United States District Court, M.D. Pennsylvania
DOUGLAS B. PUGH, Petitioner
MICHAEL D. OVERMYER, Respondent
William J. Nealon United States District Judge.
Douglas B. Pugh, a state prisoner currently confined at the
State Correctional Institution-Forest, Marienville,
Pennsylvania (“SCI-Forest”), initiated the
above-captioned action by filing a pro se Petition
for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc.
1). On February 24, 2015, the Court issued an Order granting
Petitioner leave to withdraw his petition without prejudice
to file an amended petition raising all grounds for relief
from his conviction. (Doc. 3). On April 14, 2015, Petitioner
filed an amended petition. (Doc. 7). On September 3, 2015,
Respondent filed a response to the amended petition. (Doc.
31). On September 15, 2015, Petitioner filed a traverse.
(Doc. 32). For the reasons that follow, the petition will be
“was arrested during a police search of 23A North Fifth
Street, Stroudsburg, PA, on December 3, 2009.”
Commonwealth v. Pugh, No. 3134 EDA 2013, at p. 1
(Pa. Super. Ct. Aug. 19, 2014). During the search Petitioner
was observed pushing “an air conditioning unit out of a
[second] floor window.” Pugh, No. 3134 EDA
2013, at p. 1 (alteration in original). He was also seen
“throwing ‘rocks' of crack cocaine
from” the same window. Id. “Police
entered the residence, and found [Petitioner] in a back
bedroom with Ms. Aracelis Gonzalez.” Id.
“Crack cocaine, three [(3)] digital scales,
approximately $1300 in cash, and numerous plastic bags, some
with corners cut off, were found in the bedroom where”
Petitioner was located by police. Id. at pp. 1-2.
Petitioner was arrested, “[a] loaded .40 caliber
handgun with the serial numbers removed was found inside a
drawer of a night stand next to the bed.” Id.
“At trial, a Mr. Jonathon Moss (Moss) testified that
the handgun was his, but that he had left the gun in another
area of the apartment in October 2009.” Id. at
p. 2. “At that time, the magazine was not inserted in
the gun and it was not loaded, ” and Moss had not
returned since October 2009. Id.
November 8, 2010, after a jury trial, Petitioner was
convicted of possession with intent to deliver
(“PWID”) cocaine, criminal conspiracy, possession
of cocaine, possession of drug paraphernalia, possession of a
firearm with manufacturer's number obliterated, and
endangering the welfare of a child. See Commonwealth v.
Pugh, No. CP-45-CR-2090-2009; (Doc. 36-1). On January
25, 2011, Petitioner was sentenced to an aggregate state
prison sentence of not less than seventy-two (72) months to
no more than one hundred and forty-four (144) months and to
pay restitution. Pugh, No. CP-45-CR-2090-2009. On
February 1, 2011, Petitioner filed a post-sentence motion
with the trial court. Commonwealth v. Pugh, No. 1165
EDA 2011, at p. 3; (Doc. 31-19, p. 4). On March 28, 2011, the
trial court denied Petitioner's post-sentence motion.
Pugh, No. CP-45-CR-2090-2009; Pugh, No.
1165 EDA 2011, at p. 3; (Doc. 31-19, p. 4).
April 27, 2011, a notice of appeal was filed with the trial
court which stated that Petitioner had filed an appeal with
the Pennsylvania Superior Court. Pugh, No.
CP-45-CR-2090-2009; Pugh, No. 1165 EDA 2011, at p.
4; (Doc. 31-19, p. 5). On January 6, 2012, Petitioner's
sentence was affirmed by the Pennsylvania Superior Court.
Pugh, No. 1165 EDA 2011.
December 3, 2012, Petitioner filed a timely petition for
post-collateral relief with the sentencing court.
Pugh, No. 3134 EDA 2013, at p. 2. On October 16,
2013, the Court of Common Pleas for Monroe County denied
Petitioner's PCRA petition. Id. On November 8,
2013, Petitioner filed a notice of appeal with the PCRA
court. Id. On August 19, 2014, the Pennsylvania
Superior Court affirmed the PCRA court's denial of
Petitioner's PCRA petition. See Id. at p. 9. On
September 17, 2014, Petitioner appealed to the Pennsylvania
Supreme Court. Pugh, No. 3134 EDA 2013; Petition for
Allowance of Appeal, Commonwealth v. Pugh, No. 730
MAL 2014 (Pa. filed Sept. 17, 2014). On December 11, 2014,
the Pennsylvania Supreme Court denied Petitioner's
petition for allowance of appeal. Pugh, No. 730 MAL
December 26, 2014, Petitioner filed a second PCRA petition in
the Court of Common Pleas for Monroe County. Pugh,
No. CP-45-CR-2090-2009. On February 24, 2015, Petitioner
filed an amended second PCRA petition. Id. The
Commonwealth of Pennsylvania filed its answer to the amended
second PCRA petition on March 20, 2015. Id. On May
4, 2015, the Monroe County Court of Common Pleas dismissed
Petitioner's amended second PCRA petition. Id.
On June 4, 2015, Petitioner filed a notice of appeal of the
May 4, 2015, order dismissing his amended second PCRA
petition. (Doc. 16-6, p. 2).
2, 2015, the Pennsylvania Superior Court issued an order
directing Petitioner to show cause why his appeal should not
be quashed as untimely filed on June 4, 2015, from the denial
of the petition for post-conviction relief on May 4, 2015.
Commonwealth v. Pugh, No. 1623 EDA 2015 (Pa. Super.
Ct. filed July 17, 2015). On July 17, 2015, Petitioner filed
a praecipe for discontinuance with the Pennsylvania Superior
Court. Praecipe for Discontinuance,
Pugh, No. 1623 EDA 2015 (Pa. Super. Ct. filed July
STANDARD OF REVIEW
district court is authorized to ‘entertain an
application for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United
States.'” Parish v. Wetzel, 2015 U.S.
Dist. LEXIS 68779, at *4 (M.D. Pa. May 28, 2015) (Conner, J.)
(quoting 28 U.S.C. § 2254(a)). “A petition for
writ of habeas corpus is the exclusive federal remedy for a
state prisoner challenging the very fact or duration of his
or her confinement.” Id. (citing Preiser
v. Rodriguez, 411 U.S. 475, 499 (1973)).
petitioner filing for relief under the federal Antiterrorism
and Effective Death Penalty Act of 1996 (‘AEDPA'),
must generally comply with the exhaustion requirement of 28
U.S.C. § 2254(b)(1)(A), before a federal court can
consider the merits of his habeas corpus petition.”
Id. (citing Baldwin v. Reese, 541 U.S. 27,
29 (2004)). “An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State,
within the meaning of this section, if he has the right under
the law of the State to raise, by any available procedure,
the question presented.” 28 U.S.C. § 2254(c);
see also Rose v. Lundy, 455 U.S. 509, 518-19 (1982)
(finding that before a federal court can adjudicate claims
under habeas corpus, interests of comity and federalism
dictate that the state courts must have the first opportunity
to decide the petitioner's claims). The exhaustion
requirement is rooted in considerations of comity; the
statute is designed to protect the role of the state court in
enforcement of federal law and to prevent disruption of state
judicial proceedings. Rose, 455 U.S. at 515, 518-19;
Castille v. Peoples, 489 U.S. 346, 349 (1989).
prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526,
U.S. 838, 845 (1999); see Walker v. Vaughn, 53 F.3d
609, 615 (3d Cir. 1995) (quoting Keeney v.
Tamayo-Reyes, 504 U.S. 1, 10 (1992) (“Just as the
State must afford the petitioner a full and fair hearing on
his federal claim, so must the petitioner afford the State a
full and fair opportunity to address and resolve the claim on
the merits.”)). “A habeas petitioner retains the
burden of showing that all of the claims alleged have been
‘fairly presented' to the state courts.”
Englert v. PA. State Attorney Gen., 2015 U.S. Dist.
LEXIS 67546, at *15 (M.D. Pa. May 26, 2015) (Caputo, J.).
“To ‘fairly present' a claim, a petitioner
must present its ‘factual and legal substance to the
state courts in a manner that puts them on notice that a
federal claim is being asserted.'” Id.
(quoting Rainey v. Varner, 603 F.3d 189, 198 (3d
Cir. 2010)). “A federal habeas petitioner ‘shall
not be deemed to have exhausted the remedies available in the
courts of the State . . . if he has the right under the law
of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c). An
exception to the exhaustion rule exists if “there is an
absence of available State corrective process” or
“circumstances exist that render such process
ineffective to protect the rights of the applicant.”
Id. at § 2254(b)(1)(B)(i), (ii).
addition, AEDPA endows a state tribunal's findings of
fact with a ‘presumption of correctness, ' and this
presumption extends ‘to the factual determinations of
state trial and appellate courts.'” Williams v.
Beard, 637 F.3d 195, 204 (3d Cir. 2011) (quoting
Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001)).
“To overcome the presumption, a habeas petitioner must
proffer clear and convincing evidence to show that a factual
determination is ‘objectively unreasonable in light of
the evidence presented in the state-court
proceeding.'” Id. (quoting Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003)).
2254 of Title 28 in the United States Code “gives
federal courts jurisdiction to entertain habeas corpus
petitions from individuals who are ‘in custody'
pursuant to a state court judgment.” Obado v. New
Jersey, 328 F.3d 716, 717 (3d Cir. 2003) (citing 28
U.S.C. § 2254(a)). “While the ‘in
custody' requirement is liberally construed for purposes
of habeas corpus, for a federal court to have jurisdiction, a
petitioner must be in custody under the conviction he is
attacking at the time the habeas petition is filed.”
Id. (citing Maleng v. Cook, 490 U.S. 488,
490-92 (1989)). “The meaning of ‘custody' has
been broadened so that it is no longer limited in the §
2254(a) context to physical custody alone but also applies
where individuals are subject both to ‘significant
restraints on liberty . . . which were not shared by the
public generally, ' along with ‘some type of
continuing governmental supervision.'” Id.
(quoting Barry v. Bergen Cnty. Probation Dep't,
128 F.3d 152, 160 (3d Cir. 1997)). “In making a custody
determination, a court looks to the date that the habeas
petition was filed.” Barry, 128 F.3d at 159
(citing Carafas v. LaVallee, 391 U.S. 234, 238-40
United States Supreme Court has “never held, however,
that a habeas petitioner may be ‘in custody' under
a conviction when the sentence imposed for that conviction
has fully expired at the time his petition is
filed.” Maleng, 490 U.S. at 491 (emphasis in
original). “Although collateral consequences of a
conviction may prevent a case from becoming moot if the
petitioner is released form custody after he filed his
petition, ‘once the sentence imposed for a conviction
has completely expired, the collateral consequences of that
conviction are not themselves sufficient to render an
individual “in custody” for the purposes of a
habeas attack upon it.'” Tolman v. Commonwealth
of Pennsylvania, 2016 U.S. Dist. LEXIS 52223, at *4
(W.D. Pa. Apr. 18, 2016) (quoting Maleng, 490 U.S.
at 492). A petitioner “is not in custody on a
concurrent sentence that has expired.” Federal Habeas
Manual § 1:13 (May 2016); see Bussie v. New
Jersey, 2014 U.S. Dist. LEXIS 151441, at *13-14 (D.N.J.
Oct. 24, 2014) (finding that the petitioner's concurrent
sentences that “have long expired” do not satisfy
the “in custody” requirement); Hatcher v.
Ricci, 2010 U.S. Dist. LEXIS 76608, at *33-34 n.9
(D.N.J. July 29, 2010); see generally United States v.
Ross, 801 F.3d 374, 382-83 (3d Cir. 2015).
those section 2254 claims to which a court has jurisdiction
to review on the merits, “[u]nder the [AEDPA], federal
courts reviewing a state prisoner's application for a
writ of habeas corpus may not grant relief ‘with
respect to any claim that was adjudicated on the merits in
the State court proceedings' unless 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.'” Martz v. Mooney, 2016 U.S.
Dist. LEXIS 59078, at *12-13 (M.D. Pa. May 4, 2016) (Munley,
J.) (quoting 28 U.S.C. § 2254(d)). “[B]ecause the
purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the
state criminal justice systems, and not as a means of error
correction, ” Greene v. Fisher, 565 U.S. 34,
43 (2011), “[t]his is a difficult to meet and highly
deferential standard . . . which demands that state-court
decisions be given the benefit of the doubt.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011). In
particular, “[a] decision is ‘contrary to'
federal law if ‘the state court applies a rule that
contradicts the governing law set forth in [Supreme Court]
cases' or ‘if the state court confronts a set of
facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result
different from [Supreme Court] precedent.'”
Martz, 2016 U.S. Dist. LEXIS 59078, at *13
(alterations in original) (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000)). “A decision
is an ‘unreasonable application' of federal law if
the state court identified the correct governing legal rule
but applied the rule to the facts of the case in an
objectively unreasonable manner.” Martz, 2016
U.S. Dist. LEXIS 59078, at *13-14 (citing Renico v.
Lett, 559 U.S. 766, 773 (2010)). “A decision is
based on an ‘unreasonable determination of the
facts' if the state court's factual findings are
objectively unreasonable in light of the evidence presented
to the state court.” Id. at *14 (citing
Miller-El, 537 U.S. at 340). Said differently, a
“decision involves an unreasonable application of
clearly established law where a state prisoner shows
‘that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.'” Saranchak v. Sec'y Pa.
Dep't of Corr., 802 F.3d 579, 589 (3d Cir. 2015)
(quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)). “Thus, a state court's application must be
‘objectively unreasonable, not merely wrong; even clear
error will not suffice.'” Id. (quoting
White v. Woodall, 134 S.Ct. 1697, 1702 (2014)).
“[t]he State court's factual findings are
‘presumed to be correct, ' and [Petitioner] bears
‘the burden of rebutting the presumption of correctness
by clear and convincing evidence.'” Id.
(quoting 28 U.S.C. § 2254(e)(1)). “But ‘even
if a state court's individual factual determinations are
overturned, what factual findings remain to support the state
court decision must still be weighed under the overarching
standard of section 2254(d)(2).'” Id.
(quoting Lambert v. Blackwell, 387 F.3d 210, 235-36
(3d Cir. 2004)).
claims that his petition should be granted because his right
to due process and right to counsel were violated.
Specifically, he claims that his due process right was
violated because the evidence presented at trial was
insufficient to support his convictions, and that his right
to counsel was violated because he received ineffective
assistance. (Doc. 7). These claims will be addressed
Sufficiency of the Evidence
claims that his right to due process was violated because the
evidence presented at trial was insufficient to support his
convictions. Specifically, he argues that “in the
context of showing that the state court 
‘confront[ed] facts that are materially
indistinguishable from” Jackson v. Virginia,
443 U.S. 307, 318-19 (1979). (Doc. 7, p. 13) (citing
Williams v. Taylor, 529 U.S. 326, 405 (2000)).
“Therefore, ” Petitioner contends, “this
Court must first decide whether or not that ‘the facts
of his case are materially indistinguishable from
Jackson.'” (Id. at p. 14).
According to Petitioner, “[i]n the current case, the
Superior Court confronted these facts that are
‘materially indistinguishable under
Jackson.” (Id.). Petitioner argues
that “this Court is compelled to di[s]miss the
conviction on charge ‘Endangering the Welfare of a
also argues that “[t]he State Court decision was an
‘unreasonable application' of Jackson
where the Superior Court addressed two of [Petitioner's]
convictions for PWID and Endangering the Welfare of a
Child.” (Doc. 7, p. 14). Petitioner claims that
“the State Court adjudication of his sufficiency of the
evidence challenge was an unreasonable application of
Jackson.” (Id. at p. 15). Petitioner
states that “[t]he Superior Court decision merely
addressed the Jackson on two of [his] convictions,
” namely PWID cocaine and Endangering the Welfare of a
Child. (Id.). “Comprehensively, however,
Petitioner recognizes that the Court may find ‘the
minimum amount of evidence that the Due Process requires to
prove the offense is purely a matter of federal
law.'” (Id.) (quoting Coleman v.
Johnson, 132 S.Ct. 2060, 2064 (2012)).
his conviction of PWID cocaine, Petitioner argues that
“this is strong case under Jackson.”
(Id. at p. 16). “In short, ” Petitioner
contends, his “conviction for [PWID] cocaine was based
on nothing more than ‘speculation and conjecture'
and his ‘mere presence' at the Ms. Gonzalez
residence.” (Id. at p. 15). Thus, Petitioner
concludes, “[i]t was objectively unreasonable for the
Pennsylvania Superior Court to decide that a rational jury
could have found [Petitioner] guilty of [PWID].”
(Id.). Petitioner continues by claiming that
“because a rational jury could not have inferred that
[Petitioner] ‘exercised dominion or control' of the
contraband seized because ‘there is no evidence to
suggest that actually ‘shared the residence with Ms.
Gonzalez.'” (Doc. 7, p. 17). Petitioner, again,
“maintains that he was ‘merely present,
'” and asserts that the “Superior Court
conceded that ‘the cocaine was not found on
[Petitioner's] person.” (Id.). Petitioner
continues by stating that “[n]o where in the record
does it suggest that [Petitioner] rented the apartment with
Ms. Gonzalez.” (Id.). “Moreover, ”
Petitioner asserts, “‘the search warrant in this
case specifically targeted and, further, listed the name: Ms.
Gonzalez.” (Id. at pp. 17-18) (citing
Hawkins, 880 A.2d 678 (Pa. Super. Ct. 2005)).
According to Petitioner, the “residence is an
‘apartment that was being leased to Ms.
Gonzalez.'” (Id. at p. 18). Therefore,
Petitioner argues, “[t]he conviction for PWID cannot
stand under Jackson.” (Id.).
under 2254(d)(2), Petitioner claims, the Pennsylvania
Superior Court's determination that Petitioner
“constructively possessed cocaine with intent to
deliver was an objectively unreasonable one.”
(Id.). Petitioner continues by arguing that the
Superior Court's determination that “‘the
police discovered cocaine in the bedroom [Petitioner] shared
with Gonzalez' was an objectively unreasonable
determination of the facts under” section 2254(d)(2).
(Id.). According to Petitioner, he has provided
clear and convincing evidence “to show that ‘[he]
did not reside at the residence with Ms.
Gonzalez.'” (Doc. 7, p. 18). “Specifically,
” Petitioner contends, “first, the search warrant
targeted Ms. Gonzalez and Johnathon Moss.'”
(Id.). “[S]econd, ” Petitioner states,
“the record reflects that the residence was being
leased to Ms. Gonzalez . . . .” (Id.).
“[F]inally, the record reflects that ‘Arecelis
Gonzalez and Johnathon Moss were either the owner/occupant of
the said residence to be searched.'” (Id.
at p. 19). Petitioner also contends that “[i]t is . . .
important to note that the record reflects that
‘[Petitioner] resides in the City of New
York.'” (Id.). Petitioner also states that
“Moss testified that ‘[Petitioner] does not
reside at the Ms. Gonzalez residence.'”
(Id.). “Because of these facts, ”
Petitioner argues, “‘the court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fair-minded disagreement.'” (Id.) (quoting
Harrington, 131 S.Ct. at 786-78). “Thus,
” Petitioner concludes, “no rational jury could
conclude or infer that [Petitioner] constructively possessed
the cocaine with intent to deliver, where contraband seized,
was located and recovered on ‘Ms. Gonzalez's
premise or property.'” (Id.).
then argues that a reasonable jury could not have found him
guilty of Endangering the Welfare of a Child. (Id.
at pp. 19-22). Specifically, Petitioner argues that the
Pennsylvania Superior Court made an unreasonable determined
of the facts when it found that Petitioner resided at the
residence with Ms. Gonzalez. (Doc. 7, p. 21). According to
Petitioner, this determination is not supported by the
record. (Id.). Petitioner contends that
“[t]here is nothing of record to show that
‘[Petitioner] resided at the residence with Ms.
Gonzalez.'” (Id.). Petitioner argues that
“the transcript that the Superior Court cited to
reflects in relevant part, that [Petitioner] was in the
residence.” (Id.). “Nothing in the
record, ” Petitioner contends, “reflects that
[he] shared the residence with Gonzalez.”
(Id.). “As such, the state court decision was
overwhelmingly ‘objectively unreasonable' under
Jackson.” (Id.). Moreover, Petitioner
argues that “[n]o rational jury could infer that
[Petitioner] was ‘aware of his/her duty to protect the
child, ' or that he was ‘aware that the child is in
circumstances that could threaten the child's physical or
psychological welfare and/or that [Petitioner] ‘failed
to act or taken so lame meager that such actions cannot
reasonably be expected to protect the child's welfare, as
articulated in Wallace . . . .”
(Id.). Petitioner claims that “[i]t is well
established above that this part of the record that the
Superior Court cited to evidence of [Petitioner's]
‘mere presence.'” (Id. at p. 22).
According to Petitioner, “[a]bsolutely a rational jury
could not infer that [Petitioner] ‘supervised this
child.'” (Id.). Petitioner also contends
that “[t]here also [is] no evidence that the child
resided with Ms. Gonzalez at her residence.” (Doc. 7,
p. 22). As a result, Petitioner states that the Court is
“compelled to find that this conviction cannot stand
under Jackson.” (Id.).
also claims that a reasonable jury could not have found him
guilty of criminal conspiracy to commit PWID. (Id.
at pp. 22-24). In particular, Petitioner argues that “a
rational jury could not conclude that [Petitioner]
‘entered into an agreement to commit or aid in an
unlawful act with' Ms. Gonzalez.” (Id. at
p. 23). Additionally, Petitioner claims that he “should
not be liable for the action of Ms. Gonzalez because he was
‘merely present.'” (Id.). Moreover,
Petitioner argues that he “did not ‘share
criminal intent' with Ms. Gonzalez.”
(Id.). In support of this argument, Petitioner
states that “the record clearly establishes that
‘[Petitioner] does not reside at the apartment with Ms.
Gonzalez.'” (Id.). Petitioner contends
that “[t]here could not be a conspiracy between . . .
Ms. Gonzalez and [Petitioner], where the search warrant,
specifically, targeted Ms. Gonzalez and Mr. Moss.”
(Id.). Further, Petitioner states that he “was
not named on the search warrant, ” nor was he
“involved in any controlled buys.”
reasserts that “[t]here was no inference or any
evidence to suggest that [Petitioner] commited (sic)
[the] offense criminal conspiracy to commit” PWID.
(Id. at p. 24). According to Petitioner, he
“was merely present, ” “did not occupy this
structure, ” and “[t]here was no agreement of any
kind to infer that [Petitioner] conspired with Gonzalez to
commit” PWID. (Doc. 7, p. 24). “As such, ”
Petitioner concludes, “no rational jury could infer
that [Petitioner] is guilty of criminal conspiracy to commit
then argues that no reasonable jury would have found him
guilty of possession of a firearm with an altered
manufacturer's number. (Id. at pp. 24-25). In
support, Petitioner asserts that “[n]othing puts
[Petitioner] in visible possession of a firearm.”
(Id. at p. 25). Moreover, Petitioner claims that the
firearm “was altered when Johnothon Moss bought the
gun.” (Id.). Also, Petitioner states that
“[h]ere, Moss clearly testified that ‘this is my
gun, not [Petitioner's].'” (Id.).
According to Petitioner, he “was never visibly observed
with a hand-gun, ” he did not “reside with Ms.
Gonzalez, ” and “[t]he said handgun was
unforeseeable for [him] to have any type of possession of a
firearm.” (Id.). “As a result, ”
Petitioner concludes, “a rational jury could not
conclude that [Petitioner] ‘possessed a handgun' or
that he ‘altered the serial number.'”
(Id.). Petitioner states that “[t]his
conviction cannot stand under Jackson or
he claims he is innocent of the conviction for possession of
a firearm with manufacturer's number obliterated.
(Id.). Specifically, Petitioner states that:
in light of Newly-discovered evidence of Affiant's new
charging document against Johnothon Moss, Moss's guilty
plea, and sentencing order via a plea of guilt to Possession
of the same exact firearm which resulted in the conviction of
[Petitioner][, which] caused a Miscarriage of justice.
7, p. 37). Also in support of this claim, Petitioner notes
that “Moss testified that ‘it was my gun, and not
[Petitioner's].'” (Id.). “As a
result, ” Petitioner contends, he “was
‘wrongfully convicted' and ‘actually
innocent, ' as here, subsequently, however, based on
newly discovered evidence of Detective Munch charging Mr.
Moss with possession of a firearm with an Altered
Manufacturer's number, ' and, ultimately, Moss had
pleaded guilty to ‘Possession of a firearm Without a
License, ' M1, on January 25, 2012.”
(Id.). This new evidence, Petitioner claims,
“is ‘new reliable . . . critical evidence that
was not presented at trial, and shows that no reasonable
juror would have voted to find [Petitioner] guilty beyond a
reasonable doubt, to satisfy the standard set forth in
Mills v. Carroll, 515 F.Supp.2d 463 (3d Cir.
2007).” (Id. at p. 38).
responds by stating that “an issue is waived if a
petitioner fails to raise it and the issue could have been
raised before trial, at trial, on appeal, in a habeas
proceedings, or in a prior proceeding. (Doc. 31, p. 25)
(citing Smith v. Lamas, 2011 U.S. Dist. LEXIS 136025
(E.D. Pa. Nov. 28, 2011)). In regards to Petitioner's
sufficiency of the evidence claim, Respondent begins by
noting that when that claim was addressed by the Pennsylvania
Superior Court “that . . . issue was waived.”
(Id. at p. 28). Respondent also notes that this
claim lacks merit because the convictions were supported by
sufficient evidence. (Id. at pp. 28-38).
Exhaustion and Procedural Default
stated, Petitioner was convicted of possession with intent to
deliver (“PWID”) cocaine; criminal conspiracy;
possession of cocaine, drug paraphernalia, and a firearm; and
endangering the welfare of a chid. Petitioner filed a direct
appeal of his conviction. Petitioner argued, inter
alia, that the verdict was reached upon insufficient
evidence. (Doc. 31-18).
addressing Petitioner's direct appeal, the Pennsylvania
Superior Court assessed, inter alia,
Petitioner's claim that “‘[t]he verdict was
reached upon insufficient evidence.'”
Pugh, No. 1165 EDA 2011, at p. 4. The Superior Court
determined that this claim was waived. See Id. at
pp. 4-5. Alternatively, it found that this claim “would
not merit relief.” Pugh, No. 1165 EDA 2011, at
reaching its alternative findings concerning Petitioner's
sufficiency of the evidence claim, the Superior Court
determined that Petitioner appeared to be challenging the
sufficiency of the evidence relating to his conviction of
PWID cocaine and endangerment of the welfare of a child.
Id. As for his claim that there was insufficient
evidence to support a conviction of PWID to deliver cocaine,
it was rejected as meritless by the Superior Court.
Id. at p. 7. According to the Superior Court,
“[a]lthough the cocaine was not found on
[Petitioner's] person, viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, it
clearly supported the jury's finding that [Petitioner]
constructively possessed the cocaine with the intent to
deliver.” Id. The Superior Court continued by
stating that “[t]he evidence established that,
immediately after the police announced the search, Detective
Jacobsen observed [Petitioner] push an air conditioner out of
a bedroom window.” Id. “Shortly
thereafter, the police found cocain scattered on the ground
outside the window, and chunks of cocaine on the
windowsill.” Id. Additionally, the Superior
Court stated that “[u]pon entering the home, the police
discovered cocaine in the bedroom [Petitioner] shared with
Gonzalez.” Id. Thus, the Superior Court found,
“[b]ased upon this evidence, a reasonable jury could
conclude that [Petitioner] had the ability and intent to
exercise conscious control and dominion over the
cocaine.” Pugh, No. 1165 EDA 2011, at p. 7.
the Superior Court noted that “[a]lso inside the
bedroom, the police discovered [Petitioner] and Gonzalez,
cocaine, three digital scales, large sums of cash, intact
plastic bags, plastic bags with the corners cut off, and a
Smith & Wesson .40 caliber handgun.” Id.
(internal citations omitted). The Superior Court also stated
that “[n]o paraphernalia for the consumption of crack
cocaine was found in the residence.” Id.
“Detective Bray, the Commonwealth's expert on drug
trafficking, ” the Superior Court noted,
“testified that the scales found in the bedroom could
be used for weighing drugs.” Id. at p. 8.
According to the Superior Court, Detective Bray
“testified further that the baggies with cut corners
were consistent with the creation of packaging for crack
cocaine sales.” Id.
Superior Court, “[v]iewing the foregoing evidence in
the light most favorable to the Commonwealth, ”
determined that “it was sufficient to enable the jury
to find every element of the crime of [PWID] cocaine beyond a
reasonable doubt.” Id. (citing
Commonwealth v. Palo, 24 A.3d 1050, 1054-55 (Pa.
Super. Ct. 2011)). “Therefore, ” the Superior
Court held, Petitioner's sufficiency of the evidence
claim regarding hin PWID cocaine conviction lacked merit.
“[i]n [Evans v. Court of Common Pleas of Delaware
Cnty, 959 F.2d 1227 (3d Cir. 1992)], the Third Circuit
held the test for sufficiency of the evidence is the same
under both Pennsylvania law and federal due process.”
Hall v. Beard, 55 F.Supp.3d 618, 696 (E.D. Pa. 2014)
(citing Evans, 959 F.2d at 1231-33). “A claim
for sufficiency of the evidence is the ‘substantial
equivalent' of a federal due process claim.”
Id. (quoting Evans, 959 F.2d at 1233).
“In addition, the Third Circuit in Evans held
that a petitioner's due process claim had also been
exhausted because the assertion of the state-law claim
‘call[s] to mind a specific right protected by the
Constitution.'” Id. (quoting
Evans, 959 F.2d at 1233; citing McCandless v.
Vaughn, 172 F.3d 255 (3d Cir. 1999)).
discussed above, a petitioner must generally comply with the
exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A),
before a federal court can consider the merits of his habeas
corpus petition. As a result, the question becomes whether
Petitioner properly exhausted his sufficiency of the evidence
claim. Here, Petitioner's brief in support of
his direct appeal cites the due process standard set forth in
Jackson. Specifically, Petitioner identified the
following as the applicable standard for reviewing the
sufficiency of the evidence: “whether all the evidence
admitted at trial in the light most favorable to the verdict
winner, there is sufficient evidence to enable the
fact-finder to find every element of the crime beyond a
reasonable doubt.” Appellant's Brief,
Pugh, No. 1165 EDA 2011, p. 11; see (Doc.
31-18, p. 15). “Because the standard is identical,
‘[n]either federal-state comity nor judicial economy
would be better served by requiring [petitioner] to return to
the state courts simply because [his state court briefs] do
not include a “see also” citation to
Jackson v. Virginia.'” Hall, 55
F.Supp.3d at 686 (alterations in original) (quoting
Johnson v. Mechling, 541 F.Supp.2d 651, 665 (M.D.
Pa. 2008) (Jones, J.)).
even assuming, without deciding, that Petitioner adequately
presented his sufficiency of the evidence claims to the
Superior Court, “[d]efault can also occur independently
of exhaustion.” Romansky v. Folino, 2017 U.S.
Dist. LEXIS 28405, at *32 (M.D. Pa. Mar. 1, 2017) (Rambo,
J.). “Procedural default occurs when ‘the
prisoner ha[s] failed to meet a state law procedural
requirement.'[footnote omitted]” Bey v.
Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir.
2017); see Branthafer v. Glunt, 2015 U.S. Dist.
LEXIS 126142, at *18-19 (M.D. Pa. Sept. 22, 2015) (Conaboy,
J.) (citing Leyva v. Williams, 504 F.3d 357, 365 (3d
Cir. 2007)). “‘The doctrine of procedural default
prohibits federal courts from reviewing a state court
decision involving a federal question if the state court
decision is based on a rule of state law that is independent
of the federal question and adequate to support the
judgment.'[footnote omitted]” Bey, 856
F.3d at 236 (quoting Fay v. Horn, 516 F.3d 169, 187
(3d Cir. 2008)). “The requirements of independence and
adequacy are distinct.” Branthafer, 2015 U.S.
Dist. LEXIS 126142, at *19 (citing Leyva, 504 F.3d
state procedural rule is ‘independent' if it is
separate from the federal issue.” Leake v.
Dillman, 594 F. App'x 756, 758 (3d Cir. 2014).
“[A] state procedural rule is adequate if it was
‘firmly established and regularly followed' at the
time of the alleged procedural default.” Id.
at 759 (citing Ford v. Georgia, 498 U.S. 411, 424
(1991)). “To be considered firmly established and
regularly followed, ‘(1) the state procedural rule
[must] speak in unmistakable terms; (2) all state appellate
courts [must have] refused to review the petitioner's
claims on the merits; and (3) the state court's refusal
in this instance [must be] consistent with other
decisions.'” Id. (quoting Nara v.
Frank, 488 F.3d 187, 199 (3d Cir. 2007)); see also
Johnson v. Pinchak, 392 F.3d 551, 559 (3d Cir. 2004)
(quoting Banks v. Horn, 126 F.3d 206, 211 (3d Cir.
the ‘adequacy' of the state procedural rule does
not include an inquiry into whether the state erroneously
applied its own rule in a particular case-‘courts have
repeatedly counseled [this] is not a cognizable claim on
habeas.'” Branthafer, 2015 U.S. Dist.
LEXIS 126142, at *19-20 (alteration in original) (quoting
Tillery v. Horn, 142 F. App'x 66, 68 (3d Cir.
2005)). “Reviewing a § 2254 petition, a federal
court ‘ordinarily may not second guess a state
court's rejection of a claim on the basis of an
independent and adequate state procedural rule.'”
Id. at *20 (quoting Logan v. Gelb, 790 F.3d
65, 70 (1st Cir. 2015)). However, “a reviewing court
must keep in mind that there are ‘“exceptional
circumstances in which exorbitant application of a generally
sound rule renders the state ground inadequate to stop
consideration of a federal question.”'”
Id. at *21 (quoting Rolan v. Coleman, 680
F.3d 311, 317 (3d Cir. 2012)).
requirement that Petitioner must meaningfully develop his
arguments on appeal and cite to appropriate authorities has
been stated in unmistakable terms by the Pennsylvania Supreme
Court.” Id. (citing Commonwealth v.
Clayton, 572 Pa. 395 (Pa. 2002)). Moreover, “[t]he
fact that the Superior Court, alternatively, found that Claim
One lacked merit . . . does not preclude reliance upon the
procedural bar it identified.” Lambert v.
Folino, 2015 U.S. Dist. LEXIS 161701, at *10 n.5 (E.D.
Pa. Nov. 30, 2015) (citing Harris v. Reed, 489 U.S.
255, 261 (1989)), adopted by, 2016 U.S. Dist. LEXIS
2103 (E.D. Pa. Jan. 8, 2016); see Branthafer, 2015
U.S. Dist. LEXIS 126142, at *39 n.13 (“The Superior
Court's consideration of the merits of the 13 claim in
the margin is not considered for procedural default purposes.
However, it would be a factor in the deference due under
§ 2254(d) if a merits analysis were warranted.”)
(citing Rolan v. Coleman, 680 F.3d 311, 319-21 (3d
Cir. 2012)); Gerber v. Varano, 2015 U.S. Dist. LEXIS
110006, at *11-12 n.1 (M.D. Pa. Aug. 20, 2015) (Rambo, J.)
(citing Harris, 489 U.S. at 264 n. 10); see also
Johnson, 392 F.3d at 558 (“The fact that both the
New Jersey trial court and Appellate Division made reference
to the merits of the case as an alternative holding does not
prevent us from finding procedural default.”);
Dreher v. AG, 273 F. App'x 127, 135 n.11 (3d
Cir. 2008); Barnett v. Clark, 2017 U.S. Dist. LEXIS
12588, at *20-21 (E.D. Pa. Jan. 27, 2017); Knight,
2007 U.S. Dist. LEXIS 83546, at *16 (“[I]f the
reviewing state court reached the merits as an alternative
holding, the habeas court proceeds with the procedural
default analysis”) (citing Johnson, 392 F.3d
assessing Petitioner's direct appeal, the Superior Court
found that Petitioner's general sufficiency of the
evidence claim had been waived as to all but the endangering
the welfare of a child conviction, which was raised as a
separate claim. Pugh, No. 1165 EDA 2011, at p. 4. In
particular, the Superior Court noted that “[a] Rule
1925(b) statement challenging the sufficiency of the evidence
must specify ‘how the evidence failed to establish
which element or elements of the  offenses for which
[Petitioner] was convicted . . . . Which elements of which
offense were unproven? What part of the case did the
Commonwealth not prove?'” Pugh, No. 1165
EDA 2011, at p. 4 (second alteration in original) (quoting
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.
Super. 2008)). The Superior Court continued by noting that in
Petitioner's “Rule 1925(b) statement, he challenges
that the verdict was reached on insufficient evidence because
he was not the subject of the arrest warrant, ‘there
was no evidence of direct buys involving  [Petitioner][,
]' and that the evidence ‘only supports Simple
Possession not [PWID].'” Id. at pp. 4-5
(first, third and fourth alterations in original). The
Superior Court determined that “[b]ecause
[Petitioner's] statement does not identify which elements
of his convictions were not proven, this issue is
waived.” Id. at p. 5.
Superior Court went on to state that Petitioner's general
sufficiency of the evidence claim was also waived because of
his failure to comply with Pa. R.A.P. 2119(a)-(c).
Id. Specifically, the Superior Court stated that
“in addressing [his sufficiency of the evidence claim],
[Petitioner's] brief fails to include pertinent
discussion identifying the elements of PWID that the
Commonwealth allegedly failed to prove or citation to the
record or pertinent authority.” Id.
“Although he provides general, boilerplate law on the
level of certainty with which the Commonwealth must establish
a defendant's guilt, participation in a crime, and
possession of contraband, [Petitioner] fails to provide
pertinent authority on the specific crimes of which he was
convicted.” Pugh, No. 1165 EDA 2011, at p. 5.
The Superior Court noted that Petitioner was “convicted
. . . of five crimes in this matter.” Id.
“However, ” the Superior Court found, “he
fails to state expressly which conviction he is contesting or
to identify what elements the Commonwealth purportedly failed
to establish.” Id. “Accordingly,
[Petitioner's] first issue also would be waived on that
procedural default occurs when a prisoner's federal claim
is barred from consideration in the state courts by an
‘independent and adequate' state procedural
rule.” Carpenter v. Vaughn, 296 F.3d 138, 146
(3d Cir. 2002). “The Pennsylvania Superior Court's
finding of waiver under Rule 1925(b) has been found to be an
adequate basis to invoke the procedural default
doctrine.” Branthafer, 2015 U.S. Dist. LEXIS
126142, at *41 (citing Buck v. Colleran, 115 F.
App'x 526, 527-28 (3d Cir. 2004); Sidberry v.
Fisher, 2015 U.S. Dist. LEXIS 81160 (W.D. Pa. June 23,
2015)); see Fudge v. Overmyer, 2015 U.S. Dist. LEXIS
31063, at *9 (M.D. Pa. Mar. 13, 2015) (Jones, J.) (“The
rule of waiver for failing to properly raise an issue in a
1925(b) Statement is an independent and adequate state
ground, and therefore results in [the petitioner] having
procedurally defaulted on ineffective assistance of counsel
claims.”). Additionally, courts within the Third
Circuit have determined that a finding that a claim was
waived for failure to comply with Pa. R.A.P. 2119 also is an
independent and adequate state procedural rule which, if not
complied with, can result in a procedural default. See
Smith v. Cameron, 2017 U.S. Dist. LEXIS 74432, at *15-18
(M.D. Pa. May 16, 2017) (Jones, J.); see also Leake,
594 F. App'x at 759; Rodriguez v. Giroux, 2017
U.S. Dist. LEXIS 23447, at *37 n.17 (E.D. Pa. Feb. 17, 2017)
(citing Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d
Cir. 1996); Quang Van Nguyen v. Wenerowicz, 2013
U.S. Dist. LEXIS 173586 (E.D. Pa. Dec. 10, 2013)); Alston
v. Gilmore, 2016 U.S. Dist. LEXIS 110170, at *31-32
(E.D. Pa. Aug. 16, 2016), adopted by, 2016 U.S.
Dist. LEXIS 180193 (E.D. Pa. Dec. 29, 2016); Prout v.
Giroux, 2016 U.S. Dist. LEXIS 57085, at *40-43 (E.D. Pa.
Apr. 29, 2016); Robertson v. Thompson, 2015 U.S.
Dist. LEXIS (M.D. Pa. Jan. 25, 2015) (Kane, J.) (citing
Leake, 594 F. App'x at 759). But see Xavier
v. Superintendent Albion SCI, 2017 U.S. App. LEXIS 7881,
at *5-8 (3d Cir. May 3, 2017) (non-precedential) (finding the
petitioner had not procedurally defaulted under Pa. R.A.P.
2119(a) when he “provided detailed allegations and case
law” in support of his claims).
stated, the Superior Court relied on Rule 1925(b) and Pa.
R.A.P. 2119 to determine that Petitioner waived his
sufficiency of the evidence claim on direct appeal as to his
convictions of possession of intent to deliver cocaine;
criminal conspiracy; and possession of cocaine, drug
paraphernalia, and a firearm with an obliterated serial
number, see Pugh, No. 1165 EDA 2011, at pp. 4-5. As
a result, Petitioner's current sufficiency claim based on
these convictions is barred from consideration unless
Petitioner proves that an exception to the default
applies.See Solano v. Lamas, 2014 U.S.
Dist. LEXIS 78452, at *16 (M.D. Pa. June 6, 2014) (Nealon,
reviewing a state prisoner's petition for a writ of
habeas corpus, a federal court normally cannot review a
federal claim for post-conviction relief that has already
been rejected by a state court on the basis of an independent
and adequate state procedural rule.” Cox v.
Horn, 757 F.3d 113, 118-19 (3d Cir. 2014) (citing
Walker v. Martin, 562 U.S. 307 (2011); Coleman
v. Thompson, 501 U.S. 722, 750 (1991)). “As
explained by the Third Circuit Court of Appeals, a procedural
default rule ‘prevents an end-run around the exhaustion
requirement.'” Toney v. United States,
2016 U.S. Dist. LEXIS 142375, at *5 (M.D. Pa. Oct. 14, 2016)
(Conaboy, J.) (Spruill v. Gillis, 372 F.3d 218, 230
(3d Cir. 2004)). “A petitioner may obtain federal
review of a procedurally defaulted claim, however, if he
demonstrates cause for the default and prejudice arising from
the violation of federal law.” Cox, 757 F.3d
at 119 (citing Martinez v. Ryan, 132 S.Ct. 1309,
1316 (2012)). Additionally, procedurally defaulted claims may
also be considered where the Petitioner demonstrates that
failure to consider the claim would result in a fundamental
miscarriage of justice. See Coleman, 501 U.S. at
750; Harris, 489 U.S. at 260-63; Morris,
187 F.3d at 342.
demonstrate ‘cause' for a procedural default, he
must point to some objective external factor which impeded
his efforts to comply with the state's procedural
rule.” Madden v. Mooney, 2016 U.S. Dist. LEXIS
176236, at *5 (M.D. Pa. Dec. 21, 2016) (Conner, J.) (citing
Murray v. Carrier, 477 U.S. 478, 488 (1986)).
“‘Prejudice' will be satisfied only if he can
demonstrate that the outcome of the state proceeding was
‘unreliable or fundamentally unfair' as a result of
a violation of federal law.” Madden, 2016 U.S.
Dist. LEXIS 176236, at *5 (citing Lockhart v.
Fretwell, 506 U.S. 364, 366 (1993)).
show a fundamental miscarriage of justice, a petitioner must
demonstrate that he is actually innocent of the crime . . .
.” Keller v. Larkins, 251 F.3d 408, 415-16 (3d
Cir.), cert. denied, 543 U.S. 973 (2001). This
exception is “concerned with ‘actual
innocence.'” Cristin v. Brennan, 281 F.3d
404, 420 (3d Cir.), cert. denied, 537 U.S. 897
(2002). “Actual innocence means factual innocence, not
legal insufficiency.” Daniels v. Overmyer,
2016 U.S. Dist. LEXIS 71476, at *23-24 (M.D. Pa. June 1,
2016) (Kosik, J.) (citing Bousley v. United States,
523 U.S. 614, 623 (1998)). “‘[A] petitioner
asserting actual innocence . . . must rely on “reliable
evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence”['] not presented at trial.”
Id. at *24 (quoting Munchinski v. Wilson,
694 F.3d 308, 337-38 (3d Cir. 2012)). “New evidence
which tends to undermine the credibility of a witness
‘will seldom, if ever, make a clear and convincing
showing that no reasonable juror would have believed the hear
of [the witness'] account of petitioner's
actions.” Id. (citing Sawyer v.
Whitley, 505 U.S. 333, 349 (1992)). Further, “[i]t
is a stronger showing than that needed to establish