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Dunson v. Wetzel

United States District Court, W.D. Pennsylvania

July 22, 2015

DALE GENE DUNSON, Petitioner,
v.
JOHN E. WETZEL, Secretary of Pennsylvania Department of Corrections and LAWRENCE MAHALLY, Superintendent of the State Correctional Institution at Dallas, Respondents.

MEMORANDUM OPINION

ARTHUR J. SCHWAB, District Judge.

I. Introduction

Petitioner, Dale Gene Dunson, filed a timely pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (doc. no. 4) seeking relief from a 2009 conviction and sentence of twenty to forty years incarceration[1] for third degree murder following a bench trial in the Court of Common Pleas of Allegheny County, Pennsylvania, before the Honorable Lester G. Nauhaus. Petitioner had been charged with one count of criminal homicide. The evidence presented at trial established that Petitioner shot Tyrone Edwards, in the back of the head, killing him.

After careful review of the habeas petition (doc. no. 4), the Commonwealth of Pennsylvania's Response (doc. no. 16), the Petitioner's Reply (doc. no. 26), and the state court records, including transcripts of the proceedings as well as the Opinions of the Court of Common Pleas and of the Pennsylvania Superior Court denying Dunson's petition for relief under Pennsylvania's Post Conviction Relief Act, and applying the deferential standard of review required under AEDPA, this Court must deny this § 2254 Petition for habeas relief and declines to issue a certificate of appealability. In addition, the Court will also deny as moot (for the reasons set forth below) Petitioner's Motion for an Evidentiary Hearing. Doc. no. 25. The Court's reasons for ruling in this fashion are set forth in detail below.

II. Procedural and Factual History

Tyrone Edwards was shot and killed on September 16, 2006. Petitioner was charged with this fatal shooting.

A. Factual Summary of the Evidence Presented at Trial

On the day of the shooting, the police were summoned to a housing project in the Hill District section of Pittsburgh. See 9/29/2009 Trial Transcript (hereinafter "TT"), p. 15-16. Upon their arrival, the decedent, Tyrone Edwards, was not present - he had been transported to the hospital by a private vehicle. Id., p. 25.

During the trial, Police Officer Weismantle testified that the police found two shell casings on the sidewalk in front of house number 2081, Bentley Drive. Id., p. 26. The police determined where on the premises Tyrone Edwards had been shot from the pool of blood which was found approximately 100 feet away from the two shell casings. Id., p. 29.

Police Officer Smith testified that upon his arrival at the scene of the shooting, he located the large pool of blood and was approached by two females who had been standing on the street near the pool of blood. Id., p. 34. The first female, Sharelle Edwards, indicated that she had seen Tyrone Edwards get shot by Dale Dunson. Id., p. 34-35. The second female that Officer Smith spoke to, Shela Thomas, told him that she too had seen the shooting and indicated that "Dale" was the shooter. Id . p. 36.

Shela Thomas, who was also called to testify during the trial of this matter, stated that on the day of this shooting she had been standing in front of house number 2050 on Bentley Drive and was with friends. Id., p. 40. Ms. Thomas testified that she heard an argument between Dale Dunson and Sharelle Edwards taking place on the opposite side of the street, about one "courtyard" away from where she was standing. Id., p. 42. Dale Dunson was on the opposite side of the street, but Sharelle Edwards was on the same side of the street as Shela Thomas. Id., p. 43. Shela Thomas testified that Dale Dunson's brother was also present during the period of time that Petitioner and Sharelle Edwards were arguing. Id., p. 44. Dunson's brother became involved in the verbal argument when Tyrone Edwards "stuck his head out of a window" and shouted for Dunson to stop calling Sharelle Edwards names. Id., p. 45. Eventually, Tyrone Edwards came out of the building, walked down the street toward Dale Dunson and his brother, and continued to tell Dale Dunson to stop calling Sharelle Edwards names. Id., p. 46. According to Shela's testimony, while Dale Dunson's brother continued to argue with Tyrone, Dale Dunson disappeared for a moment, appearing to have walked to the back of the court. Id., p. 46-47. When Shela and Tyrone Edwards (and others) turned their backs to walk away, she heard a gunshot, then turning toward the sound, saw a flash (fire), and saw Dale Dunson shoot the gun. Id., p. 47. She saw Tyrone Edwards fall, but did not fully comprehend he had been shot by Dale Dunson until she saw blood rushing from the back of his head. Id . Shela testified that while Tyrone lay bleeding, she saw Dale Dunson get into a car and drive backward on Bentley Drive, away from the scene of the incident. Id., p. 48. Although this incident happened in the early morning hours of September 16, 2006, Shela testified that the lights, located on the outside of the buildings, were operating and that she knew Dale Dunson and his brother because they lived in the neighborhood. Id., p. 53, 71.

Sharelle Edwards also testified at trial, and indicated that she was on Bentley Drive the morning of the shooting. Id., p. 77. While outside on Bentley Drive she approached Dale Dunson and admitted that they exchanged words. Id . After entering a house on Bentley Drive and returning back outside to the courtyard a few minutes later, she and Dale Dunson again, "exchanged words." Id., p. 78. Sharelle Edwards also testified that her cousin, Tyrone Edwards, heard her argument with Dale Dunson. Id . Tyrone Edwards was inside a building and yelled out of a window. Id . Sharelle recalled that Tyrone was yelling that Dale Dunson needed to stop "disrespecting" Sharelle. Id., p. 79. Sharelle next recalled that when Tyrone eventually came out of the building, he and Dunson's brother began to argue while Dale Dunson seemed to have walked away toward the "back of the court." Id . Sharelle recalled seeing Dale Dunson return "to the front of the court" and saw "sparks" and saw him shoot a gun (she thought he had shot it in the air) before aiming it across the street, pointing it in the direction of Tyrone Edwards, and shooting the gun again. Id., p. 80, 99. When the shooting stopped, she saw that Tyrone Edwards was still lying on the ground and did not realize at first that he had been shot. Id., p. 81. Finally, like Shela Thomas, Sharelle Edwards testified that immediately following the shooting she observed Dale Dunson run to his car and back it down Bentley Drive at a high rate of speed. Id.

Cornell Lee testified that he was with Tyrone Edwards on September 16, 2006. Id., p. 105. They were inside a building (2051 Bentley Drive) standing in the hallway, visiting with Lee's girlfriend. Id., p. 106. At some point in time, they heard the argument between Dale Dunson and Sharelle Edwards and when the argument did not stop even after Tyrone Edwards yelled out of a window, the two men (Tyrone and Cornell) went outside the building and walked down the street. Id . Cornell Lee testified that he and Tyrone were standing in the middle of the street as they argued with Dale Dunson's brother. Id., p. 107. According to Cornell, Dale Dunson "disappeared, went to the back of the hallway, came back out." Id . Around that same point in time, Cornell said that he and Tyrone were about to leave, when Dale Dunson started shooting a gun. Id . Cornell explained that he and Tyrone were still standing on the street when Dale Dunson returned, and further recalled that Dale Dunson was standing on the top of three steps in front of a building. Id., p. 108. Cornell testified that Dunson aimed in the direction of where he and Tyrone were standing and as they were walking away, Tyrone was shot in the back of his head. Id . Cornell ran and hid behind a parked truck, but after the shooting stopped, he observed Dale Dunson, run to his car and back it down Bentley Drive. Id., p. 109. Finally, Cornell testified that a man he did not know, drove by shortly after the shooting took place, and told Cornell to get Tyrone Edwards in the car. Id . This man drove Cornell and Tyrone to Mercy Hospital. Id.

Police Officer Jeffrey Palmer[2] testified that he was briefed by officers on the scene of the shooting and arrived at Mercy Hospital to interview Cornell Lee and the driver. Id., p. 153. According to Officer Palmer, Cornell indicated that he had been with Tyrone at the time of the shooting, that there had been a confrontation between Tyrone and two individuals immediately prior to the shooting. Id . Palmer stated that Cornell told him he saw a muzzle flash, and realized that Tyrone had been hit in the head. Id., p. 154. Per Palmer, Cornell indicated that he knew Dale Dunson and his brother from the neighborhood, but could not recall their names. Id . Cornell did not identify Dale Dunson or his brother to Officer Palmer as the shooter at that time, but Cornell did state that the shooter was wearing a grey hoodie. Id.

Detective John Cherf, of the Indiana Borough Police Department, testified that he arrived to assist an officer during a routine traffic stop on December 30, 2006. Id., p. 122-123. Detective Cherf obtained the license for the passenger, and noted that the photo on the license (issued to a person with the name "Major Coats") did not match that of the passenger. Id., p. 123. On December 30, 2006, Detective Cherf asked the passenger to step out of the vehicle. During trial, the Detective identified Dale Dunson as the person who was the passenger in the car. Id., p. 123-124. On December 30, 2006, when the Detective attempted to pat down Dale Dunson for weapons, while he was standing outside the car, Dunson attempted to flee, but was captured and subdued. Id., 124. Next, the officers placed Dunson under arrest, transported him to their barracks, and ran his fingerprints through AFIS. Id., p. 125. From a fingerprint match the police learned his true identity, and discovered that there were several active warrants out for his arrest. Id . Following the presentation of Detective Cherf, the Government rested its case.

Defendant's case began with the presentation of testimony by Mario Resto, who claimed to be a long-time friend of Dale Dunson and his brother, and who claimed to be standing in the doorway of building number 2083, Bentley Drive, on September 16, 2006 at the time of the shooting. 10/14/2009 TT, p. 1-9. During Resto's testimony, Defendant's counsel used a video surveillance recording to assist him with his testimony. Id . Per Resto, the video (which was shot from the direction that Resto was watching from on the morning in question), depicted events before, during, and after the shooting. Id., p. 8-13. Using the video, Resto was able to identify "a person" standing in the middle of Bentley Drive, as the person who "yelling" at Dale Dunson's brother, David. Id., p. 9. Resto testified that during this section of the video, Dale Dunson was not present. Id., p. 10. Resto also testified that a man by the name of "Brandon" ran to a building yelling that some "dude" had a gun. Id., p. 11. Resto next testified that "a short time later" he (Resto) looked out his door and saw a guy wearing a hoodie, shooting a gun. Id . Resto testified that he was 100 percent certain the shooter was not Dale Dunson. Id., p. 13. Resto admitted that he did not see the shooting, but that he heard it and claimed to have seen shooter run past after the shooting. Id., p. 16-17. Resto claimed he recalled paramedics arriving at the scene, but he said he did not look to see if the paramedics took the victim of shooting away. Id., p. 18.

After questioning Resto, Dunson's attorney next recalled Officer Weismantle who admitted that he interviewed Shela Thomas at the scene and that took her recorded statement on September 16, 2006. Id., p. 22-31. After questioning this officer about whether Tyrone Edwards yelled at Dale Dunson or his brother, David, the defense rested. Id., p. 31.

During his closing argument, counsel for Dale Dunson argued that Dale was not even present at the time of shooting. Id., p. 32. Counsel argued that Dale Dunson simply dropped his brother off at the housing project then left. Id . A video was offered by counsel as Exhibit "A" which, per counsel, depicted the "altercation start[, then] people fleeing from the scene[, ]... a vehicle backing out, so on so forth." Id., p. 33. Counsel requested that the trial judge view the video surveillance tape and argued that if the judge believed Resto's testimony, Tyrone Edwards' killer - presumably the person who is fleeing the scene the fastest in the video - was wearing a grey hoodie on the night in question, and was not Dale Dunson. Id., p. 34. Counsel further argued that when combined with Cornell Lee's testimony - specifically that Lee could not recall what Dale Dunson was wearing at the time of shooting - but only knew that the shooter was wearing a grey hoodie, the judge would have to conclude that there was reasonable doubt that Dale Dunson was the shooter. Id., p. 35. Dunson's attorney further argued that even though every other eyewitness who testified said that Dale Dunson was wearing a hoodie at the time of shooting, but none could agree on its color. Id.

The trial judge, Lester G. Nauhaus stated that he would view the video surveillance tape frame-by-frame as requested by Dale Dunson's attorney prior to rendering a verdict.[3] He also noted that this case came down to credibility determinations between three eyewitnesses who claimed they saw Dale Dunson shoot Tyrone Edwards in the back of the head and one defense witness who admitted he did not see the shooting, but saw a person who he believed to be the shooter, fleeing the scene, and claimed the shooter was not Dale Dunson. Id., p. 40. On October 16, 2009, Judge Nauhaus indicated that he had watched the video 2-3 times and then he pronounced Dale Dunson guilty of third-degree murder. 10/16/2009 TT, p. 2-4.

B. Procedural History

As noted, the bench trial of Dale Dunson began on September 29, 2009, before the Honorable Lester G. Nauhaus, of the Court of Common Pleas of Allegheny County. See 9/29/2009 TT, p. 1-158. Thereafter, the trial was continued until October 13, 2009. See 10/13/2009 TT, p. 1-47. On October 16, 2009, Judge Nauhaus[4] found Petitioner guilty of third-degree murder. See 10/19/2009 TT, p. 1-4. During the entirety of the bench trial, Petitioner was represented by counsel, Eric A. Jobe. Petitioner was sentenced to twenty to forty years of incarceration (to run concurrent to a 30-month federal sentence imposed by Judge Terrence McVerry).

Petitioner timely filed a Notice of Appeal to the Superior Court of Pennsylvania through Mr. Jobe. On appeal, Petitioner challenged whether the trial court imposed a sentence "which was manifestly excessive in contravention of the [Pennsylvania] sentencing scheme" when the facts did not support third-degree murder, but rather supported involuntary manslaughter. On February 25, 2011, the Superior Court affirmed the trial court's sentence of twenty to forty years of incarceration. Petitioner did not file a Petition for Allowance of Appeal with Pennsylvania's Supreme Court; nor did he file a Writ of Certiorari with the United States Supreme Court.

On January 24, 2012, Petitioner timely filed a pro se Motion for Post-Conviction Collateral Relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Counsel for Petitioner, Veronica Bretensky, was appointed and shortly thereafter, she filed an Amended PCRA Petition, raising claims of trial counsel's ineffectiveness. Specifically, Attorney Bretensky claimed that trial counsel had failed to present or call two eyewitnesses (Dave Dunson and Jeff Burton) to testify during the trial. Attorney Bretensky then filed a Supplement to the Amended PCRA petition on October 12, 2012, alleging that trial counsel was ineffective for failing to preserve and/or litigate on appeal to the Superior Court: (1) that Petitioner's conviction of third degree murder was against the weight of the evidence; and (2) that the evidence was insufficient to support Petitioner's conviction.

On April 25, 2013, during the PCRA evidentiary hearing, Petitioner discovered that there were seven video surveillance disks. Petitioner claims that he and his trial counsel, Mr. Jobe, were only aware of one video surveillance disk, and this singular disk was the only disk produced during discovery by the Assistant District Attorney. Petitioner also claims none of the other video surveillance disks were like the one he viewed during his murder trial, and he further alleges that one of the disks supports his own version of the facts and events surrounding the shooting of Tyrone Edwards on September 16, 2006.

On July 16, 2013, after receiving a Response from the Commonwealth of Pennsylvania, and after conducting an evidentiary hearing, Petitioner's PCRA Petition was denied.

On July 22, 2013, Attorney Bretensky timely filed an appeal with the Superior Court. On September 3, 2013, Attorney Bretensky timely filed a no-merit brief with the Superior Court and simultaneously filed a Petition to withdraw as counsel. The no-merit brief indicated that there was no merit to any of the three claims - (1) the original eyewitness claim; and the two supplemental claims (2) the weight of the evidence claim; and (3) the insufficiency of the evidence claim) - which were first raised before the PCRA and then again, on appeal to the Superior Court.

On May 28, 2014, the Superior Court affirmed the Order entered by the PCRA, which had dismissed Petitioner's PCRA Petition. Petitioner did not file a Petition for Allowance of Appeal with Pennsylvania's Supreme Court; nor did he file a Writ of Certiorari with the United States Supreme Court.

Next, Petitioner timely filed the instant pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus with this Court. Doc. no. 4. The Commonwealth has filed a Response to the Petition (doc. no. 16). Petitioner filed a Reply (doc. no. 26) as well as a Motion for an evidentiary hearing. Doc. no. 25.

III. Standards of Review

A. 28 U.S.C. § 2254 and AEDPA Standards - General

Dunson's Petition is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA"). Under this statute, habeas relief is only available on the grounds that Dunson's convictions were obtained in violation of his federal constitutional rights. 28 U.S.C. § 2254(a) (the court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.). Accordingly, "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Errors of state law are not cognizable. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot reexamine state court determinations on state-law questions.'") ( quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)); Real v. Shannon, 600 F.3d 302, 309-10 (3d Cir. 2010) ("A federal court may re-examine a state court's interpretation of its own law only where this interpretation appears to be an obvious subterfuge to evade consideration of a federal issue.").

Thus, federal law requires this Court to defer to a state court's application of its own rules of evidence. Estelle, 502 U.S. at 67-68 (federal court on habeas review must not review state court rulings on admissibility of evidence under state law); see also Homes v. South Carolina, 547 U.S. 319, 324 (2006) ("State and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.'"); Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983) ("[T]he ...


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