Opinion
CIVIL 3:15-CV-1090
08-17-2021
JOSEPH WILLIAMS, Petitioner, v. ROBERT MARSH, et al., Respondents.
Mariani Judge
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Introduction
Pending before the court is a petition for writ of habeas corpus filed by the petitioner, Joseph Williams, who was convicted in 2009 in the Court of Common Pleas of York County, Pennsylvania of robbery and third degree murder. Williams is currently serving a sentence of 30-to-60 years imprisonment and seeks relief in the form of this habeas corpus petition, in which he raises several claims alleging ineffective assistance of counsel as well as trial court errors.
After review of the record, we find that Williams' claims are without merit. Accordingly, for the reasons set forth below, we will recommend that his petition be denied.
II. Statement of Facts and of the Case
This case involved a fatal shooting which occurred in the context of a robbery. As recounted by the state courts, the charges brought against Williams arose from the following factual scenario:
This matter arises out of a fatal shooting in the vicinity of 624 Chestnut Street in the City of York following an attempted robbery. At trial, evidence showed that Williams approached a group of males congregated in front of the Chestnut street address, suggesting that one or more of them had recently robbed him. Among those present in the group were the victim, John Mason, and co-defendant Anthony Herndon. When the members of the group denied having robbed Williams, he held them at gunpoint and demanded that they "run their pockets" and give him whatever they had. Although some of those present complied and emptied their pockets, Herndon, who resided at 624 Chestnut, went into the house.
Although multiple witnesses observed the ensuing events, their recollections are inconsistent, some asserting that Herndon produced a gun and fired on Williams from the doorway of the house, prompting Williams to return fire, and others contending that Herndon did not have a gun and that Williams opened fire without provocation. Some witnesses recounted hearing only one shot, while others recounted hearing more than one. Regardless of the number of shots fired, one found a target in the victim, John Mason, who lay dying with a gunshot wound to his head.
In the wake of the shooting, the Commonwealth first charged Herndon with two counts each of Aggravated Assault and Reckless Endangerment. Although Williams was aware that the police were then seeking him in connection with the shooting, he did not turn himself in, choosing to remain a fugitive. Following Williams's arrest, the Commonwealth charged him with Robbery as well as Murder of the First, Second, and Third Degrees, respectively, and filed a motion to consolidate both defendants' cases for trial. The trial court, the Honorable Penny L. Blackwell, granted the Commonwealth's motion
and both matters proceeded for trial before the Honorable Michael J. Brillhart.
Williams filed a motion to sever the cases, which Judge Brillhart denied, and the matters were then tried jointly before a jury. At trial, the Commonwealth introduced the testimony of, among others, Officer Lisa Daniels, who first responded at the scene of the shooting; Sargent Troy Bankert, an investigating officer who identified the .45 caliber bullet retrieved from the victim's body; and Pennsylvania State Police corporal David Crumbine, an expert in ballistics. The Commonwealth presented additional testimony from Elana Foster, an expert who analyzed Herndon's clothing for gunshot residue; and Dr. Barbara Bollinger, the forensic pathologist who autopsied the victim's body. The Commonwealth also called multiple eyewitnesses to the shooting who testified concerning how many shots they had heard and whether they had seen Herndon with a gun.
In defense, Herndon elected to testify on his own behalf and called three additional witnesses, each of whom attested that they heard only one gunshot. Herndon asserted that he was innocent of any crime and did not have a gun during the events in question. Finally, Williams also testified and acknowledged that he approached the group in front of 624 Chestnut Street carrying a .45 caliber handgun and questioned them about having robbed him. Although Williams also acknowledged having discharged the weapon, he contended that he had done so defensively in response to gunfire by Herndon.(Doc. 54-6).
Convicted at trial, Williams was sentenced on April 3, 2009 to an aggregate sentence of 30 - 60 years' incarceration for Third Degree Murder and Robbery. On April 27, 2009, Williams filed a timely direct appeal to the Pennsylvania Supreme Court, which affirmed his conviction and sentence on June 10, 2011. On July 8, 2011 Williams filed a timely petition for allocatur to the Pennsylvania Supreme Court, which was denied on July 16, 2012.
Williams then promptly filed a petition under Pennsylvania's Post-Conviction Relief Act seeking collateral review of this conviction on August 14, 2012. Due to some procedural mishaps, there was an initial delay in adjudicating this state PCRA petition, delay which led Williams to file this federal habeas corpus petition. Ultimately, that delay was resolved in the state courts, and we stayed consideration of Williams' federal petition in order to allow Williams to fully exhaust his state court remedies and filed an amended comprehensive federal habeas corpus petition at the conclusion of the state PCRA litigation.
That state court PCRA litigation drew to a close by August of 2020, after the state court's denied Williams' various requests for post-conviction relief. Williams then filed this amended federal habeas corpus petition on November 17, 2020. (Doc. 46). In this amended petition, Williams presents six claims which he asserts warrant habeas corpus relief. First, Williams contends that the trial court's refusal to sever his case from the trial of his co-defendant, Herndon, violated his right to due process. Second, Williams brings what we regard as a challenge to the legal sufficiency of the robbery charge, alleging that he was unlawfully convicted under a subsection of the law which was never charged against him. Third, Williams brings a due process claim in the nature of an allegation that the Commonwealth withheld evidence which supported a newly discovered evidence on his part.
Williams' amended habeas corpus petition also leveled three claims of ineffective assistance of counsel, arguing that his counsel was ineffective in: (1) failing to investigate, identify and present an eyewitness, Joseph Griffith at trial; (2) failing to request a cautionary instruction regarding the use of demonstrative evidence; and (3) failing to request a cautionary instruction regarding the dangers of spillover prejudice and the need to separately consider the evidence as it related to each defendant.
This petition is now fully briefed and ripe for resolution. After review of the petition and the underlying state court records, we find that Williams' claims are without merit, as they have been thoroughly considered by the state courts and properly denied on their merits. Thus, given the deferential standard of review that applies to habeas petitions like Williams', we will recommend that the court deny this petition.
III. Discussion
A. State Prisoner Habeas Relief-The Legal Standard.
1. Substantive Standards
In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State;
(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.28 U.S.C. § 2254(a) and (b).
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a petition must satisfy exacting substantive standards to warrant relief. Federal courts may “entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the Constitution or laws or treaties of the United States, ” § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a “fundamental defect which inherently results in a complete miscarriage of justice” or was completely inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will not entitle a petitioner to § 2254 relief, absent a showing that those violations are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
2. Deference Owed to State Courts
These same principles which inform the standard of review in habeas petitions and limit habeas relief to errors of a constitutional dimension also call upon federal courts to give an appropriate degree of deference to the factual findings and legal rulings made by the state courts in the course of state criminal proceedings. There are two critical components to this deference mandated by 28 U.S.C. § 2254.
First, with respect to legal rulings by state courts, under § 2254(d), habeas relief is not available to a petitioner for any claim that has been adjudicated on its merits in the state courts unless it can be shown that the decision was either: (1) “contrary to” or involved an unreasonable application of clearly established case law; see 28 U.S.C. § 2254(d)(1); or (2) was “based upon an unreasonable determination of the facts, ” see 28 U.S.C. § 2254(d)(2). Applying this deferential standard of review, federal courts frequently decline invitations by habeas petitioners to substitute their legal judgments for the considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
In addition, § 2254(e) provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1). This presumption in favor of the correctness of state court factual findings has been extended to a host of factual findings made in the course of criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990). This principle applies to state court factual findings made both by the trial court and state appellate courts. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility determinations made by the state courts, and we must give equal deference to both the explicit and implicit factual findings made by the state courts. Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state court judgment rests upon factual findings, it is well-settled that:
A state court decision based on a factual determination, ..., will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceeding. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We must presume that the state court's determination of factual issues was correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000).Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of review, federal courts may only grant habeas relief whenever “[o]ur reading of the PCRA court records convinces us that the Superior Court made an unreasonable finding of fact.” Rolan, 445 F.3d at 681.
3. Ineffective Assistance of Counsel Claims
These general principles apply with particular force to habeas petitions that are grounded in claims of ineffective assistance of counsel. It is undisputed that the Sixth Amendment to the United States Constitution guarantees the right of every criminal defendant to effective assistance of counsel. Under federal law, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court in order to survive. Specifically, to prevail on a claim of ineffective assistance of counsel, a petitioner must establish that: (1) the performance of counsel fell below an objective standard of reasonableness; and (2) that, but for counsel's errors, the result of the underlying proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001).
At the outset, Strickland requires a petitioner to “establish first that counsel's performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This threshold showing requires a petitioner to demonstrate that counsel made errors “so serious” that counsel was not functioning as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. However, in making this assessment “[t]here is a ‘strong presumption' that counsel's performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)).
But a mere showing of deficiencies by counsel is not sufficient to secure habeas relief. Under the second Strickland prong, a petitioner also “must demonstrate that he was prejudiced by counsel's errors.” Id. This prejudice requirement compels the petitioner to show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. A “reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id.
Thus, as set forth in Strickland, a petitioner claiming that his criminal defense counsel was constitutionally ineffective must show that his lawyer's “representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “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.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). The petitioner must then prove prejudice arising from counsel's failings. “Furthermore, in considering whether a petitioner suffered prejudice, ‘[t]he effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'” Rolan, 445 F.3d at 682 (quoting Strickland, 466 U.S. at 696) (internal quotations omitted).
Although sometimes couched in different language, the standard for evaluating claims of ineffectiveness under Pennsylvania law is substantively consistent with the standard set forth in Strickland. See Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa.1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d Cir.2000) (“[A] state court decision that applied the Pennsylvania [ineffective assistance of counsel] test did not apply a rule of law that contradicted Strickland and thus was not ‘contrary to' established Supreme Court precedent”). Accordingly, a federal court reviewing a claim of ineffectiveness of counsel brought in a petition under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show that the state court's adjudication of his claim was an “unreasonable application” of Strickland. Billinger v. Cameron, 2010 U.S. Dist. LEXIS 63759, at *11, 2010 WL 2632286 (W.D. Pa. May 13, 2010). In order to prevail against this standard, a petitioner must show that the state court's decision “cannot reasonably be justified under existing Supreme Court precedent.” Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court's application of federal law is challenged, “the state court's decision must be shown to be not only erroneous, but objectively unreasonable.”) (internal citations and quotations omitted).
This additional hurdle is added to the petitioner's substantive burden under Strickland. As the Supreme Court has observed a “doubly deferential judicial review . . . applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal habeas”). This doubly deferential standard of review applies with particular force to strategic judgment like those thrust upon counsel in the instant case. In this regard, the Court has held that:
“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., at 688, 104 S.Ct. 2052. “Judicial scrutiny of counsel's performance must be highly deferential, ” and “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id., at 689, 104 S.Ct. 2052. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id., at 690, 104 S.Ct. 2052.Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). The deference which is owed to these strategic choices by trial counsel is great.
Therefore, in evaluating the first prong of the Strickland test, courts “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.' ” Id. The presumption can be rebutted by showing “that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound.” Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir.2005) (footnote omitted).Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009).
4. Procedural Benchmarks--Exhaustion of State Remedies.
State prisoners seeking relief under section 2254 must also satisfy specific procedural standards. Among these procedural prerequisites is a requirement that the petitioner “has exhausted the remedies available in the courts of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). In instances where a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).
This statutory exhaustion requirement is rooted in principles of comity and reflects the fundamental idea that the state should be given the initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The Supreme Court has explained that “a rigorously enforced total exhaustion rule” is necessary in our dual system of government to prevent a federal district court from upsetting a state court decision without first providing the state courts the opportunity to correct a constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring exhaustion of claims in state court also promotes the important goal of ensuring that a complete factual record is created to aid a federal court in its review of § 2254 petitions. Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of showing that all of the claims alleged have been “fairly presented” to the state courts, and the claims brought in federal court must be the “substantial equivalent” of those presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot avoid this responsibility merely by suggesting that he is unlikely to succeed in obtaining state relief, since it is well-settled that a claim of “likely futility on the merits does not excuse failure to exhaust a claim in state court.” Parker v. Kelchner, 429 F.3d 58, 63 (3d Cir. 2005).
Although this exhaustion requirement compels petitioners to have previously given the state courts a fair “opportunity to apply controlling legal principles to the facts bearing upon [the petitioner's] constitutional claim, ” Picard v. Connor, 404 U.S. 270, 276 (1971), this requirement is to be applied in a commonsense fashion. Thus, the exhaustion requirement is met when a petitioner submits the gist of his federal complaint to the state courts for consideration, without the necessity that the petitioner engage in some “talismanic” recitation of specific constitutional clams. Evans, 959 F.2d at 1230-33. Similarly, a petitioner meets his obligation by fairly presenting a claim to state courts, even if the state courts decline to address that claim. Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004).
It is against these legal benchmarks that we assess this petition.
B. This Petition Should Be Denied.
We have carefully examined Williams' six claims of error in this case, and assessed those claims against the prevailing legal standards which require us to consider whether the state court determination of these issues was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or was (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). Having conducted this review, for the reasons set forth below, we find that none of Williams' claims, singly or combined, warrant habeas corpus relief. Therefore, we recommend that this petition for writ of habeas corpus be denied.
1. Williams is Not Entitled to Habeas Corpus Relief Based Upon The State Court's Decision Denying His Motion to Sever.
At the outset, Williams alleges that the state court decision to deny his motion to sever his trial from the trial of another defendant, Anthony Herndon, denied him due process. While he acknowledges that the charges leveled against Herndon and himself arose out of a single common nucleus of operative facts, Williams contends that the defenses that he and Herndon pursued were so antagonistic to one another that severance of these defendants was compelled by law and the failure to sever these charges violated his constitutional rights.
Specifically, Williams argues that his defense to the murder charge relating the death of John Mason was that he killed Mason accidentally and fired the shot which killed Mason in self-defense after the other defendant in this case, Anthony Herndon, shot at him. Herndon, who was separately charged with aggravated assault in connection with this same incident, disputed Williams' claims, denied possessing a firearm on the date of the shooting, and insisted that Williams fired the only shot, a shot which fatally injured the victim, John Mason.
Williams faces an exacting burden of proof in advancing a federal habeas corpus claim premised upon a state court denial of a severance motion. Indeed, such claims frequently run afoul of several separate legal hurdles.
First, as a general rule:
[F]ederal courts . . . have held that “[c]onsolidation and severance of cases is a matter of Pennsylvania state law.” Johnston v. Mahally, No. 15-CV-4800, 2017 WL 11529681, at *5 (E.D. Pa. Mar. 30, 2017) (citing Marten v. Sauers, No. 11-2875, 2012 WL 3279247, at *6 (E.D. Pa. July 13, 2012), report and recommendation adopted, No. 11-2875, 2012 WL 3290402 (E.D. Pa. Aug. 13, 2012)) report and recommendation adopted, 348 F.Supp.3d 417 (E.D. Pa. 2018); see Toussaint v. Klem, No. CIV.A. 03-0927, 2004 WL 727061, at *6 (E.D. Pa. Mar. 31, 2004) (finding that where “Petitioner's only exhausted claim is that the trial court improperly denied his motion to sever the two cases against him for trial, ” it did not “pass this Court's jurisdictional requirement that his claim involve a matter of federal constitutional law, ” and “[d]espite the tenuous implication [of the Due Process Clause] ... consolidation of offenses, and decisions on motions to sever charges, are state law questions”).Pratt v. Marsh, No. 2:19-CV-00416, 2021 WL 2188576, at *15 (E.D. Pa. May 28, 2021). Thus, to the extent that Williams' claim of trial court error based on a failure to sever is governed exclusively by state law, this claim simply does not implicate any federal constitutional or statutory rights. As such, it does not provide grounds for federal habeas corpus relief, which may be granted “only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Moreover, federal courts have frequently rejected habeas corpus claims like those presented here which rest upon state trial court rulings denying motions to sever based upon allegedly antagonistic defenses. In this regard, it has been noted that:
“There is a preference in the federal system for joint trials of defendants who are indicted together” because joint trials “promote efficiency and
‘serve the interest of justice by avoiding the scandal and inequity of inconsistent verdicts.' ” Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). “Joint trials conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.” United States v. Lane, 474 U.S. 438, 448, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). Mutually antagonistic or irreconcilable defenses may be so prejudicial in some circumstances that severance is mandated. Zafiro, 506 U.S. at 538, 113 S.Ct. 933. The Supreme Court has explicitly declined to adopt a bright line rule mandating severance whenever co-defendants have conflicting defenses. Id. District courts should grant severance “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Id. at 539, 113 S.Ct. 933. Very few convictions have been reversed for failure to grant a severance because of mutually antagonistic or irreconcilable defenses.Hetzel v. Lamas, 630 F.Supp.2d 563, 573-74 (E.D. Pa. 2009), aff'd, 372 Fed.Appx. 280 (3d Cir. 2010). The same legal standards favoring joint trials prevail in state court, where it is well settled that:
In Pennsylvania, the decision to grant a motion for severance is a matter within the discretion of the trial court and should not be overruled absent a manifest abuse of discretion. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 1378 (1991). Joint trials are advisable where conspiracy is charged unless a party can show that he will be prejudiced by a joint trial. Chester, 587 A.2d at 1372-73. A defendant must show a real potential for prejudice, not just mere speculation. Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491, 501 (1995). The existence of antagonistic defenses is a factor to be considered, but more than a bare assertion of antagonism is required. Chester, 587 A.2d at 1372. “Defenses only become antagonistic when the jury, in order to believe the testimony offered on behalf of the one defendant, must disbelieve the testimony offered by his or her co-defendant.” Jones, 668 A.2d at 501. Mere hostility between defendants or that one may try to save himself at the expense of a co-defendant is in itself not sufficient ground to grant a severance. Id. “In fact, it has been asserted that the fact that
defendants have conflicting versions of what took place, or the extents to which they participated in it, is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried together.” Chester, 587 A.2d at 1372.Id. at 574.
In Williams' case, the Pennsylvania Superior Court thoroughly considered this severance issue on appeal. At the outset, the Superior Court found that Williams and Herndon were properly joined as defendants under state law in what was alleged to have been this fatal shooting in the course of a robbery and mutual affray since Rule 582 of the Pennsylvania Rules of Criminal Procedure provides that: “Defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Pa.R.Crim.P. 582(A)(1), (2).” (Doc. 54-6, at 7). While the Superior Court acknowledged some tension between the defenses pursued by Williams and Herndon at the trial of this case, the court observed that Williams did not deny firing the fatal shot that killed Mason. Quite the contrary, he admitted that his shot killed the victim. Thus, the dispute between Herndon and Williams did not turn on a fundamental dispute over who killed the victim. Rather, the tension between these defenses related to the issue of why Williams shot the victim, Mason, in the head. As to this issue, the Superior Court found that: “Significantly, however, a defendant's assertion of motives or conduct at odds with those described by his co-defendant does not necessarily amount to antagonism within the meaning of our Supreme Court's holdings.” (Id., at 8). Given the immutable and undisputed fact that Williams shot and killed the victim, Mason, the Superior Court concluded that Williams' claim that he killed an innocent man in the course of a robbery out of a misplaced fear that he needed to defend himself for an attack by a third party, Herndon, did not provide the type of antagonistic defense which compelled severance. Instead, the Superior Court held that:
In the final synopsis, it simply does not matter why Williams committed the shooting; the fact of Williams's responsibility for the victim's death remains unchanged. Thus, the incompatibility of Williams's claim of self-defense against Herndon with Herndon's claim that he did not have a gun does not amount to legally cognizable antagonism. Accordingly, the trial court did not err in trying the two prosecutions together or in denying Williams's multiple requests for severance or mistrial. Williams is not entitled to relief . . . .(Id., at 10-11).
This conclusion of the Pennsylvania Superior Court is entirely consistent with both state and federal law, which recognizes a strong preference for the joint trial of defendants who have been properly joined together based upon their alleged involvement in the same series of acts or transactions. It is also completely in accord with federal case law, which has generally rejected severance denial claims as grounds for federal habeas corpus relief. Moreover, the state court's rejection of Williams' claim of irreconcilably antagonistic defenses was well founded, and rested on a simple proposition: Williams' subjective, but misguided, claim of self-defense was largely irrelevant to his legal culpability since once Williams engaged in an armed robbery of others, he was not legally justified in shooting John Mason in the head under any circumstances, even if he claimed he killed the victim by accident while attempting to shoot someone else in self-defense. Therefore, these state court findings were not (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” and were not (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). Accordingly, this state court decision denying Williams' severance claim provides no grounds for habeas corpus relief for Williams.
2. There Was Sufficient Evidence to Support Williams' Robbery Conviction and Williams' Variance and Newly Discovered Evidence Claims Fail.
Williams' habeas corpus petition also launches an attack upon his robbery conviction. While the precise tenor of this argument is not entirely clear, it appears that Williams is asserting a twofold claim, arguing both that the evidence was insufficient to convict him of robbery and that there was some sort of fatal variance in this robbery charges since Williams insists that he was charged under one subsection of the Pennsylvania robbery statute but he alleges that he was convicted under a separate subsection of this law.
These claims are also unavailing. Turning first to Williams' attack upon the sufficiency of the evidence in this case, such claims are weighed against exacting legal benchmarks. In Jackson v. Virginia, the United States Supreme Court held that “in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 ... the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 443 U.S. 307, 324 (1979). Furthermore, when a petitioner argues about the sufficiency of the evidence in the context of a federal habeas petition, the petitioner would only be entitled to relief if the state courts' decisions regarding the sufficiency of the evidence presented at trial was “an unreasonable application of . . . clearly established Federal law, ” 28 U.S.C. § 2254(d)(1), or if the state court's application of that law itself is “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000); see also McDaniel v. Brown, 558 U.S. 120, 132-33 (2010). Moreover, the rule announced in Jackson “requires a reviewing court to review the evidence ‘in the light most favorable to the prosecution.'” Id. (quoting Jackson, 443 U.S. at 319). What this means is that a reviewing court “faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 133 (quoting Jackson, 443 U.S. at 326). Thus, “[w]e must affirm the convictions if a rational trier of fact could have found [the] defendant guilty beyond a reasonable doubt, and the verdict is supported by substantial evidence.” United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).
Judged by this deferential standard of review, Williams' challenge to the sufficiency of the evidence relating to his robbery conviction clearly fails. Williams' sufficiency of the evidence claim appears to rest upon a fundamental misunderstanding regarding Pennsylvania's robbery statute. Specifically, Williams seems to have believed that he could only be found guilty of robbery, if he had completed a gunpoint theft. On this score, Williams errs. Rather, Pennsylvania's robbery statute on its face forbids the use of violence as part of a theft or an attempted theft and states that: “An act shall be deemed ‘in the course of committing a theft' if it occurs in an attempt to commit theft or in flight after the attempt or commission.” 18 Pa. C.S. § 3701 (a)(2).
Here, the evidence clearly showed that Williams brandished and discharged a firearm during an attempted theft. As the Pennsylvania Superior Court explained:
In support of his sufficiency claim, Williams contends that the Commonwealth's evidence did not sustain all the elements of robbery, as it did not show that he committed a theft. Brief for Appellant at 36-37. Williams's argument is misguided, as it presumes that proof of the elements of robbery depends upon the completion of the crime of theft. In point of fact it does not. The statutory language itself prescribes that "[a] person is guilty of robbery if, in the course of committing a theft, he ... threatens another with or intentionally puts him in fear of immediate serious bodily injury" and further denotes that "[a]n act shall be deemed 'in the course of committing a theft' if it occurs in an attempt
to commit theft." 18 Pa.C.S. § 3701(a)(1)(ii), (2). See also Commonwealth v. Humphreys, 532 A.2d 836, 842-43 (Pa. Super. 1987) ("Assuming appellant is correct in concluding that he is guilty of only attempted robbery, he, nonetheless, could be convicted for robbery in view of the express language of Sec. 3701(a)(2)").
Thus, if in the course of attempting a theft, Williams intentionally put the assembled group outside 624 Chestnut Street in fear of immediate serious bodily injury, his conduct constitutes Robbery regardless of whether he actually succeeded in taking any property whatsoever. Id.
We find the evidence more than ample to establish that Williams attempted a theft. See 18 Pa.C.S. § 901(a) ("Definition of attempt.-A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime."). Co-defendant Anthony Herndon, whom the jury ultimately acquitted, testified unequivocally on both direct and cross-examination that Williams approached the porch at 624 Chestnut Street, questioning those present about whether they had robbed him. N.T., 2/11/09, at 34-35. When they denied the charge, Williams produced a gun, cocked it and demanded "everybody give me everything." Id. at 35. Eyewitness Joshua Griffith testified similarly that while Williams was interrogating the group about whether any of them had robbed him, he pulled out a gun, cocked it, waived it around, and ordered everyone to empty their pockets. N.T., 2/10/09, at 150, 155-57, 165. Griffith stated in addition, that in response to Williams's directive, "we all emptied our pockets." Id. at 150. A third witness, Khalil Carter (aka, "Buddha"), also testified that Williams approached him and the others at 624 Chestnut Street, asking if they had previously robbed him. Id. at 69-71. Although Carter's recollection differed from Griffiths's about whether Williams had the gun in his possession when he approached the porch, both witnesses agreed that once Williams had the gun, he "looked at it and cocked it and he said, well, you all give me what you all got." Id. at 75, 83. Neither Carter nor the other witnesses had any doubt concerning Williams's objective. Id. at 84 ("Basically he was robbing us and told us to give up what we got."); N.T., 2/11/09, at 45 ("[Counsel] Q. And why would he [i.e., Williams] come up to the steps? [Herndon] A. To rob us.").
Williams's use of a firearm to threaten his victims, coupled with his demand that they relinquish their property to him is, at least, a "substantial step" in furtherance of the crime of theft. Accordingly, the evidence is readily sufficient to sustain Williams's conviction of Robbery. . . .(Doc. 54-6 at 13-15).
Recognizing that “[w]e must affirm the convictions if a rational trier of fact could have found [the] defendant guilty beyond a reasonable doubt, and the verdict is supported by substantial evidence, ” United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995), we conclude that this evidence which shows that Williams threatened numerous victims at gunpoint in the course of an attempted theft is plainly sufficient to sustain his conviction on this offense. Therefore, the state court's conclusions in this regard are manifestly correct and provide no grounds for federal habeas corpus relief.
Williams also appears to advance some sort of variance claim. In this regard, Williams' petition relies upon a metaphysical parsing of the Pennsylvania robbery statute, alleging that he was unfairly prejudiced because he believes that he was charged under subsection (a)(1)(i) of the robbery statute, 18 Pa. C.S. § 3701, but was convicted of violating subsection (a)(1)(ii) of this law.
This variance claim warrants only brief consideration. Williams' variance argument fails for several reasons. First, it does not appear that Williams fully litigated this claim in the state courts. Therefore, the claim is unexhausted and subject to dismissal. 28 U.S.C. § 2254(b).
More fundamentally, this claim fails on its merits since:
[T]he amendment of a criminal charge, or any variance between the charge and the proof at trial, only provides grounds for setting aside a conviction:
[I]f it is likely to have surprised or otherwise has prejudiced the defense. United States v. Schurr, 775 F.2d 549, 553-54 (3d Cir.1985). To demonstrate prejudice from a variance, a defendant “must show (1) that there was a variance between the indictment and the proof adduced at trial and (2) that the variance prejudiced some substantial right.” United States v. Balter, 91 F.3d 427, 441 (3d Cir.1996). “A variance does not prejudice a defendant's substantial rights (1) if the indictment sufficiently informs the defendant of the charges against him so that he may prepare his defense and not be misled or surprised at trial, [or] (2) if the variance is not such that it will present a danger that the defendant may be prosecuted a second time for the same offense.” United States v. Schoenhut, 576 F.2d 1010, 1021-22 (3d Cir.1978).
United States v. Daraio, 445 F.3d 253, 262 (3d Cir.2006).Jones v. Mooney, No. 1:13-CV-2526, 2015 WL 4950792, at *13-14 (M.D. Pa. Aug. 19, 2015).
Williams has not met this legal standard, nor can he. Williams' metaphysical variance argument fails because it misconstrues both the robbery statute and the evidence. First, as a matter of fact, Williams was thoroughly familiar with the background of this offense, and suffered no conceivable surprise at trial. Second, the robbery charge in this case was described with sufficient specificity to allow Williams to avoid any second prosecution for this offense. Thus, Williams simply has not shown the type of prejudice which would typically support a claim of prejudicial variance.
Moreover, under Pennsylvania law, robbery is defined in the following terms:
(a) Offense defined.--
(1) A person is guilty of robbery if in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.18 Pa. C.S. § 3701 (a). Thus, a defendant commits a robbery in Pennsylvania if he either threatens bodily harm or inflicts serious bodily harm upon another in the course of an attempted theft. This definition of robbery under Pennsylvania law is fatal to Williams' prejudicial variance claim since the evidence clearly shows that in the course of an attempted theft he both threatened to inflict bodily injury and, in fact, inflicted serious bodily injury resulting in the death of an innocent victim. Thus, Williams was plainly guilty of violating both subsections of the robbery statute. Given these immutable facts, Williams' variance claim is little more than an exercise in sophistry that should be rejected by this court.
Williams' newly discovered evidence claim also fails as a matter of law. This claim relies upon a hearsay account by an individual who was not present at the scene of this shooting, Eugene Rainey. Rainey's role in this case is cloaked in confusion and uncertainty. According to Rainey, an eyewitness at the scene of the shooting, Joshua Griffith, later admitted to Rainey that his vehicle was struck by a stray shot during the incident, information which Williams believes would have been corroborative of his claim of self-defense. What makes Rainey's role in this matter particularly curious is the fact that Rainey was represented on a separate and unrelated homicide by the same attorney who represented Williams at trial, yet there was no indication that either Rainey or Williams disclosed this “newly discovered” evidence to trial counsel in a timely manner. Instead, Rainey first recounted this information several years after Williams' trial. Moreover, Williams' characterization of Rainey's account as some sort “newly discovered” material and exculpatory evidence is particularly puzzling since Griffith in fact testified at Williams' trial in a fashion that assisted his defense. (Doc. 54-19, at 37-43). According to Griffith's trial testimony, at least two shots were fired at the scene of this crime, and both Williams and Anthony Herndon were armed, testimony which bolstered, to some degree, Williams' claim of self-defense. Thus, the additional information that Williams' proffered as “newly discovered” evidence was simply a hearsay account of what would ultimately have been cumulative and corroborative evidence.
The state courts considered, but rejected, Williams' newly discovered evidence claim, finding that this hearsay evidence was merely cumulative and did not warrant setting aside Williams' conviction in light of all of the evidence that supported the jury's verdict. (Doc. 54-16, at 7). We agree. On this score, we note that: “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). Instead, a claim of actual innocence merely serves as a gateway in federal practice, providing grounds for excusing a petitioner's procedural defaults. Moreover, even in this context, a showing of actual innocence which opens a gateway to consideration of the merits of a petitioner's claims, “does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty.” Schlup v. Delo, 513 U.S. 298, 329 (1995).
This exacting legal standard has not been met in the instant case. Rather, the hearsay evidence cited by Williams is merely cumulative and corroborative of the testimony previously provided at trial by Joshua Griffith. As such, it does not change the quantum of proof in a way that compels the conclusion that no reasonable juror could have found Williams guilty of this robbery and murder. Therefore, this newly discovered evidence claim does not provide grounds for setting aside Williams' convictions.
3. Williams' Ineffective Assistance of Counsel Claims Fail as a Matter of Law.
Finally, in his habeas corpus petition, Williams advances a threefold claim of ineffective assistance of counsel, arguing that his counsel was ineffective in: (1) failing to investigate, identify and present witnesses at trial; (2) failing to request a cautionary instruction regarding the use of demonstrative evidence; and (3) failing to request a cautionary instruction regarding the dangers of spillover prejudice and the need to separately consider the evidence as it related to each defendant. In considering these claims of ineffective assistance of counsel, we are mindful of the fact that a “doubly deferential judicial review . . . applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Thus, we must give deference both to the tactical choices made by trial counsel and the factual findings of the state courts in evaluating those tactical choices. Applying this doubly deferential standard of review, Williams' challenges to the effectiveness of his trial counsel all fail.
Turning first to Williams' complaints concerning the alleged failure of counsel to investigate and identify witnesses:
In Pennsylvania, to prevail on a claim of ineffective assistance of trial counsel for failure to call a witness, the appellant must show:
(1) that the witness existed; (2) that the witness was available; (3) that counsel was informed of the existence of the witness or should have known of the witness's existence; (4) that the witness was prepared to cooperate and would have testified on appellant's behalf; and (5) that the absence of the testimony prejudiced appellant.Commonwealth. v. Fulton, 830 A.2d 567, 572 (Pa. 2003) (citations omitted).
Although this standard is not identical to the Strickland standard, the Third Circuit has held that “the Pennsylvania test is not contrary to the test set forth in Strickland.” Moore v. DiGuglielmo, 489 Fed.App'x. 618, 626 (3d Cir. 2012) (“The five requirements set forth by the Pennsylvania Supreme Court would necessarily need to be shown to prevail under Strickland on a claim of this nature.”)
Stewart v. Ferguson, No. CV 3:17-0893, 2021 WL 465411, at *6 (M.D. Pa. Feb. 9, 2021). In this case, the state courts carefully considered Williams' claims regarding the alleged failure of trial counsel to investigate or question witnesses and found these claims to be without merit.
We agree with these state court findings. On this score, we note that the testimony at Williams' state PCRA hearing showed that defense counsel retained an investigator whose efforts disclosed no witnesses beyond those called at trial. (Doc. 54-10, at 37-43). With respect to these trial witnesses, the evidence further revealed that defense counsel obtained criminal record information regarding the trial witnesses and this information was presented to the jury at trial. (Id.) Further, with regard to Joshua Griffith's testimony, the trial transcript in this case disclosed that Williams' counsel elicited helpful exculpatory information from Griffith at trial. (Doc. 54-19 at 37-43). Moreover, at the PCRA hearing, Williams' trial counsel explained that, with respect to the “newly discovered” witness, Eugene Rainey, counsel actually represented Rainey on an unrelated homicide charge but Rainey did not timely disclose any information regarding Williams' case. (Doc. 54-10, at 37-43). On these facts, there simply is no basis for concluding that there was a culpable failure by trial counsel to investigate or present defense witnesses at Williams' trial.
Williams' complaints about his counsel's failure to request cautionary instructions regarding the use of demonstrative evidence and the dangers of spillover prejudice are also unavailing. Williams' trial counsel explained at the PCRA hearing that he did not believe that either jury instruction was useful or necessary. In particular, counsel believed that the demonstrative nature of certain evidence was absolutely clear from the record, rendering a further instruction unnecessary. As for instructions regarding spillover prejudice, counsel did not view that instruction to be useful or applicable in this case, particularly where his client appeared to have the greatest degree of criminal culpability. (Doc. 54-10, at 43-49). The state courts rejected these ineffective assistance of counsel claims, finding that Williams' “claims of ineffective assistance of counsel either lack arguable merit or trial counsel demonstrated decisions were based on reasonable defense strategy; [and] there is no reasonable probability that outcome of trial would have differed[].” (Doc. 54-16, at 7).
We are mindful that the Supreme Court has observed that a “doubly deferential judicial review . . . applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal habeas”). Given this deferential standard, we cannot conclude that the state courts' decisions relating to these ineffective assistance of counsel claims were an unreasonable application of Strickland or based on an unreasonable determination of the facts. To the contrary, the PCRA court's and Superior Court's analyses of these ineffective assistance of counsel claims are thorough and well-supported by both the law and the facts of the petitioner's case. Accordingly, these claims do not warrant habeas relief.
In closing, this is not a case in which Williams' current legal dilemma is a result of incompetent counsel or constitutionally prejudicial and erroneous trial court rulings. Instead, Williams' present incarceration is a direct result of the fateful and fatal decisions made by the petitioner when he attempted to rob a group of men at gunpoint and killed one of those men.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the petition for a writ of habeas corpus in this case be DENIED, and that a certificate of appealability should not issue.
The petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.