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Abreu v. Kauffman

United States District Court, M.D. Pennsylvania

June 1, 2017

MARIO ABREU, Petitioner,
v.
KEVIN KAUFFMAN, et al., Respondents.

          Mehalchick Magistrate Judge.

          MEMORANDUM

          SYLVIA H. RAMBO United States District Judge.

         Before the court is a report and recommendation filed by the magistrate judge in which she recommends that Mario Abreu's (“Abreu”) petition filed pursuant to 28 U.S.C. § 2254 be dismissed. Abreu has filed 31 “objections” to the report and recommendation, and Respondents have specifically responded to each objection. Therefore, the motion is ripe for disposition. For the reasons that follow, the report and recommendation will be adopted.

         I. Background

         Abreu was convicted and found guilty in Northumberland County of five (5) counts of possession with intent to deliver a controlled substance (“PWID”); seven (7) counts of delivery of a controlled substance; six (6) counts of criminal use of a communication facility; one (1) count of criminal conspiracy/PWID; one (1) count of dealing in proceeds of unlawful activity; one (1) count of corrupt organizations; and one (1) count of criminal conspiracy/corrupt organization.

         He took a direct appeal to the Superior Court of Pennsylvania; initiated a proceeding under the Pennsylvania Post Conviction Relief Act (“PCRA”); filed an amended PCRA; and filed an appeal to the Superior Court from the adverse ruling on the PCRA claims. Relief was denied.

         On July 29, 2015, Abreu filed the instant petition (Doc. 1) in which he alleges the following: 1) PCRA counsel was ineffective in failing to argue trial counsel's ineffectiveness in raising challenges on the unconstitutionality of his sentence; 2) the unconstitutionality of evidence admitted at his trial; and 3) the evidence supporting his conviction was insufficient to sustain the verdict beyond a reasonable doubt.

         II. Discussion

         The magistrate judge, after an exhaustive analysis, found that the claims under the instant writ were procedurally defaulted in his state proceeding. However, recognizing that procedural default can be excused upon a showing that an underlying claim may have some merit, Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 1318 (2012), she did a merits analysis of Abreu's claims.

         A. Sentencing Issue

         Abreu relies primarily on Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), which held that sentences increasing the statutory floor based on facts not found by a jury are unconstitutional - the very argument Abreu makes about his sentence. However, the decision in Alleyne came six years after Abreu's sentencing and is not retroactive. United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014). The magistrate judge found that counsel's decision not to pursue a meritless claim does not amount to ineffectiveness. This court agrees.

         B. Violation of Confrontation Clause

         The magistrate judge read the trial transcripts and opined that trial counsel's allowing the use of grand jury testimony to be read rather than have live witnesses testify was a tactical decision and served Abreu's interest. (Doc. 17, p. 20 (citing Werts v. Vaughn, 228 F.3d 178, 190 (3d Cir. 2000).) The magistrate judge noted that defense counsel pointed out gaps in the prosecution's case that would likely have been filled in by live witnesses who would have been subject to direct and cross examination. This decision by counsel does not render counsel's representation ineffective.

         C. ...


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