar on evidentiary hearings. 142 S.Ct. at 1733-39; Id. at 1739 (“when a federal habeas court convenes an evidentiary hearing for any purpose, or otherwise admits or reviews new evidence for any purpose, it may not consider that evidence on the merits” when evaluating the default habeas claim “unless the exceptions in § 2254(e)(2) are satisfied.”) (emphasis added). Accordingly, a federal habeas court can no longer “‘end-run' AEDPA by holding hearings on an excuse for procedural default, and then use the expanded federal record to decide the merits of a habeas claim.” Williams, 45 F.4th at 723 (quoting Shinn, 142 S.Ct. at 1738).
Importantly, in light of Shinn, the Court of Appeals in Williams v. Superintendent Mahanoy SCI, 45 F.4th 713 (3d Cir. 2022) has instructed that now, before holding a hearing on whether a petitioner can overcome a default of a claim, a federal habeas court must first decide whether the underlying defaulted habeas claim “succeeds considering only the state court record.” Id. at 724 (emphasis added). If the court concludes that the underlying claim is not supported by the state court record, it “should deny relief without more.” Id. That is, if the state court record alone does not allow the petitioner to succeed on the habeas claim, the court must skip a hearing on whether the petitioner can overcome the default “altogether and deny habeas relief” on the underlying habeas claim. Id. at 723-24; see also id. at 720 (explaining that the court “need not dwell” on the issue of whether the petitioner can overcome his default if the petitioner cannot show that his trial counsel was ineffective when considering only the facts developed in state court.)
The Court of Appeals explained:
While Shinn suggests that “[t]here are good reasons to doubt” our reading of the word “claim” in Cristin, it does not abrogate our holding that, generally, AEDPA's text does not forbid federal courts from developing the facts needed to excuse a procedural default. Id. at 1738. But Shinn does set limits on Cristin's reach. Shinn makes clear that, when a prisoner is at fault for failing to develop the record needed to support a constitutional claim on the merits in state court and cannot satisfy section 2254(e)(2)'s exceptions, federal courts may not consider evidence first gathered during an excuse hearing allowed by Cristin to decide the constitutional claim on the merits. Id. at 1738. To avoid prolonging federal habeas proceedings, Shinn also instructs that in these cases, federal courts must skip hearings altogether and deny habeas relief unless the prisoner prevails on the merits considering only the state court record. Id. at 1739.Williams, 45 F.4th at 723-24 (emphasis added).
Here, the evidence in the state court record, standing alone, does not support any of Petitioner's defaulted claims for relief. There is no testimony from trial counsel explaining why they did, or failed to do, any of the many things Petitioner's faults them for. Thus, on the closed record Petitioner cannot overcome the presumption that trial counsel rendered constitutional adequate assistance. Titlow, 571 U.S. at 23 (“[i]t should go without saying that the absence of evidence cannot overcome the ‘strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'”) (quoting Strickland, 466 U.S. at 689); Williams, 45 F.4th at 726 (“we have no specific evidence of negligence [on the part of trial counsel] in the state court record, and ‘the absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.'”) (quoting Dunn v. Reeves, __ U.S. __, 141 S.Ct. 2405, 2407 (2021) (per curiam)). Because Petitioner has not satisfied either of the two limited scenarios set forth in § 2254(e)(2) necessary to permit the Court to conduct a hearing on the merits of his defaulted claims, he cannot introduce into the record the evidence to support them. Therefore, the Court need not hold a hearing on whether he can overcome his default since, even if the Court excused his default, it could not consider his new evidence in evaluating the merits of his defaulted claims.
Based on the above, the Court should deny Claims 1 through 6 and Claim 8 through 16. Those claims are procedurally defaulted. The defaulted claims also lack evidentiary support when evaluated under the closed state record.
G. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from.. .the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue...only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
“When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying those standards here, jurists of reason would not find it debatable whether each of Petitioner's claims should be denied for the reasons given herein. Accordingly, the Court should not issue a certificate of appealability on any of Petitioner's grounds for relief.
III. CONCLUSION
Based on the foregoing, it is respectfully recommended that the Court deny each claim raised in the Petition, as amended, and deny a certificate of appealability as to each claim. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017); Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).