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Gray v. Delbiaso

United States District Court, E.D. Pennsylvania

June 30, 2017

THOMAS GRAY Petitioner




         Petitioner Thomas Gray (“Petitioner”), a Pennsylvania state prisoner, filed a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he essentially asserts claims of: ineffectiveness of trial counsel for failing to present forensic expert testimony; violations of his due process rights by the trial judge committed when applying a presumption of malice inference when using a deadly weapon; and ineffectiveness of appellate counsel for failing to raise this due process violation on direct appeal. [ECF 1]. In accordance with Title 28 U.S.C § 636(b), Rule 8 of the Rules Governing Section 2254 Cases, and Local Civil Rule 72.1.IV(c), the habeas petition was referred to United States Magistrate Judge Carol Sandra Moore Wells (the “Magistrate Judge” or “Magistrate Judge Wells”) for a Report and Recommendation (“R&R”). [ECF 2]. On December 18, 2015, Magistrate Judge Wells issued a well-reasoned R&R, which addressed Petitioner‘s claims, and recommended that the habeas petition be denied. [ECF 13]. Thereafter, Petitioner filed timely objections to the R&R, [ECF 20]. This matter is, therefore, ripe for a de novo review and determination of the specific objections to the R&R.

         After a thorough and independent de novo review of the contested portions of the R&R, and the state court record, for the reasons stated herein, Petitioner‘s objections are overruled, the R&R is approved and adopted, the petition for a writ of habeas corpus is denied.


         On September 7, 2005, following a bench trial before the Honorable M. Teresa Sarmina in the Philadelphia County Court of Common Pleas, Petitioner was convicted of murder in the third degree, carrying a firearm without a license, and possession of an instrument of crime. The facts and procedural history underlying Petitioner‘s conviction were summarized by the Superior Court, adequately quoted in the R&R and, therefore, will not be recited in their entirety except when necessary to address Petitioner‘s objections. Pertinent to Petitioner‘s objections are the facts leading to the altercation between Petitioner and Jerold Foushee that resulted in Foushee‘s death; to wit:

On April 17, 2004, believing that [Petitioner] would be gone for the night, at around 10:00 p.m., Robinson called Foushee and invited him to her home to watch a movie. Foushee arrived around 2:00a.m., at Robinson‘s home; the pair ate and watched television together in Robinson‘s bedroom. While sitting on the bed near the bedroom window, Robinson heard [Petitioner] speaking with another person outside of her house. Shortly thereafter, [Petitioner] called Robinson on her phone; she did not pick up. Eventually, the door to the apartment building opened and [Petitioner] then knocked on Robinson‘s door. Again, Robinson did not answer. Using a key that Robinson had not given to him, [Petitioner] opened the door to the apartment. As [Petitioner] entered the apartment, Robinson was lifting herself from her bed and pulling pants on over her pajamas. [Petitioner] walked straight to Robinson‘s bedroom, where he found Foushee seated, fully clothed, on Robinson‘s bed; [Petitioner] began yelling and cursing at Foushee. [Petitioner] pulled out a gun and pointed it at Foushee‘s head. Robinson got between [Petitioner] and Foushee and pleaded, “Don‘t do this. It‘s not right. Think of your daughter.” After [Petitioner] brandished his gun, Foushee stayed seated on the bed and told [Petitioner], “I don‘t want any trouble.” Foushee did not threaten or taunt [Petitioner]. Foushee stood up from the bed and, as he walked towards the door, the two men began to fight. [Petitioner] and Foushee grappled with one another in the doorway to the bedroom; as they were entangled, they moved into the hallway. During the fight, [Petitioner] continued to hold his gun in his hand. While they were out of Robinson‘s sight, she heard a single gunshot and immediately thereafter saw [Petitioner] sprint out of the apartment. Robinson called for help; the paramedics came and took Foushee to Einstein Hospital, where he was pronounced dead at 3:50 a.m.

         Procedurally, following his conviction, Petitioner was sentenced to seventeen to forty years of confinement for the third-degree murder conviction, a consecutive sentence of one to five years for carrying a firearm without a license, and a concurrent term of nine months to five years on the possession of an instrument of a crime conviction. On October 18, 2005, Petitioner filed post-sentence motions, which were denied by operation of law on February 21, 2006. Petitioner filed a timely notice of appeal and, on October 29, 2007, the Superior Court affirmed his convictions, but vacated the sentence and remanded the matter for resentencing.

         On June 18, 2013, Petitioner filed a timely appeal to the Pennsylvania Superior Court. On July 9, 2014, said Court affirmed the denial of Petitioner‘s PCRA petition. In the opinion, the Court summarized Petitioner‘s direct and collateral appeals history as follows:

On January 30, 2008, [Petitioner] filed a Petition for Allowance of Appeal, which [the Pennsylvania] Supreme Court denied on August 22, 2008. On December 2, 2008, [the trial court] . . . [re]sentenced [Petitioner] to a cumulative term of eighteen to forty years of confinement, to be followed by ten years of reporting probation. On December 11, 2008, Petitioner filed post-sentence motions, which [the trial court] denied on December 30, 2008. [Petitioner] filed a timely notice of appeal and, on June 25, 2010, the Superior Court affirmed [Petitioner‘s] judgments of sentence. Petitioner filed for allocator, which [the Pennsylvania] Supreme Court denied on May 27, 2011. Accordingly, [Petitioner‘s] judgment of sentence became final on August 25, 2011.
On July 9, 2012, Petitioner filed a timely counseled petition [for collateral relief pursuant to the Post Conviction Relief Act (the “PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-46].[1] The Commonwealth filed a [m]otion to [d]ismiss, to which Petitioner responded on February 20, 2013. After considering the pleadings and conducting an independent review, on April 26, 2013, [the trial court] sent Petitioner notice pursuant to [Pennsylvania Rule of Criminal Procedure 907 ("907 Notice")] of its intent to deny and dismiss his petition. Petitioner did not respond to [the trial court‘s] 907 Notice. On May 24, 2013, [the trial court] denied and dismissed [Petitioner‘s PCRA] Petition.

See Commonwealth v. Gray, No. 1776 EDA 2013, at 1-4 (Pa. Super. Ct. July 9, 2014) (quoting Commonwealth v. Gray, No. 1776 EDA 2013, at 1-3 (Phila. Cnty. Ct. of Cm. Pl. Nov. 27, 2013)).

         On March 31, 2015, Petitioner filed the underlying counseled habeas petition pursuant to 28 U.S.C. §2254.


         Generally, to obtain relief on a writ of habeas corpus, a petitioner must allege, inter alia, that his/her confinement or custody is the result of a violation of the United States Constitution or laws of the United States.[2] The Antiterrorism and Effective Death Penalty Act ("AEDPA") amended the standards for reviewing state court judgments raised in federal habeas corpus petitions filed under 28 U.S.C. §2254. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). AEDPA increased the deference federal courts must give to the factual findings and legal determinations of the state courts. Id. at 196. In accordance with §2254(d), a habeas corpus petition may only be granted if the state court‘s adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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).

         To establish that the state court decision was "contrary to" federal law, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court‘s; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court may only find a state court decision to be an "unreasonable application" of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id. at 890. Habeas relief may not be granted under the "unreasonable application" clause unless a state court‘s application of clearly established federal law was objectively unreasonable; an incorrect application of federal law alone is not sufficient to warrant habeas relief. See Id. at 891; Lockyer v. Andrade,538 U.S. 63, 75 (2003); see also Werts, 228 F.3d at 197. Thus, the federal court must ...

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