Opinion
CIVIL 1:19-CV-1294
03-04-2022
SHAWN A. STEWART Petitioner, v. ERIC W. TICE, et al. Respondents.
Brann Chief Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Introduction
Shawn Stewart, a state inmate serving a 17.5-to-35-year sentence at the State Correctional Institute (“SCI”) in Somerset, Pennsylvania, has filed the instant petition for habeas corpus. In his petition, he challenges his jury-determined convictions, which stem from an armed break-in occurring at his romantic partner's house, an episode which resulted in Stewart's prosecution for robbery, burglary, and conspiracy.
Stewart posits that he was prejudiced at trial as a result of ineffective assistance of counsel. He further claims that he was denied due process as a result of insufficient evidence and a verdict against the weight of the evidence, as well as the trial court's allowance of alleged false testimony into the record. However, after a review of the record, we conclude that Stewart's petition fails on its merits under the deferential standards which govern such petitions. Accordingly, we will recommend that the petition be denied.
The respondents have also asserted that the petition is time-barred, and Stewart, through counsel, has vigorously contested this assertion. This statute of limitations question arises in an unusual context, in which Stewart obtained partial sentencing relief during his state PCRA litigation, but the Commonwealth alleges that while he was being re-sentenced the limitations period on his remaining claims lapsed. Because we find that Stewart's petition fails on its merits we need not reach the Commonwealth's aggressive assertion of the statute of limitations which invites us to find that federal claims became time barred while Stewart awaited re-sentencing due to Stewart's success in securing partial PCRA relief.
II. Statement of Facts and of the Case
The factual background of the instant case was aptly summarized by the Pennsylvania Superior Court's decision affirming Stewart's conviction and sentence:
Briefly, in the two years leading up to early January 2014, [Stewart] and Sandra Matos (“Sandra”) were engaged in a “friends with benefits” relationship. As of January 2014, Sandra lived in a Middletown, Pennsylvania townhome with her 13-year old twin sons. In the two months leading up to January 6, 2014, Sandra's father, Samuel Matos (“Matos”), lived with Sandra and her sons after moving to Middletown from Puerto Rico.
On the morning of Monday, January 6, 2014, Sandra was at work and her sons were at school when Matos heard a knock on the front door of the townhome. He opened the door to find two males and one female who asked for Sandra. When Matos explained she was not there, the three entered the home uninvited. One intruder put a gun to Matos' chest, ordered him to the floor, zip-tied his wrists behind him, and placed an item over his head. The other two intruders went upstairs and ransacked Sandra's bedroom and Matos' bedroom before leaving the home with a small blue suitcase belonging to Matos.
Matos was able to leave the home and summon assistance from a neighbor who called the police. The police, in turn, called Sandra who returned to the home. In the course of discussions with the police, Sandra explained that she had fabricated a story-playing to [Stewart's] perpetual interest in money-telling [Stewart] she was traveling to Puerto Rico over the January 3-5 weekend to conduct business for her father and she was returning to Middletown with $87,000 in a locked bag.
Following a police investigation, [Stewart] was arrested and charged with burglary, robbery, conspiracy and other crimes. Following trial, a jury found [Stewart] guilty of all ten counts against him.Commonwealth v. Stewart, No. 1622 MDA 2015 (Pa. Super. Ct. 2016) (Doc. 8-3, at 1).
The Superior Court affirmed Stewart's initial sentence of 28 to 56 years on direct appeal. However, Stewart filed a timely petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq., on August 22, 2017. On the subsequent June 11, 2019 appeal, the Superior Court vacated Stewart's sentence and remanded for resentencing; however, it affirmed Stewart's convictions, leaving them untouched for the purposes of a habeas petition. The Superior Court's ruling became final on July 11, 2019.
Stewart then filed the instant habeas petition on July 25, 2019, challenging the convictions affirmed by the Superior Court. (Doc. 1). The petition raises seven grounds upon which Stewart believes he is entitled to relief. On this score, Stewart asserts five claims of ineffective assistance of counsel, alleging that counsel failed to: object to the prosecution's closing argument; object to witness Detective Appleby's testimony; call witnesses on his behalf; request a Kloiber instruction; and impeach a witness, Sandra Matos. Stewart also asserts claims that he was denied due process because the verdict was against the weight and sufficiency of the evidence, and because the trial court admitted alleged false and prejudicial testimony. (Id.) In their response, the respondents argue that Stewart's petition is both time-barred and meritless. (Doc. 19).
After a careful review of the record, we agree with the respondents that Stewart's petition is time-barred and, further, that his claims are without merit. Accordingly, we will recommend that Stewart's petition be denied.
III. Standard of Review
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).
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 U.S. Dist. LEXIS 63759, at *11, 2010 WL 2632286 (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.” Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir.2005) (footnote omitted).Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009).
III. Discussion
A. Stewart's Claims Fails on Their Merits.
As previously stated, Stewart presents seven grounds on which he bases his claim for relief. On this score, Stewart asserts five claims of ineffective assistance of counsel, alleging that counsel failed to: object to the prosecution's closing argument; object to witness Detective Appleby's testimony; call witnesses on his behalf; request a Kloiber instruction; and impeach a witness, Sandra Matos. Stewart also asserts claims that he was denied due process because the verdict was against the weight and sufficiency of the evidence, and because the trial court admitted alleged false and prejudicial testimony. Each of these grounds will be discussed below.
(1) Stewart's Claim That the Jury's Verdict was Against the Weight and Sufficiency of the Evidence is Without Merit.
At the outset, Stewart alleges that he was denied due process as the result of a verdict against the weight and sufficiency of the evidence. As for Stewart's claim that the evidence was insufficient to convict him, this claim is judged against a particularly exacting standard of proof. In Jackson v. Virginia, the United States Supreme Court held that “in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 ... the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 443 U.S. 307, 324 (1979). Furthermore, when a petitioner argues about the sufficiency of the evidence in the context of a federal habeas petition, the petitioner would only be entitled to relief if the state courts' decisions regarding the sufficiency of the evidence presented at trial was “an unreasonable application of . . . clearly established Federal law, ” 28 U.S.C. § 2254(d)(1), or if the state court's application of that law itself is “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000); see also McDaniel v. Brown, 558 U.S. 120, 132-33 (2010). Moreover, the rule announced in Jackson “requires a reviewing court to review the evidence ‘in the light most favorable to the prosecution.'” Id. (quoting Jackson, 443 U.S. at 319). What this means is that a reviewing court “faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 133 (quoting Jackson, 443 U.S. at 326). Thus, “[w]e must affirm the convictions if a rational trier of fact could have found [the] 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).
Judged by this legal standard, Stewart's sufficiency of the evidence claims warrant only brief consideration. Stewart's present claim requires us to assess the reasonableness of the Superior Court's determinations, both regarding the sufficiency of the evidence and regarding the evidence's support of the verdict. In both instances, we determine that petitioner's claims do not warrant habeas relief and accordingly should be denied. With respect to Stewart's sufficiency-of-the-evidence claim, on direct appeal the Superior Court recognized the standard of review for such a claim as “whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt.” (Doc. 8-3, at 2) (quoting Commonwealth v. Jones, 954 A.2d 1194, 1196 (Pa. Super. Ct. 2008)).
The “element” of the crime that Stewart challenges is “that he was ‘the person' who perpetrated the crimes.” (Doc. 8-3, at 3). He claims that the evidence is insufficient to identify him as being present at the crime scene, stating that Samuel Matos “repeatedly testified that Petitioner was not the male who pointed the gun at him” and “could not identify Petitioner as the other male present during the home invasion.” (Doc. 1, at 27).
However, the Superior Court determined that Stewart cited only these testimonial statements as his proffered evidence. (Doc. 8-3, at 3-4). In doing so, he ignored the circumstantial evidence available to the jury during trial, such as: the cellular telephone data placing his location near the scene, the surveillance video capturing the perpetrators' vehicles, and Mr. Matos' behavior as observed by law enforcement. (Id.) Thus, viewing the evidence in the light most favorable to the Commonwealth, the Superior Court determined the evidence to be sufficient to support Stewart's convictions. We agree. The Superior Court's analysis of the trial evidence indicates that there was compelling evidence that Stewart does not consider that was sufficient to establish his presence and participation in these crimes and thus convict him of these offenses.
In turning to Stewart's claim that the verdict was against the weight of the evidence, we undertake a similar analysis. The Superior Court cited the standard for such a claim as beginning with a presumption of sufficient evidence and therefore no requirement that the evidence be viewed in favor of the verdict winner. (Doc. 8-3, at 4-5) (quoting Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000)). Rather, the court noted that the standard requires giving “the gravest consideration to the findings and reasons advanced by the trial judge, ” as the trial judge has the opportunity to see and hear the evidence. Id. (quoting Widmer, 744 A.2d at 751-52). In essence, a court should only find a verdict against the weight of evidence when “the jury's verdict is so contrary to the evidence as to shock one's sense of justice.” Id. (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)).
In arguing that the verdict was against the weight of the evidence, Stewart raises the same claims that the evidence did not point to his involvement as the perpetrator. As previously mentioned, these claims argue that Samuel Matos “repeatedly testified that Petitioner was not the male who pointed the gun at him” and “could not identify Petitioner as the other male present during the home invasion.” (Doc. 1, at 27).
Again, the Superior Court determined that, in the same claim on appeal, Stewart ignored circumstantial evidence and the jury's freedom to assess such evidence as it feels is just. (Doc. 8-3, at 4-5). It noted that, despite Mr. Matos' statements that Stewart was not the perpetrator, the prosecution presented ample evidence that may have suggested otherwise to the jury. (Id.) Such evidence included cellular telephone data placing Stewart near the crime scene at the time of the break-in; video evidence of a vehicle similar to that of Stewart's girlfriend “casing” the house; and testimony from attending officers suggesting unusual behavior from Mr. Matos while he attempted to identify his attacker. (Id.). Although Mr. Matos' statements did not name Stewart as the perpetrator, they represent only a single piece of a much larger puzzle the jury was tasked with completing. Accordingly, the Superior Court concluded that the jury's verdict was not against the weight of the evidence when considering the entire record. (Doc. 8-3, at 4-5). On this score, we cannot conclude that the Superior Court's conclusion was contrary to law. Rather, the court's analysis was clear and direct, and showed that there was ample evidence to convict the petitioner of these crimes. Accordingly, this claim does not warrant habeas relief.
(2) Counsel Reasonably Withheld Closing Argument Objections.
Stewart's then raises a series of challenges to the effectiveness of his trial counsel. Stewart first argues that trial counsel acted unreasonably by failing to object to the prosecution's closing argument. The closing argument to which Stewart objects included statements that Stewart may have been the person who held the gun to Samuel Matos' chest, as well as that he was the “ringleader, ” and that cellular telephone data placed his location in the vicinity of the crime. Commonwealth v. Stewart, No. 1376 MDA 2018 (Pa. Super. Ct. 2019) (Doc. 8-6, at 2). Stewart argues such a statement is “patently contrary” to Samuel Matos' testimony that Stewart was not present during the home invasion and did not hold the gun to his chest, and a lack of objection therefore prejudiced him during trial. (Doc. 1, at 21). We disagree.
In order to assess whether trial counsel's performance was deficient under Strickland, we must assess the reasonableness of counsel's decision not to object to the closing argument in question. To do so, we must analyze the prosecutor's remarks pursuant to the test set forth in Commonwealth v. Clancy, 192 A.3d 44, 62 (Pa. 2018). The analysis proceeds as a two-part inquiry: “1) does the substance of the remarks relate to the facts of the case, the elements of the crimes charged, and constitute a fair and reasonable rebuttal to the defenses' arguments and 2) do the remarks have a prejudicial effect on the jury.” Id.
In assessing the first inquiry, the Superior Court explained as follows:
Here, the PCRA court determined that there was no merit to [Stewart's] prosecutorial misconduct claim regarding the Commonwealth's closing arguments, opining that “[t]he jury heard ample evidence which supported the Commonwealth's [closing] arguments[.]” PCRA Court Opinion, 6/29/2018, at 8. The PCRA court noted that the jury heard evidence that [Sandra Matos] told [Stewart] about a fictitious money stash held inside the residence at issue. Id. The Commonwealth presented evidence that [Stewart] questioned [Ms. Matos] about who would be at the house at the time of the crimes and said that he was “going to get this money.” Id. As such, the trial court determined that the evidence showed that the home invasion was [Stewart's] idea. Id. Further, [Samuel Matos] testified that one of the men involved held him at gunpoint. Id. The Commonwealth also presented [Stewart's] cellular telephone data indicating he was in close proximity to the crimes. Id. Upon our review of the certified record, we agree with the PCRA court that the Commonwealth's closing argument was fairly based upon the evidence presented at trial.(Doc. 8-6, at 2).
Given these facts as found by the state courts and reflected in the record, we cannot conclude that the PCRA and Superior Court's decisions were based on an unreasonable determination of the facts. Rather, the courts analyzed the evidence presented at trial and concluded that the prosecutor's remarks were appropriate commentary based upon that evidence. Additionally, and with respect to the second inquiry, we also agree with the Superior Court's conclusion that the jury should be presumed not to have been prejudiced, as the court gave it clear instruction not to consider the speeches of counsel among the evidence. (Doc. 8-6, at 3) (citing Commonwealth v. Vucich, 194 A.3d 1103, 1113 (Pa. Super. Ct. 2018)). Accordingly, we cannot conclude that counsel was ineffective for failing to object to the prosecutor's closing argument, and thus Stewart's first claim does not entitle him to habeas relief.
(3) Counsel Reasonably Withheld Objections to Witness Detective Appleby's Testimony.
Stewart next brings an ineffective assistance of counsel claim asserting that trial counsel was ineffective by failing to object to witness Detective Robert Appleby's testimony. At trial, Detective Appleby attested to his professional belief that, despite not seeing Stewart, he was inside one of the vehicles observed on surveillance video. Stewart argues Detective Appleby's testimony was not supported by evidence and therefore prejudiced him during trial.
In assessing the reasonableness of trial counsel's performance, the Superior Court held that the credibility of Detective Appleby's testimony was a matter for the jury to believe or reject at its own discretion. (Doc. 8-6, at 4) (citing Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008)). The court indicated that the detective's testimony was based on his experience, and his use of the word “believe” constituted a credibility determination, which the jury was free to accept or reject. (Id.) Further, it appears that the detective's statement was deemed by the state courts as little more than a commentary on the evidence, which included statements by Stewart indicating that he intended to take the money he believed was at the home, as well as cell phone data placing him near the scene of the crime at the time of this offense.
We concur in these state court findings, since a court should not substitute its own assessment of a witness' credibility for that of the jury. See Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007). Sustaining any objection by trial counsel would have necessitated a ruling by the trial court on Detective Appleby's credibility, placing such a credibility determination improperly with the court rather than with the jurors. We therefore cannot conclude that the Superior Court reached an unreasonable determination in concluding that counsel's performance was not deficient. Thus, Stewart's second claim is without merit and does not entitle him to relief.
(4) Counsel Reasonably Abstained From Calling Stewart's Named Witnesses.
Stewart's third claim of ineffective assistance of counsel is based on trial counsel's failure to call Maritza Melendez and Rickie Hairston, two witnesses who Stewart asserts would have provided him with alibis.
In order to prevail on this claim, Stewart must prove trial counsel acted unreasonably and in a manner that prejudiced him. See Strickland, 466 U.S. at 687. “To succeed on this claim, [the petitioner] was required to show the existence of witnesses and their availability and willingness to testify, that counsel knew of the witnesses, and that he was denied a fair trial as a result of the absence of their testimony.” Chisley v. Kauffman, No. 4:16-CV-1980, 2019 WL 8301638, at *11 (M.D. Pa. Nov. 15, 2019), report and recommendation adopted, No. 4:16-CV-01980, 2020 WL 1445979 (M.D. Pa. Mar. 25, 2020), certificate of appealability denied sub nom. Chisley v. Superintendent Smithfield SCI, No. CV 20-1880, 2021 WL 1608752 (3d Cir. Mar. 1, 2021). In this case we conclude that Stewart has not made the requisite showing which would justify federal habeas corpus relief. Quite the contrary, as the Superior Court explained during its review of Stewart's PCRA petition,
The PCRA court alternatively examined the merits of [Stewart's] witness claim and determined that [Stewart] could not prove he was prejudiced by failing to call Melendez or Hairston. With regard to Melendez, the PCRA court determined that trial counsel's decision not to call Melendez was “a reasonable strategic decision” because her testimony “would have solidified identification of [Stewart] as the perpetrator.” PCRA Court Opinion, 6/29/2018, at 11. Upon review of the certified record, we agree. At trial, counsel argued there was no physical evidence linking [Stewart] to the crimes and that the sole eyewitness, [Samuel Matos], did not identify [Stewart] as a perpetrator. The Commonwealth argued that Melendez and [Stewart] worked together to complete the crimes. As the trial court astutely noted, calling Melendez as an alibi witness would have only highlighted the fact that the two were together at the time of the crime, undermining counsel's strategy to distance [Stewart] from Melendez. Aside from Melendez's proffered testimony, [Stewart] does not identify additional evidence to support the bald assertion that he and Melendez were in another location at the time of the crimes. For all of the foregoing reasons, we agree with the PCRA court's assessment that trial counsel had a reasonable strategy in not calling Melendez at trial.
With regard to Hairston, the PCRA court also concluded that counsel had a reasonable strategy in not calling Hairston as a witness at trial. PCRA Court Opinion, 6/29/2018, at 12. As the PCRA court notes,
calling Hairston would have “hampered the entire defense theory” that [Mr. Matos] identified Hairston as a perpetrator and “vehemently” denied that [Stewart] was responsible. Id. at 13. We agree. [Mr. Matos] identified Hairston “as the man he believed may have been holding the gun.” N.T., 6/9/2015, at 150. Detective Appleby testified that while watching surveillance videos of the three cars circling the subject residence, he “saw a male he believed to be Rick Hairston get out of one of those vehicles” at a nearby McDonald's. Id. at 151. Detective Appleby also testified that Hairston “went to Louisiana a few days after the robbery.” Id. at 153. If Hairston testified that he was in Louisiana at the time of the crime, it would have cast doubt on [Mr. Matos'] identification of Hairston and weakened [Stewart's] claim that Hairston was the actual perpetrator. As such, we do not deem trial counsel ineffective for failing to call Melendez and Hairston as witnesses.(Doc. 8-6, at 5).
Here, we cannot conclude that the Superior Court's conclusion is based on an unreasonable determination of the facts. The court's analysis of the trial evidence established that, had Stewart's chosen witnesses been called, his entire defense would have been hampered. Additionally, the court noted that calling Melendez would have solidified an identification of Stewart, putting him in a worse position than he was in. The mere fact that the two witnesses were available and willing to testify does not automatically mean that their testimony would have been in Stewart's best interest or a sound tactical decision by counsel. Rather, the court found that counsel's decision not to call these witnesses was a strategic trial decision and not the result of ineffective assistance of counsel. Stewart's third claim is therefore without merit and does not entitle him to habeas relief.
(5) Counsel Reasonably Withheld Requests for a Kloiber Instruction to the Jury.
In his fourth claim of ineffective assistance of counsel, Stewart argues that trial counsel failed to request a Kloiber instruction to the jury when Samuel Matos was unable to identify him as an assailant.
A Kloiber instruction to the jury is appropriate where a witness' identification of an assailant is questionable as a result of physical obstruction or uncertainty. Commonwealth v. Kloiber, 106 A.2d 820, 826-27 (Pa. 1954). Specifically, the instruction functions such that,
Where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.Kloiber, 106 A.2d at 826-27. Although the Kloiber instruction is appropriate in cases of uncertainty, the Superior Court noted on review that “where a witness' equivocal identification is based upon fear of reprisal, our Supreme Court has concluded that a Kloiber instruction is inappropriate and that a general jury charge on witness credibility is proper.” (Doc. 8-6, at 6) (citing Commonwealth v. Reid, 99 A.3d 470, 490-91 (Pa. 2014)).
According to Detective Appleby's testimony, Mr. Matos, upon being presented with a photo array and asked to identify his assailant, immediately pointed to Stewart's photo and adamantly denied that he had been present at the break-in. (Doc. 8-6, at 6). Detective Appleby characterized Mr. Matos' negative identification of Stewart as strange. (Id.) Superior Court reasoned that this statement “suggested [to the jury] that [Mr. Matos'] behavior when viewing the photographic array indicated that he recognized [Stewart], but stopped short of positively [identifying] him due to fear.” (Id.) The Superior Court then reiterated its explanation that “as our Supreme Court has made clear, a Kloiber instruction is not warranted where the fear of identifying a defendant cannot be equated to the failure to make an identification, ” ultimately concluding that “[Stewart's] Kloiber challenge fails.” (Id.)
We agree. The Superior Court's determination that counsel was not ineffective due to failure to request a Kloiber instruction was not based on an unreasonable determination of the facts. Rather, the court's review of the trial evidence led the court to conclude that Mr. Matos showed indications of fear, which rendered a Kloiber instruction improper. The petitioner's fourth claim is therefore without merit and does not entitle him to habeas relief.
(6) Counsel Appropriately Attempted to Impeach Sandra Matos.
Stewart submits a fifth claim of ineffective assistance of counsel based on trial counsel's alleged failure to use available evidence to impeach a witness, Sandra Matos.
The available evidence to which the petitioner refers in his claim is a recorded police interrogation between Detective Robert Appleby and Ms. Matos. (Doc. 1, at 26). Stewart asserts that during this interrogation, Ms. Matos “provided a number of inconsistent statements, as well as [recanted] exculpatory statements she made to the police about Mr. Stewart's alleged involvement in the offense.” (Id.) Stewart claims he was prejudiced by the fact that “at no point in time was [Ms. Matos'] recorded interrogation ever played of [sic] utilized, ” as well as by the fact that Ms. Matos remained unimpeached. (Id.) The Superior Court ultimately determined that trial counsel's decision not to play the recording did not constitute error:
The PCRA court determined that “the record reflects that trial counsel properly focused on questioning inconsistencies in [Ms. Matos'] testimony.” PCRA Court Opinion, 6/29/2018, at 16. Upon review of the trial transcripts, we agree. Here, defense counsel cross-examined [Ms. Matos] upon perceived inconsistences between her trial testimony and statements made to police. [Ms. Matos] testified that she hesitated in telling the police that [Stewart] was the perpetrator because she “was scared for her life.” N.T., 6/9/2015, at 60. [Ms. Matos] also stated that she believed certain statements attributed to her were not accurately reflected in the police report. Id. at 64-65. As such, trial counsel adequately cross-examined [Ms. Matos] at trial, in an attempt to impeach her. Finally, we note that trial counsel also questioned Detective Appleby extensively about his interactions and interviews with [Ms. Matos], which showed that [Ms. Matos] was reluctant and slow to reveal information to police. Id. at 120-129. He testified that she was extremely fearful “and it was difficult for her to tell [police] things about [Stewart.]” Id. at 129. Thus, while trial counsel impeached [Ms. Matos] with her inconsistent statements, the Commonwealth provided evidence to explain them. As such, [Stewart] has failed to show he was prejudiced. Accordingly, there is no merit to [Stewart's] claim that trial counsel was ineffective for failing to impeach [Ms. Matos] with her prior recorded conversation with police.(Doc. 8-6, at 6).
With respect to the instant habeas petition, we agree. The Superior Court's explanation of trial counsel's actions is not unreasonable. Rather, its analysis of trial evidence indicated that trial counsel attempted to impeach Ms. Matos and simply was unable to persuasively do so. Because we conclude that the Superior Court appropriately identified trial counsel's attempts to impeach as adequate, we cannot conclude that counsel rendered ineffective assistance on this score. Accordingly, this claim does not afford Stewart 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 Stewart's petition be denied.
(7) Stewart's Claim of False Prejudicial Testimony is Without Merit.
Stewart's seventh and final claim on which he bases his argument for relief states that he was denied due process as a result of the arresting officer's allegedly false and prejudicial testimony.
In asserting this claim, Stewart refers to the same testimony-provided by Detective Robert Appleby-that he challenges under his second claim of ineffective assistance of counsel. In the relevant testimony, Detective Appleby stated several times that, although he had not seen the petitioner, he believed that the petitioner rode in one of three vehicles captured circling the crime scene on surveillance video. Stewart claims the testimony is unsupported by the evidence due to a lack of photographs or video proving his presence in the vehicles.
In its review of Stewart's claim, the Superior Court determined that the credibility of a witness is a matter for the jury to assess at its own discretion. (Doc. 8-6, at 4) (citing Diggs, 949 A.2d at 879). A jury is therefore free to reject or deny a witness' testimony as it sees fit. We agree, adding that under no circumstance should a court substitute its own determination of a witness' credibility for that of the jury, since it is not tasked with the role of factfinding. See Cousar, 928 A.2d at 1033.
Applying this standard again with respect to the instant claim, the Superior Court determined that Detective Appleby's testimony was a decision correctly left to the jury during trial. To incorporate its reasoning in full:
[Stewart] argues that the detective's testimony was “false, misleading testimony.” Appellant's Brief at 45. We cannot agree. The detective testified to his belief based on his experience. In fact, he used the word “believe” three times in the course of the exchange. As the trial court determined, the detective's belief that [Stewart] was in one of the three vehicles “constituted a credibility determination within the province of the jury.” T.C.O., 11/20/15, at 14. “The jury was free to accept or reject any and all facts and conclusions to which [the detective] testified [ ] in deciding whether [Stewart] occupied one of the vehicles in the vicinity at the time surrounding the robbery.” Id. at 16.(Doc. 8-3, at 6).
We conclude that the Superior Court's determination was not unreasonable. The court accurately determined, based on the trial evidence, that the jury was the ultimate judge of the credibility of Detective Appleby's testimony, which was based on his personal belief and experience. The testimony therefore could not be classified as false or prejudicial. We thus conclude that the petitioner's final claim is without merit and does not afford him relief. Accordingly, we recommend that this petition be denied.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS HEREBY 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.