Opinion
Civil Action No. 2: 14-cv-0687
03-03-2017
THOMAS WILLIAM WOJNAROWSKI, Petitioner, v. SUPERINTENDENT NORMAN DEMMING, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, AND WESTMORELAND COUNTY DISTRICT ATTORNEY, Respondents.
cc: THOMAS WILLIAM WOJNAROWSKI HJ-5106 SCI Dallas 1000 Follies Road Dallas, PA 18612 (via United States First Class Mail) Jacquelyn A. Knupp Westmoreland County District Attorney's Office (via ECF electronic notification)
United States District Judge Arthur J. Schwab
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the petition for a writ of habeas corpus filed by Petitioner, Thomas William Wojnarowski, pursuant to 28 U.S.C. § 2254, be dismissed and that a certificate of appealability be denied.
II. REPORT
A. Relevant and Procedural Background
Petitioner, Thomas Wojnarowski ("Petitioner" or "Wojnarowski"), is a state prisoner confined at the State Correctional Institution - Dallas in Dallas, Pennsylvania. Following a jury trial presided over by the Honorable John E. Blahovec of the Court of Common Pleas of Westmoreland County, Wojnarowski was convicted of third degree murder. The background of this case, as summarized by the Superior Court of Pennsylvania in Petitioner's PCRA appeal, is as follows:
The underlying conduct that led to the prosecution of Appellant [Wojnarowski] occurred in the early morning hours of August 27, 2007, when,
after a night of alcohol consumption, Appellant shot and killed the victim, Chad Bonelli. At trial, Appellant sought a verdict of involuntary manslaughter,2 arguing that the death of Bonelli was a tragic accident. The Commonwealth sought a verdict of murder of the first degree. The jury returned a verdict of murder of the third degree. Appellant was ultimately sentenced to 20 to 40 years in prison.
Commonwealth v. Wojnarowski, No. 1537 WDA 2011, slip op. at 1-2 (Pa. Super. Ct. Mar. 23, 2012) (unpublished opinion) ("Wojnarowski-III") (ECF No. 13-3).2 It bears noting that counsel for Appellant specifically objected to the giving of a jury instruction on the offense of voluntary manslaughter. See N.T., 9/7 - 13/07, at 455.
Attorney Brian Aston represented Wojnarowski during trial and at sentencing. The trial and sentencing judge was Judge Blahovec. Defendant, through counsel, filed timely counseled post sentence motions. Attorney Aston then withdrew from the case and new counsel, Attorney Wayne P. McGrew, was appointed and granted leave to file an amended post sentence motion. An amended post sentence motion was filed on February 29, 2008 and denied by Judge Blahovec on April 22, 2008.
Wojnarowski, through Attorney McGrew, appealed his conviction to the Pennsylvania Superior Court. On February 10, 2009, the Superior Court affirmed the judgment of sentence. Commonwealth v. Wojnarowski, No. 875 WDA 2008, 970 A.2d 485 A.2d 485 (Pa. Super. Ct. Feb. 10, 2009) (unpublished memorandum) ("Wojnarowski-I"), appeal denied, 981 A.3d 219 (Pa. 2009). On March 13, 2009, the Pennsylvania Supreme Court denied Wojnarowski's request for allowance of appeal.
Thereafter, on March 18, 2010, Wojnarowski filed, pro se, a request for post-conviction relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 - 9546. Following the appointment of counsel and the submission of an amended petition, the PCRA court, again Judge Blahovec, denied relief on August 25, 2011. ("Wojnarowski-II") Wojnarowski, through counsel, appealed to the Superior Court. The Superior Court remanded the case for further development of the record.
After the evidentiary hearing, the PCRA court again denied Wojnarowski's petition. Wojnarowski appealed and on June 28, 2013, the Superior Court affirmed the decision of the PCRA court. Commonwealth v. Wojnarowski, No. 1908 WDA 2012, 2013 WL 11264577, slip opinion (Pa. Super. Ct. June 28, 2013) (unpublished memorandum) ("Wojnarowski-V"), appeal denied, No. 353 WAL 2013 (Pa. Nov. 6, 2013) (unpublished order) (ECF No. 13-6).
On or about May 20, 2014, Wojnarowski filed the instant Petition for Writ of Habeas Corpus. He raises nine claims for relief, many of which of have multiple subparts. Respondents filed an Answer (ECF No. 13), to which Wojnarowski filed a Reply, with attachments. (ECF No. 17). The matter is ripe for disposition.
B. Standard of Review
This case is governed by the federal habeas statute applicable to state prisoners. 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, enacted on April 24, 1996 ("AEDPA"). Under this statute, habeas relief is only available on the grounds that Wojnarowski's convictions were obtained in violation of his federal constitutional rights. 28 U.S.C. § 2254(a). Errors of state law are not cognizable. See., e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot 'reexamine state court determinations on state-law questions.'") (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). See also Real v. Shannon, 600 F.3d 302-309-10 (3d Cir. 2010).
As codified at 28 U.S.C. § 2254(d), AEDPA provides as follows:
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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -28 U.S.C. § 2254(d).
(1) resulted in a decision that was contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Our Court of Appeals has made clear that "the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation." Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998). Put simply, "habeas proceedings are not the appropriate forum for [a prisoner] to pursue claims of error at the PCRA proceeding . . . . It is the original trial that is the 'main event' for habeas purposes." Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004).
"A state-court decision is 'contrary to' clearly established federal law if the state court (1) 'contradicts the governing law set forth in [the Supreme] Court's cases or (2) 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a [different] result.' " Lambert, 387 F.3d at 234 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Few state court decisions will be "contrary to" Supreme Court precedent. "Clearly established Federal law" should be determined as of the date of the relevant state-court decision. Greene v. Palakovich, 606 F.3d 85, 95 (3d Cir. 2010), aff'd, Greene v. Fisher,565 U.S. 34 (2011).
The federal habeas court more often must determine whether the state court adjudication was an "unreasonable application" of Supreme Court precedent. "A state-court decision 'involve[s] an unreasonable application' of clearly established federal law if the state court (1) 'identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case'; or (2) 'unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.' " Id. (quoting Williams, 529 U.S. at 407).
Moreover, a federal court must accord a presumption of correctness to a state court's factual findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e). Where a state court's factual findings are not made explicit, a federal court's "duty is to begin with the [state] court's legal conclusion and reason backward to the factual premises that, as a matter of reason and logic, must have undergirded it." Campbell v. Vaughn, 209 F.3d 280, 289 (3d Cir. 2000). In determining what implicit factual findings a state court made in reaching a conclusion, a federal court must infer that the state court applied federal law correctly. Id. (citing Marshall v. Longberger, 459 U.S. 422, 433 (1982)). Where the state court fails to adjudicate or address the merits of a petitioner's claims, unless procedurally defaulted, the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). Petitioner's claims will be reviewed in accordance with the standards set forth above.
2. Procedural Issues
Before the Court can address the merits of Wojnarowski's claims, it is necessary to examine whether the petition fulfills the applicable procedural requirements as set forth in AEDPA.
a. AEDPA's Statute of Limitations
The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed under AEDPA's one-year limitations period. 28 U.S.C. § 2244(d). Respondents do not dispute that Wojnarowski's petition was timely filed.
b. Exhaustion
It is next necessary to determine whether Wojnarowski's claims have been adequately exhausted in the state courts. 28 U.S.C. § 2254(c). It is well settled that a state prisoner must exhaust all of his claims by "giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838 (1999); see also 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement 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); Rose v. Lundy, 455 U.S. 509, 517 (1982). The burden is on the habeas petitioner to establish that he has presented his federal constitutional claims (both facts and legal theory) to all levels of the state judicial system. See Gattis v. Snyder, 278 F.3d 222, 231 (3d Cir. 2002) (quoting Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992)). In Pennsylvania, this requirement generally means that a petitioner in a non-capital case must have presented every federal constitutional claim raised in his habeas petition to the Common Pleas Court and then to the Superior Court either on direct or PCRA appeal. See, e.g., Lambert, 387 F.3d at 233-34.
Exhaustion is not a jurisdictional limitation, however, and federal courts may review the merits of a state petitioner's claims prior to exhaustion when no appropriate remedy exists. Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997); Carter v. Vaughn, 62 F.3d 591, 594 (3d Cir. 1995). A petitioner shall not be deemed to have exhausted state remedies, however, if he has the right to raise his claims by any available state procedure. 28 U.S.C. § 2254(c). This Court can deny an unexhausted claim on the merits only if the claim is without merit
c. State Court Procedural Default
Beyond questions of exhaustion, a federal court may be precluded from reviewing claims under the "procedural default doctrine." Gray v. Netherland, 518 U.S. 152, 162, (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). Like the exhaustion requirement, the procedural default doctrine was developed to promote our dual judicial system and, in turn, it is based upon the "independent and adequate state law grounds" doctrine, which dictates that federal courts will not review a state court decision involving a question of federal law if the state court decision is based on state law that is "independent" of the federal question and "adequate" to support the judgment. Coleman, 501 U.S. at 750.
As the United States Court of Appeals for the Third Circuit explained in Rolan v. Coleman:
Procedural default occurs when a claim has not been fairly presented to the state courts (i.e., is unexhausted) and there are no additional state remedies available to pursue, see Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001); or when an issue is properly asserted in the state system but not addressed on the merits
because of an independent and adequate state procedural rule, see McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).Rolan, 680 F.3d 311, 317 (3d Cir. 2012).
In Coleman v. Thompson, 501 U.S. 722, 750 (1991), the United States Supreme Court held that federal courts should not reach an alleged violation of federal law on habeas review if the state court's decision rests on an independent and adequate state ground.
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits." Walker v. Martin, 562 U.S. 307 (2011). The doctrine applies whether the default occurred at trial, on appeal, or during collateral proceedings. Edward v. Carpenter, 529 U.S. 446, 451 (2000).
A state's procedural rules are entitled to deference by federal courts; a petitioner's violation of a state procedural rule may constitute an independent and adequate state law ground for denial of federal review of habeas claims under the procedural default doctrine. Sistrunk, 96 F.3d at 673. Moreover, violations of a state's procedural rules may constitute an "independent" and "adequate" state ground sufficient to invoke the procedural default doctrine even where no state court explicitly has concluded that a petitioner is procedurally barred from raising his claims. Glass v. Vaughn, 65 F.3d 13, 15 (3d Cir. 1995), cert. denied, 516 U.S. 1151 (1996); Carter, 62 F.3d at 595. The procedural default doctrine applies only when a state procedural rule is consistently and regularly applied. Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997) (quoting Johnson v. Mississippi, 486 U.S. 578, 588-89 (1988)); see also Doctor, 96 F.3d at 684 (the state rule must be firmly established and regularly followed before it can be considered an independent and adequate state law ground sufficient to foreclose federal court review under the procedural default doctrine).
A petitioner whose constitutional claims have not been addressed on the merits due to procedural default can overcome the default, thereby allowing federal court review, if he or she can demonstrate either (i) "cause" for the default, i.e., that some objective factor "external to the defense" impeded efforts to comply with the state's procedural rule, and "actual prejudice;." or that failure to consider the claims would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Martinez v. Ryan, 566 U.S. 1 (2012).
The second exception to the procedural default rule arises when a petitioner demonstrates that failing to allow his claims to proceed would result in a fundamental miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 320-22 (1995) (decided in the context of successive petitioner). To show a fundamental miscarriage of justice, a petitioner must demonstrate that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 321 (quoting Murray, 477 U.S. at 496). Under this standard, a petitioner must "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." Schlup, 513 U.S. at 324. Once such evidence is presented, a petitioner must then show that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. at 327. There is no question that the instant case is not the type of extraordinary case in which Wojnarowski can overcome the default of his claims by way of the miscarriage of justice exception.
Lastly, if a petitioner has committed a procedural default and has not shown either cause and prejudice or a miscarriage of justice, the proper disposition is to dismiss the procedurally defaulted claim with prejudice. See, e.g., Wainwright v. Sykes, 433 U.S. 72 (1977).
C. Petitioner's Claims
Wojnarowski raises the following nine grounds for relief in his habeas petition:
1. due process violation due to admission of evidence concerning his post-incident conduct (subpart one) and ineffective assistance of counsel for trial counsel's failure to introduce medical records to rebut the nurse's testimony (subpart two);
2. due process violation due to reference to his post-arrest silence in front of the jury;
3. ineffective assistance of trial counsel for his failure to move for a mistrial due to reference to Wojnarowski's post-arrest silence in front of jury;
4. ineffective assistance of trial counsel for his failure to consult with Wojnarowski regarding requesting a mistrial due to reference to post-arrest silence in front of jury;
5. due process violation due to trial court's failure to sua sponte order a mistrial due to reference to Wojnarowski's post-arrest in front of jury;
6. due process violation related to trial counsel's failure to consult Wojnarowski regarding requesting a mistrial as it impinged his right to be present at every stage of the proceedings;
7. layered ineffective assistance of counsel claim with fifteen (15) subparts;
8. due process violation based on belief that preliminary hearing transcript was altered; and
9. due process violations arising from prosecutorial misconduct, with five (5) subparts.
Respondents argue that Claims 2, 6, 8, and 9 (including all subparts) have been procedurally defaulted through the adequate and independent state procedural rule that an appellant must pursue all available claims not involving ineffective assistance of counsel on direct appeal. Additionally, Respondents argue that Petitioner's ineffective assistance of claims raised in Claims 1 (subpart two), 3, and 7 (including all subparts) are procedurally defaulted because they were not pursued on appeal to the Pennsylvania Superior Court. As to Claims 1 (subpart one), 4 and 5, Respondents argue these claims should be dismissed as they lack merit.
The Court must first determine if Petitioner's claims raised in this case have been adequately exhausted in the state courts.
On direct appeal, Wojnarowski presented the following two issues for review:
1. Did the trial court err by admitting evidence of Wojnarowski's post incident conduct wherein he used vulgar language and was seen to be kicking and spitting at the Pennsylvania State Police Troopers?Wojnarowski-I at 5, 2/10/99 (ECF No. 13-2). In Wojnarowski's pro se PCRA petition, he alleged a variety of claims; however, his PCRA counsel conceded that all but three of the issues raised in the pro se petition lacked merit, and proceeded only on the following three issues:
2. Did the trial court err in not ordering a mistrial when the attorney for the Commonwealth and/or the prosecuting state trooper, in front of the jury and on three separate occasions, referenced Wojnarowski's post arrest silence?
1. did the trial court commit an abuse of discretion by not sua sponte ordering a mistrial when the Commonwealth presented testimony of the Defendant's post arrest silence;On August 25, 2011, the PCRA court, without conducting an evidentiary hearing, denied Wojnarowski's claims. On appeal to the Superior Court, Wojnarowski raised only the following claim:
2. was trial counsel ineffective for failing to request a mistrial following the reference by the Commonwealth's witness regarding Wojnarowski's post-arrest silence; and
3. was trial counsel ineffective for failing to consult with Wojnarowski regarding whether or not to move for a mistrial or a curative instructive after the Commonwealth's witness referenced Wojnarowski's post-arrest silence.
Whether the trial court erred in finding that defense counsel did not have to consult with Appellant regarding whether or not to request a mistrial when Appellant has a State and Federal Constitutional Right to be present at every stage of the proceeding?Appellant's Brief (ECF No. 13-3 at 8). The Superior Court remanded for further proceedings on this sole issue finding that the trial record provided no basis upon which to fairly discern whether "defense counsel made a critical decision on behalf of Appellant without consulting him." Wojnarowski-III at 9 (ECF No. 13-3). After conducting an evidentiary hearing, the PCRA court again denied Wojnarowski's petition finding that the testimony of trial counsel was credible when he testified that he had told Wojnarowski what had occurred during the sidebar and what the options were and why he chose not to request a mistrial. Wojnarowski appealed to the Superior Court and raised the following issue:
Whether the trial court erred in finding that defense counsel had a reasonable basis designed to effectuate his client's interest when counsel chose not to move for a mistrial without consulting [Wojnarowski] and [Wojnarowski] did not waive his State and Federal Constitutional Right to be present at every stage of the proceeding.
If the petitioner mentions an issue, but fails to develop any argument with respect to the issue in his brief, the issue may be deemed waived. Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. Ct. 1996). In the Amended Petition, counsel indicated that he found nothing to support the Defendant's assertion of prosecutorial misconduct or to support the allegation of a Brady violation.
Consequently, the Court agrees with Respondents and finds that only the following three claims satisfy the exhaustion requirements of 28 U.S.C. § 2254(b)(c):
CLAIM ONE (subpart one) - due process violation due to admission of evidence concerning Wojnarowski's post-incident conduct
CLAIM FOUR - ineffective assistance of trial counsel for his failure to consult with Wojnarowski regarding requesting a mistrial due to reference to post arrest silence in front of jury; and
CLAIM FIVE - due process violation due to trial court's failure to sua sponte order a mistrial due to reference to Wojnarowski's post-arrest silence in front of jury.
The remaining claims, Claims One (subpart two), Two, Three, Six, Seven (including all subparts), Eight, and Nine (including all subparts) were never "fairly presented" to the state courts and, therefore, are procedurally defaulted.
D. The Exhausted Claims - Claims One (subpart one), Four, and Five
Claims One (subpart one) and Five were addressed and rejected on their merits by the Superior Court on direct appeal. Wojnarowski-I (ECF No. 13-3). Claim Four was addressed and rejected by both the PCRA court and the Superior Count on PCRA review. Because Wojnarowski's claims were adjudicated on the merits in state court, this Court's review is governed by AEDPA's standard of review. If the Court determines that an error occurred, the Court must perform an independent analysis of the evidence to determine if the error caused harm rather than deferring to the state court's conclusion. Williams v. Folino, 625 F. App'x 150 (3d Cir. Sept. 2, 2015) (citing Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008)).
i. The Due Process Claims (Claims One (subpart one) and Five)
A claim that one was denied "due process" is a claim that one was denied "fundamental fairness." See Riggins v. Nevada, 504 U.S. 127, 149 (1992) ("We have said that 'the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial'"). When reviewing claims alleging the denial of due process, the Supreme Court of the United States has cautioned that:
[i]n the field of criminal law, we have defined the category of infractions that violate 'fundamental fairness' very narrowly based on the recognition that, beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. The Bill of Rights speaks in explicit terms of many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order . . . [I]t has never been thought that decisions under the Due Process Clause establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure.Medina v. California, 505 U.S. 437, 443 (1992) (internal quotations and citations omitted).
Moreover, a federal court must keep in mind the standard of review to be applied to allegations of trial error. In this regard, criminal defendants in the country are entitled to a fair, but not a perfect trial. "[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial," and the Constitution does not demand one. United States v. Hasting, 461 U.S. 499, 508 (1983) (internal citations omitted). The focus on fairness, rather than on perfections, protects society from individuals who have been duly and fairly convicted of crimes, thereby promoting "public respect for the criminal process." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).
The basis for Wojnarowski's first due process claim rests on the testimony of Dawn Shaw, a registered nurse at Frick Hospital, who testified that Wojnarowski used vulgar language and was combative while being treated by emergency room personnel following his arrest. On direct appeal, Wojnarowski argued that this testimony was "irrelevant, extremely prejudicial, confusing, and misleading to the jury." Wojnarowski-I, at 5 (ECF No. 13-2).
In denying this claim, the Superior Court of Pennsylvania held as follows:
The Commonwealth's argument at trial was that Appellant [Wojnarowski] committed first-degree murder because he possessed malice and the specific intent to kill at the time he grabbed the shotgun from the victim and shot him in the stomach/chest. Appellant rebutted the Commonwealth's argument by stating that the shooting was an accident, and, therefore, he did not possess the specific intent to kill. Accordingly, the question of whether Appellant possessed the specific intent to kill the victim was presented to the jury.
To support its argument, the Commonwealth introduced the evidence of Appellant's belligerent and aggressive post-arrest conduct to prove that the killing was not an accident as asserted by Appellant in his defense. The evidence was relevant to support the Commonwealth's assertion that because Appellant was violent and confrontational after he was arrested, he was also violent and confrontational at the time of the shooting, and, consequently, he possessed the specific intent to kill necessary for a conviction of first-degree murder. See Commonwealth v. Sanchez, 610 A.2d 1020, 1027 (Pa. Super. 1992) (citations omitted) (evidence to prove motive, intent, plan, or design is admissible) (emphasis added).
Appellant alleged that even if this testimony was relevant to prove intent, it was highly prejudicial, confusing, and misleading to the jury. Owens, 929 A.2d at 1190. Specifically, he alleged that the testimony was admitted to convince the jury that Appellant was a violent person capable of committed homicide. Further, Appellant alleged that introduction of the post-arrest evidence demonstrating that he was a violent person was in direct contravention to the other evidence presented by the Commonwealth that demonstrated his mild manner, which in turn, misled and confused the jury. We disagree.
. . . Appellant's assertion that the evidence presented served only to establish that he was a violent person capable of committing homicide is without merit. It was undisputed at trial that Appellant committed the homicide in question, the discrepancy arose from whether Wojnarowski possessed the specific intent to kill in this instance. As discussed above, the evidence of his post-arrest conduct supported the Commonwealth's assertion that Appellant possessed the specific intent to kill the victim. Under these circumstances we find that the probative value of the evidence outweighs the potential for prejudice.3
Further, we find that the evidence of Appellant's post-arrest belligerence and aggressiveness was not misleading and confusing to the jury. The function of
a jury is to determine the credibility of witnesses when presented with conflicting evidence at trial. The fact that this evidence may not have been consistent with other evidence presented does not make it confusing or misleading to the jury. The jury was free to accept the testimony that it found most credible. Commonwealth v. Thompson, 934 A.2d 1281, 1285 (Pa. Super. 2007) (It is for the fact-finder to make credibility determinations, and the finder of fact may believe all, part, or none of a witness's testimony.).
Because we find that admission of Appellant's post-arrest behavior was relevant to support the Commonwealth's assertion that Appellant possessed the specific intent to kill and that the probative value of the evidence outweighed the potential for prejudice, Appellant's first argument fails.
Wojnarowski-I (ECF No. 13-2).3 Additionally, we note that Appellant did not demonstrate that he was prejudiced by the admission of this testimony because the jury did not agree with the Commonwealth's assertion that Appellant possessed the specific intent to kill. In fact, the jury found Appellant guilty of third-degree murder. Commonwealth v. Hickson, 586 A.2d 393, 395 (Pa. Super. 1980) (Murder of the third degree is a killing done with legal malice but without specific intent to kill.) (emphasis added).
As stated above, this Court is required to review Wojnarowski's claim in accordance with the standard of review set forth in AEDPA. Specifically, in order to be entitled to relief, Wojnarowski must show that the Pennsylvania Superior Court's decision rejecting this claim was contrary to, or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. This is a "difficult to meet," and "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2001) (internal citations omitted). The Petitioner carries the burden of proof.
The Court finds that Wojnarowski's claim is without merit. The jury rejected the Commonwealth's argument for first degree murder, instead finding him guilty of third degree murder. Wojnarowski cannot claim that the admission of this evidence rendered the trial "fundamentally unfair," when, in fact, he was found not guilty of the charge the evidence was admitted to prove. In deciding Wojnarowski's claim, it is clear that the appellate court applied the correct standard for a due process claim. The Superior Court's determination was neither contrary to or involved an unreasonable application of clearly established federal law. Accordingly, it is recommended that Claim One, subpart one, be denied.
In Wojnarowski's second due process claim, he claims that his due process rights were violated when the trial judge did not sua sponte declare a mistrial after the prosecuting attorney and the Commonwealth's witness referenced his post-arrest silence. This claim was also rejected by the Superior Court on direct appeal. In order to determine whether there was a manifest necessity for declaring a mistrial, the testimony in question must be evaluated to determine whether these comments to the jury "so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process." Greer v. Miller, 483 U.S. 756, 765 (1987).
The relevant testimony, which is set out below, occurred during the Commonwealth's direct examination of State Trooper Andrekanic, who was charged with interviewing Wojnarowski after he was arrested:
[Prosecutor]: And can you tell the jury about what occurred as you spoke to defendant?
[Witness]" Yes. Prior to speaking to the defendant, since he was in our custody I read him his Miranda Warnings. Um, he refused to sign the Miranda waiver and related he didn't want to speak with this officer without an attorney.
[Prosecutor]: Okay. Specifically what did you advise him of?
[Witness]: After that I advised him he was being charged with criminal homicide.
[Prosecutor]: Well, then you said you advised him of his Miranda Warnings -
[Defense counsel]: May we approach?
SIDEBAR CONFERENCE - ON RECORD
[Defense counsel]: I have no idea where this is going, but we're getting awful close to impinging on his right to remain silent.
[The Court]: Exactly. Why would you ask this? Post arrest silence. You can't do that.
[Prosecutor]: No. Well, after he Mirandized him, then Ray, Trooper Andrekanic, informed him what he as being charged with and he volunteered and said he just beat me up. He wasn't questioned or asked what happened. After Miranda he said - -
[The Court]: Then don't go back over them about refusing to answer any question.
[Prosecutor]: Just remain - - the right to remain silent.
[Defense counsel]: I think the question is, what did he tell you happened.
[The Court]: Yeah. So you didn't ask him any question, that's right. Did he volunteer any statements.
[Prosecutor] Okay. . . .
* * *
SIDEBAR CONFERENCE - CONCLUDED
[Prosecutor] Trooper Andrekanic, after defendant had indicated that he wished to have an attorney, did you ask him any further questions at that time?
[Witness]: No, I didn't.
[Defense Attorney]: You Honor, I would ask for a curative instruction at this point.
[Trial Court]: Counsel approach.
SIDEBAR CONFERENCE - ON RECORD
[The Court]: Do you understand -
[Prosecutor]: Well -
[The Court]: He doesn't - - you didn't need the preface. Stop the prefacing. What kind of curative instruction?
N.T. Jury trial, 9/7 - 13/07, at 357-62. In response to counsel's request, the following cautionary instruction was promptly given by the trial judge to the jury:[Defense Attorney]: I should be asking for mistrial.
[Trial Court]: Yes.
[Defense Attorney]: But I don't want to do that at this point. We're almost through this thing. I'm just asking for an instruction.
[The Court]: You can't comment on his silence, his refusal, his failure, his decision not to make a statement. You can't comment on it.
[Prosecutor]: But the reason I asked him -
[The Court]: But the way you asked it is bad. The way you asked is bad. You're injecting an issue that didn't need to be in. It's bad.
* * *
[Defense Attorney]: Right. I would ask just to instruct the jury they're to disregard any comments or something, I don't know.
[The Court]: Okay.
* * *
SIDEBAR CONFERENCE - CONCLUDED.
Okay. Members of the jury, I just want to mention something to you. We talked during jury selection about Defendant has no duty to testify. One of the rights we all have is we have a right to refuse questioning. Those are commonly called Miranda Rights. You are not to draw any inference adverse to Defendant, you're to disregard anything about whether or not he gave any statement to the police in response to police questioning. He has a right not answer any police questions. That's the constitutional right all of us have.N.T. Jury trial, 9/7 - 13/07, at 362-63.
In denying this claim, the Superior Court of Pennsylvania found, in pertinent part:
[T]he Commonwealth made specific reference to Appellant's post-arrest silence. However, unlike in Commonwealth v. Redel, 484 A.2d 171, 176 (Pa. Super. 1984), the Commonwealth did not exploit its earlier reference to Appellant's silence by asking Appellant questions on cross-examination and by reiterating its point in its closing argument. Additionally, as requested by
counsel, a prompt and thorough curative instruction was given by the trial court. N.T. Jury trial, 97 - 13/07, at 363-363. Finally, we note that it is clear from the record that counsel contemplated asking for a mistrial but then determined that jury instructions would suffice because they were "almost through this thing." In fact, he indicated to the trial court that "[he was] just asking for an instruction." N.T. Jury trial, 9//7-13/07, at 357 - 61.
Because we find that the prompt jury instruction cured the improper references to Appellant's silence under these circumstances, Appellant's second argument fails.
As with his first due process claim, Wojnarowski must show that the Pennsylvania Superior Court's decision rejecting this claim was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.
The Supreme Court long has recognized that the conduct of the trial is regulated under the sound discretion of the trial judge, Herring v. New York, 422 U.S. 853, 862 (1975), and the trial court is in the best situation to intelligently determine if a mistrial is necessary. Gori v. United States, 367 U.S. 364, 368 (1961). Moreover, long standing Supreme Court precedent recognizes a judge's ability to mitigate potential prejudice through curative instructions. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Although there are some occurrences at trial that may be too clearly prejudicial for a curative instruction to mitigate their effect, see Bruton v. United States, 391 U.S. 123, 135 (1968) (admission of co-defendant's inculpatory confession too prejudicial to be cured through jury instruction), Petitioner has not made such a demonstration in the instant case.
There is no basis for this Court to disturb the Superior Court's decision as Wojnarowski has failed to show that the Superior Court's determination is contrary to, or an unreasonable application of controlling Supreme Court precedent. Accordingly, it is recommended that Claim Five be denied.
ii. The Ineffective Assistance of Counsel Claim (Claim Four)
In Claim Four, Wojnarowski claims that his trial counsel was ineffective for failing to consult with him about whether or not to request a mistrial. This claim was presented and rejected on the merits by both the PCRA Court and the Superior Court.
The clearly established federal law with respect to a claim of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires (a) that counsel's performance fall below an objective standard of reasonableness, and also (b) that the petitioner suffer prejudice as a result of counsel's error. The Pennsylvania standard for ineffective assistance of counsel is identical to the federal standard. Boyd v. Waymart, 579 F.3d 330, 334 (3d Cir. 2009).
In analyzing Wojnarowski's claims under the two-part test announced in Strickland, this Court must apply the standards set forth in section 2254(e) concerning the presumption of correctness applicable to state court factual findings. The question of effectiveness of counsel under Strickland is a mixed question of law and fact; it requires the application of a legal standard to the historical, fact determinations. Berryman v. Morton, 100 F.3d 1089, 1095 (3d Cir. 1996).
The Supreme Court of the United States reiterated the difficulty of prevailing on an ineffectiveness claim on habeas review:
The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal
law." A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal citations omitted). The Court further instructed:
Surmounting Strickland's high bar is never an easy task. 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. 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. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom.Harrington, 562 U.S. at 105 (internal citations omitted).
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential" and when the two apply in tandem, review is "doubly" so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.
Reviewing Wojnarowski's claim through AEDPA's deferential standards of review, this Court must conclude that the claim has no merit. Wojnarowski claims that had he been consulted he would have requested a new trial. The Superior Court held that because no evidentiary hearing had been held, the trial record provided no basis upon which to discern the basis of trial counsel's decision to forego requesting a mistrial. Therefore, the case was remanded with instructions for the PCRA court to hold an evidentiary hearing focusing "on trial counsel's rationale for not consulting Appellant, and whether that rationale can be found to constitute a 'reasonable basis designed to effectuate his client's interest'." Superior Court Memorandum, 3/23/2012 (ECF No. 13-3).
After the evidentiary hearing, at which both trial counsel and Wojnarowski testified, the PCRA court again rejected Wojnarowski's petition. The PCRA court acknowledged that there was conflicting testimony but found trial counsel's testimony credible:
[T]rial counsel testified that after the sidebar conference he spoke to the Defendant what had occurred during the sidebar. Trial counsel testified that he told the Defendant what the options were and why he chose to request a curative instruction. Trial counsel testified that the Defendant agreed with his decision. The Defendant argues that this conversation did not occur. The record does not indicate whether this conversation occurred and five years after the fact this Court cannot recall whether this conversation occurred. However, the fact that the Defendant testified before this Court that he knew at trial that the Commonwealth could not comment on his right to remain silent and he had some understanding of what a mistrial was, leads this Court to believe that trial counsel discussed the issue with the Defendant.PCRA Opinion at 9, Nov. 5, 2012 (ECF No. 13-4). Wojnarowski again appealed and the Superior Court affirmed, concluding as follows:
Also, this Court is not persuaded by the Defendant's argument that he would have asked for a mistrial knowing what he knows today. The duty that trial counsel has to consult with his client about important decisions pertaining to defense strategy does not require counsel to obtain the client's consent on every tactical decision. Commonwealth v. Brown, 18 A.3d 1147, 1158 (Pa. Super. 2011. Because this Court finds that trial counsel's decision not to move for a mistrial constituted a "reasonable basis designed to effectuate his client's interest," whether or not the Defendant agreed with trial counsel's strategy does not sway this Court.
Trial counsel need not obtain consent for "every tactical decision." See Commonwealth v. Brown, 18 A.3d 1147, 1158 (Pa.Super.2011) (citations omitted). Further, trial counsel is presumed to be effective, placing the burden of proving ineffectiveness on the defendant. Commonwealth v. McNeil, 487 A.2d 802, 806 (Pa. 1985) (citations omitted). During the evidentiary hearing, trial counsel cited to at least eight instances of testimony that supported his argument for involuntary manslaughter. See N.T. PCRA Hearing, 8/24/2012, at 8-12. This
is indicative of a tactical plan reasonably calculated to effectuate Wojnarowski's interests.Superior Court Memorandum, June 28, 2013, 2013 WL 11264577 (Pa. Super. Ct. 6/28/2013) ("Wojnarowski-V").
Trial counsel and Wojnarowski offered conflicting testimony whether counsel actually consulted Wojnarowski about the decision to ask for curative instructions rather than a mistrial. Id. at 13-15, 17, 19-22. The PCRA court heard the testimony and credited counsel's assertion that he discussed the issue with Wojnarowski. PCRA Court Opinion, 11/5/2012, at 9. The "trier of fact . . . is free to believe all, part, or none of the evidence and free to determine the credibility of witnesses." Commonwealth v. Solano, 906 A.2d 1180, 1186 (Pa. 2006).
For these reasons, we conclude that the PCRA Court did not abuse its discretion or commit an error of law when it denied Wojnarowski's request for relief.
In reviewing Claim Five, it is clear that the state courts applied the correct standard for ineffective assistance of counsel. The Court finds that the Superior Court's determination was neither an unreasonable application of Strickland nor did it "result[] in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1)-(2). For these reasons, it is recommended that Claim Five be denied.
E. The Procedurally Defaulted claims
As discussed supra, Claims One (subpart two), Two, Three, Six, Seven (including all subparts), Eight, and Nine (including all subparts) are procedurally defaulted. A petitioner who has defaulted a federal habeas claim can overcome the default, thereby allowing federal court review, if the petitioner can demonstrate "cause" for the default, i.e., that some objective factor "external to the defense" impeded efforts to comply with the state's procedural rule, and "actual prejudice." See Coleman, 501 U.S. at 750. Wojnarowski, relying on Martinez v. Ryan, 566 U.S. 1 (2012), argues that it was the ineffectiveness of his PCRA counsel that caused the default of these claims.
Wojnarowski raised Claim Three in his PCRA petition, but did not present this claim to the Superior Court on PCRA appeal.
For claims of ineffective assistance of trial counsel not preserved and thus defaulted on collateral review, Martinez provides a possible means for establishing cause to excuse the default. Under Martinez, a procedural default will be excused where "(1) the claim of 'ineffective of trial counsel' was a 'substantial' claim; (2) the "cause" consisted of there being 'no counsel' or only 'ineffective' counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the 'initial' review proceeding in respect to the 'ineffective-assistance-of-trial-counsel claim'; and (4) state law requires that an 'ineffective-assistance-of-trial-counsel [claim] . . . be raised in an initial-review collateral proceeding." Trevino v. Thaler, -- U.S. --, 133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 566 U.S. at 13-15). As the Supreme Court of the United States again recently stated, "a claim of ineffective of counsel defaulted in a [ ] postconviction proceeding may be reviewed in federal court if state habeas counsel was constitutionally ineffective in failing to raise [a Strickland claim] and the claim has 'some merit." Buck v. Davis, -- U.S. --, 2017 WL 685534, at *18 (Feb. 22, 2017) (quoting Martinez, 566 U.S. at 14).
Here, the third and fourth prongs of the Martinez exception are met as the PCRA proceeding was the "initial" review proceeding with respect to the "ineffective-assistance-of-trial claim" and Pennsylvania state law expressly requires the defendant to raise a claim of ineffective of assistance of trial counsel in an initial review proceeding.
The Court notes, however, that not all of Wojnarowski's procedurally defaulted claims relate to ineffective assistance of trial counsel. Of the claims that are procedurally defaulted, it is only Claims One (subpart two), Three and Seven that allege ineffective assistance of counsel at trial, and therefore, it is only those three claims that could potentially be rehabilitated under the narrow exception set forth in Martinez. As stated by Justice Kennedy in the majority opinion:
when a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance-of-trial-counsel claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective of assistance of counsel at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington. To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.Id. at 14. (emphasis added). The Supreme Court noted that its holding "does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings." Id. at 16
Pennsylvania requires claims of ineffective assistance of trial counsel to be raised in an initial-review collateral proceeding like a PCRA proceeding. Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (claims of ineffective counsel should be raised on collateral review).
The Court finds that even if a procedural default does not bar habeas review, Wojnarowski cannot prevail on his ineffectiveness claims under Strickland and, therefore, has no basis for a claim pursuant to Martinez. Reviewing Wojnarowski's Claims One (subpart two), Three, and Seven under AEDPA's deferential standards of review, the Court must conclude that said claims have no merit.
With respect to Claim One (subpart two), Wojnarowski asserts that his trial counsel was ineffective for failing to introduce medical records to rebut Nurse Dawn Shaw's testimony. This claim was raised generally and Wojnarowski has provided no facts to support his general allegation. Accordingly, the Court finds that he has failed to make a sufficient showing to justify habeas relief on this claim. See Mayberry v. Petsock, 821 F.2d 179, 187 (3d Cir. 1987).
Similarly, with respect to Claim Three, Wojnarowski has failed to prove that his trial counsel was ineffective due to his failure to move for a mistrial. During the evidentiary hearing, trial counsel testified that he asked for a curative instruction rather than a mistrial because he believed that the jury had heard a lot of evidence during the trial that was favorable to Defendant. He cited to at least eight instances of testimony that supported his argument for involuntary manslaughter. See N.T. PCRA Hearing 8/24/2012, at 8-12. Trial counsel testified that he believed that the evidence was favorable to the defense and he did not believe that the evidence could have been presented any better at a second trial. Id. at 7, 10-12. This testimony is "indicative of a tactical plan reasonably calculated to effectuate Wojnarowski's interests." Wojnarowski-V, at 2013 WL 11264577 at *4. Wojnarowski has failed to adequately prove that his attorney's failure to request a mistrial was unreasonable under Strickland.
Moreover, Wojnarowski has failed to adequately prove he was prejudiced by the actions of his trial counsel in connection with Claim Three. The jury convicted him of third degree murder. Trial counsel's belief that the evidence negated the mens rea required for first degree murder is supported by the verdict.
A prisoner cannot be excused from default if the underlying ineffectiveness claim is insubstantial, lacks merit or factual support, or the attorney on collateral review did not perform below constitutional standards. Martinez, 566 U.S. at 16. Accordingly, Claim Three should be denied as Wojnarowski has failed to demonstrate that trial counsel committed unreasonable errors, that he was prejudiced by said errors, or that his PCRA counsel was ineffective in failing to argue ineffective assistance on this ground. As such he cannot meet the requirements of Martinez and Strickland to overcome his procedural default with respect to Claim Three.
Likewise, with respect to Claim Seven and its fifteen (15) subparts all of which relate to ineffective assistance of counsel, again Wojnarowski has provided no facts to support his vague and general allegations. Accordingly, the Court finds that he has failed to make a sufficient showing to justify habeas relief on this claim. See Mayberry v. Petsock, 821 F.2d 179, 187 (3d Cir. 1987).
In sum, it is recommended that Claims One (subpart two), Three, and Seven (including all subparts) be denied as Wojnarowski has failed to demonstrate that these claims have any merit and, thus, has failed to meet the requirements of Martinez and Strickland to overcome the procedural default.
As to his four defaulted claims that do not allege ineffectiveness of counsel, i.e., Claims Two, Six, Eight, and Nine, Wojnarowski points to no evidence and makes no allegation concerning cause for the default or prejudice stemming therefrom. Nor has Wojnarowski sufficiently demonstrated "that this Court's refusal to reach the merits of [these] claims will cause a 'fundamental miscarriage of justice'." Coleman, 501 U.S. at 750. This only applies in extraordinary cases where the petitioner demonstrates that a constitutional violation has probably resulted in the conviction of one who is actually innocent. Hubbard v. Pinchak, 378 F.3d 333, 339-41 (3d Cir. 2004). It is not applicable to Wojnarowski's case.
Accordingly, the Court finds that Wojnarowski has provided no basis to overcome the default and Claims Two, Six, Eight, and Nine should be denied.
D. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a constitutional claim on its merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. Applying those standards here, the Court concludes that jurists of reason would not find it debatable whether each of Wojnarowski's claims should be dismissed. Accordingly, a certificate of appealability should be denied.
E. Conclusion
For all of the above reasons, it is respectfully recommended that the petition for a writ of habeas corpus be dismissed. It is further recommended that there is no basis upon which to grant a certificate of appealability.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner, because he is a non-electronically registered party, may file objections to this Report and Recommendation by March 20, 2017, and Respondents, because they are electronically registered parties, may file objections by March 17, 2017. The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge Dated: March 3, 2017 cc: THOMAS WILLIAM WOJNAROWSKI
HJ-5106
SCI Dallas
1000 Follies Road
Dallas, PA 18612
(via United States First Class Mail)
Jacquelyn A. Knupp
Westmoreland County District Attorney's Office
(via ECF electronic notification)