United States District Court, W.D. Pennsylvania
RICHARD G. CUNNINGHAM, Petitioner,
MIKE WENEROWICZ and KATHLEEN G. KANE, Respondents.
Maureen P. Kelly Chief United States Magistrate Judge
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.
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.
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.
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.
FACTS AND PROCEDURAL HISTORY
Facts Underlying Petitioner's Conviction
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).
State Court Procedural History
Superior Court also summarized the procedural history of the
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
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
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
ECF No. 24-2 at 94 - 96.
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.
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).
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
In the Turner/Finley brief, counsel identifies four
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