Opinion
Civil Action No. 2: 16-cv-0223
06-03-2020
KRISTOPHER EUGENE GARNER, Petitioner, v. DISTRICT ATTORNEY OF ALLEGHENY COUNTY and SUPERINTENDENT OF SCI FRACKVILLE, Respondents.
cc: Kristopher Eugene Garner JH0721 SCI Frackville 1111 Altamont Blvd Frackville, PA 17931 (via U.S. First Class Mail) Alicia H. Searfoss Office of the District Attorney of Allegheny County (via ECF electronic notification)
United States District Judge Nora Barry Fischer
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
Before the Court is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") filed pro se by Petitioner, Kristopher Eugene Garner. Garner is a Pennsylvania prisoner currently housed at SCI-Frackville, serving an aggregate term of imprisonment of 17-1/2 years to 35 years for his convictions of third-degree murder and criminal conspiracy. For the reasons below, it is recommended that the Petition be denied and a certificate of appealability also be denied.
II. REPORT
A. Relevant Procedural and Factual Background
This case arises from the fatal stabbing of Michael Hixson on September 12, 2003. The Superior Court summarized the facts that led to Garner's arrest and conviction as follows:
The incident in question occurred on September 12, 2003, in the late evening hours in the downtown area of the city of Pittsburgh. The Pittsburgh police were notified of a man bleeding in front of the Saks department store. Upon their arrival, they discovered the victim with multiple stab wounds. The victim ultimately died from the injuries. On the night in question [Garner] and a co-
defendant (Leonard Anthony), and [Marvin Harpool] (accomplice) had an encounter with the victim. [Harpool] (accomplice) testified against the other two at trial. In this encounter, their motive was to obtain money from the victim, initially through the sale of drugs and eventually robbery. During the encounter, a physical altercation took place in which the victim was kicked and punched, and the co-defendant [Anthony] ultimately stabbed the victim with a knife several times. Money was taken from the victim and the three fled. The case remained unsolved for many years, until [Harpool] (accomplice), in exchange for a lesser prosecution, aided police in identifying [Garner] and co-defendant [Anthony]. Because this murder occurred in an area [where] there were other people present, there was an eyewitness who testified at trial that she had confronted the stabber. Because he had a mask on his face, she could not independently identify the co-defendant [Anthony], as she could only identify him by his eyes. With the aid of [Harpool] (accomplice) who was acting in concert with [Garner] and co-defendant [Anthony], when the eye-witness viewed [Anthony's] eyes, she positively identified him as the person who[m] she encountered that stabbed the victim on the night in question.Commonwealth v. Garner, No. 731 WDA 2010, slip op., at 1-2 (Pa. Super. Ct. Oct. 25, 2011) (quoting 1925(a) Opinion, July 13, 2020, pp. 3-4) (ECF No. 15-5 at 1-2).
In 2007, Garner was arrested for the murder of Michael Hixson. Following three jury trials that each resulted in a mistrial, a fourth jury trial began on August 24, 2009, before Senior Judge John K. Reilly in the Court of Common Pleas of Allegheny County, Pennsylvania. On August 27, 2009, the jury returned a verdict finding Garner guilty of third degree murder and criminal conspiracy to commit robbery. On November 20, 2009, Judge Reilly sentenced Garner to fifteen to thirty years imprisonment for third degree murder, and a consecutive two and a half to five years imprisonment for conspiracy.
On November 30, 2009, Garner, through counsel, filed a timely post-sentence motion and on March 23, 2010, filed a "Supplement to Post Sentence-Motion." The trial court did not rule on either the motion or the supplemental motion and on April 6, 2020, both were denied by operation of law under Pennsylvania Rule of Criminal Procedure 720(B)(3)(b). On direct appeal, Garner, through counsel, raised three claims:
Pennsylvania Rule of Criminal Procedure 720(B)(3), provides as follows:
Time Limits for Decision on Motion. The judge shall not vacate sentence pending decision on the post-sentence motion, but shall decide the motion as provided in this paragraph.
(a) Except as provided in paragraph (B)(3)(b), the judge shall decide the post-sentence motion, including any supplemental motion, within 120 days of the filing of the motion. If the judge fails to decide the motion within 120 days, or to grant an extension as provided in paragraph (B)(3)(b), the motion shall be deemed denied by operation of law.
(b) Upon motion of the defendant within the 120-day disposition period, for good cause shown, the judge may grant one 30-day extension for decision on the motion. If the judge fails to decide the motion within the 30-day extension period, the motion shall be deemed denied by operation of law.
(c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and, as provided in Rule 114, forthwith shall serve a copy of the order on the attorney for the Commonwealth, the defendant's attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied. This order is not subject to reconsideration.
(i) Whether the evidence was sufficient to sustain guilty verdicts on counts of third degree murder and criminal conspiracy to commit murder?Id. at 3. On October 25, 2011, the Superior Court affirmed the judgment of sentence in part and remanded the case for an evidentiary hearing on the after-discovered testimony. The matter was remanded and an evidentiary hearing was held on March 5, 2012 on the recantation testimony of witness Marvin Harpool. Judge Todd found that "Witness Martin Harpool testified credibly that his recantation testimony was made under duress" and that Harpool "did not knowingly and voluntarily recant his testimony concerning the Defendant Kristopher Garner." Order of Court, March 9, 2012 (ECF No. 15-5 at 24).
(ii) Is the Appellant entitled to a new trial, or at least an evidentiary hearing, when after-discovered evidence is obtained confirming that Garner was not involved in the homicide?
(iii) Does a due process violation occur when law enforcement fails to inform the defense about an independent eyewitness to the homicide until trial, at which time the eyewitness has died?
The alleged newly discovered evidence was a statement by Harpool (the accomplice) in which he recanted the incriminatory statements he made against Garner.
The sufficiency of the evidence issue and the due process claim both were reviewed and denied on their merits.
Due to the death of Judge John Reilly, who presided over the trial and sentenced Garner, the evidentiary hearing was held before Judge Randal B. Todd.
On March 18, 2013, Garner filed a pro se letter seeking a reduction of his sentence. Judge Todd, by Order of April 3, 2013, treated the letter as a request for relief under the Post-Conviction Relief Act ("PCRA") and appointed Charles Pass, Esquire, to represent Garner. Counsel filed an Amended Petition in which he raised two claims:
(i) Petitioner is entitled to time credit for time served for the time period October 17, 2007 through and including November 19, 2009; and
(ii) Attorney Seman, trial counsel, was ineffective for failing to adequately advise petitioner with respect to an alleged plea offer of 10, 12, or 15 year of incarceration in exchange for a plea of guilty.
On March 26, 2014, the court granted Garner's request for credit for time served and an evidentiary hearing was scheduled on the ineffectiveness claim. Following the evidentiary hearing, the court denied the PCRA petition finding as follows:
There is no evidence that counsel was ineffective in failing to consult with Petitioner about accepting or rejecting a plea offer. The evidence establishes that no plea offer was made nor was counsel ineffective regarding consulting Petitioner about any possible plea negotiations.Order, Aug. 20, 2014 (ECF No. 15-7 at 4).
On August 26, 2015, the Superior Court of Pennsylvania affirmed the order denying the PCRA Petition, ECF No. 25-8 at 33-40, and December 30, 2015, the Pennsylvania Supreme Court denied the petition for allowance of appeal. (ECF No. 16-1 at 30).
On September 15, 2016, acting pro se, Garner filed a second PCRA petition claiming he had obtained a statement from Rahman Hafiz, and the contents of the statement constituted newly discovered facts. On January 17, 2017, the PCRA court dismissed the second PCRA petition as untimely finding that "Hafiz was known to the Petitioner at the time of trial" and thus the statement did not constitute newly discovered facts. (ECF No. 15-9 at 11; ECF No. 16-1 at 48 - 50). On May 4, 2018, the Superior Court of Pennsylvania affirmed the order denying the PCRA Petition. (ECF No. 15-9 at 56-59).
On May 3, 2016, between the litigation of his first and second PCRA petitions, Garner filed the instant habeas corpus petition under 28 U.S.C. § 2254. (ECF No. 5). In his petition, Garner raises four claims:
(1) Ineffectiveness of counsel / sentence reduction.Petition (ECF No. 5). At the request of Garner, the instant federal case was stayed pending the exhaustion of state court remedies. After Garner's second PCRA petition was dismissed as untimely, this case was reopened, and Respondents filed an Answer asserting that Garner is not entitled to federal relief because his claims are procedurally defaulted and without merit (ECF No. 15). The Court has reviewed the filings of the parties, as well as the state court record, including the transcripts from trial, sentencing hearing, and PCRA hearing. The matter is fully briefed and ripe for resolution.
(2) After discovered evidence of witness at trial, who recanted testimony entitling me to a new trial and/or evidentiary hearing.
(3) Sufficiency of evidence for conviction.
(4) Was due process violated when law enforcement failed to inform the defense about an independent witness to the homicide.
B. The Standard for Habeas Relief under 28 U.S.C. § 2254
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. Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017), cert. denied, No. 17-7437, -- U.S.---, 138 S. Ct. 1170 (Feb. 26, 2018).
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 Smith's petition was timely filed.
1. Exhaustion of State Remedies
Among these 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); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. § 2254(b)(1)(A)). "The exhaustion requirement is satisfied only if the petitioner can show that he fairly presented the federal claim at each level of the established state-court system for review." Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). When a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).
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, in relevant part, 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. Procedural Default and the Martinez Exception to the Procedural Default Doctrine
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. "When a claim is not exhausted because it has not been 'fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is 'an absence of available State corrective process.' " McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (quoting 28 U.S.C. § 2254(b)(1)(B)(i)). "However, claims deemed exhausted because of a state procedural bar are procedurally defaulted. . . ." Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). Thus, claims are procedurally defaulted where "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule. . . ." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
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). To demonstrate "cause," a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner satisfies the "prejudice" requirement by establishing that the trial was "unreliable or . . . fundamentally unfair" because of a violation of federal law. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). 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)). Garner does not argue that his defaulted claims should be excused because failure to do so would result in a miscarriage of justice. Further, the Court concludes that nothing in the record suggests that Garner 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.'").
In Martinez v. Ryan, 506 U.S. 1 (2012), the Supreme Court held that, under some circumstances, ineffective assistance of counsel can provide cause 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; see also Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014). To emphasize the limited application of the Martinez exception, the Supreme Court has specifically directed that this exception does not apply to claims of ineffective assistance of appellate counsel. Davilla v. Davis, -- U.S. ---, 137 S. Ct. 2058, 2066 (2017); see also Richardson v. Superintendent Coal Twp. SCI, 905 F.3d 750, 761 (3d Cir. 2018) ("[P]risoners who want to challenge the ineffectiveness of their appellant counsel on federal habeas cannot turn to Martinez."). Thus, where state law requires a prisoner to raise ineffective assistance of counsel claims in a collateral proceeding, procedural default will be excused under the Martinez exception only when these conditions are met: (1) "the default was caused by ineffective assistance of counsel or the absence of counsel"; (2) the default occurred "in the initial-review collateral proceeding (i.e., the first collateral proceeding in which the claim could be heard)"; and (3) "the underlying claim of trial counsel ineffectiveness is 'substantial,' meaning 'the claim has some merit,' analogous to the substantiality requirement for a certificate of appealability." Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014) (quoting Martinez, 566 U.S. at 13); accord Richardson v. Superintendent Coal Twp. SCI, 905 F.3d 750, 760 (3d Cir. 2018).
This condition goes to the "cause" inquiry for excusing procedural default. To show cause under the Martinez exception, the petitioner must demonstrate that collateral review counsel was not appointed or was ineffective under the standard in Strickland, 466 U.S. at 695.
This condition goes to the "actual prejudice" inquiry for excusing procedural default.
C. Discussion
1. Claim One - Ineffective Assistance of Trial Counsel Claim
Garner's first claim has two sub-issues. First, he claims that his trial counsel, Owen Seman, Esquire, was ineffective by failing "to file proper motions that I asked. He skipped my direct appeal and file[d] a post-sentence motion resulting in a time lapse for a proper motion for modification of sentence while my record was a zero on the point scale" Pet. at 6 (ECF No. 5 at 6). He also alleges his PCRA counsel was ineffective for failing to raise the issue on collateral review. The second sub-issue is that trial counsel was ineffective for failing to adequately consult with him about alleged plea offers made by the Commonwealth before trial. The Court will consider these issues in turn.
Attorney Seman testified at the PCRA hearing that he represented Garner at each of the four trials.
The first sub-issue, on sentencing modification, was not raised on direct appeal or in the Amended PCRA petition. The claim is thus technically exhausted as there are no state court remedies available but the claim is procedurally defaulted pursuant to an independent and adequate state procedural rule. Garner concedes that this claim is procedurally defaulted, but argues that the claim was never raised on appeal because his attorney did not "know what he was doing." Pet. at 5 (ECF No. 5). He also states that his PCRA attorney refused to bring this issue in the Amended PCRA petition because he "didn't have grounds for an appeal on this matter and he wouldn't put it in my amended PCRA. He stated my previous attorney wasn't at fault for not filing a direct appeal." Id. at 6. It appears that Garner is claiming that the default should be excused based on the exception established in Martinez. As explained below, the Court finds that the default cannot be excused since the underlying claim lacks merit and is therefore not substantial. Martinez, 566 U.S. at 13-15.
Garner does not allege that the sentences are illegal because they are beyond the statutory maximum, instead he asserts that the sentences are too harsh and the state sentencing judge did not consider or properly consider all the factors that he ought to have considered in imposing the sentence under Pennsylvania law. The sentencing transcript reflects that before issuing its sentence, the court stated:
I have of course sat through all of the proceedings in this matter, including the final trial that resulted in the jury's verdict. I have considered the presentence investigations prepared for each defendant, and the presentations on behalf of each defendant here this morning. I understand you are protesting our innocence, but I'm bound by the jury's verdict. They have found you guilty of murder of the third degree and criminal conspiracy. . . .Sentencing Transcript at 39, 11/20/2009 (T10-1023).
On November 30, 2009, ten days after Garner had been sentenced, trial counsel filed timely post-sentence motions, including a motion for reconsideration of Garner's sentence. See Post-Trial Motions (ECF No. 15-1 at 17-25). In the motion for reconsideration, counsel argued that the sentencing court had abused its discretionary authority and should reconsider Garner's sentence based on these eight factors:
1. The Defendant had a minimal involvement in the crimes charges, if any involvement at all . . . .;
2. The Defendant has a zero (0) prior record score for purposes of sentencing;
3. That the Defendant's guidelines on the 3rd degree murder charge, in the standard range, begin at five (5) years incarceration;
4. That with regard to this Defendant, absolutely no aggravating factors exist that would substantiate the Court's sentence of fifteen (15) to thirty (30) years incarceration on the 3rd degree murder charge;
5. The Defendant was only 20 years old at the time the incident occurred;Post-Sentence Motions, at 24 (ECF No. 15-1 at 24). On April 6, 2010, the motion was denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(b).
6. The Defendant has a five (5) year old daughter to support;
7. The Defendant has proven that he is amenable to supervision, having been placed on a period of three (3) years probation, which was closed, with no problems, at its natural chronological expiration;
8. That the Defendant has a strong family support system, including his mother and two (2) grandmothers that testified before this court at sentencing.
Counsel then filed a notice of appeal, but failed to file a concise statement pursuant to Rule 1925(b) statement. On July 13, 2010, the trial court filed an opinion, which appears to address the issue raised in Garner's post-sentence motions. In that opinion, the trial court addressed the motion for reconsideration on the sentencing issue:
Considering the gravity of the offenses and the need for society to be protected, the court carefully considered the sentence imposed. In this case, the standard guideline range for third-degree murder was 72 to 240 months and 36 to 54 months for the conspiracy conviction. Given the convictions, the sentences were appropriate under the circumstances of the case. The sentence imposed upon the defendant, found guilty of third degree murder for participating with two others in the death of the victim was reasonable. Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009).Trial Court Opinion, 7/13/2010, at 6 (ECF No. 15-2 at 32). The Superior Court remanded, retaining jurisdiction, with the following specific instructions: "Trial court shall order counsel to file and serve a concise statement pursuant to Rule 1925(b). Upon receipt of the 1925(b) statement, the trial court shall file a 1925(a) opinion and the record shall be returned to this court." Criminal Docket, 5/25/2011 entry (ECF No. 15-1 at ). Counsel then filed the Rule 1925(b) statement, ECF No. 15-4 at 14, at 48-51, which did not include an issue about sentence modification.
The Court finds, after de novo review, that Garner's argument that his trial counsel was ineffective for failing to raise the sentencing issue on direct appeal and that his PCRA counsel, Charles R. Pass, III, Esquire, was ineffective for failing to raise the same issue is unavailing. The underlying substantive claim lacks merit. "The Court did not sentence the Defendant to the maximum sentenced by law at either charge" and the sentencing court had the benefit of a presentence report and the sentencing guidelines. See Commonwealth's Response to Defendant's Post-Trial Motion (ECF 15-1 at 43). Nothing in the record supports Garner's claim that the sentencing court abused its discretionary authority. Thus, neither trial counsel nor PCRA counsel was ineffective for failing to raise an issue that lacked merit and this sub-issue should be denied on the merits. As for the second subissue, Garner challenges his trial attorney's failure to adequately consult with him on plea offers. The PCRA court denied this claim on the merits and the Superior Court of Pennsylvania affirmed finding that the claim lacked arguable merit. As a result, this Court will not be reviewing the claim de novo and Garner must demonstrate more than a violation of his Sixth Amendment rights. He also must overcome the AEDPA deferential standard, as well as the presumption of correctness this Court must afford the state court findings under § 2254(e).
After an evidentiary hearing at which both Garner and trial counsel testified, the PCRA court found that Garner's claim lacked merit :
Trial counsel credibly testified that despite that (sic) fact that there were numerous discussions throughout his representation concerning the plea negotiations, which included the possibility of minimum terms of 4, 10, 12, and 15 years, these discussions did not constitute specific offers which Petitioner was given the option by the Commonwealth to accept or reject. It is clear from the testimony that counsel and Petitioner discussed, repeatedly and at length, the range of possible sentences, Petitioner's prior record score and the evidence with which he could be confronted at trial. It is also incredible for Petitioner to assert that by the time of the fourth trial he was unaware of the trial process, the evidence that
would be presented against him, and the risks or hazards with proceeding to trial. In fact, Petitioner's own testimony indicates that when an offer of 12 to 24 was allegedly discussed, which counsel told him he "should think about," that Petitioner evaluated the evidence and felt that there was "not that much" against him, that is, only one witness against him and that it was a question of his credibility versus the credibility of the witness. Therefore, contrary to the allegation that counsel failed to advise Petitioner that an acquittal on all charges would be difficult in light of his admission that he was present at the scene and the witness statement that he participated in the assault, Petitioner's own testimony establishes that he weighed and considered that testimony.PCRA Court Opinion, 1/12/15, at 6-7 (ECF No. 15-7 at 29-30).
It is clear that Petitioner was fully advised and aware of all of the risks, hazards and potential outcomes proceeding to trial and elected to do so. . . . There is no evidence that a specific plea offer was made that counsel failed to inform him of. In addition, there is nothing in the record that indicates that Petitioner actually instructed counsel to accept a plea offer and counsel refused to do so, contrary to his instructions.
Before addressing the claim, the Superior Court set out the standard for reviewing a claim of ineffective assistance of counsel:
When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Counsel cannot be found ineffective for failure to assert a baseless claim.Superior Court Memorandum, 08/26/2015 (quoting Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013)). The Superior Court then addressed the issue on the merits and affirmed, embracing the PCRA trial court's reasoning, as follows:
To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel's ineffectiveness prejudiced him.
. . .
[T]o demonstrate prejudice, appellant must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different.
Herein, Appellant argues counsel was ineffective for failing to advise him to take plea offers he alleges the Commonwealth offered. Appellant's Brief at 18-21. Specifically, Appellant asserts the PCRA court erred in believing trial counsel that there were no offers of less than 20 to 40 years imprisonment made by the Commonwealth. Id. at 18. After careful review, we conclude Appellant's claim is meritless. See Michaud , supra. The PCRA court's Rule 1925(a) opinion thoroughly and accurately sets forth the reasons for its denial of Appellant's claim. A review of the August 7, 2014, PCRA hearing transcript reveals the PCRA court's credibility conclusions are supported by the record. See Medina , supra. Accordingly, we adopt the opinion of the Honorable Randal B. Todd as our own for purposes of our review. See PCRA Court Opinion, 1/12/15, at 5-8.Id. at 7-8.
Garner has failed to meet his burden to overcome AEDPA's deferential review. He has not demonstrated that the Superior Court's decision was contrary to, or involved an unreasonable application of, established Federal law, as determined by the Supreme Court of the United States, or is there anything in the record to suggest the Superior Court's decision was based on unreasonable determination of the facts in light of the evidence presented in the State court proceeding. For these reasons, as with sub-issue one, this sub-issue also should be denied on the merits.
2. Claim Two - After Discovered Evidence
Garner raised this same claim to the state court in a post sentence motion and on direct appeal. The Superior Court remanded for an evidentiary hearing. The after discovered evidence is an affidavit signed by Marvin Harpool in which he recants his trial testimony. An evidentiary hearing was held before the PCRA court on March 9, 2012. The PCRA court rejected the claim finding that Harpool credibly testified that he submitted the recantation affidavit under duress. There was no further litigation of this claim after the hearing. Because the Superior Court has not had the opportunity to consider the claim on its merits, the claim is technically exhausted (because there are no longer any state remedies available to Garner) but procedurally defaulted (because of the state procedural one-year statute of limitations bar).
Although not specifically stated, it appears that Garner is arguing that his counsel was ineffective for failing to file a direct appeal on this issue. Respondents contend that Garner has not demonstrated cause and actual prejudice to overcome the procedural default. Thus, the Court must determine whether the default of the claim falls within the exception enunciated by the Supreme Court of the United States in Martinez v. Ryan, 566 U.S. 1 (2012).
Marvin Harpool testified at the PCRA hearing that he had been in protective custody in prison for six years. The PCRA court found that Harpool credibly testified that he gave the written recantation of his testimony out of fear that he would be harmed or perhaps even killed by Garner or associates of Garner or "to get [Garner] off my back." The PCRA court concluded that Harpool testified credibly that his recantation testimony was made under duress. Order of Court, 3/09/2012 (ECF No. 15-5 at 24-25).
A finding of fact made by a state court always has been afforded considerable deference in a federal habeas proceeding. AEDPA continued that deference and mandates that "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Petitioner has the "burden of rebutting the presumption of correctness by clear and convincing evidence." Id.
This Court is bound by the credibility determinations and findings of fact that the PCRA court made unless Garner identifies by "clear and convincing evidence" that the PCRA court was wrong. He has not met his burden. Garner argues that Harpool "wasn't honest in the statement," Pet. at 7, but this is not sufficient to satisfy the burden imposed upon him by § 2254(e)(1).
After a thorough review of the state court record on this issue, the Court finds that Garner's claim is not substantial enough to warrant falling within the Martinez exception because Garner has not shown by "clear and convincing evidence" that the PCRA court's decision was wrong. Yet even if the procedural default could be excused under Martinez, the Court finds that Garner cannot establish that his trial counsel was ineffective under either prong of Strickland as the claim is without merit. Thus, it is recommended that Claim 2 be denied.
3. Claim Three - Sufficiency of the evidence
This claim was presented and rejected on the merits on direct appeal by the Superior Court. Because it was adjudicated on the merits in state court, this Court's review is governed by AEDPA's standard of review. In order to be entitled to relief, Garner must show that the Pennsylvania Superior Court's decision rejecting this claim was contrary to, or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.
The Due Process Clause of the Fourteenth Amendment requires that a criminal conviction be supported by proof beyond a reasonable doubt on every fact necessary to constitute the offense charged. In re Winship, 397 U.S. 358, 363-64 (1970). The "clearly established Federal law," 28 U.S.C. § 2254(d)(1), in which to analyze a sufficiency of the evidence of the claim is set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support a conviction if, "after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319.
The Superior Court reviewed the evidence of record and after summarizing the law with respect to a challenge to the sufficiency of the evidence and to third degree murder and criminal conspiracy determined that the evidence presented at trial was sufficient for a jury to find Garner guilty of third degree murder and conspiracy to commit murder. The appellate court found that the testimony of Harpool, a co-conspirator, was sufficient to establish that Garner was guilty of third degree murder and conspiracy to commit murder:
In analyzing this claim, the Superior Court quoted from its decision in Commonwealth v. Evans, 901 A.2d 528, 532-33 (Pa. Super. Ct. 2006), which enunciated the same standard as that used in Jackson v. Virginia: "Our well-settled standard of review when evaluating a challenge to the sufficiency of the evidence mandates that we assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner. We must determine whether there is sufficient evidence to enable the fact finder to have found every element of the crime beyond a reasonable doubt. . . ." Superior Court Memorandum, 10/25/2011, at 4 (ECF No. 15-5 at 4).
Harpool's testimony established that [Garner] was an active participant in the murder of the victim. . . . [Garner] participated in a vicious, planned attack. [Garner] heard Anthony say that they should get money from the victim "any way possible," and chose to engage in a brutal three-on-one attack on the defenseless victim. [Garner] tripped, kicked, and punched the victim, allowing Anthony the opportunity to stab the victim. The victim's death was a natural, probable consequence of this attack. [Garner] fled the scene following the stabbing, indicating his awareness of Anthony stabbing the victim and his decision not to do anything to aid the defenseless victim.Superior Court Memorandum, October 25, 2011 (ECF No. 15-5 at 10). The Superior Court concluded that the evidence was sufficient to prove Garner guilty of third degree murder based on conspiratorial liability and that he participated in a conspiracy to murder the victim. Id.
Garner has failed to meet his burden to overcome AEDPA's deferential review. Garner has not demonstrated that the Superior Court's decision was contrary to, or involved an unreasonable application of, established Federal law, as determined by the Supreme Court of the United States, or is there anything in the record to suggest the Superior Court's decision was based on unreasonable determination of the facts in light of the evidence presented in the State court proceeding. For these reasons, it is recommended that this claim be denied.
4. Claim Four - Due Process Violation - Brady violation
As with Claim Three, this claim was presented and rejected on the merits on direct appeal by the Superior Court. Thus, the claim is governed by AEDPA's standard of review.
This claim stems from Garner's allegations that the police knew the name of an individual who informed the police that Marvin Harpool was one of the actors involved in the victim's death. Garner and his counsel did not learn the name of this individual, who had died, until his third trial, which ended in a mistrial. Garner was aware there had been an anonymous caller, bud did not know the identity of the caller.
The "clearly established Federal law," 28 U.S.C. § 2254(d)(1), in which to analyze this claim is set forth in Brady v. Maryland, 373 U.S. 83 (1963). The basic rule of Brady is that the Government has a constitutional obligation to disclose favorable evidence to a criminal defendant prior to trial where the evidence is material to the defendant's guilt or punishment. "[T]he evidence must be favorable to the accused, either because it is exculpatory, or because it is impeaching." Dennis v. Sec'y, Pa. Dep't of Corr., 834 F.3d 263 (3d Cir. 2016) (en banc); see also Brady v. Maryland, 373 U.S. 83 (1963).
On direct appeal, the Superior Court reviewed Garner's claim and after summarizing the "well-settled law regarding alleged Brady violations," found that Garner had failed to meet his burden of proof that the Commonwealth had violated Brady:
In the instant matter, [Garner] failed to meet his burden of proof that the Commonwealth violated Brady. [Garner] is unable to demonstrate that the Commonwealth's non-disclosure of the individual's name prior to his death constituted a suppression of exculpatory information. Williams testified that she did not interview him and did not know any specific facts that he could reveal
about the murder with respect to [Garner]. [Garner] only speculates that this witness might have provided information to [Garner] that "could have been used to exonerate [Garner] and or discredit the questionable testimony presented by Harpool." Brief for Appellant, p. 28. This speculation is simply insufficient to establish that the witness possessed exculpatory information.Superior Court Memorandum, 10/25/2011, at 20 (internal citations omitted) (ECF No. 15-5 at 20).
Similarly, Garner now has failed to meet his burden to overcome AEDPA's deferential review. He has not demonstrated that the Superior Court's decision was contrary to, or involved an unreasonable application of, established Federal law, as determined by the Supreme Court of the United States, or is there anything in the record to suggest the Superior Court's decision was based on unreasonable determination of the facts in light of the evidence presented in the State court proceeding. For these reasons, it is recommended that this claim be denied.
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 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." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, the Court concludes that jurists of reason would not find it debatable that each of Garner's claims should be dismissed. Accordingly, it is recommended that a certificate of appealability should be denied.
III. CONCLUSION
For all of the above reasons, it is respectfully recommended that the 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, Petitioner, because he is a non-electronically registered party, may file written objections to this Report and Recommendation by June 22, 2020, and Respondents, because they are electronically registered parties may file written objections by June 18, 2020. 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).
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge Dated: June 3, 2020 cc: Kristopher Eugene Garner
JH0721
SCI Frackville
1111 Altamont Blvd
Frackville, PA 17931
(via U.S. First Class Mail)
Alicia H. Searfoss
Office of the District Attorney of Allegheny County
(via ECF electronic notification)