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Pagliaccetti v. Kerestes

United States District Court, Third Circuit

June 10, 2013




Anthony Pagliaccetti (“Petitioner”) is a prisoner at the State Correctional Institution—Mahanoy in Frackville, Pennsylvania. Petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Habeas Petition”) challenging his custody. Magistrate Judge David R. Strawbridge recommended denial of the Habeas Petition without an evidentiary hearing. Petitioner’s counsel now raises two objections.[1] For the reasons that follow, the Court will adopt Magistrate Judge Strawbridge’s Report and Recommendation and deny and dismiss with prejudice the habeas petition.


Petitioner is currently serving a prison term of 15 to 30 years based on convictions for third-degree murder and related offenses. The convictions stem from a dispute occurring in the early morning hours of December 24, 2002, which resulted in Petitioner, then 19 years old, shooting and killing 19-year-old Jason McFarland (“Jason”), an acquaintance of his. Report and Recommendation (“R&R”) 2, ECF No. 19.

Magistrate Judge Strawbridge succinctly summarized the facts as follows:

A dispute erupted between the two after Jason’s cousin, Joseph McFarland (“Joseph”), arrived to pick him up [from a local tavern where they had been drinking, ] and the conversation turned to a recent unresolved robbery of Pagliaccetti’s sister of her cell phone. The Commonwealth presented evidence, through Joseph and the McFarlands’ cousin, Michael Piazza (“Michael”), who was also drinking with Jason at the tavern, that Pagliaccetti grabbed Jason by his back or shoulder as they were leaving the tavern. While the argument continued outside, Joseph tried to separate Jason from Pagliaccetti and ushered Jason to his nearby car. Joseph testified that he heard gunshots as he opened the car door. He turned to see Pagliaccetti standing frozen, with a gun still pointed in the direction of Jason and himself. Jason fell to the ground, hit with one bullet to the left side of his head, which traveled from his cheek rightwards and backwards, and one bullet in the left side of the chest, which followed a rightwards, backwards, and slightly downwards trajectory.
Pagliaccetti fled up the street and was chased by Michael. En route, he removed his red sweatshirt and stashed it, along with his gun, in a car wheel-well. Michael eventually caught him and returned him to the scene. Michael was able to identify for police where Pagliaccetti had hidden his gun. Although Michael denied at the scene and in a later police interview that he assaulted Pagliaccetti, at trial he testified that he was responsible for an injury to Pagliaccetti’s left eye, punching him once in the face after Pagliaccetti initially denied to the police that he was the gunman. Another McFarland family member, Uncle Michael McFarland (“Uncle Michael”), was present at the tavern but was not called by either side to testify.
Pagliaccetti contradicted significant aspects of this account at trial. He testified that it was Joseph who raised the subject of the stolen cell phone and that Jason became verbally aggressive when Pagliaccetti inquired further. He testified that he did not leave the bar at the same time as Jason, Joseph, and Michael but stepped out shortly thereafter to make sure that Jason “got in the car alright.” Pagliaccetti testified that when his cousins tried to put Jason in the car, and while Pagliaccetti was standing with their Uncle Michael near the entrance of the bar, Jason broke away and struck Pagliaccetti in the left eye. He testified that Jason then returned to the nearby car, at which point it appeared to Pagliaccetti that Jason “reached for something” in “his waistband, ” although Pagliaccetti admittedly did not see him draw a gun and no weapons were found on his person by police. When questioned at trial about his options, Pagliaccetti suggested that “there was nowhere else to go” after Jason struck him because Uncle Michael was standing behind him and Jason, Joseph, and Michael were in front of him. He testified that “[i]t happened so fast” and that he did not have “time to think” when he drew his gun and fired two shots. He explained at trial that “I was in a situation where I had no choice but for what happened. I’m sorry for it.” While he acknowledged his flight from the scene, he testified that he returned of his own accord and denied that any McFarland family member assaulted him after the shooting.

Id. at 2-4 (citations and footnotes omitted).


On April 5, 2004, a jury in the Philadelphia Court of Common Pleas returned a guilty verdict on the third-degree murder charge and three weapons offenses. Habeas Pet. 4, ECF No. 1. On June 10, 2004, the court sentenced Pagliaccetti to a 15-to 30-year term of imprisonment, without any additional sentence for the weapons convictions. R&R 4. On June 24, 2004, the court denied his motion for reconsideration of the sentence. Id. Petitioner appealed his murder conviction to the Pennsylvania Superior Court, arguing that the conviction was based on insufficient evidence in light of his claim of self-defense. The Superior Court affirmed his conviction in an unpublished opinion on May 25, 2005. Id. The Pennsylvania Supreme Court denied Petitioner’s request for allowance of appeal on September 21, 2005. Id.

On September 18, 2006, Petitioner, represented by attorney Neil E. Jokelson, collaterally attacked his convictions under the Pennsylvania Post Conviction Relief Act (“PCRA”). Id. at 4-5, n.6. Petitioner filed for relief on several grounds, including ineffective assistance of trial counsel for failing to object to what Pagliaccetti characterized as an improper jury instruction regarding self-defense. Id. at 5. He also alleged ineffective assistance of appellate counsel in not litigating the issue of trial counsel’s ineffectiveness. Id. The PCRA court denied relief. Id. Petitioner, still represented by Mr. Jokelson, appealed to the Superior Court, claiming that he was subjected to trial court error regarding the self-defense instruction, in violation of his federal constitutional rights. Id. The Superior Court held that the issue of trial court error as to the jury instruction had been waived since no objection was made at trial. It further held that, in fact, there was no merit to the assertion of error as the trial court “clearly and accurately conveyed the applicable law regarding self-defense.” See Commonwealth v. Pagliaccetti, No. 197 EDA 2009, slip op. at 5-6 (Pa. Super. Ct. March 12, 2010). On October 14, 2010, the Pennsylvania Supreme Court denied Petitioner’s request for allowance of appeal. R&R 5.

On October 12, 2011, Mr. Jokelson filed the instant petition on behalf of Petitioner for federal habeas relief under 28 U.S.C. § 2254. Habeas Pet. Petitioner contends that his due process rights were violated because the trial court’s jury charge did not adequately convey the Commonwealth’s burden of proof to overcome an assertion of self-defense to a murder charge as set forth in the applicable Pennsylvania statute. R&R 1.

On November 18, 2011, Magistrate Judge Strawbridge issued an Order to Show Cause as to why Petitioner’s habeas petition should not be dismissed as untimely.[2] Order to Show Cause, Nov. 18, 2011, ECF No. 4. In a letter dated November 24, 2011, Petitioner explained that the late filing was a result of a “complete breakdown in the communications with Neil Jokelson.” Ltr. from A. Pagliaccetti to Mag. J. Strawbridge, Nov. 24, 2011, ECF No. 7. Petitioner averred that Mr. Jokelson was negligent and unresponsive to his communications, and that extraordinary circumstances warranted equitable tolling of the limitations period. Id. Mr. Jokelson filed a separate response to the Court’s Order to Show Cause on January 31, 2012, essentially supporting Petitioner’s claims. Pet’r’s Counsel’s Resp. to Order to Show Cause, ECF No. 10. Mr. Jokelson accepted full responsibility for the late filing of the petition, and recommended that the Court grant Petitioner an evidentiary hearing on the issue of equitable tolling and appoint Petitioner independent counsel to represent him in the hearing. Id. at 7-8. On May 7, 2012, Petitioner filed a pro se motion for appointment of counsel for the remainder of the habeas proceedings. Mot. for Appointment of Counsel, ECF No. 15.

The Commonwealth responded to Petitioner’s habeas claims, arguing that the habeas petition is time-barred under AEDPA and that equitable tolling is not warranted for this case of “garden-variety” neglect by counsel. Respondent’s Answer to Pet. for Habeas Relief 3, 5, ECF No. 14. In the alternative, the Commonwealth argues that Petitioner’s habeas claims are meritless because there was no error of state or federal law in the trial court’s jury instructions; therefore, Pagliaccetti’s counsel could not be deemed ineffective for failing to raise baseless objections. Id. at 16.

Upon referral, Magistrate Judge Strawbridge issued a Report and Recommendation to deny the Habeas Petition on the merits. R&R 1. Judge Strawbridge also denied Petitioner’s motion for appointment of counsel. See Order, Sept. 27, 2012, ECF No. 18. Petitioner’s counsel of record, [3] Mr. Jokelson, filed objections on October 15, 2012. ECF No. 20. Petitioner ...

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