Opinion
Civil Action 2:19-cv-0844
05-18-2021
KEITH WRIGHT, Petitioner, v. COMMONWEALTH OF PENNSYLVANIA; WARDEN, SCI COAL TOWNSHIP, and DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.
DAVID S. CERCONE, NITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
Petitioner Keith Wright, a state prisoner incarcerated at SCI-Coal Township, has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 4), challenging the judgment of sentence imposed on him by the Court of Common Pleas of Allegheny County, on June 4, 2012, in his criminal case at CP-02-CR-0003580-2011. For the reasons outlined below, it is recommended that the Petition be denied and a certificate of appealability likewise be denied.
II. REPORT
A. Relevant Procedural and Factual Background
This case arises from the fatal shooting of Tauvea Hurt, in the early morning hours of January 1, 2011, in the Clairton section of the City of Pittsburgh. The Pennsylvania Superior Court, in its Memorandum dated February 24, 2014, affirming Mr. Wright's conviction and judgment, recounted the facts that led to his arrest and conviction as follows:
On December 31, 2010, David Spence hosted a New Year's Eve party at his townhouse at 2305 Lincoln Ave, Clairton, Allegheny County. Spence invited several of his friends, including the victim in this case, Tauvea Hurt. Shortly before midnight Spence went outside and encountered Lindsey Wright, Keith Wright's brother. Spence was aware that Keith Wright . . . was on very bad terms with Hurt.5 Lindsey inquired about attending the party, but Spence told Lindsey that he was not invited and that there was no one his age at the party. Lindsey walked away and Spence returned to the party.
5 In October 2010, Hurt and three other individuals were involved in an accident in which Keith Wright was shot in the face and several items were stolen from his apartment. Based on information provided by Wright, arrest warrants were issued for Hurt and the other individuals. Hurt had never been apprehended.
Upon returning to the party Spence immediately approached Hurt and they went upstairs to talk with a few other friends. Spence and the others were concerned about Hurt's safety, and told him that it might be best for him to leave. Hurt stated that he had talked to the Wright brothers and they were now on good terms. Reassured, everyone returned to the party.
Lindsey, however, immediately called [Wright] and told him to hurry to Lincoln Avenue because Hurt was across the street. [Wright] drove to Lincoln Avenue and the two brothers prepared to go across the street to shoot and kill Hurt. Shortly before 1:00 AM, [Wright] and Lindsey Wright entered Spence's apartment, wearing masks, dark clothing, and baseball caps. Lindsey pushed people into the walls as he made a path to the living room. [Wright] followed immediately behind Lindsey and positioned himself between the edge of the couch in the living room and the steps leading upstairs. Upon seeing Lindsey, Hurt tackled him onto the couch. Hurt and Lindsey fought while [Wright] stood next to the couch. Lindsey pulled out a gun and shot Hurt once in the chest, causing him to fall to the ground at the base of the stairs. Lindsey stood over Hurt and shot him in the chest and arms eight more times. All but two of the bullets passed through Hurt, and one actually struck [Wright] in the foot as he stood next to the couch. [Wright] and Lindsey fled out the back door.
Spence called 911 and a friend administered CPR to Hurt as he lay on the floor at the base of the steps. Emergency responders arrived within minutes and medics transported Hurt to the hospital, but efforts to save his life were to no avail. Hurt suffered a perforated lung, liver, and thoracic ascending aortic (the largest blood vessel from the heart). The cause of death was multiple gunshot wounds to the trunk and extremities, and the manner of death was homicide.
After fleeing the immediate scene [Wright] went to the hospital to have the gunshot wound to his foot treated. A bullet was removed from his shoe and eventually compared to bullets recovered from Hurt's autopsy, as well as bullets and casings found at the scene. The crime lab determined that the bullets and casings all matched each other and were discharged from the same firearm. The police investigation led to arrest warrants being issued for Wright and Lindsey Wright. On January 4, 2011, both fled to Columbus OH, where they were ultimately captured by the U.S. marshals fugitive task force on January 18, 2011, and brought back to Allegheny County.Commonwealth v. Wright, No. 313 WDA 2013, 97 A.3d 812 (Pa. Super.) (unpublished memorandum) (quoting Trial Court Opinion, July 13, 2011, at 5-7), appeal denied, 95 A.3d 278 (Pa. 2014) (ECF No. 12-5 at 2-3).
Mr. Wright testified at trial that eight months before the victim's death, Mr. Wright was shot in the face during an incident involving the victim, Tauvea Hurt, and three other individuals. According to Mr. Wright, these individuals broke into the apartment Mr. Wright shared with his brother, Lindsey Wright, and stole a television and Xbox. Mr. Wright testified that later he spoke with Mr. Hurt where they settled their differences and Mr. Wright realized that Mr. Hurt was not the shooter. (TT1 312, 314, 329, 345-55).
Mr. Wright was charged with multiple offenses relating to the incident. His brother, Lindsey Wright, was charged by separate Information. The Commonwealth intended to try Mr. Wright's case with that of his brother's case (CP-02-CR-0003581-2011), but defense counsel's motion for severance was granted during arguments held on the morning of January 31, 2012. That afternoon, Mr. Wright appeared with counsel for a jury trial before The Honorable Edward J. Borkowski in the Court of Common Pleas of Allegheny County. At the conclusion of the trial on February 3, 2012, the jury convicted Mr. Wright of murder of the second degree, burglary, and criminal conspiracy (burglary). On June 4, 2012, Mr. Wright was sentenced to life imprisonment for the murder conviction, followed by an aggregate term of seven to fourteen years.
Mr. Wright's brother, Lindsey Wright, was charged in a separate Information with criminal homicide, burglary, possession of firearm prohibited, firearms not to be carried without a license, and conspiracy - criminal homicide. He had a separate trial before Judge Borkowski on September 17, 2020, and was found not guilty of all charges on September 20, 2012. See public docket at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR-0003581-2011.
Mr. Wright, through appellate counsel, Scott Coffey, Esquire, filed a timely Notice of Appeal to the Superior Court of Pennsylvania raising claims challenging the sufficiency and weight of the evidence and the legality of the burglary sentence. See Appellant Br. (ECF No. 124 at 6). On February 24, 2014, the Superior Court vacated the separate burglary sentence finding that the burglary conviction should have merged with the second-degree murder conviction for sentencing purposes, and affirmed the judgment of sentence in all other respects. Mr. Wright's Petition for Allowance of Appeal (“PAA”) to the Pennsylvania Supreme Court was denied on July 9, 2014. (ECF No. 12-5 at 21).
After Mr. Wright's conviction became final on direct review, he filed a timely pro se petition under the Pennsylvania Post-Conviction Relief Act (“PCRA”). Thomas N. Farrell, Esquire, was appointed PCRA counsel, and on February 21, 2017, he filed an Amended PCRA Petition raising three ineffective assistance of trial counsel claims. (ECF No. 12-8). During an evidentiary hearing held on June 6, 2017, Mr. Wright and his trial counsel, Attorney Christy P. Foreman, testified. On June 28, 2017, the PCRA court filed its Notice of Intention to Dismiss the PCRA petition. (ECF No. 12-9 at 1-4). The Amended PCRA Petition was denied on August 1, 2017. (ECF No. 12-11 at 44).
Mr. Wright filed a timely appeal to the Superior Court of Pennsylvania challenging the denial of his PCRA petition, raising only one issue: whether trial counsel gave ineffective assistance of counsel for failing to request a jury instruction. The Superior Court affirmed the denial of the dismissal of the PCRA Petition on June 15, 2018. (ECF 12-12 at 1-7). Mr. Wright filed a PAA with the Pennsylvania Supreme Court, which was denied on December 5, 2018. (Id. at 9).
This case was initiated on July 16, 2019, when the Court received the Petition under 28 U.S.C. § 2254 filed by Mr. Wright. (ECF No. 1). Because the Petition was not prepared on the Court-approved standard habeas form, the undersigned ordered Mr. Wright to submit an Amended Petition. (ECF No. 2). On August 7, 2019, the Amended Petition was timely filed. (ECF No. 4). The Amended Petition raises twenty-one claims. Respondents filed an Answer in which they argue that twenty of the twenty-one claims are unexhausted and procedurally defaulted and Mr. Wright has shown no circumstances which would overcome the default. As to the sole remaining claim, Respondents argue that it should be dismissed on its merits under AEDPA's standard of review. (ECF No. 12).
The Court has reviewed the filings of the parties, as well as the certified original state court record provided to this Court, which includes these transcripts: the transcript from the preliminary hearing on March 18, 2011 (T11-0608); the trial transcript (T12-0517, T12-1105, and T12-1496); the transcript from the sentencing proceedings held on June 4, 2012 (T12-1559); and the transcript from the PCRA hearing held on June 6, 2017 (ECF No. 18).2F2F The matter is fully briefed and ripe for resolution.
B. The Standard for Habeas Relief under 28 U.S.C. § 2254
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing habeas corpus petitions “must be vigilant and independent . . . a commitment that entails substantial judicial resources.” Id. This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, enacted on April 24, 1996 (“AEDPA”), “which imposes significant procedural and substantive limitations on the scope” of the Court's review.3F3F Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017).
The first consideration in reviewing a federal habeas petition is whether the petition was timely filed under AEDPA's one-year limitations period. 28 U.S.C. § 2244(d). Respondents do not dispute that Mr. Wright's petition was timely filed.
1. Federal Habeas Review of Properly Exhausted Claims
Among AEDPA's procedural prerequisites is a requirement that the petitioner “has exhausted the remedies available in the courts of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). An exhausted claim is one that has been “fairly presented” to the state courts “by invoking one complete round of the State's established appellate review process,” and which has been adjudicated on the merits. Carpenter v. Vaughn, 296, F.3d 138, 146 (3d Cir. 2002) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)); Johnson v. Williams, 568 U.S. 298, 302 (2013). “Fair presentation” of a claim merely requires the petitioner to “present [the] federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” Greene v. Palakovich, 606 F.3d 85, 93 (3d Cir. 2010) (citation omitted). For § 2254(d) purposes, a claim has been adjudicated on the merits “when a state court has made a decision that finally resolves the claim on the basis of its substance, rather than on a procedural, or other, ground.” Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d 528, 545 (3d Cir. 2014) (quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009)).
When a claim is properly exhausted in the state courts and then raised on federal habeas review, the level of deference afforded to the state-court decision is substantial. Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017), cert. denied sub nom., Gilmore v. Bey, 138 S.Ct. 740 (2018). AEDPA “does not ‘permit federal judges to . . . casually second-guess the decisions of their state-court colleagues or defense attorneys.' ” Collins, 742 F.3d at 543 (quoting Burt v. Titlow, 571 U.S. 12, 14 (2013)). As a result, under § 2254(d), federal habeas relief is unavailable for exhausted claims unless the state-court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law . . . or 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).
This is an intentionally difficult standard to meet. Richter, 562 U.S. at 102. Section 2254(d) “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” clearly established Supreme Court precedent. Id. Thus, to obtain federal habeas relief on an exhausted claim, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Id. at 103.
Finally, “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petition[er] must overcome the limitation of § 2254(d)[ ] on the record that was before that state court”; “evidence introduced in federal court has no bearing on § 2254(d)[ ] review.” Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (footnote omitted). “[D]istrict courts cannot conduct evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d). Otherwise, federal habeas petitioners would be able to circumvent the finality of state court judgments by establishing a new factual record.” Brown v. Wenerowicz, 663 F.3d 619, 629 (3d Cir. 2011). “This would contravene AEDPA, which requires petitioners to diligently present the facts in state court before proceeding to the federal courthouse.” Id.
Although mandatory, the exhaustion requirement “turns on an inquiry into what procedures are ‘available' under state law.” O'Sullivan, 526 U.S. at 847. Under Pennsylvania law, a federal claim becomes exhausted once it is presented to the Pennsylvania Superior Court, either as a direct appeal from a state criminal conviction or as an appeal from a PCRA Court's denial of post-conviction relief. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004) (finding that review from the Pennsylvania Supreme Court is unavailable, and therefore not required, for purposes of exhausting state court remedies).
Traditionally, under Pennsylvania law, exhaustion meant that a claim must be presented to the trial court, the Pennsylvania Superior Court, and the Pennsylvania Supreme Court. See Evans v. Court of Common Pleas, Delaware County, PA, 959 F.2d 1227, 1230 (3d Cir. 1992). However on May 9, 2000, the Pennsylvania Supreme Court issued Judicial Administration Order 218, which provides that “in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing or allowance of appeal following an adverse decision by the Superior Court in order to be deemed to have exhausted all available state remedies respecting a claim of error. When a claim has been presented to the Superior Court, or to the Supreme Court of Pennsylvania, and relief has been denied in a final order, the litigant shall be deemed to have exhausted all available state remedies for purposes of federal habeas corpus relief....” In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam).
2. Federal Habeas Review of Unexhausted, Defaulted Claims
If a state prisoner has not fairly presented a claim “to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play.” Carpenter, 296 F.3d at 146 (citations omitted). The doctrine of procedural default serves as a corollary to the exhaustion requirement and provides a basis for a federal court to refuse to review a habeas claim. Federal courts may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate “cause” to excuse the default and “actual prejudice resulting from the alleged constitutional violation.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 (3d Cir. 2018) (quoting Davila v. Davis, -- U.S. ---, 137 S.Ct. 2058, 2065 (2017) (quoting Wainwright v. Skyes, 433 U.S. 72 (1977)), cert. denied, -- U.S. ---, 139 S.Ct. 1613 (2019). The burden lies with a petitioner to demonstrate circumstances that would serve to excuse a procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also Coleman, 501 U.S. at 750.
A petitioner, alternatively, can overcome a procedural default by demonstrating that the court's failure to review the defaulted claim will result in a “miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 748 (1991); McCandless v. Vaughn, 172 F.3d 225, 260 (3d Cir. 1999). “However, this exception is limited to a ‘severely confined category [] [of] cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner]'.” Preston v. Superintendent Graterford SCI, 902 F.3d 365,375 n.11 (3d Cir. 2018) (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (internal alteration in original) (quoting Schlup v. Delo, 514 U.S. 298, 329 (1995)). Further, the Court concludes that nothing in the record suggests that Mr. Wright could met the Schlup test. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (explaining that the miscarriage of justice standard “requires ‘new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.'”).
“Cause for a procedural default exists where something external to the petitioner, something that cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the State's procedural rule.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original) (citations and internal quotation marks omitted). To establish prejudice, a petitioner must show not merely that there were errors that created a possibility of prejudice, but that they “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). If cause and prejudice are established, the federal court reviews the claim “de novo because the state court did not consider the claim on the merits.” Bey, 856 F.3d at 236 (citation omitted).
Mr. Wright's twenty-one claims will be reviewed with these standards in mind.
C. Discussion
Only one claim raised in this habeas petition is exhausted and not procedurally defaulted (Claim 3). The remaining twenty claims are unexhausted and procedurally defaulted because Mr. Wright either (i) raised the issue in his PCRA Petition, but did not pursue the issue in his subsequent appeal to the Superior Court (Claims 1 and 2) or (ii) failed to raise the issue at all in state court (Claims 4-21, inclusive).
The Court notes that in their Answer, Respondents have addressed only Claims 1 - 18 of the Amended Petition. See Answer (ECF No. 12).
1. Claim 3 - Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are grounded in rights guaranteed under the Sixth Amendment. In Claim 3, Mr. Wright alleges that his trial counsel was ineffective for failing to request a negative inference jury instruction because the Commonwealth could not locate his jeans, which had been collected as evidence. Mr. Wright claims he was prejudiced because “the defense could not use said evidence to discredit eye-witness identification.” Am. Pet. at 8 (ECF No. 4). Mr. Wright raised this claim in his PCRA petition and on appeal to the Superior Court, where the claim was rejected on its merits. As a result of the Superior Court denying the claim on its merits, this Court's review is governed by AEDPA's standard of review.
The evidence at trial reflected that, on the night of the incident, police detectives interviewed Mr. Wright while he was in the emergency room for a gunshot wound to his left foot. With his consent, the police collected a DNA sample from him and collected his clothing, including a white tank top, plaid underwear, a pair of jeans, and a jacket. (N.T., T12-1105 at 45; 22.) On appeal, counsel argued, inter alia, that because the Commonwealth could not locate Mr. Wright's jeans, the defense was unable to use the jeans at trial to discredit any eye-witness identification. Counsel argued that Mr. Wright's jeans “goes directly to his innocence, as the eye-witnesses stated that the masked perpetrators were wearing all black.” App. Br. at 32 (ECF No. 12-11 at 35).
The Superior Court, citing the appellant brief, summarized the argument as:
Wright claims that the Commonwealth possessed jeans that he was wearing the night of the incident and failed to present the clothing as evidence at trial. Id . at 32. Wright alleges that the fact that his jeans were blue in color is material because a witness told police that the perpetrators were wearing all black. Id . at 28-29. Wright asserts that had the jeans been presented as evidence at trial, the jury may have discredited the witness's identification of him, and found him not guilty. Id . at 32, 34-35. Moreover, Wright claims that Attorney Foreman lacked reasonable basis for not requesting the jury instruction. Id . at 34-35.Superior Court Memo., 6/15/2018 at 3 (ECF No. 12-12 at 3). After reviewing the identification evidence presented at trial, the Superior Court rejected the argument explaining:
The identification of Wright as one of the masked man did not rely on the color of his pants. Indeed, none of the eyewitnesses testified that Wright was wearing black pants. Thus, the color of Wright's pants was not material to the identity of the perpetrators. See Pa. SSJI (Cim) 3.21B. Because Wright was not entitled to Jury Instruction 3.21(B), there is no arguable merit to his ineffectiveness claim. See [Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010)]. Further, the failure to request this instruction would not have changed the outcome of the proceedings based upon the overwhelming evidence of guilt. Accordingly, Attorney Foreman and was not ineffective for failing to request the instruction.Id. at 6.
The jury instruction at issue is Pennsylvania Standard Jury Instruction 3.21B, which provides:
1. There is a question about what weight, if any, you should give to the failure of the Commonwealth to produce an item of potential evidence at this trial.
2. If three factors are present, and there is no satisfactory explanation for a party's failure to produce an item, the jury is allowed to draw a common-sense inference that the item would have been evidence unfavorable to that party. The three necessary factors are:
First, the item is available to that party and not to the other.
Second, it appears the item contains or shows special information material to the issue; and
Third, the item would not be merely cumulative evidence.
3. Therefore, if you find these three factors present and there is no satisfactory explanation for the Commonwealth's failure to produce the item, at this trial, you may infer, if you choose to do so, that it would have been evidence unfavorable to the Commonwealth.PA. SSJI (Crim) 3.21B.
To prevail on a claim that the state court has adjudicated on the merits, Mr. Wright must demonstrate that the state court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold”). Mr. Wright has not met that high threshold. Viewing the Superior Court's disposition of this claim through the deferential lens of AEDPA, the Court has no hesitancy in concluding that Mr. Wright has failed to carry his burden to persuade this Court that the Superior Court's disposition was unreasonable, yet alone incorrect. For this reason, it is recommended that Claim 3 be denied.
In his Statement of Questions on appeal, Mr. Wright also argued that the Commonwealth's failure to test his jeans for gunshot residue and DNA evidence also entitled him to Jury Instruction 3.21(b). The Superior Court found this argument was waived under Pa.R.A.P. 2119(a) as there was no argument as to how gunshot residue or DNA evidence would have supported his case. Pa.R.A.P. 2119(a) requires that a party's “argument shall have . . .discussion and citation of authorities as are deemed pertinent.” Mr. Wright does not raise this issue on federal habeas review.
During the PCRA evidentiary hearing, Mr. Wright's trial counsel testified that “based on the eyewitness identification at trial and the fact that Mr. Wright got on the stand and testified about being there I didn't see any information about missing pants being relevant or that it was going to change the outcome of the case.” Transcript from PCRA Hearing at 13-14 (ECF No. 18).
2. Claims 1 and 2 - Raised in PCRA Petition, But Failed to Raise in Subsequent Appeal
In Claim 1, Mr. Wright alleges trial counsel failed to communicate to him a plea offer from the Commonwealth and in Claim 2, he alleges that trial counsel improperly advised him that he was required to testify in his own defense because his case had been severed from his brother's case. Both claims were raised in his PCRA petition and the PCRA court rejected both claims on their merits. Notice of Intention to Dismiss, 6/28/2017 at 2-3 (ECF No. 12-9 at 2-3). As Respondents correctly point out, neither claim was pursued in the appeal of the dismissal of Mr. Wright's PCRA petition and, as a result, both claims are procedurally defaulted.
Mr. Wright offers no argument on why this default should be excused. Having procedurally defaulted these claims and having failed to carry his burden to overcome the procedural default, it is recommended that Claims 1 and 2 be denied as they do not provide a basis for relief in these federal habeas proceedings.
However, even if these claims were not procedurally defaulted, the undersigned would recommend both be denied as they are without merit.
At the evidentiary hearing, the PCRA court heard testimony from Mr. Wright and his trial counsel, Attorney Foreman. The PCRA Court rejected Mr. Wright's claims finding that Attorney Foreman's testimony contradicted that of Mr. Wright's and the PCRA court credited her testimony. Attorney Foreman testified that:
[T]here was a plea offer. It was five and a half years ago, so I don't remember the specific terms of that plea offer. However, I did extend a plea offer to Mr. Wright. He was adamant throughout the course of my representation that he was innocent, that he had a duress defense, and he was not taking a plea....
[I]f the Commonwealth is offering to withdraw the murder charge clearly it's my practice and always has been for sixteen years, in addition to being required as an officer of the court to extend any plea offer. I would have done that, and I would have counseled him based on the evidence that he should have taken that. But it was his - - - he was adamant about this, he was innocent and [had a] duress defense, the entire time, and he did not want the plea....
And he was - - he kept going on and on about the duress defense and wanted to tell the jury how his brother had held him at gunpoint and pistolwhipped him and then forced him to go over there at gunpoint where the incident occurred, then shot him in the woods, then threatened him, and then absconded with him to Ohio. He was adamant about that....
[T]hroughout the course of my representation he wanted to pursue the duress defense. But they were being tried together, him and his brother. And I said, “Well, as it stands now you can't get on the stand, and you can't say all of that because your brother is sitting beside you at trial. If you want to pursue that I need to file a Motion to Sever.” That's what he wanted me to do, which prompted me to do that after he rejected the plea offer.
I filed a Motion to Sever. We argued in front of the judge. He granted it. And so I said to him, “Well, now you got what you wanted. You're severed from your brother. So you can get up there if you want and testify about the duress.” I had counseled him that a better defense would be just let me argue misidentification, it was dark, they didn't really see you, but he was adamant about the duress. And I told him if that is what you want there are no other witnesses to this supposed duress, that you would need to take the stand, because I couldn't just let the Commonwealth put on their case and then get up in closing and put on some story that hadn't been testified about about some duress. So if he wanted that he needed to testify. And he was like, “Okay, then I'm going to get on the stand and testify.”Id. at 8 - 10. In direct contrast, Mr. Wright testified that he would have taken the plea, but that his attorney told him “we're not taking it.” He also testified that he told his counsel that he did not want to testify in his own trial, but that counsel told him he was required to testify. Transcript from PCRA Hearing, at 22-23 (ECF No. 18).
The trial transcript reflects that Mr. Wright did in fact testify at trial in support of his duress defense stating that he did not want to go to the party, but his brother Lindsey had choked him and hit him in the forehead with a black handgun, grabbed him by the collar, took him outside, and forced him to the party. He testified that he was not wearing a mask, just a baseball cap. He entered the house and went to the kitchen to get a beer and a minute later he heard fighting and gunshots. He also testified that he ran out the front door, tripped over the body of the victim, and after he exited the house, he heard more shots. (N.T., at 291-296, 297 (T12-0517)). He ran into a wooded area, and his brother followed him, yelling after him and threatening to murder him. Mr. Wright “snatched at the gun . . . One shot went up. At that point he strong-armed me. Another shot went off. That's when it caught me in the foot....” (Id. at 300).
While no state court has ruled on these two ineffectiveness claims, the PCRA court declined to credit Mr. Wright's testimony at the evidentiary hearing. The PCRA court determined that Attorney Foreman's testimony “completely contradicted Petitioner's claim and the Trial Court credited her testimony.” The PCRA court also found that counsel “clearly provided other options and defense strategies wherein Petitioner would not have to testify, but Petitioner was adamant about the duress defense.... Thus, it is clear that Petitioner made a knowing and intelligent decision to testify in pursuit of his duress defense.” The PCRA court's credibility assessment of Mr. Wright's testimony is a fact that must be presumed to be correct under § 2254(e)(1). Mr. Wright has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.; Ruiz v. Superintendent Huntingdon SCI, 672 Fed.Appx. 207, 211 (3d Cir. 2016), (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (a state court finding of witness credibility is a factual finding presumed to be correct under § 2254(e)(1)), cert. denied sub nom. Ruiz v. Tice, 137 S.Ct. 1122 (2017).
Mr. Wright has not rebutted this fact finding by any evidence, much less clear and convincing evidence. As a result, deferring to the state court's finding that Mr. Wright's testimony was not credible, it is recommended that these claims be denied.
3. Claims 4 - 21, Inclusive - Failure to Raise in Any State Court
Throughout this Report and Recommendation, the undersigned does not correct spelling, grammar, or other typographical errors in Mr. Wright's filings.
Mr. Wright raises ten additional ineffective assistance of trial counsel claims (Claims 413, inclusive), four claims of prosecutorial misconduct (Claims 14-17, inclusive), two claims of ineffective assistance of PCRA counsel (Claims 18-19, inclusive), and two claims of judicial error allegedly committed by the magisterial district judge who conducted the preliminary hearing (Claims 20-21). None of these claims has ever been raised by Mr. Wright in any state court and as a result, all of these claims are unexhausted and procedurally defaulted. The burden lies with Mr. Wright to demonstrate circumstances that would serve to excuse the procedural default.
Claims 4 -13; Ineffective Assistance of Trial Counsel Claims
(a) In Claims 4-6, inclusive, and Claim 10, Mr. Wright claims that trial counsel was ineffective for failing to object to the prosecutor's statements during her opening statement and closing argument. Mr. Wright states that Claim 4 was not raised previously because his PCRA attorney “failed to add grounds.” Am. Pet. at 11. The Court will deem this statement to be an invocation of Martinez v. Ryan, 566 U.S. 1 (2012), in an attempt to excuse the procedural default of these additional ineffective assistance of trial counsel claims. In Martinez, the Supreme Court announced a limited, but significant, exception to excuse procedural default:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.Martinez, 566 U.S. at 18 (emphasis added). Notably, the Martinez exception on its own does not entitle a petitioner to relief; rather, “[i]t merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted.” Workman v. Superintendent Albion SCI, 915 F.3d 928, 939 (3d Cir. 2019) (quoting Martinez, 566 U.S. at 17).
As discussed more fully below, the undersigned has reviewed the opening statement and closing arguments of the prosecutor, and finds that the challenged statements do not amount to prosecutorial misconduct. Counsel cannot be ineffective for failing to raise a non-meritorious claim. As a result, such claims fail as the default cannot be excused since the underlying claims lack merit and are thus not substantial. Martinez, 566 U.S. at 13-15.
Because Mr. Wright's claims of ineffectiveness of trial counsel for failure to object to the Commonwealth's statements during opening and closing arguments overlap with his freestanding claims of prosecutorial misconduct (Claims 14-17), a more detailed discussion of prosecutorial misconduct is found in the analysis regarding Claims 14-17.
(b) In Claim 7, Mr. Wright argues that trial counsel was ineffective for failing to hire a private investigator. In the context of ineffective assistance based on counsel's failure to investigate, the court must determine whether counsel exercised “reasonably professional judgment.” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005) (quoting Wiggins v. Smith, 539 U.S. 510, 522-23 (2003)). To show prejudice, Mr. Wright must show that counsel's failure to investigate deprived him of a fair trial. Strickland, 466 U.S. at 687, 694.
Mr. Wright has failed to establish that additional evidence was available and helpful to his defense other than that adduced at trial or proffered any explanation of what he hoped would be discovered through investigation. Bald assertions and conclusory allegations do not afford a sufficient ground to provide habeas relief. Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir.), cert. denied, 484 U.S. 946 (1987). There is no basis to conclude that additional pre-trial investigation would have led to any admissible evidence, let alone evidence that would have shown that the result of the proceeding would have been different had it been admitted. The “failure to conduct a more intensive investigation, in the absence of any indication that such investigation would develop more than was already known, simply does not constitute ineffective assistance of counsel.” Commonwealth v. Poindexter, 646 A.2d 1211, 1217 (Pa. 1994). Because Mr. Wright has not shown that his claim of trial counsel ineffectiveness is “substantial,” Martinez provides no excuse for the procedural default of this claim.
(c) Claims 8, 9, and 12 of the Amended Petition involve the identification by and testimony of eyewitness Taryn Ingram. Mr. Wright contends that trial counsel was ineffective for failing to:
(1) “suppress commonwealth's only eye witness Taryn Ingram in court identification” because, inter alia, “Ms. Ingram never picked Wright out of a photo array or lineup”;
(2) “ask for impeachment of Taryn Ingram due to inconsistent statements;” and
(3) “to file a motion to receive 911 recording made by Taryn Ingram.”
The state court record reflects that Ms. Ingram was a key Commonwealth witness as she was the only witness who testified that Mr. Wright was at the party, and wore a black mask that covered everything but his eyes, a hat, and dark clothing. She testified that Keith Wright did not have a gun and stood by the front door as Lindsey Wright was shooting the victim, and when Lindsey ran out the door and Keith followed him. N.T. at 168-69 (T12-0517).
David Spence, the party host, testified that he did not see Keith Wright and saw no one at the party with masks on; Parris Shepherd, Mr. Wright's cousin, testified that she saw two people enter the party, both wearing masks, but she could not identify the masked men; Rheyshawn Lee testified that she never saw Keith Wright at the party; and Shelby Taylor, testified that she saw two Black men wearing masks, but that she did not see Keith Wright.
On the night of the shooting, Ingram did not tell police that she knew the identity of the masked men, she only told the police that there were two masked men. But two days later, she again met with homicide detectives and this time identified the masked men as Lindsey Wright and Keith Wright. She picked out Lindsey Wright's photo from an array. She testified that she was never shown an array with Keith Wright's photo. Id. at 172. During her trial testimony, Ms. Ingram made a court identification of Mr. Wright and stated that she knew him from living in the same community, that she had seen him “a lot of times . . . more than 10.” Id. at 160, 176.
At the preliminary hearing, she also made a court identification of Lindsey Wright and Keith Wright, stating she knew “them from around. We all live in Clairton.” N.T. at 5 (T11-0608).
The trial court succinctly and correctly summarized Ms. Ingram's identification testimony as follows:
Here, the record established that Taryn Ingram: (1) was familiar with Keith and Lindsay Wright from the neighborhood; (2) was not intoxicated the evening of the shooting; (3) could see the eyes of the two masked men; (4) was in close proximity to Keith and Lindsey; (5) did not identify the masked men at a police interview in her home in Clairton on the morning of January 1, 2011, because she was scared; (6) went to the police station two days later and identified the masked men as Keith and Lindsey Wright; (7) identified Keith Wright at the preliminary hearing; and (8) identified Keith Wright at trial.Trial Court opinion, 7/11/2013, at 14.
Ingram was extensively cross-examined about her identification of Mr. Wright at both the preliminary hearing and trial. She testified that because she was scared, she did not identify at first the masked men. Id. at 170-71. Although she failed to name the masked men during her initial police interview, the record reflects that she consistently identified them in a later police interview and later criminal proceedings. Mr. Wright has not shown that trial counsel was ineffective in failing to challenge the in-court identification or in the cross-examination of Ms. Ingram about any prior inconsistent statements. As such, the claim is not substantial, and Martinez provides no excuse for the procedural default of these claims.
Mr. Wright also argues that counsel was ineffective for failing to file a motion to receive the 911 recording made by Taryn Ingram. Mr. Wright has not shown that the lack of this evidence was prejudicial. For that reason, this claim is not substantial, and Martinez provides no excuse for the procedural default.
For all these reasons, the undersigned finds that Mr. Wright has failed to establish ineffectiveness of counsel in Claims 8, 9, and 12. Because the claims are not substantial, Martinez provides no excuse for the procedural default of these claims. It is, therefore, recommended that Claims 8, 9, and 12 be denied as they are procedurally defaulted.
To the extent Mr. Wright is challenging the credibility of Ms. Ingram's identification and testimony, such is not a cognizable claim on federal habeas review. Although Ms. Ingram gave contradictory testimony to that of Mr. Wright's, the credibility of witnesses was for the jury to determine. The credibility of witnesses, the resolution of conflicts of evidence, and the drawing of reasonable inferences from proven facts all fall within the exclusive province of the fact-finder and therefore are beyond the scope of federal habeas review. The jury, in its fact finding function, found the identification testimony by Ms. Ingram to be credible.
(d) In Mr. Wright's last two ineffective assistance of counsel claims, he argues that trial counsel was ineffective for failing to call Fatima Russell (Claim 11) and Eugene Mcmiller (Claim 13) as witnesses at trial.
Mr. Wright states that Fatima Russell “gave [a] statement that there was only one masked individual and she identified him as appellants codefendant” and Eugene Mcmiller gave a statement stating that “detectives allowed him three chances to pick appellant out of photo array” and that while Mr. Mcmiller “picked appellant out of a photo array, but never stated that appellant was masked actor. Only that he knew that victim and appellant were having problems.” Am. Pet. at 6-7.
To establish ineffectiveness for failure to call a witness under Pennsylvania law, Mr. Wright must show that “(1) the witness existed; (2) the witness was available; (3) counsel [knew] of the [witness's] existence; (4) the witness was prepared to cooperate and testify . . .; and (5) the absence of the testimony was prejudicial.” Commonwealth v. Khalifa, 852 A.2d 1238, 1240 (Pa. Super. 2004). Additionally,
The United States Court of Appeals for the Third Circuit has noted that it is “troubled” by the requirement that a PCRA petitioner must show that a witness was “ready, willing and able to testify at trial” as defense counsel can compel a witness to appear at trial and testify through the use of a trial subpoena. Gregg v. Rockview, 596 Fed.Appx. 72, 76 n.4 (3d Cir. 2015) (citing Grant v. Lockett, 709 F.3d 224, 239 n.10 (3d Cir. 2013)).
A defendant must establish prejudice by demonstrating that he was denied a fair trial because of the absence of the testimony of the proposed witness. Further, ineffectiveness for failing to call a witness will not be found where a defendant fails to provide affidavits from the alleged witnesses indicating availability and willingness to cooperate with the defense.” Commonwealth v. O'Bidos, 849 A.2d 243, 250 (Pa. Super. 2004). In the context of an ineffectiveness claim based upon a failure to call a witness, the habeas petition “must make a specific, affirmative showing as to what the missing evidence would have been, and prove that this witness's testimony would have produced a different result.”Danner v. Cameron, 955 F.Supp.2d 410, 439 (M.D. Pa. 2013) (citing Patel v. United States, 19 F.3d 1231, 1237 (7th Cir. 1994)).
Even if counsel's performance was deficient in not calling these individuals as trial witnesses, Mr. Wright has not shown that the absence of their testimony was prejudicial. He has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different if counsel had called either Fatima Russell or Eugene Mcmiller. Without a showing of a reasonable probability of a different outcome, Mr. Wright has failed to establish ineffective assistance of counsel. Because the claim is not substantial, Martinez provides no excuse for the procedural default of these claims. It is, therefore, recommended that Claims 11 and 13 be denied as they are procedurally defaulted.
Claims 14 -17; Prosecutorial Misconduct Claims
In Claims 14 - 17, inclusive, Mr. Wright claims that the prosecutor's remarks during her opening statement and closing arguments amounted to prosecutorial misconduct. These claims were never pursued in any state court and thus are unexhausted and procedurally defaulted. Mr. Wright offers no argument on why the procedural default of these four claims should be excused. Having procedurally defaulted these claims and having failed to carry his burden to overcome the procedural default, it is recommended that Claims 14 and 17, inclusive, be denied as they do not provide a basis for relief in these federal habeas proceedings.
Even if the Court were to excuse the procedural default, the undersigned would recommend that these claims be denied on their merits. Allegations of prosecutorial misconduct are reviewed under the standards for fundamental fairness as guaranteed under the Due Process Clause. Darden v. Wainright, 477 U.S. 168, 181-82 (1986). To constitute a due process violation, the prosecutorial misconduct must be “‘of sufficient significance to result in the denial of the defendant's right to a fair trial.'” United States v. Bagley, 473 U.S. 667, 676 (1985) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)). The relevant question is whether the prosecutor's comments so infected the trial with unfairness so as to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In making this determination, the statements or conduct at issue cannot be viewed in isolation. Rather, a court must assess the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. United States v. Young, 470 U.S. 1, 11 (1985). In other words, “the court must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly.” Id. See also Commonwealth v. Duffy, 831 A.2d 1132 (Pa. Super. 2003) (“Prosecutorial misconduct occurs when the effect of the prosecutor's comments would be to prejudice the trier of fact, forming in its mind fixed bias and hostility toward the defendant so that it could not weigh the evidence objectively and render a true verdict.”)
The undersigned has reviewed the opening statement and closing arguments of the prosecutor, and finds that the challenged statements do not amount to prosecutorial misconduct. None of the comments so infected the trial with unfairness so as to make the resulting conviction a denial of due process. The prosecutor's remarks in the closing argument were based on evidence presented or proper inferences therefrom.
Further, the trial court properly instructed the jury that arguments of counsel were not evidence:
The arguments of counsel are not evidence. They should not be considered as such. However, in deciding the case, you should carefully consider the evidence in light of the various reasons and arguments which each lawyer advanced.
The case has been well tried by two very competent attorneys, and it is the right and duty of each lawyer to discuss the evidence in a manner which is more favorable to the side that the attorney represents.
Counsel's personal beliefs as to guilt or innocence, or as to any other disputed questions, if they were expressed, are irrelevant and immaterial, and should not be considered by you. You may be guided by the lawyers arguments to the extent that they were supported by the evidence and insofar as they aid you in applying your own reason and common sense.
However, of course, you are not required to accept the arguments of either lawyer. It is for you and you alone to decide the case based on evidence as it was presented, your evaluation of that evidence, and consistent and in accord with these instructions.N.T., at 408-09 (T12-0517).
Consequently, Mr. Wright has not demonstrated that he is entitled to relief with respect to these claims. For all these reasons, it is recommended that Claims 14-17, inclusive, be denied.
Claims 18 -19; Ineffective Assistance of PCRA Counsel Claims
To the extent that Mr. Wright is attempting to bring freestanding claims of ineffective assistance of PCRA counsel, such claims are not cognizable in federal habeas proceedings. See 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”); see also Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987) (no constitutional right to counsel in collateral post-conviction proceedings); Coleman v. Thompson, 501 U.S. 722, 755 (1991) (no constitutional right to counsel on appeal from initial collateral post-conviction proceedings). Accordingly, it is recommended that Claims 18 and 19 be denied because these claims are not cognizable on federal habeas review.
Claims 20 - 21; Judicial Error Claims
In Mr. Wright's final two claims, he argues that the magisterial district judge erred in finding probable cause to hold his criminal charges over for trial. Mr. Wright offers no argument on why this default should be excused. Having procedurally defaulted these claims and having failed to carry his burden to overcome the procedural default, it is recommended that Claims 20 and 21be denied as they do not provide a basis for relief in these federal habeas proceedings.
D. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying that standard here, the undersigned concludes that jurists of reason would not find it debatable whether each of Mr. Wright's claims should be dismissed. For these reasons, it is recommended that a certificate of appealability be denied.
III. CONCLUSION
For all of the above reasons, it is respectfully recommended that the instant habeas petition for a writ of habeas corpus be denied. It is also recommended that there is no basis upon which to grant a certificate of appealability.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Mr. Wright, because he is a non-electronically registered party, may file written objections to this Report and Recommendation by June 7, 2021, and Respondents, because they are electronically registered parties may file written objections by June 2, 2021. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: May 18, 2021 s/ Cynthia Reed Eddy