Opinion
Civil Action 22-cv-00637-JMY
10-26-2023
DOMINIC A. ROUNTREE, Petitioner, v. LEE ESTOCK, et al., Respondents.
REPORT AND RECOMMENDATION
HON. RICHARD A. LLORET, U.S. MAGISTRATE JUDGE.
Before me is Dominic A. Rountree's (“Petitioner's”) Petition for Writ of Habeas Corpus (the “Petition”) filed pursuant to 28 U.S.C. § 2254. Doc. No. 1 (“Habeas. Pet.”).Following a jury trial, Mr. Rountree was convicted of one count of possession of an instrument of a crime with intent and one count of third-degree murder for killing his brother, Jacquell. Mr. Rountree was sentenced to eighteen to thirty-six years of incarceration and five years of probation. In his Petition, Mr. Rountree alleges prosecutorial misconduct and ineffective assistance of counsel relating to the handling of certain evidence presented at his trial. See Habeas Pet. In its Response, the Commonwealth argues that both claims are meritless and, further, that Mr. Rountree's prosecutorial misconduct claim is procedurally defaulted. See Doc. No. 12 (“Comm. Br.”). I respectfully recommend that the petition be dismissed with prejudice, as there are no viable grounds for relief.
Unless otherwise indicated, all references to the electronically docketed record will be cited as “Doc. No. at .”
FACTUAL AND PROCEDURAL BACKGROUND
On review of Mr. Rountree's direct appeal, the Pennsylvania Superior Court adopted an edited version of the trial court's recitation of the facts and testimony:
The Honorable Rose Marie DeFino-Nastasi provided an in-depth account of the facts of the case. See Commonwealth v. Rountree, No. 951 EDA 2017 (Pa. Ct. Com. Pl. Jun. 1, 2017). The Pennsylvania Superior Court reviewed these facts and selected the information necessary for their review.
In September 2015, [Petitioner] lived in a house with his father, John Rountree (“John”), and [Petitioner's] two brothers, Andre Rountree (“Andre”), and Jacquell Rountree, the decedent. The brothers shared one room in the basement which was separated into three sections by curtains. The decedent shared his section of the basement with his girlfriend, Brittney Clark (“Ms. Clark”), and their two children. On the day of the incident, Andre had moved out of the house.
John testified that, when he returned home that day, the decedent, Ms. Clark, their two children, and John's daughter Fatima Rountree were sitting in the living room. [Petitioner] arrived shortly thereafter and had a conversation with his father in the dining room. The dining room is adjacent to the living room. [Petitioner] told his father that he wanted to use Andre's space in the basement for a short period of time. John told [Petitioner] that he did not want him to take Andre's space. [Petitioner] persisted, going back and forth with his father in his quest to obtain the space until the decedent entered the dining room and told the [Petitioner,] “you heard what dad said.” [Petitioner] answered: “I was just talking to dad. Let me and dad talk.” [Petitioner] and the decedent began to argue loudly. John walked into the kitchen, which is adjacent to the dining room, to get a sandwich. When he came out to go upstairs, [John] heard [Petitioner] say to the decedent: “I don't want to argue with you no more.
I am going.” John then went upstairs and ate his sandwich. Approximately two to six minutes later [John] heard shots and Ms. Clark screaming. John then returned downstairs and saw Ms. Clark holding the decedent on the front porch. John went inside and called 911. [Petitioner] left.
John further testified that approximately two to four months prior to the instant case, the decedent stabbed [Petitioner] in the face. [Petitioner] had to go to the hospital and returned with bandages in his face. [Petitioner] refused to press charges against his brother. It was John's impression that it was not a serious incident.
Ms. Clark testified that when [Petitioner] was talking to John about using Andre's space in the basement, the decedent interrupted and he and [Petitioner] began to argue. They got into each other's faces, and both went down into the basement. After approximately three to five minutes, the decedent returned to the dining room. Approximately one minute later, [Petitioner] came upstairs. The decedent stood up and said: “What are you going to do with that?” Ms. Clark went to get her son who was sitting in a highchair at the table because she saw [Petitioner] holding a silver gun and putting bullets into it. The decedent then stood in front of Ms. Clark and their son and reached for the gun. He was approximately two to three feet away from [Petitioner] and put his right hand out. The decedent was not trying to attack [Petitioner] but was trying to retrieve the gun. [Petitioner] then took a step back, aimed at the decedent's lower abdomen and shot the gun. The decedent stumbled back and [Petitioner] shot again. The decedent turned and ran toward the front door. [Petitioner] followed the decedent and shot at him a third time striking him in his back. [Petitioner] followed the decedent onto the front porch and began to pistol whip the decedent. [Petitioner] then ran down the steps.
Ms. Clark further testified that, on a previous occasion, the decedent had threatened [Petitioner] with a knife, but he was unarmed on the date of the incident.
Associate Medical Examiner Dr. Khalil Wardak (“Dr. Wardak”) performed the autopsy on the decedent and discussed his findings and conclusions in a document titled, “Death Certificate Information.” The decedent suffered two gunshot wounds, one to the elbow and one to the right lower back. The bullet that entered the back went through the decedent's heart, lung and liver. It was the fatal wound. Dr. Wardak testified that the gunshot wound to the right lower mid-back travelled right to left, back to front, and upward and became lodged in the left, front side of the body. Dr. Wardak noted the location of the entrance, exit and retrieval points of the bullets that struck decedent's body on a body diagram [Exhibit C-36]. This diagram depicted that the bullet that entered from the right mid-back was recovered from the decedent's right front chest.
A toxicology test revealed that the decedent had PCP in his blood in the amount of 100 micrograms per milliliter. Dr. Wardak testified that the concentration of PCP in an individual's blood does not reflect the behavior of the individual. Rather, it depends on the mode of use; whether ingested, smoked, or injected, and genetic factors, such as whether the individual is
a fast or slow metabolizer. Dr. Wardak opined that the only way to know how the drug affects an individual is to observe their behavior.
[Petitioner] testified that he shot his brother in self-defense. He and his brother had a volatile relationship which at times became physical. Approximately one month prior to this incident, the decedent stabbed [Petitioner] in his face requiring [Petitioner] to get stitches.
On the evening in question, [Petitioner] was speaking with his father when the decedent interrupted and an argument ensued. [Petitioner] testified that the decedent got within five feet of him and he could tell the decedent was intoxicated so he left the room and went down to the basement. The decedent followed him downstairs and told him “I will f- you up” but then went back upstairs. [Petitioner] wanted to go to his mother's house to enlist her aid in quelling the tension. When he went upstairs to leave, the decedent pulled out a knife and popped the switchblade. [Petitioner] retreated to the basement where he grabbed his sister's boyfriend's gun to scare the decedent so [Petitioner] could exit the house. Upon seeing [Petitioner] with the gun, the decedent said, “What the f- are you going to do with that?” [Petitioner] pulled the slide back and a live round ejected onto the floor. The decedent then jumped toward [Petitioner] and he reacted by firing the weapon. The decedent looked at his arm, where he had been shot, and was still coming toward [Petitioner], so [Petitioner] shot him again. [Petitioner] then tried to get out of the front door and the decedent grabbed him. A tussle ensued which spilled out onto the front porch. [Petitioner] punched the decedent in the head two times and ran away.Commonwealth v. Rountree, No. 951 EDA 2017, 2018 WL 1477205, at *1-2 (Pa. Super. Ct. Mar. 27, 2018) (“Direct App. Op.”) (internal citations omitted) (cleaned up).
On November 7, 2016, following a jury trial, Mr. Rountree was found guilty of third-degree murder and possession of an instrument of a crime. Philadelphia County Court of Common Pleas Docket, Commonwealth v. Rountree, CP-51-CR-0011647-2015 at 17. Mr. Rountree was sentenced to eighteen to thirty-six years of incarceration and five years of probation. Direct App. Op. at *3. Mr. Rountree timely filed a post-sentence motion, which the trial court denied in February 2017. Direct App. Op. At *3. Mr. Rountree timely appealed his conviction on two grounds:
1. Whether the adjudication of guilt is against the weight of the evidence and shocking to one's sense of justice where the evidence showed that the victim was the aggressor, where the victim was high on PCP, where the victim had previously assaulted [Petitioner] and where the testimony of the Assistant Medical Examiner was at variance with the documentary evidence showing the location of the victim's wounds?
2. Whether the adjudication of guilt for Murder in the Third Degree and PIC is based upon insufficient evidence where the Commonwealth failed to prove beyond a reasonable doubt that [Petitioner] possessed the requisite mental state for Third Degree Murder and where [Petitioner] possessed a firearm because he believed it to be necessary to defend himself?Direct App. Op. at *3. The Pennsylvania Superior Court found that the verdict was not against the weight of the evidence and affirmed Mr. Rountree's conviction. Direct App. Op. at *6. The Pennsylvania Supreme Court declined to allow further review. Commonwealth v. Rountree, 193 A.3d 344 (Pa. 2018).
Mr. Rountree then filed a petition under the Post-Conviction Relief Act, 42 U.S.C. §§ 9541-46 (“PCRA”), and PCRA counsel was assigned. Commonwealth v. Rountree, No. 1596 EDA 2020, 2021 WL 3126758, at *1-2 (Pa. Super. Ct. July 23, 2021) (“PCRA App. Op.”). Mr. Rountree later filed a motion to proceed pro se, and PCRA counsel filed a No Merit Finley-Turner letter. PCRA App. Op. at *2. The PCRA court issued a notice of intent to dismiss, and Mr. Rountree responded. PCRA App. Op. at *2. On July 16, 2020, the PCRA court formally dismissed the petition without an evidentiary hearing. PCRA App. Op. at *2. Mr. Rountree appealed pro se, raising eight grounds for relief:
A Finley-Turner letter is filed by defense counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania v. Finley, 481 U.S. 55 (1987) and is accompanied by a motion to withdraw the representation. Such a letter discusses all possible issues for appeal and describes why those issues are not viable.
1. [W]hether Commonwealth Exhibit C-36/The Body Diagram[] was fabricated /false physical evidence[?]
2. [Was] Dr. Wardak's response to the trial judge's inquiry[,] based on an observation made from interpretating Her evaluation of Commonwealth Exhibit C-36/The Body Diagram, a material false statement[?]
3. [Was] the use of Dr. Wardak's response to the trial judge's inquiry in the perjury context, a violation of [Petitioner's] due process rights?
4. [W]hether trial counsel's failure to cross examine Dr. Wardak on certain facts at issue had any rational, reasonable, reliable basis, or strategic design, to effectuate appellant's self-defense claim [] at trial?
5. [W]hether trial counsel's failure to object to the introduction of Commonwealth Exhibit C-36/The Body Diagram, Dr. Wardak's [testimony], and; the use of the false statement [are] reasonable examples of competent assistance[?]
6. [Whether] appellate counsel['s] . . . failure to raise meritorious claims in [a] 1925(b) statement [is a] reasonable example[] of competent assistance[?]
7. [W]hether Ms[.] Clark['s] inculpatory testimony . . . qualified] as three individual but clearly inconsistent statements[?]
8. [W]hether appellant is entitled to Double Jeopardy Clause protections . . . concerning the claims of egregious-pervasive prosecutorial misconduct?P.C.R.A. Petitioner's 1925(b) Statement, Commonwealth v. Rountree, CP-51-CR-0011647-2015, at 1-2 (Pa. Ct. Com. Pl. Sept. 15, 2020) (“PCRA 1925(b) Statement”). In its opinion, the PCRA court consolidated and reordered Mr. Rountree's claims as follows:
1. Was trial counsel ineffective for failing to object to the admission of Commonwealth Exhibit C-36, the body chart/body diagram, which [Petitioner] claims to be a falsified legal document?
2. Was appellate counsel ineffective for failing to raise meritorious claims in the direct appeal 1925(b) statement?
3. Whether [Petitioner] is entitled to double jeopardy protections due to egregious-pervasive prosecutorial misconduct?
4. Whether the trial court erred in admitting Brittney Clark's inculpatory testimony when it included three inconsistent statements?
5. Whether [Petitioner] was entitled to an evidentiary hearing before the PCRA court?PCRA App. Op. at *2 (quoting Commonwealth v. Rountree, No. 1596 EDA 2020, at 2-3 (Pa. Ct. Com. Pl. Oct. 6, 2020) (“PCRA Ct. Op.”) (cleaned up) (footnote omitted)). On review, the Pennsylvania Superior Court found that the PCRA court did not err by denying relief without conducting an evidentiary hearing and affirmed. PCRA App. Op. at *5. Petitioner now brings this pro se petition for writ of habeas corpus.
STANDARDS OF REVIEW
This Petition has been referred to me for a report and recommendation pursuant to Section 2254 (“A magistrate judge may perform the duties of a district judge under these rules, as authorized under 28 U.S.C. § 636.”). See Doc. No. 5.
A. Exhaustion
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, before a federal court may issue a writ of habeas corpus for a person in state custody under a state court judgment, the petitioner must have “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To satisfy this requirement, a petitioner must have “fairly presented” the merits of his federal claims during “one complete round of the established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A federal claim is fairly presented to the state courts where the petitioner has raised “the same factual and legal basis for the claim to the state courts.” See Nara v. Frank, 488 F.3d 188, 198-99 (3d Cir.2007), as amended (June 12, 2007).
B. Procedural Default
A claim is procedurally defaulted when it has not been fairly presented to the state courts (i.e., is unexhausted) and there are no additional state remedies available to pursue, see Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir.2001); or when the claim was properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule, see McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999). A procedurally defaulted claim cannot provide a basis for federal habeas relief unless the petitioner can show “cause for the default and actual prejudice as a result of the alleged violation of federal law” or “demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
To establish cause and prejudice, the petitioner must show that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Slutzker v. Johnson, 393 F.3d 373, 381 (3d Cir. 2004) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Petitioner has the burden to show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States. v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494; Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008). To demonstrate a fundamental miscarriage of justice, a habeas petitioner must typically prove actual innocence. See Schlup v. Delo, 513 U.S. 298, 324-26 (1995).
C. Review on the Merits
Where a claim has been adjudicated by the state courts on its merits, habeas relief is proper only where the state's adjudication was (1) “contrary to,” or (2) involved an “unreasonable application of” clearly established federal law. 28 U.S.C. § 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. 362, 364 (2000). Review under Section 2254(d) is highly deferential to the state court's decision. See Parker v. Matthews, 567 U.S. 37, 4245 (2012) (reiterating that the standard under 2254(d)(1) is highly deferential to state court decisions and overturning a Sixth Circuit decision granting habeas relief because the state court's decision denying relief was not objectively unreasonable). Factual determinations made by the state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (citing 28 U.S.C. § 2254(e)(1)).
A decision is “contrary to” established federal law where it reaches a conclusion “‘diametrically different, opposite in character or nature, or mutually opposed'” to the “‘clearly established' decisions of the United States Supreme Court.” Wilkerson v. Klem, 412 F.3d 449, 452 (3d Cir. 2005) (quoting Williams, 529 U.S. at 405). A state court decision involves an “unreasonable application” of clearly established federal law where it correctly determines the guiding legal principle but improperly applies the law to the facts. Williams, 529 U.S. at 413. To warrant relief, the state court's application of federal law must be objectively unreasonable. Id. at 409.
D. Ineffective Assistance of Counsel
A claim for ineffective assistance of counsel has two components: deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must establish that counsel's performance was deficient, meaning counsel's errors were “so serious [that] counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment” Id. A petitioner may show deficient performance by evidence of counsel's “ineptitude, inexperience, lack of preparation[,] or unfamiliarity with basic legal principles.” Gov't of Virgin Islands v. Weatherwax, 20 F.3d 572, 579 (3d Cir. 1994) (internal citation omitted). Next, the petitioner must demonstrate that the deficient performance prejudiced petitioner's defense to the point that petitioner was deprived of a fair trial. Strickland, 466 U.S. at 687. Prejudice is established where “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Establishing ineffective assistance of counsel is particularly challenging in the habeas context. “The standards created by Strickland and [Section] 2254(d) are both ‘highly deferential,' and when the two apply in tandem, review is ‘doubly' so.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal citations omitted). On federal habeas review, “the question is not whether counsel's actions were reasonable” but rather “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.
DISCUSSION
Mr. Rountree contends that he is entitled to federal habeas relief due to ineffective assistance of counsel and prosecutorial misconduct during his state court trial. See Habeas Pet. at 8-12. The Commonwealth argues that both claims are meritless and that the prosecutorial misconduct claim is procedurally defaulted. See Comm. Br. at 5-8. I find that neither claim warrants relief and respectfully recommend that the Petition be denied.
I have reversed the order of issues presented in Mr. Rountree's Petition for ease of analysis.
A. Mr. Rountree is not entitled to federal habeas relief for his ineffective assistance of counsel claim.
Mr. Rountree asserts that his trial counsel was ineffective for failing to object to the introduction of a body diagram, presented as Exhibit C-36 during the medical examiner's testimony and for taking “no actions to cross-examine [the] prosecution's medical expert witness” after the medical examiner gave trial testimony that conflicted with the evidence presented in that body diagram. Doc. No. 1-1, at 37 (“Pet. Br.”). In its Response, the Commonwealth argues that Mr. Rountree is not entitled to relief because the Pennsylvania Superior Court's finding that he failed to establish that he was prejudiced by counsel's treatment of the body diagram is not contrary to established federal law. Comm. Br. at 5-7.
Mr. Rountree also raises that his PCRA counsel was ineffective “for not perfecting the ineffectiveness of direct-appellate counsel during collateral review.” Pet. Br. at 39. Because the constitutional right to counsel does not extend to collateral post-conviction proceedings, such as Pennsylvania PCRA proceedings, see Coleman, 501 U.S. at 725, the Supreme Court has barred habeas relief for ineffective assistance of counsel in collateral post-conviction proceedings. Martinez v. Ryan, 566 U.S. 1, 12 (2012) (citing 28 U.S.C. § 2254(i)). While a petitioner may not raise an independent claim based on the ineffectiveness of collateral proceeding counsel, he may assert that ineffectiveness of counsel in the collateral proceeding was the cause of a procedural default of a claim relating to trial counsel's ineffectiveness. Id. at 17. Because Mr. Rountree properly exhausted his ineffective assistance claims through his state court proceedings, they are not procedurally defaulted and PCRA counsel's alleged ineffectiveness is irrelevant to my analysis.
Mr. Rountree's ineffective assistance of trial counsel claim involves two related alleged errors: (1) counsel's failure to object to the introduction of the body diagram labeled Exhibit C-36 and (2) counsel's failure to cross examine the medical examiner, Dr. Wardak, regarding discrepancies between his testimony and the evidence displayed in Exhibit C-36. As revealed by the autopsy performed by Dr. Wardak, the decedent, Jacquell Rountree, suffered two gunshot wounds: one to the elbow and one to the back. Pet. Br. at 88 (attaching Exhibit C-35, Death Certificate Information as an exhibit). The bullet that entered the decedent's back travelled through his heart, lungs, and liver, causing the fatal wound. See id. at 88-90. Exhibit C-36 is a demonstrative exhibit of a body diagram with markings indicating where the decedent's wounds were located. See Pet. Br. at 95 (attaching Exhibit C-36 as an exhibit). The Commonwealth used Exhibit C-36 as a visual aid during Dr. Wardak's testimony. See Doc. No. 17-4 at 10:9-24 (“Nov. 3, 2016 Trial Tr.”). The Exhibit C-36 body diagram includes one marking indicating that a bullet entered the decedent's right mid-back and another marking indicating that the same bullet was recovered from the right side of the decedent's chest. See Pet. Br. at 95. At trial, Dr. Wardak testified that the gunshot wound entered the decedent's right mid-back and was recovered from the left side of his chest. Nov. 3, 2016 Trial Tr. at 11:16-24. Mr. Rountree contends that the incorrect marking on Exhibit C-36 was so compelling that it caused the jury to reject other evidence supporting that he acted in self-defense. See Pet. Br. at 35. Defense counsel did not object to introduction of Exhibit C-36 and did not focus his cross-examination of Dr. Wardak on the apparent inconsistency between his testimony and the marking on the body diagram. See Nov. 3, 2016 Trial Tr. at 23:2-34:9. I will address each alleged error in turn.
i. It was not objectively unreasonable for the Pennsylvania Superior Court to conclude that trial counsel was not ineffective for failing to object to the prosecution's introduction of Exhibit C-36.
Mr. Rountree alleges that his trial counsel was ineffective for failing to object to the introduction of Exhibit C-36. See Pet. Br. at 37. Mr. Rountree raised counsel's failure to object to the trial demonstrative in both his initial PCRA petition and on appeal to the Pennsylvania Superior Court. See PCRA App. Op. at *2. Where a claim has been evaluated by a state court on its merits, habeas relief is proper only where the state's adjudication was (1) “contrary to,” or (2) involved an “unreasonable application of” clearly established federal law. 28 U.S.C. § 2254(d)(1)-(2). My review is highly deferential to the state court's decision. Parker, 567 U.S. at 45. Because the state court's review of the ineffective assistance of counsel claim does not violate clearly established law, Mr. Rountree's request for federal habeas relief fails.
Where a petitioner alleges a claim for ineffective assistance of counsel, the Supreme Court's analysis in Strickland v. Washington, 466 U.S. 668 (1984) provides the relevant federal standard. To prevail on an ineffective assistance of counsel claim under Strickland, the petitioner “must show counsel's performance was deficient,” meaning “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” 466 U.S. at 687. The petitioner must also demonstrate that he was prejudiced by the deficient performance to the point of being deprived of a fair trial. Id. The “Pennsylvania standard judging ineffectiveness claims [is] identical to the ineffectiveness standard enunciated by the United States Supreme Court in Strickland.” Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000). In its review of Mr. Rountree's PCRA petition, the Pennsylvania Superior Court determined that “[Petitioner's] underlying claim lack[ed] merit and fail[ed] to establish a prejudicial effect on the outcome of his trial, as required to establish an ineffective assistance of trial counsel claim” because “[w]here the bullet was located when retrieved during autopsy has no bearing on [Petitioner's] self-defense claim given the undisputed material fact that [Petitioner] shot the decedent multiple times, including a fatal gunshot wound which entered through the decedent's back.” PCRA App. Op. at *4.
My review at this stage is highly deferential to the state court's decision. Where Strickland requires deference to the decisions of counsel, Section 2254 requires deference to the state court's decision. See 28 U.S.C. § 2254 (d)(1). As a result, my review of the state court's ineffective assistance of counsel analysis is “doubly deferential.” See Harrington, 562 U.S. at 105. On review, I need only to determine whether the state court's application of the deferential standard in Strickland was contrary to or an unreasonable application of that Supreme Court precedent.
It was not unreasonable for the Pennsylvania Superior Court to conclude that trial counsel's decision not to challenge Exhibit C-36 had no prejudicial effect on the outcome of Mr. Rountree's trial. Mr. Rountree bases his theory of prejudice on the idea that, if Exhibit C-36 was excluded, the weight of the evidence would tend to support his theory of self-defense. Yet, throughout his state court proceedings, and now in his federal habeas petition, Mr. Rountree admits to shooting his brother multiple times and does not dispute that the fatal bullet entered through his brother's back. The Pennsylvania Superior Court concurred with the PCRA court's conclusion that the other, undisputed evidence presented at Mr. Rountree's trial was so overwhelming that “the error contained on [Exhibit C-36] was of no moment, [and] trial counsel cannot be found ineffective for failing to object to its admission.” PCRA App. Op. at *4 (quoting PCRA Ct. Op. at 6). The record supports this analysis and a finding that the state court's determination was not contrary to or an unreasonable application of Strickland.
ii. Mr. Rountree's claim that trial counsel was defective for failing to properly cross-examine Dr. Wardak fails on its merits.
Mr. Rountree also alleges that his trial counsel was ineffective for failing “to cross-examine [the] prosecution's medical expert witness” after the medical examiner gave trial testimony that conflicted with the evidence presented in Exhibit C-36. Pet. Br., at 37. Before seeking habeas corpus review, a Petitioner must fairly present the federal claim to each available level of the state judicial system, “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27 (2004). Mr. Rountree fairly presented this claim to the state courts in his PCRA proceedings where he raised as an issue: “whether trial counsel's failure to cross examine Dr. Wardak on certain facts at issue had any rational, reasonable, reliable basis, or strategic design, to effectuate appellant's self-defense claim [] at trial?” PCRA 1925(b) Statement at 1. While Mr. Rountree raised this alleged error, the state courts chose not to address it in their PCRA opinions. Compare PCRA 1925(b) Statement at 1 with PCRA App. Op. at *2. Where a petitioner properly preserved his claim, but the state court has not adjudicated the claim on its merits, “the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact.” Appel, 250 F.3d at 210. On review, “the state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence.” Id. Reviewing this claim de novo, I find that Mr. Rountree's argument lacks merit and I respectfully recommend that his claim be dismissed.
Mr. Rountree argues that his trial counsel was ineffective for failing to crossexamine Dr. Wardak regarding the discrepancies between his testimony concerning the location of the bullet when it was extracted during Jacquell Rountree's autopsy and the evidence presented in Exhibit C-36. Pet. Br. at 37. Mr. Rountree contends that, had counsel properly challenged Dr. Wardak's testimony, the jury would have placed less weight on the Commonwealth's medical evidence and placed more weight on evidence supporting his self-defense claim. Pet. Br. at 35.
As discussed, to prevail under Strickland, a petitioner “must show counsel's performance was deficient” and that he was prejudiced by the deficient performance to the point of being deprived of a fair trial. 466 U.S. at 687. A petitioner is prejudiced when, but for the allegedly deficient conduct, there is a reasonable probability that the outcome of his trial would have been different. Id. at 694. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id. at 697; see McAleese v. Mazurkiewicz, 1 F.3d 159, 170 (3d Cir. 1993) (“Indeed, this Court has read Strickland as requiring the courts to decide first whether the assumed deficient conduct of counsel prejudiced the defendant. . . .”).
Even assuming Mr. Rountree could prove that trial counsel's cross-examination of Dr. Wardak was deficient (he cannot), he has not shown prejudice. Mr. Rountree's theory of prejudice assumes that, had the jurors been presented with evidence that the fatal bullet stopped in the decedent's left chest area, they would not have been able to determine definitively that the decedent was shot while his back was turned. Pet. Br. at 36. Mr. Rountree asserts that Exhibit C-36 and Dr. Wardak's accompanying testimony had the effect of changing how the trajectory of the fatal bullet was presented to the jury, thus removing any reasonable doubt regarding where the decedent was positioned when he was shot. See Pet. Br. at 36. Mr. Rountree argues that trial counsel's “failure to cross-examine Dr. Wardak . . . left the changes uncorrected, and the original trajectory [] unexamined,” undercutting his self-defense claim. Pet. Br. at 36. I disagree.
Contrary to Mr. Rountree's suggestion, the jurors in his trial were presented with considerable evidence that the bullet “stopped in the left chest area.” See Pet. Br. at 35. The medical examiner's Death Certificate Information report, introduced at trial as Exhibit C-35, indicates that the bullet was lodged in decedent's left chest area. See Pet. Br. at 84-94 (attaching Death Certificate Information report as an exhibit). The Death Certificate Information report specifically states that the decedent suffered a gunshot wound to the right side of the mid back and that “[a] small caliber jacket bullet [was] retrieved from the left pectoralis muscle.” Pet. Br. at 88 (emphasis added). Dr. Wardak testified consistent with his report, stating that:
[The fatal gunshot was] on the right lower midback. This bullet enter[ed] from the side of the back into the right chest cavity, going to the lower part of the lung and going through the liver and then going through the aorta . . . then going upward into the left lung and the bullet was lodged in the fifth and sixth ribs on the left, front side of the body.Nov. 3, 2016 Trial Tr. at 11:16-24. The record is clear that “the original trajectory” of the fatal bullet was properly presented at trial through introduction of the Death Certificate Information report and through Dr. Wardak's testimony. See Pet. Br. at 36.
The Pennsylvania state courts have already determined that “[t]he marking on [Exhibit C-36] indicating that the bullet was recovered from the right side was clearly an inadvertent error of no evidentiary value.” PCRA Ct. Op. at 6; PCRA App. Op. At *3; 28 U.S.C. § 2254(e)(1) (on de novo review “the state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence”). This mark is the only evidence presented at trial that even suggests that the bullet was lodged in the right chest area. Regardless, where the bullet was located when it was retrieved during the autopsy has no impact on the outcome of Mr. Rountree's trial. Mr. Rountree does not contest that he shot his brother, nor does he dispute that the fatal bullet entered through the right side of his brother's back. Given those undisputed facts, where the bullet was located when it was retrieved during Jacquell Rountree's autopsy is immaterial to Mr. Rountree's self-defense claim.
Because Mr. Rountree has failed to establish that that the outcome of his trial would have been different had counsel focused its cross-examination of Dr. Wardak on the minor discrepancy between his testimony and the mark on Exhibit C-36, he has failed to establish prejudice. See Strickland, 466 U.S. at 693. I therefore find that Mr. Rountree's ineffective assistance of counsel claim fails on its merits.
Mr. Rountree's claim that trial counsel was ineffective for failing to object to the introduction of Exhibit C-36 would similarly fail on its merits. I cannot say that there was no reasonable basis for making the tactical decision not to object to the introduction of Exhibit C-36 or that Mr. Rountree has established that it resulted in any prejudice. See Strickland, 466 U.S. at 687. Had trial counsel raised an objection to Exhibit C-36, the Commonwealth could have easily corrected the inadvertent error and resubmitted the exhibit. Rather than try to bar the admittance of the body diagram based on this slight discrepancy, it appears that trial counsel relied on Exhibit C-36 to establish that the wound to Jacquell Rountree's elbow was consistent with Mr. Rountree's self-defense theory. When weighed against the uncontradicted facts that the gunshot was fatal and that it entered through the decedent's back, this demonstrative exhibit was of minimal probative value to the prosecution's case.
B. Mr. Rountree is not entitled to federal relief for his prosecutorial misconduct claim.
Mr. Rountree asserts that he is entitled to relief from his conviction because the prosecution submitted an “intentionally falsified exhibit” and solicited “perjury testimony” at his trial. Habeas Pet. at 8. Specifically, Mr. Rountree claims that the prosecution knowingly presented false evidence when it introduced Exhibit C-36 during Dr. Wardak's testimony; solicited perjured testimony from Dr. Wardak regarding that exhibit; and improperly coached the eyewitness to the incident, Ms. Brittney Clark, during a break in her testimony. Pet. Br. at 20-29. In its Response, the Commonwealth argues that Mr. Rountree is not entitled to relief because his claims of prosecutorial conduct are procedurally defaulted and meritless. Comm. Br. at 7. Because Mr. Rountree has failed to show that he is entitled to federal relief, I recommend that his prosecutorial misconduct claim be dismissed.
i. Mr. Rountree's prosecutorial misconduct claims are procedurally defaulted.
Mr. Rountree's prosecutorial misconduct claims are procedurally defaulted, and therefore, they are not eligible for federal review. A claim is procedurally defaulted where it has not been fairly presented to the state courts (i.e. is unexhausted) and there are no additional state remedies available to pursue, see Wenger, 266 F.3d at 223-24; or where the claim was properly raised in the state courts, but not addressed on the merits because of an independent and adequate state procedural rule, see McCandless, 172 F.3d at 255. A procedurally defaulted claim cannot provide a basis for federal habeas relief unless the petitioner can either show “cause for the default and actual prejudice as a result of the alleged violation of federal law” or “demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
On review of Mr. Rountree's PCRA appeal, the Pennsylvania Superior Court determined that Mr. Rountree failed to preserve his claims of prosecutorial misconduct relating to the introduction of Exhibit C-36 and Dr. Wardak's related testimony. PCRA App. Op. at *4. Specifically, the Pennsylvania Superior Court determined that Mr. Rountree waived his prosecutorial misconduct claim where he “failed to demonstrate where in the record he preserved this claim within his trial proceedings or on direct appeal.” PCRA App. Op. at *4. A finding of waiver by the Pennsylvania Superior Court provides an independent and adequate state law ground for dismissing this claim on habeas review. Peterson v. Brennan, 196 Fed.Appx. 135, 142 (3d Cir. 2006) (“[S]tate law waiver and PCRA statute of limitation rules are independent and adequate state law grounds that bar federal habeas review.”). Because Mr. Rountree's allegations of prosecutorial conduct relating to Exhibit C-36 and Dr. Wardak's related testimony were resolved on independent and adequate state law grounds, they are procedurally defaulted.
Mr. Rountree did not fairly present his claim that Ms. Clark's testimony was the result of prosecutorial misconduct to the state courts, and it would be futile for him to do so now. See Wenger, 266 F.3d at 223-24. To satisfy the exhaustion requirement, a petitioner must fairly present both the facts and legal theory relating to his federal constitutional claims to all levels of the state judicial system. Nara, 488 F.3d at 198-99. “[M]ere similarity of claims is insufficient[.]” Duncan v. Henry, 513 U.S. 364, 366 (1995). Mr. Rountree raised as an issue in his PCRA proceedings “[W]hether Ms[.] Clark['s] inculpatory testimony . . . qualified] as three individual but clearly inconsistent statements[?]” PCRA 1925(b) Statement at 2. However, he did not assert that Ms. Clark's statements were inconsistent due to alleged prosecutorial misconduct, so he has not exhausted that claim. Further review is unavailable under Pennsylvania law where the appellant has not preserved the issue within his trial proceedings or on direct appeal, see Commonwealth v. Yandamuri, 159 A.3d 503, 528 n.23 (Pa. 2017), or where he failed to raise the claim in his PCRA petition. See Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013). Because Mr. Rountree did not assert that Ms. Clark's testimony was the product of prosecutorial misconduct in either his direct appeal or in his PCRA proceedings, this claim is waived under Pennsylvania law. Therefore, federal habeas relief is unavailable absent a showing of cause to excuse his default.
ii. Hypothetical testimony from the witness Mr. Omar Fisher does not excuse Mr. Rountree's procedural default.
In an attempt to excuse his procedural default, Mr. Rountree requests an evidentiary hearing to consider hypothetical testimony from an individual named Omar Fisher. Pet. Br. at 30-33. A procedurally defaulted, unexhausted claim may be reviewed by the federal habeas court only where there is a basis for excusing the default. See Wenger, 266 F.3d at 223-24. This can be accomplished by a showing of “cause for the default and actual prejudice as a result of the alleged violation of federal law” or by demonstrating “that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. 750. The latter generally requires a showing of actual innocence. See Schlup, 513 U.S. at 324-26. In his brief, Mr. Rountree claims that Mr. Fisher's hypothetical testimony would support a finding of actual innocence. See Pet. Br. at 30. “Proving actual innocence based on new evidence requires the petitioner to demonstrate (1) new evidence (2) that is reliable and (3) so probative of innocence that no reasonable juror would have convicted the petitioner.” Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012) (Schlup, 513 U.S. at 327).
Mr. Rountree's self-defense claim relies on his theory that the decedent attacked him with a knife before he fired his gun. See Doc. No. 17-5 at 29:12-30:5 (“Nov. 4, 2016 Trial Tr.”). No knife was recovered from the scene and Ms. Brittney Clark testified that Jacquell Rountree was unarmed during the incident. See Doc. No. 17-3 at 55:22-56:8. The “new” witness-Fatima Rountree's friend Omar Fisher-was arrested five months after the incident in possession of the gun that Mr. Rountree used to kill his brother, Jacquell. Pet. Br. at 30. Mr. Rountree now suggests it is possible that Mr. Fisher also removed the knife from the home when he took possession of the gun and that Mr. Fisher's testimony to that effect may have “discredited [Ms. Clark's] testimony that the decedent had no weapon.” Pet. Br. at 30. Mr. Fisher's hypothetical testimony is not new, not reliable, and would not convince a reasonable juror of Mr. Rountree's innocence, so it cannot not excuse his procedural default.
Contrary to Mr. Rountree's argument, Mr. Fisher's hypothetical testimony is not new evidence, nor is it reliable. Mr. Rountree asserts that Mr. Fisher was present in the home on the date of the incident, on September 21, 2015. Pet. Br. at 30. He also claims that Mr. Fisher was arrested five months later for an unrelated offense while in possession of the murder weapon. Pet. Br. at 30. Mr. Rountree asks me to look at those facts and infer that it is “possible” Mr. Fisher removed a knife from the Rountree residence at the same time he took possession of the gun. See Pet. Br. at 30. The fact that Mr. Fisher was present in the Rountree home on the date of the incident is not new information; Mr. Rountree testified to that fact during his trial. See Nov. 3, 2016 Trial Tr. at 96:4-12. I am not aware of any evidence that suggests Mr. Fisher witnessed Jacquell Rountree with a knife on the date of the incident or that he would admit to taking possession of such a knife after the incident occurred. Mr. Rountree has not provided an affidavit or other statement from Mr. Fisher describing the nature of his hypothetical testimony, and it is not clear what connection Mr. Fisher's hypothetical testimony has to Mr. Rountree's claim that the prosecution improperly coached Ms. Clark to perjure herself during his trial.
Regardless, Mr. Fisher's hypothetical testimony would be insufficient to convince a reasonable juror of actual innocence. Mr. Rountree admitted to shooting his brother, See Nov. 3, 2016 Trial Tr. at 94:21-23, 103:24-105:3, 141:13-144:24, and he has not presented any evidence to discredit the medical examiner's finding that the fatal bullet entered through his brother's back. See Pet. Br. at 88-90 (attaching Exhibit C-35 as an exhibit); Nov. 3, 2016 Trial Tr. at 11:16-24. Even assuming that Mr. Fisher would testify that Jacquell came at Mr. Rountree with a knife, as Mr. Rountree alleged during his trial, any threat to Mr. Rountree ended after the first gunshot struck Jacquell's elbow and he turned his back. See e.g. Commonwealth v. Marks, 704 A.2d 1095, 1099 (Pa. Super. 1997) (explaining that wounds on the back of the victim's body showed that the victim “posed no real or imagined threat” to the defendant); Commonwealth v. Yanoff, 690 A.2d 260, 265 (Pa. Super. 1977) (“[The] fact that [the defendant] shot the victim in the back clearly undermines his claim of self-defense[.]”). Rather than retreat at that point, Mr. Rountree fired the fatal shot, followed his brother onto the front porch, and began to beat his brother with the gun. Direct App. Op. at *1. When their father called for emergency assistance, Mr. Rountree fled the scene. Id. I cannot find that Mr. Fisher's hypothetical testimony that Jacquell Rountree possessed a knife on the date of the incident is “so probative of innocence” that it would require a reasonable jury to overlook these undisputed facts and find Mr. Rountree not guilty. See Schlup, 513 U.S. at 327. Speculation about what a witness might say does not register as evidence on the scale of justice. Therefore, the proffered evidence cannot excuse Mr. Rountree's procedural default.
iii. Mr. Rountree's prosecutorial misconduct claim fails on its merits.
Even if Mr. Rountree could excuse his procedural default, his prosecutorial misconduct claims fail on their merits. “[P]rosecutorial misconduct may be remedied on habeas review if it ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Greer v. Miller, 483 U.S. 756, 765 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)) (cleaned up). “To constitute a due process violation, the prosecutorial misconduct must be ‘of sufficient significance to result in the denial of the defendant's right to a fair trial.'” Greer, 483 U.S. at 765 (quoting United States v. Bagley, 473 U.S. 667, 676 (1985)). A review of the facts reveals the frivolousness of Mr. Rountree's arguments.
Mr. Rountree alleges prosecutorial misconduct relating to Exhibit C-36 and Dr. Wardak's related testimony which he claims was “intentional, deliberate and persistent . . . as part of an overall conspiracy to avoid an acquittal.” Pet Br. at 14. Mr. Rountree asks me to find that the prosecution intentionally fabricated Exhibit C-36 in an effort to distort the true wound path of the fatal bullet and discredit Mr. Rountree's self-defense theory. Despite Mr. Rountree's claims, the record shows that it was not where the bullet stopped, but where it travelled before stopping that was of consequence to the prosecution's case. In its closing, the prosecution states only that the fatal bullet “goes into [Jacquell's] back, through his lung, hits his aorta and hits the ventricle of his heart before it is lodged in his front ribcage.” Nov. 4, 2016 Trial Tr. at 61:12-18. Rather than focus on where the fatal bullet stopped in Jacquell's chest, the prosecution directed the jury's attention to the fact that Jacquell was unarmed (see Id. at 50:9-11; 51:23-52:17; 70:7-20), that Mr. Rountree shot his gun multiple times (see id. at 58:19-59:14; 61:6-11; 66:3-9; 78:19-79:7); and that the fatal bullet entered through Jacquell's back (see id. at 39:14-25; 69:13-24; 78:19-79:7) while he was standing more than three feet away (see id. at 54:7-55:9; 58:17-59:6; 66:3-9; 78:1979:7). As discussed at length, “[t]he marking on [Exhibit C-36] indicating that the bullet was recovered from the right side was clearly an inadvertent error of no evidentiary value.” PCRA Ct. Op. at 6; PCRA App. Op. at *3. Mr. Rountree has not presented any evidence suggesting that this inadvertent discrepancy between Exhibit C-36 and Dr. Wardak's testimony rises to the level of knowing and intentional use of false evidence warranting federal habeas relief.
Mr. Rountree also asks the court to “infer” prosecutorial misconduct because “the prosecution interrupted [Ms.] Clark's testimony to request ‘a five-minute break'” but the break “lasted over thirty (30) minutes.” Pet. Br. at 25. Mr. Rountree contends that, during that break, “the district attorney's staff coerced it's [sic] chief witness, Ms. [Brittney] Clark, to perjure herself[.]” Pet. Br. at 25. Mr. Rountree has identified no evidence that anyone from the District Attorney's office spoke with Ms. Clark during the break and bases his serious allegations of egregious and pervasive prosecutorial misconduct solely on alleged discrepancies in Ms. Clark's testimony. This argument misstates the record. Mr. Rountree claims that the prosecutor asked Ms. Clark “whether she saw if the decedent was struck with the second gunshot,” to which she answered yes. Pet. Br. at 25 (emphasis added). He claims she later contradicted that testimony by stating that she did not See the decedent get hit by the second gunshot. Pet. Br. at 25. Mr. Rountree's argument misrepresents Ms. Clark's testimony. Ms. Clark was not asked whether she saw the second shot, she was asked:
Q. Do you know if [the decedent] was hit the second time?
A. For a fact, yes.Nov. 2, 2016 Trial Tr. at 44:19-21. There is no inconsistency in Ms. Clark's testimony, let alone an inconsistency severe enough to warrant an inference of perjury, a clear prerequisite for a finding of prosecutorial misconduct for suborning such testimony.
RECOMMENDATION
Mr. Rountree's claim that trial counsel was ineffective for not objecting to the admission of Exhibit C-36 fails because the Pennsylvania Superior Court's earlier determination of his claim is not contrary to established federal law, and his other ineffective assistance of counsel claim fails on its merits. Mr. Rountree's claims of prosecutorial misconduct are procedurally defaulted and, because Mr. Rountree has not offered new evidence that would excuse his default, they are not entitled to federal review. Accordingly, I recommend that Mr. Rountree's petition be dismissed with prejudice and without an evidentiary hearing.
The parties may object to this report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with the report and recommendation. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendations to which objection is made and explain the basis for the objections. A party wishing to respond to objections shall file a response within 14 days of the date the objections are served. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 354 (3d Cir. 2007).