United States District Court, W.D. Pennsylvania
RAMONE S. COTO, Petitioner,
MIKE WENEROWICZ; KATHLEEN G. KANE Attorney General of the State of Pennsylvania, Respondents.
OPINION AND ORDER
MAUREEN P. KELLY, CHIEF UNITED STATES MAGISTRATE JUDGE
S. Coto (“Petitioner”) is a state prisoner who
has filed a Petition Under 28 U.S.C. § 2254 by a Person
in State Custody (the “Petition”). ECF No. 5.
Petitioner seeks to challenge his convictions for, inter
alia, two counts of second degree murder and burglary.
Petitioner was sentenced to two concurrent terms of life
imprisonment for the second degree murder convictions.
raises three grounds for relief. The first ground is that his
Sixth Amendment right to confront witnesses against him was
violated when the autopsy report was introduced at his trial
but the forensic pathologist who authored the report was not
called as a witness. The second ground is related, in that
Petitioner contends that his trial counsel were ineffective
for not objecting to the introduction of the autopsy report
without the forensic pathologist being called as a witness.
Lastly, in the third ground, Petitioner contends that his
trial counsel were ineffective for failing to object to the
testimony of the witness who identified Petitioner as the
shooter, the witness being a surviving victim of the
shooting. Because Petitioner never presented these grounds to
the state courts, he has procedurally defaulted all three
grounds. Furthermore, because he fails to even argue an
exception applies to his procedural default, he fails to
overcome the procedural default of these grounds, and the
Petition will be dismissed and a Certificate of Appealability
will be denied.
Pennsylvania Superior Court previously summarized the
relevant facts of this matter as follows:
In February, 2005, Kevilin Middleton hosted a birthday party
at his residence at which he arranged an exotic dancing
performance. When the exoctic [sic] dancers arrived, a
dispute arose over the dancers' appearance and Middleton
ultimately refused to pay the dancers. After the distraught
dancers made a frantic phone call, four armed men, including
Coto, arrived at the residence, and commenced shooting.
Middleton sustained multiple gunshot wounds and two others
were killed. Middleton later identified Coto as the
individual who shot him.
Coto was arrested and charged with two counts of murder in
the second degree, criminal attempt, criminal conspiracy,
aggravated assault, and burglary. Coto claimed in a statement
made to police that he never entered the party, but was
intoxicated and had passed out in the back of a van while
waiting to go home when the shooting occurred. Following a
non-jury trial, at which Coto was tried jointly with his
co-defendants, Coto was convicted of two counts of second
degree murder and one count of burglary. On April 18, 2008,
the trial court sentenced Coto to two concurrent terms of
life imprisonment for the murder charges, and a consecutive
three to six year term of imprisonment for burglary. On
appeal, this Court affirmed Coto's judgment of sentence
and the Pennsylvania Supreme Court denied allocatur.
Commonwealth v. Coto, 998 A.2d 1009 (Pa. Super.
2010) (table), appeal denied, 610 Pa. 591, 20 A.3d
Commonwealth v. Coto, No. 24 WDA 2013, 2014 WL
10986805, at *1 (Pa. Super. Ct. Feb. 28, 2014) (footnotes
pro se, Petitioner filed the Petition, ECF No. 5, and a
Memorandum of Law in Support. ECF No. 6. In that Memorandum
of Law, Petitioner raised three issues:
[Ground One] The petitioner['s] Sixth Amendment Rights to
confront and cross- examine the forensic pathologist, Dr.
Shaun Lasham [sic] were completely violated by the
commonwealth's failure to produce his live in court
testimony. Where a constitutional violation is the
circumstances [sic] of the particular case, so undermined the
truth-determining process that no adjudication of guilt or
innocence could have taken place.
Id. at 1.
[Ground 2] Trial counsel Richard J. Narvin Esquire and Frank
Walker, Esquire Both Rendered ineffective assistance for
Their failure to challenge and/or object To the commonwealth
introduction of Dr. Shaun Ladham autopsy report and Autopsy
protocol without requiring that Said testimony be given so as
to afford Petitioner with ...