Opinion
Civil 1:21-cv-101
11-01-2021
HUGO MARCUS SELENSKI, Petitioner, v. MARK CAPOZZA, Superintendent, SCI Fayette, et al., Respondents.
Brann Chief Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge.
I. Introduction
Hugo Selenski is a convicted robber and murderer who now requests that this court grant him a new trial on his 2009 convictions for kidnapping, robbery, and other related charges stemming from a home invasion and robbery in Monroe County, Pennsylvania in 2003. Pending before the court is a petition for writ of habeas corpus filed by Selenski, who alleges that his trial and appellate counsel were ineffective in a host of ways, that the trial court abused its discretion with respect to his request for an expert witness at trial, and that the Assistant District Attorney committed several Brady violations and prosecutorial misconduct, all of which he insists violated his right to a fair trial.
Brady v. Maryland, 373 U.S. 83 (1963).
After review of the record, we find that Selenski's claims in his petition are either unexhausted or without merit. Accordingly, for the reasons set forth below, we will recommend that his petition be denied.
II. Statement of Facts and of the Case
The factual background of the instant case was aptly summarized by the Pennsylvania Superior Court in its decision affirming the denial of Selenski's petition for post-conviction relief:
On July 10, 2009, a jury convicted Appellant of multiple offenses, including kidnapping, robbery, attempted burglary, criminal conspiracy, theft by unlawful taking, simple assault, false imprisonment, and terroristic threats-all with respect to a home invasion and attack on a jeweler named Samuel Goosay. The trial court recounted the facts adduced at trial as follows:
On January 27, 2003, two men broke into Mr. Goosay's residence just after dinner wearing ski masks and brandishing a gun. The men handcuffed Mr. Goosay and placed duct tape over his eyes while threatening him and questioning him about the alarm code to his jewelry store and $20,000 in cash. Mr. Goosay gave the men a partial code and one of them went, in Mr. Goosay's car, to the jewelry store where he attempted and failed to break in and disarm the alarm. During this time, the other man stayed with Mr. Goosay. At some point during the altercation, the metal handcuffs initially used to bind Mr. Goosay's hands were switched to plastic flex cuffs.
Mr. Goosay was seated on the bed while the man who had stayed behind ransacked the master bedroom. At this time, Mr. Goosay was able to push the duct tape over one eye and see that his assailant had left the gun on top of a nearby dresser. Mr. Goosay grabbed the gun and a fight ensued where the assailant overtook Mr. Goosay, obtained the gun, and sat Mr. Goosay back on the bed to put a flex cuff around his ankles. While the assailant was
putting the flex cuff on his ankles, Mr. Goosay saw the assailant's face without the ski mask. The assailant commented that it did not matter that Mr. Goosay saw his face because the assailant was not “from around here” and that Mr. Goosay would “never recognize [him]” and will “never know who [he] is.”
Shortly thereafter, the alarm company at Mr. Goosay's jewelry store called his home phone and indicated that police were being dispatched to the store because the alarm had been triggered. Upon receiving this information, the assailant hit Mr. Goosay in the head and quickly left. Mr. Goosay removed some of his restraints and telephoned the police. The police collected the flex cuffs and duct tape from inside Mr. Goosay's house as well as pictures of footprints in the snow outside of Mr. Goosay's home. Among the footprints was one from a New Balance sneaker.
During the time this case was being investigated, police located human remains on [Appellant's] property in Luzerne County. Two bodies, those of Michael Kerkowski, Jr., and Tammy Fasset, were found buried behind [Appellant's] residence. Police determined that Kerkowski was a small business owner and Fasset was his girlfriend. Both victims were bound with flex cuffs: Fasset was bound around her hands, ankles, and neck and Kerkowski was bound around his hands. Additionally, Kerkowski had duct tape over his eyes. Upon searching [Appellant's] garage, home, and the vehicle he used, police located flex cuffs, duct tape, ski masks, metal handcuffs, a black BB pistol, and New Balance sneakers.
The flex cuffs on [Appellant's] property and those used to bind Mr. Goosay were found to be from a common source. The New Balance sneakers that were found in [Appellant's] garage were identified by [Appellant's] ex-girlfriend, [Christina] Strom, as belonging to [Appellant]. Moreover, an expert in the field of footwear impressions concluded that the prints left outside Mr. Goosay's home could have been left by [Appellant's] sneakers because “the physical size, the general state of wear, and the lack of accidental characteristics” on [Appellant's] sneakers matched the same on the impression in the snow.
During the trial, both the Commonwealth and [Appellant] presented evidence regarding Mr. Goosay's pretrial identifications of [Appellant]. Six months after the incident, Corporal Shawn Noonan showed Mr. Goosay a photo array that contained a picture of [Appellant] from 2001. Mr. Goosay failed to identify [Appellant] in this first array. Approximately two years later, Agent Scott Endy showed Mr. Goosay another photo array containing a picture of [Appellant] from May of 2003. Mr. Goosay was able to identify [Appellant]. Mr. Goosay was also able to identify [Appellant] at trial.
Trial Court Opinion, 3/4/16, at 2-4 (citations to notes of testimony and footnotes omitted).
Prior to trial, Appellant sought to contest Mr. Goosay's identification of him as the perpetrator by presenting an expert witness on eyewitness identification and on factors that can lead to inaccurate identification. Because Pennsylvania law at that time precluded such testimony, the trial court declined to permit this evidence. After three days of trial, a jury convicted Appellant of the aforestated charges, and on September 21, 2009, the trial court sentenced Appellant to an aggregate 32½ to 65 years' incarceration.Commonwealth v. Selenski, 228 A.3d 8, 12-13 (Pa. Super. Ct. 2020) (Doc. 17-1, at 6-7).
Selenski filed his direct appeal to the Pennsylvania Superior Court on February 1, 2010. On appeal, Selenski raised four issues for the court's consideration: the denial of his motion in limine to admit expert testimony on eyewitness identification and memory; the failure to exclude evidence under Rule 404(b) of crimes and other acts as it related to evidence from Selenski's Luzerne County case; the Commonwealth's failure to produce discovery; and the format of the verdict slip, which Selenski argued improperly shifted the burden of proof. The Superior Court denied Selenski's appeal on April 20, 2011. (Doc. 17-22). Selenski filed a Petition for allowance of Appeal to the Pennsylvania Supreme Court, and the Supreme Court vacated the Superior Court's decision only as to the issue of the denial of expert testimony, as the Court had decided an intervening case that overturned the longstanding rule that prohibited expert testimony on eyewitness identification. (Doc. 17-22); see Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). Thus, this sole issue was remanded to the Superior Court, which remanded to the trial court to conduct an evidentiary hearing.
Following the hearing, the trial court denied Selenski's request for a new trial based on the denial of an expert witness. (Doc. 17-28). In its decision, the court first noted that the Walker decision imposed a relevancy requirement with respect to expert testimony on eyewitness identification. (Id., at 8). In Walker, the Commonwealth's case was based primarily on the eyewitness identification of the defendant. (Id., at 7). However, the trial court reasoned that Selenski's proffered expert testimony did not fit the relevancy standard under Walker because the Commonwealth's case against him “consisted of an abundance of circumstantial evidence which placed [Selenski] in Mr. Goosay's home on January 27, 2003.” (Id.) Accordingly, Selenski's request for a new trial was denied. Selenski appealed, and the Superior Court affirmed the trial court's decision. The Pennsylvania Supreme Court denied Selenski's Petition for Allowance of Appeal on September 19, 2017. (Doc. 17-32).
Selenski then filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”) on March 5, 2018. This petition alleged eleven claims of ineffective assistance of trial and appellate counsel. These claims included trial counsel's alleged failure to investigate the case, impeach witnesses, object to prejudicial evidence and testimony, call an expert witness in eyewitness testimony, and call favorable witnesses to the defense. (Doc. 17-33). PCRA counsel was appointed and filed an amended petition alleging additional claims of trial counsel's ineffectiveness, after which a hearing was held. Following the hearing, PCRA counsel submitted another supplemental petition. Ultimately, the trial court denied Selenski's PCRA petition. (Doc. 17-40). Selenski appealed to the Superior Court, and on February 4, 2020, the Superior Court affirmed the denial of Selenski's petition. The Pennsylvania Supreme Court denied Selenski's Petition for Allowance of Appeal on October 19, 2020.
Thereafter, Selenski filed the instant habeas corpus petition on January 4, 2021. (Doc. 1). In his petition, Selenski raises five grounds that he believes entitle him to relief. On this score, he alleges that the prosecution used false testimony and failed to correct false testimony, committed several Brady violations, and engaged in prosecutorial misconduct because there was insufficient evidence to convict him. He further alleges that the trial court erred when it failed to permit expert testimony on eyewitness identification. Finally, he contends that his trial and appellate counsel were ineffective in several ways, including failure to call his codefendant at trial; failure to call a DNA expert; failure to properly impeach the Commonwealth's witnesses, including the victim; failure to conduct an experiment regarding the struggle between the victim and the perpetrator; and failure to object to the prosecutor's closing argument. The respondents filed a response to the petition on May 20, 2021, and the petitioner filed a supplemental reply on June 22, 2021. (Docs. 17, 20). Thus, the petition is ripe for resolution.
After review of the petition and the underlying state court record, we find that some of Selenski's claims are unexhausted and procedurally defaulted, as they were not raised in the state courts, and the time for raising these claims has long passed. We further conclude that, even if Selenski's claims were exhausted, these claims are without merit. Thus, given the deferential standard of review that applies to habeas petitions like Selenski's, we will recommend that the court deny Selenski's petition.
III. Discussion
A. State Prisoner Habeas Relief-The Legal Standard.
(1) Substantive Standards
In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State;
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.28 U.S.C. § 2254(a) and (b).
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a petition must satisfy exacting substantive standards to warrant relief. Federal courts may “entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the Constitution or laws or treaties of the United States, ” § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a “fundamental defect which inherently results in a complete miscarriage of justice” or was completely inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will not entitle a petitioner to § 2254 relief, absent a showing that those violations are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
(2) Deference Owed to State Courts
These same principles which inform the standard of review in habeas petitions and limit habeas relief to errors of a constitutional dimension also call upon federal courts to give an appropriate degree of deference to the factual findings and legal rulings made by the state courts in the course of state criminal proceedings. There are two critical components to this deference mandated by 28 U.S.C. § 2254.
First, with respect to legal rulings by state courts, under § 2254(d), habeas relief is not available to a petitioner for any claim that has been adjudicated on its merits in the state courts unless it can be shown that the decision was either: (1) “contrary to” or involved an unreasonable application of clearly established case law; see 28 U.S.C. § 2254(d)(1); or (2) was “based upon an unreasonable determination of the facts, ” see 28 U.S.C. § 2254(d)(2). Applying this deferential standard of review, federal courts frequently decline invitations by habeas petitioners to substitute their legal judgments for the considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
In addition, § 2254(e) provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1). This presumption in favor of the correctness of state court factual findings has been extended to a host of factual findings made in the course of criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990). This principle applies to state court factual findings made both by the trial court and state appellate courts. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility determinations made by the state courts, and we must give equal deference to both the explicit and implicit factual findings made by the state courts. Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state court judgment rests upon factual findings, it is well-settled that:
A state court decision based on a factual determination, ..., will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceeding. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We must presume that the state court's determination of factual issues was correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000).Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of review, federal courts may only grant habeas relief whenever “[o]ur reading of the PCRA court records convinces us that the Superior Court made an unreasonable finding of fact.” Rolan, 445 F.3d at 681.
(3) Ineffective Assistance of Counsel Claims
These general principles apply with particular force to habeas petitions that are grounded in claims of ineffective assistance of counsel. It is undisputed that the Sixth Amendment to the United States Constitution guarantees the right of every criminal defendant to effective assistance of counsel. Under federal law, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court in order to survive. Specifically, to prevail on a claim of ineffective assistance of counsel, a petitioner must establish that: (1) the performance of counsel fell below an objective standard of reasonableness; and (2) that, but for counsel's errors, the result of the underlying proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001). A petitioner must satisfy both of the Strickland prongs in order to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001).
At the outset, Strickland requires a petitioner to “establish first that counsel's performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This threshold showing requires a petitioner to demonstrate that counsel made errors “so serious” that counsel was not functioning as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. However, in making this assessment “[t]here is a ‘strong presumption' that counsel's performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)).
But a mere showing of deficiencies by counsel is not sufficient to secure habeas relief. Under the second Strickland prong, a petitioner also “must demonstrate that he was prejudiced by counsel's errors.” Id. This prejudice requirement compels the petitioner to show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. A “reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id.
Thus, as set forth in Strickland, a petitioner claiming that his criminal defense counsel was constitutionally ineffective must show that his lawyer's “representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “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.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). The petitioner must then prove prejudice arising from counsel's failings. “Furthermore, in considering whether a petitioner suffered prejudice, ‘[t]he effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'” Rolan, 445 F.3d at 682 (quoting Strickland, 466 U.S. at 696) (internal quotations omitted).
Although sometimes couched in different language, the standard for evaluating claims of ineffectiveness under Pennsylvania law is substantively consistent with the standard set forth in Strickland. See Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa.1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d Cir. 2000) (“[A] state court decision that applied the Pennsylvania [ineffective assistance of counsel] test did not apply a rule of law that contradicted Strickland and thus was not ‘contrary to' established Supreme Court precedent”). Accordingly, a federal court reviewing a claim of ineffectiveness of counsel brought in a petition under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show that the state court's adjudication of his claim was an “unreasonable application” of Strickland. Billinger v. Cameron, 2010 WL 2632286, at *4 (W.D. Pa. May 13, 2010). In order to prevail against this standard, a petitioner must show that the state court's decision “cannot reasonably be justified under existing Supreme Court precedent.” Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court's application of federal law is challenged, “the state court's decision must be shown to be not only erroneous, but objectively unreasonable”) (internal citations and quotations omitted).
This additional hurdle is added to the petitioner's substantive burden under Strickland. As the Supreme Court has observed a “doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal habeas”). This doubly deferential standard of review applies with particular force to strategic judgment like those thrust upon counsel in the instant case. In this regard, the Court has held that:
“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., at 688, 104 S.Ct. 2052. “Judicial scrutiny of counsel's performance must be highly deferential, ” and “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id., at 689, 104 S.Ct. 2052. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id., at 690, 104 S.Ct. 2052.Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S.Ct. 1411, 1420, 173 L.Ed. 2D 251 (2009). The deference which is owed to these strategic choices by trial counsel is great.
Therefore, in evaluating the first prong of the Strickland test, courts “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.' ” Id. The presumption can be rebutted by showing “that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound.”Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009) (quoting Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir. 2005)) (footnote omitted).
(4) Procedural Benchmarks - Exhaustion and Procedural Default
a. Exhaustion of State Remedies
State prisoners seeking relief under section 2254 must also satisfy specific, additional procedural standards. Among these procedural prerequisites is a requirement that the petitioner “has exhausted the remedies available in the courts of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). In instances where a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).
This statutory exhaustion requirement is rooted in principles of comity and reflects the fundamental idea that the state should be given the initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The Supreme Court has explained that “a rigorously enforced total exhaustion rule” is necessary in our dual system of government to prevent a federal district court from upsetting a state court decision without first providing the state courts the opportunity to correct a constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring exhaustion of claims in state court also promotes the important goal of ensuring that a complete factual record is created to aid a federal court in its review of § 2254 petitions. Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of showing that all of the claims alleged have been “fairly presented” to the state courts, and the claims brought in federal court must be the “substantial equivalent” of those presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot avoid this responsibility merely by suggesting that he is unlikely to succeed in obtaining state relief, since it is well-settled that a claim of “likely futility on the merits does not excuse failure to exhaust a claim in state court.” Parker v. Kelchner, 429 F.3d 58, 63 (3d Cir. 2005).
Although this exhaustion requirement compels petitioners to have previously given the state courts a fair “opportunity to apply controlling legal principles to the facts bearing upon [the petitioner's] constitutional claim, ” Picard v. Connor, 404 U.S. 270, 276 (1971), this requirement is to be applied in a commonsense fashion. Thus, the exhaustion requirement is met when a petitioner submits the gist of his federal complaint to the state courts for consideration, without the necessity that the petitioner engage in some “talismanic” recitation of specific constitutional clams. Evans, 959 F.2d at 1230-33. Similarly, a petitioner meets his obligation by fairly presenting a claim to state courts, even if the state courts decline to address that claim. Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004).
b. Procedural Default
A necessary corollary of this exhaustion requirement is the procedural default doctrine, which applies in habeas corpus cases. Certain habeas claims, while not exhausted in state court, may also be incapable of exhaustion in the state legal system by the time a petitioner files a federal habeas petition because state procedural rules bar further review of the claim. In such instances:
In order for a claim to be exhausted, it must be “fairly presented” to the state courts “by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). If a claim has not been fairly presented to the state courts and it is still possible for the claim to be raised in the state courts, the claim is unexhausted . . . .
If a claim has not been fairly presented to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play. A procedural default occurs when a prisoner's federal claim is barred from consideration in the state courts by an “independent and adequate” state procedural rule. Federal courts may not consider the merits of a procedurally defaulted claim unless the default and actual “prejudice” as a result of the alleged violation of the federal law or unless the applicant demonstrates that failure to consider the claim will result in a fundamental “miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002).
“[A] federal court will ordinarily not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus ‘[o]ut of respect for finality, comity, and the orderly administration of justice.' This is a reflection of the rule that ‘federal courts will not disturb state court judgments based on adequate and independent state law procedural ground.'” Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004) (citations omitted). Given these concerns of comity, the exceptions to the procedural default rule, while well-recognized, are narrowly defined. Thus, for purposes of excusing a procedural default of a state prisoner seeking federal habeas relief, “[t]he Supreme Court has delineated what constitutes ‘cause' for the procedural default: the petitioner must ‘show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'” Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (citations omitted). Similarly, when examining the second component of this “cause and prejudice” exception to the procedural default rule, it is clear that:
With regard to the prejudice requirement, the habeas petitioner must prove “‘not merely that the errors at … trial created the possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” This standard essentially requires the petitioner to show he was denied “fundamental fairness” at trial. In the context of an ineffective assistance claim, we have stated that prejudice occurs where “there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.”Id. at 193 (citations omitted).
Likewise, the “miscarriage of justice” exception to this procedural bar rule is also narrowly tailored, and requires a credible assertion of actual innocence to justify a petitioner's failure to comply with state procedural rules. Hubbard, 378 F.3d at 338.
Procedural bar claims typically arise in one of two factual contexts. First, in many instances, the procedural bar doctrine is asserted because an express state court ruling in prior litigation denying consideration of a habeas petitioner's state claims on some state procedural ground. In such a situation, courts have held that:
A habeas claim has been procedurally defaulted when “a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). For a federal habeas claim to be barred by procedural default, however, the state rule must have been announced prior to its application in the petitioner's case and must have been “firmly established and regularly followed.” Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). Whether the rule was firmly established and regularly followed is determined as of the date the default occurred, not the date the state court relied on it, Doctor v. Walters, 96 F.3d 675, 684 (3d Cir. 1996), because a petitioner is entitled to notice of how to present a claim in state court.Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007). (citing Ford, 498 U.S. at 423-24).
In other instances, the procedural default arises, not because of an express state court ruling, but as a consequence of a tactical choice by a habeas petitioner, who elects to waive or forego a claim in the course of his state proceedings, and thus fails to fully exhaust the claim within the time limits prescribed by state statute or procedural rules. In such instances the petitioner's tactical choices in state court litigation also yield procedural defaults and waivers of claims federally. See, e.g, , Johnson v. Pinchak, 392 F.3d 551 (3d Cir. 2004) (procedural default where petitioner failed to timely pursue state claim); Hull v. Freeman, 991 F.2d 86 (3d Cir. 1993) (same). Accordingly, a petitioner's strategic choices in state court waiving or abandoning state claims may act as a procedural bar to federal consideration of his claims, unless the petitioner can show either “cause and prejudice” or demonstrate a “fundamental miscarriage of justice.”
It is against these legal benchmarks that we assess Selenski's petition.
B. This Petition Should Be Denied.
In this habeas petition, Selenski raises five grounds that he believes entitle him to relief. On this score, he alleges that the prosecution used false testimony and failed to correct false testimony, committed several Brady violations, and engaged in prosecutorial misconduct because there was insufficient evidence to convict him. He further alleges that the trial court erred when it failed to permit expert testimony on eyewitness identification. Finally, he contends that his trial and appellate counsel were ineffective in a number of ways, including failure to call his codefendant at trial; failure to call a DNA expert; failure to properly impeach the Commonwealth's witnesses, including the victim; failure to conduct an experiment regarding the struggle between the victim and the perpetrator; and failure to object to the prosecutor's closing argument. However, as we will discuss below, some of Selenski's claims are unexhausted and procedurally defaulted, as he did not raise them in the state courts, and the time for bringing these claims has long passed. Moreover, the claims that have been exhausted were thoroughly considered by the state courts and denied on their merits. Accordingly, this petition should be denied.
(1) Selenski's First Ground for Relief was Never Raised in State Court and is Unexhausted.
Federal courts typically require a fully and complete round of appeals before a claim is deemed exhausted. See O'Sullivan, 526 U.S. at 844-45 (1999) (finding that a petitioner properly exhausts claims in state court “by invoking one complete round of the State's established appellate review process”); Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000) (“Petitioners who have not fairly presented their claims to the highest state court have failed to exhaust those claims”); Evans, 959 F.2d at 1230 (“A claim must be presented not only to the trial court but also the state's intermediate court as well as to its supreme court”); Blasi v. Atty. Gen. of Pa., 30 F.Supp.2d 481, 486 (M.D. Pa. 1998) (“The exhaustion doctrine requires the defendant to present the issue to any intermediate state appellate court, if applicable, and to the state's supreme court”). However, in light of the Pennsylvania Supreme Court's Order No. 218, which expressly allows petitioners to forego state Supreme Court review of legal claims exhausted in the Superior Court, it has been held that “Order No. 218 renders review from the Pennsylvania Supreme Court ‘unavailable' for purposes of exhausting state court remedies under § 2254(c).” Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004).
Here, Selenski's first claim for habeas relief-that the prosecution failed to correct false testimony and actually used it to bolster the witnesses' credibility and the prosecutor's closing argument-was never raised in the state courts. Accordingly, this claim is unexhausted and procedurally defaulted, as the time for bringing this claim in state court has passed. For his part, Selenski claims that he relied on his counsel to raise this issue, presumably as an ineffective assistance of counsel issue in his PCRA petition. However, it is well settled that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i). Further, the Supreme Court has stated that “[t]here is no constitutional right to an attorney in state post-conviction proceedings, ” and consequently “a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987) and Wainwright v. Torna, 455 U.S. 586 (1982)).
While not raised here as a claim of ineffective assistance of counsel, it would appear that Selenski is asserting that his PCRA counsel should have raised a claim that his trial counsel was ineffective for failing to raise this issue on direct appeal.
Thus, under the Coleman standard, Selenski has no cognizable claim that his PCRA counsel was ineffective. However, to the extent he argues that his claim fits within the narrow exception announced by the Supreme Court of the United States in Martinez v. Ryan, 566 U.S. 1 (2012), he is incorrect. The Martinez Court created an exception to the general rule prohibiting claims asserted against PCRA counsel, where it held:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.Martinez, 566 U.S. at 17.
The Martinez exception is narrow in that it provides a petitioner with a method to establish “cause” for a procedural default on some legal claim. Id. It does not, however, allow a petitioner to rely on the ineffectiveness of post-conviction counsel as a ground for relief, as that is precluded by § 2254(i). Id. Thus, to the extent that petitioner seeks relief on the ground that his PCRA counsel was ineffective, such relief should be denied.
To the extent petitioner seeks to use PCRA counsel's alleged ineffectiveness as “cause” to excuse any procedural default of his unexhausted claims, he has not met his burden of proof or persuasion. Under Martinez, the failure to raise a claim in a PCRA petition is excused only if counsel rendered ineffective assistance in developing, or failing to develop, the claim. Martinez, 566 U.S. at 21-22. Additionally, the claim of ineffective assistance of trial counsel that was not raised must be a substantial one-that is, it must have some merit. Id. at 14. This is a very high standard, as counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 571 U.S. 12, 22 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)).
Here, our review of the record indicates that Selenski's claim that the prosecutor failed to correct false testimony given by two members of the Pennsylvania State Police, and then used the false testimony in her closing argument, is plainly without merit. At the outset, we read this claim as alleging prosecutorial misconduct for failing to correct false testimony. In this regard, “prosecutorial misconduct is insufficient to overturn a conviction unless it ‘so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.' ” Reid v. Beird, 420 Fed.Appx. 156, 159 (3d. Cir. 2011) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). This determination requires the court to “distinguish between ordinary trial error and that sort of egregious misconduct which amounts to a denial of constitutional due process.” Ramseur v. Beyer, 983 F.2d 1215, 1239 (3d. Cir. 1992) (quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d. Cir. 1976) (internal quotations omitted)). In determining whether there was prosecutorial misconduct, the conduct of trial counsel must be examined in the context of the trial as a whole. Ramseur, 983 F.2d at 1239 (citing Greer v. Miller, 483 U.S. 756, 766 (1987)).
The testimony to which Selenski refers concerns three towels that were found-one in the victim's house and two in a bag found in the victim's car. During their testimony, Trooper Sachney and Corporal Noonan of PSP both testified that they believed one of the towels had the victim's blood on it, although their reports were never actually introduced at trial. (Doc. 17-46, at 87, 97, 113). Corporal Noonan also testified that at some point in the investigation, the victim told Noonan that the perpetrator who stayed behind at the house with Mr. Goosay looked like Mr. Goosay's son-in-law. (Id., at 112, 115). While there was some contradictory testimony concerning whether the victim told Noonan this at the time of the incident or at some later date, Mr. Goosay testified that he did, at some point, tell the investigators that his first reaction upon seeing Selenski while Selenski was putting flex cuffs around his ankles was that Selenski looked like his son-in-law. (Doc. 17-45, at 83-84, 86).
On these facts, we cannot conclude that the prosecutor failed to correct false testimony by Noonan and Sachney, or that such a failure constituted prosecutorial misconduct that amounted to a denial of due process. At the outset, we reject the characterization of this testimony as “false.” While Selenski claims that the testimony was contrary to what was contained in the laboratory reports regarding the blood evidence on the towels, there is simply no evidence in the record to that effect. Indeed, the reports were not admitted at trial, either by defense counsel or the prosecution. Further, both Trooper Sachney and Corporal Noonan testified that they believed the blood to belong to Mr. Goosay based on their recollection, but never testified conclusively that the blood belonged to Mr. Goosay. Accordingly, we cannot accept the characterization of this testimony as false testimony.
Nor can we conclude that the prosecutor used this testimony in her closing argument to bolster the credibility of these two witnesses. The prosecutor did not state that the blood on the towel matched the victim. Instead, she made a general argument that,
[Corporal Noonan] said that the blood on the cloth in the kitchen was not that of the Defendant's. And that's true. But you never heard any testimony from anyone that any other person other than Mr. Goosay was the one who was bleeding in the home. Of course, it's not going to be the Defendant's blood. They were struggling. Mr. Goosay, you saw pictures of his face. He's the one who was bleeding in the home. . . . There's nothing and no evidence that the Defendant was ever bleeding that night.(Doc. 17-46, at 180). Here, we cannot conclude that the prosecutor used this alleged false testimony in her closing argument to bolster the credibility of Noonan's testimony. Rather, she asked the jury to draw an inference from the fact that the testimony indicated Mr. Goosay was the only person who was bleeding in the house on the night of the break-in. Thus, our review of the record shows that the witnesses did not give false testimony, and that the prosecutor did not improperly use false testimony in her closing argument. Moreover, when these collateral matters are examined in the context of the trial as a whole it simply cannot be said that this testimony so infected the proceedings with unfairness that Selenski was deprived of his right to due process. Accordingly, we cannot conclude that this conduct by the prosecutor amounted to prosecutorial misconduct that deprived Selenski of due process.
Given that the underlying claim advanced by Selenski has no merit, we cannot conclude that it fits within the narrow Martinez exception constituting cause to excuse his procedural default of this claim. Accordingly, this claim does not warrant habeas relief.
(2) Selenski's Claim that the Prosecution Committed Brady Violations is Unexhausted, Procedurally Defaulted, and Without Merit.
In his next claim for relief, Selenski alleges that the Commonwealth disregarded his discovery requests and withheld exculpatory and impeachment evidence. Specifically, Selenski claims that the Commonwealth had discovery from his pending Luzerne County case that it did not turn over to him in the Monroe County case, including the testimony of Michael Kerkowski, Sr., Michael Kerkowski, Jr., and Christina Strom, Selenski's ex-girlfriend. He also contends that the Commonwealth suppressed DNA evidence that would have exonerated him.
At the outset, Selenski's claim that the Commonwealth suppressed DNA evidence was never raised in the state courts. Indeed, Selenski raised Brady claims both in his direct appeal and his PCRA petition but did not raise a claim regarding this DNA evidence. Accordingly, this claim is unexhausted and procedurally defaulted, as the time for bringing this claim in state court has passed. Further, Selenski has not provided cause to excuse this procedural default. Thus, this claim does not warrant habeas relief.
Selenski brought a claim regarding Brady violations in his direct appeal to the Superior Court, albeit in a more conclusory fashion, arguing generally that the prosecution withheld exculpatory evidence affecting the credibility of its witnesses. (Doc. 17-22). The Superior Court found that this issue was waived, as Selenski had failed to develop it. (Id., at 7). On this score, it is clear that “[a] federal habeas petitioner cannot bring claims in federal court that []he waived in state court where the state court's denial of relief rests on an ‘independent and adequate' principle of waiver under state law.” Hill v. Wetzel, 279 F.Supp.3d 550, 558 (E.D. Pa. 2016) (quoting Nara v. Frank, 488 F.3d 189, 199 (3d Cir. 2007)). Thus, because the Superior Court deemed this issue waived, it is a not a proper claim for habeas review.
We also find that even if this claim had been properly exhausted, it fails on its merits. Although the claim was deemed waived, the Superior Court further noted:
Here, the trial court correctly notes that under both the Rules of Evidence and the Rules of Criminal Procedure, the prosecution's discovery duty towards the Appellant is to provide notice of any discovered evidence, and that Appellant incorrectly “asks this [c]ourt to adopt a requirement that the actual discovery of such evidence be given in order for the evidence to be admissible.” At trial, Appellant's counsel admitted at a sidebar that he was given notice of the evidence relating to Tina Strom, and the court determined that he had sufficient
time to review it. In addition, the trial court found that the discovery being sought by Appellant regarding Michael Kerkowski, Sr. was never in the possession or control of the Commonwealth's prosecutors for this case.
Furthermore, Appellant had a full and fair opportunity to cross-examine witness Tina Strom at trial, during which he had the chance to impeach the credibility of her testimony. Therefore, even if Appellant had not waived these discovery issues for failure to brief them in a timely manner, they would not merit relief.(Id., at 7-8) (citations omitted).
We find this reasoning persuasive and conclude that Selenski's Brady claims, even if properly exhausted, are without merit. Rather, the record is clear that counsel had notice of and ample time to review the evidence relating to Tina Strom and had an opportunity to impeach her on cross examination. In addition, the trial court found that the Commonwealth's prosecutor did not have the discovery being sought by Selenski regarding Michael Kerkowski, Sr., as “[a]ny relevant evidence that was obtained by the Monroe County District Attorney's office from Luzerne County had been turned over to the Defendant before trial.” (Doc. 17-20, at 21). The trial court stated that the discovery Selenski was seeking from his Luzerne County case was not related to his Monroe County case, and thus “the Commonwealth [was] not obligated to provide that which is not in its possession.” (Id.) Finally, as to Selenski's claim that discovery of evidence related to Michael Kerkowski, Jr. was not provided to him, Selenski does not assert anything more than a general statement that Kerkowski Jr. was mentioned during his trial and “ha[d] a criminal past himself.” (Doc. 1, at 11). Not only did Selenski fail to assert this claim at the state level, but he has failed to develop it further in his habeas petition. Accordingly, this claim does not afford Selenski habeas relief.
Significantly, the trial court noted in its 1925(a) Opinion that defense counsel stated, on the record, that he had a lengthy conversation with Selenski's defense counsel in the Luzerne County case, and thus it was apparent that discovery from that case was readily accessible to the defendant if he deemed it useful in his Monroe County case. (Doc. 17-20, at 21).
(3) Selenski's Claim that the Trial Court Erred in Denying Him an Opportunity to Present an Expert Witness on Eyewitness Identification is Without Merit.
Selenski next argues that he was deprived of his right to a fair trial because the trial court denied his request to present an expert witness to testify about the vagaries of eyewitness identification and human memory. This issue was litigated at great length in the state courts, first as a motion in limine prior to trial, then on direct appeal, where the Pennsylvania Supreme Court vacated the Superior Court's decision affirming Selenski's judgment and sentence and remanded the issue of expert witness testimony to the Superior Court based on its intervening decision in Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). (Doc. 17-24). The Superior Court then remanded the matter to the trial court to “perform its traditional gatekeeper function with regard to the proposed expert testimony.” (Doc. 17-26, at 4).
The Pennsylvania Supreme Court denied Selenski's Petition for Allowance of Appeal in all other respects. Thus, the sole issue on remand was the denial of expert witness testimony on eyewitness identification.
The trial court then held a hearing and subsequently denied Selenski's request for a new trial on the basis that he was denied the opportunity to present expert witness testimony. Selenski argued that the eyewitness identification by the victim, Samuel Goosay, was unreliable and was the primary evidence against him, and thus he should have been permitted to introduce expert testimony to show that this identification was unreliable. However, using the test established in Walker, the trial court found that the testimony of an expert witness was not relevant in this case because the Commonwealth's case was not solely or primarily dependent upon the eyewitness identification. (Doc. 17-28, at 8). Rather, the court reasoned that “the Commonwealth's case against Defendant consisted of an abundance of circumstantial evidence which placed Defendant in Mr. Goosay's home on January 27, 2003.” (Id.) Accordingly, the court held that expert testimony on eyewitness identification would be irrelevant and denied Selenski's request for a new trial.
On appeal, the Superior Court affirmed. (Doc. 17-31). The Court recounted the non-identification evidence that was presented at trial and concluded that the eyewitness identification was not the sole or primary evidence against the Defendant. This evidence included: Mr. Goosay's description of the use of duct tape and “flex cuffs, ” of which similar materials were later found at Selenski's home; testimony from PSP Trooper Radziewicz and Sergeant Deskiewicz regarding the shoe imprints left at Goosay's home the night of the home invasion, which matched New Balance sneakers in Selenski's 10½ shoe size found in Selenski's home and identified by Christina Strom to be Selenski's sneakers; testimony of Troopers Radziewicz and Urban concerning the flex cuffs found at Goosay's residence, which shared a common origin with flex cuffs found in Selenski's home and in Christina Strom's car that she testified Selenski drove often; testimony from Kimberly Smith that placed a white car at the scene of Mr. Goosay's jewelry store at the time of the robbery, as well as testimony from Ms. Strom that she, Selenski, and Paul Weakley all drove her white Honda Accord; Ms. Strom's testimony that she saw a black gun in the bedroom she shared with Selenski, and testimony from Trooper Cocco that he found a black BB pistol and duct tape during a search of the white Honda Accord; and testimony from Trooper Urban that the bodies found on Selenski's property in Luzerne County were bound with flex cuffs and duct type, similar to the way Mr. Goosay was bound during the robbery. (Doc. 17-31, at 14-15).
While the Court ultimately agreed with the trial court that expert testimony would be irrelevant in this case under the Walker standard, the Court noted that the trial court's interpretation of Walker was too narrow, in that the trial court's interpretation required the exclusion of expert testimony in cases where eyewitness testimony was not the sole or primary evidence. (Doc. 17-31). The Superior Court found this interpretation too stringent, holding that even in such cases, courts have the discretion to admit such expert testimony if it is otherwise relevant and admissible. However, the Court ultimately upheld the trial court's decision to deny Selenski a new trial.
Ultimately, the Superior Court reasoned that based on this abundance of circumstantial evidence presented at trial, it was clear that “the primary evidence in the case was the forensic evidence linking Appellant to the crime scene and demonstrating Appellant's common scheme in Luzerne County.” (Id., at 16).
We note that the majority of the petitioner's argument focuses on the reasons why he believes Mr. Goosay's identification was unreliable. (Doc. 1, at 13-20; Doc. 20, at 13-20). However, given this thorough recitation of the non-identification evidence, and the state courts' findings that this non-identification evidence was the primary evidence presented against Selenski at trial, we find it unnecessary to discuss these lengthy arguments that primarily focus on the identification procedures used by law enforcement.
Given this thorough discussion and reasoning by the state courts, we cannot conclude that the state courts' determinations were contrary to law or based on an unreasonable determination of the facts. Rather, the state courts engaged in a thorough analysis and concluded that the trial court did not abuse its discretion when it denied Selenski's request for a new trial to present expert testimony on eyewitness identification. Accordingly, this claim does not warrant habeas relief.
(4) Selenski's Prosecutorial Misconduct and Sufficiency of the Evidence Claims Fail as a Matter of Law.
Next, Selenski contends that the Commonwealth engaged in prosecutorial misconduct when the prosecutor allowed false testimony and capitalized on that testimony in her closing argument, suppressed DNA evidence, and ignored or improperly portrayed facts that allegedly pointed to Selenski's innocence. We have already addressed Selenski's claim that the prosecutor allowed and used false testimony in order to convict him, and the claim that the prosecutor suppressed DNA evidence, and we found that these claims were without merit. Moreover, Selenski's claim that the prosecutor ignored evidence of his innocence is unexhausted, as it was never raised in state court, and further is undeveloped, as Selenski points to no specific instances in which evidence was ignored by the prosecutor. As for Selenski's claim that the evidence was insufficient to convict him, we conclude that this claim is unexhausted, procedurally defaulted, and without merit.
On this score, Selenski did not raise a sufficiency of the evidence claim in state court, and thus such a claim is unexhausted and procedurally defaulted, as the time for bringing such a claim in state court has passed. Moreover, Selenski has not established cause to excuse this procedural default. However, even if we were to treat this claim as being properly exhausted, we conclude that this claim is wholly without merit and does not warrant habeas relief.
The state courts discussed the sufficiency of the evidence at great length, albeit in a different context. Thus, the trial court discussed the sufficiency of the evidence in its decision to deny Selenski's request for a new trial based on the denial of expert witness testimony:
In essence, the issue is whether the evidence presented against Defendant at trial, absent Mr. Goosay's eyewitness identification, was sufficient to convict Defendant. See Walker, 92 A.3d at 787. ….
Mr. Goosay was a small business owner who was attacked by two men in his home. These men wore ski masks and use a black pistol to threaten Mr. Goosay into giving them a specific sum of money and the alarm code to his jewelry store. Mr. Goosay was bound around his wrists and ankles with flex ties and blindfolded with duct tape. Upon a search of Defendant's property, ski masks, a black BB pistol, flex ties, and duct tape were found. The flex ties found on Defendant's property and those used to bind Mr. Goosay were from a common source. Mr. Goosay's assailant left footprints outside, in the snow. Defendant's New Balance sneakers that were found with other items on his property were a match to the footprints found outside Mr. Goosay's home.
Additionally, the bodies of Michael Kerkowski, Jr. and Tammy Fassett were found buried on Defendant's property. Both bodies were bound with flex ties similar to the way Mr. Goosay had been bound and Kerkowski had duct tape over his eyes. Kerkowski was similarly a small business owner and his father, who knew Defendant, was threatened multiple times by Defendant in an effort to obtain money. Other similarities between this case and Defendant's Luzerne County case include the following: (1) the assailant in the present case and Defendant both used a gun and threats of burning down a home to get what they wanted; (2) the assailant in the present case and Defendant both demanded specific sums of money; (3) the assailant in the present case and Defendant both removed items from the scene that could have potentially left DNA evidence (assailant flushed a cigarette he had smoked, stating “I'm not stupid enough to leave this cigarette here.”) . . . (Defendant took the beer bottles he drank from when he left Kerkowski's father's house); and (4) Mr. Goosay was attacked in his home and Kerkowski and Fassett appeared to have been attacked in Kerkowski's home.
. . . . Though circumstantial, the above evidence establishes almost identical methods of operation between the present case and the Luzerne County case. Moreover, the physical items found on Defendant's property-e.g. duct tape, flex ties, black pistol, New
Balance sneakers-show that Defendant had access to all the materials used to commit the crimes against Mr. Goosay. Even without Mr. Goosay's eyewitness identification, we find that the combination of evidence links Defendant to the crimes against Mr. Goosay beyond a reasonable doubt . . .(Doc. 17-28, at 9-11) (citations to the record omitted).
In addition, the Pennsylvania Superior Court, in affirming the trial court's denial of Selenski's request for a new trial, similarly discussed the abundance of evidence tying Selenski to the crime. As we have discussed, the Superior Court recounted the non-identification evidence that was presented at trial. This evidence included: Mr. Goosay's description of the use of duct tape and “flex cuffs, ” of which similar materials were later found at Selenki's home; testimony from PSP Trooper Radziewicz and Sergeant Deskiewicz regarding the shoe imprints left at Goosay's home the night of the home invasion, which matched New Balance sneakers in Selenski's 10½ shoe size found in Selenski's home and identified by Christina Strom to be Selenski's sneakers; testimony of Troopers Radziewicz and Urban concerning the flex cuffs found at Goosay's residence, which shared a common origin with flex cuffs found in Selenski's home and in Christina Strom's car that she testified Selenski drove often; testimony from Kimberly Smith that placed a white car at the scene of Mr. Goosay's jewelry store at the time of the robbery, as well as testimony from Ms. Strom that she, Selenski, and Paul Weakley all drove her white Honda Accord; Ms. Strom's testimony that she saw a black gun in the bedroom she shared with Selenski, and testimony from Trooper Cocco that he found a black BB pistol and duct tape during a search of the white Honda Accord; and testimony from Trooper Urban that the bodies found on Selenski's property in Luzerne County were bound with flex cuffs and duct type, similar to the way Mr. Goosay was bound during the robbery. (Doc. 17-31, at 14-15).
Given this extremely thorough and lengthy analysis of the evidence presented in this case, even absent the eyewitness identification of Selenski by the victim, we cannot conclude that there was insufficient evidence to convict the petitioner of these crimes. Indeed, it is well settled that:
[I]n reviewing the sufficiency of the evidence, “we review the evidence in the light most favorable to the government as verdict winner.” United States v. Applewhaite, 195 F.3d 679, 684 (3d Cir. 1999) (citing United States v. Stansfield, 101 F.3d 909, 911 (3d Cir. 1996)). In other words, “[o]ur review of the sufficiency of the evidence after a guilty verdict is ‘highly deferential.'” United States v. Hodge, 321 F.3d 429, 439 (3d Cir. 2003) (quoting United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001)). “We must affirm the convictions if a rational trier of fact could have found defendant guilty beyond a reasonable doubt, and the verdict is supported by substantial evidence.” United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).United States v. Augustin, 376 F.3d 135, 138 (3d. Cir. 2004). We conclude that, based upon the evidence presented at trial, the jury's verdict convicting Selenski of kidnapping, robbery, and related crimes was clearly a rational judgment supported by substantial evidence. Thus, even if this claim had been properly exhausted in state court, it is plainly without merit and does not afford Selenski habeas relief.
(5) Selenski's Claims of Ineffective Assistance of Counsel are Meritless.
Finally, Selenski asserts a host of claims alleging that his counsel provided ineffective assistance. Specifically, Selenski asserts that trial counsel was ineffective for: failing to call his codefendant, Paul Weakley, as a witness; failing to call the scientists who tested the DNA, Alex Glessner and Linda Comerosky; failing to call his own DNA expert; failure to impeach witnesses, including Mr. Goosay, Special Agent Endy, Corporal Noonan, and Trooper Sachney; failure to conduct an experiment regarding the struggle and the cigarettes in Mr. Goosay's pocket; and failure to object to the prosecutor's closing argument. However, some of these claims were never presented to the state courts, or were not fully exhausted on appeal. Moreover, the claims that have been exhausted were found by the state courts to be meritless. Accordingly, these claims do not entitle Selenski to habeas relief.
At the outset, we note that Selenski did not bring his claim regarding trial counsel's failure to conduct an experiment into the struggle between Selenski and Mr. Goosay. He also failed to fully exhaust his claims concerning the failure to call the scientists who tested the DNA, the failure to cross-examine and impeach witnesses, as well as his claim that counsel failed to object to the prosecutor's closing argument, as these claims were not presented or developed on appeal to the Superior Court. For his part, Selenski attempts to excuse these procedural defaults by raising a claim that his PCRA counsel was ineffective.
As we have stated, the ineffectiveness of PCRA counsel is not grounds for relief under § 2254, as “[t]here is no constitutional right to an attorney in state post-conviction proceedings.” Coleman, 501 U.S. at 752. Thus, under the Coleman standard, Selenski has no cognizable claim that his PCRA counsel was ineffective. However, to the extent he argues that his claims fit within the narrow Martinez exception and constitute cause to excuse the procedural default of these claims, he is incorrect. Again, a claim fits within the Martinez exception if PCRA failed to raise or develop a claim of trial counsel's ineffectiveness, and that underlying claim is a substantial one. Martinez, 566 U.S. at 14, 21-22. On this score, we are reminded that counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt, 571 U.S. at 22 (quoting Strickland, 466 U.S. at 690).
First, with respect to Selenski's claim that counsel failed to conduct an experiment concerning the struggle that occurred in Goosay's house, Selenski has provided nothing more than a conclusory assertion that counsel should have done so. He simply asserts his belief that Mr. Goosay's pack of cigarettes could not have remained in his shirt pocket during the struggle. However, “[a]n attorney's decision regarding cross-examination of witnesses is strategic in nature and will not constitute the basis for ineffective assistance of counsel if such decisions are reasonably made.” Revel v. Pierce, 66 F.Supp.3d 517, 527 (D. Del. 2014) (citing Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987)). Moreover, counsel did question Mr. Goosay about the cigarettes and his struggle with Mr. Selenski. (Doc. 17-45, at 69-76). Here, Selenski cannot show that counsel's decision not to conduct an experiment into the placement of the cigarettes during the struggle constituted deficient performance or that the decision prejudiced him in any way. Accordingly, this claim has no merit, and Selenski has not established cause to excuse the procedural default of this claim.
In the same vein, Selenski has not shown cause to excuse procedural default of his claim that counsel failed to properly cross-examine or impeach several other witnesses at trial. This claim was initially raised in Selenski's PCRA petition but was not raised on appeal to the Superior Court. Thus, this issue is unexhausted and procedurally defaulted. Moreover, this claim does not fit within the Martinez exception because it is meritless.
Here, Selenski claims that trial counsel failed to effectively cross examine certain witnesses, including SA Endy, Corporal Noonan, and Trooper Sachney. He claims that counsel should have cross-examined SA Endy regarding the identification procedures used when Mr. Goosay identified him, and that counsel should have impeached the testimony of Trooper Sachney and Corporal Noonan regarding the bloody towels. On this score, it is clear from the record that defense counsel cross-examined SA Endy about the identification procedures. Specifically, defense counsel questioned SA Endy about the photograph of Mr. Selenski that was used in the photo array, and asked questions about the time period the photo was taken. (Doc. 17-46, at 139-43). Additionally, as we explained with regard to the testimony of Trooper Sachney and Corporal Noonan, defense counsel attempted to impeach these investigators by cross-examining them about their reports of the incident. (Id., at 84-88 (Trooper Sachney), 93-97 (Corporal Noonan)). Accordingly, we cannot conclude that counsel's performance was deficient, and this claim is without merit.
Moreover, we cannot conclude that Selenski suffered any prejudice from counsel's alleged failure to further cross examine these witnesses. As we have discussed at length with respect to Selenski's other claims, the eyewitness identification was just one piece of evidence among an abundance of other evidence that placed Selenski at the crime scene. Additionally, the testimony of Trooper Sachney and Corporal Noonan indicated that the DNA evidence found in the house was not a match to Selenski. Given that Selenski's defense was that he was not present at the house when the home invasion occurred, we cannot conclude that failing to inquire further into the DNA evidence prejudiced Selenski. Simply put, defense counsel had fully developed all of the information that was useful to the defense regarding this DNA evidence.
Selenski's claim that counsel failed to object to the prosecutor's closing argument is similarly without merit. Selenski raised this claim in his PCRA petition and on appeal to the Superior Court, which did not address the issue because Selenski had failed to develop the issue in his brief. (Doc. 17-43, at 9, n.3). However, as we have discussed with respect to Selenski's prosecutorial misconduct claim, we cannot conclude that the prosecutor's closing argument included any inflammatory or prejudicial statements that were objectionable. While Selenski contends again that the prosecutor used Trooper Sachney's and Corporal Noonan's “false testimony” to bolster her closing argument, we have found that these witnesses did not testify falsely, and that the prosecutor did not use this testimony in her closing argument. Rather, the prosecutor remarked that,
[Corporal Noonan] said that the blood on the cloth in the kitchen was not that of the Defendant's. And that's true. But you never heard any testimony from anyone that any other person other than Mr. Goosay was the one who was bleeding in the home. Of course, it's not going to be the Defendant's blood. They were struggling. Mr. Goosay, you saw pictures of his face. He's the one who was bleeding in the home. . . . There's nothing and no evidence that the Defendant was ever bleeding that night.(Doc. 17-46, at 180). Thus, as we concluded with respect to the claim of prosecutorial misconduct, the prosecutor asked the jury to draw an inference from the fact that the testimony indicated that Mr. Goosay was the only individual in the home who was bleeding that night. Given that the closing argument did not contain false or inflammatory statements, there was no basis for trial counsel to object. Accordingly, even if this claim had been properly exhausted, we conclude that it is without merit.
Finally, we turn to the claims that Selenski properly exhausted in the state courts-counsel's failure to call his codefendant, Paul Weakley, and counsel's failure to call a DNA expert. These claims were addressed by the PCRA court and the Superior Court, and both courts found that counsel was not ineffective. We agree.
Regarding the claim that counsel should have called a DNA expert, the PCRA court noted:
In regard to DNA evidence, trial counsel stated at the PCRA hearing that he believed “[t]he fact that [Defendant] was excluded was significant enough without getting bogged down into other DNA issues.” Trial counsel also stressed the fact that a specific individual to whom the DNA could be “tagged” was not found. He believed this added to his decision not to present more or ask more questions relating to the DNA evidence and the exclusion of Defendant was sufficient enough for his strategy. We find that a reasonable basis did in fact exist for trial counsel's decision to focus solely on the Defendant not being a match for the DNA evidence rather than presenting more witnesses and evidence to show that the DNA was not a match.(Doc. 17-40, at 11) (citations to the record omitted). The Superior Court agreed. (Doc. 17-43, at 11). On this score, the Superior Court reasoned that the fact that Selenski could not identify a particular expert was fatal to his claim, but that in any event, counsel's strategic choice to not delve further into the DNA evidence was a reasonable one. (Id., at 11 & n.5).
Given the deference that we must afford the state courts, we cannot conclude that these determinations were contrary to established law or based on an unreasonable determination of the facts. Rather, the state courts thoroughly discussed the law and the facts and concluded that trial counsel's decision to not call a DNA expert was a sound decision and did not constitute ineffective assistance of counsel. Accordingly, this claim does not warrant habeas relief.
Selenski also brings a claim that counsel failed to call the two scientists who tested the DNA evidence in his case. We note that this claim was never raised in the state courts and is therefore unexhausted and procedurally defaulted. However, even if this claim were exhausted, the determination of the PCRA and Superior Courts regarding the reasonableness of counsel's decision not to further discuss the DNA evidence supports a finding that this claim is also meritless.
Finally, Selenski asserts a claim that counsel was ineffective for failing to ensure the appearance of his codefendant, Paul Weakley, and call him as a witness for the defense. Weakley was identified as a potential witness on the Commonwealth's witness list, but the Commonwealth decided not to call him as a witness. In its decision denying Selenski's PCRA petition, with respect to this claim the PCRA court held that Selenski could not show his counsel was ineffective on this score because Selenski had failed to establish that Weakley would have been willing to testify for the defense (Doc. 17-40, at 9). Indeed, Weakley was listed as a witness for the Commonwealth, but the Commonwealth decided not to call him at the last minute. (Id.)
The Superior Court agreed that counsel had a reasonable basis for choosing not to call Weakley as a defense witness. (Doc. 17-43, at 11). At the outset, the Court noted that Selenski had not provided as much as an affidavit from Weakley stating that he was willing to testify for the defense, and that Weakley did not testify at the PCRA hearing. (Id.) Further, the Court reasoned that the absence of Weakley's testimony as proffered by Selenski was not prejudicial. Selenski argued that Weakley would have testified to the involvement of two other individuals in the robbery and home invasion, “Nick” and “Steve.” (Id.) On this score, the Court explained:
[W]e conclude that the absence of Mr. Weakley's testimony at Appellant's trial as to the alleged involvement of two additional men named “Nick” and “Steve” was not so prejudicial as to have denied Appellant a fair trial. Mr. Weakley identified Appellant as one of his co-conspirators. The fact that there may have been additional co-conspirators, who Mr. Weakley could have identified at Appellant's trial, does not establish a reasonable probability that, but for counsel's action, there would have been a different outcome at Appellant's trial, particularly given the fact the victim, Mr. Goosay, positively identified Appellant at trial. Simply put, Appellant did not demonstrate how Mr. Weakley's testimony would have been helpful to his defense in this regard.(Id.) (citations to the record omitted).
Here, we cannot conclude that the state courts' determinations were contrary to established law or based on an unreasonable determination of the facts. Rather, the state courts thoroughly considered Selenski's claims in accordance with the law and the facts of his case and concluded that counsel's performance was not deficient, and further, that Selenski was not prejudiced. Accordingly, given the deference we must afford to these state court findings, we conclude that this claim is without merit and does not entitle Selenski to habeas relief.
In sum, we are mindful that the Supreme Court has observed that a “doubly deferential judicial review . . . applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal habeas”). Given this deferential standard, we cannot conclude that the state courts' decisions relating to these ineffective assistance of counsel claims were an unreasonable application of Strickland or based on an unreasonable determination of the facts. To the contrary, the PCRA court's and Superior Court's analyses of these ineffective assistance of counsel claims are thorough and well-supported by both the law and the facts of the petitioner's case. Accordingly, these claims do not warrant habeas relief and we recommend that Selenski's petition be denied.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the petition for a writ of habeas corpus in this case be DENIED, and that a certificate of appealability should not issue.
The petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.