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Marty Boanes, Junior v. Marirosa Lamas

May 30, 2012

MARTY BOANES, JUNIOR, PETITIONER
v.
MARIROSA LAMAS, ET AL.,
RESPONDENTS



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Marty Boanes, Junior ("Petitioner" or "Boanes"), a state inmate presently confined at the Clinton County Correctional Facility in McElhattan, Pennsylvania, commenced this pro se action by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2254. (Doc. 1.) He challenges his 2003 conviction in the Court of Common Pleas of York County, Pennsylvania of Criminal Attempt-Criminal Homicide; Aggravated Assault (both serious bodily injury and bodily injury caused with a firearm); Possession of a Firearm by a Minor; and Recklessly Endangering Another Person. The Petition is fully briefed and ripe for disposition. For the reasons set forth herein, the Petition will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

In affirming the denial of Boanes' Post-Conviction Relief Act ("PCRA") Petition, the Pennsylvania Superior Court set forth the following summary of the relevant facts and procedural history, as adopted from the PCRA Court's Opinion and Order:

A Criminal Complaint was filed on August 26, 2002 charging [Boanes] with Criminal Attempt-Criminal Homicide; Aggravated Assault (both serious bodily injury and bodily injury caused with a firearm); Possession of a Firearm by a Minor; and Recklessly Endangering Another Person. The charges were 'direct filed' as a result of [Boanes] being a 16-year old juvenile at the time of the filing.

The charges stemmed from [Boanes'] discharging a handgun and shooting the victim, Richard Newson, at an intercity York location on August 21, 2002, at approximately 2:30 A.M. The facts of the case developed at trial indicate that [Boanes] and Newson were first cousins and Newson resided at an apartment, which was the site of the shooting, at 601 West King Street, York, Pennsylvania. During the day preceding the shooting, [Boanes] had spent the afternoon and evening with a female acquaintance, Etay Clay, and had consumed both beer and liquor (Hennessey [and] Cognac), as well as smoked marijuana and ingested ecstasy. During the early morning hours of August 21, 2002, [Boanes] discovered that Ms. Clay was at Newson's residence and proceeded to that location to confront Newson. [Boanes] considered these circumstances to indicate that Newson had 'disrespected' him by having Clay, [whom Boanes] was 'messing with,' at his residence. Upon arriving at Newson's residence [Boanes] produced a handgun and questioned Newson over these circumstances and after a brief verbal confrontation, [Boanes] departed. A short time later [Boanes] returned and on this reappearance again produced the handgun, whereupon he shot Newson in the abdomen at close range. Newson survived the shooting. [Boanes] was arrested and charged with the referenced offenses on August 26, 2002. [Counsel] was privately retained to represent [Boanes] shortly after the filing of charges. A decertification application, seeking to return the proceedings to Juvenile Court, was filed on behalf of [Boanes]. Following a hearing on May 28, 2003, that request was denied and refused. The matter proceeded to a jury trial on July 7 & 8, 2003, at the conclusion of which, a verdict was returned finding [Boanes] guilty [on all counts]. Following the Verdict the Commonwealth filed a notice Seeking Mandatory Sentencing Provisions § 9712 and § 9714 of the Judicial Code regarding offenses committed with a firearm.

At the sentencing hearing on August 18, 2003, [Boanes] was sentenced to 15 to 30 years at a State Correctional Institution for the offense of Criminal Attempt-Criminal Homicide, as well as 1 to 2 years concurrent for the offenses of Firearms Not to be Possessed by a Minor. The charge of Aggravated Assault merged with the charge of Criminal Attempt-Criminal Homicide. A direct appeal was filed on [Boanes'] behalf by [trial counsel] on September 16, 2003. That appeal was dismissed on November 10, 2003, for [counsel's] failure to file the required docketing statement under Pennsylvania Rule of Appellate Procedure No. 3517. [Boanes] filed his first pro se PCRA Petition to the Superior Court of Pennsylvania on November 6, 2006, that Petition was reassigned to [the] Trial Court. After a hearing on that application the Trial Court reinstated [Boanes'] direct appeal rights on February 20, 2007. The Commonwealth filed an appeal from that Order and the Superior Court of Pennsylvania affirmed the Trial Court's Order by Memorandum Opinion on December 26, 2007. [footnote omitted] Thereafter, appointed counsel . . . filed [a] direct appeal on January 7, 2008, but subsequently discontinued [the] direct appeal March 11, 2008, electing to proceed with the current and pending PCRA petition, which was duly filed on April 3, 2008. (Doc. 17-2 at 124-127, 10/29/09 Pa. Super. Ct. Mem. Op.)*fn1

In the instant Petition, Boanes reiterates the grounds raised in his PCRA Petition as follows:

A. Trial counsel was ineffective for eliciting testimony from [Boanes] on direct examination that: (1) Boanes' parents had been, or were, incarcerated; (2) the gun used in the incident was not the first gun [Boanes] owned; (3) [Boanes] was thirteen (13) years old when he started owning guns; (4) [Boanes] obtained his first gun 'off the street'; (5) [Boanes] routinely possessed a gun since the age of thirteen; (6) [Boanes] carried a gun since he was sixteen (16), after he got out of juvenile placement; and (7) [Boanes] bought or obtained all of his guns 'off the streets';

B. Trial counsel was ineffective for advising the jury in his opening statement that Boanes had possessed a firearm ever since he was twelve

(12) years old;

C. [Trial counsel was ineffective for] opening the door for cross-examination that: (1) Boanes obtained the gun he used in this instance from a drug addict off the street; (2) [Boanes] came back to the scene ten

(10) minutes after the first confrontation with the same gun;

D. [Trial counsel was ineffective for] eliciting extensive testimony from [Boanes] relating to his drug usage, but never eliciting testimony that Boanes was intoxicated and under the influence of controlled substances relating to the specific intent to kill as an element of attempted murder;

E. [Trial counsel was ineffective for] eliciting testimony from [Boanes] that he ingested drugs and alcohol on the date of the incident knowing the court would not give an instruction to the jury that involuntary intoxication was not an affirmative defense to attempted murder;

F. [Trial counsel was ineffective for] failing to argue and request a jury instruction that, while voluntary intoxication is not an affirmative defense to attempted murder, it is still relevant to Boanes' state of mind as to whether he formed the specific intent to kill.

(Doc. 1 at 3-4.)

Following a hearing on the PCRA Petition on August 5, 2008, by Memorandum Opinion and Order dated October 9, 2008, the PCRA Court denied Boanes' Petition. (Doc. 17-2 at 77-86, 10/9/08 PCRA Court Op.) In disposing of the Petition, the PCRA Court summarized the issues raised by Boanes at hearing as follows:

1. Was Trial Counsel ineffective in eliciting testimony and evidence regarding [Boanes'] early exposure to 'street values and activities' in an effort to create sympathy and understanding for [Boanes] and his actions?

2. Was Trial Counsel ineffective in eliciting testimony and evidence regarding [Boanes'] use of alcohol, marijuana and ecstasy during the day and evening preceding the shooting? (Id. at 80.) The PCRA Court concluded that Boanes failed to demonstrate "a reasonable probability" that the result of the proceedings would have been different had the evidence elicited by his counsel not been introduced. (Id. at 84, 10/9/08 PCRA Court Op.) The PCRA Court therefore found that Boanes failed to establish prejudice as a result of his counsel's performance and was not entitled to PCRA relief. (Id.) In considering whether counsel's course of conduct was without a reasonable basis, including his strategy to elicit testimony regarding Boanes' exposure to "street values" and use of alcohol and drugs to create sympathy and understanding for Boanes' actions, the PCRA Court concluded, "[a]lthough this evidence apparently did not negate and overcome the Commonwealth's overwhelming evidence, this Court is unable and unwilling to conclude that there was no reasonable basis behind [trial counsel's] strategy." (Id. at 84-86.) Accordingly, the Petition was denied. (Id. at 86.)

Boanes filed a Notice of Appeal to the Pennsylvania Superior Court from the denial of PCRA relief. (See Doc. 17-2 at 87, Notice of Appeal.) In his Concise Statement of Matters Complained of on Appeal filed in accordance with Pa. R. ...


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