Opinion
Civil Action 21-5176
04-01-2024
DWAYNE HILL, Petitioner, v. MORRIS HOUSER, et al., Respondents.
REPORT AND RECOMMENDATION
PAMELA A. CARLOS U.S. MAGISTRATE JUDGE
This matter is before the court on the motion of attorney James F. Brose, Esquire (“Attorney Brose” or “the Movant”) to withdraw from representing Petitioner Dwayne Hill (“Mr. Hill”). See Doc. No. 24. The Movant explains that “[a]fter a careful and conscientious review of the entire State court record including trial transcripts, Court orders and opinions, appellate briefs, and PCRA petitions,” he does not believe any meritorious claims exist to support the granting of a Writ of Habeas Corpus. See id. at 1, ¶ 3. Attached to the motion is an accompanying brief filed pursuant to Third Circuit Court of Appeals Local Rule 109.2 and Anders v. California, 386 U.S. 738 (1967), together with select portions of the state court proceedings, and a letter from Attorney Brose to Mr. Hill. See Doc. No. 24-1.
Mr. Hill thereafter filed several letters with the Court explaining his view of the case and expressing his disagreement with Attorney Brose's assessment of the petition. See e.g., Doc. Nos. 27 and 29. Mr. Hill also filed a Motion to Amend his habeas petition citing “newly discovered evidence,” together with a request to appoint new counsel based on his belief that current counsel is not zealously representing his interests. See Doc. No. 28. Mr. Hill further filed with the Court the allegedly new evidence in support of his claims, together with a letter explaining the relevance of the same. See Doc. 37. At the Court's direction, Attorney Brose met with Mr. Hill by phone to discuss this evidence and its alleged significance. See Doc. Nos. 40 and 47. Despite this, Attorney Brose repeated his position that the claims are without merit and do not entitle Mr. Hill to relief. See Doc. No. 47.
Having carefully reviewed the applicable filings and having conducted a full and complete examination of the proceedings below, I respectfully recommend that the motion to withdraw be granted, Petitioner's motion to amend be denied, and this case be dismissed with prejudice.
I. FACTUAL AND PROCEDURAL HISTORY
In May of 2012, Mr. Hill stood trial on charges of Rape by Forcible Compulsion and Involuntary Deviate Sexual Intercourse by Forcible Compulsion, among other related offenses, in the Court of Common Pleas of Philadelphia. See Com. v. Hill, No. 2354 EDA 2013, 2014 WL 10752289, at *1 (Pa. Super. Ct. Dec. 2, 2014) (hereafter noted as “Doc. No. 19-14”). Judge King of the Superior Court of Pennsylvania described the relevant facts as follows:
All footnotes provided within Judge King's summary of the pertinent facts and procedural history did not appear in the Superior Court's opinion and were added herein to provide further context.
On June 11, 2008, [Mr. Hill] dragged 16-year-old victim G.H. into an alleyway at knifepoint and raped her. He forced her to perform oral sex on him and forced his penis into her vagina twice. [Mr. Hill] then took her cell phone, told her to count to 100, and left her crying in the alley. G.H. ran to a nearby friend's house, where she asked an adult for help. They flagged down a police officer, who contacted G.H's parents. G.H. and her mother went to St. Christopher's Hospital for Children, where medical personnel examined G.H. and performed a rape kit. Detectives went to the alleyway where the rape occurred and they recovered a Dutch Master's cigar wrapped in plastic. G.H. was interviewed at the Special Victims Unit, where she described her attacker. Samples from the rape kit were submitted to the Combined DNA Index System (CODIS), where police discovered a “hit.” DNA from G.H.'s rape kit matched [Mr. Hill]'s DNA. Police then showed G.H. a photo array and she identified [Mr. Hill] as her rapist.
Police arrested [Mr. Hill], who lived in the area of the attack, on August 24, 2008. Police obtained another DNA sample from him and confirmed the match between
[Mr. Hill]'s DNA and the sperm DNA found in G.H.'s vagina. After [Mr. Hill] was placed under arrest, he waived his right to remain silent and agreed to speak with detectives. He informed the officers that he did not know how to read but that he understood his rights and then signed the waiver form. He told detectives that he did not know G.H., denied raping her, and maintained that he was a virgin. When confronted with the fact that his sperm was found in G.H.'s vagina, [Mr. Hill] changed his story and said that he paid her $10 for sex. He looked at a photograph of the cigar found at the crime scene and admitted that was the same type he was smoking that night. He signed a photograph of the victim confirming he had sex with her, and also signed photographs of the alleyway showing where he raped her. At the conclusion of his interview, he told detectives, “I would like to apologize. I did not mean her any harm. I'd just like to say I'm sorry and I was not trying to be a criminal. Also take all of that out that I said at first. I was just messing with you.” Since [Mr. Hill] claimed he had reading issues, detectives read the statement back to him and he signed each page of the statement. Prior to trial, the Honorable Lisa Rau denied [Mr. Hill]'s motion to suppress this statement.
On May 25, 201[2], the jury found [Mr. Hill] guilty of Rape. The jury found him not guilty of Involuntary Deviate Sexual Intercourse (IDSI). On July 12, 2013, the Honorable William J. Mazzola sentenced him to 8 to 16 years' state incarceration. [Mr. Hill] filed a direct appeal; the Superior Court affirmed on December 2, 2014.The Pennsylvania Supreme Court denied allocator on May 21, 2015.
On December 18, 2015, [Mr. Hill] filed a timely first PCRA petition. On April 29, 2016, Richard Blok, Esquire was appointed as counsel. On August 8, 2016, Mr. Blok filed an amended petition. The Commonwealth filed a Motion to Dismiss on
November 8, 2016. On May [1]5, 2017, Mr. Blok filed a motion to withdraw as counsel as he was moving to another state. On June 8, 2017, Peter Levin, Esquire was appointed to replace Mr. Blok. On November 20, 2017, [Mr. Hill] filed a motion to proceed pro se. On December 5, 2017, [Mr. Hill] filed a pro se amended PCRA petition. On February 8, 2018, Mr. Levin filed an amended petition. On May 1, 2018, the Commonwealth filed a Motion to Dismiss in response to the issues raised in Mr. Levin's amended petition. On July 9, 2018, Judge Mazzola conducted a Grazier hearing. [Mr. Hill] was not permitted to proceed pro se.
On January 3, 2019, this matter was reassigned to this [c]ourt from Judge Mazzola's inventory. On March 28, 2019, the Commonwealth filed another Motion to Dismiss. That same day, this [c]ourt sent [Mr. Hill] a Notice of Intent to Dismiss Pursuant to Rule 907. [Mr. Hill] responded to the 907 Notice on April 8, 2019 and raised new claims regarding PCRA counsel's alleged ineffectiveness. On April 25, 2019, this [c]ourt dismissed [Mr. Hill]'s petition based upon lack of merit. On May [1]7, 2019, [Mr. Hill timely] filed a Notice of Appeal.See Commonwealth v. Hill, 242 A.3d 438 (Pa. Super. Ct. 2020) (hereafter referred to as “Doc. No. 19-24”).
Mr. Hill's direct appeal, which was filed on February 5, 2014, alleged as follows: (1) “the lower court erred in denying [his] motion to suppress his statement given to police inasmuch as the Commonwealth failed to meet its burden of proof that [Mr. Hill] . . . made a knowing, voluntary and intelligent waiver of his Miranda rights;” and (2) “the evidence admitted at trial, including the DNA, statement, and identification of [Mr. Hill] by the complainant was insufficient to prove that [Mr. Hill] was the perpetrator of the crime.” See Doc. No. 19-12 at 2.
As relevant to the instant habeas petition, Judge Mazzola rejected Mr. Hill's challenges on direct appeal, explaining that he “failed to produce any evidence, or even allege any facts” that would support the contention that his statement to the arresting officer was anything but knowing, voluntary and intelligent. See Doc. No. 19-13 at 18. The Judge further expressed doubt about Mr. Hill's claim regarding his ability to read and write. See id. (“Even if he was illiterate, which he also alleged without providing any factual support, and which appeared to be unlikely in view of his actions . . .”). The Superior Court also expressed doubts about Mr. Hill's alleged illiteracy. See Doc. No. 19-14 at 15 (“Despite [Mr. Hill's] claimed illiteracy, he properly initialed and signed his statement, in addition to handwriting an addendum. In examining the totality of the circumstances, we cannot agree that [Mr. Hill's] degree of literacy in any way impeded his ability to voluntarily, knowingly, and intelligently make the statement to the police.”)
See Com. v. Hill, 116 A.3d 603 (Pa. 2015)
Mr. Hill petitioned pro se for relief under Pennsylvania's Post Conviction Relief Act (“PCRA”) arguing that trial counsel was ineffective due to his failure to move: (1) for a competency determination; (2) to suppress Mr. Hill's statement to the police; and (3) to suppress the DNA evidence against Mr. Hill. See Doc. No. 19-15.
The counseled PCRA petition explained that after reviewing the issues raised by Mr. Hill in his pro se filing, Mr. Blok “determined that those issues are without merit.” See Doc. No. 19-16 at 3, ¶ 7. However, after speaking with Mr. Hill, Mr. Blok identified one potentially meritorious claim, alleging now that trial counsel was ineffective due to his failure to bring a known alibi witness to trial to testify on Mr. Hill's behalf. See id. at 3, ¶¶ 8-10.
The amended PCRA petition filed by Mr. Levin argued three grounds for relief: (1) that trial counsel was ineffective for failing to request a competency hearing; (2) Mr. Hill's sentence under the Sex Offender Registration and Notification Act (“SORNA”) may be illegal; and (3) Mr. Hill received an illegal mandatory minimum sentence. See Doc. No. 19-19 at 4, ¶ 30. However, Mr. Levin advised the PCRA court that he believed the third issue concerning Mr. Hill's mandatory minimum sentence was meritless. See id. at 6, 12.
In an opinion dated November 15, 2019, Judge Brinkley explained that dismissal was appropriate because “a review of the record shows that at least three mental health evaluations were performed on [Mr. Hill] between 2008 and 2012,” and all found him competent. See Doc. No. 19-22 at 7-8. According to Judge Brinkley, Mr. Hill's alleged illiteracy, low IQ, and mental illness were all known at the time of his evaluations and did not affect the evaluator's conclusions, and Mr. Hill did not provide any further facts demonstrating that he was no longer competent to stand trial. Id. at 8.
On November 19, 2020, the Pennsylvania Superior Court denied Mr. Hill's PCRA appeal, and on June 7, 2021, the Pennsylvania Supreme Court denied Mr. Hill's allowance of appeal. See Doc. No. 19-24; Commonwealth v. Hill, 256 A.3d 422 (Pa. 2021)
On November 19, 2021, Mr. Hill filed the instant habeas petition raising two claims alleging he was denied effective assistance of counsel, first “when trial counsel failed to challenge the identification and the DNA evidence was insufficient [to] prove petitioner's guilt[], and conviction;” and second, “when trial counsel failed [to] request a hearing to determine petitioner's incompetency to stand trial.” See Doc. No. 2 at 18-23.
On June 15, 2022, Respondents filed a motion to appoint counsel for Mr. Hill, noting that his habeas petition had been prepared for and signed by a “family friend” given Petitioner's alleged inability to read and write, together with other mental health challenges. See Doc. No. 11 at 1-2, ¶¶ 3-4. Respondents' motion was granted, and Attorney Brose was appointed as counsel for Mr. Hill. See Doc. No. 16.
The Court initially appointed the Federal Community Defender Office for the Eastern District of Pennsylvania as Mr. Hill's counsel. See Doc. No. 13. However, after being notified of a conflict of interest, the Court appointed CJA Panel Attorney James Brose. See Doc. No. 16.
After requesting and receiving an extension of time to file an amended petition, see Doc. Nos. 22 and 23, Attorney Brose filed the instant Motion to Withdraw as Counsel. See Doc. No. 24. Attorney Brose explained that after reviewing the record in the state court proceedings, Mr. Hill's alleged claims regarding the effectiveness of his counsel did not violate federal constitutional law, and no other meritorious claims exist to support his petition. See id. at 1, ¶ 3.
As it concerns Mr. Hill's first claim regarding his counsel's alleged failure to challenge the identification and DNA evidence, Attorney Brose explained that “trial counsel clearly brought both of these facts to light before the jury.” Doc. No. 24-1 at 14. Specifically, trial counsel “crossexamined the Commonwealth's DNA expert as to irregularities in the findings,” and “[h]e presented the defendant's own DNA expert who testified that the DNA analyzed may have been contaminated and that the Commonwealth's expert did not properly account for this or make a valid finding because of it.” Id. Moreover, trial counsel “also cross-examined the police as to the victim's initial misidentification of the perpetrator, and he argued the lack of certainty in the identification of Mr. Hill by the victim and the DNA results created a reasonable doubt of guilt.” Id. As such, Attorney Brose does not believe Mr. Hill can show any deficiency in his counsel's performance as required under Strickland v. Washington, 466 U.S. 668 (1984). Id. at 15.
Attorney Brose did not cite to specific portions of the record to support the above-described assertions. However, the undersigned has conducted an independent review of the record and is satisfied that Attorney Brose's analysis is accurate. See Doc. No. 19-5 at 21-26 (trial counsel's cross-examination of the prosecution's expert witness concerning the DNA evidence); Doc. No. 19-6 at 14-20 (trial counsel's direct examination of the defense's own expert witness rebutting the DNA evidence); Doc. No. 19-6 at 8-13 (trial counsel's cross-examination of the police officer regarding the victim's initial misidentification); Doc. No. 19-8 at 3-5 (trial counsel's closing arguments to the jury concerning the DNA evidence).
Attorney Brose also found no merit to Mr. Hill's second claim regarding his counsel's alleged failure to request a competency hearing. Id. at 15-20. Although Mr. Hill claimed that he was “unable to really understand the nature of the proceeding against him or to participate and assist in his defense,” Attorney Brose observed that Mr. Hill had been ordered to undertake several competency examinations and each one found him competent to stand trial. See id. at 16. Furthermore, Attorney Brose explained that there is no evidence to show that trial counsel had any concerns about Mr. Hill's ability to participate in the case. Indeed, Attorney Brose cited to, and recounted in full, trial counsel's colloquy of Mr. Hill during the trial about his right to testify:
Mr. Konchak [Trial Counsel]: Mr. Hill, we've discussed the question of whether or not you were going to testify in this case previously and again this morning, this afternoon in the cell room, in the consultation room, do you remember that?
The Defendant [Mr. Hill]: Yes, sir.
Mr. Konchak: Okay. It's your absolute right to testify if you choose to but nobody can force you to testify if you don't want to. Do you understand that?
The Defendant: Yes, sir.
Mr. Konchak: Do you understand - and after consulting with me, have you made a decision not to testify in the case?
The Defendant: Yes, sir.
Mr. Konchak: And you understand me when I discussed this case with you over the last couple years about whether you were going to testify or whether we were going to present evidence?
The Defendant: Yes, sir.
Mr. Konchak: Okay. Did you understand me this morning when we discussed -this afternoon discussing you testifying?
The Defendant: Yes, sir.
Mr. Konchak: Okay Judge, I think that's sufficient.
The Court: So do I. Do you wish to add anything to that?
Ms. Thurston [Prosecutor]: No, Your Honor.See id. at 17-18 (citing Doc. No. 19-6 at 23). According to Attorney Brose, these clear and responsive answers gave “no hint of concern” about Mr. Hill's ability to understand the questions or to participate in his defense more broadly. See id. at 16. Finally, Attorney Brose noted that prior to trial, Mr. Hill attempted to suppress the statement he had previously given to police on the grounds that he did not have the mental ability to understand or waive his rights. See id. at 18. Although acknowledging that this is not directly relevant to his present claim, Attorney Brose noted that the trial court denied his motion and found “that Mr. Hill fully acknowledged and understood his rights ‘by initialing parts and signing the complete statement[] of his rights and the facts he disclosed even, at one point, despite having claimed to be unable to read, actually writing in and initialing a clarification on the type[d] statement.'” Id. (citing Doc. No. 19-13 at 6) (cleaned up). According to Attorney Brose, these facts undercut Mr. Hill's claim that he cannot read and/or write. Id.
Several weeks later, on March 14, 2023, the Philadelphia District Attorney's Office filed its Response in opposition to Mr. Hill's petition, which largely cited to and repeated the arguments raised by Attorney Brose in his Motion to Withdraw as Counsel. See Doc. No. 25.
In the intervening months, Mr. Hill submitted numerous letters to the Court, including several motions in further support of his petition. For example, in a letter dated April 14, 2023, Mr. Hill agreed that his counsel should withdraw, but disputed Attorney Brose's cited reasons. See Doc. No. 29. He explained that a “pre-trial or post-trial mental health evaluation was ordered, but a competency hearing was not.” Id. at 2. On May 15, 2023, Mr. Hill then filed a Motion to Amend his habeas petition citing “newly discovered evidence,” together with a request to appoint new counsel based on his belief that Attorney Brose was not zealously representing his interests. See Doc. No. 28. In separate letters to the Court, Mr. Hill explained that Attorney Brose “did not properly do his research because even thought [sic] there was three mental health evaluations ordered . . . none of them was [sic] completed according to the docket.” See Doc. No. 30 at 2; see also Doc. No. 37 at 9, ¶ 9) (noting the docket of the Court of Common Pleas indicated that mental health evaluations had been ordered, but not yet completed). He also alleged, among other things, that one of the police officers who took his statement had been indicted for police misconduct, and unduly coerced him into speaking about the alleged incident. See Doc. No. 37 at 24, ¶ 32.
Mr. Hill's letter dated September 12, 2023, see Doc. No. 37, set forth in great detail what he believes constituted “newly discovered evidence” that supports his Motion to Amend his habeas petition, and that rebuts Attorney Brose's assessment of his claims.
Given these latest contentions, the Court directed Attorney Brose to contact Mr. Hill to discuss, review, and acquire any newly discovered evidence, and to file a letter on the docket explaining whether said evidence would support an existing or new claim. See Doc. No. 40. Attorney Brose complied, and filed a letter dated November 21, 2023, explaining as follows:
Mr. Hill did not present any new information or evidence in his petition or in our discussion. However, Mr. Hill reiterated his claim that he did not ever receive an evaluation to determine his competency before trial, and he pointed to his trial court docket to show that a mental health evaluation was ordered but never completed before trial.See Doc. No. 47 at 2, ¶ 3. Attorney Brose further explained that in reviewing the docket, “it appears Petitioner is correct when he claims that he never received a mental health or competency examination before he went to trial in this case,” and that in preparing his Anders brief, Attorney Brose relied “on the PCRA Court's opinion that indicated Mr. Hill was evaluated three times between 2008 and 2012.” See id. at 2-3, ¶¶ 5, 7. Notwithstanding this, Attorney Brose repeated his belief that nothing else in the record supports Mr. Hill's claim that his counsel should have requested a competency hearing before trial. See id. a 4, ¶ 13. However, Attorney Brose's letter did not address Mr. Hill's claims regarding the police officer's alleged misconduct.
Attorney Brose's initial letter filings erroneously omitted a page. See Doc. Nos. 41 and 46. The corrected and complete filing is docketed at Doc. No. 47.
To resolve the ongoing confusion, the Court directed the Philadelphia District Attorney's Office to file a memorandum of law responding to Mr. Hill's allegations concerning his three court-ordered mental health evaluations, and his allegations concerning the officer's alleged misconduct. See Doc. No. 50. On February 23, 2024, the District Attorney complied, and confirmed that all three mental health evaluations had been completed, as discussed by the PCRA court in its opinion. See Doc. No. 53 at 2-3. The District Attorney further confirmed that there was no merit to Mr. Hill's claims concerning the officer's alleged misconduct. See id. at 3-4. On February 28, 2024, Attorney Brose filed a supplemental letter stating, “[i]n light of the District Attorney's submission of the ‘missing' July 12, 2010 mental health evaluation of Petitioner, counsel for Petitioner believes there is no new information to support the Petitioner's pro se Motion to Amend filed May 15, 2023.” See Doc. No. 57.
The District Attorney separately filed each mental health evaluation report under seal with the Court. See Doc. No. 54.
The matter is now fully briefed and ripe for disposition.
II. LEGAL STANDARD
Under Anders v. California, 386 U.S. 738 (1967), court appointed counsel may move to withdraw from representing an indigent criminal defendant on appeal if there are no non-frivolous issues to be raised. See United States v. Marvin, 211 F.3d 778, 779 (3d Cir. 2000). Anders instructs that “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, [counsel] should so advise the court and request permission to withdraw.” Anders, 386 U.S. at 744. In this regard, counsel's request must also “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. A copy of the brief should also be provided to the indigent, who may respond, and the court must independently examine the proceedings to decide whether the case is wholly frivolous. Id.
For habeas matters, where the right to counsel is not guaranteed, the procedures set forth in Anders are not required. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Jackson v. United States, 190 Fed.Appx. 207, 208 (3d Cir. 2006) (“Anders only applies to direct appeals, and does not apply to collateral proceedings such as this habeas appeal.”). Nevertheless, because Anders procedures afford heightened protections, “it is not erroneous to apply them in the habeas context.” Simon v. Gov't of the Virgin Islands, 679 F.3d 109, 115 (3d Cir. 2012), as amended (May 16, 2012). “Indeed, Anders procedures afford the petitioner a more careful review of the merits of an appeal than might occur without an attorney or with a less than conscientious attorney.” Id. In this regard, an assessment of counsel's motion to withdraw under Anders necessarily requires an assessment of the merits underlying the habeas petition.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs review of state court judgments in federal habeas corpus petitions. See Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). Federal habeas review is limited in nature and may only be granted if a petitioner makes one of the following discrete required showings: (1) the state court judgment against them “resulted in a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) the state court judgment against them “involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States.” Id. at 196 (citing Williams v. Taylor, 529 U.S. 362 (2000)). A petitioner may also be entitled to habeas review if the state court judgment “resulted in a decision that was based on a[n] unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. (citing 28 U.S.C. § 2254(d)(1)-(2)). A petitioner need only establish one of these inquiries, as they are distinct and are accorded independent meaning. Id. at 197 (citing Williams, 529 U.S. at 404-06).
State court determinations are presumed to be correct, See 28 U.S.C. § 2254(e)(1), and given great deference. See Rice v. Collins, 546 U.S. 333, 344 (2006) (citing 28 U.S.C. § 2254(d)(2)). In demonstrating a state court result that is contrary to clearly established federal law, “it is not sufficient for the petitioner to show merely . . . his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate . . . Supreme Court precedent requires the contrary outcome,” see Rosen v. Superintendent Mahanoy SCI, 972 F.3d 245, 252 (3d Cir. 2020) (citation omitted) (en banc) (emphasis in original)), “beyond any possibility for fairminded disagreement.” Cash v. Overmeyer, No. 17-47, 2020 WL 475747, at *5 (W.D. Pa. Jan. 29, 2020) (citing Orie v. Sec. Pennsylvania Dept. of Corrections, 940 F.3d 845, 850 (3d Cir. 2019)). “In making this determination, mere disagreement with the state court's conclusions is not enough to warrant habeas relief.” Rosen, 972 F.3d at 252 (citing Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999)). This standard demands a “‘substantially higher threshold' than a federal court's independent judgment that the state court's application of Supreme Court precedent was incorrect”. Id. at 252 (citing Renico v. Lett, 559 U.S. 766, 773 (2010)). The state court's application of federal law “must be objectively unreasonable, not merely incorrect.” Id. at 252 (citing Williams, 529 U.S. at 410). This burden means Mr. Hill “must point to specific caselaw decided by the United States Supreme Court and show how the state court decision was contrary to or an unreasonable application of such United States Supreme Court decisions.” Cash, 2020 WL 475747, at *5 (citing Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000)).
III. ANALYSIS
A. Petitioner's claims concerning his counsel's ineffectiveness are without merit.
Mr. Hill's habeas petition alleges he was denied effective assistance of counsel in two ways-first “when trial counsel failed to challenge the identification and the DNA evidence was insufficient [to] prove petitioner's guilt[], and conviction;” and second, “when trial counsel failed [to] request a hearing to determine petitioner's incompetency to stand trial.” See Doc. No. 2 at 1823. Having reviewed Attorney Brose's motion materials and Mr. Hill's letters opposing the same, and having independently assessed the state court proceedings, I find that neither claim has merit.
There are two components to an ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the defendant must show that counsel's performance was deficient, which “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. Next, “the defendant must show that the deficient performance prejudiced the defense”-i.e., counsel's errors were so serious as to deprive the defendant of a fair trial. Id.
Mr. Hill cannot make the threshold showing for either claim. With respect to his first claim, the trial court explained that although there were several issues with the Commonwealth's identification and DNA evidence, “those potentially contradictory elements were fully disclosed and thoroughly argued to the jury by the defense at trial.” See Doc. No. 19-13 at 13 (emphasis added). Indeed, the record is replete with examples where trial counsel highlighted for the jury several inconsistencies with the Commonwealth's case as it concerned the victim's initial misidentification of the perpetrator, together with issues concerning the DNA evidence connecting Mr. Hill to the crime. See, e.g., Doc. No. 19-5 at 21-26 (trial counsel's cross-examination of the prosecution's expert witness concerning the DNA evidence); Doc. No. 19-6 at 14-20 (trial counsel's direct examination of the defense's own expert witness rebutting the DNA evidence); Doc. No. 19-6 at 8-13 (trial counsel's cross-examination of the police officer regarding the victim's initial misidentification); Doc. No. 19-18 at 3-5 (trial counsel's closing arguments to the jury concerning the DNA evidence). As noted by Attorney Brose, “Mr. Hill does not point to a specific mistake or error made by trial counsel in challenging the identification or DNA evidence,” see Doc. No. 24-1 at 15, and the Court has not found any upon its independent review of the record.
In the Court's review of the state court proceedings, it is not clear whether Mr. Hill properly exhausted his state court remedies with respect to his first claim, and this issue was not briefed by either party. However, under these circumstances, “the Court has determined that the instant petition should be denied on the merits regardless of the exhaustion issue.” George v. Vaughn, No. CIV. A. 98-3, 1998 WL 188847, at *2 (E.D. Pa. Apr. 21, 1998); see also 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).
The same is true for Mr. Hill's second claim. The Third Circuit has explained that the failure to request a competency hearing could amount to ineffective assistance of counsel “provided there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency, and there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been raised and fully considered.” Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001). Relevant factors to consider include, “evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 180 (1975).
In this regard, I must defer to the findings of the state court, and I agree with the Superior Court's decision. In dismissing his PCRA claim, the Pennsylvania Superior Court noted that Mr. Hill underwent three mental health evaluations between 2008 and 2012, including a 2010 pre-trial evaluation. See id. at 19-24 at 9. Given this, “the court had already determined [Mr. Hill] was capable of taking part in legal proceedings,” and therefore, “counsel cannot now be deemed ineffective for failing to request a competency hearing prior to trial.” Id. The Superior Court further found that Mr. Hill provided clear and responsive answers to trial counsel's colloquy about his right to testify in the matter, and there is no evidence that he ever complained to counsel about his ability to participate in his own defense, nor any evidence that his trial counsel had concerns about the same. See id. at 8-9.
In his motion materials, Attorney Brose further explained that the “record belies Mr. Hill's claim that he was not competent to stand trial.” See Doc. No. 24-1 at 16. In addition to the abovereferenced analysis, Attorney Brose explained that Mr. Hill moved to suppress the statement he had previously given to police on the grounds that he did not have the mental ability to understand or waive his rights. See Doc. No. 24-1 at 18. The trial court denied his motion, noting that Mr. Hill had handwritten a clarification on the statement despite claiming to be illiterate. See Doc. No. 1913 at 6. As noted by Attorney Brose, these facts undercut Mr. Hill's claim regarding his ability to participate his own defense. See Doc. No. 24-1 at 18.
In short, Mr. Hill's claims concerning his trial counsel's alleged ineffectiveness are without merit and should be dismissed with prejudice.
B. There are no other potentially meritorious claims in support of Mr. Hill's petition, and as such, Petitioner's Motion to Amend should be denied as futile.
Although Mr. Hill's existing claims are meritless, the Court is mindful of its obligation to independently assess the state court proceedings to confirm that no other potentially meritorious claims exist to support the petition, including those raised by Mr. Hill in his Motion to Amend. As set forth below, no such claims exist, and Mr. Hill's motion should be denied as futile.
Consistent with Anders, Attorney Brose sent Mr. Hill a letter on February 28, 2023 explaining that he did not believe he had a valid basis for his habeas petition, together with a copy of his brief in support of the motion to withdraw as counsel. See Doc. No. 24-1 at 42. As explained above, Mr. Hill thereafter had an opportunity to respond to Attorney Brose's analysis and did so by submitting numerous letters to the Court in further support of his petition. Mr. Hill's letter dated September 12, 2023 set forth in great detail what he believes constituted “newly discovered evidence” that supported his Motion to Amend his habeas petition, and that rebuts Attorney Brose's assessment of his claims. See Doc. No. 37.
Despite this, Mr. Hill failed to offer sufficient evidence to support any of his claims. He has not pointed to any intervening facts between his evaluations that would suggest his mental status had changed. As the Superior Court explained, “[a]ll of the Defendant's ‘facts' in support of his incompetency, such as illiteracy, low IQ, and mental illness, were known at the time of his competency evaluation prior to trial and did not affect the evaluator's conclusions.” See Doc. No. 19-22 at 7-8. Instead, Mr. Hill has repeatedly insisted that a “pre-trial or post-trial mental health evaluation was ordered, but a competency hearing was not.” See Doc. 29 at 2; see also Doc. No. 30 at 2 (where Mr. Hill argued that his attorney “did not properly do his research because even thought [sic] there was three mental health evaluations ordered . . . none of them was [sic] completed according to the docket.”); Doc. No. 37 at 9, ¶ 9 (noting the docket of the Court of Common Pleas indicated that mental health evaluations had been ordered, but not yet completed).
While this insistence has created confusion, it does not salvage his claims. At the Court's direction, Attorney Brose met with Mr. Hill by phone to discuss the “new” evidence and its alleged significance. See Doc. Nos. 40 and 47. Although Attorney Brose repeated his position that the claims are without merit, he conceded that he had not independently reviewed Mr. Hill's mental health evaluations and simply relied upon the PCRA court's opinion on this issue. See Doc. Nos. 40 and 47. Indeed, Attorney Brose failed to respond to all of Mr. Hill's latest claims, including allegations of police misconduct by one of the Commonwealth's key witnesses.
Out of an abundance of caution, the undersigned directed the Philadelphia District Attorney's Office to address these issues to ensure no other possible claims existed. See Doc. No. 50. The District Attorney complied and confirmed that all three mental health evaluations had been completed, and separately filed copies of the same under seal. See Doc. No. 53 at 2-3; Doc. No. 54. The District Attorney also confirmed that there was no merit to Mr. Hill's claims concerning the officer's alleged misconduct. See Doc. No. 53 at 3-4.
On February 28, 2024, Attorney Brose filed a supplemental letter stating, “[i]n light of the District Attorney's submission of the ‘missing' July 12, 2010 mental health evaluation of Petitioner, counsel for Petitioner believes there is no new information to support the Petitioner's pro se Motion to Amend filed May 15, 2023.” See Doc. No. 57.
With these remaining issues resolved, and having independently reviewed the state court proceedings, the Court is satisfied that no other possible claims exist, including those raised by Mr. Hill in his Motion to Amend. See Peterkin v. Horn, 988 F.Supp. 534, 541 (E.D. Pa. 1997) (recognizing that motions to amend under Rule 15(a) of the Federal Rules of Civil Procedure may be denied on the grounds that doing so would be futile).
IV. RECOMMENDATION
For the reasons explained above, I respectfully recommended that Attorney Brose's Motion to Withdraw as Counsel be granted, Mr. Hill's Motion to Amend be denied as futile, and Mr. Hill's habeas petition be denied without a hearing. In addition, I recommend no certificate of appealability issue because jurists of reason would not debate my recommendation to deny the petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The parties may file objections to this report and recommendation within fourteen days of service. See Local R. Civ. P. 72.1. An opposing party may respond fourteen days after being served the objections. See id. Failure to timely file objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007).
The Court also recommends that Mr. Hill's latest Motion to Request an Immediate Conference Hearing be denied. See Doc. No. 56. This is the third time Mr. Hill has filed this request, see also Doc. Nos. 43 and 51, and the Court has denied the motion each time, noting that it intended to address the merits of the matter via its Report and Recommendation. See Doc. Nos. 48 and 52.