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Holland v. Folino

United States District Court, E.D. Pennsylvania

March 26, 2015

AVRON HOLLAND, JR. Petitioner,
v.
LOIUS FOLINO;[1] THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA Respondents.

MEMORANDUM

DARNELL JONES, District Judge.

I. Introduction

This within matter stems from a 2006 first-degree murder conviction, for which Avron Holland (hereinafter "Petitioner") was sentenced to a mandatory term of life in prison. Currently before the court is Petitioner's Petition for a Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254, in which he alleges violations of his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to due process of law. (Habeas Pet'n, ECF. No. 1.) United States Magistrate Judge Linda K. Caracappa issued a Report and Recommendation ("R&R"), recommending denial of the Writ. (R&R, ECF No. 14.) Petitioner timely filed a response, containing eleven objections.[2] (Pet'r Obj., ECF No. 21.) For the reasons set forth below, Petitioner's objections shall be overruled in their entirety.

II. Standard of Review

In reviewing Petitioner's objections to the Magistrate's R&R, this Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.'" Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. Pa. 2011) (quoting 28 U.S.C. § 636(b)(1)(B)). However, in a habeas matter such as this wherein state court decisions are under review, "[f]actual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence." Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. Pa. 2000) (citing 28 U.S.C. § 2254(e)(1) (1997)).

III. Discussion

A. First Objection

In her discussion of Petitioner's first habeas claim in which Petitioner alleged ineffective assistance of counsel, [3] Judge Caracappa concluded that trial counsel used "sound trial strategy, " clearly argued that Petitioner was not guilty, and could not be deemed deficient. (R&R 10.) Petitioner, however, objects on the grounds that "trial counsel... advocated a theory of defense that Petitioner was responsible for the crime, but it was an accident." (Pet'r Obj. 3) (citing N.T. 1/4/06 at 47).[4] He further maintains that "trial counsel argued that Petitioner was guilty of involuntary manslaughter, not murder." (Pet'r Obj. 3) (citing N.T. 1/9/06 at 42, 50). Finally, Petitioner claims that trial counsel failed to consult with him regarding this defense. (Habeas Pet., ECF No. 17.)

In order to establish an ineffective assistance of counsel claim, a defendant/petitioner must show 1) counsel's performance fell below an objective standard of reasonableness, and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Review of the record in toto [5] demonstrates that trial counsel Daniel Connor stated that the Commonwealth could not demonstrate evidence of first degree murder and that the prosecution's "best case scenario... [was] involuntary manslaughter, if you believe Mike [Farrell], but he is not to be believed." (N.T. 1/4/06 at 46-47.) Thus, the defense emphasized the prosecution's reliance on a witness with poor credibility, as opposed to an admission of Petitioner's responsibility for an "accident."

Next, although trial counsel did conjecture about the possibility of a gun falling, hitting the ground, firing, and hitting the victim (as Petitioner so contends) the hypothetical served as an example of facts that the prosecution failed to demonstrate. (N.T. 1/9/06 at 42.) ("[T]he prosecutor could have gotten their mannequin and showed you whether or not it was possible..."). Trial counsel made a series of arguments regarding evidentiary absences, including a lack of testimony that the gun was recently fired or how the parties were positioned at the time of the shooting. (N.T. 1/9/06 at 41-44.) Trial counsel later reiterated that if the jury believed the prosecution, the "best case scenario" was involuntary manslaughter, but immediately listed reasons why the jury should not believe the prosecution. (N.T. 1/9/06 at 50-51.) Said arguments cannot be construed as an admission of involuntary manslaughter.

Third, Petitioner requests an evidentiary hearing on the issue of whether he consented to trial counsel's defense strategy. (Pet'r Obj. 4.) In a habeas matter such as this, evidentiary hearings are only granted under extremely limited circumstances:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 USCS § 2254(e)(2)(A)-(B).

The constitutional right to counsel does not guarantee a "meaningful relationship" between the accused and his attorney. Morris v. Slappy, 461 U.S. 1, 13-14 (1983). Instead, a determination of whether or not counsel's assistance was constitutional rests on the Strickland prongs. Strickland, 466 U.S. at 687-88. As explained above, Petitioner's belief that trial counsel conceded involuntary manslaughter is simply not supported by the record. Moreover, Petitioner has not pointed to any specific information or facts that were excluded from his defense due to trial counsel's alleged failure to consult. Therefore, Petitioner has not shown prejudice to his defense. See e.g. Harvey v. Folino, Civ. No. 10-1799, 2011 U.S. Dist. LEXIS 156286, at *27 (E.D. Pa. Dec. 20, 2011) (applying the Strickland prong requiring that trial counsel's allegedly deficient performance actually caused prejudice to the defendant).

Finally, Petitioner cites Steward v. Grace, 362 F.Supp.2d 608, 617-18 (E.D. Pa. 2005) for the proposition that a habeas petitioner is entitled to an evidentiary hearing on a claim that trial counsel's representation was so deficient that it constituted a constructive denial of counsel. (Pet'r Obj. 4.) However, Steward involved a trial attorney who actually acknowledged the petitioner's guilt in closing, presumably to shield his client from the death penalty. Steward, 362 F.Supp.2d at 617-18. In such a case, failure to consult could potentially be deemed prejudicial. In the instant matter, Petitioner has made no such showing. He pleaded not guilty and trial counsel argued that he was not guilty of all charges. (N.T. 1/4/06 at 11, 48; N.T. 1/9/06 at 54.) Accordingly, Petitioner's first objection is overruled and his request for a hearing is denied.

B. Second Objection

Petitioner next objects on the bases that that trial counsel was ineffective for failing to object to alleged prosecutorial misconduct and for failing to request a curative instruction or mistrial regarding same. (Pet'r Obj. 4.) In support this objection, Petitioner claims "the cumulative effect of the prosecutor's improper remarks was prejudicial as to undermine the objectivity of the jury and the reliability of it's [sic] verdict." (Pet'r Obj. 5.) Judge Caracappa has recommended that trial counsel not be deemed ineffective because Petitioner failed to establish the underlying prosecutorial misconduct claims and has not demonstrated prejudice under Strickland . (R&R at 13.) Petitioner's objection does not directly address the merits of this argument, but instead focuses on his purported ability to "resurrect" his waived prosecutorial misconduct claims through an allegation of ineffectiveness. (Pet'r Obj. 4-5.)[6]

Petitioner's claims are not supported by evidence of record and he provides no meaningful explanation of the "manifest prejudice" being alleged. (Habeas Pet., ECF 17; Pet'r Obj. 5.) Mere recitation of legal standards does not suffice for purposes of Strickland ; Petitioner has not demonstrated an underlying claim of prosecutorial misconduct, therefore trial counsel cannot possibly be deemed ineffective for failing to raise same. United States v. Fulford, 825 F.2d 3, 9 (3d Cir. 1987) (petitioner, failing to show "that a motion to dismiss based on pre-indictment delay carried any potential for success, " could not ...


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