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Morris v. Commonwealth

United States District Court, E.D. Pennsylvania

January 24, 2017



          C. DARNELL JONES, II J.

         I. Introduction

         Petitioner Ernest Morris comes before this Court seeking habeas relief from his State Court conviction on First Degree Murder and other related charges. Pursuant to Local Civil Rule 72.1.IV(c), the matter was referred to United States Magistrate Judge Richard A. Lloret for a Report and Recommendation (“R&R”). Judge Lloret issued an R&R denying Petitioner's request for relief and Petitioner filed objections thereto, which are presently pending before this Court. For the reasons set forth below, Petitioner's objections shall be overruled.

         II. Background

         On May 24, 2005, Petitioner was charged with first, second, and third degree murder, murder of an unborn child, robbery, and other related offenses arising from the deaths of Shawne Mims, Jennifer Pennington and Ms. Pennington's unborn child. (ECF Nos. 9-208, 9-210.)[1] On August 12, 2005, the Commonwealth filed a Notice of Intent to Seek Death Penalty. (ECF No 9- 209.) Petitioner's first trial commenced on January 3, 2006 in the Montgomery County Court of Common Pleas and was presided over by the Honorable Richard J. Hodgson. (Trial Tr. 1, Jan. 3, 2006, ECF No. 9-189.) After Judge Hodgson determined that then Assistant District Attorney Kevin Steele committed a Bruton violation during his opening statement, the court granted the defense's request for mistrial. (Trial Tr. 33:25-34:2, Jan. 13, 2006, ECF No. 9-190.) After unsuccessfully arguing that double jeopardy precluded retrial, Petitioner, along with his co-defendants, appealed to the Pennsylvania Superior Court. (Trial Tr. 3:18-22, Jan. 17, 2006, ECF No. 9-191; ECF No. 9-195.)

         On January 7, 2008, the Superior Court denied the appeal and remanded the case back to the trial court. (Commonwealth v. Murray, et al., No. 5182-05 (Pa. Super. 2008), ECF No. 9-177.) Although Co-defendants Jones and Murray proceeded to seek allocatur from the Pennsylvania Supreme Court, Petitioner's trial counsel, Mr. Todd Edward Henry, did not do so but instead, sought leave to withdraw from the case. (ECF No. 9-178.) Twelve days later, Petitioner's family retained Gregory J. Pagano, Esquire, for purposes of filing an appeal on behalf of Petitioner. (ECF No. 9-174.) After discovering the time within which to seek allocatur had lapsed, Attorney Pagano filed a nunc pro tunc petition for allowance of appeal with the Supreme Court the next day. (Trial Tr., 5:16-20, April 29, 2008, ECF No. 9-167.) Following a discussion with Petitioner on March 14, 2008, Mr. Pagano withdrew the petition. (ECF No. 9-176.)

         After ordering that trial would commence on May 1, 2008, the matter was re-assigned from Judge Hodgson to the Honorable Steven T. O'Neill. (ECF No. 9-175.) On April 29, 2008, Judge O'Neill held a pre-trial conference and with the agreement of Petitioner, granted Mr. Henry's previously-filed motion to Petition for Withdrawal. (ECF No. 9-167 at 59:25-60:6; ECF No. 9-171.) After engaging in a colloquy with the court regarding whether Petitioner wanted to proceed to trial or re-file a nunc pro tunc petition for allowance of appeal with the Pennsylvania Supreme Court, Petitioner agreed to have Mr. Pagano re-file the petition. (ECF No. 9-167 at 67:4-68:2.) Mr. Pagano did so and on May 24, 2009, the Pennsylvania Supreme Court denied the petition. (ECF No. 9-152.) Mr. Pagano was permitted to withdraw from the case and on June 1, 2009 and the court appointed John I. McMahon, Jr., Esquire, to serve as trial counsel for Petitioner. (ECF No. 9-151 at 6:4-18; ECF No. 9-157.)

         On June 4, 2009, Judge O'Neill scheduled the trial for August 24, 2009. (ECF No. 9-150.) The Commonwealth filed an Amended Notice of Intent to Seek Death Penalty on June 12, 2009 and on August 21, 2009, Mr. McMahon filed a Motion to Dismiss on the grounds of an alleged Speedy Trial violation. (ECF Nos. 9-147, 9-154.) Judge O'Neill denied the motion and Petitioner's trial began three weeks later. (ECF No. 9-124; ECF No. 9-135.)

         On October 14, 2009, Petitioner was convicted of criminal conspiracy, first degree murder, second degree murder, first degree murder of an unborn child, kidnapping, burglary, false imprisonment, possession of an instrument of crime, and possession of a weapon. (Trial Tr. 15:12-18:25, Oct. 14, 2009, ECF No. 9-109.) During the penalty phase, the jury was unable to reach unanimous decision on whether or not to impose a sentence of death, therefore Petitioner was ultimately sentenced by Judge O'Neill to three (3) consecutive terms of life imprisonment without parole, plus a consecutive term of 43 to 90 years. (Sentencing 4:19-22, 52:6-54:22, Dec. 18, 2009, ECF No. 9-108.)

         On January 19, 2010, Petitioner appealed his conviction, claiming the trial court erred in denying Petitioner's Speedy Trial motion. (ECF Nos. 9-110, 9-116.) On November 1, 2010, the Superior Court issued an opinion affirming judgment. (Commonwealth v. Morris, No. 243 EDA 2010 (Pa. Super. Nov. 1, 2010), ECF No. 9-99.)

         On December 30, 2010, Petitioner filed a pro se Petition under Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (“PCRA”), seeking the reinstatement of his direct appeal rights so that he could file a Petition For Allowance of Appeal with the Supreme Court of Pennsylvania. (ECF No. 9-97.) After the appointment of new counsel, the trial court granted the requested relief. (ECF No. 9-74.) On December 29, 2011, the Supreme Court denied allocatur. (ECF No. 9-65.)

         On July 11, 2012, Petitioner filed a second PCRA petition. (ECF No. 9-66.) The PCRA court appointed Attorney Karen Lee DeMerlis to represent Petitioner throughout the process. (ECF No. 9-56.) On May 9, 2013, Ms. DeMerlis filed a No-Merit brief pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) and sought leave to withdraw. (ECF No. 9-41.) On July 21, 2013, the PCRA court granted Ms. DeMerlis' request to withdraw as counsel and issued a Notice of Intent to Dismiss Petitioner's second PCRA petition without an evidentiary hearing, pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure. (ECF No. 9-31.) Petitioner filed objections and on August 20, 2013, the PCRA court dismissed his second PCRA petition without an evidentiary hearing. (ECF No. 9-28.) Petitioner appealed this ruling, raising thirty-eight (38) issues for consideration by the Superior Court. (ECF No. 9-19.)

         The issues presented on collateral appeal included prosecutorial misconduct, ineffective assistance of counsel, improper search and seizure of cell phone evidence, Mr. Pagano's lack of death penalty qualification, and various allegations of Constitutional rights violations. (Commonwealth v. Morris, No. 2564 EDA 2013, 6-11 (Pa. Super. Oct. 10, 2014) ECF No. 9-3 at 6-11.)

         Upon review, the Pennsylvania Superior Court held that most of the thirty-eight issues raised by Petitioner had not been preserved for appellate review, noting:

A prior panel of this Court decided [the issues of prosecutorial misconduct and double jeopardy] on appeal in a memorandum decision dated January 7, 2008, concluding that the trial court did not err in denying [Petitioner's] motion to bar re-trial on double jeopardy grounds. Commonwealth v. Jones, Morris & Murray, 138, 165, 211 EDA 2006, at 17 (Pa. Super. January 7, 2008) (unpublished memorandum). In addition, we find that [most issues raised by Petitioner] are all waived, as they could have been (but were not) raised on direct appeal, and [Petitioner] has not alleged that appointed counsel's decision to forego these issues on direct appeal “could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S.A. § 9543(a)(4).

(ECF No. 9-3 at 12-13) (footnotes omitted).

         However, the appellate court did in fact systematically evaluate each ineffectiveness claim leveled by Petitioner and found each to be lacking merit. (ECF No. 9-3 at 13-24.) Because Petitioner could identify no meritorious issue which his attorney failed to pursue on direct appeal, said court concluded there were no legitimate ineffective assistance of counsel claims and affirmed the Order of the PCRA court. (ECF No. 9-3 at 23-24.) Petitioner sought allocator, which was denied by the Pennsylvania Supreme Court on February 4, 2015. (ECF No. 9-2.)

         On March 18, 2015, Petitioner filed the instant habeas corpus petition. (ECF No. 1-1.) The matter was referred to United States Magistrate Judge Richard A Lloret for a Report and Recommendation (“R&R”), which he issued on June 29, 2016. (ECF No. 23.) Petitioner filed Objections thereto and the Commonwealth has responded to same. (ECF Nos. 25-2, 32.) Petitioner subsequently filed a Traverse and Notice to the court regarding supplemental authority. (ECF Nos. 33, 34.) The matter is now ripe for this Court's consideration.

         III. Standards of Review

         A. Objections to Report and Recommendation

         When objections are filed to the R&R of a Magistrate Judge, the District Court must review de novo those portions of the R&R to which objection is made. 28 U.S.C. § 636(b)(1). If there are no objections to the R&R, or when review those portions of the R&R to which no objections are directed, the court should, as a matter of good practice, “satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72(b), advisory committee notes; see also Oldrati v. Apfel, 33 F.Supp.2d 397, 399 (E.D. Pa. 1998) (“In the absence of a timely objection… this Court will review [the Magistrate's] Report and Recommendation for ‘clear error.''” (citations omitted).

         B. Exhaustion and Procedural Default

         The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §§ 2241-66 (“AEDPA”) deals with the right of all persons in state custody, or in federal custody, to file a petition in a federal court seeking the issuance of a writ of habeas corpus. In the context of a prisoner in state custody, if such a writ of habeas corpus is issued by a federal court, the prisoner will be released from such state custody on the grounds that certain rights accruing to that prisoner pursuant to the United States Constitution have been violated; habeas corpus motions pursuant to AEDPA are the only possible means of obtaining this type of relief from state custody. Benchoff v. Colleran, 404 F.3d 812 (3d Cir. 2005); Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001).

         By means of the AEDPA, Congress also created a series of intentionally restrictive gate-keeping conditions which must be satisfied in order for a prisoner to prevail on a habeas petition. The strict AEDPA gate-keeping procedures were enacted by Congress in order to support the policy of creating finality with respect to state and federal criminal prosecutions. One such gate-keeping procedure is the requirement of exhaustion. “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State Court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the state….” 28 U.S.C. 2254(b)(1); see also Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010) (“[A] district court ordinarily cannot grant a petition for a writ of habeas corpus arising from a petitioner's custody under a State Court judgment unless the petitioner first has exhausted his available remedies in State Court.”) (citing 28 U.S.C. § 2254(b)(1)). Petitioner must have “fairly presented” the federal habeas claims to the State Courts. Duncan v. Henry, 513 U.S. 364, 365 (1995); Evans v. Court of Common Pleas, Delaware County, Penn., 959 F.2d 1227, 1231 (3d Cir. 1992) (citations omitted). “To ‘fairly present' a claim, a petitioner must present a federal claim's factual and legal substance to the State Courts in a manner that puts them on notice that a federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). A petitioner in Pennsylvania must appeal such claims to the Pennsylvania Superior Court. Whitney v. Horn, 280 F.3d 240, 250 n.10 (3d Cir. 2002). Petitioner carries the burden of proving exhaustion. Coady, 251 F.3d at 488 (citing Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993)).

         Where a claim was not exhausted in State Court, it is said to be procedurally defaulted. To bring a procedurally defaulted claim in federal proceedings, Petitioner must demonstrate either: (a) cause for the default and actual prejudice arising from the alleged violation of federal law; or that (b) failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish the “cause” requirement, Petitioner must “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). To establish “prejudice, ” petitioner must “prove ‘not merely that the errors at… trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 193 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Second, to establish a fundamental miscarriage of justice, Petitioner must demonstrate actual innocence. Schlup v. Delo, 513 U.S. 298, 324-32 (1995).

         C. Merits Review

         Where Petitioner's claims were adjudicated on the merits in State Court, the AEDPA deference standard applies to this Court's review of the merits determination. Rolan v. Coleman, 680 F.3d 311, 321 (3d Cir. 2012). The AEDPA limits federal habeas review of State Court judgments. Werts, 228 F.3d at 195. A petition for habeas corpus may only be granted if: (1) the State Court's adjudication of the claim “resulted in a decision contrary to, or involved in an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or, if (2) the adjudication resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). When a claim has been adjudicated on the merits in State Court, federal habeas review is limited to the record before the State Court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398-99 (2011).

         D. Ineffective Assistance of Counsel

         The Sixth Amendment right to counsel “is the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To prove that counsel was ineffective, Petitioner must establish that: (1) counsel's performance was constitutionally deficient; and, (2) that deficiency prejudiced Petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance “requires showing that counsel made errors so serious that he or she was not functioning as the ‘counsel guaranteed to the defendant by the Sixth Amendment.'” Id. In essence, Petitioner must show that “counsel's representations fell below an objective standard of reasonableness” under prevailing professional norms. Id. at 688. Petitioner must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 690 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Prejudice requires showing that counsel's errors were serious enough to deprive the defendant of a fair trial. Id. at 687.

         IV. Discussion

         A. Petitioner's Ineffective Assistance of Counsel Claims Are Meritless

         Petitioner objects to Judge Lloret's determination that Petitioner's prior counsel was not ineffective for failing to raise every claim Petitioner allegedly wished to pursue on appeal. (ECF No. 25-2 at 2.) Specifically, Petitioner asserts that every claim deemed waived by the Superior Court was one he wanted his attorney to raise on direct appeal. (ECF No. 25-2 at 3.) Petitioner further objects to the Magistrate's findings that the PCRA court's rulings on ineffective assistance of counsel were neither contrary to, nor an unreasonable application of, Strickland. (ECF No. 25-2 at 9.)

         When Strickland and § 2254(d) are applied “in tandem, ” their own “highly deferential” standards become “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotations and citations omitted). As a result, when reviewing a claim for ineffective assistance of counsel under the AEDPA, “federal courts are to afford both the State Court and the defense attorney the benefit of the doubt.” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (internal quotations and citations omitted); see also Saranchak v. Sec'y, Pa. Dep't of Corr., 802 F.3d 579, 593 (3d Cir. 2015) (“[W]e apply a ‘doubly deferential standard, ' both as to whether counsel's conduct was reasonable as well as to the Pennsylvania Supreme Court's treatment of the issue.”) (citing Breakiron v. Horn, 642 F.3d 126, 141-142 (3d Cir. 2011)), cert. denied, 136 S.Ct. 1494, 194 L.Ed.2d 589, 2016 U.S. LEXIS 2234, 84 U.S.L.W. 3544 (U.S. 2016).

         In this case, the Superior Court noted that the following issues as raised by Petitioner constituted ...

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