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Pugh v. Overmyer

United States District Court, M.D. Pennsylvania

August 28, 2017

DOUGLAS B. PUGH, Petitioner
v.
MICHAEL D. OVERMYER, Respondent

          MEMORANDUM

          William J. Nealon United States District Judge.

         Petitioner, 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 denied.

         I. FACTUAL BACKGROUND

         Petitioner “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.

         After 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.

         On 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).

         On 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.

         On 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 2014.

         On 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).

         On July 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.[1] Praecipe for Discontinuance, Pugh, No. 1623 EDA 2015 (Pa. Super. Ct. filed July 17, 2015).

         II. STANDARD OF REVIEW

         “A 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)).

         “A 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).

         “State 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).

         “In 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)).

         Section 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 (1968)).

         The 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).

         For 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)).

         Importantly, “[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)).

         III. DISCUSSION

         Petitioner 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 below.[2]

         1. Sufficiency of the Evidence

         Petitioner 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 Child.'” (Id.).

         Petitioner 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)).

         As to 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.).

         Further, 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.).

         Petitioner 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.).

         Petitioner 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.” (Id.).

         Petitioner 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 PWID.” (Id.).

         Petitioner 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 Fiore.” (Id.).

         Finally, 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.

         (Doc. 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).

         Respondent 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.[3] (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).

         a. Exhaustion and Procedural Default

         As 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).

         In 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 p. 5.

         When 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.

         Moreover, 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.

         The 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. Id.

         Notably, “[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)).

         As 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.[4] 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.)).

         However, 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 at 365).

         “A 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. 1997)).

         “Ordinarily, 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)).

         “The 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 at 558).

         In 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.

         The 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 basis.” Id.

         “A 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).

         As 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.[5]See Solano v. Lamas, 2014 U.S. Dist. LEXIS 78452, at *16 (M.D. Pa. June 6, 2014) (Nealon, J.).

         “When 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.

         “To 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)).

         “To 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 ...


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