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Benson v. Wingard

United States District Court, E.D. Pennsylvania

January 12, 2015

DAMON LAMONT BENSON
v.
TREVOR WINGARD, et al. [1]

DAMON LAMONT BENSON, Petitioner, Pro se, SOMERSET, PA.

For GERALD ROZUM, THE DISTRICT ATTORNEY OF THE COUNTY OF MONTGOMERY, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents: ADRIENNE D. JAPPE, ROBERT M. FALIN, MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE, NORRISTOWN, 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 Damon Lamont Benson, who is currently incarcerated at SCI Somerset. For the reasons that follow, I recommend that the petition be denied.

I. FACTS AND PROCEDURAL HISTORY

On January 28, 2009, following a trial before the Honorable William J. Furber, Jr., of the Court of Common Pleas of Montgomery County, a jury found Benson guilty of burglary, [2] robbery, simple assault, recklessly endangering another person, unlawful restraint, theft by unlawful taking, and receiving stolen property. N.T. 1/28/09 at 42-43.[3]

The Pennsylvania Superior Court set forth the relevant facts as follows:

The victim in this case, Theresa Wisniewski, was a seventy-seven (77) year old woman who lived alone in Montgomeryville, Montgomery County, Pennsylvania. At trial, Ms. Wisniewski testified that, at approximately noon on January 15, 2008, she left her residence to run a series of errands. When Ms. Wisniewski returned home, she noticed an unfamiliar blue sedan parked in her driveway. Wondering if someone had come to visit her, she opened the screen door to the house, at which point she was grabbed by the defendant, who pulled her inside and threw her across the sofa, demanding money.
Ms. Wisniewski told defendant that her money was in her purse, which had fallen to the floor when she was tossed across the sofa. Defendant then took hold of Ms. Wisniewski by the shoulders and forced her into the kitchen and then through a door, which he mistook for a closet. Defendant then bolted the door behind her.
The door, in fact, led to the home's basement, where there existed another door leading to the outside. Ms. Wisniewski waited for some time in the basement, and then opened this door and peeked outside. When she realized that the blue sedan that had been parked in her driveway was gone, Ms. Wisniewski left the basement and the police were summoned.
During the course of the resulting police investigation, it was discovered that a number of items had been stolen from Ms. Wisniewski's home, including jewelry and an antique pistol, taken from Ms. Wisniewski's bedroom. Ms. Wisniewski's purse and its contents were also gone, including a $100 gift card, $90 in cash, and Ms. Wisniewski's credit cards. Defendant had even stolen a sandwich that Ms. Wisniewski had purchased while running her errands. Ms. Wisniewski reported that the total value of the property stolen was approximately $2, 400.
The jewelry and cash were never recovered. The stolen pistol was ultimately discovered during a search of a bedroom closet used by defendant in a Philadelphia residence where defendant lived with his then-girlfriend Tawanda Armour.
The police later discovered that, after the burglary and robbery at the Wisniewski residence, defendant used a J.C. Penny card which had been inside Ms. Wisniewski's stolen purse to purchase an Axion DVD Theater System, valued at approximately $300. The box for this theater system was discovered during the search of defendant's closet, and the theater system itself was discovered during a search of defendant's automobile.

Commonwealth v. Benson, 2010 PA Super 234, 10 A.3d 1268, 1269-70 (Pa. Super. 2010) (quoting Commonwealth v. Benson, No. 4962-08, Opinion, at 1-3 (Mont. Co. C.C.Pl. Feb. 24, 2009) (internal record citations omitted)). On July 6, 2009, Judge Furber sentenced Benson to a total period of incarceration of fourteen and one-half to thirty-three years, and he later reduced the maximum term to thirty years.[4]

Petitioner filed a direct appeal to the Superior Court, raising three grounds: (1) the trial court erred in denying his motion to suppress certain cellular telephone records; (2) the trial court abused its discretion when it refused to allow him to refer to a statement he gave to police during cross-examination of the interviewing officer; and (3) his sentence for both robbery and burglary was illegal because the counts should have merged. See Commonwealth v. Benson, 10 A.3d at 1271. On December 16, 2010, the Superior Court affirmed. Id. at 1272-76. On July 19, 2011, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Commonwealth v. Benson, 611 Pa. 645, 24 A.3d 863 (Pa. Jul. 19, 2011).

On July 30, 2012, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (" PCRA"), 42 Pa. C.S.A. § § 9541-9551, claiming that his trial and appellate counsel were ineffective in not challenging the sufficiency of the evidence and that his robbery and theft convictions should have merged for purposes of sentencing.[5] See Commonwealth v. Benson, No. 4962-08, Opinion at 3-4 (Mont. Co. C.C.P. Feb. 14, 2013). New counsel was appointed who submitted a no-merit letter. See id. at 4 (citing Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (Pa. Super. 1988)). In his response to Judge Furber's notice of intention to dismiss his petition, Benson argued that at sentencing his conviction for theft was changed to a conviction for access device fraud. Id. at 5. On December 4, 2012, Judge Furber dismissed the petition. Id. Benson appealed, following which Judge Furber issued his opinion recommending affirmance, and on September 10, 2013, the Superior Court affirmed. Id. at 11; Commonwealth v. Benson, No. 3 EDA 2013 (Pa. Super. Sept. 10, 2013). Benson did not seek review in the Pennsylvania Supreme Court.

On November 25, 2013, [6] Petitioner filed his pro se petition and memorandum of law in this court, identifying the following four grounds for relief:

Ground One: Counsel was ineffective for not raising a sufficiency of the evidence claim on direct appeal.
Ground Two: The evidence was insufficient as a matter of law.
Ground Three: The sentences for robbery and theft by unlawful taking should have merged with the sentence for burglary.
Ground Four: The PCRA court " erred in allowing the Commonwealth to split the petitioner['s] Theft sentence into multiple thefts for sentencing when petitioner was never charge[d] with that theft, to wit Access Device Fraud."

Doc. 1 at 5-11, 25-43 (ECF pagination). The District Attorney has filed a response, arguing that the claims are either procedurally barred or lack merit, and Benson has filed a reply. Docs. 16 & 18.

II. LEGAL STANDARDS

A. Exhaustion and Default

Before the federal court can consider the merits of a habeas claim, the petitioner must comply with the exhaustion requirement of section 2254(b), which 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 v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). 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 v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

[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., [131 S.Ct. 1120, 1127, 179 L.Ed.2d 62] (2011) (quoting Coleman, 501 U.S. at 729-30).

Maples v. Thomas, __ U.S. __, 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)).

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 v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). 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.

B. 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, 228 F.3d at 195. 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).

C. Ineffective Assistance of Counsel

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; see also 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"). 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).

III. DISCUSSION[7]

A. Ground One: Ineffective Assistance of Counsel

Benson first argues that his counsel was ineffective for failing to challenge the sufficiency of the evidence on direct appeal. See Doc. 1 at 5, 25-27 (ECF pagination). The District Attorney counters that this claim is defaulted in part and meritless. See Doc. 16 at 17-28.

It is first necessary to identify what counts Benson is challenging through this claim. In his petition he does not refer to any specific count, and in the ineffectiveness portion of his memorandum, he also does not refer to any specific count, citing general principles of law. Doc. 1 at 5, 25-27 (ECF pagination). However, in the section of his memorandum addressing the substantive sufficiency claim, he argues that the evidence failed to establish the elements of burglary. Id. at 28 (" failed to establish . . . that he entered the building or occupied structure . . . with the intent to commit a crime therein, and . . . that, in the course of committing a theft he inflicted bodily injury upon another . . . "). He also lists the elements of robbery and argues that " no attempt was made to establish [his] guilt as an accessory before the fact. Accordingly, it was incumbent upon the Commonwealth to establish [he] participated in the burglary and robbery. . . . [T]he evidence of such participation was so weak and inconclusive that as a matter of law, the inferences of fact necessary to establish guilt could not be reasonably drawn." Id. at 29. He goes on to discuss the evidence at trial and how it was insufficient to establish his involvement in either the burglary or robbery. Id. at 29-32. Although Benson identified the various elements of the burglary and robbery counts, it is clear in context that his challenge is aimed at whether he was the offender. That is, he argues his counsel should have appealed to challenge the sufficiency of the evidence identifying him as the perpetrator. Therefore, I construe his petition to challenge, via his ineffectiveness claim, both the burglary and robbery counts on the ground that the evidence was insufficient to establish that he was the person who committed the offenses.

1. Burglary

The District Attorney does not dispute that Benson properly exhausted his claim that his counsel was ineffective for failing to appeal on the grounds of sufficiency of the evidence that he committed the burglary, and argues that the Superior Court reasonably rejected this claim. Doc. 16 at 23-28.

Although evaluated under Strickland, this claim implicates the due process principle 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, as alluded to in outlining the contours of habeas merits review, 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).

The Superior Court first reviewed Judge Furber's disposition of this issue, and then rejected the claim on the merits.

The PCRA court found that the evidence presented at trial supported the conclusion that each element of the crime of burglary had been met. Specifically, the court stated:

In the instant case, the Commonwealth presented, inter alia, evidence of the following at [Benson's] trial.

1. The discovery in [Benson's] automobile of a home theater system that was purchased with the victim's stolen credit card;

2. The discovery in [Benson's] bedroom closet of an antique pistol stolen from the victim's residence, and the box for the home theater system;

3. The discovery that DNA recovered from the latex glove that was found outside the victim's residence during the crime scene investigation matched [Benson's] DNA;

4. Use of the victim's credit card to pay for phone calls to an adult entertainment service from a phone line belonging to Twanda Armour -- [Benson's] then-girlfriend -- that was accessible to [Benson], calls which Ms. Armour testified that she had not made.

. . . [T]his evidence -- and all of the evidence presented at trial, when considered in its entire[t]y -- was fully sufficient for the jury to determine beyond a reasonable doubt that [Benson] was the individual who had invaded the victim's home, assaulted and robbed her, and stole her property. Any appellate claim that the evidence was insufficient to sustain [Benson's] convictions would have been patently without merit, and [Benson's] appellate counsel . . . thus cannot be found ineffective for having " failed" to raise such a claim.

PCRA Court Opinion, 2/14/2013, at 7-8. We agree with the PCRA court's rationale.

When viewing the evidence in the light most favorable to the Commonwealth, the fact finder could have reasonably concluded that [Benson] was the individual who committed the burglary. While the evidence presented to the jury was wholly circumstantial, it was not speculative, as [Benson] suggests. Although each piece of evidence cited by the PCRA court above in itself may be insufficient to sustain a conviction for burglary, when viewed in its totality a jury could reasonably infer that it was [Benson] who entered Ms. Wisniewski's home when he was not permitted to do so with the intent to commit theft while therein. Accordingly, we find [Benson]'s claim, that counsel was ineffective for failing on direct appeal to challenge the sufficiency of the evidence, devoid of merit.

Commonwealth v. Benson, No. 3 EDA 2013, Opinion at 8-10 (emphasis in original, footnote and record and legal citations omitted).

The Superior Court's rationale is neither contrary to nor an unreasonable application of Strickland. Under Pennsylvania law, a person " commits the offense of burglary if, with the intent to commit a crime therein, the person . . . enters a building or occupied structure." 18 Pa. C.S. § 3502(a); see also Commonwealth v. Alson, 539 Pa. 202, 651 A.2d 1092, 1094 (Pa. 1994) (" burglary is defined as an unauthorized entry with the intent to commit a crime after entry"). As noted, Benson disputes that the evidence supported an inference that he was the person who entered Ms. Wisniewski's home. Contrary to his argument, the evidence supported that inference despite the fact that he was not identified through eyewitness testimony.

The facts of the offenses were established at trial by the testimony of the victim, Theresa Wisniewski. She described to the jury that at about noon on January 15, 2008, when she returned to her home from running errands, she noticed an unfamiliar blue car in her driveway, and identified a photograph of the car. N.T. 1/26/11 at 13-15. When she approached her house the door was open, and someone was there who pulled her in by the left arm and threw her across the arm of the sofa, shouting " Don't look at me. . . . Bitch, where's the money." Id. at 18. The man then took her by the shoulders and guided her to the basement door which he mistook for a closet, and told her to get into the closet and not to use the phone. Id. at 19. At all times he was behind her so she was not able to see him, and she was only able to describe him as tall with dark skin. Id. at 19-20. She was able to get out of the basement and call the police. Officers arrived, and she reported that she was missing jewelry, her purse with credit cards, identification and cash, as well as an antique French revolver belonging to her son. Id. at 21-24.

Benson was identified as the assailant through a series of circumstantial links. The most significant of these, as pointed out by the Superior Court, included the fact that the police found a latex glove on the grass near the entrance to the house, and DNA on the glove matched Benson's DNA. N.T. 1/27/09 at 34, 136-37. One of the victim's credit cards was used to buy a home theater system which was delivered to a " package drop" location. Id. 58-63. There was testimony from Twanda Armour, who was Benson's girlfriend at the time, that Benson lived in her home and had use of the upstairs bedroom. Id. at 12. Officers conducted a search of Ms. Armour's home, and found the missing revolver and the box for the home theater system in the upstairs bedroom closet. Id. at 65. The theater system itself was found in Benson's car. Id. at 70-71. Officers discovered that Benson had a rental car at the time of the incident, and the victim identified a photograph of that car as the one in her driveway. Id. at 81-83; N.T. 1/26/09 at 17. Also, Armour's telephone and computer were used to investigate antique guns as well as to make purchases charged to the victim's accounts, all of which Ms. Armour denied conducting, and Benson had access to both telephone and computer. N.T. 1/27/09 at 21-25, 49-55, 74-79.

In light of this evidence, the Superior Court reasonably concluded that the evidence supported the inference that Benson was the person who entered Ms. Wisniewski's home. His counsel could not therefore be deemed ineffective for failing to raise a meritless claim.[8]

2. Robbery

The District Attorney argues that Benson defaulted his ineffectiveness challenge to the sufficiency of the evidence on the robbery count. Doc. 16 at 17-20. Benson does not address this argument in his reply other than to argue that the state courts' rejection of his claim was contrary to Supreme Court precedent. Doc. 18 at 1-3.

The District Attorney is correct that Benson did not challenge the sufficiency of the evidence on the robbery count in his ineffectiveness claim on PCRA appeal. His statement of matters complained of on appeal to the Superior Court did not mention his robbery conviction, and the Superior Court's opinion also made no reference to it. See Commonwealth v. Benson, No. 4962-2008, Concise Statement of Errors Complained of on Appeal at 1 (Mont. Co. C.C.Pl. filed Jan. 28, 2013); Commonwealth v. Benson, No. 3 EDA 2013, Opinion at 6 (Pa. Super. Sept. 10, 2013). Therefore, he failed to exhaust this claim, resulting in a procedural default as he is now out of time to raise that issue in the Superior Court.

Benson does not provide any explanation for his failure to raise this argument in his PCRA appeal, and thus has not established cause to excuse his default. Although Benson does not make the argument, it is conceivable that he could argue cause to excuse his default under 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 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. Neither Benson nor his appointed counsel before the PCRA court argued ineffective assistance of counsel for failure to challenge sufficiency of evidence on the robbery count, so Martinez potentially applies to that claim.

However, to take advantage of Martinez, Benson must also " demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that . . . the claim has some merit." 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.

In view of the trial evidence and the lack of any contrary evidence offered, Benson has not met this standard and is therefore unable to satisfy the cause and prejudice exception to his default. A person " is guilty of robbery if, in the course of committing a theft, he . . . physically takes or removes property from the person of another by force however slight." 18 Pa. C.S. § 3701(a)(1)(v)[9]; see also McElrath v. Commonwealth, 405 Pa.Super. 431, 592 A.2d 740, 745 (Pa. Super. 1991) (" [r]obbery may also be sustained where, in the course of committing a theft, a person takes or removes property from another person by force, however slight, " which force may be actual or by the use of threatening words). Benson's challenge to his conviction on the robbery count is the same as that on the burglary count, namely that the evidence was not sufficient to prove that he was the perpetrator. For the reasons already reviewed with respect to the burglary, the evidence was similarly sufficient to prove he committed the robbery. Additionally, the element of force was easily met by the victim's testimony that her assailant pulled her by the arm and threw her across the arm of the sofa.

Nor does Benson make any argument to establish his actual innocence to meet his burden to establish the fundamental miscarriage of justice exception to default. To meet this standard he must present new, reliable evidence of factual innocence. Schlup, 513 U.S. at 324. As just discussed, the trial evidence was clearly sufficient to prove that he committed the robbery, and he has not pointed to any new evidence calling his guilt into question. Accordingly, his claim that his counsel was ineffective in failing to appeal challenging the sufficiency of the evidence on the robbery count remains defaulted.

B. Ground Two: Sufficiency of the Evidence

In addition to challenging the sufficiency of the evidence via an ineffectiveness claim, Benson claims the evidence is insufficient to support his conviction. However, as the District Attorney points out, it is clear that this substantive sufficiency claim is unexhausted, as Benson did not raise any sufficiency argument on direct appeal. Doc. 16 at 28-30. It is also clear that the claim is procedurally defaulted, as it is now far too late for Benson to file an appeal. Benson does not dispute this in his reply, but rather responds to the District Attorney's default argument by arguing that when he claimed on PCRA that his counsel was ineffective for failing to raise sufficiency of the evidence, he believed he was raising a sufficiency of the evidence claim. Doc. 18 at 4. Inadvertence does not excuse a default, see Cristin v. Brennan, 281 F.3d 404, 419 (3d Cir. 2002) ( citing Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (" [T]he mere fact that counsel failed to realize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.")), and Benson makes no other argument to establish cause and prejudice or a fundamental miscarriage of justice. These issues have been thoroughly addressed via Benson's claims of ineffectiveness of counsel in the previous section, and need not be revisited here.

C. Grounds Three and Four: Failure to Merge Counts for Sentencing

I will address Benson's two sentencing challenges together as they implicate similar precepts. In his third claim, Benson argues that his sentences for robbery and theft by unlawful taking should have merged with his sentence for burglary under 18 Pa. C.S. § 3502(d)[10] and the Double Jeopardy Clause. Doc. 1 at 9, 32-37 (ECF pagination); Doc. 18 at 4-5. He argues in his final claim that the PCRA court erred in allowing the Commonwealth to " split" his theft sentence into multiple thefts when he was never charged with access device fraud, also invoking the Double Jeopardy Clause. Doc. 1 at 10-11, 37-42 (ECF pagination); Doc. 18 at 6-7. While worded somewhat awkwardly, this claim essentially challenges the sentencing court's failure to merge the theft of the home theater system (purchased with the victim's stolen credit card) with the theft of items in the victim's home, which did merge with the burglary count. The District Attorney argues that neither of these claims is cognizable, and that in any event they were reasonably rejected by the state courts. Doc. 16 at 31-41.

Initially, to the extent Benson relies on state law, the District Attorney correctly argues that his claims are not cognizable.[11] Therefore, any argument that the sentences were imposed in violation of section 3502 will not be addressed on federal habeas review.

The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Stiver v. Meko, 130 F.3d 574, 578 (3d Cir. 1997) (citing United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989)). The Supreme Court has explained the parameters of double jeopardy's prohibition against multiple punishments for the same crime:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Benson's claim that the failure to merge his burglary and robbery offenses was addressed on direct appeal. The Superior Court rejected the argument, reasoning that the victim's home was unoccupied when Benson first entered, and thus he entered with the intent to commit a theft, and that the robbery was a separate offense that occurred when the victim entered the home. " [U]nder the unique facts of this case, this evidence demonstrates that [Benson] intended to commit theft and the robbery was an additional, unanticipated crime." Commonwealth v. Benson, 10 A.3d at 1276. The Superior Court referred back to this rationale on PCRA appeal, again upholding the imposition of separate sentences for burglary and robbery.

In determining what offenses merged with the burglary we found that the operative question was whether [Benson] intended to commit theft or robbery when he entered Ms. Wisniewski's home. We concluded that the crimes of burglary and robbery did not merge . . . . Thus, finding that the robbery was a distinct offense from the burglary, we held merger of these two crimes for sentencing purposes was not appropriate. Conversely, the theft of the residence, being the underlying crime that [Benson] intended to commit when entering the residence, merged with the offense of burglary. . . . [Benson]'s theft of the residence merged with the burglary, and he did not sustain conviction or additional penalty for that offense.

Commonwealth v. Benson, No. 3 EDA 2013, Memorandum at 11-12.

Benson does not offer any argument demonstrating that the Superior Court's treatment of this issue was either contrary to or an unreasonable application of double jeopardy caselaw. The evidence showed that Benson entered the victim's house to steal things when the victim was absent, thus establishing the burglary, i.e., the entry of an unoccupied building with the intent to commit a theft. The evidence also showed that once the victim returned, Benson assaulted her and took items that were on her person, namely items from her purse. This evidence established the robbery. The Superior Court's reasoning on this point is rationally based on the evidence and not inconsistent with the Blockburger rule. See Gregory v. Carroll, Civ. No. 02-1392, 2003 WL 22508091, at *6 (D. Del. Oct. 29, 2003) (state court's finding, that beating victim with a bat and then shooting her were distinct acts for convictions for assault and attempted murder, was presumed correct).

The Superior Court then turned to the theft of the home theater system, first identifying Benson's specific challenge to the sentence on that count on PCRA appeal:

[Benson] challenges his conviction related to the theft of the DVD theater system that was purchased with Ms. Wisnieski's J.C. Penney credit card. Specifically, [Benson] contends that " once the credit card was stolen from [Ms. Wisnieski], the theft was completed to the charge of Theft of Unlawful Taking, once the credit card was used to purchase items, then the crime became Access Device Fraud which [Benson] was never charge[d] with." Essentially, [Benson] posits that the theft of the credit card should have merged with the crime of burglary, and his separate act of subsequently using the credit card to purchase a DVD theater system should not have been considered a separate theft; rather, he should have been charged with the crime of access device fraud."

Commonwealth v. Benson, No. 3 EDA 2013, Memorandum at 11-12. The Superior Court then quoted Judge Furber's analysis of this argument:

In his instant [appeal], [Benson] now claims that his conviction for the theft of the home theater system was itself improper because . . . the purchase of the system should have been treated as access device fraud -- with which [Benson] was not charged -- and not as a theft by unlawful taking at all. [Benson] thus posits that the sentence imposed for the purchase of the home theater system was illegal, and he should not have received a separate sentence for that purpose. We disagree.
Stated directly, regardless of whether [Benson] could have been prosecuted for access device fraud on the facts of this case, [Benson] was prosecuted for -- and convicted of -- the crime of theft by unlawful taking or disposition. We see nothing improper in this. 18 Pa. C.S. § 3921(a) governs theft by unlawful taking or disposition and provides, in pertinent part:
" A person is guilty of theft if he unlawfully takes, or exercise unlawful control over, moveable property of another with intent to deprive him thereof."
In the instant case, the evidence was sufficient to establish that [Benson] exercised unlawful control over the home theater system -- which did not rightfully belong to him -- with the intent to deprive its rightful owner of that property.
We believe that [Benson] has thus failed to advance any meritorious claim that his theft conviction should have been treated as merging for sentencing purposes with his conviction for burglary.

Id. at 14-15 (emphasis in original) (quoting Commonwealth v. Benson, No. 4962-08, Opinion at 10-11 (Mont. Co. C.C.Pl. Feb. 14, 2013)). Finally, the Superior Court endorsed Judge Furber's rejection of Benson's sentencing claim.

Review of the certified record supports the PCRA court's findings and determination that the theft of the DVD home theater system does not merge with the burglary conviction. [Benson]'s theft conviction was splintered for sentencing purposes. The thefts occurring during the burglary were merged into the burglary. The remaining theft, the use of the credit card to purchase the theater system, was treated as a separate theft occurring after completion of the burglary. Given that the thefts were separate criminal acts which occurred at differing locations it was reasonable to infer that [Benson] did not have the intent to purchase a home theater system at the time he was burglarizing Ms. Wisniewski's residence. Moreover, as the J.C. Penney card was taken during the robbery after Ms. Wisniewski came home with her purse, rather than taken during the burglary, there is no reason for merger. Accordingly, we agree with the rationale of the PCRA court and affirm on these bases. We merely note that even if the purchase of the DVD home theater system satisfied the statutory requirements for a charge of access device fraud, the Commonwealth is afforded broad discretion in what charges should be brought . . . .

Id. at 15-16.

Again, the Superior Court's reasoning is neither contrary to nor an unreasonable application of Blockburger. At sentencing, Judge Furber discussed the relevant counts of conviction with the attorneys, who agreed that Benson should be sentenced on three of the seven counts of conviction; counts 1 (burglary), 3 (robbery) and 8 (theft by unlawful taking). N.T. 7/6/09 at 20-23. Judge Furber inquired whether counts 5 (simple assault), 6 (reckless endangerment of another person), and 7 (unlawful restraint) all merged into robbery, and both counsel agreed that they did. Id. at 22-23. Judge Furber also noted that count 9 (receiving stolen property) merged into count 8 (theft by unlawful taking), and did not impose any sentence on count 9. Id. at 23. The state courts' determination that Benson's receipt of the theater system, which occurred at a different time and location than the burglary and robbery at the victim's home, was a separate offense does not offend double jeopardy principles.

The state courts also gave Benson the benefit of the doubt in broadly construing his claim to essentially challenge the sufficiency of the evidence on the theft of the home theater system. The courts' conclusion that the evidence satisfied the elements of that offense is sound and requires no further examination by this court. The evidence clearly showed that Benson unlawfully exercised control over the theater system with the intent to deprive the rightful owner of lawful possession. Although his taking of the theater system may have been procured through his unlawful use of the victim's credit card, there is no constitutional requirement that the prosecutor charge him with that offense.

IV. CONCLUSION

Benson's timely petition does not assert any grounds entitling him to habeas relief. His claim of ineffectiveness of counsel for failing to challenge the sufficiency of the evidence is defaulted in part and meritless in part, and his claim that the evidence was insufficient to sustain his conviction is defaulted. His sentencing claims were reasonably rejected by the state courts.

Accordingly, I make the following:

RECOMMENDATION

AND NOW, this 12th day of January. 2015, 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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