Opinion
Civil Action 1:18-cv-00910
12-05-2022
JOHN JUNIOR TAYLOR, Petitioner, v. SUPT. LARRY MAHALLY, Respondent.
WILSON, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE.
On April 30, 2018, the petitioner, John Junior Taylor (“Taylor”), filed a fee-paid pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) At the time of filing, Taylor was incarcerated at SCI Dallas, located in Luzerne County, Pennsylvania.
I. Statement of the Case
A. Procedural History
On May 25, 2007, following a jury trial, Taylor was convicted of first-degree murder. See Commonwealth v. Taylor, Docket No. CP-22-CR-0000444-2006 (Dauphin Cty. (Pa.) C.C.P.).On June 20, 2007, he was sentenced to a term of life imprisonment. Id. His conviction and sentence were affirmed on direct appeal by the Superior Court of Pennsylvania on December 14, 2009. Commonwealth v. Taylor, 990 A.2d 55 (Pa Super. Ct. 2009) (table decision); see also Commonwealth v. Taylor, No. 1979 MDA 2007, slip op. (Pa. Super. Ct. Dec. 14, 2009).He petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on November 2, 2011. Commonwealth v. Taylor, 32 A.2d 1278 (Pa. 2011) (table decision). He did not file a petition for a writ of certiorari with the Supreme Court of the United States.
Pet'r's App. vol. 1, at 1-19 (criminal docket sheet), Doc. 27-1.
Pet'r's App. vol. 2, at 583-91 (unpublished opinion on direct appeal), Doc. 27-2.
Taylor timely filed a pro se PCRA petition in the Court of Common Pleas on November 6, 2012, and later his court-appointed attorney filed an amended PCRA petition on August 22, 2013. Following two evidentiary hearings, the Court of Common Pleas denied PCRA relief on April 6, 2016. See Commonwealth v. Taylor, No. 2006-CR-444, 2017 WL 1952702, at *3-*10 (Dauphin Cty. (Pa.) C.C.P. Apr. 6, 2016).The denial of Taylor's PCRA petition was affirmed on appeal by the Superior Court of Pennsylvania on May 10, 2017. Commonwealth v. Taylor, 170 A.3d 1205 (Pa. Super. Ct. 2017) (table decision); see also Commonwealth v. Taylor, No. 749 MDA 2016, 2017 WL 1952702, at *1-*3 (Pa. Super. Ct. May 10, 2017) (unpublished opinion). Taylor petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on Jan. 31, 2018. Commonwealth v. Taylor, 180 A.3d 1212 (Pa. 2018) (per curiam table decision).
Pet'r's App. vol. 2, at 609-36 (pro se PCRA petition); id. at 637-47 (counseled amended PCRA petition).
The PCRA court's opinion was included as an attachment to the Superior Court's opinion affirming the common pleas court's ruling on appeal. It can also be found in the record at Pet'r's App. vol. 2, at 683-95.
Taylor constructively filed the instant pro se federal habeas petition on April 18, 2018.(Doc. 1.) The respondent initially filed a partial answer to the petition on June 20, 2018, in which he requested leave of court to file a partial answer limited to a defense that the petition was time-barred. (Doc. 8.) This initial, partial answer did not address the merits of the petitioner's habeas claims. (Id.) On June 21, 2018, we entered an order denying the respondent's request for leave and directing him to file an answer addressing the merits of the petitioner's habeas claims, as well as the statute-of-limitations defense. (Doc. 9.) The respondent filed his amended answer to the petition on June 28, 2018. (Doc. 10.) On July 18, 2018, Taylor filed a pro se supplement to his petition, including documentary exhibits, which addressed the alleged ineffectiveness of his court-appointed postconviction counsel in state PCRA proceedings. (Doc. 13.) On October 24, 2018, the Federal Public Defender's Office was appointed to represent Taylor in this habeas action. (Doc. 19.) Taylor timely filed a counseled reply to the answer on February 1, 2019. (Doc. 27.) Counsel for both sides presented oral argument to the court on March 9, 2021. (Doc. 34; Doc. 36.)
The petition was received and docketed by the clerk on April 30, 2018, but it appears to have been deposited in the prison mail system on August 18, 2018, and thus effectively filed that day. See R. 3(d), 28 U.S.C. foll. § 2254.
Previously, the court had raised the question at a scheduling conference of whether an evidentiary hearing should be held, but petitioner's counsel advised the court that it was precluded from doing so because an evidentiary hearing had already been held by the state PCRA court. (Doc. 32.) See generally Shinn v. Martinez, 142 S.Ct. 1718, 173435 (2022) (discussing “stringent requirements” under 28 U.S.C. § 2254(e)(2) for conducting evidentiary hearings in habeas actions).
B. Habeas Claim Presented
The pro se petition asserted that Taylor is entitled to relief under 28 U.S.C. § 2254 on the ground that he was denied the effective assistance of counsel in trial proceedings because his trial counsel had concurrently represented a key prosecution witness against him, Thomas Taylor (“Thomas”), for a period of approximately three months prior to Taylor's trial. Trial counsel's representation of Thomas ended ten days before Taylor's jury trial began when he obtained a conflict-waiver from Thomas and withdrew from representing the witness in an unrelated federal criminal proceeding. Taylor argues that, because trial counsel labored under an actual conflict of interest, the courts must presume that he was prejudiced, and thus denied his constitutional right to the effective assistance of counsel.
Despite sharing a surname, petitioner and witness are not related.
Taylor raised this claim before the state PCRA court, which denied it on the merits after holding two hearings. He raised it again on appeal before the Superior Court, which affirmed the PCRA court's ruling on the merits.
II. Discussion
A. Statute of Limitations
As a preliminary matter, we must address the respondent's contention that Taylor's federal habeas petition was untimely filed, and thus barred by the applicable statute of limitations.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year statute of limitations for the filing of federal habeas corpus petitions pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d). The statute also prescribes how the one-year limitation period is calculated, including the date on which the limitation period begins, id. § 2244(d)(1), and the circumstances under which the limitation period may be tolled, id. § 2244(d)(2).
1. Calculation of the Applicable Limitation Period
Under the AEDPA, a state prisoner generally must file any federal habeas corpus petition within one year of the date that his conviction “became final by the conclusion of direct review or the expiration of the time for seeking such review.” See 28 U.S.C. § 2244(d)(1)(A). Where a prisoner does not pursue direct review of his conviction all the way to the Supreme Court of the United States, his conviction becomes final when the time for pursuing direct review in that Court, or at any level of state court, expires. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Here, Taylor's conviction became final on January 31, 2012-ninety days after the Supreme Court of Pennsylvania denied his petition for allocatur on direct appeal. See 28 U.S.C. § 2244(d)(1)(A); Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (“[I]f the . . . prisoner chooses not to seek direct review in [the Supreme Court of the United States], then the conviction becomes final when ‘the time for filing a certiorari petition expires.'”) (quoting Clay v. United States, 537 U.S. 522, 527 (2003)); Sup. Ct. R. 13(1) (providing ninety days to file a petition for a writ of certiorari in the Supreme Court of the United States).
Here, the respondent has argued for a much earlier date of finality. The respondent notes that the decision by the Superior Court affirming Taylor's conviction on direct appeal was entered on December 14, 2009, and that, to be timely, a petition for allocatur was required to be filed by January 13, 2010. See Pa. R. App. P. 1113(a)(1) (permitting 30 days after entry of Superior Court order to file petition for allocatur). Taylor did not file his petition for allocatur before that date, so the respondent argues that his judgment of conviction became final on January 13, 2010, the date when the time for pursuing direct review in the Supreme Court of Pennsylvania expired. See Gonzalez, 565 U.S. at 150.
But on or about March 29, 2010, Taylor filed a pro se petition for leave to file a petition for allocatur nunc pro tunc in the Supreme Court of Pennsylvania. If the state supreme court had denied his request for leave to file a petition for allocatur nunc pro tunc, the respondent's calculation would be correct. But the state supreme court ultimately granted Taylor's petition for leave to file, directed that counsel be appointed to represent Taylor in the matter, and directed that such newly appointed counsel file a petition for allocatur on behalf of Taylor. See Commonwealth v. Taylor, Docket No. 63 MM 2010 (Pa.). On February 1, 2011, Taylor's newly appointed appellate counsel filed a petition for allocatur on his behalf, and-as we have previously noted-the state supreme court denied Taylor's counseled petition for allocatur on May 13, 2011. See Commonwealth v. Taylor, Docket No. 103 MAL 2011 (Pa.); see also Commonwealth v. Taylor, 32 A.2d 1278 (Pa. 2011) (table decision).
Pet'r's App. vol. 2, at 599-603 (miscellaneous docket sheet).
Pet'r's App. Vol. 2, at 604-07 (allocatur docket sheet).
Under the AEDPA,
where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not “final” for purposes of § 2244(d)(1)(A). In such a case, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” must reflect the conclusion of the out-oftime direct appeal, or the expiration of the time for seeking review of that appeal.Jimenez, 555 U.S. at 121. Thus, the respondent's calculation is erroneous. For the reasons explained above, Taylor's conviction became final on January 31, 2012-the date when his time for filing a petition for certiorari in the Supreme Court of the United States expired.
Accordingly, absent any applicable tolling period, Taylor had until January 31, 2013, to timely file his federal petition for a writ of habeas corpus. The instant petition was filed more than five years later in April 2018.
2. Statutory Tolling
A person in state custody may toll the running of the AEDPA's limitation period during the time in “which a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). On November 6, 2012, Taylor filed a pro se PCRA petition in the state court of common pleas, 280 days after his conviction became final. PCRA counsel was appointed to represent him, and an amended PCRA petition was filed. When Taylor's amended PCRA petition was denied by PCRA court, he timely appealed to the Superior Court of Pennsylvania. When the Superior Court affirmed the denial of his PCRA petition, Taylor timely petitioned the Supreme Court of Pennsylvania for allocatur. On January 31, 2018, the Supreme Court of Pennsylvania denied allocatur and the limitation period began to run once again for an additional period of 85 days (one year less 280 days), ending on April 26, 2018. See generally Lawrence v. Florida, 549 U.S. 327, 332 (2007); Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 n.5 (3d Cir. 2013).
The instant federal petition for a writ of habeas corpus was constructively filed when the petitioner placed it in the prison mailing system on April 18, 2018-eight days before the one-year limitations period expired. Accordingly, the instant petition is not time-barred.
B. Ineffective Assistance of Trial Counsel
We turn then to the petitioner's ineffective assistance claim itself. The Superior Court of Pennsylvania denied this claim on the merits, and the Supreme Court of Pennsylvania summarily denied allocatur.
A federal court may not grant relief on a habeas claim previously adjudicated on the merits in state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.28 U.S.C. § 2254(d). In drafting this statute, Congress “plainly sought to ensure a level of ‘deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way.” Williams v. Taylor, 529 U.S. 362, 386 (2000); see also Eley v. Erickson, 712 F.3d 837, 846 (3d. Cir. 2013). Consequently, “state-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated.” Williams, 529 U.S. at 387. “A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be [objectively] unreasonable.” Id. at 411; see also Eley, 712 F.3d at 846. Moreover, any factual findings by the state trial and appellate courts are presumed to be correct, and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 571 U.S. 12, 18-19 (2013); Eley, 712 F.3d at 846.
Because the Supreme Court of Pennsylvania summarily denied allocatur, this Court looks to the disposition of Taylor's PCRA appeal by the Superior Court of Pennsylvania as the last reasoned state judgment on his claim. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Moreover, although the Superior Court's decision was not a summary disposition, it expressly adopted the reasoning of the PCRA court by reference and by appending a copy of the PCRA court's opinion as an attachment to the opinion. See Taylor, 2017 WL 1952702. Accordingly, we also look to the PCRA court's opinion.
In affirming the PCRA court's denial of post-conviction relief, the Superior Court rejected this claim on its merits, applying the Pennsylvania standard for judging ineffectiveness claims set forth in Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016), which courts in the Third Circuit have previously found is “not contrary” to the federal ineffectiveness standard enunciated by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). See Gaines v. Brittain, Civil Action No. 19-1160, 2021 WL 1124938, at *11 (W.D. Pa. Mar. 23, 2021); Johnson v. Link, Civil Action No. 17-2624, 2019 WL 11274845, at *13-*14 (E.D. Pa. Dec. 23, 2019). The PCRA court had likewise applied the same legal standard, citing to a different but substantively identical decision by the Pennsylvania supreme court, Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987), which the Third Circuit and this court have previously found is “not contrary” to the federal ineffectiveness standard enunciated by the Supreme Court of the United States in Strickland. See Boyd v. Waymart, 579 F.3d 330, 334 n.2 (3d Cir. 2009); Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000); Showers v. Beard, 586 F.Supp.2d 310, 321-22 (M.D. Pa. 2008). Accordingly, this Court may not grant relief unless it determines that the state courts' decisions on the merits were an unreasonable application of Strickland, or that they were based on “unreasonable factual determinations when deciding whether the petitioner received constitutionally effective counsel.” Showers, 586 F.Supp.2d at 322.
Under Strickland, a habeas petitioner is required to establish two elements to state a successful claim for ineffective assistance of counsel: (1) “that counsel's performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. The Strickland test is conjunctive, and a habeas petition must establish both the deficient performance prong as well as the prejudice prong. See id. at 687; Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010); see also Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.”).
In this case, Taylor was represented by counsel, but that counsel was subject to a conflict of interest due to defense counsel's concurrent representation of a key prosecution witness until the attorney-client relationship between counsel and witness was terminated ten days before Taylor's criminal jury trial began. Both here and in the state PCRA proceedings, Taylor has contended that this conflict of interest constitutes ineffective assistance of counsel.
As the Supreme Court has recognized, there are some contexts in which prejudice can be presumed, such as a complete denial of the assistance of counsel. See Strickland, 466 U.S. at 692; see also United States v. Chronic, 466 U.S. 648, 659 & n.25 (1984). But an ineffectiveness claim based on an attorney conflict of interest only “warrants a similar, . . . more limited, presumption of prejudice.” Strickland, 466 U.S. at 692. As the Supreme Court has explained:
In Cuyler v. Sullivan, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest....Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts
to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer's performance.”Id. at 692 (citations omitted) (quoting Cuyler v. Sullivan, 446 U.S. 446 U.S. 335, 350 (1984)); see also Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002) (“An ‘actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.”); Burger v. Kemp, 483 U.S. 776, 783 (1987) (“We have never held that the possibility of prejudice that ‘inheres in almost every instance of multiple representation' justifies the adoption of an inflexible rule that would presume prejudice in all such cases. Instead, we presume prejudice ‘only if the defendant demonstrates that counsel ‘actively represented conflicting interests' and that ‘an actual conflict of interest adversely affected his lawyer's performance.'”).
In this case, both the PCRA court and the Superior Court, in turn, considered Taylor's ineffectiveness claim with respect to an alleged actual conflict of interest. Both state courts denied this claim on its merits, finding that Taylor failed to demonstrate that the conflict of interest adversely affected the performance of defense counsel at trial.
In his traverse, the petitioner suggests that the state courts failed to make a separate assessment of whether the attorney conflict at issue adversely affected counsel's performance, halting their analysis once the courts had determined that defense counsel had withdrawn from representation of Thomas in federal criminal proceedings. But, while both courts clearly discussed this relevant factual background-one of several necessary steps to permit counsel to fully and freely crossexamine his now-former client, Thomas, when he testified for the prosecution at Taylor's trial-it is also clear that both expressly and extensively considered whether the conflict had an adverse impact on defense counsel's cross-examination of Thomas, finding none. See infra.
Upon consideration of the record before it, the PCRA court explained its findings:
The testimony at the [PCRA] hearing demonstrated that [defense counsel] realized the dilemma he faced, that he spoke with both individuals about the issue. Further that he sought advice as to how to proceed from [an attorney with expertise in legal ethics]. He then sought to terminate his representation of the witness [Thomas] and receive a waiver of conflict from him [s]o that he might make a complete, unrestrained cross-examination should witness [Thomas] testify at trial.... It appears [defense counsel] received the consent of his client after full disclosure. All of this he brought to the attention of the [state trial court] prior to trial. And his actions were shared with the defendant herein.Taylor, 2017 WL 1952702, at *7-*8 (citations, internal quotation marks, and footnote omitted). The PCRA court further explained its findings: “We find that throughout the trial, defense counsel made legal and strategic decisions which were reasonably calculated to serve defendant Taylor's interest. For we must remember, [defense counsel] chose to terminate, distance his loyalties to witness [Thomas] in favor of defendant Taylor.” Id. at 9. The PCRA court noted that counsel's former client, Thomas, now a witness testifying against his current client, Taylor, “asserted no claim of privilege nor voiced any concern about [defense counsel's] violation of his ethical duties. In fact, witness [Thomas] entered into a waiver of his privilege rights.” Id.
Ultimately, the PCRA court concluded:
Herein, we find an actual conflict, direct and immediately diametrically opposed, existed during the critical stages of legal representation. That conflict was resolved, without adverse action to the defendant, during the time that existed during the stages of legal representation of the actual conflict. The termination and waiver freed defense counsel to vigorously and zealously represent his client, which the record bears out.Id.
The PCRA court expressed some wariness about its decision, however, inviting a reviewing appellate court to scrutinize its decision closely. The Superior Court did so, ultimately finding itself “constrained to affirm the PCRA court's determination that Taylor failed to meet his burden of establishing ineffective assistance by [defense counsel].” Id. at *2. The state appellate court explained:
.... Taylor claims that [defense counsel] had confidential information that he could have used to discredit Thomas on cross-examination, and that [defense counsel] chose not to use such information in order to protect his law license. However, Taylor failed to identify any such confidential information. Although the PCRA court conducted two evidentiary hearings, Taylor failed to call [defense counsel] as a witness at either hearing. Thus, there is no evidence of record that [defense counsel] did, in fact, have further information that could have been used to discredit Thomas.
Moreover, based on our independent review of the record, we are compelled to agree with the PCRA court that [defense counsel's] cross-examination of Thomas was both vigorous and zealous. [Defense counsel] sought to diminish Thomas's credibility by questioning him regarding his prior convictions for crimes of dishonesty. [Defense counsel] further sought to diminish Thomas's credibility by questioning him regarding his pattern of gaining the confidences of other inmates, finding out about their cases, and then providing false information about the inmates to law enforcement authorities in order to get charges against Thomas dismissed. Additionally, [defense counsel sought to diminish Thomas's credibility by questioning him regarding his false representations to other inmates that he was a licensed paralegal working for various attorneys, including [defense counsel]. After Thomas denied that he had made any such representations, [defense counsel] called several rebuttal witnesses to impeach Thomas on the issue. Finally, [defense counsel]
questioned Thomas regarding his assertions, in one of the letters he sent to the district attorney's office, that Thomas could have [defense counsel] removed from Taylor's case.Id. (citations omitted). Having found no adverse effect on counsel's performance on cross-examination of the witness, the Superior Court considered whether Taylor had otherwise demonstrated prejudice, but likewise found no support in the record, explaining:
. . . Here, Taylor failed to show how [defense counsel's] chosen strategy for cross-examining Thomas lacked a reasonable basis, or prove that an alternative strategy offered a potential for success substantially greater than the course actually pursued by [defense counsel]. Further, Taylor failed to demonstrate that there is a reasonable probability that the outcome of his trial would have been different but for [defense counsel's] action or inaction. Thus, based on the record before us, Taylor failed to establish that no reasonable basis existed for [defense counsel's] cross-examination of Thomas, or that [defense counsel's] cross-examination of Thomas caused any prejudice to Taylor's case.
Additionally, based on our independent review of the record, we are compelled to agree with the PCRA court's determination that, by the time of Taylor's trial, any potential conflict of interest had been resolved because [defense counsel] had withdrawn from his representation in the unrelated federal court action pending against Thomas.Id. at *3 (citations omitted).
Based on the record before the Superior Court, there is nothing to suggest that the Superior Court applied Strickland or its progeny to the facts of these claims in an objectively unreasonable manner, nor is there anything to suggest an unreasonable determination of the facts by the state court. See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (“[I]t is the habeas applicant's burden to show that the state court applied Strickland to the facts of the case in an objectively unreasonable manner.”).
In two separate notices of supplemental authority, the petitioner has pointed out three recent federal appellate decisions involving conflicts of interest. (Doc. 30; Doc. 37.) But these decisions are inapposite. For one thing, all three arise in the context of collateral review of federal criminal convictions on § 2255 motions. As our recitation of the applicable legal standard above indicates, § 2254(d) imposes a very deferential standard of review in habeas cases challenging state court convictions, which has no counterpart in § 2255 review of federal court convictions. Compare 28 U.S.C. § 2254(d) with id. § 2255. See generally Valentine v. United States, 488 F.3d 325, 243 (6th Cir. 2007) (Martin, J., concurring in part and dissenting in part). In Kiley v. United States, 914 F.3d 1142 (8th Cir. 2019), the Eighth Circuit addressed a conflict involving evidence submitted to the jury that implicated defense counsel in the very fraudulent conspiracy with which the defendant was charged. Moreover, that court ultimately found that the defendant failed to demonstrate an actual conflict that adversely affected the performance of counsel. See Id. at 1147. In United States v. Sheperd, 27 F.4th 1075 (5th Cir. 2022), the Fifth Circuit remanded a § 2255 matter for further proceedings because the district court had failed to conduct an evidentiary hearing on whether counsel's actual conflict adversely affected his performance. But in this case, the PCRA court conducted two evidentiary hearings on the matter before rendering its decision. In United States v. Sheperd, 44 F.4th 305 (5th Cir. 2022), the same court considered the appropriate remedy after the district court determined on remand that the conflict did in fact adversely affect the performance of counsel. But that is the opposite of the conclusion reached by the state courts in this matter.
Accordingly, it is recommended that the petition be denied on the merits with respect to Taylor's ineffective assistance of trial counsel claim.
III. Recommendation
Based on the foregoing, it is recommended that the petition (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE. It is further recommended that the Court decline to issue a certificate of appealability, as the petitioner has failed to demonstrate “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Buck v. Davis, 137 S.Ct. 759, 773-75 (2017); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated December 5, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.