United States District Court, M.D. Pennsylvania
Christopher C. Conner, United States District Court Chief
Charles Bibbs ("Bibbs") filed the instant petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging a judgment and conviction imposed in the Court of
Common Pleas of Dauphin County, Pennsylvania. (Doc. 1). For
the reasons discussed below, the court will deny the
factual background of this case has been aptly summarized by
the state court as follows:
At approximately 1:30 a.m. on May 30, 2006, Robert Berry, a
cab driver for Penn Central Taxi, was dispatched to 2166
Logan Street in the City of Harrisburg. When he arrived in
that area, he observed a young man sitting on the porch of
2165 Logan Street. The young man approached Berry‘s
cab, got in, and informed Berry that his cousin was co[m]ing.
Moments later, [Bibbs] appeared from a nearby alley and
entered the rear passenger-side seat of Berry‘s cab.
[Bibbs] then aimed a pistol at Berry‘s head as a third
man, who was wearing a mask, appeared from the alley and
approached the driver‘s side of the cab. All three men
proceeded to point guns at Berry as [Bibbs] got in the front
seat and went through Berry‘s pockets and glove
compartment, taking $100, some keys and a cell phone. The
masked man then ordered Berry out of the cab and told him to
count to ten. [Bibbs] and the two other men then drove off in
Berry immediately reported the robbery to police from a
nearby pay phone and was subsequently interviewed at police
headquarters on- June 1, 2006. At that time, Berry was shown
some 2600 photographs but was unable to identify the men who
robbed him. Later, a friend informed Berry that he should
look at some photographs in the newspaper. Berry recognized
[Bibbs] as one of the men pictured. On June 22, 2006, Berry
met with Detective Christopher Krokos of the Harrisburg
Police Department, who showed him a photographic array
containing [Bibbs‘] picture. Berry immediately
identified [Bibbs] as one of the men who robbed him.
Commonwealth v. Bibbs, 2014 WL 10936785, at *2 (Pa.
Super. 2014) (citing Dauphin County Court of Common Pleas
1925(a) Memorandum Opinion, dated Oct. 12, 2007).
State Court Proceedings
a jury trial on January 8 and 9, 2007, Bibbs was convicted in
the Court of Common Pleas of Dauphin County of robbery,
robbery of a motor vehicle, and two counts of conspiracy.
(Doc. 19-1, at 5). On February 26, 2007, he was sentenced to
a total of eight to sixteen years of incarceration.
(Id.) On March 5, 2007, Bibbs filed a motion for
modification of sentence. (Id.) On March 9, 2007,
the Common Pleas Court denied the motion. (Id. at
pursued direct appeal proceedings. (Id. at 6; see
also electronic docket sheet for Commonwealth v. Bibbs,
Superior Court of Pennsylvania, 617 MDA 2007, found at
http://ujsportal.pacourts.us). On November 2, 2007,
the Pennsylvania Superior Court affirmed Bibbs‘
judgment of sentence. (Doc. 19-7, Commonwealth v.
Bibbs, 617 MDA 2007, Pennsylvania Superior Court opinion
dated Nov. 2, 2007). Bibbs filed a petition for allowance of
appeal to the Pennsylvania Supreme Court. Commonwealth v.
Bibbs, 997 MAL 2007. On April 16, 2008, the Pennsylvania
Supreme Court denied his petition for allowance of appeal.
Id. Bibbs did not file a petition for writ of
certiorari to the United States Supreme Court, therefore his
judgment of sentence became final ninety days later on July
15, 2008. See 42 Pa. Cons. Stat. § 9545.
February 26, 2009, Bibbs filed a timely petition for
post-conviction collateral relief pursuant to the Post
Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat.
§§ 9541-46. (Doc. 19-8). On October 27, 2009, Bibbs
filed a counseled, amended PCRA petition. On January 20, 2010
and April 5, 2010, evidentiary hearings were held regarding
the PCRA petition. (Docs. 19-9, 19-10). On April 26, 2010,
Bibbs‘ PCRA counsel filed a motion to withdraw. (Doc.
19-11). On May 3, 2010, the Commonwealth filed an answer to
Bibbs‘ PCRA. On May 28, 2010 and October 5, 2010, Bibbs
filed supplemental pro se documents. On December 9,
2010, the PCRA court issued notice of its intent to dismiss
the PCRA petition. (Doc. 19-12). The December 9, 2010 order
also granted PCRA counsel‘s motion to withdraw.
(Id.) On December 30, 2010, Bibbs filed an objection
to the court‘s intent to dismiss. On June 17, 2011, the
Court of Common Pleas ultimately dismissed Bibbs‘ PCRA
29, 2011, Bibbs filed a notice of appeal to the Pennsylvania
Superior Court. (Docs. 19-13, 19-14, 19-15). On August 17,
2012, the Superior Court vacated the Court of Common
Pleas‘ dismissal of Bibbs‘ PCRA petition, and
remanded the matter to the PCRA court. (Doc. 19-16). On
September 17, 2012, Bibbs filed an amended PCRA petition.
(Doc. 19-17). The PCRA court appointed new counsel to
represent Bibbs for his remanded PCRA petition. (See Doc.
19-18, at 4 ¶ 16). On December 12, 2012, Bibbs‘
second PCRA counsel filed a motion to withdraw. (Doc. 19-18).
On June 24, 2013, the Common Pleas Court filed an opinion and
order providing notice of the court‘s intent to dismiss
the amended PCRA petition. (Doc. 19-19). The June 24, 2013
order also granted the motion to withdraw filed by
Bibbs‘ second PCRA counsel. (Id.) On July 5,
2013, Bibbs filed an objection to the notice of the
court‘s intent to dismiss his amended PCRA petition. On
August 21, 2013, the Court of Common Pleas dismissed the
amended PCRA petition. (See Docs. 19-20, 19-21).
September 9, 2013, Bibbs filed a notice of appeal to the
Pennsylvania Superior Court regarding the dismissal of his
amended PCRA petition. (Docs. 19-20, 19-21). On May 28, 2014,
the Pennsylvania Superior Court affirmed the dismissal of the
amended PCRA petition. (Doc. 19-22). Bibbs then filed a
petition for allowance of appeal to the Pennsylvania Supreme
Court. On November 19, 2014, the Pennsylvania Supreme Court
denied the petition for allowance of appeal. Commonwealth
v. Bibbs, 628 Pa. 626, 104 A.3d 1 (Table) (Pa. 2014).
Standards of Review
statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"). A habeas
corpus petition pursuant to § 2254 is the proper
mechanism for a prisoner to challenge the "fact or
duration" of his confinement. Preiser v.
Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36
L.Ed.2d 439 (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, 112 S.Ct. 475, 116 L.Ed.2d 385 (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 68.
corpus relief cannot be granted unless all available state
remedies have been exhausted, or there is an absence of
available state corrective process, or circumstances exist
that render such process ineffective to protect the rights of
the applicant. See 28 U.S.C. § 2254(b)(1). The
exhaustion requirement is grounded on principles of comity in
order to ensure that state courts have the initial
opportunity to review federal constitutional challenges to
state convictions. See Werts v. Vaughn, 228 F.3d
178, 192 (3d Cir. 2000).
prisoner exhausts state remedies by giving the "state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State‘s
established appellate review process."
O‘Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999). Respect for the state court
system requires that the petitioner demonstrate that the
claims in question have been "fairly presented to the
state courts." Castille v. Peoples, 489 U.S.
346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). To
"fairly present" a claim, a petitioner must present
its "factual and legal substance to the state courts in
a manner that puts them on notice that a federal claim is
being asserted." McCandless v. Vaughn, 172 F.3d
255, 261 (3d Cir. 1999); see also Nara v. Frank, 488
F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is
fairly presented when a petitioner presents the same factual
and legal basis for the claim to the state courts). While the
petitioner need not cite "book and verse" of the
federal Constitution, Picard v. Connor, 404 U.S.
270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), he must
"give the State 'the opportunity to pass upon and
correct‘ alleged violations of its prisoners‘
federal rights" before presenting those claims here,
Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887,
130 L.Ed.2d 865 (1995) (quoting Picard, 404 U.S. at 275, 92
case, respondents concede that Bibbs properly exhausted each
claim raised in the federal habeas petition. (Doc. 19-1, at
court has determined that the exhaustion requirement is met
and, therefore, that review on the merits of the issues
presented in a habeas petition is warranted, the scope of
that review is set forth in 28 U.S.C. § 2254(d). Section
2254(d) provides, in pertinent part, that an application for
a writ of habeas corpus premised on a claim previously
adjudicated on the merits in state court shall not be granted
(1) [the decision] was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) [the decision] was based on an unreasonable determination
of the facts in light of the evidence presented in the State
28 U.S.C. § 2254(d). To establish that the decision was
contrary to federal law "it is not sufficient for the
petitioner to show merely that his interpretation of Supreme
Court precedent is more plausible than the state
court‘s; rather, the petitioner must demonstrate that
Supreme Court precedent requires the contrary outcome."
Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir.
1999). Similarly, a federal court will only find a state
court decision to be an unreasonable application of federal
law if the decision, "evaluated objectively and on the
merits, resulted in an outcome that cannot reasonably be
justified under existing Supreme Court precedent."
under 28 U.S.C. § 2254(e)(1), a federal court is
required to presume that a state court‘s findings of
fact are correct. A petitioner may only rebut this
presumption with clear and convincing evidence of the state
court‘s error. Miller-El v. Cockrell, 537 U.S.
322, 341 (2003) (stating that the clear and convincing
standard in § 2254(e)(1) applies to factual issues,
whereas the unreasonable application standard of §
2254(d)(2) applies to factual decisions); Matteo, 171 F.3d at
888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir.
2005). This presumption of correctness applies to both
explicit and implicit findings of fact. Campbell v.
Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently,
a habeas petitioner "must clear a high hurdle before a
federal court will set aside any of the state court‘s
factual findings." Mastracchio v. Vose, 274
F.3d 590, 597-98 (1st Cir. 2001).
the "unreasonable application" prong of paragraph
(1), a factual determination should be adjudged
"unreasonable" under paragraph (2) only if the
court finds that a rational jurist could not reach the same
finding on the basis of the evidence in the record. 28 U.S.C.
§ 2254(d)(2); Porter v. Horn, 276 F.Supp.2d
278, 296 (E.D. Pa. 2003); see also Torres v. Prunty,
223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v.
Virginia, 443 U.S. 307, 316 (1979). "This provision
essentially requires the district court to step into the
shoes of an appellate tribunal, examining the record below to
ascertain whether sufficient evidence existed to support the
findings of fact material to the conviction."
Breighner v. Chesney, 301 F.Supp.2d 354, 364 (M.D.
Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and
(f)). Mere disagreement with an inferential
leap or credibility judgment of the state court is
insufficient to permit relief. Porter, 276 F.Supp.2d at 296;
see also Williams v. Taylor, 529 U.S. 362, 408-09
(2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir.
2001). Only when the finding lacks evidentiary support in the
state court record or is plainly controverted by evidence
therein should the federal habeas court overturn a state
court‘s factual determination. Porter, 276 F.Supp.2d at
296; see also Williams, 529 U.S. at 408-09.
Ineffective Assistance of Counsel Standard
Sixth Amendment right to counsel is the right to the
effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). This right to effective assistance of
counsel also extends to the first appeal. Lewis v.
Johnson, 359 F.3d 646, 656 (3d Cir. 2004). In
Strickland, the Supreme Court articulated a two-prong test in
assessing whether a petitioner has been denied the effective
assistance of counsel. Strickland, 466 U.S. at 687-88. A
petitioner must demonstrate: (1) that his counsel‘s
representation "fell below an objective standard of
reasonableness" and (2) that such defective performance
caused the petitioner prejudice. See id.
evaluating the first prong of the Strickland test, the court
must be "highly deferential" toward counsel‘s
conduct. Id. at 689. There is a strong presumption
that counsel‘s conduct fell within the wide range of
reasonable professional assistance. Id. ("It is
all too tempting for a defendant to second-guess
counsel‘s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel‘s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable."). "Strickland and its progeny make
clear that counsel‘s strategic choices will not be
second-guessed by post-hoc determinations that a different
trial strategy would have fared better." Rolan v.
Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006) (citing
Strickland, 446 U.S. at 689). Notably, courts will not deem
counsel ineffective for failing to raise a meritless
argument. Strickland, 466 U.S. at 691; United States v.
Saunders, 165 F.3d 248, 253 (3d Cir. 1999).
satisfy the prejudice prong, the petitioner must show that
there is a reasonable probability that, but for
counsel‘s deficient performance, the outcome of the
proceeding would have been different. See Strickland, 466
U.S. at 694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. Moreover, the petitioner must show that he or
she had a reasonable likelihood of prevailing on the motion
at issue, and having prevailed on the motion, it was also
reasonably likely that the result of the trial would have
been different. See Thomas v. Varner, 428 F.3d 491,
502 (3d Cir. 2005).
prevail on a claim for ineffective assistance of counsel, a
petitioner must satisfy both prongs of the Strickland test.
Carpenter v. Vaughn, 296 F.3d 138, 149 (3d Cir.
2002). The inquiry may begin with either the deficient
performance or prejudice prong, and the court is not required
to consider the second prong of the test if the petitioner is
unable to satisfy the first one. Strickland, 466 U.S. at 697.
Bibbs‘ ineffective assistance of counsel claims were
addressed by the state courts on the merits and, therefore,
are subject to AEDPA review.
instant petition, Bibbs alleges ineffective assistance of
trial counsel on the following grounds: (1) trial counsel
failed to file a pretrial motion to suppress suggestive
identification; (2) trial counsel failed to object to
in-court identification; (3) trial counsel was ineffective
for eliciting testimony during cross-examination which
allegedly implicated Bibbs in an unrelated robbery; (4) trial
counsel failed to pursue a claim of prosecutorial misconduct
when the prosecutor withheld a copy of the victim‘s
statement to police; (5) trial counsel failed to request
transcription of opening and closing arguments, objections,
rulings, and jury instructions; and, (6) trial counsel failed
to object to the admissibility of a photo array. (Doc. 1).
argues that trial counsel, Lawrence J. Bartel, Esquire, was
ineffective for not moving to suppress Berry‘s pretrial
identification of him and failing to object to Berry‘s
in-court identification of him.
federal standard for evaluating the reliability of
identification evidence was articulated by the United
States Supreme Court in Neil v. Biggers,409 U.S. 188,
93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Neil, the Court held
that "convictions based on eye-witness identification at
trial following a pretrial identification by photograph will
be set aside on that ground only if the photographic
identification procedure was so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable
misidentification." Id. at 196-97 (quoting
Simmons v. United States,390 U.S. 377, 384, 88
S.Ct. 967, 19 L.Ed.2d 1247 (1968)). The Court observed that
the central question in this analysis is "whether under
the 'totality of the circumstances‘ the
identification was reliable even though the confrontation
procedure was suggestive." Id. at 199. The
Court specified that the factors to be considered are
"the opportunity of the witness to view the criminal at
the time of the crime, the witness‘ degree ...