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Mayo v. Giroux

United States District Court, E.D. Pennsylvania

June 23, 2015

WILLIAM MAYO, Petitioner,
v.
MS. NANCY GIROUX, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

ORDER

JAN E. DuBOIS, District Judge.

AND NOW, this 22nd day of June, 2015, upon consideration of pro se petitioner William Mayo's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Document No. 1, filed February 25, 2014); Response to Petition for Writ of Habeas Corpus (Document No. 21, filed September 26, 2014); Petitioner's Reply to the District Attorney's Response to Petition for Writ of Habeas Corpus (Document No. 23, filed November 17, 2014); the record in this case; the Amended Report and Recommendation of United States Magistrate Judge Marilyn Heffley[1] (Document No. 26, filed January 2, 2015); and Petitioner's Objections to the United States Magistrate Judge Marilyn Heffley Amended Report and Recommendation (Document No. 29, filed January 20, 2015), IT IS ORDERED as follows:

1. The Amended Report and Recommendation of United States Magistrate Judge Marilyn Heffley dated January 2, 2015, is APPROVED AND ADOPTED;

2. Pro se petitioner's Objections to the Magistrate Judge's Amended Report and Recommendation are OVERRULED;

3. Pro se petitioner's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody is DENIED;

4. A certificate of appealability WILL NOT ISSUE on the ground that reasonable jurists would not debate this Court's procedural rulings with respect to pro se petitioner's claims or whether he has stated a valid claim of the denial of a constitutional right. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Morris v. Horn, 187 F.3d 333, 340 (3d Cir. 1999); 28 U.S.C. § 2253(c); and

5. The Clerk of the Court shall mark this case CLOSED.

The decision of the Court is based on the following:

1. On August 18, 2004, pro se petitioner William Mayo ("petitioner") was convicted of first-degree murder, reckless endangerment, and violating the Uniform Firearms Act following a jury trial in the Court of Common Pleas of Philadelphia. He was thereafter sentenced, inter alia, to a term of life imprisonment.

2. After exhausting his remedies in state court, petitioner timely filed a pro se Petition for Habeas Corpus in this Court pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") on February 12, 2014.[2] In the Petition, petitioner raises the following claims and arguments: "(1) ineffective assistance of trial counsel regarding all aspects of his mental infirmity defense; (2) "[t]he PCRA court's conclusion that trial counsel had a reasonable strategic basis for not investigating the defense of diminished capacity in a timely manner is not supported by the record and is contrary to law"; (3) "[t]he PCRA court erred in several ways in finding that... trial counsel's failure to present [e]xpert testimony in support of his defense of diminished capacity did not prejudice him; and (4) "[t]he PCRA court erred by disregarding the contradiction that trial counsel rendered in his testimony at the evidentiary hearing." (R & R, at 8.)

3. By Order dated April 30, 2014, the Court referred the case to United States Magistrate Judge Marilyn Heffley. On January 2, 2015, Magistrate Judge Heffley submitted to the Court an Amended Report and Recommendation ("R & R"), recommending that petitioner's § 2254 Petition be denied on the merits.[3] Petitioner subsequently filed Objections to the R & R, which are presently before the Court. Petitioner's Objections to the R & R are overruled for the reasons set forth below.[4]

4. Petitioner first objects to Magistrate Judge Heffley's decision to construe the four separate claims raised in his § 2254 Petition as separate arguments within the context of one claim: that the state court unreasonably rejected his argument that his trial counsel, Daniel Conner, was ineffective in failing to investigate a diminished capacity defense, secure an expert, and timely file a notice of intent to pursue that defense. According to petitioner, construing his claims in such a way "appears [to be] nothing but an antic to undermine the validity" of his arguments. (Pet'r's Objs. 1.) The Court disagrees. The Magistrate Judge gave due consideration to all of petitioner's arguments, and regardless of whether those arguments are considered as part of one claim or as four separate claims, the result is the same because, for the reasons stated in the R & R, none of petitioner's claims and arguments have merit.

5. Next, petitioner reasserts his argument that trial counsel was ineffective in failing to investigate the viability of a diminished capacity defense and in failing to give notice of his intent to pursue that defense until August 16, 2004, the day on which the Commonwealth commenced its case-in-chief.[5] Petitioner merely restates the arguments made and rejected by the Magistrate Judge, and they are rejected for the reasons stated in the R & R. As explained in the R & R, the state court determined that, "given the facts known to [trial counsel] at the relevant time, his [initial] decision to proceed with a voluntary intoxication defense and forgo investigating a diminished capacity defense was entirely reasonable." (R & R, at 17). The Court agrees with the Magistrate Judge that the state court's determination on this issue was neither contrary to, nor involved an unreasonable application of, clearly-established federal law governing ineffective assistance of counsel claims, nor was it based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1)-(2).

6. Petitioner next objects to that part of the R & R in which Magistrate Judge Heffley rejected his argument that trial counsel gave inconsistent testimony at the evidentiary hearing held in state court concerning the reasons for his delayed pursuit of a diminished capacity defense. Trial counsel attributed the delay primarily to two factors: (1) petitioner's insistence upon pursuing an outright acquittal through a defense of mistaken identification; and (2) the fact that he had no reason to conclude that petitioner had any kind of real impairment that would implicate a diminished capacity defense[6] prior to receiving, just three days before trial, a report from Dr. Steven Samuel, Ph.D., in which Dr. Samuel diagnosed petitioner with mental retardation.[7] According to petitioner, trial counsel's reasons are "inherently contradictory" and should have been rejected by the state court. (Pet'r's Objs. 3.) Petitioner merely restates the arguments that were considered and rejected by the Magistrate Judge, and they are rejected for the reasons stated in the R & R. As explained in the R & R, trial counsel's testimony explaining the reasons for his delayed pursuit of a diminished capacity defense is not inconsistent, and "the state court's acceptance of [trial] counsel's testimony was entirely reasonable." (R & R, at 14 n.7.)

7. Next, petitioner reiterates his argument that trial counsel was ineffective in failing to present an expert witness in support of a voluntary intoxication defense, [8] a defense which trial counsel intended on pursuing from the outset of his representation of petitioner. Petitioner again restates arguments made and rejected by the Magistrate Judge, and they are rejected for the reasons stated in the R & R. As set forth in the R & R:

The Commonwealth did not challenge the fact that [petitioner] was plainly intoxicated. Given the Commonwealth's agreement that [petitioner] was indeed intoxicated, it is incomprehensible that a jury would have reached a different conclusion had an expert testified since an expert could not, under any circumstances, testify to the ultimate fact of [petitioner's] having or not having the intent to kill[9]... That trial counsel could not defeat the overwhelming evidence of [petitioner's] guilt of first degree murder does not entitle [petitioner] to relief.

(R & R, at 18-19) (alterations in original) (citing February 5, 2008 PCRA Court Opinion, Document No. 21-2).

8. Finally, in his Objections, petitioner asserts a "last and final claim, " in which he contends that trial counsel was ineffective in failing to timely file a brief in support of petitioner's direct appeal. (Pet'r's Objs. 5.) Petitioner states that he is "mentioning this fact to help prove how incompetent trial counsel was since he was first appointed."[10] (Id.) This claim was not raised in petitioner's § 2254 Petition, nor was it raised before the Magistrate Judge. Thus, to the extent that petitioner seeks to raise a new claim of ineffective assistance of counsel based on trial counsel's alleged failure to timely file an appellant brief, this claim is not properly before the Court. See Local Rule 72.1(IV)(c) ("All issues and evidence shall be presented to the magistrate judges, and unless the interest of justice requires it, new issues and evidence shall not be raised after the filing of the Magistrate Judge's Report and Recommendation if they could have been presented to the magistrate judge."); Clark v. Fisher, No. 10-204, 2011 WL 6000795, at *2 (W.D. Pa. Nov. 30, 2011) ("Claims raised for the first time in objections to a Report and Recommendation are not properly before the district court."). In any event, petitioner's claim fails because he provides no factual or legal support for his assertions. See, e.g., Simms v. Carroll, 432 F.Supp.2d 443, 444 (D. Del. 2006) ("[B]ald assertions and conclusory allegations do not provide a court with sufficient information to permit a proper assessment of habeas claims, and a habeas court cannot speculate about claims.") (internal quotation marks omitted) (citing Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987)).

As such, petitioner's "last and final" claim does not alter the Court's view of the conclusions reached by Magistrate Judge Heffley in the R & R. Accordingly, the Court approves and adopts the R & R, overrules all of petitioner's Objections, and denies his § 2254 Petition.


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