The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Presently before the court is a counseled petition for writ of habeas corpus (Doc. 1) in which petitioner, Hilton Mincy ("Mincy")*fn1 , challenges a Pennsylvania state conviction. For the reasons set forth below, the petition will be denied.
The following statement, which is extracted from an opinion of the Superior Court of Pennsylvania, succinctly sets forth the pertinent factual background:
On September 19, 1997, at or around 8:30 p.m., appellant engaged in a verbal altercation with the victim, Albert Johnson, outside the Shamrock bar in Williamsport. Both men wanted to fight and when appellant attempted to take off his watch, the victim took a swing at him but missed. The victim's female companion intervened pushing the victim into her vehicle located nearby. The vehicle containing the victim immediately left the scene but during the departure, appellant yelled, "this ain't over." N.T., 5/13/98, at 40-42.
At or around 9:00 or 9:30 p.m., appellant and a companion arrived at the residence owned by Kariemma [sic] Morrison's mother located at 622 Second Street. Present in the house at appellant's arrival were Karriema Morrison, her friend "Howey", and an unidentified friend of Howey's. Immediately after appellant and his companion entered the house, the companion entered the kitchen and began asking Howey's friend whether he was Albert Johnson. Appellant's companion eventually pulled a gun. At this point, appellant intervened stating "don't shoot him, he ain't Albert." N.T., 5/12/98, at 23. Appellant then looked around the house for Albert Johnson and interrogated Karriema Morrison regarding Albert Johnson's whereabouts. Appellant and his companion soon left the residence; their stay extended approximately 15 minutes.
Shortly thereafter, or approximately 9:30 p.m., Albert Johnson was watching television and drinking beer at 750 Second Street when appellant and his companion kicked in the front door, the companion again with his gun drawn, and told the victim not to move. Appellant demanded the whereabouts of the guns, cocaine, and money. Johnson answered that he had no idea what appellant was talking about. Appellant began a search of the house. During the search, appellant had the victim lie on the floor and had his companion point the gun at the back of the victim's head. When the victim tried to roll over, the companion struck the victim in the head with a barrel of the gun. Appellant directed his companion to bring Johnson on their search of the upstairs. During this time, the victim continued to have the gun pointed at the back of his head. In one upstairs bedroom, appellant began searching the drawers and again inquired where the guns were; the victim continued to plead ignorance. After pulling out all of the drawers in the room and not finding guns, drugs, or money, appellant instructed his companion to "go ahead and bust him son". N.T., 5/11/98, at 39-40. Under the impression that he was bout [sic] to be shot, Johnson pushed the companion away and attempted to flee down the steps. The victim's escape failed as appellant's companion opened fire and repeatedly hit him.
Johnson was shot in three places: the chest, abdomen, and back. Despite the gunshot wounds, he made it to a neighbor's house, who refused to assist, and he then wandered out towards the street. Soon thereafter, the police were called and the paramedics summoned. The victim was transported to the emergency room. The seriousness of his injuries required surgery and resulted in a colonostomy and the removal of a portion of his bowel.
On September 20, 1997, appellant was apprehended and charged with the following offenses: attempted homicide, possession of a firearm, possession of an instrument of a crime, aggravated assault for causing serious bodily harm, aggravated assault for attempting or causing bodily injury with a deadly weapon, recklessly endangering another person, simple assault for attempting or causing bodily injury and simple assault for negligently causing bodily injury with a deadly weapon. Meanwhile, appellant's companion has not been identified or prosecuted. On February 19, 1998, the trial court allowed appellant's information to be amended to include a count for criminal conspiracy.
A three-day jury trial commenced on May 11, 1998. The jury returned a guilty verdict on the following: attempted murder, aggravated assault for causing serious bodily injury, aggravated assault for causing bodily injury with a deadly weapon, conspiracy, and reckless endangerment of another person. Appellant was acquitted of the charges for possessing a firearm and possessing an instrument of crime.
On September 28, 1998, appellant was sentenced to a period of state incarceration with a minimum term of 17 years and a maximum term of 40 years for attempted murder. The court determined that the convictions for aggravated assault and recklessly endangering merged for sentencing purposes while the conspiracy count was an inchoate offense pursuant to the Pennsylvania Crimes Code, 10 Pa.C.S.A. §101 et seq., and did not justify an additional sentence. (Doc. 9-2, pp. 1-5).
Following his sentencing, Mincy filed a motion to reconsider his sentence. The trial court instructed him to wait until he was appointed appellate counsel to file the motion. Although appellate counsel was subsequently appointed, the reconsideration motion was never re-filed.
Mincy then challenged his judgment of sentence in the trial court. The trial court upheld the judgment on June 30, 1999. (Doc. 9-7). He appealed to the superior court raising the following relevant issues: whether trial counsel was ineffective for failing to conduct a proper investigation and to call witnesses; whether trial counsel was ineffective in failing to impeach the victim; and whether the trial counsel was ineffective in failing to object to the trial court's decision not to remove a juror who admitted reading about Mincy in a newspaper headline during the course of the trial. (Doc. 9-2, pp. 5-6). The judgment was affirmed on February 27, 2001. (Doc. 9-2). No petition for allowance of appeal was filed. (Doc. 1, p. 2).
On October 22, 2001, Mincy filed a petition pursuant to the Post Conviction Relief Act ("PCRA"). Counsel was appointed and an amended petition was filed on March 25, 2002. On June 26, 2002, the PCRA court notified the parties that it intended to dismiss the amended PCRA petition. (Doc. 9-3). An order of dismissal was entered on December 10, 2002. (Doc. 9-4, p. 1). Mincy timely appealed raising the following pertinent issues: whether the PCRA court erred in denying Mincy's request to continue the hearing to develop the issue of trial counsel's failure to interview or call certain witnesses; whether the PCRA court erred in failing to grant the petition based on ineffective assistance of counsel, and whether the PCRA court erred in denying the petition in light of the fact that Mincy had filed a motion for reconsideration of his sentence and the lower court failed to accept his motion before appeal counsel was appointed. On January 9, 2004, the superior court affirmed the dismissal of the PCRA petition. Mincy filed a petition for allowance of appeal. On September 16, 2004, the supreme court denied allocatur.
The present petition was filed on February 8, 2005.
II. Claims Presented in Federal Petition
In the instant petition, Mincy raises ineffective assistance of trial and appellate counsel, and abuse of discretion on the part of both the trial and PCRA courts.
A. Ineffective Assistance of Counsel
Mincy contends that trial counsel was ineffective for failing to investigate and call certain witnesses at trial, namely, Alicia and Erica (last names unknown), Shaquona Short (also known as Keshawn Mills), Hikeem Grady, Juay Brokenbaugh, and Jesus Flores. (Doc. 1, pp. 4-8). This issue was included in his direct appeal. (Doc. 9-2). The superior court, which considered the issue to be "vaguely" presented, stated that "we have not been directed to nor can we find any affidavit or objective proof that any non-called witness was willing to testify favorably, if at all. We find appellant has failed to meet the above requirements for any named witness with his unsubstantiated allegations. Commonwealth v. Lopez, 739 A.2d 485 (Pa. 1999); Commonwealth v. Copenhefer, 719 A.2d 242, 254 (Pa. 1998)." Id. at p. 12.
Mincy again raised the issue in the PCRA proceedings. The PCRA court concluded that he was not entitled to relief because the issue was previously litigated on direct appeal, 42 PA.C.S.A. § 9543(a)(3). (Doc. 9-3, p. 6 (citing Commonwealth v. Mincey, 1595 HBG 1998, at 11-13 )). Moreover, if the issue had not been previously litigated, it would have been deemed waived since it could have been raised on appeal, 42 PA.C.S.A. § 9544(b). (Id.). The PCRA court also noted that, even if the issue was properly preserved, no evidentiary hearing would have been necessary because the defense "failed to submit a certification from any of the alleged alibi witnesses as required by Section 9545(d)(1)."*fn2 (Id. at p. 7). Mincy did not pursue the issue during PCRA appellate proceedings. (Doc. 9-16).
Mincy also argues that trial counsel was ineffective for failing to impeach the victim, Albert Johnson, as to "his numerous inconsistencies and the recantation of his previous statements." (Doc. 1, p. 8). However, not all of the alleged inconsistencies set forth in his federal petition were presented to the state courts. Specifically, Mincy did not raise counsel's failure to impeach the victim concerning the location of his actual residence, or counsel's failure to expose the victim's extensive criminal record, in the state court proceedings.
The remaining issues were presented both in the direct appeal and in the PCRA proceeding. On direct appeal, the superior court noted that although Mincy argues that there were inconsistent statements made by the victim, he failed to identify the nature of the statements.*fn3 The court concluded that regardless of the substance of the inconsistent statements, which in all likelihood involved the victim's statements that he did not know whether the defendant or his cousin was the shooter, Mincy would still be accountable based on theories of accomplice or co-conspirator liability. (Doc. 9-7, pp. 9, 10).
This issue was revisited during the PCRA proceedings. At that time, the ineffectiveness claims relating to the failure to impeach the victim concerned the condition of the front door of the victim's cousin's apartment, whether shots were fired from the stairs, and the fact that the victim identified the companion as Mincy's cousin even though the victim did not see the companion's face. (Doc. 9-4, p. 7). The PCRA court found that "the trial's outcome was not prejudiced by these alleged inconsistencies because the record establishes that [Mincy] entered the apartment with the accomplice and shot the victim. The amount of force used to gain entry, the exact location of the shooter(s), and [c]ompanion's actual identity affect only the manner which the crime was executed, not [Mincy's] guilt. " (Doc. 9-4, pp. 7-8).
His contention that trial counsel was ineffective, for failing to challenge the victim's statement that he did not have drugs on his person the night of the shooting (Doc. 1, p. 10), was presented in the PCRA proceedings. (Doc. 9-3, p. 10). Trial counsel repeatedly asked the victim on cross-examination whether there were drugs on his person during or after the incident. (Doc. 9-3, p. 10, citing N.T., 5/11/98, at 52, 79, 84-85). Further, the court observed that an appropriate method of impeachment would have been to call the witness or witnesses who found the drugs on the victim's person or were present when the drugs were found. Although counsel did not pursue this issue in the manner suggested (albeit post facto), the PCRA court concluded that it would not have affected the outcome of the trial. The PCRA court based its conclusion on the re-direct examination of Mr. Johnson, during which he testified that while "he was in the hospital he was in a lot of pain and he was not aware of anybody taking drugs from his person. N.T., 5/11/98, at 85-87." (Doc. 9-3, p. 11).
Mincy also raises two ineffectiveness claims with regard to witness Karriema Morrison ("Morrison"). (Doc. 1, pp. 11-13). The claim that trial counsel failed to impeach Morrison, by suggesting that she was "high" on pills the night of the shooting and that she had written a letter to Mincy stating that she had been high, was also presented in the PCRA petition. (Doc. 1, p. 11; Doc. 9-3, p. 8). However, this issue was not pursued on appeal of the denial of the petition.
Mincy also argues that trial counsel was ineffective for failing to object to the prosecution's use of a prior statement to refresh Morrison's recollection. (Doc. 1, p. 11). In considering the argument, the PCRA court stated that prior to allowing a witness to have his or her memory refreshed, "[t]he proponent must establish that:
1) the witness's present memory is inadequate; 2) the writing or other aid could refresh the witness's memory and 3) the writing or other aid actually refreshes the witness's memory." (Doc. 9-4, p. 6). Mincy's argument failed because Morrison had conceded that she did not know whether Mincy's companion had a gun and she couldn't remember what she told police about the incident. She then read her statement, which refreshed her recollection. In ...