Opinion
Civil Action 2:17-cv-00938
04-04-2022
AKANINYENE EFIONG AKAN, Petitioner, v. SUPERINTENDENT SCI FOREST, DISTRICT ATTORNEY ALLEGHENY COUNTY, and ATTORNEY GENERAL FOR THE STATE OF PENNSYLVANIA, Respondents.
CHRISTY CRISWELL WIEGAND DISTRICT JUDGE
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Petitioner Akaninyene Efiong Akan has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, it is respectfully recommended that Petitioner's petition for writ of habeas corpus be denied. It is further recommended that no certificate of appealability issue.
II. REPORT
A. Background
In the Court of Common Pleas of Allegheny County, Pennsylvania, Petitioner was convicted at a jury trial of two counts of rape by forcible compulsion, four counts of involuntary deviate sexual intercourse by forcible compulsion, and one count each of burglary, sexual assault, indecent assault, terroristic threats, unlawful restraint, and simple assault. The trial court summarized the underlying facts as follows:
By way of a brief review, the evidence presented at trial established that in the evening hours of September 11, 2011, University of Pittsburgh student [K.B.] left her off-campus house at 3381 Parkview Avenue in the Oakland section of the City of Pittsburgh to attend a party for the University's lacrosse team. When she returned to her house, she chatted with a friend on Facebook and fell asleep in her clothes with her laptop open. At approximately 5 a.m., she was awakened by the sound of footsteps on the stairs. She saw a man in the hallway, whom she described as short, approximately 5'7” to 5'8”, muscular build, wearing dark clothing and a ski cap, and later identified as the Defendant. The Defendant came into her room, shut and locked her door and closed her laptop. One of [K.B.'s] housemates, [K.K.], heard the footsteps as well and called out to [K.B.] By this time, the Defendant had put his arms around her neck, indicated that he had a knife and hydrochloric acid and threatened to kill her if she didn't do as he said. [K.B.] replied to [K.K.] that she was fine and had just gone downstairs to get a glass of water. [K.K.] accepted this and went back into her room and went to sleep.
Over the next two hours, the Defendant forced [K.B] to perform oral sex on him and raped her vaginally and anally multiple times. Throughout the attack, [K.B.] heard several ripping sounds, which she determined were condom wrappers. When she resisted his sexual assaults, the Defendant continually threatened to kill or hurt her if she didn't comply. At approximately 7 a.m., the Defendant asked what she wanted and [K.B.] said she wanted to go to sleep. The Defendant again threatened her, saying he would come back and kill her and her family. He spit in her mouth to indicate that what happened was a pact between them, and then left the house. [K.B.] remained in her bed, crying and unable to move, for some time. When she heard [K.K.] in the bathroom, she went and told her what had happened. Against [K.K.'s] advice, [K.B.] showered, and then the girls and their third housemate, [L.S.] went to [K.K.'s] parent's house, where [K.B.] called her parents and the police. As they left the house, they noticed the living room window was open, when it had been closed the previous evening.
Approximately one week later, University of Pittsburgh Police stopped the Defendant on Bates Street in Oakland as a suspicious person. Pittsburgh Police Detective Rufus Jones was called to the scene and engaged the Defendant in conversation. During this conversation, the Defendant asked for, and was given, a cigarette. The Defendant smoked the cigarette and dropped it on the ground before leaving his encounter with the police. Detective Jones bagged the cigarette and reported the incident to his commanding officer. Several weeks later, Detective Jones was asked to turn the cigarette over to Detective Boss, which he did. DNA testing on the saliva taken from cigarette matched a saliva sample found on the panties of [K.B.] wore during the rapes. Eventually, the Defendant's fingerprints
were matched to latent prints taken from the open window at [K.B.'s] house. It was later discovered that the Defendant had accompanied [K.B.'s] housemate, [K.K.], home from a bar the previous evening, but [K.K.] was incoherently drunk and [K.B.] made the Defendant leave. Friends of the girls, [J.A.] and [N.F.], were present when the Defendant entered the house with [K.K.], and both said that the Defendant did not touch the window at any time.ECF No. 51-3 at 97-99.
On June 26, 2012, the trial court imposed a judgment of sentence with an aggregate term of 32 to 80 years' imprisonment. The sentence included 8 to 20 years on the burglary charge and 8 to 20 on each of 4 rape charges.
The Pennsylvania Superior Court affirmed the judgment of sentence on November 25, 2013. Commonwealth v. Akan, 91 A.3d 1295 (Pa. Super. 2013) (unpublished memorandum). The Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on May 30, 2014. Commonwealth v. Akan, 93 A.3d 461 (Pa. 2014).
On October 17, 2014, Petitioner filed a petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46, which was dismissed. The Pennsylvania Superior Court affirmed the dismissal on February 1, 2016. Commonwealth v. Akan, 141 A.3d 583 (Pa. Super. 2016) (unpublished memorandum); ECF No. 51-3 at 118-123. The Pennsylvania Supreme Court denied a petition for allowance of appeal on September 13, 2016. Commonwealth v. Akaninyene Efiong Akan, 157 A.3d 478 (Pa. 2016).
Petitioner filed a second PCRA petition on October 19, 2016. The PCRA court dismissed the petition as untimely, and that dismissal was affirmed by the Pennsylvania Superior Court on June 29, 2018. Commonwealth v. Akan, 193 A.3d 1131 (Pa. Super. 2018) (unpublished memorandum); ECF No. 51-6 at 1-4.
Petitioner timely commenced this habeas litigation by filing a petition on July 17, 2017. ECF No. 1. This case was stayed on July 19, 2017, while Petitioner pursued state court remedies. ECF No. 6. The stay was lifted on December 18, 2020. ECF No. 14. On January 4, 2021, Petitioner filed an amended petition which is more than 500 pages in length. ECF No. 15. On June 25, 2021, Respondents, through the District Attorney of Allegheny County, filed a response to the petition. ECF No. 51. Petitioner filed a traverse on July 20, 2021. ECF No. 55. The petition is ripe for consideration.
Petitioner filed additional varied motions and petitions in state court before and during this stay which will be discussed herein where relevant.
B. Analysis
1. Ground One: Ineffective assistance of trial counsel for failing to object to trial court's instructions on notetaking by jury
Petitioner first asserts that his trial counsel was ineffective for failing to object to the trial court's instructions prohibiting the jury from taking notes during the trial. ECF No. 15-1 at 1-49. Petitioner raised this claim in the litigation of his first PCRA petition. In his PCRA appeal, he couched it in a claim of PCRA counsel's ineffectiveness for failing to argue trial counsel's ineffectiveness. ECF No. 51-3 at 121. The Superior Court addressed the claim as follows:
It appears that the jury should have been permitted to take notes pursuant to Pa.R.Crim.P. 644 because the trial was expected to last more than two days. However, as argued by the Commonwealth, [Petitioner] has failed to demonstrate that the jury's verdict was inconsistent with the victim's testimony. The Commonwealth's Brief at 36. Thus, because [Petitioner] has not established that the jurors' preclusion from taking notes resulted in any prejudice, trial counsel cannot be found ineffective, and, therefore, PCRA counsel cannot be deemed ineffective for failing to advance that meritless claim. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).ECF No. 51-3 at 122-23.
Because the state court reviewed this claim and rejected it on its merits, the following standard is applicable. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996, if a state court rejects a claimed federal violation on the merits, to obtain habeas relief a petitioner must show that the ruling:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C.§ 2254(d). See also Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004); Thomas v. Horn, 570 F.3d 105 (3d Cir. 2009).
An unreasonable application of federal law focuses on whether the state court unreasonably applied relevant United States Supreme Court holdings. White v. Woodall, 572 U.S. 415, 419-20 (2014). A petitioner must show an error so egregious “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 for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).
An unreasonable determination of the facts is one where the petitioner proves by clear and convincing evidence, see 28 U.S.C. § 2254(e)(1), that the conclusion drawn from the evidence by the state court is so improbable that it “blinks reality.” Miller-El v. Dretke, 545 U.S. 231, 266 (2005). As long as reasonable minds might disagree about the correctness of a factual determination, a federal habeas court must defer to the state court's determination. Rice v. Collins, 546 U.S. 333, 341-42 (2006).
Petitioner first argues that the Superior Court's decision was contrary to and/or involved an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). ECF No. 15-1 at 26-33. Specifically, he argues that the state court did not apply the appropriate test for prejudice set forth in Strickland, i.e., that a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” Strickland, 446 U.S. at 694, but rather applied an unprecedented test based on whether Petitioner had demonstrated that the jury's verdict was inconsistent with the victim's testimony.
It is clear, however, that in its determination, the state court did not employ a new test; rather, its finding was an evaluation of Petitioner's assertion of prejudice as presented in his appellate brief. Therein he argued, “[h]ad the jury been correctly instructed on how to ‘consider the evidence' and ‘find the facts', as prescribed by Pa.R.Crim.P. 644, there is a reasonable likelihood that at least one of the members of the jury would have noted the irreconcilable material propositions offered by [the victim] and would have rendered a different verdict despite [the prosecutor's] false argument that the testimony was consistent.” ECF No 51-3 at 60. Petitioner fails to show that the state court unreasonably applied Strickland.
Petitioner also asserts that the state court's decision involved an unreasonable determination of facts in light of the evidence presented. ECF No. 15-1 at 34-49. However, he does not identify any such unreasonable factual determination. Indeed, the Superior Court's holding did not rely on any factual finding. Because Petitioner has not shown an unreasonable determination of the facts, he cannot obtain habeas relief on this argument.
2. Ground Two: Ineffective assistance of trial counsel for failing to move for suppression of fruit of seizure of Petitioner's person on September 17, 2010
In his second claim, Petitioner asserts that his trial counsel was ineffective in failing to seek suppression of the evidence obtained from the seizure of Petitioner's person on September 17, 2010. ECF No. 15-1 at 50-ECF No. 15-3 at 9. Petitioner raised this claim in his first PCRA petition. The PCRA court's analysis of the claim was adopted by the Superior Court on appeal, ECF No. 51-3 at 122, and is as follows:
The Defendant now argues that trial counsel should have sought suppression of his “biological/DNA sample” because it was “seized without a warrant as the result of a pretext stop, investigative detention, and search of Appellant's person on September 17, 2010, and, was stored by Pittsburgh Police until October 4, 2010 without any articulable reasonable basis.”
It is clear to this Court that the Defendant is not sure on what basis he wishes to challenge the seizure of the cigarette butt and so had simply strung together all of the “keywords” relating to search and seizure in hopes that something would stick. Rather, the record reflects that the seizure of the cigarette butt was proper.
Our courts have held that “contacts between the police and citizenry fall within three general classifications: The first [level of interaction] is a ‘mere encounter' (or request for information) which need not be supported by any level of suspicion but carries no official compulsion to stop or respond. The second, an ‘investigative detention', must be supported by reasonable suspicion; it subjects a suspect to a stop and a period of detention but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or ‘custodial detention' must be supported by probable cause.” Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011).
“To determine if an interaction rises to the level of an investigative detention, i.e. a Terry stop, the court must examine all circumstances and determine whether police action would have made a reasonable person believe he was not free to go and was subject to the officer's orders.'” Commonwealth v. Guzman, 44 A.3d 688, 693 (Pa.Super. 2012), citing Commonwealth v. Jones, 874 A.2d 108, 116 (Pa.Super. 2005). “‘In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject's movement has in some way been restrained... No single factor should control this determination, and courts must examine the totality of the circumstances when reaching a conclusion as to whether a seizure occurred.'” Guzman, supra, citing Commonwealth v. Strickler, 757 A.2d 884, 890 (Pa. 2000).
During a direct examination of Police Officer Rufus Jones, the following occurred:
Q. [The prosecutor]: And I'm going to direct your attention to September 17, 2010, are 2:40 in the morning. What area of the city were you in at that particular time?
A. (Officer Jones): Oakland.
Q. And did you have occasion to encounter somebody at that particular time?
A. Yes, I did. The Defendant on Bates Street...
.. Q. And again, where did this occur?
A. I think the address was 3612 Bates Street in Oakland.
Q. When you say 3612 Bates Street, was that at a house?
A. I look around for the address closest to me and try and do things that way, and I want to say that was the address that I looked at that was close to us.
Q. Where was the Defendant when you first saw him?
A. He was on the street.
Q. And did you have any conversation with him?
A. Yes, actually, I did. I had a pretty good conversation with him. He was - Pitt Police were there, I was talking with him. He had a 2010 Audi. Actually, it was a very nice car, I had a long conversation with him about the car. He worked for Westinghouse. Nice gentleman. I talked to him for quite a while.
Q. Let me ask you this. The Defendant ask for anything while you were speaking to him?
A. He did. He asked for a cigarette. I told him I didn't smoke. Never have. One of the Pitt officers did smoke and gave him a cigarette.
Q. And what did the Defendant do once he was given a cigarette?
A. He smoked a cigarette, we talked about his car, where he worked, and then when he was done smoking he threw the cigarette butt down.
Q. And when he threw the cigarette butt down, what did you do?
A. We stood, waited. He was eventually released and recovered the cigarette.(T.T., Vol. 1, p. 247-8).
In Commonwealth v. Riley, 715 A.2d 1131 (Pa.Super. 1998), our Superior Court addressed seizure of items discarded during a mere encounter with police. It held that when a person abandons an item during a mere encounter with police, “he had no standing to contest the search and seizure of items which he has voluntarily abandoned” and the later admission of such evidence is proper. Commonwealth v. Riley, 715 A.2d 1131, 1134 (Pa.Super. 1998). Here, the Defendant had a conversation about his car with Officer Jones and then departed. He was free at all times and he was not subjected to a bodily search or investigative detention. As a result, the cigarette butt left by the Defendant was “not the result of unlawful coercion” and was properly admitted at trial. Because the evidence was not subject to suppression, counsel cannot be considered ineffective for failing to pursue it. This claim is meritless.ECF No. 51-3 at 100-103.
Petitioner asserts that the state court's decision involved an unreasonable determination of facts in light of the evidence presented. ECF No. 15-2 at 13-ECF No. 15-3 at 5. To the extent the Petitioner is truly challenging the state court's findings of fact and not its legal conclusions, he falls well short of proving by clear and convincing evidence, see 28 U.S.C. § 2254(e)(1), that the conclusion drawn from the evidence by the state court is so improbable that it “blinks reality, ” see Miller-El, 545 U.S. at 266. Petitioner argues, for instance, that the cited trial testimony “offers no information that would lead an objective jurist to conclude that Petitioner departed immediately after having a conversation with Officer Rufus Jones about his case as Officer Rufus Jones make no such statement ....” ECF No. 15-3 at 1. The state court made no finding about the immediacy of Petitioner's departure after the conversation was concluded.
Further, Petitioner's repeated assertions that the fact-finding process was inadequate do not merit relief. Petitioner presents more than 20 pages of facts he believes to be relevant to this claim.
ECF No. 15-1 at 52-75. It is clear that Petitioner believes the state court should have conducted a more comprehensive review of these facts before rendering its findings. However, where a state court's findings are supported by the record, they are presumed to be correct, even if no hearing on the relevant factual issues was held. Benjamin v. McGinley, 2019 WL 952142, at *15 (W.D. Pa. Feb. 27, 2019). The state court made only three factual findings on this issue: (1) Petitioner had a conversation about his car with Officer Jones; (2) Petitioner departed the scene subsequent to that conversation; and (3) Petitioner left behind a cigarette butt when he departed. Petitioner has failed to prove that these findings are not supported by the record. Accordingly, he is not entitled to habeas relief on this ground.
3. Ground Three: Ineffective assistance of trial counsel for failing to request mistrial on the basis of prosecutorial misconduct
Petitioner next argues that his trial counsel was ineffective for failing to request a mistrial on the basis of prosecutorial misconduct. ECF No. 15-3 at 10-78. Petitioner raised this claim in the litigation involving his first PCRA petition. In his PCRA appeal, he couched it in a claim of PCRA counsel's ineffectiveness for failing to argue trial counsel's ineffectiveness. ECF No. 513 at 121. The Superior Court adopted the PCRA court's holding on this claim. Id. at 122. The PCRA court found this claim to be waived because it was unable to discern the nature of the claim from Petitioner's pro se statement of matters complained of on appeal filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (“Rule 1925(b)”). Id. at 116-117.
Respondents argue that because the state courts found this claim to be waived, it is procedurally defaulted and barred from federal habeas review. ECF No. 51 at 25. Respondents are correct. As the United States Supreme Court set forth:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Rule 1925(b) and its specific “requirement that issues raised in Rule 1925(b) Statements be pleaded with sufficient clarity has been found to be independent and adequate” in this Circuit. Robinson v. Smith, 2018 WL 3385189, at *9 (E.D. Pa. May 30, 2018) (collecting cases).
In response to Respondents' assertion of procedural default, Petitioner makes no attempt to overcome his procedural default; rather, he merely disputes the state courts' finding of waiver. ECF No. 55 at 14-16. This claim should be denied as procedurally defaulted.
The Court notes that Petitioner could have no cause to excuse his procedural default because the failure to comply with Rule 1925(b) lies solely with Petitioner, who was acting pro se, and not something external. See Coleman, 501 U.S. at 753 (explaining that “‘cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him....”).
4. Ground Four: Ineffective assistance of trial counsel for promising that Petitioner would testify and failing to deliver on that promise
Petitioner next asserts that trial counsel was ineffective for promising the jury that Petitioner would testify and then failing to deliver on that promise. ECF No. 15-3 at 79-ECF No. 15-5 at 10. Petitioner raised this claim to the PCRA court in the litigation of his first PCRA petition, but he did not raise it to the Superior Court in his PCRA appeal.
This Court has explained:
As a general matter, a federal district court may not consider the merits of a habeas petition unless the petitioner has “exhausted the remedies available” in state court.
See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A petitioner satisfies the exhaustion requirement “only if [the petitioner] can show that [he or she] fairly presented the federal claim at each level of the established state-court system for review.” Holloway v. Horn, 355 F.3d 707, 7114 (3d Cir. 2004). The purpose of the exhaustion requirement is to “give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts ... by invoking one
complete round of the State's established appellate review process.” O'Sullivan, 526 U.S. at 845.
To “fairly present” a claim for exhaustion purposes, the petitioner must advance the 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.” Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir. 2018) (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). A petitioner may exhaust a federal claim either by raising it on direct appeal or presenting it in post-conviction PCRA proceedings. O'Sullivan, 526 U.S. at 845. Either way, the petitioner must present his federal constitutional claims “to each level of the state courts empowered to hear those claims.” Id. at 847 (“requiring state prisoners [in order to fully exhaust their claims] to file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State”). “Once a petitioner's federal claims have been fairly presented to the state's highest court, the exhaustion requirement is satisfied.” Stoss v. Estock, 2019 WL 2160464, at *3 (M.D. Pa. May 17, 2019) (citing Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989)).Dean v. Tice, 2020 WL 2933325, at *4-5 (W.D. Pa. June 2, 2020).
Petitioner asserts that he did raise this claim in his PCRA appeal, citing the following claim in his appellate brief:
The PCRA court erred by permitting the appointed PCRA counsel to withdraw based on a Turner/Finley “NO MERIT” letter that failed to address all the actual claims raised in the pro se PCRA Petition...ECF No. 15-4 at 8.
Obviously, this statement of the claim did not advance factual and legal substance to the Superior Court in a manner that put it on notice that the instant federal claim was being asserted. Thus, this claim was not fairly presented to the Superior Court and is therefore unexhausted.
When a petitioner has failed to fairly present his claim to the state courts, but state procedural rules, such as the time limitations in the PCRA, See 42 Pa.C.S.A. § 9545(b), now bar him from doing so, the exhaustion requirement is excused; however, the claims are considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d 153, 162-66 (3d Cir. 2000). Because Petitioner is, at a minimum, time-barred from pursuing this claim in a new PCRA petition, it is procedurally defaulted. As with the previous claim, Petitioner makes no attempt to overcome his procedural default. This claim should be denied as procedurally defaulted.
In addition, this claim is not supported by the record. The trial court conducted a colloquy with Petitioner at the close of evidence regarding his right to testify, at which time he waived that right. ECF No. 51-3 at 12-13.
5. Ground Five: Ineffective assistance of trial counsel in failing to ensure that potential jurors were questioned as to racial and ethnic biases
Petitioner next argues that his trial counsel was ineffective for failing to ensure that potential jurors were questioned about racial and ethnic biases given the “interracial and violent nature of the charged crime.” ECF No. 15-5 at 11-57. Petitioner concedes that he did not present this claim to the state courts and that it is procedurally defaulted. Id. at 33. He attempts to overcome the procedural default, however, by invoking his appointed PCRA counsel's ineffectiveness pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).
Generally, because there is no federal constitutional right to counsel in a PCRA proceeding, a petitioner cannot rely on PCRA counsel's ineffectiveness to establish the “cause” necessary to overcome the procedural default of a federal habeas claim. Davila v. Davis, 137 S.Ct. 2058, 2062 (2017). In Martinez, however, the Supreme Court announced a narrow, but significant, exception to this rule. In relevant part, it held that in states like Pennsylvania, where the law requires that claims of ineffective assistance of trial counsel be raised for the first time in a collateral proceeding, a petitioner may overcome the default of a claim of trial counsel's ineffectiveness if the petitioner demonstrates: (1) the defaulted claim of trial counsel's ineffectiveness is “substantial” and (2) PCRA counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984), for failing to raise that claim in the “initial review collateral proceeding.” Martinez, 566 U.S. at 17.
This Court need not resolve the more complex issue of procedural default, however, if it determines that the underlying ineffectiveness claim has no merit, even under a de novo review. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (where analysis of procedural default is complex, the court may skip the issue and proceed to the merits). That course is followed here.
Ineffective assistance of counsel claims are governed by the familiar standard set forth by the Supreme Court in Strickland, 466 U.S. 668. To prevail on a claim of ineffective assistance under Strickland, the petitioner has the burden of establishing that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. Strickland also requires that the petitioner demonstrate that he was prejudiced by his trial counsel's alleged deficient performance. This places the burden on the petitioner to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, ” the result of the proceeding “would have been different.” Id. at 694.
Petitioner's argument as to the prejudice he suffered from his trial counsel's inaction is essentially that prejudice is presumed in his case because he is a “black foreign national, ” tried by an “all-white jury; before an all white courtroom audience; and on allegations that he perpetrated a violent assault on an adult white woman.” ECF No. 15-5 at 30. Citing caselaw which holds that the possibility of racial prejudice can be presumed in cases involving a black defendant charged with a violent crime against a white person, See Mu'Min v. Virginia, 500 U.S. 415, 424 (1991), Petitioner leaps to the conclusion that the failure to ensure inquiry into such possible prejudice results in per se prejudicial ineffective assistance of counsel. Id. at 13, 31. This argument fails. Petitioner must prove prejudice to succeed on this claim and he has not. His assertion that one white male juror looked at him with a “bitterly hateful and strongly disapproving” look is wholly unhelpful to his claim. No racial or ethnic motivation is attributed thereto. His general claim that “racial and ethnic bias presumably played a role in the jury's verdict, ” id. at 56, is insufficient to prove that his trial counsel was ineffective under Strickland. Petitioner is not entitled to habeas relief on this claim.
In reviewing the sufficiency of the evidence on direct appeal, the Superior Court found the evidence supporting the verdict to be overwhelming. ECF No. 51-2 at 6-7.
6. Ground Six: Ineffective assistance of trial counsel for failing to move to suppress November 30, 2010, arrest warrant
Petitioner next asserts that his trial counsel was ineffective for failing to seek suppression of the November 30, 2010, arrest warrant. ECF No. 15-5 at 58-84. Petitioner raised this claim to the PCRA court in the litigation of his first PCRA petition, but he did not raise it to the Superior Court in his PCRA appeal. Because the claim was not fairly presented to the Superior Court, it is unexhausted. O'Sullivan, 526 U.S. at 845.
Because Petitioner is, at a minimum, time-barred from pursuing this claim in a new PCRA petition, the exhaustion is excused; however, the claim is procedurally defaulted. Lines, 208 F.3d at 162-66. Petitioner makes no attempt to overcome his procedural default. This claim should be denied as procedurally defaulted.
7. Ground Seven: Cumulative ineffective assistance of trial counsel
Petitioner next argues that the cumulative effect of the asserted instances of trial counsel's ineffectiveness so undermined the verdict as to constitute a denial of due process. ECF No. 15-5 at 85-ECF No. 15-6 at 15. Petitioner raised this claim to the PCRA court in the litigation of his first PCRA petition. Petitioner asserts that he did raise this claim to the Superior Court in his PCRA appeal, citing the following claim in his appellate brief:
The PCRA court erred by permitting the appointed PCRA counsel to withdraw based on a Turner/Finley “NO MERIT” letter that failed to address all the actual claims raised in the pro se PCRA Petition...ECF No. 15-6 at 10.
Obviously, this statement of the claim did not advance factual and legal substance to the Superior Court in a manner that put it on notice that the instant federal claim was being asserted. Thus, this claim was not fairly presented to the Superior Court. Accordingly, it is unexhausted. O'Sullivan, 526 U.S. at 845.
Because Petitioner is, at a minimum, time-barred from pursuing this claim in a new PCRA petition, the exhaustion is excused; however, the claim is procedurally defaulted. Lines, 208 F.3d at 162-66. Petitioner makes no attempt to overcome his procedural default. This claim should be denied as procedurally defaulted.
8. Ground Eight: Ineffective assistance of sentencing counsel for failing to seek correction of illegal sentence
Petitioner next argues that his sentencing counsel was ineffective for failing to seek correction of his judgment of sentence on the grounds of illegality. ECF No. 15-6 at 16-60. Petitioner asserts that he raised this claim to the PCRA court during the litigation of his first PCRA petition. Id. at 31. Petitioner further asserts that he raised this claim to the Superior Court in his appeal from the denial of that PCRA petition, citing the following claim in his appellate brief:
This Court need not determine whether Petitioner fairly presented the instant claim to the PCRA court because it is clear that he did not do so to the Superior Court. However, a cursory review of the sentencing-related claim presented in the PCRA court reveals significant differences from the claim presented here.
The PCRA court erred by permitting the appointed PCRA counsel to withdraw based on a Turner/Finley “NO MERIT” letter that failed to address all the actual claims raised in the pro se PCRA Petition...ECF No. 15-6 at 36.
Obviously, this statement of the claim did not advance factual and legal substance to the Superior Court in a manner that put it on notice that the instant federal claim was being asserted. Thus, this claim was not fairly presented to the Superior Court at that time.
Petitioner further asserts that in a third PCRA petition, filed on January 29, 2018, he “also substantially apprised the state courts of all relevant facts ... that demonstrated that the state's June 26, 2012 Judgment of Sentence is illegal.” Id. at 42. Petitioner asserts that this third PCRA petition has not been addressed by the trial court. Id. To the extent that this clearly untimely PCRA petition is of any relevance, the Court notes that a claim that the judgment of sentence is illegal is distinct from a claim of counsel's ineffectiveness for failure to raise illegality of sentence. Exhaustion of one does not constitute exhaustion of the other. Willis v. Vaughn, 48 Fed.Appx. 402, 406 (3d Cir. 2002).
This petition was filed during the pendency of the appeal of the dismissal of Petitioner's second PCRA petition, and thus at a time in which the PCRA court did not have jurisdiction to rule on a third PCRA petition. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding that when a PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review). The PCRA court thus deferred its ruling on this third PCRA petition until jurisdiction was returned to that court.
The instant ineffective assistance of counsel claim is unexhausted. O'Sullivan, 526 U.S. at 845. Because Petitioner is, at a minimum, time-barred from pursuing this claim in a new PCRA petition, the exhaustion is excused; however, the claim is procedurally defaulted. Lines, 208 F.3d at 162-66. Petitioner makes no attempt to overcome his procedural default. This claim should be denied as procedurally defaulted.
9. Ground Nine: New research on DNA transfer In his penultimate claim, Petitioner asserts that his conviction and sentence should be vacated on the basis of research published in 2016 “that demonstrates the risk of assuming that DNA recovered from an object resulted from direct contact as was proffered by the Commonwealth during Petitioner's trial.” ECF No. 15-6 at 61-87. Petitioner raised this claim in his second PCRA petition. ECF No. 51-4 at 1-33. Both the PCRA court and the Superior Court found the petition and this claim to be time-barred. ECF No. 51-4 at 39-47; ECF No. 51-6 at 1-4. Accordingly, this claim is procedurally defaulted. Coleman, 501 U.S. at 750; Peterson v. Brennan, 196 Fed.Appx. 135, 142 (3d Cir. 2006) (holding that a habeas petitioner procedurally defaulted his claim by failing to comply with the PCRA's statute of limitations and concluding “we will affirm the District Court's order that the PCRA statute of limitations is an adequate and independent state ground to deny habeas relief”).
Petitioner makes no attempt to overcome his procedural default. This claim should be denied as procedurally defaulted. In addition, the Court sees no merit in this claim. The PCRA court found that the articles in question do not qualify as evidence. ECF No. 51-6 at 3, citing to Trial Court Opinion at 7-8, Commonwealth v. Castro, 93 A.3d 818, 824 (Pa. 2014). In addition, the articles are not applicable to the situation presented in Petitioner's case as Petitioner had a forensic DNA expert testify on his behalf who stated he found no improprieties. ECF No. 51-6 at 4.
10. Ground Ten: Bias of trial court
In his final claim, Petitioner asserts that his conviction and sentence should be vacated on the basis of the demonstrated bias of the trial court. ECF No. 15-6 at 88-ECF No. 15-7 at 19. There is a presumption that judges properly discharge their official duties and the burden is on
Petitioner to rebut the presumption by showing actual bias. See, Bracy v. Gramley, 520 U.S. 899, 904-905 (1997). The Court agrees with Respondent, that Petitioner's allegations are not sufficient to show judicial bias. In addition, he did not file a motion to recuse until 2017 and his argument of bias due to the sentence is countered by the fact that the Superior Court affirmed the sentence imposed. ECF No. 51 at 33.
Petitioner raised this claim in what the state courts characterized as his fifth PCRA petition. Both the PCRA court and the Superior Court found the petition and this claim to be time-barred. ECF No. 51-8 at 68-72. Accordingly, as with Ground Nine, this claim is procedurally defaulted. Coleman, 501 U.S. at 750; Peterson 196 Fed.Appx. at 142.
Petitioner makes no attempt to overcome his procedural default. This claim should be denied as procedurally defaulted.
C. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “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). Where 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 those standards here, jurists of reason would not find it debatable whether Petitioner's claims should be denied for the reasons given herein. Accordingly, no certificate of appealability should issue.
D. Conclusion
For the foregoing reasons, it is respectfully recommended that Petitioner's amended petition for writ of habeas corpus, ECF No. 15, be denied. It is further recommended that no certificate of appealability issue.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: April 4, 2022.