United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE
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.)
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.
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.
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
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.
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 when it exercised a peremptory challenge
to strike the sole African American juror on the panel; (2)
he was denied a Fryehearing 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.)
Exhaustion and Procedural Default
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).
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. ...