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Crocker v. Klem

December 9, 2008

TYSHEEM CROCKER, PETITIONER,
v.
EDWARD J. KLEM, RESPONDENT.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

I. Introduction

Tysheem Crocker is a state prisoner proceeding through counsel on an application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Crocker challenges a 1999 murder conviction in the Court of Common Pleas of York County, Pennsylvania. He raises several claims of ineffectiveness of counsel, trial court error, and insufficiency of the evidence. After careful consideration of the entire record and the applicable law, the petition will be denied, as will Crocker's two pending motions for discovery.

II. Factual Background

In January of 1999, Crocker and co-defendant Melvin Bethune, Jr., were tried before a jury on charges of first degree murder and criminal conspiracy in the October 5, 1997 shooting death of Raymond Clark. Crocker acknowledges that the Pennsylvania Superior Court opinion addressing his appeal from the denial of his first petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq., "fairly summarizes the prosecution and defense evidence from the trial." (Doc. 11, Crocker's Supplemental Habeas Brief, at R. 5.*fn1 ) As the Superior Court reported:

[Crocker] and Melvin Bethune were members of a gang in the York, Pennsylvania, area called "The Cream Team." Also in the York area was a rival gang called "The Gods." On October 5, 1997, following a dispute between the two groups, [Crocker] and Bethune traveled from York to New York to recruit manpower in order to retaliate against members of The Gods. The motivation for the retaliation was the members of The Gods had assaulted Bethune earlier that day. [Crocker] and Bethune returned from New York with three individuals, including a man named "Corleone." This group and fellow Cream Team member Danny Steele ("Steele") went to the Super 8 Motel in York to plan the assault. The men decided they would shoot "Do-Work," who was the head of The Gods and whomever was with him. They planned to attack The Gods at its usual hang out on Maple Street. [Crocker] and the others left the motel and drove to Maple Street. They parked their car and entered a home on Maple Street where they had stored guns. They retrieved their guns and proceeded to a corner where they had been advised members of The Gods were playing dice. Do-Work was playing dice along with a number of people including Raymond Clark ("Clark"). [Crocker] and his co-conspirators approached. [Crocker] drew a gun on Do-Work and stated, "What's up now, yo?" N.T. Trial, 1/11/99, at 54. [Crocker] attempted to fire his gun at Do-Work, but it jammed. Immediately thereafter, other members of The Cream Team began firing at the people playing dice. The dice players ran, and [Crocker's] group chased them.

Steele, Corleone, and another unnamed co-conspirator chased Clark. Corleone shot Clark twice, fatally wounding him. Do-Work escaped. [Crocker], Steele, and Bethune were all identified by witnesses as having been involved in the shootings and were arrested. Steele agreed to testify for the Commonwealth in return for unspecified consideration in the criminal proceedings against him. . . .

At trial, [Crocker] testified in his own defense as follows. He has been friends with Steele and his co-defendant Bethune, for at least 10 years. He was part of a group called "The Cream Team," but they were not a gang. Earlier in the day on October 5, 1997, The Gods surrounded a house where The Cream Team was staying. [Crocker] ran out of the back of the house because The Gods were carrying guns. Later, Bethune stated that he had been attacked from behind, and that he did not see who did it. [Crocker] stated that he had an idea who it was, and that he was going to talk to Do-Work to get rid of the problem. He and Bethune drove to New York City, went shopping for approximately an hour on Canal Street, and arrived back in York at approximately 10:00 or 10:30 that night. In total, [Crocker] spent between six and eight hours on the road to do one hour of shopping.

When [Crocker] arrived back in York, Steele told him that Steele was having problems with Do-Work. Steele was very agitated, and said that he had guns in a third party's house. [Crocker] stated that he could talk to Do-Work without guns. Nevertheless, he retrieved a gun from the house and approached Do-Work. Do-Work walked toward [Crocker], and they met on a corner. [Crocker] did not see anyone else during his conversation with Do-Work. A few words were exchanged between [Crocker] and Do-Work, but [Crocker] did not draw a gun. [Crocker] heard gunshots from an unknown source, ran away, and left the gun near a fence. At first, [Crocker] stated that he knew the gun was broken as he approached Do- Work, but later he testified that he did not know the gun was broken until after he ran away from the gunshots. At one point, [Crocker] began to say that the gun 'jammed,' but later he stated that he simply knew the gun was broken. He did not go to the motel before this incident took place. He did, however, go to the motel after midnight on the night of the shooting. ((Doc. 18-2, App. A, Commonwealth v. Crocker, No. 1392 MDA 2001 (Pa. Super. Aug. 12, 2002), RR. 2-5).

III. Procedural History

On January 15, 1999, the jury found Crocker and Bethune guilty of first degree murder and criminal conspiracy to commit murder. Both were later sentenced to life imprisonment for the first degree murder conviction and a concurrent term of 20 to 40 years on the conspiracy charge.*fn2 Following the denial of post-sentence motions, Crocker filed a direct appeal. By opinion dated April 21, 1999, the trial court issued an opinion pursuant to Pa. R. APP. 1925(a), finding all issues presented on appeal to be without merit. (Doc. 36-5, RR. 56-71). The Superior Court affirmed the judgment of conviction on December 16, 1999. (See Doc. 36-6, Commonwealth v. Crocker, 750 A.2d 366 (Pa. Super. 1999)(Table, No. 00483 MDA 99)). The Pennsylvania Supreme Court denied allowance of appeal on September 5, 2000. Commonwealth v. Crocker, 761 A.2d 548, 563 Pa. 698 (Pa. Sept. 5, 2000). Crocker did not seek a writ of certiorari from the United States Supreme Court.

On September 14, 2000, Crocker commenced the first of three proceedings under the PCRA. Counsel was appointed to represent Crocker. The trial court, now serving as the PCRA court, held an evidentiary hearing on March 2, 2001, at which Crocker raised, inter alia, two ineffective assistance of counsel claims: (1) counsel's failure to investigate the issue of when the motel room (where the criminal conspiracy allegedly took place) was rented; and (2) counsel's failure to interview and call at trial two known witnesses to testify that Crocker did not travel to New York City, as alleged, to recruit someone to commit the murder. Crocker also presented a "new evidence" claim that Steele, the Commonwealth's main witness, testified in error at trial when he stated that the meeting in the motel room took place prior to the murder. Crocker's trial counsel and Danny Steele also testified. After hearing the evidence, the PCRA court issued an order from the bench dismissing the petition. (See Doc. 18-2, App. C at RR. 24-65.) Crocker failed to file a timely appeal.

Crocker then filed a second PCRA petition seeking to reinstate his PCRA appellate rights as his lawyer had failed to file an appeal. Crocker's appeal rights were reinstated on July 20, 2001, and new counsel was appointed and filed an appeal on August 15, 2001. (See Doc. 18-2, App. A at RR. 1-19.) The Superior Court affirmed the PCRA court's decision on August 12, 2002. (Id.)

On May 15, 2003, Crocker filed his third PCRA petition, asserting the discovery of new evidence in the form of Steele's sentencing transcript. (Doc. 24, Traverse, Ex. at RR. 8 -10.) On June 11, 2003, the PCRA court dismissed the petition as untimely. (Id.) Crocker took an appeal to the Superior Court, raising the following issues:

(1) Is [Crocker] entitled to a new trial based upon prosecutor (sic) misconduct that the Commonwealth failed to disclose and actively concealed a plea agreement with its chief witness, Danny Steele, in exchange for Steele's favorable testimony?

(2) Is Crocker entitled to a new trial based upon newly-discovered evidence that conclusively proves he did not rent a motel room at the asserted time and therefore did not enter into a conspiracy prior to the shooting?

(3) Is Crocker entitled to a new trial because all prior counsels [sic] rendered ineffective assistance such that a miscarriage of justice is shown? (Doc. 18-2, App. B at RR. 22-23, Commonwealth v. Crocker, No. 1104 MDA 2003 (Pa. Super. May 11, 2004). The Superior Court affirmed the PCRA court's determination that Crocker's claim concerning Steele's plea agreement was untimely. The Superior Court also found that the motel check-in issue had been waived because it was not presented to the trial court, but was instead asserted for the first time on appeal. Crocker's petition for allowance of appeal to the Supreme Court of Pennsylvania was denied on January 20, 2005. See Commonwealth v. Crocker, 868 A.2d 1197 (Pa. Jan. 20, 2005).

On September 29, 2003, Crocker, proceeding pro se, commenced this habeas corpus action in this Court without awaiting the conclusion of the state court consideration of his third PCRA petition. This Court stayed the case pursuant to Crews v. Horn, 360 F.3d 146 (3d Cir. 2004), as the petition was timely but contained exhausted and unexhausted claims that were the subject of his third PCRA petition. The stay was lifted after the Pennsylvania Supreme Court denied review of Crocker's third PCRA petition. (Doc. 12.) Respondent answered the Petition on April 25, 2005. (Doc. 18.) Crocker filed a Traverse on June 13, 2005. (Doc. 24.) A month later, Crocker filed a motion for appointment of counsel, which was denied without prejudice. (Doc. 26.) Crocker then obtained private counsel who sought, and received, permission to file an amended habeas corpus petition.

An amended habeas petition was filed on June 7, 2007, raising the following seven claims: (1) trial counsel was ineffective in failing to properly investigate the Commonwealth's contention as to when Crocker rented the motel room where the conspiracy to kill the leader of a rival gang was hatched and which formed the basis for the conspiracy and first degree murder charges against Crocker; (2) trial counsel was ineffective for failing to interview and produce for trial two known witnesses who would have testified that they accompanied Crocker on his shopping trip to New York City; (3) trial counsel was ineffective for failing to object to the jury instruction on character evidence; (4) trial counsel was ineffective for failing to object to or request clarification of the Commonwealth's characterization of their plea agreement with Danny Steele; (5) the trial court's jury instruction on specific intent, particularly in the context of transferred intent, permitted a finding of guilt without finding beyond a reasonable doubt that Crocker had the specific intent to kill; (6) insufficiency of the evidence to prove specific intent to kill; and (7) insufficiency of the evidence to prove the elements of accomplice liability. (Doc. 35.) Respondent filed an Amended Response to the Petition for Writ of Habeas Corpus. (Doc. 38.) Crocker did not file an Amended Traverse.

Also presently pending before this Court are two similar discovery motions filed by Crocker. (Docs. 39 and 40.) Specifically, Crocker seeks to take the deposition of Teri Flinchbaugh, the desk clerk on duty the evening Crocker checked into the Super 8 Motel under the alias of Shondle Shambles. Crocker claims that a "statement recently obtained by Petitioner's investigators" confirms that Ms. Flinchbaugh checked Crocker into the hotel during her shift between 11:00 p.m. and 7:00 a.m., i.e., after the fatal shooting. (Doc. 39, Discovery Request at R. 5, ¶ 21.) Crocker argues that requested discovery will conclusively prove Crocker did not check into the Super 8 Motel until after Clark's murder. (Id.)

IV. Standard of Review

A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 must first exhaust all state remedies prior to federal court review. See 28 U.S.C. § 2254(b)(1). Review of a claim for relief adjudicated on the merits by the state courts is limited to determining whether the state court decision is "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), or "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." 28 U.S.C. § 2254(d)(2); Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004). The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning. Williams v. Taylor, 529 U.S. 362, 405 (2000); Outten v. Kearney, 464 F.3d 401, 413 (3d Cir. 2006).

To label a state court decision "contrary to" clearly established United States Supreme Court precedent, the state court must have reached "a conclusion opposite to that reached by the [Supreme Court] on a question of law or . . . decides a case differently than the [Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. An "unreasonable application" results where the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. Stated otherwise, a state court decision is an unreasonable application under § 2254(d)(1) if the state court "either unreasonably extends a legal principle from the Supreme Court's 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." Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002). Moreover, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411.

A federal court may also grant relief under 28 U.S.C. § 2254(d)(2) where the state court based its decision on an "unreasonable determination of the facts in light of the evidence presented in the State court proceedings." However, pursuant to "28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's determinations of factual issues are correct," and a habeas petitioner must present clear and convincing evidence to rebut the presumption of correctness. See 28 U.S.C. §2254(e)(1). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, "[a] habeas petitioner must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).

Similar to the "unreasonable application" prong of § 2254(d)(1), a factual determination should be adjudged "unreasonable" under § 2254(d)(2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. See 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003). "This provision essentially requires the district court to step into the shoes of an appellate tribunal, examining the record below to ascertain whether sufficient evidence existed to support the findings of fact material to the conviction." Breighner v. Chesney, 301 F. Supp. 2d 354, 364 (M.D. Pa. 2004) Mere disagreement with a credibility judgment or inference drawn by the state court is insufficient to permit relief. Porter, 276 F. Supp. 2d at 296. Only when the finding lacks evidentiary support in the state court record, or is plainly controverted by other evidence, should the federal habeas court overturn a state court's factual determination. Id. at 296

V. Discussion

A. Ineffective Assistance of Counsel Claims

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686-687 (1984). An ineffective assistance of counsel claim has two components: 1) counsel's performance fell below an objective standard of reasonableness; and 2) counsel's deficient performance actually prejudiced the petitioner's case. Id. The petitioner must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Where an error by counsel has no effect on the judgment a petitioner's claim must fail. Id. at 691 It is the petitioner's burden to establish both deficient performance and resulting prejudice. Id. at 687. "A court can choose to address the prejudice prong before the ineffectiveness prong and reject an ineffectiveness claim solely on the ground that the defendant was not prejudiced." Rolan v. Vaughn, 445 F.3d 671, 678 (3d. Cir. 2006)

Where state courts have considered a claim for ineffective assistance of counsel, the federal court's review of the claim is governed by 28 U.S.C. § 2254(d)(1). Thus, a federal court does not render an independent judgment, but rather determines whether the state court decision is contrary to or involved an unreasonable application of the Strickland test. See Rompilla v. Horn, 545 U.S. 374, 380 (2005).

1. Trial Counsel's Failure to Investigate Crocker's Check-In Time at the Motel

Steele's trial testimony indicated that Crocker, Bethune, Steele, and the New York support met at a local motel prior to the fatal encounter with Do Work and his gang. Steele testified that it was during this meeting that the group agreed to shoot Do Work and anyone with him. As corroboration for Steele's testimony, the prosecutor presented evidence from the Manager of the Super 8 Motel that a person using a ...


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