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Coto v. Wenerowicz

United States District Court, W.D. Pennsylvania

June 8, 2017

RAMONE S. COTO, Petitioner,
v.
MIKE WENEROWICZ; KATHLEEN G. KANE Attorney General of the State of Pennsylvania, Respondents.

          OPINION AND ORDER

          MAUREEN P. KELLY, CHIEF UNITED STATES MAGISTRATE JUDGE

         Ramone 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.

         Petitioner 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.

         I. FACTUAL BACKGROUND

         The 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 483 (2011).

Commonwealth v. Coto, No. 24 WDA 2013, 2014 WL 10986805, at *1 (Pa. Super. Ct. Feb. 28, 2014) (footnotes omitted).

         II. PROCEDURAL HISTORY

         Proceeding 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 ...

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