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Cunningham v. Wenerowicz

United States District Court, W.D. Pennsylvania

December 14, 2017

RICHARD G. CUNNINGHAM, Petitioner,
v.
MIKE WENEROWICZ and KATHLEEN G. KANE, Respondents.

          OPINION

          Maureen P. Kelly Chief United States Magistrate Judge

         Richard Cunningham (“Petitioner”) filed an Amended Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, ECF No. 21, (the “Amended Petition”) seeking to challenge his convictions for two counts of second degree murder, one count of burglary and one count of criminal conspiracy. The operative Petition is counseled. Id.

         Petitioner was tried in a non-jury trial before the Honorable Lester Nauhaus of the Court of Common Pleas of Allegheny County. Petitioner was tried with three other co-defendants. In the course of a bench trial that occurred on different days, Petitioner's trial counsel fell ill after the close of testimony, but before closing arguments and unfortunately passed away. Judge Nauhaus appointed new counsel for Petitioner and granted a five-month extension of time for new counsel to present the closing argument for Petitioner.

         In the Amended Petition, Petitioner asserts one ground for relief that he was denied the right to effective assistance of counsel when Judge Nauhaus ordered the trial attorney to be replaced by a substitute attorney prior to closing arguments. ECF No. 21 at 9. Petitioner alleges that this denial was in violation of the Sixth and Fourteenth Amendments. Id.

         Upon review, the Court finds that Petitioner procedurally defaulted any Sixth Amendment claim because he did not raise a Sixth Amendment claim until his petition for reargument en banc with the Pennsylvania Superior Court in the direct appeal. As to the Fourteenth Amendment fundamental fairness claim, Petitioner fails to show that the State Courts' adjudication of this claim was contrary to or an unreasonable application of United States Supreme Court precedent or, alternatively, that he was denied fundamental fairness. Accordingly, the Amended Petition will be dismissed. Furthermore, because jurists of reason would not find the disposition of the Amended Petition debatable, a Certificate of Appealability will be denied.

         I. FACTS AND PROCEDURAL HISTORY

         A. Facts Underlying Petitioner's Conviction

         The Pennsylvania Superior Court, in ruling on the direct appeal, summarized the facts of the case.

On the evening of February 19, 2005, Kevilin Middleton hosted a birthday party for T.C. Lyerly. Toward the end of the party, Mr. Middleton made arrangements for exotic dancers to come to his residence and perform in exchange for two hundred dollars ($200). The exotic dancers, Angel Potter and Helen McCorkle, arrived at Mr. Middleton's residence along with Geneva Burrell. At this time, Mr. Middleton, Mr. Lyerly, and Chaoe Davis were the only people still at the party. Before the dancers' performance, however Mr. Middleton insulted Ms. Potter's appearance and refused to provide payment. Mr. Middleton, Ms. Potter, and Ms. Burrell began to argue. The argument escalated, and Ms. Potter reached into Mr. Middleton's pocket and removed money. Ms. Burrell advised Ms. Potter to return the money, and Ms. Potter eventually complied. Shortly thereafter, Ms. Potter and Ms. Burrell telephoned [Cunningham] and his co-defendants to come to Mr. Middleton's home and help secure payment.
Approximately thirty (30) minutes later, a van arrived at Mr. Middleton's house. [Cunningham], Alfon Brown, Ramone Coto, and Eric Surratt exited the van and approached the residence. The men carried guns, and [Cunningham] wore a hooded sweatshirt and ski mask. Upon their arrival, at least three (3) of the men entered Mr. Middleton's house without permission and demanded payment for the dancers. Before Mr. Middleton had an opportunity to comply, the men began firing at Mr. Middleton, Mr. Lyerly, and Mr. Davis. Mr. Lyerly and Mr. Davis died instantly. Mr. Middleton sustained critical injuries from the gunshots.

ECF No. 24-2 at 93 -94 (footnote omitted).

         B. State Court Procedural History

         The Superior Court also summarized the procedural history of the case.

The Commonwealth charged [Cunningham] with two (2) counts of criminal homicide, criminal attempt, burglary, aggravated assault, carrying a firearm without a license, and criminal conspiracy. On June 18, 2007, [Cunningham] proceeded to a bench trial. The court tried [Cunningham] and his co-defendants jointly.
At trial, the Commonwealth presented testimony from Ms. McCorkle, Ms. Burrell, and Ms. Potter. Ms. McCorkle testified that she saw four (4) men exit a van and walk towards Mr. Middleton's house carrying guns. She identified Mr. Brown, Mr. Coto, and Mr. Surratt, but did not recognize the fourth gunman. Ms. Burrell, however, positively identified [Cunningham] as the fourth man, who entered the house wearing a ski mask and carrying a gun. Ms. Potter also testified she heard Ms. Burrell direct [Cunningham] to Mr. Lyerly's location inside the house. Further, a latent fingerprint examiner conclusively established the fingerprints lifted from the front storm door at Mr. Middleton's residence matched [Cunningham's] fingerprints.
Following numerous continuances, the court scheduled closing arguments for February 8, 2008. After the defense rested its case, however, [Cunningham's] counsel became seriously ill and died. Consequently, the court appointed replacement counsel to represent [Cunningham]. On February 8, 2008, replacement counsel appeared before the court and explained that he was unprepared to proceed. As a result, the court rescheduled [Cunningham's] closing argument for July 7, 2008, giving replacement counsel five (5) months to consult with [Cunningham], review the file, and prepare to close for the defense.
On July 7, 2008, replacement counsel delivered closing argument. Subsequently, the court found [Cunningham] guilty of two (2) counts of second degree murder and one (1) count each of burglary and criminal conspiracy. On September 22, 2008, the court sentenced [Cunningham] to concurrent terms of life imprisonment for his second degree murder convictions. The court also imposed concurrent terms of thirty (30) to sixty (60) months' imprisonment for his burglary conviction and eighteen (18) to thirty-six (36) months' imprisonment for his conspiracy conviction. On October 2, 2008, [Cunningham] timely filed a post-sentence motion, which the court denied on December 9, 2008. [Cunningham] did not pursue a direct appeal with [the Superior Court].
On April 6, 2009, [Cunningham] timely filed a pro se petition pursuant to [the PCRA]. Thereafter, the PCRA court appointed counsel. On July 8, 2009, counsel filed an amended PCRA petition, requesting reinstatement of [Cunningham's] appellate rights nunc pro tunc. On August 20, 2009, the PCRA court granted the requested relief.
On September 18, 2009 [Cunningham] timely filed his notice of appeal.

ECF No. 24-2 at 94 - 96.

         Before the Superior Court, Petitioner raised three issues for review - two related to the weight of the evidence and the third related to the trial judge not declaring a mistrial after the death of Petitioner's trial counsel. Id. at 97. In considering the direct appeal, a three judge panel of the Superior Court denied Petitioner's weight of the evidence claim. A majority of the panel saw no reason to disturb the trial court's decision that there was no manifest necessity to declare a mistrial. However, Judge Freedberg filed a dissenting memorandum, in which he found that Petitioner's constitutional rights were violated by the appointment of the new counsel for purposes of closing arguments. Id. at 107 - 110. The panel also affirmed Cunningham's judgment of sentence in part, but vacated the thirty to sixty-month sentence for burglary. The panel held that the sentencing court erred in imposing a separate sentence for burglary because that conviction was the predicate felony for the felony murder conviction. Id. at 106.

         Cunningham filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, but the petition was denied on March 30, 2011. Commonwealth v. Cunningham, 20 A.3d 484 (Pa. 2011).

         Petitioner also filed a petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-46. The Superior Court, in ruling on the PCRA petition, summarized the procedural history of the PCRA phase of Petitioner's appeal.

On December 27, 2011, Cunningham timely filed a pro se PCRA petition. Counsel was appointed, and she filed an amended PCRA petition on June 11, 2012. On August 21, 2012, Cunningham filed a pro se motion seeking to terminate PCRA counsel's representation. On August 29, 2012, Cunningham filed a pro se motion to amend the PCRA petition to add new claims. On September 24, 2012, PCRA counsel filed a motion for a Grazier hearing to determine whether Cunningham knowingly and voluntarily wished to proceed pro se. On October 12, 2012, PCRA counsel filed a supplement to the amended PCRA petition, raising three additional claims that Cunningham included in his motion to amend.
On April 25, 2013, the PCRA court held a hearing on the PCRA petition. The PCRA court first asked Cunningham whether he still wished to represent himself and he declined. Notes of Testimony (“N.T.”), 4/25/2013, at 2-3. Counsel then presented argument. No testimony was taken. Following the hearing, on May 20, 2013, the PCRA court granted Cunningham's motion to appoint a fingerprint expert. On November 6, 2013, PCRA counsel filed a “Notice of Status of Defense Expert's Review of Print Evidence.” In that filing, PCRA counsel averred that the copy of the evidence had been provided to the defense expert and that “[n]o further argument or supplemental matter [would] be submitted by the defense regarding the print evidence.” Notice of Status of Defense Expert's Review of Print Evidence, 11/6/2013, at 1.
On November 7, 2013, the PCRA court denied Cunningham's petition. On November 15, 2013, Cunningham filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b). On December 17, 2013, the trial court filed its Pa. R.A.P. 1925(a) opinion. On January 30, 2014, PCRA counsel filed a petition to withdraw as counsel.
In the Turner/Finley brief, counsel identifies four potential issues:
1. Whether [trial counsel] was ineffective for failing to file a motion to sever, for purposes of trial, [Cunningham's] case from Co-Defendant Surratt's case?
2. Whether [trial counsel] was ineffective by failing to present an expert to challenge the reliability of the ...

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