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Smart v. Folino

United States District Court, M.D. Pennsylvania

April 2, 2015

FABIAN D SMART, Petitioner,
v.
LOUIS S FOLINO, et al., Respondents.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

I. Introduction

Presently before the court is the pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Fabian D. Smart, pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated in the Greene State Correctional Institution located in Waynesburg, Pennsylvania.

Following careful consideration of the parties' submissions, and for the reasons discussed below, the petition for habeas relief as well as a certificate of appealability will be denied.

II. Background

A. Factual Background

Following a jury trial before the Honorable Richard N. Saxton and a death-qualified jury in the Court of Common Pleas of Clinton County, Fabian D. Smart was convicted of first degree murder, [1] conspiracy to commit first degree murder, [2] kidnapping, [3] and conspiracy to commit kidnapping[4] on October 14, 2004. See CCP Clinton Dkt. No. CP-18-CR-000175-2002. In disposing of Mr. Smart's direct appeal, the Pennsylvania Superior Court provided the following background:

On the night of January 22, 1999, [Fabian Smart] got into a fight with the victim, Jason McMann. McMann had confronted [Mr. Smart] on half a dozen previous occasions on behalf of a cousin, Jeffrey Stauffer, who had paid [Mr. Smart] $6, 000.00 (six thousand dollars) for marijuana which [Mr. Smart] never delivered. That night, a fight began at a party in a football fraternity house at Lock Haven University, where [Mr. Smart] was a football player. The fight spilled outside. [Mr. Smart] beat McMann unconscious and with the aid of associates, put him in the trunk of his car, took him to a remote location some twenty miles away, tried unsuccessfully to shoot him with a pistol that would not fire, beat him again, and left him there to die. McMann was reported missing shortly afterwards, but his body was not discovered until several months later, in April.
When McMann disappeared, his family began a campaign to find him, posting placards, offering a reward, and trying to generate as much public interest as they could. The case attracted attention in the local media and was featured three times on the nationally televised program, "America's Most Wanted." After his body was discovered, McMann's death was originally attributed to a drug overdose. However, police investigating the disappearance and death learned of [Mr. Smart's] dispute with McMann. [Mr. Smart]'s co-conspirators initially denied involvement but eventually confessed. [Mr. Smart] was arrested in 2002, and at trial in 2004, his co-conspirators testified against him. The death-qualified jury convicted [Mr. Smart] of all charges, but deadlocked on imposing the death penalty. The trial court imposed a life sentence for the murder conviction. Post-sentence motions were denied without a hearing.

(Doc. 21-11, ECF pp. 1-2, Commonwealth v. Smart, No. 588 MDA 2005 (Oct. 19, 2006).) On January 24, 2005, the court imposed additional sentences on the related charges.

B. Proceedings on Direct Appeal

Mr. Smart filed post-sentence motions with the trial court of November 1, 2004. The motions were denied on March 15, 2005. On March 15, 2005, Mr. Smart, represented by this trial counsel, Ronald Travis, Esq. and Eric Linhart, Esq., filed a timely notice of appeal. Mr. Smart raised the following issues on direct appeal: (1) the instances of prosecutorial misconduct, when taken together, so taint the fairness of the trial that [Mr. Smart] should be granted a new trial in the interest of justice; (2) the trial court erred in denying [Mr. Smart's] motion to declare Clinton County's Jury Pool in violation of 42 PA. CONS. STAT. ANN. § 4521(a), 4521(d), 4525 and the Sixth Amendment to the United States Constitution; (3) the trial court erred in denying [Mr. Smart's] motion for change of venue or venire; (4) the verdict was against the weight of the evidence; and (5) trying [Mr. Smart] before a death qualified jury during the merits phase of the trial deprive [him] of a trial before a cross-section of the community. See Doc. 21-11, ECF p. 3, Commonwealth v. Smart, No. 588 MDA 2005 (Pa. Super. Oct. 19, 2006).

The Pennsylvania Superior Court affirmed the judgement of sentence on October 19, 2006. See Commonwealth v. Smart, 913 A.2d 947 (Pa. Super. Oct. 19, 2006)(Table, No. 588 MDA 2005). The petition for allowance of appeal was denied by the Pennsylvania Supreme Court on May 1, 2007. See Commonwealth v. Smart, 592 Pa. 759, 923 A.2d 410 (Pa. May 1, 2007)(Table, No. 973 MAL 2006). Mr. Smart did not seek a writ of certiorari.

C. Proceedings on Post-Conviction Relief

On October 1, 2007, Mr. Smart filed a timely pro se petition for post-conviction relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. CONS. STAT. ANN. §§ 9541-9546. After Attorney David Strouse was appointed to represent Mr. Smart an amended PCRA petition was filed on January 25, 2008. See Commonwealth v. Smart, 2008 WL 6855791 (Appellate Br.)(Pa. Super. 2008), Appellant's Br. On January 25, 2008, Mr. Smart filed an Amended PCRA petition. Two evidentiary hearings were held with respect to Mr. Smart's Amended PCRA Petition, one on February 26, 2008 (Doc. 23-1), and the other on March 17, 2008 (Doc. 23-2). The trial court, now acting as the PCRA court, denied the Petition on March 18, 2008. On appeal Mr. Smart raised three issues: (1) whether the PCRA court erred in concluding that, pursuant to Pa. R.E. 606, a juror's testimony was inadmissible to the extent it referenced racially biased statements made by jury members during the course of deliberations, when said testimony was offered to show [that Mr. Smart] had been deprived of his rights as guaranteed by the Sixth Amendment and, alternatively, to show that jurors had been untruthful during voir dire relating to racial bias; (2) whether the PCRA court erred in concluding that trial and appellate counsel were not ineffective for failing to compel forensic testing of evidence in the possession of the Commonwealth, when such testing could have substantially corroborated the defense theory of the case, and the decision not to pursue such testing was never discussed by trial counsel with defendant; and (3) whether the PCRA court erred in concluding that trial and appellate counsel were not ineffective for failing to pursue defendant's claim of racial bias based upon information provided by a juror, post-trial, showing other jury members to have falsely answered questions pertaining to racial animus during voir dire. (Doc. 21-10, Commonwealth v. Smart, No. 696 MDA 2008 (Pa. Super. July 10, 2009).)

The Superior Court of Pennsylvania affirmed the PCRA court's decision by memorandum opinion dated July 10, 2009. Commonwealth v. Smart, 981 A.2d 935 (Pa. Super. Jul. 10, 2009)(Table, No. 696 MDA 2008). Mr. Smart filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court which was denied on December 17, 2009. Commonwealth v. Smart, 604 Pa. 696, 986 A.2d 150 (Pa. Dec. 17, 2009)(Table, No. 561 MAL 2009). Mr. Smart did not seek a writ of certiorari.

D. Other Post-Conviction Proceedings

In 2012, while his habeas petition was pending, Mr. Smart filed a Petition for Post-Conviction DNA Testing pursuant to 42 PA. CONS. STAT. § 9543.1. The trial court ruled that Mr. Smart did not meet the threshold requirements for such testing and that nonetheless even if DNA testing was conducted it would not establish his actual innocence of the crimes for which he was convicted. (Doc. 21-14, Commonwealth v. Smart, No. 175-02 (Clinton Ct. Com. Pl. July 5, 2012).) In reaching this decision the trial court wrote:

... the testimony of multiple eyewitnesses at trial was that the victim had engaged in a series of physical altercations with a number of individuals, including [Mr. Smart] on the evening in question. Direct eyewitness testimony indicated that [Mr. Smart] returned to the scene of the earlier altercation, where victim lay unconscious but breathing and, with the help of his cousin and two acquaintances, all of whom testified against [Mr. Smart], proceeded to load the still-breathing victim into the trunk of a car, which [Mr. Smart] then drove away. [Mr. Smart]'s cousin accompanied [Mr. Smart] on his journey to another location several miles away. The cousin's testimony was that [Mr. Smart] then beat the unconscious victim to death with two blunt instruments - namely, a firearm and a tree branch. Testimony by [Mr. Smart]'s college roommate additionally indicated that [Mr. Smart] twice confessed to murdering the victim. One of these confessions, the roommate testified, occurred while the victim's missing person report appeared on the television news coverage. Given these facts of record, neither the absence of [Mr. Smart]'s DNA nor the presence of another individual's DNA under the victim's fingernails would yield conclusive results.

( Id., ECF p. 4.)

The deathblow was the central issue in [Mr. Smart]'s trial and it remains the issue central to our scrutiny of his motion requesting post-conviction DNA testing. [Mr. Smart] was one of several individuals who engaged in physical combat with the victim. An unconscious man would obviously enjoy no means of self-defense against being bludgeoned to death; the victim had no opportunity to scratch or grab his murderer at that point in time, although he may have scratched or grabbed [Mr. Smart] or any of the several others during the fights in which he engaged earlier in the evening... we cannot reasonably say with any degree of conviction that it is more likely than not that no reasonable juror would have convicted [Mr. Smart] if another person's DNA was now found under victim's fingernails.

( Id., ECF pp. 5-6.)

With regard to the towel found near the location where victim's body was recovered, [Mr. Smart] fails to articulate what might be found thereupon or what significance should attach to that which might be found. The trial testimony of a State Police investigator indicated that forensic laboratory testing detected no blood or hairs on the towel and that "[i]f there was no blood or foreign material, then there was nothing to submit for DNA analysis." See Trial Transcript, October 4, 2004, at pp. 117-18. In this respect, [Mr. Smart]'s request appears to us to be a last ditch fishing expedition, lacking any evidentiary basis in the record. The plain language of the statute places the burden of establishing a prima facie case of actual innocence, as a prerequisite to post-conviction DNA testing, on [Mr. Smart]. We believe this precludes its use to support such a fishing expedition.

( Id., ECF p. 7.) Mr. Smart's appeal to the Superior Court of Pennsylvania was dismissed due to his failure to file a supporting brief. (Doc. 21-12, Commonwealth v. Smart, No. 1371 MDA 2012 (Pa. Super. Dec. 10, 2012).)

E. Present Habeas Proceedings

Mr. Smart filed his Petition for Writ of Habeas Corpus on July 8, 2010. (Doc. 1, Pet.) In his Petition, Mr. Smart raises the following claims: (1) whether the state courts erred in determining appellate counsel were not ineffective for failing to file a motion to compel discovery of specific items of physical evidence for purposes of forensic testing and/or to have such evidence tested by an expert; (2) whether the state courts erred in determining that trial and appellate counsel were not ineffective for failing to pursue Petitioner's claim of racial bias based upon information provided by a juror post-trial, showing that jurors falsely answered questions during voir dire; (3) whether the state court erred in finding that trial counsel was not ineffective for failing to move for a mistrial post-verdict, based on statements made by a juror relating to racial bias during voir dire; (4) whether the state courts erred in not finding that trying the petitioner before a death qualified jury during the merits phase of the trial, deprived him of a trial before a cross-section of the community; (5) whether the state courts erred in not finding that instances of prosecutorial misconduct when taken together, so tainted the fairness of the trial, that Mr. Smart should be granted a new trial in the interest of justice; (6) whether Pa. R. E. 600(b) is unconstitutional as applied in a case where it prevents rectification [sic] of fifth and sixth amendment violations; and (7) whether the state court erred or abused it's [sic] discretion, in determining it could not hear testimony concerning racist statements made by a juror. (Docs. 1 and 9.)

In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), this court issued formal notice to Mr. Smart that he could either have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by the court of appeals, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act (AEDPA). (Doc. 5.) On September 10, 2010, Mr. Smart returned the notice of election form, indicating that he wished to proceed with his petition for writ of habeas corpus as filed. (Doc. 6.) However, simultaneous to this filing Mr. Smart sought an extension of time to supplement his habeas petition. (Doc. 4.) Accordingly, he was granted until October 8, 2010, to amend his habeas petition. (Doc. 8.) On October 8, 2010, Mr. Smart filed a memorandum of law in support of his habeas petition. (Doc. 9.)

On October 15, 2010, a show cause order was issued directing service of the original habeas petition and supporting memorandum on respondents. (Doc. 10.) After receiving an enlargement of time to respond to the Petition, respondents filed their response to the habeas corpus petition for writ of habeas corpus on February 3, 2011. (Doc. 18). Long after respondents filed their response, on August 7, 2014, and almost two years after the trial court denied his ...


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