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Sewell v. Dickson

January 14, 2009


The opinion of the court was delivered by: Magistrate Judge Cathy Bissoon


Leon Sewell ("Sewell" or "Petitioner") was convicted of several counts of burglary and related offenses on September 14, 2000. He was sentenced to an aggregate term of imprisonment of ten (10) to twenty (20) years on November 20, 2000.

Several burglaries were committed in the Point Breeze and Homewood sections of Pittsburgh during the late evening of April 4, 1999. Sewell was apprehended minutes after the last reported burglary and still had in his possession, inter alia, a Mellon Bank receipt from one of the victim's homes, which was identified by the victim (and by a Mellon Bank employee as having been issued to the victim), and a change purse belonging to one of the victims. Sewell also was in possession of cocaine and heroin when arrested, and more than $700 in cash.

The following day, Sewell gave a statement to police in which he admitted that he had entered the homes, and conceded that he took at least some of the items (e.g., he admitted making a sandwich at one residence, and taking $5, which he claimed he intended to repay). Police took Petitioner to the neighborhoods in question the day after his arrest, and Petitioner pointed out each of the homes he had broken into the night before. Sewell maintained that he broke into the homes only as a means of attempting to elude drug dealers, from whom he had stolen the cocaine and heroin that were found in his possession.

Petitioner denied this series of events at trial, asserting instead that he ran from police on the night of the burglaries because he had drugs he intended to sell. He denied being in possession of the Mellon Bank receipt, and asserted that he had money from a tax refund check he cashed that same day. As to identifying houses and admitting he broke into them, Sewell testified that the police lied about those events.

The Court will dispense with a discussion of exhaustion and procedural default, as it is clear that the instant petition should be denied on its merits.

A. Analysis

A federal court may not issue a writ of habeas corpus unless it concludes that the state court's adjudication resulted in a decision that was "contrary to" or 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); Williams v. Taylor, 529 U.S. 362, 411 (2000) ("[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.").

Petitioner alleges generally as a ground for relief that he is "actually innocent" of the crimes charged. He asserts that he was arrested merely because he was a "dark complected African American" (Doc. 6, ¶12). A claim of actual innocence is a means of avoiding procedural default in habeas corpus cases. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner's claims are being addressed on the merits and, accordingly, there is no need to address this exception to the procedural default doctrine.*fn1

Petitioner's remaining claims are couched in terms of ineffective assistance of counsel. The Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial." Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)). The Supreme Court has formulated a two-part test for determining whether counsel rendered constitutionally ineffective assistance: 1) counsel's performance was unreasonable; and 2) counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. To determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to judge counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct. Strickland, 466 U.S. at 690.

The first prong of the Strickland test requires a defendant to establish that his or her attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 688. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the totality of the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689. The question is not whether the defense was free from errors of judgment, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place. Id.

The second prong requires a defendant to demonstrate that counsel's errors deprived him or her of a fair trial and the result was unfair or unreliable. Strickland, 466 U.S. at 689. To prove prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A "reasonable probability" is one that is sufficient to undermine confidence in the outcome. Id.*fn2

Sewell first asserts that trial counsel was ineffective for failing to move to suppress the identification testimony of victims Lora Lee Scott and Jessie Robinson. The PCRA court dealt with this claim as follows:

When the police arrived at the house of Jessie Robinson, she described the actor as wearing a large jacket with cloth wrapped around his face. A few minutes later the Defendant, who fit the description, was apprehended in possession ...

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