Opinion
Civil Action 2:20-cv-1256
08-15-2023
JOHN L. RUSH, Petitioner, v. ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, et al., Respondents.
William S. Stickman, Judge
REPORT AND RECOMMENDATION
PATRICIA L. DODGE United States Magistrate Judge
I. RECOMMENDATION
Pending before the Court is the Petition for a Writ of Habeas Corpus (ECF 4) filed by state prisoner John L. Rush (“Petitioner”), who is proceeding pro se. It is respectfully recommended that the Court deny each of Petitioner's claims and deny a certificate of appealability.
Respondents attached as exhibits to the Answer (ECF 15) the relevant state-court filings and decisions. The documents will be cited to by their exhibit and Bates stamp number as follows: “Resp's Ex. at .” Respondents also submitted Petitioner's original state court record, which includes the transcripts from his February 2014 preliminary hearing, December 2014 jury trial and March 2015 sentencing.
A. Introduction
In December 2014, at the end of a trial held in the Court of Common Pleas of Allegheny County (“trial court”), a jury convicted Petitioner of four counts of aggravate assault (Deputy John Herb and Officers Philip Lerza, Daniel Nowak and John Baker) and one count each of disarming a law enforcement officer; torture of a police animal; cruelty to animals; resisting arrest; escape; possession of a weapon; and flight to avoid apprehension, trial or punishment. Attorney Aaron D. Sontz (“trial counsel”), was Petitioner's court-appointed trial attorney.
In the Petition for a Writ of Habeas Corpus (ECF 4) that Petitioner filed with this Court under 28 U.S.C. § 2254, he raises four grounds for relief. He asserts that trial counsel provided him with ineffective assistance in violation of his Sixth Amendment rights for:
Petitioner attached his medical records and forensic reports to the Petition. (See ECF at 12.) “A petitioner may not simply attach documents to [the] habeas petition and ask the district court to consider them. Rather, evidence relied upon by the petitioner that is not otherwise part of the state court record must be properly admitted into the record before the district court.” Wilcott v. Wilson, No. 1:07-cv-299, 2010 WL 582367, at *5 (W.D. Pa. Feb. 15, 2010). Petitioner requests an evidentiary hearing presumably to expand the record to include any document that was not previous introduced in his state court proceeding, as well as to introduce other essential evidence (such as testimony from his trial counsel) to attempt to develop support for his defaulted claims. As explained below, the Court is prohibited from having an evidentiary hearing in this case.
1. failing to file a motion to suppress Deputy Herb's alleged “suggestive and highly unreliable identification” (Claim 1);
2. failing to request that the trial court give a cautionary jury instruction on Deputy Herb's alleged unreliable identification testimony in accordance with Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954) (Claim 2);
3. failing to use Petitioner's medical records to impeach Officer Lerza's trial testimony and impeach Officer Baker's trial testimony by pointing to his alleged prior inconsistent statements (Claim 3); and,
4. failing to investigate and prepare for trial because counsel allegedly did not submit in writing proposed points for charge; investigate and determine which of the police officers' voices were on the 911 tapes; and authenticate a WPXI news video that was introduced at the trial that depicted the officers escorting Petitioner from the scene after his arrest.(ECF 4 at 4-9, 14; see also Memorandum of Law in Support of the Petition, ECF 1-2 at 42-68 and ECF 20.)
As discussed below, Petitioner acknowledges that he procedurally defaulted Claims 1, 3 and 4 because he did not exhaust his available state court remedies for those claims. He asserts that under the rule of Martinez v. Ryan, 566 U.S. 1 (2012) the Court should excuse the default of any procedurally defaulted claim and review it de novo.
B. Relevant Background
The trial court summarized the evidence introduced at Petitioner's trial as follows:
At trial, Allegheny County Sheriff's Office Deputy John Herb testified that on January 28, 2014, he was assigned to the fugitive squad, and was looking for [Petitioner] (TT 50-51.) [Petitioner] had a warrant out for his arrest for violating the conditions of his probation for a prior conviction. (TT 52.) Deputy Herb had received information that [Petitioner] was in the Lawrenceville section of Pittsburgh. Id. Once Deputy Herb reached Butler Street in Lawrenceville, he observed an individual who roughly matched the description of [Petitioner]. (TT 53.) That individual identified himself to the Deputy as “John” and, shortly thereafter, lunged at the Deputy's handgun. (TT 55.) A physical struggle ensued. The Deputy successfully pushed away “John” and once he had created some distance between them, the Deputy fired his taser which struck “John” but had no effect. (TT 57-58.) Immediately thereafter, “John” charged the Deputy and multiple punches were exchanged. (TT 59.) At the conclusion of the skirmish, “John” ran away from the Deputy. (TT 60.) The Deputy pursued, yelling at “John” that he was under arrest. Id. Deputy Herb eventually lost sight of “John.” Id. Deputy Herb radioed a report of the incident including the location. Approximately 40 minutes later, Deputy Herb, who was still searching for [Petitioner], became aware of a report of a suspicious male in a house at 3701 Butler Street. (TT 64.) Along with other members of law enforcement, Deputy Herb responded to that address. Deputy Herb secured the rear of the building and once [Petitioner] was captured, he identified [Petitioner] as the individual who earlier had identified himself as “John” and had assaulted him. (TT 66.)
Timothy McGill testified that he resided with his fiancee Stephanie Kerr at 3701 Butler Street, Apartment 2 on January 28, 2014. (TT 126.) McGill testified that [he] awoke to a loud knock on his door. (TT 132.) [Petitioner] asked McGill to let him into the apartment to use the bathroom. (TT 134.) McGill refused and a heated argument ensued, which ended when McGill slammed the door in [Petitioner's] face and locked him out. Id. McGill dressed and went down to the laundry room, where he had heard a noise, and upon further investigation discovered [Petitioner] inside, crouched down with his back against the wall. (TT 138.) McGill testified that he became infuriated at that point. (TT 139.) He said to [Petitioner] that he had no business being in the building. [Petitioner] jumped to his feet and McGill observed that [Petitioner] now had a knife in his left hand. (TT 140.) McGill retreated and saw [Petitioner] flee down the steps but not out the front door. Id. As the only other option from that location would be the basement, McGill assumed [Petitioner] had gone down the basement stairs. McGill exited the building, took a position from which he could watch the front door, called his
fiancee, and told her to lock the door and call the police. (TT 143.) Ten to fifteen minutes later, police officers arrived at the scene. (TT 145.)
Allegheny County Sheriff's Office Detective Barbara Sparrow testified that she was also a member of the fugitive task force searching for [Petitioner] on January 28, 2014. (TT 198.) She heard Deputy Herb on her radio say that [Petitioner] tried to take the Deputy's weapon. (TT 204.) She and her partner Detective Ninehouser went to Deputy Herb's location on Butler Street. (TT 205.) She switched channels on her radio and asked officers from the City of Pittsburgh to assist the Sherriff's Office in capturing [Petitioner]. (TT 206.) About 40 minutes later, she heard the call of a mysterious man in a building at 3701 Butler Street. (TT 207). Upon arrival at the scene, she saw copper taser wires against the side of the building leading up the front stairs. (TT 209.) One of the residents let Detective Sparrow into the building and informed her that a strange man had been in the laundry room but that she was not sure where he was at that time. (TT 211.) Subsequently, Deputy Sparrow heard other officers loudly announce four or five times from the top basement stairs that if anybody is down there they needed to come up. (TT 212, 214.) She testified that she went down to the basement with other officers once she realized that [Petitioner] was there. (TT 212.)
Officer Daniel Nowak of the Pittsburgh Police testified that he responded to a report of a suspicious male at 3701 Butler Street on January 28, 2014. (TT 310.) His initial report indicated that the individual involved had earlier attempted to fight with and disarm a sheriffs' deputy. Id. Upon arrival at [the] scene, several officers and sheriffs were searching for the basement based on reports that the suspect had gone into the basement. (TT 311.) A perimeter search of the exterior of the building revealed no footprints in the freshly fallen snow. (TT 312.) Officer Nowak rang a number of doorbells and was eventually let into the building by an unknown female. (TT 314.) Upon gaining entry, he went to the top of the basement steps and looked down. (TT 316.)
Officer Nowak yelled as loud as he could, three times, “Pittsburgh Police.” Give up. Surrender.” (TT 317-318.) He heard no response to any of the verbal commands. (TT 318.) Sergeant Henderson decided to send a canine officer alone with his dog down to the basement. (TT 319.) Officer Phillip Lerza arrived at the scene with Rocco, his police dog. (TT 321.) Officer Lerza also yelled down to the basement three times without any response. Id. Officer Lerza and Rocco proceeded to the basement, followed by Officer Nowak and Officer Robert Scott. (TT 322.) Officer Lerza requested that Officers Nowak and Scott remain on the stairs while Officer Lerza and Rocco searched the room. Id.
As officer Lerza and Rocco approached the rear part of the basement, [Petitioner] jumped out from behind the right-hand side of a doorway. (TT 328.) Officer Nowak observed [Petitioner] immediately start striking Rocco in a downward punching motion on his back. (TT 329.) [Petitioner] struck Rocco from behind with both fists. (TT 330.) As Officer Lerza moved toward [Petitioner] and Rocco, [Petitioner] disengaged with Rocco and struck Officer Lerza with both
hands, fists closed. (TT 331.) Officer Nowak yelled out and ran toward the melee. (TT 332.) [Petitioner] stopped fighting Officer Lerza and charged Officer Nowak. The two collided at high speed. (TT 333.) [Petitioner] swung wildly at Officer Nowak with both hands. (TT 334.) Officer Nowak blocked punches with his left hand and struck [Petitioner] with the flashlight he held in his right hand. Id. During the combat, Officer Nowak injured his finger and his ankle. (TT 335-336.) Officer Nowak gained leverage, took [Petitioner] to the ground and got on top of him. Id. [Petitioner] continued to fight, despite the Officer commanding him to stop resisting. (TT 336.) Officer Lerza grabbed [Petitioner's] arms but could not get handcuffs on [him] due to [his] resistance. (TT 336-337.)
Officer Baker arrived to assist Officers Lerza and Nowak, but the three of them were still unable to handcuff [Petitioner]. (TT 337.) A sheriff's deputy came down with his taser in dry stun mode. (TT 338.) The Deputy tased [Petitioner] in the leg to no effect. (TT 339.) Officer Nowak pulled [Petitioner's] shirt over his head and instructed the Deputy to tase [Petitioner] on the uncovered skin. Id. After three applications of the taser to [Petitioner's] bare skin [he], stopped fighting and the officers were able to handcuff [him]. (TT 340.) Once [Petitioner] was restrained, Officer Nowak observed Officer Lerza pat Rocco and discover that Rocco was covered in blood. (TT 341.) Officer Nowak saw a knife on the ground near [Petitioner] and observed Officer Lerza pick up Rocco and run upstairs. (TT 341342.)
Officer Philip Lerza testified that he arrived on scene with Rocco and was told the suspect may be in the basement of the building. (TT 394.) Officer Lerza yelled three separate voice commands from the top of the basement stairs. (TT 395.) The first command that the Officer gave was “Pittsburgh Police canine. Anyone in the building, sound off now, or I'll send in the dog.” Id. Next the Officer said, “Pittsburgh Police canine. Anyone in the building, sound off now, or I'll send in the dog and you will be bit.” Id. Lastly, he said, “Pittsburgh Police canine. Anyone in the building, sound off now, or I'll send in the dog.” Id. Officer Lerza did not hear any response. (TT 396.) The Officer released Rocco's leash and followed the dog into the basement. (TT 397.) Rocco cleared one area of the basement at a time, with Officer Lerza four to six feet behind. (TT 400.) When Rocco reached the back of the basement, he stopped abruptly by the back right pillar of an archway. (TT 401.) Rocco snapped his head to the right, which alerted Officer Lerza that somebody was in the area. (TT 402.) [Petitioner] then jumped out swinging his hands wildly at Rocco. (TT 403.) [Petitioner] struck Rocco on his back towards his rear. (TT 403-404.) Officer Lerza did not see a weapon on [Petitioner] at that time. (TT 404.)
As Officer Lerza approached, [Petitioner] came at him. Id. Officer Lerza blocked [Petitioner's] punches, grabbed [him] and pushed him away to the right, towards the wall. (TT 405.) Officer Nowak, Rocco, Officer Lerza and [Petitioner] converged in the middle of the room. (TT 406.) [Petitioner] hit Rocco in the face and snout. Id. Officer Nowak and [Petitioner] ended up on the ground, with Officer Nowak telling [Petitioner] “You're under arrest. Stop resisting.” (TT 406-407.)
Officer Lerza and other officers struggled to subdue [Petitioner]. (TT 408.) Eventually there were able to handcuff [him]. (TT 409.) Once [he] was restrained, Officer Lerza reached back to pet Rocco and his hand returned covered in blood. (TT 410.) He said, “I think my dog got stabbed,” and started to take Rocco out of the basement. Id. As he was walking upstairs, he heard someone say he had found a knife. Id. Officer Lerza rushed Rocco to a local veterinary hospital. While Rocco was being examined, Officer Lerza noticed pain in his shoulder. (TT 413.) Upon closer examination, he discovered that he had been stabbed through several layers of clothing. Id.
Pittsburgh Police Officer Robert Scott testified similarly regarding the moments before Rocco was sent to the basement. He heard the verbal commands without reply, saw Rocco and Officer Lerza head into the basement. (TT 463-464.) When He heard [Petitioner] actively fighting with Rocco and Officers [sic] Lerza, he ran down the stairs to assist but fell, injuring his knee. (TT 467.)
Pittsburgh Police Officer John Baker testified that he also heard the loud verbal prompts before Rocco was deployed, and went down the stairs when he heard one of the officers say “There he is.” (TT 482.) He first encountered the injured Officer Scott, who directed him to assist in the attempt to handcuff [Petitioner], who was fighting with the other Officers. (TT 482-483.) [Petitioner] was then still throwing punches with both hands. (TT 484.) One of the punches from [Petitioner's] left hand struck Officer Baker in the face. Officer Baker attempted to grab [Petitioner's] left hand and felt a sharp object which the Officer believed was a knife. Id. Eventually the Officers subdued [Petitioner] and recovered a knife in close proximity to where the struggled had occurred. (TT 487.) Officer Baker later observed that his coat was sliced on his right shoulder. (TT 490.)
Detective Thomas Ninehouser of the Allegheny County Sheriff's Office testified that on the day in question he was the partner of Detective Sparrow, and a member of the Fugitive Squad searching for [Petitioner.] (TT 511.) When he responded to 3710 Butler Street, he entered and proceeded to the top of the basement stairs. (TT 513, 515.) Detective Ninehouser testified that he heard Officer Lerza give three commands to [Petitioner] to come out of the basement. (TT 516.) When nobody responded, Officer Lerza then advised that he was going to release the dog. Id. Once Officer Lerza and Rocco were in the basement, Detective Ninehouser heard a lot of commotion. Id. The Detective proceeded into the basement and saw three city police officers struggling to subdue [Petitioner]. Id. He described [Petitioner's] demeanor as “Crazy, uncooperative, resisting.” Id. The Officers attempting to subdue [Petitioner] verbally instructed [him] to stop resisting several times to no effect. (TT 517.) Detective Ninehouser tased [Petitioner] once in the leg (through his clothing) with no effect and then once in the stomach on exposed skin which resulted in [Petitioner] saying that he gave up. (TT 517-518.)
Dr. Julie Compton, a Board-certified veterinary surgeon, testified as an expert in veterinary surgery. (TT 276.) Dr. Compton testified that she worked a the Pittsburgh Veterinary Specialty and Emergency Center (PVSEC), and in that
capacity became familiar with a dog named Rocco who had been stabbed. (TT 277278.) Initially, Dr. Compton testified that she was at home but was notified by her resident that Rocco was stab[le] with a laceration about three centimeters long. (TT 278.)
Forty-five minutes later, she received another call that Rocco's condition had worsened. (TT 279.) Dr. Compton arrived and performed two surgeries. During the first surgery, she discovered that Rocco's left kidney had sustained irreversible damage. (TT 285.) She also observed that his aorta and vena cava were stripped of all soft tissues and the external wound of three centimeters was approximately five inches long internally. Id. Two days later she performed a second surgery. (TT 287.) Rocco had liters of blood in his abdomen indicative of extensive internal hemorrhaging. Id. Dr. Compton could not find the source of the bleeding. While attempting to find the source of the bleeding, Dr. Compton discovered that Rocco's spine had been fractured by the knife wound. (TT 287-88.) She stated that “to shred a piece of bone off of a dog's spine underneath inches of muscle would take a very large amount of force.” (TT 288.) Dr. Compton said that Commonwealth Exhibit 14, a pocket knife with the tip broken off, was consistent with the weapon that cause Rocco's injuries. (TT 289-290.) She testified that the force required to break off the tip of the blade would be similar to the force required to injure the dog's spine. (TT 290.) Further, she testified that the length of the blade would have been sufficient to cause Rocco's wounds, assuming the knife was fully inserted into the dog. Id. Rocco died on January 30, 2014 from hemorrhaging resulting from a stab wound. (TT 291.)
Pittsburgh Police Officer Jeffrey Palmer testified that he collected and processed Officer Lerza's clothing. (TT 569.) Officer Palmer testified that he observed “a cut-type mark in the shoulder area consistent with the location of [Officer Lerza's] wound, [in] his undershirt, his uniform shirt and his uniform jacket.” Id. The cuts in each piece of clothing coincided with the laceration officer Lerza sustained. Id.
Aaron Schneider of the Allegheny County Office of the Medical Examiner testified as an expert witness in serology and forensic science. (TT 575-576.) He tested the knife that was recovered from the basement and the apartment building. (TT 578.) While blood was not visible on the knife, when the knife was sprayed with Luminol, a white glow appeared indicative of the presence of blood. Id. However, a subsequent phenolphthalein test was negative for the presumptive presence of blood. (TT 584.)
Anito Kozy of the Allegheny County Office of the Medical Examiner testified as an expert witness in forensic biology. (TT 589-590.) She testified a stained flannel jacket, and she determined that the jacket contained both human and canine blood. (TT 592, 595.) Detective Brian Weismantle later testified that [Petitioner] was wearing the flannel jacket that Kozy tested when [Petitioner] was taken out of the basement. (TT5 657.)(Resp's Ex. 10 at 226-34, Trial Court's 2/16/16 Op. at 3-11.)
At the end of the trial, the jury convicted Petitioner of the crimes listed above. In March 2015, the trial court sentenced him to an aggregate sentence of 14 years and 10 months of imprisonment, followed by 8 years of probation.
Thereafter, Petitioner, through new counsel Attorney Victoria Vidt (“direct appeal counsel”), filed an appeal with the Superior Court of Pennsylvania in which he raised three grounds for relief, none of which are relevant to this federal habeas case.(Resp's Ex. 13 at 321-65). The Superior Court affirmed Petitioner's judgment of sentence in Commonwealth v. Rush, 162 A.3d 530 (Pa. Super. Ct. 2017) (“Rush I”). The Supreme Court of Pennsylvania denied his petition for allowance of appeal on September 15, 2017. (Resp's Ex. 18 at 501.)
In Petitioner's direct appeal, he claimed that the trial court erred for failing to (1) disqualify a juror who wept during testimony about the death of Rocco and (2) give the requested jury instruction for malice in relation to the torture of a police animal charge. He also claimed (3) that the trial court abused its discretion in imposing the sentence that it did. (Resp's Ex. 13 at 321-65).
Petitioner's judgment of sentence became final on or around December 14, 2017, at the expiration of the 90-day period for petitioning for a writ of certiorari to the United States Supreme Court. That is the date the one-year statute of limitations began to run for the purposes of filing a federal habeas petition with this Court, 28 U.S.C. § 2244(d)(1)(A); see also Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review). AEDPA requires, with a few exceptions not applicable here, that habeas claims under § 2254 be filed within one year of the date that the petitioner's judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). It also provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2).
On or around November 2, 2017, Petitioner initiated his state collateral proceeding by filing a pro se petition under Pennsylvania's Post Conviction Relief Act (“PCRA”). (Resp's Ex. 19 at 502-12.) The trial court, now the PCRA court, appointed Attorney Charles R. Pass, III (“PCRA counsel”) to represent him. PCRA counsel subsequently filed an application for leave to withdraw and an accompanying “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) (en banc). (Resp's Ex. 20 at 513 70.)
Pennsylvania law provides that before appointed counsel can be permitted to withdraw from representing a petitioner under the PCRA, counsel is required to file and obtain approval of a “no-merit” letter pursuant to the mandates of Turner/Finley. “The no-merit letter must set forth: 1) the nature and extent of counsel's review of the case; 2) each issue that the petitioner wishes to raise on appeal; and 3) counsel's explanation of why each of those issues is meritless.” Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. Ct. 2019) (citations omitted). Counsel must file the Turner/Finley letter and send copies of it and an application to withdraw to the petitioner with the advisement that the petitioner has the right to proceed pro se or with a privately retained attorney. Id.; see also Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 90 (3d Cir. 2013). The court must then conduct its own independent evaluation of the record to determine whether it agrees with counsel that the PCRA petition lacks merit.
The PCRA court then issued a notice in accordance with Pennsylvania Rule of Criminal Procedure 907 in which it advised Petitioner of its intent to grant PCRA counsel's request for leave to withdraw from representation and to dismiss the PCRA petition without a hearing. (Resp's Ex. 21 at 571.) After Petitioner filed a response to this notice (Resp's Ex. 22 at 572-601), the PCRA court granted counsel leave to withdraw and entered an order dismissing the petition. (Resp's Ex. 23 at 602.)
The PCRA court appointed Attorney Robert S. Carey, Jr. to represent Petitioner in his appeal to the Superior Court. Petitioner, through counsel, raised three claims in that appeal, only one of which is relevant here. He claimed that trial counsel was ineffective failing to request a Kloiber instruction, which is Claim 2 in this federal habeas case. Petitioner did not raise Claims 1, 3 or 4 in his PCRA appeal. (Resp's Ex. 29 at 651-74.)
The other two claims that Petitioner raised in his PCRA appeal were that (1) “direct appeal counsel was ineffective for failing to raise a challenge to the Court's rulings on statements attributed to Courtney Pitts that allowed an out of court identification of [Petitioner]?” and (2) “trial counsel was ineffective for failing to litigate a motion for change of venue when the record shows that multiple jurors expressed knowledge of the case and sensitivity to dogs[.]” (Resp's Ex. 29 at 656.)
The Superior Court affirmed the PCRA court's decision to deny Petitioner relief in Commonwealth v. Rush, No. 339 WDA 2018, 2019 WL 2070490 (Pa. Super. Ct. May 10, 2019) (“Rush II”). It denied Claim 2 on the merits. Id. The Supreme Court of Pennsylvania denied a petition for allowance of appeal on September 18, 2019. (Resp's Ex. 35 at 816.)
On August 25, 2020, the Court received from Petitioner the Petition for a Writ of Habeas Corpus and filing fee. (ECF 1.) The Court ordered the Clerk of Court to strike the Petition from the docket because Petitioner did not sign it.The Court mailed the Petition back to him for his signature and directed him to sign it and mail it back to the Court within one month. (ECF 2.) When Petitioner missed that deadline, the Court issued another order giving him a brief extension. (ECF 3.) The Court received the signed Petition on November 12, 2020 and it was docketed on that date.(ECF 4.)
A habeas corpus petition must be signed and verified by the petitioner or by someone authorized to sign it on the petitioner's behalf. See 28 U.S.C. § 2242 and Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts.
As explained above, Petitioner's judgment of sentence became final on or around December 14, 2017. His PCRA proceeding was pending on that date and thus AEDPA's statute of limitations was immediately statutorily tolled pursuant to § 2244(d)(2). Petitioner's PCRA proceeding remained pending through September 18, 2019, which is the date the Pennsylvania Supreme Court denied him a petition for allowance of appeal from the Superior Court's decision in Rush II. Lawrence v. Florida, 549 U.S. 327, 331-36 (2007) (a petitioner is not entitled to statutory tolling for the period available to petition for writ of certiorari to the United States Supreme Court following state collateral review). AEDPA's limitations period began to run again the next day, on September 19, 2019. Therefore, Petitioner had one year from that date to file timely habeas claims with this Court. Respondents assert that Petitioner's habeas claims are untimely filed because the signed Petition was not docketed until November 2020, which was after the expiration of AEDPA's statute of limitations. They have not directed the Court to any case directly on point to support this argument, however. In any event, under the circumstances, the Court need not address the statute-of-limitations issue “[b]ecause AEDPA's limitation period is not jurisdictional,” Jenkins v. Sup't of Laurel Highlands, 705 F.3d 80, 89 (3d Cir. 2013) (citing Holland v. Florida, 560 U.S. 631 (2010)), and each of Petitioner's claims can be denied for the reasons discussed below.
Respondents have filed the Answer (ECF 15) and the state court record and Petitioner has filed his Reply.(ECF 23).
In habeas cases the reply used to be known as the “traverse,” which is why Petitioner used that designation in the title of his filing at ECF 23.
III. Discussion
A. Jurisdiction
The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state-court judgment. It permits a federal court to grant a state prisoner a writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution.. .of the United States.” 28 U.S.C. § 2254(a). Errors of state law are not cognizable. Id.; see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Indeed, the Court is bound by the state courts' determinations of state law. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004).
It is Petitioner's burden to prove that he is entitled to the writ. See, e.g., Vickers v. Sup't Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims (for example, the burden imposed on him by the standard of review enacted by AEDPA, which is discussed below), but, ultimately, Petitioner cannot receive federal habeas relief unless he shows that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
B. Exhaustion and Procedural Default
The “exhaustion doctrine” requires that a state prisoner raise his federal habeas claims in state court through the proper procedures before he litigates them in a federal habeas petition. 28 U.S.C. § 2254(b), (c); see, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). It “is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts[.]” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Importantly, a petitioner must have “invoke[d] one complete round of the State's established appellate review process[,]” to satisfy the exhaustion requirement. O'Sullivan, 526 U.S. at 845. In Pennsylvania, this requirement means that a petitioner in a non-capital case such as this one must have first presented every federal constitutional claim raised in his federal habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g., Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
In 2000, the Pennsylvania Supreme Court issued In re: Exhaustion of State Remedies in Criminal and Post Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (“Order 218”). It provides that state prisoners on direct appeal of a criminal case or in a PCRA proceeding need not petition for allowance of review with the Pennsylvania Supreme Court after the Superior Court denies a claim in order to exhaust a claim for the purposes of subsequent federal habeas review. In Lambert, the United States Court of Appeals for the Third Circuit held that Order 218 was sufficient to render discretionary review before the Pennsylvania Supreme Court “unavailable” to state prisoners on direct appeal and in a PCRA appeal. Therefore, Pennsylvania state prisoners challenging their judgments of sentence in a federal habeas case need only show that they presented their federal habeas claims to the Superior Court. Lambert, 387 F.3d at 23134.
The doctrine of procedural default, like the doctrine of exhaustion, is “grounded in concerns of comity and federalism,” Coleman, 501 U.S. at 730. To summarize, it provides that a Pennsylvania state prisoner in a non-capital case defaults a federal habeas claim if he: (a) failed to present it to the Superior Court and cannot do so now because the state courts would decline to address the claim on the merits because state procedural rules (such as the state waiver rules or the one-year statute of limitations that applies to collateral proceedings) bar such consideration; or (b) failed to comply with a state procedural rule when he presented the claim to the state court, and for that reason the Superior Court declined to address the federal claim on the merits. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451 (2000); O'Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting) (describing the history of the procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72 (1977); Lines v. Larkins, 208 F.3d 153, 162-69 (3d Cir. 2000).
As the Supreme Court recently explained:
State prisoners . . . often fail to raise their federal claims in compliance with state procedures, or even raise those claims in state court at all. If a state court would dismiss these claims for their procedural failures, such claims are technically exhausted because, in the habeas context, “state-court remedies are. . . ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). But to allow a state prisoner simply to ignore state procedure on the way to federal court would defeat the evident goal of the exhaustion rule. See Coleman, 501 U.S. at 732, 111 S.Ct. 2546. Thus, federal habeas courts must apply “an important ‘corollary' to the exhaustion requirement”: the doctrine of procedural default. [Davila v. Davis, 582 U.S. 521, 527, 127 S.Ct. 2058, 2064 (2017)]. Under that doctrine, federal courts generally decline to hear any federal claim that was not presented to the state courts “consistent with [the State's] own procedural rules.” Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).
Together, exhaustion and procedural default promote federal-state comity. Exhaustion affords States “an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights,” Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam), and procedural default protects against “the significant harm to the States that results from the failure of federal courts to respect” state procedural rules, Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Ultimately, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without [giving] an opportunity to the state courts to correct a constitutional violation,” Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L .Ed. 761 (1950), and to do so consistent with their own procedures, see Edwards, 529 U.S. at 452-453, 120 S.Ct. 1587.Shinn v. Ramirez, __ U.S.__, 142 S.Ct. 1718, 1732 (2022).
C. Standard of Review
In 1996, Congress made significant amendments to the federal habeas statutes with the enactment of the AEDPA. Among other things, AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotations and citation omitted).
One of the things that AEDPA put into place was a new standard of review, which is codified at 28 U.S.C. § 2254(d). It applies to any federal habeas claim “that was adjudicated on the merits” by the Superior Courtand, in relevant part, it prohibits a federal habeas court from granting relief unless the petitioner established that the Superior Court's “adjudication of the claim”:
When applying § 2254(d), the federal habeas court considers the “last reasoned decision” of the state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Sup't Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016).
(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[.]28 U.S.C. § 2254(d)(1).For the purposes of § 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when the state court (here, the Superior Court) made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. at 98-100; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).
Section 2254(d)(1) applies to questions of law and mixed questions of law and fact. As explained above, Petitioner presented only one claim (Claim 2) to the Superior Court. That claim presents a mixed question of law and fact and therefore § 2254(d)(1) applies to this Court's review of it. Another provision of AEDPA's standard of review, codified at § 2254(d)(2), provides that a petitioner must show that the state court's adjudication of a claim “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.” This provision applies when a petitioner “challenges the factual basis for” the state court's “decision rejecting a claim[.]” Burt v. Titlow, 571 U.S. 12, 18 (2013). Section 2254(d)(2) is not applicable to this case because the Superior Court's decision to deny Claim 2 was not premised on a finding of fact. Rather, the Superior Court applied the historical facts (the evidence introduced at Petitioner's trial) to the law when it denied Claim 2.
In applying § 2254(d)(1), this Court's first task is to ascertain what law falls within the scope of the “clearly established Federal law, as determined by the Supreme Court of the United States[,]” 28 U.S.C. § 2254(d)(1). It is “‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'” Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 7172 (2003)).
Once the “clearly established Federal law, as determined by the Supreme Court of the United States” is ascertained, this Court must determine whether the Superior Court's adjudication of the claim at issue was “contrary to” that law. Williams, 529 U.S. at 404-05 (explaining that the “contrary to” and “unreasonable application of” clauses of § 2254(d)(1) have independent meaning). A state-court adjudication is “contrary to... clearly established Federal law, as determined by the Supreme Court of the United States” § 2254(d)(1), “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” Williams, 529 U.S. at 405, or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent,” id. at 406.
A “run-of-the-mill” state-court adjudication applying the correct legal rule from Supreme Court decisions to the facts of a particular case will not be “contrary to” Supreme Court precedent. Williams, 529 U.S. at 406. Thus, the issue in most federal habeas cases is whether the adjudication by the state court survives review under § 2254(d)(1)'s “unreasonable application” clause.
“A state court decision is an ‘unreasonable application of federal law' if the state court ‘identifies the correct governing legal principle,' but ‘unreasonably applies that principle to the facts of the prisoner's case.'” Dennis, 834 F.3d at 281 (quoting Williams, 529 U.S. at 413). To satisfy his burden under this provision of AEDPA's standard of review, Petitioner must do more than convince this Court that the Superior Court's decision was incorrect. Id. He must show that it “‘was objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409) (emphasis added by Court of Appeals). This means that Petitioner must prove that the Superior Court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103 (emphasis added). As the Supreme Court noted:
It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See Lockyer, supra, at 75, 123 S.Ct. 1166. If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further.Id. at 102.
If, when evaluating a claim, the Court determines that the petitioner has satisfied AEDPA's standard of review, the Court must then “proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred.” Vickers, 858 F.3d at 849 (citing Lafler v. Cooper, 566 U.S. 156, 174 (2012)).That is because “a federal court can only grant the Great Writ if it is ‘firmly convinced that a federal constitutional right has been violated[.]'” Id. (citing Williams, 529 U.S. at 389, and Horn v. Banks, 536 U.S. 266, 272 (2001) (“[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review.. .none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]”)).
These steps “sometimes merge in cases in which the federal habeas court determines that the state court engaged in an ‘unreasonable application' of clearly established Supreme Court precedent because it will be apparent from the explication of why the state court unreasonably applied that precedent that, under any reasonable application, a constitutional violation did occur.” Vickers, 858 F.3d at 849 n.8.
D. AEDPA's Prohibition on Evidentiary Hearings
AEDPA also put into place “even more ‘stringent requirements'” regarding evidentiary development than those that were in place before its enactment. Shinn, 142 S.Ct. at 1734 (quoting Michael Williams v. Taylor, 529 U.S. 420, 433 (2000)).
AEDPA, as codified at 28 U.S.C. § 2254(e)(2), provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.(Emphasis added).
Importantly, Petitioner cannot avoid § 2254(e)(2)'s requirements by faulting his former counsel for failing to develop the evidence he now wants to present to support any of his federal habeas claims. Shinn, 142 S.Ct. at 1734-35 (“state postconviction counsel's ineffective assistance in developing the state-court record is attributed to the prisoner.”); Williams v. Sup't Mahanoy SCI, 45 F.4th 713, 720 (3d Cir. 2022). Thus, before this Court could hold a hearing so that Petitioner could introduce additional evidence to support any habeas claim, Petitioner first must show that the claim at issue falls within either subsection (A)(i) or (A)(ii) AND that “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense[,]” 28 U.S.C. § 2254(e)(2)(B).
In the rare case in which § 2254(e)(2)'s requirements are satisfied and a district court is not prohibited from holding an evidentiary hearing, it is within the district court's discretion whether to hold one under Rule 8 of the Rules Governing § 2254 Cases in the United States District Courts. See, e.g., Shinn, 142 S.Ct. at 1734; Schriro v. Landrigan, 550 U.S. 465, 473-75 (2007).
E. Petitioner's Claims
All of Petitioner's claims are claims that his trial counsel provided him with ineffective assistance. Such claims are governed by the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland recognized that a defendant's Sixth Amendment right to the assistance of counsel for his defense entails the right to be represented by an attorney who meets at least a minimal standard of competence. 466 U.S. at 685-87. “[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance[.]” Titlow, 571 U.S. at 24.
Under Strickland, it is Petitioner's burden to establish that his “counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 688. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. at 687. Counsel cannot be deemed ineffective for failing to raise a meritless claim. See, e.g., Preston v. Sup't Graterford SCI, 902 F.3d 365, 379 (3d Cir. 2018).
The Supreme Court has emphasized that “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]'” Titlow, 571 U.S. at 22 (quoting Strickland, 466 U.S. at 690); Richter, 562 U.S. at 104 (“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.”) (quoting Strickland, 466 U.S. at 689). It instructed:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel's was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Strickland, 466 U.S. at 689 (internal citations and quotations omitted).
The Supreme Court also has advised:
“Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, __, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.Richter, 562 U.S. at 105.
Strickland also requires that Petitioner demonstrate that he was prejudiced by counsel's alleged deficient performance. This places the burden on him to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Under Strickland, “[t]he likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112.
The Supreme Court in Strickland noted that although it had discussed the performance component of an ineffectiveness claim before the prejudice component, there is no reason for an analysis of an ineffectiveness claim to proceed in that order. 466 U.S. at 697. If it is more efficient to dispose of an ineffectiveness claim on the ground that the petitioner failed to meet his burden of showing prejudice, a court need address only that prong of Strickland. Id.
Pennsylvania courts typically articulate Strickland's standard in three parts, while federal courts set it out in two. The legal evaluation is the same, and the differences merely reflect a stylistic choice on the part of state courts. See, e.g., Commonwealth. v. Mitchell, 105 A.3d 1257, 1266 (Pa. 2014) (“this Court has divided [Strickland's] performance component into sub-parts dealing with arguable merit and reasonable strategy. Appellant must, therefore, show that: the underlying legal claim has arguable merit; counsel had no reasonable basis for his act or omission; and Appellant suffered prejudice as a result.”); Commonwealth v. Sepulveda, 55 A.3d 1108, 111718 (Pa. 2012) (“In order to obtain relief on a claim of ineffectiveness, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland[.]”).
Failure to Request a Kloiber Instruction (Claim 2)
In Claim 2, Petitioner asserts that trial counsel was ineffective for failing to request a Kloiber instruction for Deputy Herb's identification testimony. In Kloiber, the Supreme Court of Pennsylvania held:
where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions. . .
the court should warn the jury that the testimony as to identity must be received with caution.106 A.2d at 826-27 (citations omitted).
The Superior Court denied Claim 2 on the on the merits. It rejected Petitioner's underlying contention that he was entitled to a Kloiber instruction. It agreed with the PCRA court's assessment that none of the circumstances warranting a Kloiber instruction were present in Petitioner's case. The Superior Court held as follows:
At trial, Deputy Herb testified that, on January 28, 2014, he was a member of the fugitive squad assigned to locate [Petitioner] and serve him with an arrest warrant for a violation of his probation. N.T., 12/8/14, at 50-52. Deputy Herb and the other squad members received information on January 28, 2014, that [Petitioner] was homeless and walking to a residence in the Lawrenceville section of Pittsburgh. Id. at 52. Deputy Herb and the squad members began searching the Lawrenceville area; they had “a picture of [Petitioner] and a rough estimate on height and weight.” Id. at 53.
On Butler Street, Deputy Herb “noticed a man roughly the same height; [who] appeared to be homeless carrying garbage bags; [wearing] a lot of layers of clothing[.]” N.T., 12/8/14, at 53. Deputy Herb approached [Petitioner] and asked his name; [Petitioner] pulled down a mask or scarf, thereby exposing his face to Deputy Herb, and replied, “John.” Id. at 54-55. Although Deputy Herb could not identify [Petitioner] from a distance, upon seeing [Petitioner's] face, Deputy Herb “knew it was [he]” and told [Petitioner] he was under arrest. Id. at 55. Deputy Herb described the physical altercation that then occurred between himself and [Petitioner]. Id. at 56-60. Eventually, [Petitioner] fled and a foot-chase ensued, during which Deputy Herb lost sight of [Petitioner]. Id. at 60-62.
After receiving information about a 911 call regarding a suspicious person in a home at 3701 Butler Street, Deputy Herb and other law enforcement personnel went to the residence. N.T., 12/8/14, at 64-65, 91. Once the suspect was in custody, Deputy Herb identified the suspect as [Petitioner]. Id. at 65-66. Moreover, Deputy Herb identified [Petitioner] in the courtroom as the man he encountered on January 28, 2014. Id. at 63-64. Contrary to [Petitioner's] argument, Deputy Herb was unshaken in his identification of [him]. Id. at 123.
Upon review, we conclude the record supports the PCRA court's determination that a Kloiber instruction was not warranted; we further conclude that its determination was without error. Staton, 184 A.3d 949. Considering the record in the light most favorable to the Commonwealth, the evidence was sufficient to establish that Deputy Herb (1) was in a position to observe [Petitioner] clearly and was positive as to [Petitioner's] identity; (2) did not equivocate on the
identification; and (3) did not fail to identify [Petitioner] on prior occasions. Jones, 954 A.2d at 1198. Any inconsistency between Deputy Herb's testimony regarding what [Petitioner] was wearing when Deputy Herb first encountered [him] on Butler Street and when Deputy Herb identified [him] at 3701 Butler Street was for the jury to resolve. N.T., 12/8/14, at 55, 62, 67-68, 75, 78, 92, 106-107. Furthermore, any inconsistency between Deputy Herb's testimony and police reports regarding [Petitioner's] location when Deputy Herb first encountered him was for the jury to resolve. Id. at 71, 73, 104-105, 113-114, 118-119, 121, Commonwealth Exhibit 3, Defense Exhibits D, F.
In light of Deputy Herb's identification testimony, [Petitioner] was not entitled to a Kloiber instruction. See Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa. Super. 2000) (explaining that identification testimony need not be received with caution where it is positive, unshaken, and not weakened by a prior failure to identify). Thus, any such request would have been meritless. As trial counsel is not ineffective for failing to assert a meritless claim, Roney, 79 A.3d at 604, the PCRA Court properly denied relief on [Petitioner's] Kloiber-based ineffectiveness claim.Rush II, 2019 WL 2070490, at *4-5 (footnotes omitted).
The Superior Court's decision that Petitioner was not entitled to a Kloiber instruction under Pennsylvania law is a state law determination that is not subject to review by this Court. See, e.g., Priester, 382 F.3d at 402; see also Real v. Shannon, 600 F.3d 302, 309-10 (3d Cir. 2010). For this reason alone Petitioner's claim that trial counsel was ineffective for not requesting a Kloiber instruction fails. See, e.g., Id. (since the federal habeas court was bound by the state court's determination that the instruction given at his trial comported with state law, the petitioner cannot satisfy the Strickland standard).
The claim also fails because Petitioner has not met the burden imposed on him by AEDPA's standard of review at § 2254(d)(1), which is the applicable provision that applies to this Court review of this claim. The Superior Court applied the correct Strickland analysis when it evaluated this claim. Rush II, 2019 WL 2070490, at *2-5. Thus, Petitioner cannot establish that the Superior Court's adjudication was “contrary to” Strickland. Williams, 529 U.S. at 406. Nor has Petitioner shown that the Superior Court's adjudication was an “unreasonable application of” Strickland, since trial counsel did not perform deficiently, and Petitioner suffered no prejudice, when counsel did not request a jury instruction that did not apply to the circumstances of his case.
Based on the above, it is recommended that the Court deny Petitioner's claim that trial counsel was ineffective for not requesting a Kloiber instruction (Claim 2). The Court is bound by the Superior Court's state law determination that the instruction did not apply to Petitioner's case and also because its decision withstands review under AEDPA at § 2254(d)(1).
Petitioner's Remaining Claims
In his remaining claims (Claim 1, 3 and 4), Petitioner contends that trial counsel was ineffective for various reasons. Respondents assert that the Court should deny each of these claims as procedurally defaulted because Petitioner did not raise them in his PCRA proceedingand he cannot return to state court and now try to litigate them because they would be barred by state waiver rules and also by the PCRA's one-year statute of limitations. Respondents assert that there are no grounds to excuse Petitioner's default of Claims 1, 3 and 4. Petitioner acknowledges that these claims are defaulted but argues that under the rule of Martinez v. Ryan, 566 U.S. 1 (2012) the Court should excuse the default and review them de novo.
In Pennsylvania, a petitioner typically must litigate claims of ineffective assistance of counsel in a PCRA proceeding. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (abrogated in part on other grounds by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021)).
A petitioner may avoid the default of a claim by showing “cause for the default and actual prejudice as a result of the alleged violation of federal law[.]” Coleman, 501 U.S. at 750. “‘Cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him[.]” Id. at 753 (emphasis in original). The general rule is that, 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 default of a federal habeas claim. Id.; Davila v. Davis, 582 U.S. 521, 524 (2017).
A petitioner may also avoid the default of a claim by showing that the federal habeas court's failure to consider it will result in a fundamental miscarriage of justice. See, e.g., Lines, 208 F.3d at 160. This type of “gateway” actual innocence claim requires newly presented evidence of “actual innocence” that is “so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error[.]” Schlup v. Delo, 513 U.S. 298, 316 (1995); see also McQuiggin v. Perkins, 569 U.S. 383 (2013). In Schlup, the Supreme Court held that a viable claim of actual innocence requires a petitioner “to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” 513 U.S. at 324. “‘Actual innocence' means factual innocence, not mere legal insufficiency.” Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). This case is not one of those rare cases in which the actualinnocence gateway would apply to permit Petitioner to avoid the default of any of his claims.
In Martinez the Supreme Court announced a narrow exception to this rule. Martinez 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. To do so, the petitioner must demonstrate: (1) the defaulted claim of trial counsel's ineffectiveness is “substantial” and (2) PCRA counsel was ineffective under Strickland for (3) failing to raise that claim in the “initial review collateral proceeding” (meaning to the PCRA court). Martinez, 566 U.S. at 17. The holding in Martinez is limited to defaulted claims asserting that trial counsel was ineffective. See, e.g., Davila, 582 U.S. at 524-38. It does not apply to any other type of defaulted claim. Id.
Here, Petitioner makes essentially boilerplate allegations that he can overcome the default of his claims under Martinez because his PCRA counsel was allegedly ineffective, but he has put forth no grounds to excuse his default on this basis. In any event, given the strength of the evidence establishing his guilt on all crimes for which he was convicted, Petitioner was not prejudiced by trial counsel's alleged failure to do any of the things Petitioner faults him for in Claims 1, 3 and 4. See, e.g., Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999) (“It is firmly established that a court must consider the strength of the evidence in deciding whether the Strickland prejudice prong has been satisfied.”). Thus, the Court can deny these claims as defaulted because it can conclude that they are not “substantial” and PCRA counsel was not ineffective for failing to litigate them before the PCRA court.
Moreover, this Court may not conduct an evidentiary hearing on the merits on Claims 1, 3 and 4 because Petitioner has not satisfied either of 2254(e)(2)'s two narrow exceptions to AEDPA's general bar on evidentiary hearings. Nor is Petitioner entitled to an evidentiary hearing on whether the Court should excuse his default under Martinez. Before the Supreme Court's recent decision in Shinn v. Ramirez, 142 S.Ct. 1718 (2022), the rule in the Third Circuit (and in many other circuits) was that the § 2254(e)(2)'s prohibition on evidentiary hearings did not apply to the issue of whether a petitioner could overcome the default of a claim. Cristin v. Brennan, 281 F.3d 404, 413 (3d Cir. 2002).Rather, the decision to hold a hearing on that issue was a discretionary one. If the federal habeas court held a hearing on whether the petitioner could overcome the default of a claim, and if the petitioner successfully showed that he could do so, the court could then consider the evidence introduced at the hearing when it issued a de novo ruling on the merits of the underlying habeas claim. See, e.g., Shinn, 142 S.Ct. at 1729-30.
In Cristin, the Court of Appeals concluded “that the plaining meaning of § 2254(e)(2)'s introductory language does not preclude federal hearings on excuses for procedural default at the state level.” 281 F.3d at 413. The Court of Appeals' conclusion was based on two principal reasons. First, that a hearing used to support an excuse for procedural default is not a hearing on “a claim” under AEDPA because it is not a claim for relief on the merits. Id. at 417-18. Second, that a state prisoner “cannot be faulted.. .for not having previously presented the facts underlying arguments that would have been, on the whole, irrelevant or premature before state courts.” Id. at 417. As explained below, Shinn “suggests that [t]here is good reasons to doubt' [the Court of Appeals'] reading of the word ‘claim' in Cristin, [but] it [did] not abrogate [Cristin's] holding that, generally, AEDPA's text does not forbid federal courts from developing the facts needed to excuse a procedural default.” Williams, 45 F.4th at 723. However, Shinn set significant limits on Cristin's reach, which are discussed below.
Shinn clarified that a federal habeas court cannot proceed that way. The Supreme Court reiterated in Shinn that “state postconviction counsel's ineffective assistance in developing the state-court record is attributed to the prisoner.” 142 S.Ct. at 1734. Thus, when, as is the case here, the petitioner faults state post-conviction counsel for failing to develop evidence to support a defaulted habeas claim, the federal habeas court is prohibited from holding an evidentiary hearing or otherwise expanding the state court record to introduce evidence to support that claim unless the petitioner has satisfied one of § 2254(e)(2)'s two narrow exceptions to AEDPA's general bar on evidentiary hearings. Id. at 1735. See also Williams, 45 F.4th at 724 (AEDPA's prohibition is not limited to formal evidentiary hearings and applies whenever the petitioner wants to expand the record beyond that developed in state court) (citing Shinn, 142 S.Ct. at 1738 and Holland v. Jackson, 542 U.S. 649, 653 (2004)).
The Supreme Court also held in Shinn that if a federal habeas court holds a hearing on whether a petitioner can overcome the default of a claim, it may not consider evidence introduced at that hearing in evaluating the merits of the underlying habeas claim unless the petitioner has satisfied one of § 2254(e)(2)'s narrow exceptions to AEDPA's general bar on evidentiary hearings. 142 S.Ct. at 1733-39; Id. at 1739 (“when a federal habeas court convenes an evidentiary hearing for any purpose, or otherwise admits or reviews new evidence for any purpose, it may not consider that evidence on the merits” when evaluating the default habeas claim “unless the exceptions in § 2254(e)(2) are satisfied.”) (emphasis added). Accordingly, a federal habeas court can no longer “‘end-run' AEDPA by holding hearings on an excuse for procedural default, and then use the expanded federal record to decide the merits of a habeas claim.” Williams, 45 F.4th at 723 (quoting Shinn, 142 S.Ct. at 1738).
Importantly, in light of Shinn, the Court of Appeals in Williams v. Superintendent Mahanoy SCI, 45 F.4th 713 (3d Cir. 2022) has instructed that now, before holding a hearing on whether a petitioner can overcome a default of a claim, a federal habeas court must first decide whether the underlying defaulted habeas claim “succeeds considering only the state court record.” Id. at 724 (emphasis added). If the court concludes that the underlying claim is not supported by the state court record, it “should deny relief without more.” Id. That is, if the state court record alone does not allow the petitioner to succeed on the habeas claim, the court must skip a hearing on whether the petitioner can overcome the default “altogether and deny habeas relief” on the underlying habeas claim. Id. at 723-24; see also id. at 720 (explaining that the court “need not dwell” on the issue of whether the petitioner can overcome his default if the petitioner cannot show that his trial counsel was ineffective when considering only the facts developed in state court.)
The Court of Appeals explained:
While Shinn suggests that “[t]here are good reasons to doubt” our reading of the word “claim” in Cristin, it does not abrogate our holding that, generally, AEDPA's text does not forbid federal courts from developing the facts needed to excuse a procedural default. Id. at 1738. But Shinn does set limits on Cristin's reach. Shinn makes clear that, when a prisoner is at fault for failing to develop the record needed to support a constitutional claim on the merits in state court and cannot satisfy section 2254(e)(2)'s exceptions, federal courts may not consider evidence first gathered during an excuse hearing allowed by Cristin to decide the constitutional claim on the merits. Id. at 1738. To avoid prolonging federal habeas proceedings, Shinn also instructs that in these cases, federal courts must skip hearings altogether and deny habeas relief unless the prisoner prevails on the merits considering only the state court record. Id. at 1739.Williams, 45 F.4th at 723-24 (emphasis added).
Here, the evidence in the state court record, standing alone, does not support any of Petitioner's defaulted claims for relief. There is no testimony from trial counsel explaining why he did, or failed to do, any of the many things Petitioner's faults him for. Thus, on the closed record Petitioner cannot overcome the presumption that trial counsel rendered constitutionally adequate assistance. Titlow, 571 U.S. at 23 (“[i]t should go without saying that the absence of evidence cannot overcome the ‘strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'”) (quoting Strickland, 466 U.S. at 689); Williams, 45 F.4th at 726 (“we have no specific evidence of negligence [on the part of trial counsel] in the state court record, and ‘the absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.'”) (quoting Dunn v. Reeves, __ U.S. __, 141 S.Ct. 2405, 2407 (2021) (per curiam)). Because Petitioner has not satisfied either of the two limited scenarios set forth in § 2254(e)(2) necessary to permit the Court to conduct a hearing on the merits of his defaulted claims, he cannot introduce into the record the evidence to support them. Therefore, the Court need not hold a hearing on whether he can overcome his default since, even if the Court excused his default, it could not consider his new evidence in evaluating the merits of his defaulted claims.
Based on the above, the Court should deny Claims 1, 3 and 4. These claims are procedurally defaulted. They also lack evidentiary support when evaluated under the closed state record.
F. 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). When the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying those standards here, jurists of reason would not find it debatable whether Petitioner's claims should be denied for the reasons given herein. Accordingly, the Court should not issue a certificate of appealability on any of Petitioner's grounds for relief.
IV. CONCLUSION
Based on the foregoing, it is respectfully recommended that the Court deny each claim raised in the Petition (ECF 4) and deny a certificate of appealability as to each claim. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017); Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).