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Vaughter v. Fisher

United States District Court, E.D. Pennsylvania

March 24, 2014

JON T. FISHER, ET AL., Respondents.


EDUARDO C. ROBRENO, District Judge.

Damiyell Vaughter ("Petitioner") is a prisoner at the State Correctional Institution in Huntingdon, Pennsylvania. Petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Habeas Petition") (ECF No. 1) challenging his custody. Magistrate Judge Linda K. Caracappa recommended denial of the Habeas Petition and Petitioner objected to the Report and Recommendation ("R&R") (ECF No. 30) in its entirety. For the reasons that follow, the Court adopts Magistrate Judge Caracappa's Report and Recommendation.


Petitioner is currently serving a life sentence based on convictions for first-degree murder and criminal conspiracy. The convictions stem from an incident on or around February 24, 1998, in which he and a co-conspirator, Mitchell Ash ("Ash"), fired an assault rifle into a residence shared by Sam Brice and his 76-year-old mother, Mary Brice ("Victim"). See R&R 1; Resp. Pet'r's Writ Habeas Corpus ("Gov't Resp."), Ex. F, Sup.Ct. Op., Feb. 13, 2004, ("Sup.Ct. Op.") 2, ECF No. 16-6. Sam Brice was allegedly a doorman in a drug operation operating out of the residence. See Sup.Ct. Op. at 2. The February 24, 1998 shooting allegedly arose as a result of repeated confrontations in prior days between Petitioner and Sam Brice's associates. See id. On February 25, 1998, the police responded to the reports of neighbors concerned that Victim had not emerged from her residence since the prior day's shooting. See id. The officers discovered Victim dead within her residence, having sustained nine bullet wounds, mostly in the back. R&R 1-2; Sup.Ct. Op. 2.

In 1999, Petitioner and Ash were first tried on capital murder charges before a jury in the Pennsylvania Court of Common Pleas, though a mistrial was declared after the jury reached an impasse at the guilt phase. Sup.Ct. Op. 2. A second jury trial concluded on July 10, 2001 with the conviction of both defendants of first-degree murder. See id. A second mistrial was declared after one juror indicated that he could not proceed to the sentencing phase if the Commonwealth was pursuing the death penalty and Petitioner rejected the option of proceeding to sentencing with only eleven jurors. See id. On August 9, 2001, the Commonwealth informed the trial court that it would no longer seek the death penalty, and so the trial judge sentenced petitioner to life imprisonment. See id. at 2-3. At this time Petitioner challenged the sufficiency of evidence presented at trial to support his conviction; the trial court denied this challenge in an opinion dated April 2, 2002. See Resp. Opp'n, Ex. 3, Pennsylvania Ct. C.P. Op., Apr. 2, 2002 ("Trial Ct. Op."), ECF No. 16-3.

Petitioner appealed his conviction directly to the Pennsylvania Superior Court, claiming: (1) the evidence presented at trial was insufficient to sustain his conviction of first-degree murder, see Sup.Ct. Op. at 3; (2) the evidence presented at trial was insufficient to sustain his conviction of conspiracy, see id. at 3;(3) the trial court erred by failing to order a new trial after one juror withdrew from the case during the penalty phase, see id. at 5; (4) the timing of the retrial did not accord with Petitioner's right to a speedy trial following the original mistrial, see id. at 6; (5) the trial court erred by denying Petitioner's motion to quash the presentation of aggravating circumstances supporting the death penalty, see id. at 7; and (6) the trial court erred by admitting two prejudicial photographs of the murder victim into evidence, see id. On February 13, 2004, the Superior Court affirmed Petitioner's conviction and sentence, issuing an opinion that rejected each of Petitioner's six claims. See id. Petitioner did not file a petition for allowance of appeal to the Pennsylvania Supreme Court. See R&R 2.

On December 22, 2004, pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541, et seq., Petitioner submitted a pro se collateral challenge of his convictions to the Pennsylvania Court of Common Pleas. See Gov't Resp., Ex. G, Pet'r's Mot. Post-Conviction Collateral Relief (hereinafter "PCRA Pet."), ECF No. 16-7. This petition raised thirteen grounds for relief based on ineffective assistance of counsel, with allegations that included trial counsel's failure to object to the introduction of particular evidence and statements of law, to "prepare an adequate defense, " or to seek various curative instructions. See generally Gov't Resp., Ex. G, Mem. L. Supp. PCRA Pet. 1-5, ECF No. 16-7. Additionally, this pro se petition asserted that the trial court committed errors including: (1) "den[ying] [petitioner] the right to compel witnesses against him;" (2) allowing hearsay testimony of Walter Scott at trial; and (3) adding, sua sponte, a charge of accomplice liability was not included in Petitioner's indictment or bill of particulars. Id . 5-6.

Court-appointed counsel, David Rudenstein, Esq., filed an amended PCRA petition on February 6, 2006, see Gov't Resp., Ex. H, Am. PCRA Pet., ECF No. 16-8, followed by a supporting letter brief on February 10, 2006, and a supplemental amended petition on October 18, 2007. See id., Feb. 10, 2006 Letter Br. ("Rudenstein Letter Br."), and Supplemental Am. PCRA Pet. Counsel raised eleven claims within the amended and supplemental amended PCRA petitions. See Am. PCRA Pet. 1-4.

After Mr. Rudenstein filed the amended PCRA petition, Petitioner filed several pro se submissions, including an application to supplement the amended PCRA petition with additional claims that had appeared in the initial pro se PCRA petition but not in the subsequent amended PCRA petition prepared by Mr. Rudenstein. See Gov't Resp., Ex. I, Appl. Supplement Am. PCRA Pet., ECF No. 16-9. Mr. Rudenstein responded by explaining to Petitioner that the amended PCRA petition only included claims that Mr. Rudenstein believed had merit. See id., Letter from David Rudenstein to Petitioner (Aug. 26, 2008) ("Aug. 26, 2008 Letter"). On June 28, 2007, the Pennsylvania Court of Common Pleas issued a notice, pursuant with Pennsylvania Rule of Criminal Procedure 907, of its intention to dismiss the amended PCRA petition without a hearing. Petitioner filed pro se objections to the Rule 907 notice and again asked the Court to consider his pro se supplemental briefs. See Gov't Resp., Ex. J, Pet'r's Objections Rule 907 Notice Intent Dismiss (July 8, 2007) ("Pet'r's Objections R. 907 Notice"), ECF No. 16-10.

The Court denied the amended PCRA petition on September 13, 2007, and filed an opinion on the matter on February 21, 2008. See Gov't Resp., Ex. K, Pennsylvania Ct. C.P. Opinion (Feb. 21, 2008) ("Pa. Ct. C.P. PCRA Op."), ECF No. 16-11. This opinion addressed the eleven claims raised in the amended PCRA petition filed by Mr. Rudenstein as well as three claims raised by Petitioner in his supplemental briefs. The supplemental claims addressed were: (1) ineffective assistance of trial counsel for failing to object to testimony of Detective Baker regarding petitioner's pre-arrest silence; (2) ineffective assistance of trial counsel for interfering with Petitioner's decision to testify and for failing to present character evidence; and (3) ineffective assistance of trial and appellate counsel for failing to raise prosecutorial misconduct in closing arguments. See id. at 18-23.

Petitioner filed a pro se notice of appeal to the Superior Court of Pennsylvania, which remanded his appeal on March 27, 2009, to permit Petitioner to re-file with assistance of counsel. See Gov't Resp., Ex. L, Pennsylvania Sup.Ct. Order Remanding PCRA Appeal (Mar. 27, 2009), ECF No. 16-12.[1] Petitioner, represented by Teri B. Himebaugh, Esq., renewed his PCRA appeal on August 18, 2010. See Gov't's Resp., Ex. M, PCRA Appellate Br. at 16-17, ECF No. 16-13. This brief raised the following four claims: (1) PCRA counsel was ineffective for failing to include in the amended PCRA petition every claim asserted by Petitioner in his pro se petitions; (2) PCRA counsel was ineffective for not "federalizing" Petitioner's PCRA claims for later habeas review; (3) the PCRA court erred and violated Petitioner's due process rights by denying his petition without conducting a hearing or permitting further amendment of the PCRA petition; and (4) the PCRA court erred in declining to hold trial counsel ineffective for not preserving and/or raising on appeal a challenge to the admission of testimony by investigating police officers regarding Petitioner's verbal statements.

On May 4, 2011, the Superior Court of Pennsylvania affirmed the Court of Common Pleas's dismissal of Petitioner's amended PCRA petition. See Gov't Resp., Ex. N, Super. Ct. Op. (May 4, 2011) ("Sup.Ct. PCRA Op."), ECF No. 16-14. Petitioner filed a pro se petition for leave to appeal the Superior Court's decision to the Pennsylvania Supreme Court. See Gov't Resp., Ex. O, Pet. Allowance of Appeal, ECF No. 16-15. This petition for leave to appeal was denied on November 10, 2011. See Commonwealth v. Vaughter , 32 A.3d 1241 (Pa. 2011).

On January 29, 2012, Petitioner filed, through new counsel, the instant petition for Writ of Habeas Corpus relief under 28 U.S.C. § 2254, raising seven claims of ineffective assistance of trial and appellate counsel, insufficiency of evidence to sustain Petitioner's conviction, and violation of Petitioner's constitutional rights under the 4th, 5th, 6th, and 14th Amendments. See Habeas Pet. The Commonwealth responds that Petitioner's claims should be dismissed as either untimely or procedurally defaulted and thus that the Habeas Petition should be denied. See Gov't Resp. Upon referral, Judge Caracappa issued a Report and Recommendation to deny the Habeas Petition, in part on the merits and in part for procedural default. R&R at 9-10, 14-18. Petitioner has filed individual objections to the R&R's treatment of each of his six remaining claims, [2] see Pet'r's Objections R&R ("Pet'r's Objections"), ECF No. 31, and so the matter is now ripe for disposition.


The Court may refer an application for a writ of habeas corpus to a U.S. Magistrate Judge for a report and recommendation. See 28 U.S.C. § 2254 ("A magistrate judge may perform the duties of a district judge under these rules, as authorized under 28 U.S.C. § 636."). A prisoner may object to the magistrate judge's report and recommendations within fourteen days after being served with a copy thereof. See 28 U.S.C. § 636(b)(1); E.D. Pa. R. 72.1(IV)(b). The Court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court does not review general objections. See Brown v. Astrue , 649 F.3d 193, 195 (3d Cir. 2011) ("We have provided that § 636(b)(1) requires district courts to review such objections de novo unless the objection is not timely or not specific." (internal quotation marks removed)). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Therefore, the Court will conduct a de novo review of those portions of the Report and Recommendation to which Petitioner objects.

On habeas review, the Court must determine whether the state court's adjudication of the claims raised was (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d) (2006).

Before obtaining federal habeas review of whether his state confinement violates federal law, a state prisoner must first exhaust all remedies available in the state courts. See 28 U.S.C. § 2254(b)(1)(A). If a habeas petitioner has a right, under state law, to raise, by available procedure, the question presented in his habeas petitioner, then he has failed to exhaust all available state remedies. See 28 U.S.C. §2254(c). Exhaustion in state court means that the petitioner has "properly presented his claims through one complete round of the State's established appellate review process." Woodford v. Ngo , 548 U.S. 81, 92 (2006) (internal citations omitted); see also Picard v. Connor , 404 U.S. 270, 275 (1971). Further, the petitioner bears the burden of showing that his federal claim was "fairly presented" in state court, and that the facts, as well as the argument underlying that claim, are "substantial[ly] equivalent" to what the petitioner presented in state court. Santana v. Fenton , 685 F.2d 71, 74-75 (3d Cir. 1982).

"If [a] petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred... there is a procedural default for purposes of federal habeas...." Coleman v. Thompson , 501 U.S. 722, 735 n.1 (1991); see also Gray v. Netherland , 518 U.S. 152, 161-62 (1996). The state procedural bar that precludes a petitioner from exhausting his state law remedies and thus prevents federal habeas corpus review must be an "independent and adequate state-law ground." Gray , 518 U.S. at 162 (citing Teague v. Lane , 489 U.S. 288, 297 (1989)). Where a habeas petitioner has procedural defaulted a claim in this way, he may not seek federal habeas corpus review of the defaulted claim, "unless [he] can demonstrate cause and prejudice for the default." Id .; see also Coleman , 501 U.S. at 750 (stating that in all cases of procedural default, a state petitioner must either "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 would result in a fundamental miscarriage of justice" in order to obtain federal habeas review).


Magistrate Judge Caracappa recommends that Petitioner's habeas claims be denied without an evidentiary hearing and that there is no probable cause to issue a certificate of appealability. Petitioner has filed specific objections to Judge Caracappa's R&R as to each of the six claims remaining in his Habeas Petition. As such, the Court will now conduct a de novo review of each of Petitioner's six remaining claims.

A. Claims Subject to Procedural Default

Because Petitioner specifically objects to the R&R's finding of procedural default as to Grounds 2, 3, 5(a), [3] and 7 of the Habeas Petition, the Court now reviews these claims de novo.

1. Procedural Default Due to Independent and Adequate State Procedural Grounds

A federal court may not conduct habeas review of claims which were rejected by the state court below, if the state court relied upon "a state law ground that is independent of the federal question and adequate to support the judgment." Nolan v. Wynder, 363 F.Appx. 868, 871 (3d Cir. 2010) (not precedential); see also Gray , 518 U.S. at 162. For the purposes of procedural default, a state law may only be considered "independent" if it does not rest primarily on, or appear to be interwoven with, federal law. See Kirnon v. Klopotoski , 620 F.Supp.2d 674, 682 (E.D. Pa. 2008) (citing Coleman , 501 U.S. at 734-35); see also Johnson v. Pinchak , 392 F.3d 551, 557 (3d Cir. 2004). In addition, a state procedural law may be regarded as "adequate" only if it is "firmly established, readily ascertainable, and regularly followed, at the time of the purported default." Leyva v. Williams , 504 F.3d 357, 366 (3d Cir. 2007) (quoting Szuchon v. Lehman , 273 F.3d 299, 327 (3d Cir. 2001)). Implicit within this requirement of adequacy is also a finding by the federal court that the lower state court actually relied on the state procedural rule in denying the claim. See Bronshtein v. Horn , 404 F.3d 700, 708 (3d Cir. 2005). The government bears the burden of proving that the state procedural ruling was adequate and independent for purposes of procedural default. See Trest v. Cain , 522 U.S. 87, 89 (1997) (finding that procedural default is an affirmative defense that the government must prove).

2. Pennsylvania State Procedural Doctrine of Waiver

The Pennsylvania Supreme Court has provided that "[w]here an appellate brief fails to provide any discussion of a claim with a citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claims is waived."[4] See Commonwealth v. Johnson, 604 Pa. 186, 191 (2009); see also Pa. R.A.P. 2119(a) (providing that each argument in an appellant's brief must be "followed by discussion and citation of authorities as are deemed pertinent").

This doctrine of waiver was "firmly established, readily ascertainable, and regularly followed, " Leyva , 504 F.3d at 366, when the Pennsylvania Superior Court ruled that Petition had waived several claims in the 2011 appeal of his PCRA petition. That is, at the time of this ruling, the doctrine of waiver was regularly applied and clearly defined in the Pennsylvania court system. See, e.g., Commonwealth v. Walter , 600 Pa. 392, 404 (Pa. 2009) (stating that an issue is procedurally waived on appeal where a party fails to develop an argument); Commonwealth v. Thomas , 552 Pa. 621, 650 (Pa. 1998); Commonwealth v. Jackson , 494 Pa. 457, 458 n.1 (Pa. 1981) (stating that a party's failure to properly address each claim within an appellate brief violates Pa. R.A.P. 2119(a) and thus "waives consideration of the claim").[5]

The doctrine of waiver is rooted in an application of Pennsylvania's rules of appellate procedure, rather than federal law. Therefore, the doctrine is also "independent" for purposes of procedural default. See Pinchak , 392 F.3d at 557.

Because the Court finds Pennsylvania's appellate procedural doctrine of waiver to be adequate and independent of federal law, those of Petitioner's PCRA appeal claims which were denied on this basis by Pennsylvania Superior Court must be considered procedurally defaulted for the purposes of federal habeas review.

3. Fifth and Sixth Amendment Claims Based on Officer Baker's Trial Testimony, as well as Trial and PCRA Counsels' Failure to Raise ...

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