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Graham v. Wingard

United States District Court, M.D. Pennsylvania

October 12, 2017

TREVOR A. WINGARD, et al., Respondents



         On May 11, 2016, Petitioner Robert Graham, an inmate at the State Correctional Institution at Somerset, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges a sentence of 11 to 22 years imposed on May 30, 2012, by the Court of Common Pleas of Lycoming County, Pennsylvania, after being found guilty by a jury, inter alia, of robbery. (Doc. No. 1.)

         The Court on May 16, 2016, issued and Administrative Order informing Graham of the limitations upon his right to file another habeas petition in the future if his current petition was considered on the merits by the Court. (Doc. No. 3.) On May 25, 2016, Graham returned the notice election in which he stated that he desired that the Court rule on his petition as filed. (Doc. No. 4.) Respondents have subsequently responded to the petition. (Doc. No. 18.) For the reasons that follow, the petition will be denied.

         I. Background

         The procedural and factual background of this case has been aptly set forth by the Pennsylvania Superior Court in its decision affirming the Post Conviction Relief Act (“PCRA”) court as follows:

In the early morning hours of June 22, 2009, a man in dark sunglasses and a hooded camouflage sweatshirt held up the Uni-Mart convenient store on West Fourth Street in Williamsport. Brandishing a firearm, the robber ordered the clerk to open the register, grabbed $117 in case, threatened to shoot the clerk, and demanded she open the store safe. When the clerk informed the robber that she was unable to open it, the perpetrator stole five cartons of cigarettes and fled the scene.
In their subsequent investigation of the robbery, officers were able to obtain latent fingerprints from the cash drawer and two other cartons of cigarettes. After the fingerprints were sent to a Pennsylvania State Police laboratory, Sergeant Floyd Bowen determined that one of the fingerprints on the cash drawer matched [Petitioner's] left thumbprint. Approximately ten months after the robbery, the Uni-Mart clerk contacted police after she recognized [Petitioner] in a newspaper photo as the individual who robbed her.
[Petitioner] was charged with two counts of robbery, theft by unlawful taking, receiving stolen property, terroristic threats, and possessing an instrument of crime. [Petitioner] filed a pretrial motion, requesting a Frye hearing to challenge the admissibility of the Commonwealth's expert testimony with respect to the latent fingerprints found in this case. The trial court denied this pretrial motion.
[Petitioner] proceeded to a jury trial and was convicted of all the aforementioned offenses. The trial court imposed an aggregate sentence of eleven to twenty-two years imprisonment. [Petitioner] filed a post-sentence motion, which the trial court denied. On October 30, 2013, this Court affirmed [Petitioner's] judgment of sentence. See Commonwealth v. Graham, 1714 MDA 2012 (Pa. Super. Unpublished memorandum filed Oct. 30, 2013).
On January 8, 2014, [Petitioner] filed a pro se PCRA petition … The PCRA court notified [Petitioner] of its intent to dismiss his petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907 … In response, [Petitioner] filed an amended petition raising additional issues. After further review, the PCRA court dismissed the petition without a hearing.

Commonwealth v. Graham, 2163 MDA 2014 (Pa. Super. Jan. 28, 2016). The Superior Court subsequently affirmed the PCRA court's decision. Id.

         Issues germane to the instant petition that were raised by Graham on direct appeal were: (1) whether the court erred in the denial of a Frye hearing regarding expert testimony in fingerprinting, and (2) whether the court erred in determining that … no Batson claim existed after the Commonwealth struck the only African-American juror in the jury panel. (Doc. No. 18-1, at 46.) Relevant issues raised by Petitioner in his PCRA petition were: (1) whether PCRA counsel was ineffective for failing to raise a layered ineffectiveness of trial counsel's failure to raise prosecutorial misconduct related to the admissibility of evidence with regard to the fingerprint evidence, and (2) failure to argue a Batson claim. (Doc. No. 18-1 at 135, 136.)

         While Graham filed this habeas petition on May 11, 2016 raising four grounds, he subsequently filed a motion to correct illegal sentence on August 2, 2016 with the Court of Common Pleas of Lycoming County. (Doc. No. 18-1, at 168-169.) The county court, treating the motion as a petition filed under the PCRA, dismissed the petition as untimely. (Id. at 171-74.) A review of the record and an independent search of the publicly available records of this case by this Court does not indicate that Graham ever appealed this decision.

         II. Discussion

         It is first necessary to determine whether Graham's claims presented in his habeas petition have been adequately exhausted in the state courts and, if not, whether the circumstances of his case are sufficient to excuse his procedural default. The claims raised by Graham as grounds for relief are: (1) the Commonwealth violated Batson[1] when it exercised a peremptory challenge to strike the sole African American juror on the panel; (2) he was denied a Frye[2]hearing to challenge to validity of the fingerprint evidence; (3) his conviction should be reversed because it was based on contaminated evidence; and (4) the prosecutor presented fingerprint testimony when the prosecutor knew that no fingerprint examiner could legitimately identify the fingerprint. (Doc. No. 1.) In their answer to Graham's petition, Respondents contend that there was no Batson violation because the decision to strike the sole African American juror was made before the juror had entered the court room and without knowledge of the race of the juror. (Doc. No. 18.) Moreover, the prosecutor had provided a race-neutral reason for striking the juror. (Id.) Respondents also contend that there was no error by the county court in finding that fingerprint evidence was admissible without the necessity of a Frye hearing, and that to the extent Petitioner is raising issues in grounds two through four that are unrelated to the failure to conduct a Frye hearing, these issues have been procedurally defaulted. (Id.)

         A. Exhaustion and Procedural Default

         The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To comply with the exhaustion requirement, a state prisoner first must have fairly presented his constitutional and federal law issues to the state courts through direct appeal, collateral review, state habeas proceedings, mandamus proceedings, or other available procedures for judicial review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351(1989); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996), abrogated on other grounds by Beard v. Kindler, 558 U.S. 53 (2009); Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996).

         Moreover, a petitioner must present every claim raised in the federal petition to the state's trial court, intermediate appellate court, and highest court before exhaustion will be considered satisfied. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The petitioner has the burden of establishing that the exhaustion requirement has been met. Ross v. ...

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