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Carnevale v. Harlow

United States District Court, W.D. Pennsylvania

August 15, 2014

MICHAEL HARLOW, et al., Respondents.


CYNTHIA REED EDDY, Magistrate Judge.

Petitioner, Daniel Thomas Carnevale, a state prisoner incarcerated at the State Correctional Institution at Albion, Pennsylvania has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in connection with his convictions for Arson, Burglary, Aggravated Assault and three counts of Second Degree Murder. For the reasons that follow, the Petition will be denied.

I. Relevant Factual and Procedural History

On direct appeal, the Pennsylvania Superior Court set forth the following relevant facts.

[T]he evidence presented [at trial] established that the Defendant [Daniel Thomas Carnevale, Petitioner], was an unemployed heroin and cocaine addict, who regularly stole checks form residents' mailboxes at the Colombia House Apartments in Bloomfield to support his drug habits. In the early morning hours of January 17, 1993, [Petitioner]... was advised that the building and mailboxes were under surveillance.... [Petitioner] traveled to the Columbia House Apartments, where he broke into the basement office in an attempt to locate and destroy the surveillance equipment. When he failed to find the surveillance equipment, [Petitioner] obtained a can of paint lacquer/thinner from the adjacent mechanical room, doused the office and mechanical room and lit it. The [Apartments] were completely destroyed by fire.... Two residents of the Columbia House Apartments died inside the building from Carbon Monoxide poisoning and smoke inhalation. Another resident died from head injuries when he jumped out of a window in an attempt to escape from the fire....

(ECF No. 11-5, page 2). Charges were not brought against Petitioner until July, 2006, over thirteen years after the fire (ECF No. 2, page 1). Petitioner was charged and convicted in August 2007 of three counts of Second Degree/Felony Murder, as well as Burglary, Aggravated Assault, and Arson. (ECF No. 11-5, page 2).

The evidence presented at Petitioner's trial rested primarily upon the testimony of three key witnesses. First, a Commonwealth expert from ATF who testified as to the nature of the cause of the fire (arson). (ECF No. 11-5, page 2). Second, the testimony of Shane Evans, who "testified that he was walking by the Columbia House Apartments shortly before the fire was noticed, and observed [Petitioner] exiting the door to the basement office of the apartment building." Id . Third, "[t]he Commonwealth also presented the remarkably detailed testimony of jailhouse informant Sean Burns. Mr. Burns testified that the Defendant confessed his involvement in the fire to him in December, 2006 after his arrest and while he was awaiting trial." Id.

Petitioner was sentenced to three concurrent terms of life imprisonment for the murders, and consecutive terms of imprisonment of seven to fourteen years for Aggravated Assault, six to twelve years for Burglary, and seven to fourteen years for Arson. (ECF No. 11, page 2). Post-sentence motions were denied. (ECF No. 11-1, page 7). Petitioner then filed a timely appeal to the Pennsylvania Superior Court. (ECF No. 11-5, page 14). Petitioner raised the following issues in his appeal.

1. Under Pennsylvania law, does the government survive an insufficiency challenge for the charges of burglary, arson, aggravated assault, and homicide when the only evidence presented at trial was the Appellant's presence at the scene of the crime coupled with the uncorroborated testimony of a jailhouse snitch?
2. Does a verdict of guilt beyond a reasonable doubt for the 13-year old charges of burglary, arson, aggravated assault, and homicide shock the court's conscience and one's sense of justice when the only evidence offered against Appellant was that he was present at the scene and allegedly confessed to a jailhouse snitch?
3. Is the denial of a motion to dismiss a 13-year-old charge of aggravated assault and burglary clearly erroneous and offend fundamental notions of due process such that a reversal and new trial must be granted?
4. Did the trial court abuse its discretion by permitting the Commonwealth to introduce evidence of a defendant's prior convictions that extended beyond the permissible ten year look back period without prior written notice?

(ECF No. 11-5, page 3). The Pennsylvania Superior Court affirmed the judgment of sentence by Order dated March 24, 2010. (ECF No. 11-5, page 14). Petitioner did not appeal directly to the Pennsylvania Supreme Court. Instead, Petitioner then filed a petition for relief under the Pennsylvania Post Conviction Relief Act (P.C.R.A.), 42 Pa. Cons. Stat. § 9542, which raised the following claims.

1. Was direct appeal attorney ineffective for causing weight of evidence claim to be waived on direct appeal at No. 736 WDA 2008?
2. Was trial attorney ineffective for failing to cross examine Mr. Burns, a jailhouse snitch, about whether he hoped to receive favorable treatment from the Commonwealth for his testimony?
3. Was trial attorney ineffective for failing to raise newly discovered deal given Mr. Burns in exchange for his testimony during direct appeal?
4. Should after discovered evidence that Mr. Burns lied during his testimony at Petitioner's trial lead to a new trial?
5. Was trial attorney ineffective for improperly advising Petitioner not to testify at his own trial?
6. Was trial attorney ineffective for not calling character witnesses during trial?
7. Was trial attorney ineffective for not calling an arson expert at trial?

(ECF No. 1, page 4). The PCRA court denied the petition for relief by Order dated May 9, 2011. (ECF No. 11-9, page 1). Petitioner filed a timely notice of appeal to the Pennsylvania Superior Court on June 2, 2011. (ECF No. 11-9, page 3). On July 20, 2012, the court affirmed the denial of P.C.R.A. relief. Petitioner filed a Petition for Allowance of Appeal, which was denied by the Supreme Court of Pennsylvania on April 3, 2013. (ECF No. 11-9, page 4).

Petitioner filed with this Court the instant timely Petition for Writ of Habeas Corpus on June 28, 2013, wherein he raises the following claims.

1. Insufficient evidence produced at trial to support convictions.
2. Ineffectiveness of trial and direct appeal attorneys for the grounds listed:
A. Direct appeal attorney did not make documents needed to support this claim part of the record so Superior Court deemed this issue waived.
B. Trial attorney did not question snitch about whether or not he hoped to receive favorable treatment from the Commonwealth in his own case, in exchange for his testimony against Petitioner.
C. Trial attorney did not raise newly discovered deal given to snitch when the information became available during Petitioner's direct appeal.
D. After discovered evidence, in the form of an affidavit attesting that snitch admitted to lying during his testimony should have resulted in a new trial, or dismissal of the charges, since his testimony was only evidence linking Petitioner to crimes.
E. Trial attorney gave Petitioner incorrect advice about what old convictions could be brought up at trial causing him to decline to testify at trial.
F. Trial attorney did not call character witnesses at trial, telling Petitioner that they could not be used.
G. Trial attorney did not call an arson expert at trial to refute State's contention that fire was deliberately set.
3. Cumulative effect of above errors denying Petitioner a fair trial.

(ECF No. 1).

II. Standard of Review

In describing the role of federal habeas corpus proceedings, the Supreme Court of the United States, in Barefoot v. Estelle , 463 U.S. 880, 887 (1983), noted:

[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence.... The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996, (AEDPA), which further "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone , 535 U.S. 685, 693 (2002).

Amended Section 2254 of the federal habeas corpus statute provides the standard of review for federal court review of state court criminal determinations ...

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