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Jermaine Alonzo Scott v. Raymond J. Sobina

December 16, 2011

JERMAINE ALONZO SCOTT
v.
RAYMOND J. SOBINA, ET AL.



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court are Petitioner Jermaine Alonzo Scott's Petition for Writ of Habeas Corpus (ECF No. 1), the Report and Recommendation of United States Magistrate Judge Timothy R. Rice (ECF No. 30), and Petitioner's Objections thereto (ECF No. 31). For the following reasons, the Objections will be overruled and the Petition will be dismissed.

I. BACKGROUND

Petitioner was charged with attempted murder, murder, possession of an instrument of crime, criminal conspiracy, and two counts of robbery, all in connection with an incident in the parking lot of a Philadelphia night club on April 26, 2000. Commonwealth v. Scott, No. 0010-0101 3/5 (Pa. Ct. Com. Pl. Jan. 21, 2003) ("Trial Ct. Op."). The Commonwealth tried Petitioner jointly with three co-defendants. Two of Petitioner's co-defendants, Lawrence Smith and Aldaberto Corredor, were simultaneously tried for another incident at the same Philadelphia night club that had occurred on February 2, 2000. Over the course of a nine-week jury trial, Petitioner's counsel, Michael Wallace, argued that Petitioner did not have a weapon, that he was mistakenly identified, and that his presence at the scene of a crime could not itself establish guilt. (Report and Recommendation 5-7 (citing trial transcript), ECF No. 30.) The jury convicted Petitioner of conspiracy and two counts of robbery, but not the remaining charges. (Trial Ct. Op. 1.) Petitioner was sentenced to three consecutive terms of four to ten years' imprisonment.*fn1

The Superior Court affirmed Petitioner's sentence, Commonwealth v. Scott, 852 A.2d 1254 (Pa. Super. Ct. 2004),*fn2 and the Pennsylvania Supreme Court denied his petition for allowance of appeal, Commonwealth v. Scott, 857 A.2d 678 (Pa. 2006). On October 16, 2006, Petitioner filed a counseled petition for relief under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq. The judge in the PCRA proceedings was the same judge that presided at the trial. The PCRA court dismissed the petition as meritless. Commonwealth v. Scott, No. 2576 EDA 2007 (Pa. Ct. Com. Pl. Nov. 29, 2007) ("PCRA Ct. Op."). The Superior Court affirmed. Commonwealth v. Scott, No. 2576 EDA 2007 (Pa. Super. Ct. Aug. 1, 2008) ("PCRA Super. Ct. Op."). On March 11, 2009, Petitioner filed the instant Petition for Writ of Habeas Corpus, which alleges seventeen claims of ineffective assistance of counsel.*fn3 (Pet., ECF No. 1.) After oral argument, (Oral Arg. Tr., ECF No. 25), Magistrate Judge Rice issued the Report and Recommendation, recommending that all of Petitioner's claims for relief be denied. (ECF No. 30.) Petitioner filed seventeen Objections to the Report. (Objections, ECF No. 31.) Petitioner also submitted two supplements to his memorandum. (ECF Nos. 33, 35.)

II. LEGAL STANDARD

Absent exceptional circumstances, a state prisoner is required to exhaust all avenues of state review prior to filing a petition for federal habeas review. 28 U.S.C. § 2254(b)(1); see O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). The Antiterrorism and Effective Death Penalty Act ("AEDPA") precludes habeas relief on a "claim that was adjudicated on the merits in State court proceedings" unless the petitioner demonstrates that the state court proceedings

(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." 28 U.S.C. § 2254(d); Saranchak v. Beard, 616 F.3d 292, 301 (3d Cir. 2010). We review de novo those portions of the Report and Recommendation to which specific objections have been made. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(3).

III. DISCUSSION

Magistrate Judge Rice's Report and Recommendation very competently addresses, and disposes of, all seventeen claims in the Petition. We agree with all of the findings of Magistrate Judge Rice and the reasons given for those findings. In his Objections to the Report, Petitioner disputes every finding made by Magistrate Judge Rice. Most of Petitioner's Objections raise no new substantive arguments, but instead, simply repeat his previous arguments. We have reviewed de novo the findings and recommendations of Magistrate Judge Rice to which objections have been made, and we are compelled to conclude that the findings and recommendations are correct and should be accepted. Accordingly, Petitioner's Objections will be overruled.

A. Procedurally Defaulted Claims

Two of Petitioner's claims for relief are procedurally defaulted. Petitioner alleges that his counsel was ineffective for (1) failing to object to the trial court's non-compliance with well-settled sentencing laws and (2) failing to appeal his sentence. (Pet. 9.) Petitioner concedes that he raised these issues for the first time in his state court motion for reconsideration, dated September 17, 2007.*fn4 (Objections 28, 30.) The PCRA court issued an order denying Petitioner's petition for relief on September 21, 2007. Commonwealth v. Scott, CP0010-0101 3/5 (Pa. Ct. Com. Pl. Sept. 21, 2007). Petitioner filed his petition on October 16, 2006, but raised these two additional claims almost a year later, just four days before the PCRA court rendered its decision. Petitioner procedurally defaulted on these claims because they were not timely presented to the state court.

Petitioner's only response in his Objections is that these claims were made "as soon as feasible." (Objections 30.) This assertion alone does not "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." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Accordingly, these claims are dismissed.

B. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, Petitioner must establish that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). For AEDPA purposes, this two-pronged test enunciated in Strickland qualifies as "clearly established Federal law, as determined by the Supreme Court." Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010). Counsel's performance was deficient if the "representation fell below an objective standard of reasonableness." Williams v. Taylor, 529 U.S. 362, 390-91 (2000) (quoting Strickland, 466 U.S. at 688). To demonstrate prejudice, Petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 391 (quoting Strickland, 466 U.S. at 694). Strickland mandates a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 466 U.S. at 689; Jacobs v. Horn, 395 F.3d 92, 118 (3d Cir. 2005).

In United States v. Cronic, 466 U.S. 648 (1984), decided the same day as Strickland, the Supreme Court held that there are situations where the ineffectiveness of counsel "is properly presumed without inquiry into actual performance at trial." Id. at 661. A presumption of prejudice is appropriate where (1) the accused is denied counsel at a critical stage of the trial, (2) counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, or (3) although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is small under the circumstances. Id. at 659-60; Bell v. Cone, 535 U.S. 685, 695-96 (2002). The Supreme Court has described Cronic as a "narrow exception" to Strickland that should be applied "infrequently." Florida v. Nixon, 543 U.S. 175, 190 (2004). To successfully invoke the presumption of prejudice, counsel's "failure must be complete." Bell, 535 U.S. at 697.

The difference between Strickland and Cronic "is not of degree but of kind." Id. Although both doctrines address the adequacy of counsel's performance, Strickland contemplates claims of "bad lawyering," i.e., ineffective assistance of counsel, and Cronic contemplates claims of "no lawyering," i.e., denial of counsel. See Woodard v. Collins, 898 F.2d 1027, 1028 (5th Cir. 1990); see also United States v. Theodore, 468 F.3d 52, 56-57 (1st Cir. 2006) (refusing to apply Cronic where the representation suffered significant deficiencies, but was "not tantamount to non-representation"). If Strickland applies, a defendant must demonstrate specific errors committed by trial counsel that prejudiced the outcome of the trial. If a claim is governed by Cronic, a defendant does not need to show prejudice resulting from counsel's deficient performance. Mitchell v. Mason, 325 F.3d 732, 741-42 (6th Cir. 2003). The Third Circuit has recognized that the "majority of Sixth Amendment right to counsel cases are, and should be, ...


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