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Haddock v. Keresta

United States District Court, W.D. Pennsylvania

January 10, 2017

JAMES FRANCIS HADDOCK, Petitioner,
v.
JOHN KERESTA, Superintendent, HON. STEPHEN A. ZAPPALA, Allegheny County District Attorney, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          OPINION

          Mark R. Hornak, United States District Judge

         James Francis Haddock, ("Haddock" or "Petitioner"), proceeding pro se, has filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") pursuant to 28 U.S.C. § 2254, challenging his convictions for first degree murder, attempted murder, aggravated assault, carrying a firearm without a license, and recklessly endangering another person. The case was referred to United States Magistrate Judge Cynthia Reed Eddy for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1) and the Local Rules for Magistrate Judges.

         The Report and Recommendation ("R&R") filed on May 23, 2016, recommended that the Petition be dismissed and that a certificate of appealability be denied. (ECF No. 22.) The parties were informed that written objections to the R&R were due by June 14, 2016. Petitioner's timely request for an extension of time to file objections was granted and on July 19, 2016, Petitioner filed his objections. (ECF No. 27.) Where, as here, objections have been filed, the court is required to make a de novo determination about those portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court may accept, reject, or modify the recommended disposition, as well as receive further evidence or return the matter to the magistrate; judge with instructions.

         After reviewing de novo the record in this case, including the state court record and trial transcript, and the pleadings and documents filed in this case, together with the R&R and the objections thereto, the Court is in agreement with the ultimate recommendation of the R&R, but finds it necessary to supplement the analysis with regard to the dismissal of Claim Four of the Petition. But first, the Court will briefly address Petitioner's objections to the other portions of the R&R.

         Petitioner raised four grounds for relief in his Petition. Claims One and Two were raised solely as state claims in the state court. The R&R recommended that both claims be dismissed because (1) both were presented only as state claims and (2) to the extent Petitioner is attempting to raise these claims as federal constitutional claims in his federal habeas petition, both are unexhausted and procedurally defaulted. Petitioner objects to the R&R's conclusion that both claims are unexhausted.

         This objection can be rather summarily dismissed. Because both claims were presented only as state law claims to the state courts, both claims are not cognizable in this federal habeas corpus action. See 28 U.S.C. § 2254 ("[A court] shall entertain an application for a writ of habeas corpus in (sic) 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.") (emphasis added). Even assuming that Petitioner is attempting to now raise these claims as federal constitutional claims, both claims are unexhausted as these claims were never presented to any state court as a federal constitutional issue. Further, because state court remedies are no longer available, these claims are also procedurally defaulted. As the R&R correctly concluded, federal habeas review is not available for these claims as Haddock has provided no basis to overcome his default.

         Claims Three and Four are interrelated layered-ineffective assistance of counsel claims.[1]In Claim Three,, Petitioner claims that his PRCA counsel was ineffective for failing to raise trial counsel's ineffectiveness when trial counsel failed to advise Petitioner that neither the trial court nor trial counsel could "compel" him to testify in exchange for jury charges on justification and voluntary manslaughter. In Claim Four, Petitioner claims that his PCRA counsel was ineffective for failing to raise trial counsel's ineffectiveness when trial counsel failed to request a mistrial after the trial court seemingly changed its mid-trial ruling and declined to give jury instructions for justification and voluntary manslaughter. The R&R correctly concluded that both claims had been procedurally defaulted because both were held to be waived under firmly established Pennsylvania Rules of Appellate Procedure. The Magistrate Judge next determined that Martinez v. .Ryan, - U.S. -, 132 S.Ct. 1309 (2012), provided no avenue for Petitioner to overcome the default.

         Specifically, the R&R recommended that Claim Three be dismissed because "there is nothing in the record from which this Court could conclude that Haddock was compelled to testify or that counsel provided unreasonable advice concerning the decision whether or not to testify." R&R at 17. Petitioner objects to this recommendation because the R&R does not reflect whether the Magistrate Judge reviewed his affidavit "wherein he provided a wealth of information regarding how he came to testify." Obj. at 2-3 (ECF No. 27.) This Court has independently reviewed Petitioner's "Certified Statement" (ECF No. 18-7 at 19) and Affidavit[2](ECF No. 18-11 at 29) and concludes that neither his "Certified Statement" nor his Affidavit undermines the recommendation of the Magistrate Judge as to Claim Three. This Court agrees that there is no credible evidence in the record from which this Court could conclude that Petitioner was ever compelled to testify at all or that trial counsel provided unreasonable advice concerning the decision whether or not to testify. Absent some arguable merit to the underlying ineffectiveness claim, PCRA counsel cannot be ineffective for neglecting to raise the issue on collateral review.

         As to Claim Four, while this Court agrees with the recommendation that Claim Four be dismissed, I arrive at this conclusion based on a combination of several factors.

         First, I agree with Petitioner that the trial judge's actions in the case at bar are not meaningfully distinguishable from the trial judge's actions in Commonwealth v. Rickabaugh, 633 A.2d 647 (Pa. Super. Ct. 1993). However, unlike the situation in Rickabaugh, I conclude that Haddock was not prejudiced by the trial judge's apparent change of heart with regard to his decision as to whether to give jury instructions on justification and voluntary manslaughter.

         In Rickabaugh the Superior Court of Pennsylvania found that defendants "would not have testified but for the court's representation that the defense of entrapment would be evaluated by the jury." Id. at 650-51 (emphasis added). As Judge Brosky, in his concurring opinion, remarked:

Perhaps appellants would not have testified and admitted to smoking marijuana, possession marijuana and giving marijuana to Mary Specht if they had known that the trial court would not give a jury charge on entrapment. However, I believe that the failure to give a jury charge on entrapment was not as damaging to appellants' case as the trial court's indication to appellants that it would submit the entrapment issue to the jury: that trial court action provided inducement to appellants to testify and absent their highly damaging testimony it is quite conceivable that the jury may not have convicted them of possession of marijuana, possession with intent to deliver marijuana and conspiracy, regardless of the giving or withholding of any jury charge on entrapment.

Id. at 651 (Brosky, J., concurring)(emphasis added). The record before this Court does not support Haddock's argument that he relied upon or was induced to testify based on the trial court's initial rulings in his case. In fact, the record directly belies this argument. The "certified statements" of both Petitioner and Attorney Wymard reflect that trial counsel met with Haddock on "numerous occasions" to prepare his trial testimony. (ECF Nos. 18-7 at 17 - 19.) Attorney Wymard's "certified statement" also states that both Haddock and he "decided it was in [Haddock's] best interests to testify." (ECF No. 18-7 at 17). Notably, Attorney Wymard's statement does not reflect that the trial strategy to have his client testify was induced or changed in any matter based on the trial judge's mid-trial initial or ultimate rulings on anticipated jury instructions, but rather Attorney Wymard's statement clearly reflects that from the very outset, the core trial strategy was for Haddock to testify. Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005), cert, denied, 549 U.S. 1110 (2007) ("To overcome the Strickland presumption that, under the circumstances, a challenged action might be considered sound trial strategy, a habeas petitioner must show either that: (1) the suggested strategy (even if sound) was not in fact motivating counsel or, (2) that the actions could never be considered part of a sound strategy.").

         Presumably based on their discussions, Attorney Wymard promised in his opening statement, prior to any evidence being introduced or any jury instruction rulings (tentative, final or otherwise) by the court, that the jury "will hear a defense in this case for sure. You will hear from the defendant. He will take the stand and testify." (Trial Tr. at 41.) Counsel then proceeded to deliver a detailed description of the anticipated trial testimony of various witnesses. He ...


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