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Fair v. Mahally

United States District Court, E.D. Pennsylvania

November 25, 2014

LEROY FAIR
v.
LAWRENCE MAHALLY, et al.[1]

LEROY FAIR, Petitioner, Pro se, DALLAS, PA.

For JEROME W. WALSH, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILA, THE ATTORNEY GENERAL OF THE STATE OF PA, Respondents: JOSHUA SCOTT GOLDWERT, LEAD ATTORNEY, PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA, PA.

REPORT AND RECOMMENDATION

ELIZABETH T. HEY, UNITED STATES MAGISTRATE JUDGE.

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Leroy Fair (" Petitioner"), who is currently incarcerated at SCI-Dallas. For the reasons that follow, I recommend that the petition be denied.

I. FACTS AND PROCEDURAL HISTORY

On November 17, 2005, after a bench trial before the Honorable William J. Mazzola of the Court of Common Pleas of Philadelphia County, Petitioner was found guilty of attempted murder, eight counts of aggravated assault, carrying firearms without a license, and criminal conspiracy related to a shooting incident which occurred on October 14, 2004, in Philadelphia, Pennsylvania. N.T. 11/18/05 at 62-63.[2] The Pennsylvania Superior Court set forth the relevant facts as follows:

On the evening of October 14, 2004, Detective Ronald Dove, Detective James Waring, Officer Thomas Hood, and Officer Edward Allen were investigating a shooting incident that occurred earlier in the day in the neighborhood of 33rd and Cumberland Streets in Philadelphia. Charles Wesley was the target of that shooting. Detectives Dove and Waring were standing on 33rd Street, speaking to Gene Palmer about the incident. Officers Hood and Allen were sitting in a Ford Taurus parked nearby on the street. Wesley was walking south on 33rd Street, with Sharee Norton and her two children, Sharron Norton and Shanya Wesley.
A group of men, which included [Petitioner], Kyle Little, Mufusta [sic] McCloud, Ronald Alston, and Edmond Jackson, was walking toward them. The men were armed. As they neared Wesley, they started shooting. The officers exited their vehicle. Officer Allen pushed Palmer to the ground. Officer Hood radioed for assistance from other officers in the area. Detective Waring, Norton, and her children took cover. In total, between 50 and 80 shots were fired by the gunmen. No one was injured. Wesley ran north on 33rd Street. The gunmen ran west on Cumberland toward 34th Street. The detectives and the officers pursued the gunmen. Ultimately, [Petitioner] was apprehended at Temple University Hospital.
The police found three vehicles near the scene of the shooting that had keys in the ignition. [Petitioner's] fingerprints were on the door of one of the vehicles. His personal identification card was in the vehicle. Subsequently, [Petitioner's] cousin, Richard Fair, learned from the police that [ one of the guns used in the shooting was of the same type of gun that he owned. Richard Fair then spoke to [Petitioner]. [Petitioner] admitted to taking two of his cousin's guns a few days earlier.

Commonwealth v. Fair, No. 1570 EDA 2006, Memorandum at 1-3 (Pa. Super. Aug. 8, 2008) (attached to response at Doc. 18-1) (" S.Ct. Op.-Direct"). On January 27, 2006, Judge Mazzola sentenced Petitioner to a prison term of 13 1/2 to 27 years.[3] As Judge Mazzola noted in a later opinion, he denied Petitioner's post-sentence motions challenging the sufficiency and weight of the evidence, and the discretionary aspects of sentence. See Commonwealth v. Fair, CP- 51-CR-0305881-2005, Opinion at 1 (Phila. C.C.P. Oct. 20, 2011) (attached to response at Doc. 18-2) (" PCRA Op.").

Petitioner filed a direct appeal to the Superior Court, raising three claims: (1) whether the evidence was sufficient to sustain the attempted murder, aggravated assault, and conspiracy verdicts, (2) whether the verdicts were against the weight of the evidence, and (3) whether Petitioner was entitled to relief upon the claims raised by his co-defendants Lyle Little, Mustafa McCloud, [4] Edmond Jackson, and Ronald Alston. See S.Ct. Op.-Direct at 3-4. On August 8, 2008, the Superior Court affirmed the judgment of sentence, finding certain arguments waived and denying others on the merits. Id. at 8. Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

On July 6, 2009, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (" PCRA"), 42 Pa. C.S.A. § § 9541-9551, followed by an amended PCRA petition filed by appointed counsel on March 23, 2010. The counseled amended petition raised two claims of ineffective assistance of trial counsel, namely that counsel was ineffective for (1) failing to call the victim, Charles Wesley, as a defense witness, and (2) failing to challenge eyewitness Sheree Norton's in-court identification of Petitioner. PCRA Op. at 1-2. On June 22, 2011, Judge Mazzola dismissed the PCRA petition without a hearing. Id. at 2.

Petitioner appealed to the Superior Court, raising the same issues of ineffectiveness of counsel presented to the PCRA court, as well as a request for a hearing. See PCRA Op. at 2. Judge Mazzola recommended affirming, considering Petitioner had " not established the existence of any real facts that would indicate that [he] did not receive adequate representation or a fair trial [and] has not demonstrated any prejudicial or reversible error on the part of the court or his counsel or a manifest abuse of discretion." Id. at 30. On October 31, 2012, the Superior Court affirmed, adopting the PCRA court's opinion in its entirety. Commonwealth v. Fair, No. 1802 EDA 2011, Memorandum at 2 (Pa. Super. Oct. 31, 2012) (attached to response at Doc. 18-3) (" S.Ct. Op.-PCRA"). Petitioner filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied on June 12, 2013. Commonwealth v. Fair, 620 Pa. 713, 69 A.3d 242 (Pa. June 12, 2013).

On July 31, 2013, [5] Petitioner filed this pro se petition identifying the following six grounds for relief:

Ground One: Whether the evidence was sufficient to sustain the attempted murder, aggravated assault, [and] conspiracy verdict.
Ground Two: Whether the verdict was against the weight of the evidence.
Ground Three: Whether [Petitioner] is entitled to relief [based upon] the claims raised by his co-defendants.
Ground Four: Trial counsel was ineffective for failure to call witness (Charles Wesley) who was also a victim on case and the only one to prove petitioners [sic] innocence.
Ground Five: Trial counsel was ineffective for failing to challenge the identification of the petitioner by filing a motion to quash the transcript or file a motion to suppress the identification.
Ground Six: [PCRA] counsel was ineffective for not citing trial counsel ineffectiveness for not calling [a] witness who would provide exculpatory testimony.

See Doc. 1 at 5-14 (ECF pagination). On February 27, 2014, Petitioner filed a memorandum of law which identified and addressed only the two claims of ineffectiveness of trial counsel. See Doc. 14 at 3-13. The District Attorney filed a response on April 21, 2014, arguing that the two claims Petitioner addressed in his memorandum of law are meritless. See Doc. 18 at 12-20. By way of footnote, the District Attorney further argues that Petitioner abandoned the remaining claims asserted in the petition, and that in any event they do not provide a basis for relief. Id. at 20 n.10.

II. LEGAL STANDARD FOR MERITS REVIEW

The federal courts' habeas review is limited in nature. The Antiterrorism and Effective Death Penalty Act (" AEDPA"), which became effective on April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). AEDPA increased the deference federal courts must give to the factual findings and legal determinations of the state courts. Id. at 196 (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA, a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim " resulted in a decision contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; " or if (2) the adjudication " 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)-(2). Factual issues determined by a state court are presumed to be correct, rebuttable only by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).

The Supreme Court has explained that " [u]nder the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to " the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The " unreasonable application" inquiry requires the habeas court to " ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. As the Third Circuit has noted, " an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts, 228 F.3d at 196 (citing Williams, 529 U.S. at 411).

III. DISCUSSION[6]

I will take Petitioner's claims out of order, and begin by addressing his claims of ineffectiveness of trial counsel.

A. Grounds Four and Five: Ineffective Assistance of Trial Counsel

Petitioner argues that trial counsel was ineffective for failing to call the victim, Charles Wesley, as a witness to prove Petitioner's innocence, and for failing to challenge Petitioner's identification. See Doc. 1 at 10-13 (ECF pagination) (Grounds Four & Five). The District Attorney counters that although these claims are exhausted, Petitioner is not entitled to relief. See Doc. 18 at 12-20.

Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the United States Supreme Court set forth the standard for a petitioner seeking habeas relief on the grounds of ineffective assistance of counsel. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as " counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687. In determining prejudice, the question is whether there is a reasonable probability that, the result of the proceeding would have been different. Id. at 694. The Third Circuit has held that counsel will not be considered ineffective for failing to pursue a meritless argument. Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998).

1. Failing to call the victim as a witness

Petitioner first argues that trial counsel was ineffective for failing to call Charles Wesley -- the intended target of the armed assault -- as a witness, because his testimony allegedly would have exonerated Petitioner.[7] Petitioner exhausted this claim on PCRA appeal, and it was considered at the PCRA court level by Judge Mazzola, the judge who presided over the bench trial. Judge Mazzola addressed the claim as follows, and his opinion was adopted in its entirety by the Superior Court:

Contrary to defense counsel's unsupported belief that the witness [Charles Wesley] would have denied that [Petitioner] was one of the shooters, the actual evidence more clearly indicates that he would most likely have simply refused to identify anyone out of fear. It also indicates that it is especially unlikely that he would deny that any of the defendants were present, since, to do so, he would have to admit that he saw the shooters and thus be hard pressed to explain why he could or would not describe them, which would be a severe blow to his own credibility. There is no evidence, and [Petitioner] does not even allege, that trial counsel did not talk to the witness or otherwise did not have a good reason for not calling him if he did. This is not a case where there was limited evidence of [Petitioner's] guilt. As even he admits, having him testify would not have required exclusion of [Sheree] Norton's identification [of Petitioner], only challenged her credibility. With these considerations and that other evidence in mind, it's doubtful he would have even done that, since, if he only said he didn't recognize them, it would have no [e]ffect on her credibility, and if he took the other course, he would not have been believed because it would obviously be based on his fear of retaliation. This is also a particularly good reason for trial counsel not to have called him even if he was willing to cooperate because his testifying either way would still have had the same [e]ffect, and would, in addition, adversely affect [Petitioner's] own credibility even without him testifying on his own behalf.
The fact that [Petitioner] does not provide us with any input from trial counsel . . . or any explanation for not doing so, allows one to conclude not only that his input would not have been beneficial, but also to assume the opposite. Therefore, [Petitioner] has failed to meet his burden in a failure to call a witness claim as set forth in Johnson [v. Commonwealth, 600 Pa. 329, 966 A.2d 523, 535-36 (2009)]: (1) that the witness existed, or, that the person he says existed would have actually testified to the fact [Petitioner] says he would, i.e., [Petitioner's] lack of presence; (2) that the witness was available, the more reasonable assumption based on the actual evidence being that he would not have been; (3) that trial counsel did not know about the witness or what he could have testified to, which, given the required assumption that counsel is presumed effective until proven otherwise and the obvious fact that the proposed witness was the intended victim, is an absurd conclusion; (4) that he was willing to testify, a conclusion which all the evidence also renders highly questionable; and (5) that [Petitioner] suffered any prejudice, given the clear indication that his testimony would not have mattered much, if at all, or may even have been harmful. Therefore, the claim was properly dismissed because [Petitioner] failed to establish that the underlying claim, that his attorney failed to perform a significant act in his defense which resulted in an unfair conviction, has any merit.

PCRA Op. at 15-16.

The state court's determination is neither contrary to, nor an unreasonable application of, Strickland.[8] Petitioner avers that Wesley's testimony " could have exonerated" him, see Doc. 14 at 3, but Petitioner's confidence is not sufficient to rebut the strong presumption that counsel's performance was within the wide range of reasonable professional assistance. In documentation attached by PCRA counsel to a motion seeking discovery as to Wesley's whereabouts or identifying information, counsel stated that he had " no idea whether [Wesley] would be helpful, " and Petitioner did not supply any evidence to indicate what information Wesley would provide, including whether he would deny Petitioner's involvement in the armed assault. See PCRA Op. at 7.[9] In addition, as Judge Mazzola explained, had Wesley testified that he could see his assailants well enough to state that Petitioner did not participate in the armed assault, the court would have expected Wesley to identify or describe the individuals who had taken part. Even had Wesley provided such testimony at trial, it would have been neutral at best in light of eyewitness Sheree Norton's identification testimony, and potentially harmful to Petitioner because the court could have concluded that Wesley's testimony was false and the product of intimidation or fear -- a conclusion bolstered by evidence presented during the sentencing hearing that Petitioner had plotted from jail to intimidate Wesley. N.T. 01/27/06 at 12-13.[10]

Even assuming counsel acted deficiently in not obtaining the victim as a defense witness, Petitioner would fail to satisfy the prejudice prong of Strickland . See Smith v. Robbins, 528 U.S. 259, 284, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (prejudice prong turns on " whether there is a reasonable probability that, absent the errors, the petitioner would have prevailed"). As Judge Mazzola explained in his capacity as both the finder of fact at trial and the PCRA judge, any favorable testimony Wesley may have given would not have changed the outcome of the trial given the quantity and quality of other evidence against Petitioner, including Sheree Norton's identification of Petitioner. In addition, as noted, Judge Mazzola heard testimony at trial from a police officer that Wesley had denied being able to recognize the people who shot at him. See N.T. 11/16/05 at 16. Therefore, nothing would have been gained by Wesley saying the same thing from the witness stand -- and if Wesley had instead testified that he could identify his assailants and that Petitioner was not among them, it would have opened Wesley to potentially damaging cross-examination regarding inconsistent prior statements.

For all of the aforementioned reasons, Petitioner is not entitled to relief on this claim of ineffectiveness of trial counsel.[11]

2. Failing to seek suppression of Norton's identification

Petitioner also argues that trial counsel was ineffective for failing to challenge the in-court identification of Petitioner by witness Sheree Norton.[12] Specifically, Petitioner reasons that because Norton was the only eye-witness at trial who identified him at trial, and because she had not previously identified him in a pretrial lineup, trial counsel should have attempted to block Norton from making an identification at trial.[13]

Petitioner exhausted this claim on PCRA appeal. As with the prior ineffectiveness claim, Judge Mazzola's analysis of the claim was adopted in its entirety by the Superior Court:

Only the failure to move to suppress the identification testimony at trial need be addressed, the actual claim being that it was too suggestive and was tainted by the equally suggestive previous ones. . . .[14] The sole basis for his claim of suggestiveness was the fact that [Petitioner] was standing at defense table when the identifications were made. In the first case, there were six other defendants standing there with him at trial, yet the witness adamantly identified them all without hesitation. [Petitioner] has supplied absolutely nothing to suggest, and the record is devoid of any indication, that she did not have a perfect opportunity to observe them at the scene, was in any way induced or prompted to identify them by the government, or that she had any motive not to be perfectly honest. In the second sense, every court that has addressed the question has emphatically ruled that an in court identification is not improper solely because the defendant was standing at defense table and was presented to the witness in a manner which made it obvious that he was the suspect.

PCRA Op. at 21-22 (footnote omitted) (citing, inter alia, Commonwealth v. Liverpool, 294 Pa.Super. 133, 439 A.2d 786, 789 (Pa. Super. 1982) (recognizing that courts have rejected concept that fact that initial identification occurs at a preliminary hearing does not, without more, establish that it was suggestive).[15] Because Petitioner had failed to establish an underlying meritorious claim, the PCRA court found that Petitioner was not entitled to relief on this claim of ineffectiveness. Id. at 22, 26.

The state court's determination is neither contrary to, nor an unreasonable application of, Strickland, because there is no basis to find that Petitioner acted deficiently with regard to Norton's identification of Petitioner. In Perry v. New Hampshire, the Supreme Court held that due process " does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement." 132 S.Ct. 716, 730, 181 L.Ed.2d 694 (2012). The Court explained that due process normally protects against the risk of conviction based on eyewitness identifications of " questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the [trier of fact] that the evidence should be discounted as unworthy of credit." Id. at 723. Due process disallows identification evidence only when the unnecessarily suggestive out-of-court identification is caused by improper police conduct which creates " a very substantial likelihood of irreparable misidentification." Id. at 720.

Here, Petitioner does not suggest that the police employed any unnecessarily suggestive out-of-court identification procedures, nor does he allege that Norton would have been unable to identify the perpetrators. There is no suggestion, for example, that Norton's view of Petitioner was obstructed, that Norton was distracted or inattentive, that her identification of Petitioner was equivocal, or that she was under duress, improperly influenced or intoxicated. Rather, Petitioner's only argument is that it was improper for Norton to have had the opportunity to see Petitioner in court at the time she identified him. In-court visual contact between an identification witness and a defendant occurs every time a defendant exercises the right to attend his or her own criminal proceeding, and does not alone provide a basis to suppress the identification. See Perry, 132 S.Ct. at 721, 727 (noting that " [m]ost eyewitness identifications involve some element of suggestion, " as " all in-court identifications do"); United States v. Livingston, 445 Fed.Appx. 550, 557 (3d Cir. 2011) (affirming district court finding that identification at preliminary hearing was suggestive, but permitting in-court identification testimony by same witness because procedure at preliminary hearing was not " unnecessarily suggestive"); United States v. Whatley, 719 F.3d 1206, 1216 (11th Cir. 2013) (in light of Perry, in absence of evidence of improper police conduct, there is no basis to require judicial pre-screening of identification witness's reliability simply because witness can see defendant in court). In short, there is simply no basis for counsel to have sought to suppress Norton's identification of Petitioner.

To the extent Petitioner argues that his counsel was deficient for having failed to obtain a pretrial lineup, he is incorrect. As previously noted, Petitioner's pretrial lineup was cancelled when Petitioner altered his appearance by shaving his head and growing a beard and moustache. N.T. 11/17/05 at 11-18; PCRA Op. at 23. There is no requirement that a defendant be identified in a pretrial lineup before being identified in court. See, e.g., Morris v. Giurbino, 162 Fed.Appx. 769, 771 (9th Cir. 2006) (" [T]he United States Supreme Court has never held that a criminal defendant has a constitutional right to a pretrial lineup."). Similarly, there is no support for the proposition that a defendant should be given a second chance at a lineup when the first did not take place because he altered his appearance. Moreover, if a second lineup had occurred, the prosecutor conceivably could have used the first lineup as evidence that Petitioner had tried to conceal his appearance in an effort to thwart his identification, thus evidencing consciousness of guilt. See Commonwealth v. Horwat, 511 Pa. 398, 515 A.2d 514, 516 (Pa. 1986) (" It is entirely appropriate . . . for a prosecutor to comment on a defendant's change in appearance where such a change may affect the ability of trial witness to identify the defendant."). Under the circumstances, it cannot be said that trial counsel was ineffective for failing to obtain a pretrial lineup.[16] Therefore, I find that Petitioner is not entitled to relief.

B. Ground One: Sufficiency of the Evidence

Petitioner argues that the evidence was insufficient to sustain his convictions for attempted murder, aggravated assault and conspiracy. See Doc. 1 at 5 (Ground One). The District Attorney counters that Petitioner abandoned his sufficiency claim by not developing the argument in his memorandum of law, and also argues in conclusory faction that the claim lacks merit. See Doc. 18 at 20 n.10.

While it is true that Petitioner did not develop the claim in his brief, there is no requirement that habeas petitioners submit a brief. Thus, simply raising a claim on the face of the petition is sufficient, particularly where a petitioner is acting pro se. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (pro se filings are to be construed liberally). Therefore, I find that Petitioner has asserted a sufficiency claim.

Although Plaintiff has raised a claim that the evidence was insufficient as to various counts of conviction, it is not clear that he has exhausted his sufficiency claim as to each of the counts. Before the federal court can consider the merits of a habeas claim, the petitioner must comply with the exhaustion requirement of section 2254(b). As previously noted, exhaustion requires a petitioner to " give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. Moreover, the doctrine of procedural default is closely related to the exhaustion requirement. It is not enough that the petitioner present his claims to the state court. He must also comply with the state's procedural rules in presenting his claims, thereby giving the state courts a full and fair opportunity to address them. A failure to do so results in a procedural default. Coleman 501 U.S. at 750.

[A] state prisoner's habeas claims may not be entertained by a federal court " when (1) 'a state court has declined to address those claims because the prisoner had failed to meet a state procedural requirement, ' and (2) 'the state judgment rests on independent and adequate state procedural grounds.'" Walker v. Martin, 562 U.S. 307, ___, [131 S.Ct. 1120, 1127], 179 L.Ed.2d 62 (2011) (quoting Coleman, 501 U.S. at 729-30).

Maples v. Thomas, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012). A decision based on a state procedural rule is considered independent if it does not rely on the merits of the federal claim or rest primarily on federal grounds. Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); see also Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). " [A] state procedural ground is not 'adequate' unless the procedural rule is 'strictly or regularly followed, '" Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), and the rule " speaks in unmistakable terms." Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996) (abrogated on other grounds, Beard v. Kindler, 558 U.S. 53, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009)). Thus, the procedural disposition must comport with similar decisions in other cases such that there is a firmly established rule that is applied in a consistent and regular manner " in the vast majority of cases." Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997) (quoting Dugger v. Adams, 489 U.S. 401, 410 n.6, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989)).

Here, Petitioner raised the identical sufficiency claim in post-sentence motions and on direct appeal. However, in his statement of matters complained of on appeal, he limited the sufficiency claim to the conspiracy count. See Statement of Matters Complained of on Appeal Pursant to Pa. R.A.P. 1925(b) (filed Aug. 7, 2006). In addressing this claim on direct appeal, the Superior Court stated the following:

[Petitioner] challenges the sufficiency of the evidence to support his convictions for attempted murder, aggravated assault, and criminal conspiracy. The record reveals, however, that in [Petitioner's] Rule 1925(b) statement, [Petitioner] only raised whether the evidence was sufficient to support his criminal conspiracy conviction. The failure to raise an issue in a Rule 1925(b) statement results in waiver of the issue. Therefore, the issues of whether the evidence was sufficient to sustain [Petitioner's] convictions for attempted murder and aggravated assault are waived.

Super. Ct. Op.-Direct at 4 (state law citations omitted). Under Pennsylvania law, " [a]n issue has been waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior state post-conviction proceeding." Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (Pa. 2011) (citing 42 Pa.C.S.A. § 9544(b)). The waiver rule is firmly established in Pennsylvania. See, e.g., Supples v. Kerestes, 2010 WL 324431, *5 (W.D. Pa. Jan 21, 2010) (state rule of waiver for failing to file an appeal or raise an issue is independent and adequate) (citing Sistrunk v. Vaughn, 96 F.3d 666, 671 n.4 (3d Cir. 1996)). Specifically, the Third Circuit has held that a waiver of claims through a failure to file a 1925(b) statement constitutes a procedural default on independent and adequate state law grounds. Buck v. Colleran, 115 Fed.Appx. 526, 528 (3d Cir. 2004). Therefore, those portions of Petitioner's sufficiency claim related to his attempted murder and aggravated assault convictions are procedurally defaulted by operation of the independent and adequate state ground doctrine.

If a claim is found defaulted, the federal court may address it only if the petitioner establishes cause for the default and prejudice resulting therefrom, or that a failure to consider the claim will result in a fundamental miscarriage of justice. Werts, 228 F.3d at 192. To meet the " cause" requirement to excuse a procedural default, a petitioner must " show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. at 192-93 (quoting and citing Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To establish prejudice, the petitioner must prove " 'not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Id. at 193.

In order for a petitioner to satisfy the fundamental miscarriage of justice exception to the rule of procedural default, the Supreme Court requires that the petitioner show that a " constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Carrier, 477 U.S. at 496). This requires that the petitioner supplement his claim with " a colorable showing of factual innocence." McCleskey v. Zant, 499 U.S. 467, 495, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (citing Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986)). In other words, a petitioner must present new, reliable evidence of factual innocence. Schlup, 513 U.S. at 324.

Here, Petitioner makes no showing to overcome the default of his sufficiency claim related to his attempted murder and aggravated assault convictions. He does not argue cause and prejudice or that the failure to consider the claim will result in a fundamental miscarriage of justice, nor is any such basis apparent in the record. Petitioner's argument that he would have been exonerated had counsel obtained certain witness testimony could be construed as supporting an assertion that he meets the actual innocence standard to excuse the procedural default of this claim. As previously stated, this requires a petitioner to present new, reliable evidence of factual innocence such that " it is more likely than not that no reasonable juror would have convicted him in light of the new evidence presented." Schlup, 513 U.S. at 324, 327.

The Supreme Court has noted that it will be the very rare case that meets this standard:

[E]xperience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare . . . . To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.

Id. at 324. In House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) -- a case the Supreme Court characterized as " close" under Schlup -- the Supreme Court found that new evidence consisting of DNA testing establishing that crucial physical evidence did not belong to the defendant, evidence that blood stains relied upon by the prosecution at trial did not come from the victim but from evidence contamination, and a newly discovered motive on the part of another suspect, " cast considerable doubt on [defendant's] guilt." 547 U.S. at 555. The fact that the Court saw the case as a close call under Schlup emphasizes the rigor of the actual innocence standard. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1933, 185 L.Ed.2d 1019 (2013) (" The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows 'it is more likely than not that no reasonable juror would have convicted [the petitioner].'") ( quoting Schlup, 513 U.S. at 329).

Here, Petitioner cannot meet the Schlup actual innocence standard. Charles Wesley's testimony would not have exonerated Petitioner for the reasons identified by the state courts and discussed in the context of Petitioner's ineffectiveness claims. Moreover, even if Wesley had testified in the manner suggested by Petitioner, it does not follow that it is more likely than not that no reasonable juror would have convicted him. As previously explained, Petitioner was identified by the Commonwealth's key witness who personally observed him engaged in the shooting; and as will be discussed below, significant other evidence placed him at the scene of the crime. Because the actual innocence exception does not apply, I conclude that Petitioner has exhausted only one facet of his sufficiency claim, namely whether the evidence was insufficient to sustain his conviction for criminal conspiracy.

Principles of due process dictate that a person can be convicted of a crime only if, " after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Sullivan v. Cuyler, 723 F.2d 1077, 1083-84 (3d Cir. 1983). Accordingly, in reviewing challenges to the sufficiency of the evidence, a court must determine " whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Sullivan, 723 F.2d at 1083-84 ( quoting Jackson, 443 U.S. at 319) (emphasis in original). Pennsylvania courts follow the same rule. See Commonwealth v. Wright, 2004 PA Super 484, 865 A.2d 894, 910 (Pa. Super. 2004) (verdict will be upheld if, " viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt") (citations omitted).

Moreover, the AEDPA has limited a habeas court's role in reviewing a claim that the evidence adduced at trial was insufficient to support a conviction. Under 28 U.S.C. § 2254(d)(1), a writ of habeas corpus may be issued for evidentiary insufficiency only if the state courts have unreasonably applied either the Jackson " no rational trier of fact standard, " or the state equivalent of the Jackson standard. See Smith v. Vaughn, No. 96-8482, 1997 WL 338851, at *7 (E.D. Pa. June 17, 1997).

Under Pennsylvania law, a person is guilty of criminal conspiracy when he or she (1) enters into an agreement to commit or aid in a criminal act with another person or persons, (2) with a shared criminal intent, and (3) an overt act is done in furtherance of the conspiracy. See 18 Pa. C.S.A. § 903. The overt act necessary to establish criminal conspiracy need not be committed by the defendant, but rather can be committed by a co-conspirator. See Commonwealth v. McCall, 2006 PA Super 329, 911 A.2d 992, 996 (Pa. Super. 2006). Moreover, " [e]ven if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators in furtherance of the conspiracy." Id. (quoting Commonwealth v. Johnson, 719 A.2d 778, 784-85 (Pa. Super. 1998)).

In discussing the merits of this claim on direct appeal, the Superior Court stated the following:

In the instant case, the evidence established that [Petitioner] and his co-defendants acted together on October 24, 2004, in firing their guns at Wesley. The evidence also established that a few days earlier, [Petitioner] took two guns from his cousin, and that one of them was of the same type used in the shooting. In addition, [Petitioner's] fingerprints and identification card were found in a vehicle that was ready to be driven from the scene of the shooting. Viewing all of the evidence in the light most favorable to the Commonwealth, together with all reasonable inferences to be drawn from the evidence, we conclude that the evidence was sufficient to support [Petitioner's] conviction for criminal conspiracy.

Super. Ct. Op.-Direct at 6. Therefore, the Superior Court denied Petitioner's claim. Id.

The state court's determination is neither contrary to, nor an unreasonable application of, the sufficiency standard set forth by the Supreme Court in Jackson. Among the evidence presented at trial was that on October 14, 2004, Petitioner and his co-defendants launched an armed assault on a public street with the apparent aim of killing Charles Wesley. N.T. 11/09/05 at 141-43; N.T. 11/10/05 at 23-24; N.T. 11/16/05 at 12-13. At the time, Wesley was accompanied by his girlfriend Sharee Norton, who was the prosecution's chief witness, and her two children. At trial, Ms. Norton described a " group of guys" who walked toward them and then all fired at them. N.T. 11/10/05 at 13, 20. She identified each of the defendants, including Petitioner, and adamantly confirmed that she had a clear view of all the assailants and was positive about her identifications, explaining that she recognized two of the defendants from school and was familiar with the others, including Petitioner, from parties around the neighborhood. Id. at 15-18, 49-53, 164-65. Also present at the time of the armed assault were four police officers investigating a shooting which occurred in the same neighborhood earlier in the day, and which had also apparently targeted Wesley. The police returned fire, gave chase, apprehended four of the shooters at the scene, and eventually arrested three others, including Petitioner, after further investigation. The police recovered some of the weapons used in the attack and found three vehicles near the scene which had keys in the ignition and appeared to be intended as getaway vehicles. One of these vehicles (a Chevy Lumina) was registered to Petitioner's mother but used primarily by him, and inside it the police found Petitioner's " Pennsylvania Identity Card" containing his driver's license and photograph, and numerous fingerprints matching Petitioner. N.T. 11/16/05 at 90-92, 98-99; N.T. 11/17/05 at 6-7. Moreover, one of the guns used in the shooting had been stolen from Petitioner's cousin, Richard Fair, who testified that Petitioner admitted to him that he had stolen two guns from him prior to the armed assault on Charles Wesley. N.T. 11/15/05 at 33-34.

For the aforementioned reasons, it cannot be said that the state courts unreasonably applied the Jackson " no rational trier of fact" standard in finding the evidence sufficient to sustain Petitioner's conviction for criminal conspiracy. Therefore, I conclude that Petitioner is not entitled to relief on his sufficiency claim.

C. Ground Two: Weight of the Evidence

Petitioner also argues that his convictions were against the weight of the evidence. See Doc. 1 at 7 (Ground Two). As Respondents correctly point out, see Doc. 18 at 20 n.10, weight of the evidence claims are non-cognizable in habeas. This rule arises from the fact that, unlike an argument that the evidence was not constitutionally sufficient to sustain the conviction, a weight of the evidence argument by definition relies on the factfinder's weighing of the evidence in reaching a conviction. See generally Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). As such, a weight of the evidence claim does not implicate any constitutional protection and cannot be addressed on federal habeas review. See Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (Section 2254 " gives federal habeas courts no license to re-determine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them."). Therefore, Petitioner is not entitled to habeas review of this claim.

D. Ground Three: Claims Raised by Co-Defendants

Petitioner also argues that he is entitled to relief on the bases of the claims raised by his co-defendants. See Doc 1 at 9 (Ground Three). Respondents counter that this claim cannot be reviewed because it was not properly presented to the state courts and is " entirely undeveloped" in his habeas petition and brief. See Doc. 18 at 20 n.10.

I agree with Respondents. Petitioner raised this claim on direct appeal, but the Superior Court found it waived because he failed to identify any issues raised by his codefendants in his Rule 1925(b) statement. See S.Ct. Op.-Direct at 7-8. Therefore, this claim is procedurally defaulted for the same reasons discussed with regard to parts of Petitioner's sufficiency claim as discussed supra in Part IIIC. Also as in that discussion, Petitioner has failed to make a showing of good cause to excuse the default, or that a failure to review the claim will result in a fundamental miscarriage of justice. In fact, except for asserting this claim on the face of his petition and reserving " the right to amend, clarify and provide supporting facts in a memorandum of law, " see Doc. 1 at 9, Petitioner has not developed the claim in any way. Therefore, I find that Petitioner is not entitled to review.

E. Ground Six: Ineffectiveness of PCRA Counsel

In Ground Six, Petitioner argues that PCRA counsel was ineffective for not citing trial counsel's ineffectiveness for not calling a witness (unidentified) who allegedly would have provided exculpatory testimony. See Doc. 1 at 14 (Ground Six) (ECF pagination).

Construed as a claim of ineffective assistance of PCRA counsel, the claim provides no basis for habeas relief because there is no constitutional right to counsel in a collateral appeal. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (" Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further."). However, if Petitioner is asserting the ineffectiveness of PCRA counsel in order to obtain review of an underlying ineffectiveness of counsel claim, the claim is at least cognizable, and I will proceed as if that is Petitioner's intention.

As an initial matter, this claim is unexhausted and procedurally defaulted because it was never presented to the state courts and Petitioner can no longer do so. It is therefore necessary to determine whether Petitioner has established both cause and prejudice to cure the default, or that failure to consider the claim will result in a fundamental miscarriage of justice. Werts, 228 F.3d at 192. Petitioner does not present any argument to overcome the default of this claim, nor is any reason discernible in the record; instead, Petitioner merely states that he " was not able to raise this issue until now." Doc. 1 at 14 (ECF pagination). As a result, the only way Petitioner could obtain review of the claim would be through Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).

In Martinez, the Supreme Court carved out a narrow exception to the rule that ineffective assistance of PCRA counsel does not provide cause to excuse a procedural default, holding that " [i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." 132 S.Ct. at 1315. The Court explained that " if counsel's errors in an initial-review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner's claims." Id. at 1316. Thus, the Martinez exception applies only to claims of ineffective assistance of trial counsel where the errors or absence of post-conviction counsel caused a default of these claims at the initial-review post-conviction proceeding. Id. at 1318. Additionally, to take advantage of Martinez, Petitioner must " demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that . . . the claim has some merit." Id. at 1318.

Initially, Martinez only applies to claims that could first be raised in a collateral proceeding, and thus does not apply to claims that should have been raised on direct review. Petitioner meets that requirement here insofar as this claim alleges ineffectiveness of PCRA counsel for failing to raise a claim of ineffectiveness of trial counsel, and therefore the claim could not have been brought on direct appeal. See Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (Pa. 2002) (in Pennsylvania, claims of ineffective assistance of trial counsel are properly presented in PCRA petitions, not on direct review). Next, Petitioner must show that the failure to raise the claim in the state collateral proceeding was the result of the absence or ineffectiveness of his counsel. I will assume for purposes of further analysis that PCRA counsel did not have any strategic or otherwise sound basis for failing to raise the claim Petitioner currently asserts, and move onto the merit of the underlying claim of ineffective assistance of trial counsel.

As previously noted, a petitioner must show that his claims are " substantial, " or have " some merit, " to qualify under Martinez. 132 S.Ct. at 1318. In creating this standard, the Supreme Court cited Miller--El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), which " describ[es] standards for certificates of appealability." 132 S.Ct. at 1318-19; see Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014) (condition under Martinez that claim be " substantial" is " analogous to the substantiality requirement for a certificate of appealability"). " A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327.

It is at this juncture that Petitioner's claim fails. As the District Attorney correctly argues, see Doc. 18 at 20 n.10, Petitioner's claim is unintelligible in that Petitioner did not develop it in his petition or subsequent memorandum of law, and nowhere does he identify the alleged exculpatory witness who trial counsel failed to obtain. Moreover, to the extent the claim refers to Charles Wesley, it is nonsensical because PCRA counsel pursued that claim on appeal as discussed in Part IIIA, supra. Because the underlying claim constitutes a bare allegation of an unknown witness who could have provided unknown testimony, Petitioner has failed to show that the underlying ineffectiveness claim is substantial or has merit as required by Martinez. Therefore, this claim is both defaulted and, in the alternative, meritless.

IV. CONCLUSION

Petitioner's timely habeas petition asserts six grounds for relief. Grounds Four and Five (ineffective assistance of trial counsel) are exhausted but meritless. Ground One (sufficiency of the evidence) is unexhausted and procedurally defaulted as to Petitioner's convictions for attempted murder and aggravated assault, and meritless as to criminal conspiracy. Ground Two (weight of the evidence) is non-cognizable in habeas. Ground Three (claims raised by co-defendants) is unexhausted and procedurally defaulted, and in any event is undeveloped. Finally, Ground Six (ineffectiveness of PCRA counsel for failing to raise ineffectiveness of trial counsel) is unexhausted and procedurally defaulted and is not subject to the Martinez exception to default because Petitioner has failed to show that the underlying ineffectiveness claim is substantial or has merit. Therefore, Petitioner is not entitled to habeas relief.

Accordingly, I make the following:

RECOMMENDATION

AND NOW, this 25th day of November 2014, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DENIED. There has been no substantial showing of the denial of a constitutional right. The parties may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.


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