United States District Court, E.D. Pennsylvania
March 17, 2004.
JORGE NELSON Petitioner
DONALD T. VAUGHN, et al. Respondents
The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
MEMORANDUM AND ORDER
Before the court is Jorge Nelson's pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner has filed
timely objections to a Report and Recommendation ("R&R") issued by
Magistrate Judge Carol Sandra Moore Wells ("Judge Wells"). Nelson v.
Vaughn, No. 02-4776 (E.D. Pa. July 30, 2003) (R&R). The court has
conducted de novo review of the portions of the R&R to which specific
objections have been filed. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b).
For the reasons that follow, the court approves and adopts the R&R of
Judge Wells, and dismisses the Petition in its entirety.
On July 11, 1989, the Honorable John J. Poserina, Jr., Philadelphia
Court of Common Pleas, convicted petitioner of two counts of second
degree murder (felony murder),*fn1 first degree
robbery,*fn2 burglary,*fn3 conspiracy*fn4 and possession of an
instrument of crime.*fn5 Subsequent to the filing of petitioner's pro
se post-verdict motions, his trial counsel, Dennis Eisman, Esq. was
permitted to withdraw. Additional post trial motions were filed by
petitioner's new court appointed counsel, Mitchell Scott Strutin, Esq.
Following an evidentiary hearing, Judge Poserina denied all post-verdict
motions. On December 11, 1990, petitioner was sentenced to two concurrent
terms of life imprisonment and a consecutive sentence of five to ten
years for conspiring to kill two men.
On January 17, 1991, in an appeal to the Superior Court of
Pennsylvania, petitioner alleged that:
1. Trial counsel rendered ineffective assistance
of counsel when he failed to object to the
testimony of Assistant Medical Examiner Paul
Hoyer that the killing of Nathaniel Boone was
of an "execution type."
2. Trial counsel rendered ineffective assistance of
counsel when he failed to object to Commonwealth
testimony of the defendant's silence at the time of
his arrest and failed to request a cautionary
instruction regarding this testimony. The
Commonwealth elicited testimony from Michael Cohen
that the defendant, at the time of his arrest,
failed to acknowledge the fact that he was
Jorge Nelson and not George Dixon.
3. Trial counsel rendered ineffective assistance of
counsel when he failed to present the testimony of
Michael Collier on defendant's behalf. Had Collier
been called as a witness at trial, he would have
testified that three men, two black men and one
white man were seen leaving the scene of the
crime. Collier's eyewitness testimony was relevant
and may have exonerated the defendant.
Commonwealth v. Nelson, Nos. 2181-2190 (Ct. Com. Pl. Crim. Trial Div. Jan
17, 1991)(Statement of matters complained of on appeal). The Superior
Court affirmed the judgment of sentence, Commonwealth v. Nelson,
601 A.2d 372
(Pa. Super. 1991) (table), and the Supreme Court declined
review of the same three claims. Commonwealth v. Nelson, 607 A.2d 252
With the assistance of counsel, petitioner filed a petition for
collateral relief pursuant to Pennsylvania's Post Conviction Relief Act
("PCRA"). Petitioner alleged the same three ineffective assistance of
counsel claims. Commonwealth v. Nelson, No. 2181 (Ct. Com. Pl. Crim.
Trial Div. Pa. Cty.) (Petition for Relief under the PCRA); the PCRA court
dismissed the petition. Commonwealth v. Nelson, Nos. 2182-83, 2185-88,
2190 (Ct. Com. Pl. Crim. Trial Div. 9/29/97)(order).
Petitioner, in the Superior Court of Pennsylvania, asserted new claims
that trial counsel was ineffective in: (1) failing to object to the
introduction of hearsay testimony that identified petitioner and provided
a motive for the crime; (2) interfering
with petitioner's right to testify in his own defense; and (3) failing to
impeach the credibility of the Commonwealth's sole eyewitness, who
offered inconsistent statements during preliminary examination and motion
to suppress hearings. The Superior Court remanded the case for an
evidentiary hearing on the issue of Mr. Nelson's right to testify.
Commonwealth v. Nelson, No. 4490 (Pa. Super. 1999) (Appeal from the PCRA
Order). At the conclusion of an evidentiary hearing, the PCRA court found
that petitioner's decision not to testify was knowing, intelligent and
voluntary. Commonwealth v. Nelson, No. 3496 at 3 (Pa. Super. 2002).
Neither trial nor appellate counsel were found ineffective. Id.
Petitioner, appealing the decisions of the PCRA court on remand
alleged: (1) the PCRA court's finding of facts and conclusions of law as
to the alleged ineffective assistance of trial counsel were clearly
erroneous; and (2) the PCRA court had erred in finding that petitioner's
claim of ineffective assistance by appellate counsel had been waived.
Nelson, No. 3496 (Pa. Super. 2002). The Superior Court, upholding the
PCRA court's decision, denied petitioner's first issue on the merits and
rendered the second issue moot. Id. The Pennsylvania Supreme Court denied
petitioner's timely petition for allowance of appeal. Commonwealth v.
Nelson, No. 81 (Pa. 2002); see also Resp. at Exh. "D."
Petitioner filed the instant petition pro se, Petitioner
asserts: (1)(a) trial counsel was ineffective for failing to object
to expert opinion testimony that one of the killings had been "execution
type"; (1)(b) expert opinion testimony was insufficient to establish
malice beyond a reasonable doubt; (2)(a) trial counsel was ineffective
for failing to object to testimony regarding his post-arrest silence;
(2)(b) his Fifth Amendment right to remain silent was violated when
police officers testified that petitioner had used an alias when he was
arrested; (3) trial counsel was ineffective for failing to interview and
call Michael Collier as a defense witness; and (4) the trial court and
trial counsel abridged his right to testify.
II. The Report and Recommendation
The petition was referred to Judge Wells who recommended that the
petition be denied without an evidentiary hearing and that no certificate
of appealability be issued. Petitioner filing timely objections to the
R&R, alleged that Judge Wells erred*fn6 in: (1) not referring to
petitioner's traverse and exhibits; (2) finding petitioner's malice and
Fifth Amendment claims procedurally defaulted; (3) finding that petitioner
failed to rebut the state court factual findings; (4) finding counsel was
not ineffective for not challenging two of the Commonwealth's witnesses;
(5) finding counsel was not ineffective for not
objecting to the testimony of Assistant Medical Examiner Paul Hoyer; (6)
finding counsel was not ineffective for not objecting to testimony
regarding petitioner's post-arrest use of an alias; (7) finding counsel
was not ineffective for not calling Michael Collier as a defense witness;
and (8) finding that petitioner's right to testify was not denied.
The court has conducted a de novo review of those portion of the R&R
to which petitioner has filed objections.
The Antiterrorism and Effective Death Penalty Act*fn7 ("AEDPA")
increases the deference federal courts must give to state court habeas
decisions. A federal habeas court may overturn a state court's
constitutional determination only if the state court's decision was
"contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(1). A federal habeas court also may overturn
a state court decision if it "resulted in a decision that was based upon
an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding." Id. § 2254(d)(2). State court
factual findings are only rebutted upon showing of clear and convincing
evidence. Id. § 2254(e)(1).
Petitioner advances several ineffective assistance of
counsel claims. The United States Supreme Court has recognized that the
right to counsel is the right to the effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 694 (1984). Counsel can also
deprive a defendant of the right to effective assistance, by failing to
render adequate legal assistance. The proper standard for attorney
performance is that of reasonably effective assistance; to state a claim of
ineffective assistance, the defendant must show that counsel's
representation fell below an objective standard of reasonableness that
could not be explained as sound trial strategy. Id. at 687-688.
There is a presumption that counsel is effective. To prevail on a claim
of ineffective assistance, a petitioner must not only prove that counsel
was ineffective, Id. at 694, but also satisfy the but for counsel's
error, "the result of the proceeding would have been different" or that
the ineffectiveness was "sufficient to undermine confidence in the
outcome." Id. If either of these is not established, a claim of
ineffective assistance must fail.
1. Objection 1.
Petitioner objects that the R&R makes no specific reference to his
"traverse and exhibits." Although there is no express mention of these
documents, it is clear Judge Wells did consider them. Judge Wells was not
required to explicitly state every document she reviewed in preparing the
R&R. The court has
reviewed these documents and determined that nothing contained in
them changes the outcome.
2. Objection 2.
Petitioner argues that claims his claims that malice was never
established and a violation of his Fifth Amendment right to remain silent
are not procedurally defaulted, but exhausted because both are
"reformulations . . . as expressed and affirmed by the state courts." A
claim is exhausted if it has been "fairly presented" once to the state's
trial court, intermediate appellate court, and highest court.
28 U.S.C. § 2254(b); Evans v. Court of Common Pleas, Delaware County,
Pennsylvania, 959 F.2d 1227, 1230-1231 (3d Cir. 1992). Petitioner admits
that his claim that malice was never established has not been previously
raised. Petitioner asserts that his claim of a Fifth Amendment violation
(when the jury was told that he did not respond to his true name during
police interrogation, claim 2(b)) is related to an exhausted claim (claim
2(a)) and is therefore reviewable. Claim 2(b) was never "fairly
presented" to the state courts and is unexhausted.
When an issue is unexhausted and further direct or collateral review in
state court is foreclosed, the claim is deemed procedurally defaulted for
purposes of federal review. See Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991); 28 U.S.C. § 2254(b)(1)(A); 42 Pa.C.S. § 9544(a)-(c). A procedurally
defaulted claim must be dismissed unless petitioner shows both
"cause" for the default and "actual prejudice" as a result of the
violation, or that the court's failure to consider the claims will result
in a fundamental miscarriage of justice. Petitioner has not shown or
alleged any facts sufficient to show cause to excuse his failure to
present these claims on collateral review. Petitioner's defaulted claims
will be dismissed.
3. Objection 3.
Petitioner argues that Judge Wells erred in finding he failed to rebut
the state court factual findings. Petitioner argues that Judge Wells only
referred to respondent's pleadings and documents and ignored petitioner's
traverse and exhibits. It is clear from the R&R that Judge Wells
considered all the relevant documents. A magistrate judge is not required
to state explicitly every exhibit considered in preparing the R&R.
The court has reviewed the documents and they don't change the outcome
because petitioner has failed to rebut the state court's factual findings
by clear and convincing evidence.
4. Objection 4.
Petitioner argues that Exhibits A to G show ineffective assistance of
trial counsel in not challenging state witnesses Donald Latimer and
Detective Cohen. Judge Wells was correct that petitioner is unable to
overcome the presumption that the challenged action might be considered
sound trial strategy. Regardless, the court has reviewed inter alia,
Exhibits A to G and determined that no prejudice can be established.
5. Objection 5.
Petitioner contends that he was prejudiced because trial counsel did
not object when the prosecution expert characterized the killing as
"execution type." Even if counsel were ineffective in not objecting to
this testimony, no prejudice has been established. The result of the
trial would not have been different had trial counsel objected to the
6. Objection 6.
Petitioner argues that trial counsel was ineffective when he did not
object to testimony regarding petitioner's use of an alias when he was
arrested. Under Pennsylvania law, an inference of guilt based upon use of
an alias is permissible; this testimony was not objectionable. Counsel is
not required to make frivolous objections; counsel was not ineffective.
7. Objection 7.
Petitioner contends that trial counsel was ineffective in failing to
interview and call Michael Collier as a defense witness. Petitioner
cannot establish that the missing evidence would have been helpful. Trial
counsel possessed information concerning the unreliability of Michael
Collier as a witness. Petitioner cannot establish that the decision not
to call Michael Collier was other than sound trial strategy. Counsel was
not ineffective for this reason.
8. Objection 8.
Petitioner argues that his right to testify on his own behalf was
abridged. A review of the record shows that the state courts correctly
found petitioner was given adequate opportunity to testify. Also, trial
counsel was exercising sound trial strategy in not telling petitioner to
testify because petitioner's prior criminal record would have then been
For the reasons stated above, and in the R&R, the petition for writ
of habeas corpus is denied.
AND NOW, this 17th day of March 2004, upon careful and independent
consideration of the petition for writ of habeas corpus, and after review
of the Report and Recommendation of United States Magistrate Judge Carol
Sandra Moore Wells, and the objections filed thereto, it is hereby
1. The objections to the Report and Recommendation are OVERRULED.
2. The Report and Recommendation is APPROVED and ADOPTED.
3. The petition for writ of habeas corpus filed pursuant to
28 U.S.C. § 2254 is DENIED WITHOUT AN EVIDENTIARY HEARING.
4. A certificate of appealability will not issue.