Opinion
Civil Action 21-cv-01252-JLS
11-30-2022
HUNG THACH, Petitioner, v. BERNADETTE MASON, et al., Respondents.
REPORT AND RECOMMENDATION
RICHARD A. LLORET U.S. MAGISTRATE JUDGE
Before me is Hung Thach's (“Petitioner” or “Thach”) Petition for Writ of Habeas Corpus (“Petition”) filed pursuant to 28 U.S.C. § 2254. Doc. No. 1. Following a jury trial, Thach was convicted of first-degree murder for killing Synia “Senior” Keo (“Keo”), criminal conspiracy to murder, carrying a firearm without a license, attempted murder of Michael Palmieri (“Palmieri”), and aggravated assault of Palmieri. Thach was sentenced to life in prison without parole. In this petition, Thach raises five claims for habeas relief. Id. at 5. The Commonwealth argues that these claims are not cognizable on review, are procedurally defaulted, or are meritless. See Doc. No. 18. I respectfully recommend Thach's Petition be dismissed with prejudice, as there are no viable grounds for relief.
All references to the electronically docketed record will be cited as “Doc. No. at .”
FACTS AND PROCEDURAL BACKGROUND
The Pennsylvania Superior Court recounts the facts as follows:
Police Sergeant Robert Ralston testified that on June 19, 2008 at about 4:20 a.m., while on patrol in South Philadelphia, he heard about four (4) or five (5) gunshots. Responding to a radio call[,] he then went about four (4) blocks to the 2500 block of Percy Street. When [Sergeant Ralston]
arrived at the scene[,] he saw both victims. Mr. Palmieri appeared to be suffering from a gunshot wound to his leg. Mr. Keo had no pulse and was not breathing and the Sergeant began CPR. Sergeant Ralston asked Palmieri what happened and Palmieri told him that the shooting was done by two (2) Asian males in a brown or tan colored Mercedes and that he knew one of them by the name Pete or Petee. After rescue arrived to aid the victims[,] the Sergeant, who was the first officer on the scene[,] saw a projectile on the pavement.
Michael Palmieri testified that June 19, 2008 was his twenty-first (21st) birthday and he was celebrating with friends[,] including the decedent[,] at a bar called Cookies Tavern. After the bar closed[,] they came in contact with [Petitioner's] co-defendant, Phiep S. Phoun, whom [Palmieri] knew as Pete. Pete was in the company [of Petitioner]. The decedent engaged in conversation with the defendants who were seated in a tan or gold Mercedes. Pete was the driver and [Petitioner] was the passenger. The decedent who had a chrome .38 rubber grip revolver apparently gave it to Pete and said, “Promise you'll give it back to me. Don't leave me naked out here.” The defendants drove off and the victims decided to go to Wayne Webb's house. Webb, whom the witness knew as Slugger[,] lived on the block where the shooting occurred. While they were walking to Slugger's house, the decedent was on the phone with Pete. When they arrived on Slugger's block[,] the defendants drove up in the Mercedes and stopped near them. [Petitioner] got out of the car and started shooting at them with a chrome revolver. The decedent put his hands up and said to [Petitioner], who was known as Kev, “Kev, no, Kev, what are you doing?” [Palmieri] was shot through the front of his right thigh. In all, the witness heard about five (5) shots. The witness was taken to the hospital, treated[,] and released later that day. After his release, [Palmieri] was taken by police to locations where [the police] had stopped both defendants and the Mercedes. [Palmieri] identified both of the defendants as well as the car.
Police Officer Francis Kelly, who was assigned to the Police Intelligence Unit[,] testified that in the morning after the shooting[,] he met with the detective involved in the case. He was aware that an Asian male named Phiep Phoun frequented the area of 6th Street in South Philadelphia and was known by the nickname of Pete. [Officer Kelly] then went to a home at 530 Johnson Street and met with an individual named Paul Phoun. That individual agreed to contact Pete and ask Pete return to that residence. After that call was made, a tan Mercedes arrived. The co-defendant exited the car from the passenger's side, entered the house[,] and was detained
by Officer Kelly's partner, Officer Brian Hoe [sic]. Officer Kelly went out and located the Mercedes about a block away. [Petitioner], whom the officer knew as Kev[,] was in the car. [Officer Kelly] was present when Michael Palmieri arrived and identified [Petitioner] as one of the people involved in the shooting. [Officer Kelly] also observed luggage and duffel bags, which appeared to be packed[,] in the rear seat.
Officer Hoe [sic] testified that after detaining the co-defendant, [Officer Ho] brought [the codefendant] to the doorway of the house where Michael Palmieri also identified the co-defendant.
Detective Brian Peters testified that on June 19, 2008, he participated in a search of [Petitioner's] home pursuant to a search warrant. A chrome color revolver with black handles was recovered from the ceiling in the basement.
After his arrest and after waiving his Miranda rights, [Petitioner] gave a statement to Detective Aaron Booker. In his statement, [Petitioner] admitted to doing the shooting, but claimed he did it in self[-]defense.
The firearms examiner, Police Officer John Cannon[,] examined the bullet recovered from the scene, two bullets recovered from the body of the decedent[,] and the gun recovered from [Petitioner's] ceiling. He testified that all three bullets were fired from the firearm recovered from [Petitioner's] ceiling.
The medical examiner, Dr. Edwin Lieberman[,] testified that the decedent received four gunshot wounds. One was a graze wound to his shin. One went through his right calf. One entered the back of his left calf and lodged just above his beltline where the thigh meets the groin. One entered the left side of his back, damaged his aorta, bowels, stomach[,] and liver. That wound proved fatal.Commonwealth v. Thach, No. 2811 EDA 2010, 2012 WL 6701931, at *2-*4 (Pa. Super. Ct. Sept. 6, 2012) (“Thach I”) (internal citations omitted).
Prosecutors filed charges against Petitioner via two dockets, but the dockets were consolidated for trial. See Doc. No. 23 (“N.T. Date, pp.:.”). In April 2010, a jury convicted Thach of first-degree murder (of Keo), criminal conspiracy to murder, carrying a firearm without a license, attempted murder (of Palmieri), and aggravated assault (of Palmieri). N.T. 4/5/2010, pp. 4:7-24. The trial court sentenced Thach to life in prison without the possibility of parole for first-degree murder. N.T. 5/10/2010, pp. 12:10 - pp. 14:11.
The Court of Common Pleas of Philadelphia County Docket (“Docket”) CP-51-CR-0010954-2008 concerned the deceased victim, Keo, and charged murder of the first degree, criminal conspiracy to commit murder, and firearms not to be carried without a license. See N.T. 04/05/2010, pp. 4-5. Docket CP-51-CR-0010956-2008 concerned the surviving victim, Palmieri, and charged attempted homicide, aggravated assault, and recklessly endangering another person. Id.
The remaining sentences run concurrently to life without parole. These sentences are five-to-ten years for conspiracy, one-to-two years for the violation of the Uniform Firearms Act, and ten-to-twenty years for attempted murder. N.T. 5/10/2010, pp. 12:10 - pp. 14:11. There was no further penalty for aggravated assault, because the crime is a lesser included offense to attempted murder. Id. at 13:3-6.
Thach filed a direct appeal with the Superior Court, listing three arguments: (1) the verdict was against the weight of the evidence, (2) the trial court erred by denying Petitioner's motion for a mistrial during the Commonwealth's opening statement, and (3) the trial court erred by denying defense's pre-trial motion to sever. Thach I at *5. The Superior Court affirmed the sentence. Id. at *12. The Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Thach, 68 A.3d 907 (Pa. 2013). The United States Supreme Court denied Thach's Petition for a Writ of Certiorari. Thach v. Pennsylvania, 571 U.S. 996 (2013).
In 2013, Thach filed a timely pro se motion for Post-Conviction Collateral Relief pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”). In his PCRA petition, Thach raised an ineffective assistance of trial counsel claim, arguing that trial counsel failed to properly advise Petitioner during plea negotiations. See Commonwealth v. Thach, No. 1838 EDA 2018, 2020 WL 1490864 (Pa. Super. Ct. Mar. 27, 2020) (“Thach II”). Appointed PCRA counsel filed a no-merit letter and a motion to withdraw pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (“Turner/Finley letter”). In these filings, PCRA counsel stated the claim was meritless. The PCRA court granted the motion to withdraw and dismissed Thach's petition; the Pennsylvania Superior Court affirmed. Thach II at *1. This timely pro se petition for writ of habeas corpus follows.
STANDARDS OF REVIEW
A. State Courts Must Have the Opportunity to Remedy an Alleged Violation Prior to Federal Review.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), state prisoners must seek all remedies available in state court before a federal court may grant their habeas petition. § 2254(b)(1)(A). Exhaustion occurs once a petitioner properly raises the federal claim in state court. Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022). Properly raising a claim requires petitioners to “fairly present” the claim, providing the state court “one full opportunity to resolve any constitutional issues.” O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999). A claim is “fairly presented” if the petitioner raises the federal question's factual and legal basis in a manner that alerts the state court that the petitioner is asserting a federal claim. Hernandez v. Hendricks, 270 Fed.Appx. 150, 152 (3d Cir. 2008) (citing McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)); and see Picard v. Connor, 404 U.S. 270, 277-78 (1971). An unfairly presented claim ordinarily cannot be federally reviewed. Pliler v. Ford, 542 U.S. 225, 230 (2004).
B. A Federal Habeas Claim Is Procedurally Defaulted if the State Court Denies the Claim Based on State Law.
A petitioner's claim is procedurally defaulted when the state court denies a federal claim based on independent state law and the state law appropriately supports the decision. Beard v. Kindler, 558 U.S. 53, 55 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). A petitioner's claim is also procedurally defaulted if the unpressed claim would be dismissed if presented to the state court due to a state procedural rule. Shinn, 142 S.Ct. at 1727-28.
A petitioner can overcome procedural default in two ways. One, petitioner can show “cause” to excuse the default and “actual prejudice” from the alleged constitutional violation. Coleman, 501 U.S. at 750. Excusable cause requires the petitioner to show that the non-compliance was prompted by external forces, not the petitioner's lack of due diligence. Maples v. Thomas, 565 U.S. 266, 280 (2012) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Actual prejudice requires a petitioner to show that the legal violation caused “‘actual and substantial disadvantage',” not a mere “possibility of prejudice.” Shinn, 142 S.Ct. at 1733 (quoting Murray, 477 U.S. at 494). Two, a petitioner can show that the violation caused a “fundamental miscarriage of justice,” Coleman, 501 U.S. at 750, through a “convincing showing of actual innocence.” McQuiggan v. Perkins, 593 U.S. 383, 386 (2013) (internal citations omitted).
C. Federal Habeas Review Is Limited Once the State Court Has Conducted a Review of The Claim on The Merits.
After a state conviction has been adjudicated on the merits, habeas relief is proper only if the state's adjudication either (1) violates or improperly applies “clearly established Federal Law, as determined by the Supreme Court of the United States” or (2) results from “an unreasonable determination of the facts.” § 2254(d)(1)-(2). Review under § 2254(d) is highly deferential to the state court's decision. Parker v. Matthews, 567 U.S. 37, 40-41, 45 (2012).
Review under § 2254(d)(1) is proper when a state court rules “contrary to” established federal law. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is “contrary to” established law if the state court's decision is “‘diametrically different, opposite in character or nature, or mutually opposed'” to established law. Wilkerson v. Klem, 412 F.3d 449, 452 (3d Cir. 2005) (quoting Williams, 529 U.S. at 405). A decision involves an “unreasonable application” of clearly established Federal law when a state court correctly determines the guiding legal principle but improperly applies the law to the facts. Williams, 529 U.S. at 413. The habeas court must determine if the legal application “was objectively unreasonable.” Id. at 409. Unreasonable application is not merely an incorrect application; instead, the habeas court must determine “that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable.” Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing Williams, 529 U.S. at 411).
D. Claims of Ineffective Assistance of PCRA Counsel is Limited on Federal Habeas Review.
Mr. Thach had no right to counsel at his PCRA hearing under the Constitution or the AEDPA. See Werts v. Vaughn, 228 F.3d 178, 189 n.4 (3d Cir. 2000); 28 U.S.C. § 2254(i). The Supreme Count of the United States has barred habeas relief for ineffective assistance of counsel during collateral post-conviction proceedings, such as Pennsylvania's PCRA hearings. Martinez v. Ryan, 566 U.S. 1, 17 (2012) (citing § 2254(i)). The Court left one narrow avenue for review-a petitioner may assert a Martinez claim by showing that his PCRA counsel's ineffectiveness was cause for the procedural default of a claim of ineffectiveness of trial counsel. See, e.g., Preston v. Superintendent Graterford SCI, 902 F.3d 365, 376 (3d Cir. 2018).
DISCUSSION
Petitioner raises five grounds for relief: (1) there was insufficient evidence to convict on first-degree murder, (2) the trial court erred when denying Petitioner's motion to sever, (3) the trial court erred when denying Petitioner's motion for a mistrial during opening statements, (4) trial counsel was ineffective, first, for improperly advising Thach to not plead guilty to third-degree murder and, second, for not requesting a Cambodian interpreter during trial, and (5) PCRA counsel was ineffective for “abandoning” Thach when PCRA counsel filed the Turner/Finley letter. See Doc. No. 1. The Commonwealth argues that the claims are procedurally defaulted, meritless, or non-cognizable on habeas review. See Doc. No. 18. I conclude that none of the claims warrant relief and recommend that Thach's petition for writ of habeas corpus be denied.
Upon review of Thach's Habeas Petition and Pennsylvania's analysis of Thach's state-level appeals, embedded within Thach's severance and mistrial claims is a claim that the trial court erred by violating his Sixth Amendment Right to the Confrontation Clause. See Doc. No. 12 at 8, 10; and see Thach I at 7-10. Pro se Habeas Petitions are to be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Due to this embedded, meritorious claim, I will review the Petition as if there were six asserted grounds for review: (1) was the evidence sufficient to support the conviction for first degree murder; (2) was the Petitioner's right to Confrontation violated; (3) did the trial court err when denying the motion to sever; (4) did the trial court err when denying the motion for a mistrial; (5) was trial counsel ineffective for either providing inadequate advice during the pleading stage of litigation or for failing to request a Cambodian interpreter for trial; and (6) was PCRA counsel ineffective for “abandoning” the Petitioner.
A. Thach's Insufficient Evidence Claim Is Procedurally Defaulted and Meritless.
Thach argues there was insufficient evidence to sustain his first-degree murder conviction, because his use of force was justified self-defense. See Doc. No. 12 at 2-4. The Commonwealth argues this claim is procedurally defaulted without exception and is without merit. Doc. No. 18 at 5. I find that the claim is procedurally defaulted without exception and is without merit.
Habeas review is inappropriate if the state court's denial “rests on a state law ground that is independent of the federal question and adequate to the support the judgement.” Beard, 558 U.S. at 55 (quoting Coleman, 501 U.S. at 729). In this matter, the Superior Court denied review on direct appeal, because Thach waived the issue when he did not challenge the sufficiency of the evidence as a ground in his 1925(b) statement. Thach I at *5 (citing Commonwealth v. Hill, 16 A.3d 484 (2011)). The Eastern District of Pennsylvania has held that failure to comply with 1925(b) is an independent and adequate state ground. See e.g., Robinson v. Smith, 2018 WL 3385189, at *9 (E.D. Pa. 2018) (J. Sitarski) (citing four additional cases in the District that come to the same conclusion).
Because the Superior Court's ruling is considered a denial on a state law ground, habeas review requires Thach to show either (1) cause to excuse the default and the resulting extreme prejudice or (2) failure to review the claim will result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 753. Here, Thach provides no justification for failing to preserve his claim and fails to show that a “fundamental miscarriage of justice” has occurred. Id. Instead, Thach argues justified self-defense. Doc. No. 12 at 4. Thach has not met his burden; the claim is procedurally defaulted.
A fundamental miscarriage of justice occurs when the petitioner provides exculpatory or new evidence previously not available at trial. See e.g. McQuiggin, 569 U.S. at 394; Schlup v. Delo, 513 U.S. 298, 329 (1995). Petitioner fails to provide any new information. He just disagrees with the jury's verdict. That is not a ground for habeas relief.
Even if the claim were not procedurally defaulted, it is meritless. At trial, the Commonwealth established the requisite elements of homicide through witness testimony and medical expert opinion. The eyewitness established the Petitioner knew that Keo was unarmed (“left naked”) at the time of the shooting and that Keo held up his hands and said “no, Kev, no” before Petitioner fired the weapon. N.T. 3/30/2010, pp. 95-97. Expert medical opinion established that Keo's bullet wounds were consistent with a person diving away from the person wielding the firearm. N.T. 3/31/2010 pp. 18:5 - pp. 26:25. Thach conceded that he fired the gun five times towards the victims. See e.g. N.T. 3/30/2010, pp. 49-50. Thach now argues that the “testimony at trial established that [Thach was] approached” by the victims, however, the record establishes the opposite, through Palmieri's testimony, and was sufficiently persuasive to the jury at trial. N.T. 3/30/2010, pp. 95-97. Finally, the record shows that Petitioner's attorney argued self-defense to the jury, but the jury found him guilty of first-degree murder. See N.T. 3/31/2010, pp. 172:13-14; N.T. 04/01/2010, pp. 65:23 -pp. 67:18 (attorney's argument); N.T. 04/05/2010, pp. 4:19-24 (reading of the verdict by the foreperson). Therefore, the record sufficiently established that the Commonwealth proved each element of first-degree murder.
For example, Palmieri testified: “I seen [sic] [the petitioner] get out of the car and he opened fire . . . [Keo's] hands were up and out in front saying, ‘no, Kev, no.'” N.T. 03/30/2010, pp. 95:14 15; pp. 97:4-5.
I recommend denying habeas review on this claim.
B. Thach's Sixth Amendment Right to Confrontation Was Not Violated.
Underlying the severance and mistrial grounds is a Sixth Amendment Confrontation Clause claim. Thach argues that severance should have been granted because “the jury had to have impermissibly considered the codefendant's statement in assessing the Petitioner's guilt.” Doc. No. 12 at 8. Petitioner also argues that the trial court erred by denying the motion for a mistrial, because the Commonwealth's opening statement improperly introduced a redacted statement by the codefendant. Id. at 10.
The Pennsylvania Superior Court reviewed both state and federal law when evaluating this issue. Thach I at *6-9 (citing Bruton v. United States, 391 U.S. 123 (1968); Richardson v. Marsh, 481 U.S. 200 (1987); and Commonwealth v. Brown, 925 A.2d 147 (Pa. 2007) (“Brown”)) (reviewing both the Confrontation Clause and Pennsylvania law regarding limitations on admitting a codefendant's statement during a joint trial). The Superior Court then reviewed the facts that prompted the Petitioner's appeal. First, during the Prosecutor's opening statement, Mr. Barry “referred both to the codefendant's statement and to the Appellant and codefendant by name.” Thach I at *10-11. Petitioner's attorney objected and moved for a mistrial. Id. Outside of the presence of the jury, the trial judge heard argument, denied the motion, and required further redaction of the codefendant's statement. Id. The trial court brought the jury back into the courtroom and read a curative instruction to remedy any possible prejudice against Thach. Id. After reviewing the record, the Superior Court determined that the trial judge did not abuse her discretion and the remedy imposed cured any resulting infringement on Petitioner's right to Confrontation. Id. I find that the Superior Court decided the merits of this constitutional issue.
The curative instruction read:
Members of the Jury, as I told you in my initial instruction, arguments of counsel are not evidence. I am telling you now - that Mr. Barry misspoke. You will not hear any evidence that Mr. Phoun gave any statement that implicated Mr. Thach in this crime. I want to remind you right now that although you are hearing evidence only once, you are actually sitting as factfinders in two different trials, one against Mr. Phoun, and one against Mr. Thach.
I will tell you in greater detail later if I allow any statement of the defendant to be introduced in this trial, you will consider that statement as to the defendant only. No statement of either defendant may be introduced in this trial implicating the other defendant. Any comments Mr. Barry may have made that are inconsistent with my instruction are to be disregarded by you.
The Supreme Court has held that there is no Confrontation Clause violation when, one, a nontestifying codefendant's confession is “redacted to eliminate not only the defendant's name, but any reference to his or her existence” and, two, the trial judge provides “a proper limiting instruction.” Richardson, 481 U.S. at 211. Here, the jury had not seen the codefendant's confession, and the trial judge ordered further redaction that eliminated any reference to Petitioner. N.T. 03/30/2010, pp. 40:7-14. The redacted statement presented to the jury was that “[Keo] wanted his gun. I handed the gun and then I heard the five shots.” N.T. 03/31/2010, pp. 116:23-24. The statement was presented to the jury through a detective's testimony, see id., further removing any prejudice that may have resulted as the jury could not see how much was redacted. I find that Richardson's standard has been met as the trial judge provided a sufficient curative instruction and ensured that the redactions did not reference Thach. The Superior Court's decision was not an unreasonable application of Supreme Court precedent.
The codefendant's confession was not identified as a confession. Rather, the prosecution referred to it as a statement (N.T. 03/30/2010, pp.4 3:3-7).
Since the Superior Court determined there was harmless error, Brown v. Davenport requires the habeas petition show both that the state court's determination was an unreasonable application of Supreme Court precedent under § 2254(d) and the error had a “substantial and injurious effect” on the trial outcome. See 142 S.Ct. 1510 (2022). Petitioner argued self-defense, which required Petitioner to concede that he fired the gun. See e.g. N.T. 3/31/2010, pp. 172:13-14; N.T. 04/01/2010, pp. 65:23 - pp. 67:18. Therefore, there is no substantial harm in the Prosecutor's errant mention, during opening, that the gun was handed between the codefendants. Petitioner has failed to demonstrate that there was an unreasonable application of Richardson, that there was an unreasonable determination of harmless error, and that the Prosecutor's error had a “substantial and injurious effect” on the guilty verdict.
I recommend that this ground for relief be denied.
C. The Severance Claim Is Procedurally Defaulted and Meritless.
Thach argues that the joint trial unreasonably prejudiced him because the jury was presented an improperly redacted statement given to police by the non-testifying co-offender. Doc. No. 12 at 7-8. The Commonwealth argues that the state appellate court properly reviewed the claim, and that Thach fails to show that the Superior Court unreasonably applied established federal law or that a manifest injustice will occur without further review. Doc. No. 18 at 8-10. The Commonwealth makes an alternative argument that severance is a state law matter. Doc. No. 18 at 10.
The Commonwealth cites to Pratt v. Marsh, 2021 WL 2188576, *15 (E.D. Pa. 2021) (where a Petitioner requested habeas relief on grounds that a trial court erred by not severing a trial where defenses' theories were not sufficiently antagonistic). Pratt supports the Commonwealth's position by determining that severance is a matter left to the state trial courts. Id.
I will only address the severance determination here, having addressed the underlying confrontation clause issue above.
To the extent Thach is arguing that a joint trial was a violation of Pennsylvania law, the claim is non-cognizable on habeas review. I am bound by state court findings on matters of state law. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011); Estelle v. McGuire, 502 U.S. 62, 67 (1991). An issue is procedurally defaulted when the state court's denial is based on state law and the state law appropriately supports the decision. Beard, 558 U.S. at 55 (quoting Coleman, 501 U.S. at 729). Here, the Pennsylvania Superior Court noted that the decision to grant a motion for severance lies within the trial court's discretion, but there is a preference for joint trials, when conspiracy is charged, to promote judicial efficiency and judicial fairness. Thach I at *7 (citing Commonwealth v. Travers, 768 A.2d 845, 846 (2001) (internal citations omitted)). The Superior Court also determined that the trial judge's decision to have the cases remain consolidated was correct, because the evidence indicated that Thach and his codefendant were charged with crimes which stemmed from the same act and had been working together as conspirators in furtherance of their crimes. Id. The Superior Court determined that there was no prejudicial conflict between the case theories because Thach's theory admitted that he shot the firearm, while the codefendant's theory was that the codefendant was merely present. Id. at *9.
If Thach is arguing a Federal Constitutional right to severance, he has not shown that holding a joint trial was contrary to, or an unreasonable application of, Federal law, as determined by the Supreme Court. The Supreme Court strongly approves of joint trials of codefendants because they promote efficiency, avoid the inequity of inconsistent verdicts, conserve funds, diminish inconvenience to witnesses, and avoid delay. Zafro v. United States, 506 U.S. 534, 537-38 (1993); Richardson v. Marsh, 481 U.S. 200, 209-10 (1987); United States v. Lane, 474 U.S. 438, 448 (1986).
Neither Zafro nor Lane defined a Constitutional right, applicable in state courts, to severance of codefendants. Zafiro and Lane discussed joinder and severance in the context of federal cases, applying the Federal Rules of Criminal Procedure. Lane, 474 U.S. at 444; Zafiro, 507 U.S. at 537-38. Neither case can be read as Federal law binding on a state court in the sense required under 28 U.S.C. § 2254(d)(1). As an aside, neither case would require severance in Thach's case, even if they were applied. Richardson held that the confession of a codefendant may be introduced in a joint trial if properly redacted to remove material that would implicate the defendant, in violation of Bruton v. United States, 391 U.S. 123, 137 (1968). 481 U.S. at 211. I have already explained why Thach's right to confront a witness against him - the foundation of the holdings in Bruton and Richardson - was not violated. See supra, at 10-13. Severance is a remedy, one of many that might be applied by a trial judge confronted with a Bruton issue. There is no freestanding Constitutional right to severance, as Richardson makes clear. Id. at 209-10. If there is no Bruton violation, and there was none here, a severance remedy is not implicated, as a matter of Supreme Court precedent. That means that Thach has failed his obligation to show an unreasonable application of Federal law by the state court.
Having failed to satisfy 28 U.S.C. § 2254(d)(1), to overcome the Superior Court's decision Thach would need to show a violation that caused a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. For the same reasons I have discussed above, I find that the joint trial did not amount to a fundamental miscarriage of justice.
I recommend that this claim be denied.
D. The Mistrial Claim is Procedurally Defaulted and Meritless.
Thach argues that the trial court erred when it did not grant a mistrial for a statement made during the prosecutor's opening statement. Doc. No. 12 at 9-11. The Commonwealth responds that the state court appropriately determined the claim was meritless. Doc. No. 18 at 11. This claim is grounded in state law and was appropriately handled by the Superior Court on appeal. See Thach I, at *10 (finding that the trial court did not abuse discretion when it provided cautionary instructions to the jury instead of granting a mistrial). To the extent the decision to deny a mistrial was based on the resolution of the Confrontation Clause issue, I have already discussed why the state court properly resolved the Confrontation Clause. See supra, at 10-13.
During opening statement, the prosecutor stated, “You're going to hear Mr. Phoun admit to giving the gun to Hung Thatch.” N.T. 03/30/2010, pp. 31:12-13. Upon motion for mistrial by Thach's counsel, the trial judge “determined the error was unintended” and “ordered that Phoun's statement be further redacted to remove any reference to anyone's acts other than his own.” Doc. No. 18-4 at 6. The trial court provided “an immediate strong cautionary instruction” to the jury. Id.
I am bound by state court findings on matters of state law. Swarthout, 562 U.S. at 219; Estelle, 502 U.S. at 67. Upon review of the record, there is no merit to this claim, as the trial court appropriately handled the issue and the Superior Court properly reviewed the matter. Thach's trial theory was that the shooting was an act of imperfect self-defense. As the Superior Court determined, if there was any spill over from one defendant's statement to the other's, it was not prejudicial to Thach. Thach I at *10.
See Shields v. Smith, 2020 WL 6888466 (Nov. 24 2020) (slip copy) (J. DuBois) (approving and adopting the Report and Recommendation determining that whether a mistrial is an appropriate remedy is a matter of state law).
In Pennsylvania, criminal defendants have two available self-defense theories: affirmative self-defense and imperfect self-defense. Affirmative self-defense occurs when the actor reasonably “believes that such force is immediately necessary” to protect from “death, serious bodily injury, kidnapping[,] or sexual intercourse compelled by force or threat. . .”. 18 Pa.C.S.A. § 505(a)-(b). When invoked appropriately, justified self-defense results in acquittal, because it forms a complete justification for the crime. See Commonwealth v. Busanet, 54 A.3d 35, n. 11 (Pa. 2012). Conversely, imperfect self-defense occurs “where the defendant knowingly and intentionally killed an individual under the unreasonable belief that the killing was justified” and results in a conviction for voluntary manslaughter. Id. (citing 18 Pa.C.S.A. § 2503(a), (b); and citing Commonwealth v. Rivera, 983 A.2d 1211, 1223 (Pa. 2009)).
I respectfully recommend that this claim be dismissed.
E. Petitioner's Request for An Evidentiary Hearing Should Be Denied.
Prior to addressing Petitioner's ineffective assistance of counsel claims, I must first address his request for an evidentiary hearing. See Doc. No. 12 at 20, 28. “[A] federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.” Shinn, 142 S.Ct., at 1734. I must deny an evidentiary hearing for Petitioner's ineffective PCRA counsel claim pursuant to Shinn's clear directive.
I turn to whether an evidentiary hearing is permitted regarding Petitioner's ineffective assistance of trial counsel claims. Petitioner alleges that “counsel rendered ineffective assistant of counsel during the plea-bargaining stage” and that “counsel also refused to petition the court for a Cambodian interpreter. . .” Doc. No. 1 at 10-11.
A reviewing court cannot hold an evidentiary hearing for a procedurally defaulted claim unless the petitioner demonstrates (1) the claim is based upon new, retroactive constitutional law or (2) the facts sought would have not been brought to light during the state court proceeding even with due diligence. § 2254(e)(2)(A)-(B); see Williams v. Superintendent Mahanoy SCI, 45 F.4th 713, 723 (3d Cir. 2022). “At a minimum, therefore, § 2254(e)(2) still restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court.” Cullen v. Pinholster, 563 U.S. 170, 186 (2011) (citing Williams v. Taylor, 529 U.S. 420, 427-429 (2000)). Petitioner's ineffective assistance of trial counsel claim regarding the lack of an interpreter is procedurally defaulted. See infra. at 24-26. In his petition, Thach fails to establish that an evidentiary hearing is appropriate, because he fails to demonstrate that § 2254(e)(2)'s requirements are met: the supposed need for an interpreter could have been raised in state court.
There is more. A habeas court must determine if an evidentiary hearing is necessary to assist the petitioner's factual claim. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). If the record refutes the Petitioner's claim, then the reviewing court may deny the request for an evidentiary hearing. Id. (citing to Totten v. Merkle, 137 F.3d 1172, 1176 (1998)). Here, the trial judge went through a colloquy addressing the plea offer and Thach's understanding of the English language two separate times. See N.T. 03/23/2010, pp. 126-129; and see N.T. 03/30/2010, pp. 4-5. In this colloquy, Petitioner had the opportunity to ask questions of his attorney and the judge and receive more clarification on anything that was said in English that he may not have understood. Regarding Petitioner's claim that his trial counsel gave ineffective assistance during the plea-negotiation phase, Petitioner's able trial counsel passed away. This radically limits the useful evidence that could be presented at an evidentiary hearing. I find that an evidentiary hearing is not necessary or helpful in resolving Petitioner's ineffective assistance of trial counsel claims.
The parties acknowledge that Mr. Siegel has passed away. See Doc. Nos. 12 at 17 and 18 at n. 5.
F. Trial Counsel Was Not Ineffective.
Petitioner argues trial counsel was ineffective for improperly advising him to reject a plea offer and for not obtaining an interpreter during trial. Doc. No. 12 at 12-20.
To succeed in a Sixth Amendment Ineffective Assistance of Counsel claim, a petitioner must show that counsel's representation (1) “fell below an objective standard of reasonableness,” and (2) “that the deficient performance prejudiced his defense.” Holland v. Horn, 519 F.3d 107, 120 (3d Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 688, 693 (1984)). Prejudice means there was “a breakdown in the adversary process that renders the [conviction or sentence] unreliable.” Strickland, 466 U.S. at 687. During review, the court must be highly deferential towards “counsel's performance” as there is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
The court may review prejudice first if the record clearly indicates the petitioner was not prejudiced. United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014) (citing Strickland, 466 U.S. at 697). Prejudice is shown if “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Reasonable probability is met when there is “a probability sufficient to undermine confidence in the outcome.” Id. This prejudice inquiry relies on the strength of the evidence presented against the defendant at trial:
Without considering the strength of the evidence against the defendant, a court cannot determine whether there was a reasonable probability of a different result. The greater the support a verdict has in the record, the less likely it is to have been affected by errors. Where the magnitude of the evidence against the defendant is such that he cannot show he was deprived of a reliable trial result, prejudice under Strickland is not met.United States v. Calhoun, 600 Fed.Appx. 842, 844-45 (3d Cir. 2015) (non-precedential) (internal citations omitted).
When a claim of ineffective assistance of counsel is brought after a merits determination by a state court, the deference due under Strickland is heightened by the deferential standard of § 2254(d). “[W]hen the two apply in tandem, review is ‘doubly' [deferential].” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal citations omitted). When both standards apply, “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.
1. The Ineffective Assistance of Counsel Claim Regarding Guidance During Plea Negotiations Lacks Merit.
Petitioner fairly presented and exhausted this claim in Pennsylvania. See Duncan v. Henry, 513 U.S. 364, 366 (1995). In his PCRA filing, Petitioner alleges that trial counsel was ineffective pursuant to Strickland, and the federal claim was fairly raised in PCRA court. Commonwealth v. Thach, CP-51-CR-0010954-2008, *2 (Court of Common Pleas, filed May 7, 2019).
Here, the Superior Court denied Thach's PCRA appeal because Thach was unable to establish the underlying basis for this claim. Thach II at *1. The Pennsylvania Superior Court reviewed the issue under the three-pronged test established by Pennsylvania law. See id. (citing Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012)). The Third Circuit has held that Pennsylvania's test is consistent with the Strickland standard. See Tyson v. Superintendent Houtzdale SCI, 976 F.3d 382, 391 (3d. Cir. 2020) (internal cites omitted). The Pennsylvania Superior Court determined the claim had no merit, because the Petitioner engaged in two colloquies on the record where he indicated that he had ample time to speak with counsel and make his own decision. Thach II at *1. The Superior Court also determined that Thach could not prove his claim “without asserting that he lied under oath during his colloquies with the court.” Id. at *3. The Superior Court reviewed the merits of the claim and decided the issue against Thach.
Pennsylvania's test requires the petitioner to prove “(1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) he was prejudiced by counsel's act or omission.” Thach II at *1 (citing Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012)).
Pennsylvania law does not allow a defendant to assert he lied under oath. See Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super. Ct. 2007).
I find that the Superior Court did not violate or improperly apply “clearly established Federal Law, as determined by the Supreme Court of the United States” nor did the determination stem from “an unreasonable determination of the facts” as presented on the record. § 2254(d)(1)-(2).
Fundamental decisions, such as whether to plead guilty or take an appeal, are made by the defendant, with the advice of counsel. McCoy v. Louisiana, 138 S.Ct. 1500, 1508-09 (2018). A defendant is entitled to his lawyer's “full and careful advice” when presented with an offer to plead, but the decision “ultimately must be made by the defendant.” Gov't of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1435 (3d Cir. 1996). When the record is silent about the advice rendered by the defendant's trial attorney, the reviewing court must defer to the presumption that counsel was effective. See Burt v. Titlow, 571 U.S. 12, 22-23 (2013). Here, the record indicates that Mr. Seigel advised Thach of the plea and the corresponding consequences, Thach weighed the pros and cons of going accepting or denying the offer, Thach had the opportunity to ask both the Judge and his counsel questions, and Thach made his decision two times, on the record, to proceed to trial.
Before trial began, the trial court colloquied Thach twice on the plea offered by the Commonwealth. The first colloquy was after voir dire on March 23, 2010:
THE COURT: Do you understand you have had an opportunity to talk with Mr. Siegel about the plea negotiation that was offered in this case?
DEFENDANT THACH: Yes.
THE COURT: And, Mr. Barry [for the Prosecution], what is the plea negotiation?
MR. BARRY: Third-degree murder and conspiracy, twenty-five to fifty years.
THE COURT: Did Mr. Siegel relay to you the offer to plead guilty to murder in the third degree and conspiracy for a total sentence of twenty-five to fifty years in prison? Do you understand that?
DEFENDANT THACH: Yes.
THE COURT: And did you discuss -- I don't want to know what you talked about, but did you talk with Mr. Siegel about the various pros and cons about the offer being presented by the Commonwealth?
DEFENDANT THACH: Yes.
THE COURT: Now, do you understand that the charge of murder is a charge of murder generally that includes murder in the first degree, and if the jury finds through the evidence, and all I know about the case is what I've just read in the summary to the jury, do you understand if the jury returns with a guilty verdict of murder in the first degree or murder in the second degree, in both of those instances, that there's a mandatory life in prison without parole and the Court has no discretion? Do you understand that?
DEFENDANT THACH: Yes.
THE COURT: Now, having discussed this with your attorney, being aware of the offer from the Commonwealth, did you make a decision as to whether or not you wanted to accept the plea or go to trial?
DEFENDANT THACH: Go to trial.
THE COURT: Did anybody force you, threaten you, intimidate you, or promise you anything to make that decision?
DEFENDANT THACH: No.
THE COURT: Did you make that decision on your own voluntarily and of your own free will after having met with your attorney and having had an opportunity to discuss this?
DEFENDANT THACH: Yes.
THE COURT: You understand we are in the middle, although it's taking longer than we expected but we are, in fact, in the process of picking the jury now for trial. Do you understand that?
DEFENDANT THACH: Yes.
THE COURT: Do you have any questions either from me or for your attorney about what it meant to reject that plea and to go to trial with a jury on this case?
DEFENDANT THACH: Yes.
THE COURT: Any other questions? You may be seated.
N.T. 03/23/2010, pp. 126:24 - pp. 129-13. The second colloquy was the next morning after the Prosecution alerted defense and the court of additional evidence:
THE COURT: Good morning, Gentlemen. I wanted to speak to you before the jury came out because the prosecutor this morning informed me that the ballistics exam was finally completed and that the bullets from the body of the victim match the weapon that was found in this case. So I've already colloquied each of you concerning whether or not you wanted to accept the Commonwealth's offer. I am advising you that this evidence, because it was just done, I'm telling you about it. I'm going to give you an opportunity now to speak for a few moments to your attorney as long as you like, actually to decide whether or not you wish to accept, with this additional information, a plea offer that was made to you by the Commonwealth. After you've spoken to your attorneys, you can advise them whether you do or do not wish to accept the offer. So you may be seated and you may talk to both of your lawyers.
(Attorneys and Clients Confer) ...
THE COURT: Mr. Thach, have you had an opportunity to discuss the additional information with your lawyer?
THE DEFENDANT: Yes.
THE COURT: After having spoken to your lawyer, is your decision the same; do you wish to be tried by a jury, or do you wish to enter into a negotiated plea?
THE DEFENDANT: Tried by a jury.N.T. 03/30/2010, pp. 4:13 - pp. 5:22. The Superior Court determined Petitioner failed to meet the first prong of Pennsylvania's test.
The Supreme Court held that there is a heavy burden to overcome guilty plea colloquies, as “[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, (1977). Thach asserts in his memorandum of law that, at the time of these colloquies, he “wanted to accept the best possible outcome” and plea but, instead, he followed his counsel's advice and denied the offer. Doc. No. 12, at 12. However, in neither colloquy does he make this assertion or indicate anything but a desire to proceed to trial. Sworn statements cannot be overcome merely by regret.
Further, the Commonwealth offered Thach a plea deal to third-degree murder and conspiracy. N.T. 03/30/2010, pp. 4:13 - pp. 5:22. If successful, Petitioner's defense theory would have resulted in a conviction for voluntary manslaughter. See supra n. 11. “It defies credulity that any attorney would advise his client to reject a plea to third-degree murder, in order to pursue a defense at trial in the hope of obtaining for his client a conviction for that very same offense.” Thach II, at *4 (emphasis added).
I recommend that the claim be denied.
2. The Superior Court Appropriately Reviewed If There Was Prejudice from Mr. Thach Not Having Access to A Cambodian Interpreter During Trial.
Petitioner claims that Mr. Seigel was ineffective for not securing a Cambodian interpreter for trial. Doc. No. 12 at 22-25. The Commonwealth responds that Thach has failed to demonstrate that counsel's performance was deficient. Doc. No. 18 at 17-18.
Petitioner did not raise this in his initial pro se PCRA filing. Commonwealth v. Thach II, at *2. After the court dismissed the PCRA in agreement with PCRA counsel's Turner/Finley letter, Petitioner filed a timely appeal asserting he needed an interpreter during trial. Id. The Superior Court reviewed the claim and deemed it procedurally defaulted, because it was raised for the first time pursuant to the PCRA court's Rule 907 notice of intent to dismiss. Id. at *7-*8 (further explaining that in Pennsylvania, the proper procedure would be to motion for leave to amend the PCRA petition rather than presenting the issue in response to the Rule 907 notice). The Superior Court also found the claim meritless pursuant to the colloquies where Thach conversed in English and agreed that he “can read and write and understand English, but it is at the level of your education” and can “understand English when it is spoken to [him].” Id. at *8-*9 n. 3.
I find that this claim is unexhausted and procedurally defaulted. A petitioner's claim is procedurally defaulted when the state court denies a federal claim based on independent state law and the state law appropriately supports the decision. Beard v. Kindler, 558 U.S. 53, 55 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). A petitioner's claim is also procedurally defaulted if the unpressed claim would be dismissed if presented to the state court due to a state procedural rule. Shinn, 142 S.Ct. at 1727-28. Here, the Superior Court's determination that the matter was procedurally defaulted is a dismissal pursuant to state procedural rule. See e.g., Robinson, 2018 WL 3385189, at *10 (holding that it is improper to raise an ineffectiveness claim for the first time in a response to the PCRA Court's 907 Notice).
I also find there is no merit to the claim. The Superior Court did not violate or improperly apply “clearly established Federal Law, as determined by the Supreme Court of the United States” nor does their determination stem from “an unreasonable determination of the facts” as presented on the state's record. § 2254(d)(1)-(2). In his habeas petition, Thach failed to demonstrate that he needed an interpreter at the time of trial and Mr. Seigel acted improperly in not obtaining an interpreter. The Superior Court was correct when it determined that the record undermines Thach's argument. During the same two colloquies cited above, Thach conversed in English and acknowledged that there were other conversations with Counsel where he was able to communicate and comprehend what was occurring in the moment.
Supra pg. 18-20.
See e.g. N.T. 03/23/2010, pp. 126:24 - pp. 129-13.
During the second colloquy, Judge Shelley Robins New said “You had an opportunity, which actually I've observed throughout the trial, to talk with your attorney and discuss various issues concerning your defense; is that correct?” N.T. 04/01/2010, pp. 53:17-21. Mr. Thach affirmed. Id. at 22.
I recommend this ground for relief be denied.
G. Mr. Thach's Ineffective Assistance of PCRA Counsel Claim Is Non-Cognizable and Meritless.
Petitioner argues that PCRA counsel was ineffective for “abandoning” him by filing what Petitioner alleges was a “pre-printed” Finley letter three years after filing the PCRA petition. Doc. No. 1 at 25-26. The Commonwealth argues there is no federal constitutional right to counsel on state collateral review, thus barring petitioner from raising this claim in a § 2254 habeas petition. Doc. No. 18 at 19.
There is no federal constitutional right to representation during PCRA hearings. Coleman, 501 U.S. at 725. The Supreme Count of the United States has barred habeas relief for ineffective assistance of counsel during collateral post-conviction proceedings, such as Pennsylvania's PCRA hearings. Martinez, 566 U.S. at 17 (citing § 2254(i)). While § 2254(i) prohibits a claim based directly on counsel's ineffectiveness in a collateral proceeding, Martinez permits a petitioner to show that ineffectiveness of counsel in the collateral proceeding (“PCRA counsel”) was the cause of a procedurally defaulted ineffective assistance claim against trial counsel. Id. at 14.
Here, Thach does not claim that his PCRA counsel created a procedural default for any ineffective assistance of counsel claim. Rather, he argues counsel “took the easy way out,” and affirms that his PCRA counsel acted in an acceptable manner under the requirements of Turner and Finley. See Doc. No. 1 at 25. In failing to contend that PCRA counsel was ineffective in creating a procedural default, Thach has made his claim of PCRA counsel's ineffectiveness non-cognizable in a § 2254 petition.
Based on my review of the record and counsel's Turner/Finley letter, this claim is without merit. In his pro se PCRA petition, Thach argues that Mr. Seigel was ineffective during the plea-bargaining stage by advising petitioner to not plead and proceed to trial “because our defense would prove that [Thach] was guilty of third-degree murder” in a “hailmary [sic] attempt” See Thach II, at *4 (internal citations omitted) (quoting PCRA Petition, 12/9/13, at 2.). Within the withdrawal request, the court appointed PCRA counsel thoroughly outlined the illogical nature of Thach's initial claim. Counsel explained how Thach's ineffective assistance of counsel claim was belied by trial Judge New's colloquy with the Petitioner concerning his decision whether to plead or proceed to trial. In conclusion, Thach's claim is non-cognizable because of his failure to connect the alleged ineffectiveness to a claim of ineffective trial counsel, meritless, based on PCRA counsel's adequate Turner/Finley letter and based on the lack of error in the process accorded to Thach as he made his decision not to plead guilty but to go to trial.
Whenever counsel's effectiveness is challenged it is worth considering this Court's experience with that counsel. In this instance, Lee Mandel is known by this Court to be an experienced and well-respected appellate counsel in post-conviction matters.
I recommend denying habeas review on this claim.
RECOMMENDATION
I respectfully recommend that Thach's petition be dismissed with prejudice. I recommend that no certificate of appealability issue because “the applicant has [not] made a substantial showing of the denial of a constitutional right[,]” under 28 U.S.C. § 2253(c)(2), because Thach has not demonstrated that “reasonable jurists” would find my “assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see United States v. Cepero, 224 F.3d 256, 262-63 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012).
Parties may object to this report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with the report and recommendation. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendations to which objection is made and explain the basis for the objections. Failure to file timely objections is likely to constitute a forfeiture of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007). A party wishing to respond to objections shall file a response within 14 days of the date the objections are served.