United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE
September 26, 2016, the Court received and docketed a
petition for a writ of habeas corpus submitted pursuant to 28
U.S.C. § 2254, by Petitioner Roberto Laboy. (Doc. No.
1.) Laboy is currently incarcerated at the Albion State
Prison. Respondents filed a response to the petition on March
3, 2017 (Doc. No. 10), after being directed by this Court.
Petitioner has not filed a traverse and his time to do so has
passed. Accordingly, this matter is ripe for disposition. For
the reasons set forth below, the petition will be denied.
Statement of the Case
10, 2011, after the conclusion of a jury trial, the jury
found Laboy guilty of, inter alia, murder in the
second degree and conspiracy to commit robbery.
Commonwealth of Pa. v. Laboy, No. CP-38-CR-979-2006
(C.C.P. Lebanon Cnty.); (Doc. No. 10-3; 10-13). On July 27,
2011, the trial court sentenced Laboy to life imprisonment
without parole plus a concurrent term of ten to twenty years
based upon these two convictions. Commonwealth of Pa. v.
Laboy, CP-38-CR-979-2006 (C.C.P. Lebanon Cnty.); (Doc.
No. 10-4). Laboy filed post-sentence motions, arguing that
there was insufficient evidence to sustain his convictions
and in the alternative, the Commonwealth committed a
Brady violation. (Doc. No. 10-8). The trial court
denied his post-sentence motions on January 6, 2012.
appealed the July 27, 2011 judgment of sentence to the
Superior Court of Pennsylvania, raising two issues: (1)
Whether a Brady violation was committed by the
Commonwealth at trial when the Commonwealth failed to provide
an expert report and witness cooperation information to the
defendant; and (2) Whether the defendant should be acquitted
because the evidence was insufficient to prove beyond a
reasonable doubt that he took part in the assault for which
he was convicted. (Doc. No. 10-13.) On September 11, 2012,
the Superior Court affirmed Laboy's judgment of sentence.
Commonwealth of Pa. v. Laboy, No. 211 MDA 2012 (Pa.
Super. Ct.); (Doc. No. 10-13.)
then sought an allowance of appeal with the Supreme Court of
Pennsylvania which was denied on March 14, 2013.
Commonwealth of Pa. v. Laboy, No. 778 MAL 2012
(Pa.); (Doc. No. 10-15.) On May 7, 2013, Laboy filed a
petition for Post-Conviction Relief pursuant to the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§ 9541 et seq. (Doc. No. 10-16.) In his PCRA
petition, Laboy alleged ineffective assistance of trial
counsel because: (1) trial counsel prevented him from
testifying at his jury trial; (2) trial counsel failed to
fully investigate [his co-defendant's] statements prior
to trial and failed to attempt to have the murder weapon
retrieved from the quarry; and (3) trial counsel failed to
seek removal of two jurors who were familiar with certain
individuals potentially involved in the case.
Commonwealth of Pa. v. Laboy, No. CP-38-CR-979-2006
(C.C.P. Lebanon Cnty.); (Doc. No. 10-22.) After hearings on
the PCRA petition were conducted on April 28, 2014 and May
12, 2014, the PCRA court denied Laboy's petition on
November 20, 2014. Id. Laboy appealed the denial of
his PCRA petition to the Superior Court which was denied on
October 21, 2015. Commonwealth of Pa. v. Laboy, No.
2166 MDA 2014 (Pa. Super. Ct.); (Doc. No. 10-27.) Laboy's
subsequent petition for allowance of appeal to the Supreme
Court of Pennsylvania was denied on March 22, 2016.
Commonwealth of Pa. v. Laboy, No. 872 MAL 2015
(Pa.); (Doc. No. 10-29.) Laboy's instant petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254
Habeas Claims Presented
petition raises the following claims:
1. Whether the Commonwealth committed a Brady
2. Whether Laboy's convictions were based upon sufficient
3. Whether trial counsel was ineffective for failing to
investigate his co-defendant's statements, failing to
investigate two jurors, and providing erroneous legal advice;
4. Whether the verdict was against the weight of the
5. Ineffective assistance of appellate counsel; and
6. Violation of Sixth Amendment right to effective assistance
of counsel by PCRA counsel for failing to raise ineffective
assistance of trial counsel claims at his PCRA proceeding.
(Doc. No. 1.)
Standard of Review
habeas corpus petition pursuant to 28 U.S.C. § 2254 is
the proper mechanism for a prisoner to challenge the
“fact or duration” of his confinement.
Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973).
“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law
questions.” Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). Rather, federal habeas review is restricted to
claims based “on the ground that [petitioner] is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a);
Estelle, 502 U.S. at 67-68; see also Pulley v.
Harris, 465 U.S. 37, 41 (1984); Johnson v.
Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
first necessary to determine whether Laboy's claims
presented in his habeas petition are cognizable in a federal
habeas proceeding and whether they have been exhausted in the
state courts and, if not, whether the circumstances of his
case are sufficient to excuse his procedural default.
Claim 4 - Non-Cognizable
Laboy's fourth claim, he alleges that the verdict was
against the weight of the evidence. (Doc. No. 1.) Laboy did
not raise this claim on direct appeal.
United States Supreme Court recognizes that a challenge to
the sufficiency of the evidence supporting a conviction
implicates the Due Process Clause. See Jackson v.
Virginia, 443 U.S. 307 (1979) (establishing standard).
Inasmuch as a sufficiency of the evidence claim implicates a
federal constitutional right, it provides a potential basis
for federal habeas relief under 28 U.S.C. § 2254. An
assertion that a state conviction is against the weight of
the evidence adduced at trial, however, does not implicate
the Constitution in the same manner. As the Supreme Court
explored in Tibbs v. Florida, 457 U.S. 31 (1982), a
reviewing court hearing such a claim sits as a
“thirteenth juror” and disagrees with the
jury's resolution of the conflicting testimony. It has
long been established that the federal courts have no
authority to grant habeas relief based on such grounds
inasmuch as weight claims infringe upon the prerogative of
the jury to assess credibility. In Marshall v.
Lonberger, 459 U.S. 422 (1983), the Supreme Court
declared that “28 U.S.C. § 2254(d) gives federal
habeas courts no license to redetermine credibility of
witnesses whose demeanor has been observed by the state trial
court, but not by them.” Marshall, 459 U.S. at
accordance with the above, federal courts on 2254 review have
routinely dismissed “weight of the evidence”
claims as non-cognizable. See Young v. Kemp, 760
F.2d 1097, 1105 (11th Cir. 1985) (observing that “[a]
federal habeas court has no power to grant habeas corpus
relief because it finds that the state conviction is against
the ‘weight' of the evidence.”); Carter
v. Parker, Civ. No. 13-4260, 2014 WL 3964924, at *38
(E.D. Pa. Aug. 12, 2014) (quoting Young v. Kemp for
this proposition); Middleton v. Tennis, Civ. No.
10-548, 2011 WL 6224626, n.2 (E.D. Pa. Dec. 13, 2011);
Wright v. Pennsylvania, Civ. No. 10-264, 2011 WL
10582593, *5 (E.D. Pa. Jan. 4, 2011); Hatcher v.
DiGuglielmo, Civ. No. 08-3572, 2009 WL 3467957, *4 (E.D.
Pa. Oct. 26, 2009); Willis v. Varner, Civ. No.
03-1692, 2004 WL 1109780, *10 (E.D. Pa. May 13, 2004).
the Court must conclude that habeas relief is not available
as to Laboy's weight of the evidence claim and this claim
will be denied.
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). 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. Petsock, 868 F.2d 639, 643 (3d Cir. 1989);
O'Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir.
is not a jurisdictional limitation, however, and federal
courts may review the merits of a state petitioner's
claim prior to exhaustion when no appropriate state remedy
exists. Christy v. Horn, 115 F.3d 201, 206 (3d Cir.
1997); Doctor, 96 F.3d at 681; Carter v.
Vaughn, 62 F.3d 591, 594 (3d Cir. 1995). Nevertheless, a
petitioner shall not be deemed to have exhausted state
remedies if he has the right to raise his claims by any
available state procedure. 28 U.S.C. § 2254(c).
to procedural default, if a petitioner presents unexhausted
habeas claims to a federal court, but state procedural rules
bar further state court review, the federal court will excuse
the failure to exhaust and treat the claims as exhausted.
Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001);
Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000);
see Teague v. Lane, 489 U.S. 288, 297-98 (1989).
Although deemed exhausted, such claims are considered
procedurally defaulted. Coleman v. Thompson, 501
U.S. 722, 749 (1991); Lines, 208 F.3d at 160.
federal habeas court cannot review the merits of procedurally
defaulted claims unless the petitioner demonstrates either:
(1) “cause” for the procedural default and
“actual prejudice” as a result of the alleged
violation of federal law; or (2) failure to consider the
claims will result in a “fundamental miscarriage of
justice.” See McCandless v. Vaughn, 172 F.3d
255, 260 (3d Cir. 1999); Coleman, 501 U.S. at 750;
Caswell v. Ryan, 953 F.2d 853, 857, 861-62 (3d Cir.
1992). To satisfy the first exception, a petitioner must
show: (1) cause for his failure to raise his claim in state
court; and (2) prejudice to his case as a result of that
failure. Coleman, 501 U.S. at 750. To demonstrate
“cause” for a procedural default, the petitioner
must show that something “external” to the
defense impeded the petitioner's efforts to comply with
the state's procedural rule. Murray v. Carrier,
477 U.S. 478, 488 (1986). Once “cause” has been
successfully demonstrated, a petitioner must then prove
“prejudice.” “Prejudice” must be
something that “worked to [petitioner's] actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” Id. at
494. Alternatively, a federal court may excuse a procedural
default when the petitioner establishes that failure to
review the claim will result in a fundamental miscarriage of
justice. See Werts v. Vaughn, 228 F.3d 178, 192-93
(3d Cir. 2000).
Claim 5 - Ineffective Assistance of Appellate
claim five of his petition, Laboy contends that his direct
appellate counsel was ineffective for failing to thoroughly
“investigate [his] case in [its] entirety and [to]
submit a thorough substantial brief to the appellant
courts.” (Doc. No. 1.) To comply with the exhaustion
requirement of 28 U.S.C. § 2254, Laboy was required to
present all of his federal habeas claims to the Pennsylvania
courts in his direct appeal or in his PCRA proceeding. He has
not done so with regard to claim five. Accordingly, this
Court must now determine whether Laboy has any other
available state court remedy through which he can present his
unexhausted claims to the Pennsylvania courts.
the PCRA, a petitioner may bring a second PCRA petition only
if it is filed within one year of the date the judgment
becomes final unless the petition alleges facts that meet one
of the requirements set forth in § 9545(b)(1), which
Laboy has not. See 42 Pa. Cons. Stat. §
9545(b)(1). The Supreme Court of Pennsylvania has held that
the PCRA's timeliness requirements are mandatory and
jurisdictional in nature; thus, no court may properly
disregard or alter them in order to reach the merits of the
claims raised in a PCRA petition that is filed in an untimely
manner. See, e.g., Commonwealth v. Murray,
753 A.2d 201, 202-03 (Pa. 2000).
Laboy is precluded from presenting his unexhausted claim in a
second PCRA petition based on the time limitations set forth
in the PCRA. These time limitations are an independent and
adequate state law ground sufficient to invoke the procedural
default doctrine for purposes of federal court review.
See Lines v. Larkin, 208 F.3d 153, 165 (3d Cir.
2000). As set forth above, this Court may not review
Laboy's defaulted claim unless he demonstrates cause and
prejudice for his default or establishes a fundamental
miscarriage of justice. McCandless, 172 F.3d at 260.
Laboy neither argues cause and prejudice, nor the existence
of a ...