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Stanley v. Fisher

United States District Court, Third Circuit

December 17, 2013

JON D. FISHER, et al.


STEWART DALZELL, District Judge.

AND NOW, this 17th day of December, 2013, upon careful and independent review of Magistrate Judge Lynne A. Sitarski's second Report and Recommendation ("R & R") (docket entry # 29) pursuant to our Order remanding the case to Judge Sitarski for reconsideration in light of Martinez v. Ryan , 132 S.Ct. 1309 (2012) (docket entry # 23), and Stanley's objections to the R & R (docket entry # 34), and the Court finding that:

(a) The convictions that Stanley challenges here arise from two burglaries, one on June 8, 2004, and one on June 27, 2004;

(b) Judge Sitarski detailed the factual history in her first R & R, see February 27, 2012 R & R, docket entry # 16, at 1-2, and we will not recount that history here, except to the extent our analysis requires us to do so;

(c) We thus note that the June 8, 2004 robbery involved a break-in to the house of an elderly couple, Anna Shenk and Morris Rickambach, during which the perpetrator put Rickambach in a headlock and then ordered Shenk into the kitchen, where he stole her purse, which contained three to four hundred dollars, Feb. 27, 2012 R&R at 1-2 (citing Commonwealth v. Stanley, No. CP-06-CR-3610-2004, at 3 (Pa. Ct. Com. Pl. Apr. 24, 2009));

(d) Shenk later viewed a photographic line-up and identified Stanley as the perpetrator, id. at 2;

(e) After a jury trial in front of the Honorable James M. Bucci of the Court of Common Pleas of Berks County, Stanley was convicted on June 1, 2006 of multiple counts for each incident, id.;

(f) On June 17, 2006, he filed a pro se request that the trial court consider several claims in the context of a post-conviction motion, id. at 3, and on August 2, 2006, Stanley's counsel filed a notice of appeal with the Pennsylvania Superior Court, id. at 3;

(g) On May 14, 2007, the Superior Court quashed Stanley's appeal as interlocutory and the trial court denied Stanley's pro se post-conviction claims on remand on July 19, 2007, id. at 4;

(h) On August 6, 2007, Stanley filed another notice of appeal with the aid of counsel, and on April 7, 2008, the Superior Court affirmed his conviction, id.;

(i) On July 23, 2008, Stanley filed a pro se petition for post-conviction relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. §§ 9541, et seq., id. at 5;

(j) In that petition, he argued that trial counsel was ineffective for failing to, inter alia, conduct his own investigation of the evidence presented against Stanley, call two witnesses who would have given exculpatory testimony, and object to the introduction of evidence that violated Stanley's rights under the Confrontation Clause, id. at 5 (citing Pet.'s PCRA Pet. 2-3);

(k) On July 14, 2008, the PCRA court appointed Osmer S. Deming, Esq. as counsel for Stanley, and on October 31, 2008, Deming filed a letter pursuant to Commonwealth v. Finley , 550 A.2d 313 (Pa.Super. Ct. 1988), certifying that he had reviewed the record and concluded that there were no issues to advance before the PCRA court, id. at 6;

(l) The PCRA court dismissed the petition on January 5, 2009, id., and Stanley filed a pro se notice of appeal on January 22, 2009, which the PCRA court denied on April 24, 2009, id. at 6-7;

(m) The Superior Court affirmed on October 8, 2009, and it denied Stanley's application for re-argument on December 17, 2009, id. at 7;

(n) Stanley filed a petition for allowance of appeal, and the Supreme Court of Pennsylvania denied allocator on August 23, 2010, id.;

(o) On May 5, 2011, Stanley filed a pro se habeas corpus petition in federal court pursuant to 28 U.S.C. § 2254, and on February 27, 2012, Judge Sitarski issued the first R & R, in which she recommended denying Stanley's petition in its entirety, see Feb. 27, 2012 R & R;

(p) As we explain below, Judge Sitarski recommended denying Stanley's claims of ineffective of assistance of trial counsel on the ground that these claims had been procedurally defaulted;

(q) Specifically, Stanley alleged that trial counsel was ineffective for failing to (1) move to dismiss Juror 11 after discovering that juror's bias; (2) raise a challenge under Batson v. Kentucky , 476 U.S. 79 (1986) where Stanley alleged that the only reason the trial court failed to replace Juror 11 was because the alternate juror was African-American; (3) object under Crawford v. Washington , 541 U.S. 36 (2004) where a deceased victim's statements were permitted as evidence; (4) conduct a pretrial investigation, discover the identity of witnesses, and call witnesses who would give exculpatory testimony; and (5) move for mistrial after Juror 11 rendered what Stanley alleges was a biased verdict, Feb. 27, 2012 R & R at 20 n.10;

(r) Judge Sitarski found that Stanley had not raised four of the claims listed above at all (in this numbering scheme, claims 1-2 and 4-5) in state court, and with regard to the claim that trial counsel was ineffective for failing to object under Crawford to the introduction of a deceased person's statement, claim 3 above, Judge Sitarski found that though Stanley raised this claim in his pro se PCRA petition, he failed to appeal it to the Superior Court, and so it was not exhausted, id. at 22;

(s) Judge Sitarski recommended excusing the exhaustion requirement with regard to these claims, however, because the statute of limitations for filing a PCRA had expired, and so it would have been futile for Stanley to try to raise these claims before the PCRA court, id.;

(t) She nevertheless found that there could be no federal habeas review of these claims because they were procedurally defaulted, as state procedural rules barred Stanley from seeking further relief in state courts, id. at 23;

(u) A petitioner can overcome procedural default by demonstrating both cause for the default and actual prejudice resulting from the alleged violation of federal law, see Coleman v. Thompson , 501 U.S. 722, 750 (1991);

(v) In order to show cause, a petitioner must show that "some objective factor external to the defense impeded... efforts to comply with the State's procedural rule", ...

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