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Robinson v. Sup't, SCI Somerset

United States District Court, E.D. Pennsylvania

November 19, 2014

ROBERT ROBINSON
v.
SUP'T, SCI SOMERSET, et al

For ROBERT ROBINSON, Petitioner: CHERYL J. STURM, LEAD ATTORNEY, CHERYL J. STURM, ATTORNEY AT LAW, CHADDS FORD, PA.

For SUPERINTENDENT, SCI SOMERSET, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY, Respondents: JENNIFER O. ANDRESS, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA, PA; THOMAS W. DOLGENOS, DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA, PA.

REPORT AND RECOMMENDATION

THOMAS J. RUETER, United States Magistrate Judge.

Presently before the court is a counseled petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated in the State Correctional Institution located in Somerset, Pennsylvania. For the reasons that follow, the court recommends that the petition be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

On May 28, 1999, a jury sitting in the Court of Common Pleas of Philadelphia County convicted petitioner of attempted murder, aggravated assault, possession of an instrument of crime and carrying a firearm without a license. Commonwealth v. Robinson, No. CP- 51-CR-1106081-1998, slip op. at 3 (C.P. Phila. Dec. 7, 2004). The trial court set forth the following account of the events underlying petitioner's convictions:

On October 30, 1998, at approximately 7:30 p.m., the victim, Mr. Kenneth Glenn, went to the home of Ms. Nina Lester, located at 1315 North 75th Street, Philadelphia, Pennsylvania. (Notes of Testimony (hereinafter referred to as " N.T."), May 24, 1999, 39, 83[.)] His purpose was to purchase a $20 bag of cocaine. However, when he arrived, he rang the wrong doorbell. A woman on the first floor, Ms. Sandra Pullett, answered the door and told him she did not think anyone was home in the apartment upstairs. Id. 40-43, 64. Appellant, Ms. Pullett's paramour, was in her apartment at this time. Id. [at] 88.
Mr. [Glenn] testified that he apologized and went back to his car to smoke a cigarette, and await the arrival of Ms. Lester. Id. [at] 43-44. Appellant came out of the apartment and approached Mr. Glenn. He ordered Mr. Glenn out of the vehicle and Mr. Glenn complied. Appellant then ordered Mr. Glenn to " give me your money." Id. at 44-45. When the victim resisted, appellant pulled a gun from his waist area and shot the victim in the stomach. Id. [at] 45. The appellant then punched Mr. Glenn in the face with the gun. The resulting injuries to his face consisted of a " split open eye", four " knocked out teeth", and a broken jaw. Id. at 46, 59, 60. Mr. Glenn tried to climb back into the car and honk the horn for help, but he was again accosted by appellant, who attempted to shoot him in the head. Id. at 54. The victim raised his left hand in defense and received a gunshot wound to the hand. Id. at 45-46. Appellant took the victim's wallet and fled back toward Ms. Pullett's apartment. Id. at 46. The victim was able to climb back into his vehicle and drive away. Near a West Coast Video Store, in the vicinity of 75th Street and Haverford Avenue, he stopped his vehicle and asked a person offering him assistance to call the police.
When police arrived at the scene of the incident, they found the victim's bloody jacket and a bloody $20 dollar bill lying in the driveway of the apartment complex. Officers arrested the appellant in Ms. Pullett's apartment. In the apartment they found appellant's blood-stained clothes and the gun used to shoot the victim. N.T., 5/25/04, 30-34, 42-43, 50-51.

Id. at 1-2.

On December 21, 1999, the trial court sentenced petitioner to an aggregate term of imprisonment of twenty-nine and one-half to seventy-two years. Id. at 3. On December 13, 2005, the Superior Court of Pennsylvania affirmed the judgment of sentence. Commonwealth v. Robinson, No. 2208 EDA 2003, 894 A.2d 823 (Pa. S.Ct. 2005). The Supreme Court of Pennsylvania denied petitioner's request for review on August 6, 2008. Commonwealth v. Robinson, 598 Pa. 765, 956 A.2d 434 (Pa. 2008) (Table).

On January 26, 2009, petitioner filed a pro se PCRA petition. Counsel was appointed and filed an amended PCRA petition on June 23, 2011. By order dated December 15, 2011, the PCRA court dismissed the petition and, on January 23, 2012, the PCRA court issued an opinion. Commonwealth v. Robinson, No. CP- 51-CR-1106081-1998 (C.P. Phila. Jan. 23, 2012). Petitioner filed an appeal and the Superior Court of Pennsylvania affirmed on August 6, 2012. Commonwealth v. Robinson, No. 262 EDA 2012, 60 A.3d 558 (Pa. S.Ct. 2012). Petitioner raised one issue on appeal: " Did the PCRA Court err in dismissing Appellant's PCRA petition without an evidentiary hearing when Appellant rebutted the presumption that trial and direct appeal counsel were effective?" Id., No. 262 EDA 2012, slip op. at 3. The Supreme Court of Pennsylvania denied petitioner's request for relief on March 12, 2013. Commonwealth v. Robinson, 619 Pa. 690, 63 A.3d 776 (2013) (Table).

Petitioner executed the instant counseled petition for a writ of habeas corpus on November 13, 2013 and filed it on November 27, 2013, along with a memorandum of law (" Pet'r's Mem., " Doc. No. 1). Petitioner raises seven claims for habeas relief. First, in claims 1 through 4, petitioner asserts four instances of ineffective assistance of counsel: (1) trial counsel's failure to use a videotape which would have shown the jury the crime scene, the line of sight of eyewitness Marla Oliver, and the lighting at the time of the crime, id. at 20-23; (2) trial counsel introduced petitioner's prior conviction through the use of character witnesses, id. at 23; (3) sentencing counsel's failure to object to and appeal the imposition of consecutive sentences because they were unsupported by a jury verdict, id. at 23-24; and (4) trial counsel's errors, in the aggregate, led to the denial of a fair trial, and appellate counsel and PCRA counsel were ineffective for failing to include this combination of errors issue in the PCRA petition, id. at 24-25.

In his fifth habeas claim, petitioner alleges a due process violation resulting from three categories of prosecutorial misconduct: (1) repeatedly and erroneously emphasizing that the gun at issue had to be cocked each time before it was discharged, id. at 25-26; (2) calling the defense strategy " outrageous" and " desperate acts" and calling defense witness Ms. Pullett a " liar; " and (3) giving personal comments on the evidence and personal opinions on the credibility of witnesses, id. at 26. In his sixth habeas claim, petitioner contends a " denial of due process when the judge declined to charge the jury on the law of self-defense/justification." Id. at 26-35. Finally, in his seventh habeas claim, petitioner maintains that the trial court deprived him of due process by imposing consecutive sentences for attempted murder and aggravated assault based on facts not found by the jury. Id. at 35-36.

Respondents filed a response to the habeas petition on August 22, 2014, arguing that the petition should be denied because petitioner's claims are procedurally defaulted and/or meritless (" Resp., " Doc. No. 11). On September 19, 2014, petitioner filed a reply in support of his habeas petition (" Pet'r's Reply, " Doc. No. 14). The court received the state court record from the trial and appellate courts on February 20, 2014. The record thus constituted, the court now addresses petitioner's habeas claims. For the reasons detailed forth below, the habeas petition should be denied.

II. DISCUSSION

A. Habeas Corpus Standards

Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"). The provisions of the AEDPA relevant to the instant matter provide as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1) and (2).

The Supreme Court has instructed that the " contrary to" and " unreasonable application" clauses in Section 2254(d)(1) should be viewed independently. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to Section 2254(d)(1), a federal habeas petitioner is entitled to relief under the " contrary to" clause only if " the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 413. The Court in Williams was careful to note that most cases will not fit into this category, which is limited to direct and unequivocal contradiction of Supreme Court authority. Id. at 406-08.

Under the " unreasonable application" clause, " [a] state court decision will be an 'unreasonable application' if (1) 'the state court identifies the correct governing legal rule from [the] Court's cases but unreasonably applies it to the facts of the particular . . . case; ' or (2) 'the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'" Appel v. Horn, 250 F.3d 203, 209 (3d Cir. 2001) ( quoting Williams, 529 U.S. at 407). A federal habeas court may not issue the writ simply because that court concludes " that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411. Relief is appropriate only where the state court decision also is objectively unreasonable. Id. See also Waddington v. Sarausad, 555 U.S. 179, 190, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009) (same). The Third Circuit Court of Appeals recently described this " highly deferential standard" as follows: " we will not surmise whether the state court reached the best or even the correct result in [a] case; rather, we will determine only 'whether the state court's application of [federal law] was unreasonable.'" Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d 528, 544 (3d Cir. 2014).

With respect to 28 U.S.C. § 2254(d)(2), which dictates that federal habeas relief may be granted when the state court adjudication was based on an unreasonable determination of the facts in light of the evidence presented, the petitioner must demonstrate that a reasonable fact-finder could not have reached the same conclusions given the evidence. If a reasonable basis existed for the factual findings reached in the state courts, then habeas relief is not warranted. Campbell v. Vaughn, 209 F.3d 280, 290-91 (3d Cir. 2000), cert. denied, 531 U.S. 1084, 121 S.Ct. 789, 148 L.Ed.2d 685 (2001).

Additionally, " a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). See Collins, 742 F.3d at 544 (claims adjudicated by state court on the merits subject to " highly deferential review"). See also Burt v. Titlow, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013) (same); Appel, 250 F.3d at 209 (same).

A federal habeas court may not consider a petitioner's claims of state law violations, but must limit its review to issues of federal law. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (not the province of the federal court to re-examine a state court's determinations on state law questions); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (" A federal court may not issue the writ on the basis of a perceived error of state law."); Engle v. Isaac, 456 U.S. 107, 120 n.19, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (" If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable."); Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997) (" [E]rrors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause.").

B. Exhaustion and Procedural Default

The respondents allege that several of petitioner's claims are unexhausted and procedurally defaulted. The exhaustion doctrine requires that a prisoner present all of his claims to a state's intermediate court, as well as to its supreme court, before a district court may entertain a federal petition for habeas corpus. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir.), cert. denied, 133 S.Ct. 669, 184 L.Ed.2d 475 (2012).[1] " The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert. denied, 504 U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992). To satisfy the exhaustion requirement, a petitioner must demonstrate that the claim raised in the federal petition was " fairly presented" to the state courts. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). Petitioner must show that " the claim brought in federal court [is] the substantial equivalent of that presented to the state courts. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts." Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989) (citations omitted), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990).

However, when the petitioner cannot obtain state court review of his claims because of noncompliance with state procedural rules, the doctrine of generally bars federal habeas corpus review. Martinez v. Ryan, 132 S.Ct. 1309, 1316, 182 L.Ed.2d 272 (2012); Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Collins, 742 F.3d at 541-42; Sistrunk v. Vaughn, 96 F.3d 666, 674-75 (3d Cir. 1996). The Third Circuit Court of Appeals recently explained:

" The doctrine of procedural default prohibits federal courts from reviewing a state court decision involving a federal question if the state court decision is based on a rule of state law that is independent of the federal question and adequate to support the judgment." Fahy v. Horn, 516 F.3d 169, 187 (3d Cir. 2008) (citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)). Procedural default occurs when a state court determines that " the prisoner . . . failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 . . . (1991).

Collins, 742 F.3d at 540. Upon a finding of procedural default, review of a federal habeas petition is barred unless the habeas petitioner can show " (1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered." [2] Peterkin v. Horn, 176 F.Supp.2d 342, 353 (E.D. Pa. 2001) (citations omitted).[3]

C. Petitioner's Claims

Claims 1 - 4. Ineffective Assistance of Counsel

Claim 7. Trial Court Error - Consecutive Sentences

Petitioner's first four claims assert ineffective assistance of counsel. Claim 7 is related to Claim 3. To establish a claim of ineffective assistance of counsel, a petitioner must show both deficient performance and prejudice. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court set forth a two prong test that a petitioner must satisfy before a court will find that counsel did not provide the effective assistance of counsel guaranteed by the Sixth Amendment. Under this test, a petitioner must show: (1) that counsel's performance was deficient; and (2) counsel's deficient performance caused the petitioner prejudice. Id. at 687-96. The United States Supreme Court observed that " [s]urmounting Strickland's high bar is never an easy task." Premo, 131 S.Ct. at 739 (quotation omitted). See also Collins, 742 F.3d at 544 (discussing Strickland); Ross v. District Attorney of the County of Allegheny, 672 F.3d 198, 209-10 (3d Cir. 2012) (same).

To show deficient performance, a petitioner must show " that counsel's representation fell below an objective standard of reasonableness" and that " counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687-88. In evaluating counsel's performance, a reviewing court should be " highly deferential" and must make " every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Moreover, there is a " strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (citation omitted). The Court cautioned that the appropriate " question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms, ' not whether it deviated from best practices or most common custom." Premo, 131 S.Ct. at 740 ( quoting Strickland, 466 U.S. at 690).

The United States Supreme Court explained the prejudice requirement for an ineffective assistance of counsel claim as follows:

With respect to prejudice, a challenger must demonstrate " a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." It is not enough " to show that the errors had some conceivable effect on the outcome of the proceeding." Counsel's errors must be " so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

Harrington, 131 S.Ct. at 787-88 (citations omitted). See also Cullen v. Pinholster, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) (The prejudice requirement of Strickland requires a " 'substantial, ' not 'conceivable, ' likelihood of a different result."). It follows that " 'counsel cannot be deemed ineffective for failing to raise a meritless claim.'" Ross, 672 F.3d at 211 n.9 (quoting Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000)).

Where, as in the instant case, the state court already has rejected an ineffective assistance of counsel claim, a federal court must defer to the state court's decision pursuant to 28 U.S.C. § 2254(e)(1). See Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). The Court recently stated:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both 'highly deferential, ' id. at 689; Lindh v. Murphy, 521 U.S. 320, 333 n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 . . . (1997), and when the two apply in tandem, review is 'doubly' so. Knowles, 556 U.S. at 123, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S. at 123, [129 S.Ct., at 1420]. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Premo, 131 S.Ct. at 740 (quotation omitted).

Claim 1. Trial Counsel Was Ineffective For Failing To Use A Videotape Or To Call The Investigator As A Witness

In his first claim, petitioner contends that trial counsel was ineffective for failing to use a videotape at the trial which would have shown the jury the crime scene, the line of sight of eyewitness Marla Oliver, and the lighting at the time of the crime. (Pet'r's Mem. at 20-23.) The Superior Court of Pennsylvania rejected this claim on direct appeal and concluded as follows:

Appellant's first claim centers on the fact his private investigator went to the scene of the shooting and measured and videotaped it. According to Appellant, had the tape been introduced into evidence it would have demonstrated what Ms. Oliver was able to see from her vantage point and also to counter the victim's testimony that he heard Ms. Pullett's door open.
At the evidentiary hearing, trial counsel testified that he did not introduce the videotape into evidence because the tape turned out " much darker" than the lighting conditions that existed at the time of the shooting. Since the videotape did not accurately and fairly represent the lighting levels at the time of the crime, he did not believe that the tape would have been authenticated, and would not have been admissible.
Our Court has stated that video evidence, much like photographic evidence, must be authenticated before it is admitted into evidence. Commonwealth v. Impellizzeri, 443 Pa.Super. 296, 661 A.2d 422, 428 (Pa. Super. 1995). To be authenticated, the proposed evidence must " be verified by either the person who took it or one sufficiently knowledgeable to testify the picture accurately represents the object depicted as it existed at the time of the event in question." Commonwealth v. McClintock, 433 Pa.Super. 83, 639 A.2d 1222, 1226 (Pa. Super. 1994). Since the investigator told Appellant's counsel that the lighting conditions on the tape were different than those that existed at the time of the crimes, the tapes could not have been authenticated and admitted into evidence, especially for the purposes of demonstrating what Ms. Oliver could or could not see. Thus, counsel had a reasonable basis for his decision not to admit the tape into evidence, and was not ineffective.

Commonwealth v. Robinson, No. 2208 EDA 2003, slip op. at 8-9 (Pa. S.Ct. Dec. 13, 2005).

Petitioner asserts as follows in support of this claim: " Here, the videos and/or testimony of the [investigator] were necessary to put the entire case in proper perspective, and ensure a fair trial worthy of confidence. If the [investigator] had testified about what Ms. Oliver could have see [sic] from her location, there was a reasonable probability of acquittal." (Pet'r's Mem. at 23.) Petitioner contends that Ms. Oliver's testimony was " crucial to the defense." Id. at 21. Petitioner maintains that on direct examination, Ms. Oliver testified that she saw petitioner reach into his sweatshirt, pull out an object, and shoot the victim. Id. at 22. However, petitioner urges that on cross-examination, she changed her testimony and acknowledged that she could not see anything that happened below petitioner's chest because the two men were standing behind the victim's car which blocked her view. Id. Petitioner asserts that Ms. Oliver's testimony, " [i]n many ways, " corroborated petitioner's testimony that the victim was not sitting in a car, but " was backing [petitioner] down the walkway from the apartment to the street" when the two men began " tussling, " and that petitioner grabbed the victim by the coat to get the gun away from him. Id. at 21-22. Petitioner urges that the " totality of the evidence supports the inference that the victim gave false testimony and that petitioner's testimony was truthful." Id. at 22.

As to the videotape, counsel cannot be found to be ineffective for deciding not to move into evidence a videotape that was inadmissible because it did not depict the scene of the crime accurately. Petitioner admits that the videotape was made " for the purpose of showing what witnesses could have seen under the lighting conditions prevailing at the time of the incident." Id. The videotape admittedly did not fulfill that purpose since the videotape did not present " the lighting conditions prevailing at the time of the incident." Id.

Petitioner then urges that trial counsel should have called the investigator to testify " about what Ms. Oliver could have see [sic] from her location." Id. at 23. Petitioner fails to state how the investigator's testimony in this regard would have been admissible. Ms. Oliver was the eyewitness who testified at petitioner's trial, and was subjected to direct and cross-examination. Because petitioner contends that Ms. Oliver's testimony was key to the defense, the court will summarize Ms. Oliver's testimony. At the trial, Ms. Oliver testified on direct examination that she knew petitioner prior to the incident because he was a teacher's aide to her son when the son was in kindergarten or first grade, and that petitioner or his girlfriend had moved into the apartment next to Ms. Oliver's about six months prior to the incident. (N.T., 5/24/99, at 88.) Since the time petitioner was around the apartment complex, he and Ms. Oliver had engaged in general conversation and the two recollected each other from his teacher's aide position. Id. at 89. Ms. Oliver did not know the victim. Id. Ms. Oliver testified that petitioner and the victim were " tussling and walking down the walkway, " which was not long. Id. at 91-92. She further testified that the victim " was trying to get in his car to get away, " when " [petitioner] went in his pocket and pulled out an object that made a noise." Id. at 92. Ms. Oliver testified that she could not see what the object was because it was dark, but that she thought the object was a gun. Id. Ms. Oliver testified that the object made a noise that " sounded like a gun." Id. at 103. After the object was pulled from petitioner's pocket, Ms. Oliver testified that the victim yelled " like as if he was injured." Id. at 92. Ms. Oliver further testified that petitioner next threw the victim to the ground and kicked and beat him. Id. at 94. At this point, Ms. Oliver testified that she heard a second shot and the victim yelled again. Id. Ms. Oliver testified that she did not see the second shot because, after the first shot, she became very nervous and ran back to her apartment. Id. at 94-95.

On cross-examination, defense counsel questioned Ms. Oliver regarding exactly what she was able to see considering the lighting and the location of the victim's car. The following exchange took place between the defense attorney and Ms. Oliver:

Attorney: At some point in time you told us you saw [petitioner] put his hand in his pocket. Where was he when this happened?
Ms. Oliver: He was on the driver's side with the victim.
. . .
Attorney: And at that point the person who you called the victim, his car was between you and the victim and [petitioner], wasn't it?
Ms. Oliver: Yes.
Attorney: And if that was the case, if [petitioner] was standing like this and . . . was the pocket in front of his shirt, or pants pocket?
Ms. Oliver: It was around the front. I didn't see exactly if it was the pocket or stomach.
Attorney: And it was dark where they were, right?
Ms. Oliver: Right.
Attorney: It was so dark that you couldn't see an object at all, could you?
Ms. Oliver: No.
Attorney: And so if you couldn't see an object and if the car was between you and the two men, how was it that you were able to see [petitioner] put his hand in his pocket?
Ms. Oliver: When he reached down, where else would he go?
Attorney: I don't know where else he would go, but the fact is you did not see him reach into his pocket, did you?
Ms. Oliver: No. I saw him reach down.

Id. at 117-18. On cross-examination, Ms. Oliver further testified that the height of the victim's car came up to petitioner's chest, and that while she did not see petitioner put his hand in his pocket, she saw that " [h]is hand went down." Id. at 119. Ms. Oliver also testified on cross-examination that, although she did not hear all of the conversation between petitioner and the victim, she did not hear petitioner tell the victim to hand over his wallet. Id. at 123.

Defense counsel ably cross-examined Ms. Oliver eliciting testimony that it was dark at the time of the incident, that she did not see the gun, and that she could not see below petitioner's chest. This is the information petitioner hoped to elicit from the investigator. The jury had this information before it when it deliberated in petitioner's case and, nonetheless, returned verdicts against petitioner. The testimony of the investigator, at best, would have been cumulative of the testimony of the eyewitness. Petitioner points to nothing in the record to support his argument that testimony by the investigator about what Ms. Oliver hypothetically could have seen would have been admissible or that such testimony would have resulted in a different verdict.

As detailed above, where, as here, the state court already has rejected an ineffective assistance of counsel claim, a federal court must defer to the state court's decision pursuant to 28 U.S.C. § 2254(e)(1). As stated by the Supreme Court in Premo, 131 S.Ct. at 740, " when § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Petitioner has failed to overcome Strickland's deferential standard. Petitioner has failed to show that counsel's performance was deficient and caused petitioner prejudice. Strickland, 466 U.S. at 687-96. Petitioner also has failed to show that the state court's determination resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States, or in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(1) and (2). Petitioner's first habeas claim should be denied.

Claim 2. Trial Counsel Was Ineffective For Introducing Petitioner's Prior Conviction Through Character Witnesses

In support of this claim, petitioner states in full as follows:

Trial counsel had witnesses take the stand to testify that petitioner had a good reputation for peacefulness. Trial counsel was aware that the petitioner had a prior for simple assault, and he was aware that the prosecutor would use the character witnesses to inform the jury that the petitioner had a prior for assault. No sensible lawyer would have had the witnesses testify knowing the witnesses would be used as a conduit for the admission of the prior conviction. The admission of information about the prior was extremely prejudicial, and may have led to the conviction. No reasonable, rational lawyer would have had character witnesses testify knowing they would be impeached with a prior for similar conduct.

(Pet'r's Mem. at 23.) The PCRA court provided the following summary of the testimony by the character witnesses at petitioner's trial:

Finally, Defendant introduced evidence of his reputation for being a peaceful, truthful, and law abiding citizen. N.T., 5/26/1999, pp. 23-32. Live testimony was presented from a former supervisor of Defendant and two of his friends. On direct examination, defense counsel asked if the witnesses were aware that Defendant had been convicted of simple assault in 1988. The witnesses testified that they were aware of the conviction, but that it did not alter their opinion that Defendant possessed a reputation as a peaceful, truthful, and law abiding individual. Id. The defense also presented evidence that the Commonwealth stipulated that eight additional witnesses would provide identical testimony. N.T., 5/26/1999, pp. 32-33. These witnesses included Pullett (then Defendant's fiancé), and various members of Defendant's family. Id.

Commonwealth v. Robinson, No. CP- 51-CR-1106081-1998, slip op. at 4 (C.P. Phila. Jan. 23, 2012).

This was the only issue advanced by petitioner in his counseled, amended PCRA petition. The PCRA court considered and rejected this claim reasoning as follows:

The Pennsylvania Supreme Court's decision in Commonwealth v. Savage, [529 Pa. 108, 602 A.2d 309 (1992)], is apposite, instructive, and dispositive. Defense counsel in Savage found himself in nearly identical circumstances as that of Defendant's trial counsel here. Savage's " defense at trial was self defense: he contended that the victim's death occurred as a result of the scuffle . . .. In order to support his self defense claim, there being no other witnesses that he could call to his aid, his own testimony was obviously necessary, and his case rested upon the jury believing he was credible." Commonwealth v. Savage, 529 Pa. at 113.
As in the instant case, the defendant in Savage testified. As in the instant case, the defendant in Savage called character witnesses to bolster his credibility in an effort to raise a reasonable doubt based upon his otherwise uncorroborated version of events. Of course, the defendants both here and in Savage enjoyed the added benefit attendant whenever reputation evidence is offered; namely, that reputation evidence alone may create a reasonable doubt as to guilt. Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (Pa. 1989).
As in the instant case, the defense witnesses offering character testimony in support of Savage were confronted with Savage's prior convictions for remote and unrelated crimes. The Supreme Court noted, as this Court does, that " It is apparent that trial counsel had to make a difficult decision." Commonwealth v. Savage, 529 Pa. at 113.
This Court reaches the same conclusion that the Supreme Court did in Savage: given the circumstances, the strategy employed by trial counsel was reasonable. " Counsel must be free to put the best available face forward; the fact that the tack taken was not successful does not mean it was unreasonable." Commonwealth v. Savage, 529 Pa. at 114.
The fact that defense counsel in this case addressed the misdemeanor conviction during direct examination indicates that he was aware of its existence and made the decision to present reputation evidence in light of this unfavorable collateral issue. Thus, this Court cannot conceive what evidence could be presented at an evidentiary hearing that would indicate that trial counsel lacked a reasonable basis for presenting reputation evidence which (1) at least in theory provided a basis for acquittal in and of itself, and (2) buttressed the otherwise uncorroborated testimony of Defendant which was directly at odds with that of the victim and a disinterested witness.
As Defendant has failed to satisfy one prong necessary to establish ineffectiveness, this Court denies the PCRA petition. With respect to the third prong, this Court finds that there does not exist a reasonable probability that the outcome would have been different if Defendant had not presented reputation evidence. The lack of reputation evidence (and concomitant reference to a decade old misdemeanor conviction) would have rendered Defendant's self-serving and implausible testimony even less credible. In light of the case presented by the Commonwealth at trial, any prejudice caused by the presentation of the Defendant's simple assault conviction falls well short of establishing that there is a reasonable probability that the outcome would have been different if the evidence of that conviction and the corollary reputation evidence had been omitted at trial.

Id. at 5-7. The appellate court affirmed on appeal finding that: " The record establishes that trial counsel introduced evidence of Appellant's character to bolster Appellant's credibility, increase the likelihood that the jury would believe Appellant's claim of self-defense, and thereby establish reasonable doubt as to Appellant's guilt. Without the reputation evidence, Appellant's version of events, which directly contradicted the testimony of the victim and a disinterested third-party witness, would have been entirely uncorroborated." Commonwealth v. Robinson, No. 262 EDA 2012, slip op. at 4 (Pa. S.Ct. Aug. 6, 2012). The appellate court also agreed with the PCRA court that petitioner " failed to demonstrate a reasonable probability that the outcome of his trial would have been different if evidence of his reputation and prior conviction for simple assault had not been presented to the jury." Id. at 5. The court further agreed that " measured against the physical evidence and the testimony of the victim and the third-party witness, Appellant's self-serving testimony would likely appear less credible in the absence of evidence attesting to his current reputation as a peaceful, truthful, and law-abiding citizen." Id.

For the many reasons detailed by the state courts, this court agrees that trial counsel's actions were reasonable and counsel was motivated by sound trial strategy when presenting character witnesses on petitioner's behalf at the trial. Moreover, the evidence of petitioner's guilt was substantial and included: the testimony of the victim and an eyewitness, petitioner was located by the police in his girlfriend's apartment outside of which the incident occurred, petitioner's bloody clothes and the gun used to shoot the victim were located in this apartment, and petitioner's girlfriend testified that petitioner entered the apartment after the altercation soaked in the victim's blood and wielding a gun. Petitioner did not deny being involved in an altercation with the victim. In light of the circumstances of this case, counsel's representation of petitioner was not deficient. Additionally, in light of the strong evidence of petitioner's guilt, petitioner has not shown that he suffered prejudice as a result of the admission of a decade old misdemeanor conviction. Petitioner's second habeas claim should be denied.

Claim 3. Sentencing Counsel Was Ineffective

Claim 7. Trial Court Error -- Consecutive Sentences

In his third habeas claim, petitioner urges that counsel was ineffective for failing to object to the trial court's improper imposition of consecutive sentences for attempted murder and aggravated assault, and that appellate and PCRA counsel were ineffective for failing to pursue this issue on appeal and in the PCRA petition. (Pet'r's Mem. at 23-24.) Petitioner asserts that because attempted murder and aggravated assault are greater and lesser included offenses, the " convictions cannot be subdivided without a jury verdict justifying the conclusion that the crime of attempted murder was based on the shooting and the aggravated assault was based on the pistol whipping." Id. at 24. In his seventh habeas claim, petitioner presses the underlying claim of his third habeas claim, and asserts that the trial court erred in imposing consecutive sentences for the attempted murder and aggravated assault convictions. Id. at 35-36.

Petitioner's third claim that trial counsel was ineffective is not exhausted because it was not presented to the state courts, and now is procedurally defaulted because the time to do so has passed. However, because the state court on direct appeal considered the underlying claim of whether the trial court erred when it imposed consecutive sentences for the attempted murder and aggravated assault convictions, the court will consider petitioner's unexhausted third habeas claim under 28 U.S.C. § 2254(b)(2). This underlying claim of trial court error in sentencing is petitioner's seventh habeas claim presented herein. The Superior Court of Pennsylvania affirmed the trial court's rejection of this claim and explained as follows:

Lastly, Appellant argues that the court erred when it did not merge his sentences for aggravated assault and attempted murder. Appellant maintains that this was error because aggravated assault is a lesser included offense of murder, thus necessitating merger.
Appellant's argument is controlled by Commonwealth v. Belsar, 544 Pa. 346, 676 A.2d 632 (Pa. 1996) where the Supreme Court considered whether Belsar's sentence for aggravated assault merged with his sentence for attempted murder. In that case, Belsar was lying in wait for the victim in a parking lot while armed with a rifle. When the victim arrived, Belsar shot him with the rifle five times. Subsequently, Belsar discovered that the victim was not dead and began kicking him. In rejecting Belsar's argument that these facts warranted merger of the aggravated assault conviction with the attempted murder conviction, our Supreme Court stated:
... the crime of aggravated assault here occurred by the act of kicking a man who had just been wounded by rifle fire. This act was different from and in addition to the criminal's earlier act of shooting, which was the factual basis for the convictions of attempted murder and aggravated assault. The aggravated assault based on the shooting merged with attempted murder; but the aggravated assault which did not merge was based on the act of kicking him later. When a criminal act has been committed, broken off, and then resumed, at least two crimes have occurred and sentences may be imposed for each. To hold that multiple assaults constitute only one crime is to invite criminals like Belsar to brutalize their victims with impunity.
Id. at 634.
Here, Appellant first shot the victim in the stomach. This act formed the basis for the attempted murder charge. Thereafter, the struggle continued as the victim attempted to get into his car, resulting in Appellant ripping the jacket off the victim. Appellant pointed the gun at the victim's head and discharged it, but only resulted in injuring the victim's hand, which was held up in a defensive position. Appellant then began to pistol whip the victim, injuring the victim's eye, breaking his jaw, and knocking out four teeth. This bludgeoning supported the aggravated assault conviction. Just as in Belsar, the convictions were predicated on different facts to support each crime. Accordingly, we conclude that the traditional principles of merger, which are based on a greater and lesser included offense merging when they stem from the same factual event, do not apply. Thus, Appellant's sentences for aggravated assault and attempted murder do not merge, and the trial court did not err in failing to do so.

Commonwealth v. Robinson, No. 2208 EDA 2003, slip op. at 18-19 (Pa. S.Ct. Dec. 13, 2005).

Petitioner cites to no support for his assertion that the " convictions cannot be subdivided without a jury verdict justifying the conclusion that the crime of attempted murder was based on the shooting and the aggravated assault was based on the pistol whipping." (Pet'r's Mem. at 24 (Claim 3), 36 (Claim 7).) The case cited by petitioner in support of both of these habeas claims, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), see Pet'r's Mem. at 23, 35, addresses the interpretation of a particular federal carjacking statute and whether the statute " defined three distinct offenses or a single crime with a choice of three maximum penalties." Jones, 526 U.S. at 229. An important determination in that case was whether " a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to the jury, and proven by the Government beyond a reasonable doubt." Id. at 232 (citations omitted). The case was remanded because, essentially, the defendant received a sentence for an offense for which he was not indicted. Id. at 251-52. Jones does not apply to the instant case. The elements of the crimes of which petitioner was charged and convicted were placed before the jury. Under Pennsylvania law, as appropriately summarized by the Superior Court of Pennsylvania on direct appeal, the trial court properly imposed consecutive sentences. Even if counsel had raised this issue with respect to the sentencing, counsel would not have prevailed. Counsel cannot be found ineffective for failing to pursue a meritless claim. Petitioner's third and seventh habeas claims should be denied.

Claim 4. Cumulative Effect Of Trial Counsel's Errors Led To Denial Of A Fair Trial, And Appellate And PCRA Counsel Were Ineffective For Failing To Include This Claim In The PCRA Petition

In support of this claim, petitioner states in full as follows:

Trial counsel's errors, taken in the aggregate, led to the denial of the fair trial supposedly guaranteed by the due process clause of the Fourteenth Amendment. Appellate counsel and PCRA counsel were constitutionally ineffective for failing to include this combination of errors issue in the PCRA petition. PCRA counsel was ineffective for dropping the issues presented in the pro se PCRA petition without the consent of the petitioner.

(Pet'r's Mem. at 24-25.) This claim is unexhausted as petitioner never presented it to the state courts. Since the time to present this claim in the state courts has passed, the claim also is procedurally defaulted. Recently, the Third Circuit Court of Appeals addressed for the first time whether a cumulative error claim is a standalone constitutional claim that must be exhausted for the purposes of habeas corpus review. The court of appeals concluded that it is and held as follows: " We have not had occasion before to hold that a cumulative error argument constitutes a standalone constitutional claim subject to exhaustion and procedural default, but with the issue squarely presented now, we so rule." Collins, 742 F.3d at 541. The court explained that because " '[b]riefing a number of isolated errors that turn out to be insufficient to warrant reversal does not automatically require the court to consider whether the cumulative effect of the alleged errors prejudiced the petitioner, ' Wooten [v. Kirkland], 540 F.3d [1019, ] 1025 [(9th Cir. 2008)], we now join those circuits that hold that a claim of cumulative error must be presented to the state courts before it may provide a basis for habeas relief." Collins, 742 F.3d at 543.

Petitioner contends that appellate and PCRA counsel were ineffective for failing to include this claim in the PCRA petition. In his reply, petitioner asserts that any procedural defaults are excused by application of Martinez v. Ryan. See supra 9 n.3. Rather than consider the application of Martinez, the court will consider the merits of this unexhausted claim as it is permitted to do pursuant to 28 U.S.C. § 2254(b)(2). The appellate court in Collins recently explained the cumulative error doctrine as follows:

The cumulative error doctrine allows a petitioner to present a standalone claim asserting the cumulative errors at trial that so undermined the verdict as to constitute a denial of his constitutional right to due process. See Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007) (holding that petitioner could not show that the cumulative prejudice of trial errors " undermined the reliability of the verdict"). Specifically, we have said that
Individual errors that do not entitle a petitioner to relief may do so when combined, if cumulatively the prejudice resulting from them undermined the fundamental fairness of his trial and denied him his constitutional right to due process. Cumulative errors are not harmless if they had a substantial and injurious effect or influence in determining the jury's verdict, which means that a habeas petitioner is not entitled to relief based on cumulative errors unless he can establish actual prejudice.

Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008). Collins, 742 F.3d at 542. See United States v. Ware, 2013 WL 6283955, at *7 (E.D. Pa. Dec. 2, 2013). (" '[A] cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.'") (quoting Albrecht, 485 F.3d at 139). See also Saget v. Bickell, 2014 WL 4992572, at *24-*25 (E.D. Pa. Oct. 6, 2014) (same).

Here, petitioner asserts that the cumulative effect of trial counsel's errors violated his due process rights, and that appellate and PCRA counsel were ineffective for failing to raise the cumulative effect of trial counsel's errors as an independent claim. The state court concluded, and this court agrees, that none of petitioner's claims of ineffective assistance of counsel have merit. The cumulative error doctrine requires the existence of " errors" to aggregate. Absent such errors by counsel, the cumulative error doctrine does not apply. See Saget, 2014 WL 4992572, at *25 (when counsel's performance was not deficient under the first prong of Strickland, there is no need to look to prejudice in the aggregate) (citations omitted); Williams v. Sup't, SCI Greene, 2012 WL 6057929, at *2 (E.D. Pa. Dec. 4, 2012) (because only one ineffectiveness claim had merit, there was nothing to aggregate). Since the underlying claim of cumulative effect of trial counsel's errors lacks merit, appellate and PCRA counsel were not ineffective for failing to raise this meritless claim. Petitioner's fourth habeas claim should be denied.

Claim 5. Prosecutorial Misconduct

In his fifth habeas claim, petitioner contends that he was deprived of a fundamentally fair trial when the prosecutor engaged in misconduct. Petitioner alleges three categories of misconduct: (1) repeatedly and erroneously emphasizing that the gun at issue had to be cocked each time before it could be discharged, Pet'r's Mem. at 25-26; (2) calling the defense strategy " outrageous" and " desperate acts" and calling defense witness Ms. Pullett a " liar, " id. at 26; and (3) giving personal comments on the evidence and personal opinions on the credibility of witnesses, id. Respondents assert that these claims were properly rejected by the state courts.

" [T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). A petitioner seeking the writ of habeas corpus will not succeed merely because the prosecutor's actions " were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quotations omitted). Rather, to successfully state a claim for habeas relief based upon comments at trial by the prosecutor, a petitioner must show that the prosecutor's comments were so egregious that they fatally infected the proceedings, rendered the entire trial fundamentally unfair, and made the conviction a denial of due process. See Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)); Lesko v. Lehman, 925 F.2d 1527, 1546 (3d Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991). The Third Circuit Court of Appeals confirmed that the court's review of a prosecutor's conduct in a state trial in a federal habeas proceeding is limited to determining whether the prosecutor's conduct " so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process." Fahy v. Horn, 516 F.3d 169, 199 (3d Cir. 2008) (quoting Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)). This determination requires the court to distinguish between ordinary trial error and the egregious misconduct which amounts to a denial of constitutional due process. Id.

While a prosecutor's comments during closing arguments must be directed to an understanding of the facts and of the law rather than to passion and prejudice, Lesko, 925 F.2d at 1545 (citing United States ex rel. Perry v. Mulligan, 544 F.2d 674, 680 (3d Cir. 1976)), the prosecution is " accorded reasonable latitude and may employ oratorical flair arguing its version of the case to the jury." Henry v. Horn, 218 F.Supp.2d 671, 705 (E.D. Pa. 2002) (noting that this standard is not contrary to the federal Darden standard for adjudging claims of prosecutorial misconduct). In evaluating whether petitioner was denied his right to a fair trial as a result of the prosecutorial argument, the court must look at the prosecution's comments in the context of the trial. Laird v. Horn, 159 F.Supp.2d 58, 129 (E.D. Pa. 2001), aff'd, 414 F.3d 419 (3d Cir. 2005), cert. denied, 546 U.S. 1146, 126 S.Ct. 1143, 163 L.Ed.2d 1014 (2006). Where an error occurs, the inquiry then becomes whether, in light of the record as a whole, the prosecutor's conduct " had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quotations omitted).

The Superior Court of Pennsylvania rejected petitioner's claims of prosecutorial misconduct on direct appeal explaining as follows:

As his third issue, Appellant contends that the prosecutor engaged in prosecutorial misconduct, thus violating his state and federal constitutionally guaranteed rights to a fair trial and to due process. Specifically, Appellant alleges that prosecutorial misconduct occurred when the prosecutor: 1.) argued that the shooting could not have been an accident because the victim would have had to cock the gun each time before he shot himself; 2.) interjected her personal opinion by stating that Appellant's testimony was " outrageous, " calling Ms. Pullett a liar, and describing Appellant as " cold and calculating; " 3.) characterizing Appellant's calling eleven character witnesses as a " desperate act"; and 4.) commenting on Appellant's right to remain silent. Appellant's brief at 32-34.
The standard for granting a new trial because of the comments of a prosecutor is a high one. Generally, a prosecutor's arguments to the jury are not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict. This standard permits us to grant a new trial based on the comments of a prosecutor only if the unavoidable effect of the comments prevented the jury from considering the evidence. A prosecutor must have reasonable latitude in fairly presenting a case to the jury and must be free to present his or her arguments with logical force and vigor.
Commonwealth v. Ogrod, 576 Pa. 412, 839 A.2d 294, 333-34 (Pa. 2003) (citations omitted). We will evaluate Appellant's allegations of prosecutorial misconduct with this standard in mind.
Appellant first contends that he is entitled to a new trial because the prosecutor argued in her closing that the victim would have had to cock the gun before shooting himself on each occasion. The prosecutor's argument was in response to Appellant's testimony that the shootings were accidental and self-inflicted by the victims' [sic] own hands. In reality, the weapon was a double action gun and did not need to be cocked before firing. As a result of the erroneous statement, defense counsel objected, and the misinformation was pointed out at side-bar. Thereafter, the prosecutor corrected herself to the jury and explained the difference between what she had said before. Moreover, the court instructed the jury that the arguments of counsel did not constitute evidence and they were to be guided by the evidence from the witness stand. N.T., 5/24/99, at 16, 18. The jury is presumed to follow the court's instructions. Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225, 232 (Pa. 2000). Under this presumption, we cannot agree that the prosecutor's erroneous description of the workings of the weapon, subsequently corrected and coupled with an instruction, unavoidably prejudiced the jury against Appellant.
Appellant also alleges that the prosecutor engaged in misconduct by injecting her personal opinion regarding Appellant's testimony into the proceedings. Specifically, the prosecutor characterized Appellant's testimony as " outrageous." Additionally, she referred to Ms. Pullet as a liar and to Appellant as " cold and calculating." We do not find that these comments created a fixed bias and hostility towards the accused which would prevent the jury from properly weighing the evidence and rendering a true verdict. Ogrod, supra. Rather, given the evidence of record, these comments were made in fair response to Appellant's theory of the case. It should be remembered that Appellant testified that the shooting occurred because the victim possessed a gun which discharged accidentally when he was trying to take the gun away. He characterized the victim as a drug-crazed, gun-toting aggressor and attempted to minimize the injuries the victim sustained. However, weightier and more credible testimony established Appellant shot the victim once in the abdomen, then attempted to shoot him in the head, and thereafter viciously beat him before robbing him, causing [the] victim to require hospitalization in the intensive care unit for a month. Most of the victim's account was corroborated by an unbiased eyewitness. Moreover, Appellant then tried to conceal himself from police by refusing to come out of Ms. Pullet's home, hiding the weapon in a couch, discarding his bloody clothing, and providing a fake name. Given the nature of the testimony against him, the prosecutor's characterization of his story as outrageous was fair response and within the realm of oratorical flair.
As to the prosecutor's statement that Ms. Pullet was lying, we note that Ms. Pullet testified on Appellant's behalf. It should be remembered that when two diametrically opposed views are presented in an adversarial proceeding, both cannot prevail. One side's version can only be qualified as mistaken or as a lie. In Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (Pa. 1984), our Supreme Court found a district attorney's statement that a defendant " out and out lied" to the jury did not constitute actionable prosecutorial misconduct, because it represented a " fair inference from irrefutable evidence." Id. at 369. Certainly, fair inference could be drawn that Ms. Pullet, not even a defendant but a witness, was not being truthful with the jury and that she lied to protect Appellant. Additionally, this comment was in fair response to Appellant's accusations that the police were lying and even the eyewitness was lying. See Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 240-241 (Pa. 1999) (prosecutor's comments stating that Appellant had lied were neither unfair nor prejudicial when given in response to the comments of defense counsel in relation to the credibility of witnesses, and when supported by the evidence). This does not amount to prosecutorial misconduct so egregious to warrant a new trial.
Also, the prosecutor is alleged to have committed misconduct when she described Appellant's testimony as " cold and calculating." The defense objected and the prosecutor was given the opportunity to retract this comment, which she did. She stated to the jury that her personal opinion was irrelevant. As recited supra, the trial court instructed the jury that the attorneys' opinions were not evidence and that they were to base their verdict on the evidence. Presuming the jury followed the court's instructions, and also in light of the fact that the statement was retracted, Appellant was not so prejudiced that he did not receive a fair trial.
Appellant's third sub-issue of prosecutorial misconduct alleges error when the prosecutor characterized his calling eleven character witnesses as a " desperate act." Appellant contends that in doing so the prosecutor unfavorably commented on Appellant's right to call character witnesses. We find that the prosecutor's characterization of Appellant's calling character witnesses as a desperate act was bad judgment. However, not every intemperate remark by a prosecutor requires a new trial. Commonwealth v. Rios, 554 Pa. 419, 721 A.2d 1049, 1056 (Pa. 1998). We cannot agree that the prosecutor's one-time comment unavoidably prejudiced the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict. Thus, Appellant is not entitled to a new trial based upon his allegations of prosecutorial misconduct.

Commonwealth v. Robinson, No. 2208 EDA 2003, slip op. at 10-15 (Pa. S.Ct. Dec. 13, 2005) (footnote omitted).

On direct appeal, the Superior Court of Pennsylvania considered and rejected each of the prosecutorial misconduct claims petitioner raises in the instant habeas case. The state courts rejected these claims applying a standard virtually indistinguishable from the federal standard for prosecutorial misconduct claims. Considering the prosecutor's comments in the context of the entire trial, including the trial court's cautionary instructions, defense counsel's objections, and the prosecutor's retractions, petitioner has failed to show that the prosecutor's comments were so egregious that they fatally infected the proceedings, rendered the entire trial fundamentally unfair, and made the conviction a denial of due process. As pointed out by the appellate court, many of the prosecutor's challenged comments were made in fair response to comments made and arguments advanced by defense counsel. See, e.g., N.T., 5/26/99, at 78-79 (in closing argument, defense counsel stated as follows regarding the eyewitness: " Why she didn't tell the truth, we don't know. But you know she didn't tell the truth because at the preliminary hearing she said she didn't see anything."). The prosecutor made two corrections regarding her closing argument directly to the jury. See N.T., 5/26/99, at 121-22. The prosecutor stated as follows: " What I believe is irrelevant. It's what you believe. And let me take that back. My personal comment on the way he testified that it was cold and calculating is irrelevant." Id. at 121. The prosecutor further explained the correct physical manner in which the gun at issue could be fired. Id. at 121-22. After the closing arguments, the trial judge gave the jury charge. After a colloquy with counsel, the trial judge gave the following instruction to the jury:

Before I do that, I want to bring to your attention some complaints [made] by the defense attorney regarding the D.A.'s closing argument, but let me preface this by saying that it's up to you to decide not only the facts of the case but the credibility of the witnesses. It is not the D.A.'s opinion; it's not the defense attorney's opinion; it is not my opinion. It is your collective opinion to make these decisions.
. . .
The defense attorney has indicated that he interpreted the District Attorney in her closing by the words that she used, that she was giving you her personal opinion, but it's for you to recall and for you to decide whether the words that he is complaining about -- namely, outrageous, cold, and calculating individual - are her opinions, her personal opinions or is she addressing the evidence in her closing to you. That's for you to decide.
The law says she is not to give her personal opinion. She is to represent the Commonwealth in presenting its side of the case and argue whatever inferences which can be drawn from the evidence.
The defense is also complaining that the District Attorney was improper in making an unfavorable comment regarding the presentation of the defendant's character witnesses and the words desperation and desperate acts.
I repeat, the Commonwealth and the defense have a right to argue their cases and ask you to draw certain inferences from the evidence, but I will remind you that character testimony is bona fide evidence that the defendant has an absolute right to present, and it is proper to present character testimony, whatever it may be, and I'll talk about that more a little bit later.

(N.T., 5/27/99, at 12-14.) Considering all of these factors, the state court's rejection of petitioner's prosecutorial misconduct claims was not contrary to, or an unreasonable application of, clearly established federal law, and it was not a decision based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1) and (2). Petitioner's fifth claim should be denied.

Claim 6. Trial Court Error In Declining To Charge The Jury On Self-Defense/ Justification

In his final habeas claim, petitioner contends that the trial court's " decision not to give an instruction on self-defense violated the due process clause of the Fourteenth Amendment because petitioner was entitled to an instruction on self-defense and an instruction on unreasonable self-defense." (Pet'r's Mem. at 35.) Respondents urge that this claim is unexhausted because the claim was not presented to the state court based upon federal law. (Resp. at 22.) Review of petitioner's brief on direct appeal, see Resp. Ex. B at 37-38, reveals that petitioner did not assert a due process violation on direct appeal with respect to his claim that the trial court erred in declining to charge the jury on self-defense. As detailed above, to satisfy the exhaustion requirement, a petitioner must demonstrate that the claim raised in the federal petition was " fairly presented" to the state courts. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). Petitioner must show that " the claim brought in federal court [is] the substantial equivalent of that presented to the state courts. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts." Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989) (citations omitted), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990). Petitioner did not present his sixth habeas claim to the state courts asserting a federal constitutional violation. Therefore, petitioner's sixth habeas claim is not exhausted, is procedurally defaulted, and the court may not consider it here. Petitioner's sixth claim should be denied.[4]

III. CONCLUSION

For all of the above reasons, the court makes the following:

RECOMMENDATION

AND NOW, this 19th day of November, 2014, the court respectfully recommends that the petition for a writ of habeas corpus be DENIED, and that no certificate of appealability be issued.[5] Petitioner may file objections to the Report and Recommendation. See Loc. R. Civ. P. 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.


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