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Bibbs v. Gilmore

United States District Court, M.D. Pennsylvania

March 28, 2018

ROBERT GILMORE, et al., Respondents


          Christopher C. Conner, United States District Court Chief Judge

         Petitioner 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 petition.

         I. Factual Background

         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‘s cab.
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).

         II. State Court Proceedings

         Following 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 5-6).

         Bibbs 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 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.

         On 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 petition.

         On June 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).

         On 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).

         III. Standards of Review

         The 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.

         A. Exhaustion

         Habeas 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).

         A state 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 S.Ct. 509).

         In this case, respondents concede that Bibbs properly exhausted each claim raised in the federal habeas petition. (Doc. 19-1, at 12-13).

         B. Merits Standard

         Once a 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 unless:

(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 court proceeding.

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." Id.

         Further, 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).

         Like 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)[1]). 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.

         C. Ineffective Assistance of Counsel Standard

         The 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.

         In 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).

         To 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).

         To 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.

         All of Bibbs‘ ineffective assistance of counsel claims were addressed by the state courts on the merits and, therefore, are subject to AEDPA review.

         IV. Discussion

         In the 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).

         A. Suggestive Identification

         Bibbs 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.

         The 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 ...

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