United States District Court, E.D. Pennsylvania
DARNELL JONES, II J.
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.
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.) 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
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.)
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.
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.)
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.)
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.)
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.)
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.)
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.)
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).
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.
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
Standards of Review
Objections to Report and Recommendation
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).
Exhaustion and Procedural Default
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).
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.
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).
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
Ineffective Assistance of Counsel
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.
Petitioner's Ineffective Assistance of Counsel Claims Are
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.)
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).
case, the Superior Court noted that the following issues as
raised by Petitioner constituted ...