United States District Court, M.D. Pennsylvania
CLARENCE A. BENDER, Petitioner
THOMAS MCGINLEY, et al., Respondents
January 10, 2019, pro se Petitioner Clarence A.
Bender (“Petitioner”), who is presently confined
at the State Correctional Institution in Coal Township,
Pennsylvania (“SCI Coal Township”), initiated the
above-captioned action by filing a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No.
1.) On February 15, 2019 Respondent filed a response to
Petitioner's § 2254 petition. (Doc. No. 9.) After
receiving an extension of time (Doc. Nos. 15, 16), Petitioner
filed a traverse (Doc. No. 18). His § 2254 petition is
therefore ripe for resolution. For the following reasons, the
Court will deny Petitioner's § 2254 petition.
is serving a term of life imprisonment imposed after he was
convicted of second-degree murder and robbery. (Doc. No. 1 at
1); see also Commonwealth v. Bender, Docket No.
CP-22-CR-0000287-2012 (Dauphin Cty. C.C.P. Nov. 5,
2012). The Superior Court of Pennsylvania set
forth the background of the case as follows:
Ms. [Tiffany] Daniels's testimony is summarized as
follows: Ms. Daniels and the Victim were engaged at the time
of the shooting. The Victim aspired to become a rapper,
posted videos of himself rapping on YouTube, and performed at
clubs and events. The Victim had a reputation as being
involved in the hip-hop scene and he maintained a public
image as being affluent.
On December 3, 2011, Ms. Daniels and the Victim went to the
Derry Street Café (“Café”), left,
went to another bar, and then returned to the Café at
approximately 12:15 a.m. on December 4, 2011. Ms. Daniels was
intoxicated by the end of the night. Although Ms. Daniels was
familiar with Appellant and [Brandon Ruiz
(“Co-Defendant”)], she did not see either
individual or [Appellant's friend, ] Mr. [Tyrell] Waiver
at the Café. Ms. Daniels and the Victim left the
Café at closing time, which was approximately 1:30
In the parking lot, the Victim tried to maneuver his and Ms.
Daniels's car out of its spot, but it was blocked by
another vehicle. The Victim exited his vehicle and asked a
nearby individual if he knew who owned the vehicle, but the
individual did not respond. The Victim turned and lifted his
right leg, at which point Appellant grabbed the Victim from
behind and demanded that he “give that shit up.”
[Co-Defendant] grabbed the Victim by the neck with his left
arm and, with his right hand, held a chrome semiautomatic gun
against the right side of the Victim's neck. When Ms.
Daniels heard Appellant threaten the Victim, she bent down to
look out of the open driver's side doorway.
The Victim reached for his gun as he was attacked. As
Appellant and the Victim tussled, [Co-Defendant], who was
unarmed, patted down the Victim. Ms. Daniels heard a gunshot,
exited the vehicle, and found the Victim lying face-up in a
pool of blood. One of the chains the Victim had that night
was missing after the shooting. Ms. Daniels asserted in her
testimony that Appellant shot the Victim.
Mr. [John] Sanks[, head of security at the Café, ]
testified that the Victim and Ms. Daniels were frequent
patrons of the Café. Mr. Sanks testified that he was
familiar with Appellant and [Co-Defendant], and that the two
men arrived around midnight on December 4, 2011. According to
Mr. Sanks's testimony, he patted down both Appellant and
[Co-Defendant], but found no contraband. Mr. Sanks testified
that he did not witness Appellant or [Co-Defendant]
interacting with Ms. Daniels or the Victim that night. Mr.
Sanks testified that Ms. Daniels and the Victim left the
Café, that Appellant, Mr. [Christopher] Diggs, and Mr.
Weaver left the bar a few minutes later, and that
[Co-Defendant] walked out afterwards. Mr. Sanks testified
that, upon hearing a gunshot outside, he looked across the
street and saw Appellant, [Co-Defendant], the Victim and Ms.
Daniels in the area where the shot came from; Mr. Sanks then
watched [Co-Defendant] and Appellant cross Derry Street to
return to the SUV. According to Mr. Sanks's testimony,
Appellant ran away from the scene first. Mr. Sanks testified
that [Co-Defendant] and Appellant got into the SUV and, after
a moment, the SUV drove westward down Derry Street.
According to [Harrisburg Police Department] Detective
[Christopher] Krokos's testimony, following an interview
on December 4, 2011, [Co-Defendant] provided him with a
statement that essentially claimed that Appellant and
[Co-Defendant] approached the Victim to assist him in
maneuvering his vehicle, but Appellant shot the victim and
took two of the Victim's chains. Detective Krokos
testified that, following an interview on January 3, 2012,
Appellant provided a statement that asserted that
[Co-Defendant] was fighting with the Victim in the parking
lot, Appellant approached the two in order to stop the fight,
but [Co-Defendant] shot the Victim. Detective Krokos
testified that the surveillance video from the Café
established Mr. Diggs, Mr. Weaver, and Appellant arrived at
the Café together, and that [Co-Defendant] met them at
the bar. Detective Krokos testified that the surveillance
video from the Café established that Appellant walked
up directly behind the Victim.
Commonwealth v. Bender, No. 1012 MDA 2013, 2014 WL
11015650, at *1-2 (Pa. Super. Ct. Jan. 27, 2014) (quoting
Trial Court Opinion, February 15, 2013, at 4-6, 15).
Following a jury trial on September 18, 2012, Petitioner was
convicted of second-degree murder and robbery. See
id. at *2.
Petitioner filed a Post Conviction Relief Act
(“PCRA”) petition,  seeking to have his direct appeal
rights reinstated. (Doc. No. 1 at 69.) His direct appeal
rights were reinstated on May 14, 2013, and he appealed his
convictions and sentence to the Superior Court.
(Id.) On January 27, 2014, the Superior Court
affirmed Petitioner's convictions, but vacated his
concurrent sentence for robbery due to the trial court's
failure to merge it as a lesser included offense. See
id. at *5. On August 29, 2014, the Pennsylvania Supreme
Court denied Petitioner's petition for allowance of
appeal. See Commonwealth v. Bender, 626 Pa. 703 (Pa.
then filed a PCRA petition, raising several claims for
relief, including claims of prosecutorial misconduct and
ineffective assistance of counsel. (Doc. No. 1 at 19.) The
PCRA Court dismissed Petitioner's petition on July 25,
2017. See Commonwealth v. Bender, Docket No.
CP-22-CR-0000287-2012 (Dauphin Cty. C.C.P. July 25, 2017).
The Superior Court affirmed the dismissal of Petitioner's
PCRA petition on July 27, 2018. See Commonwealth v.
Bender, No. 1278 MDA 2017, 2018 WL 3598652, at *1 (Pa.
Super. Ct. July 27, 2018). Petitioner subsequently filed the
instant petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 on January 10, 2019. (Doc. No. 1.)
Petitioner's Habeas Claims
raises the following grounds for relief in the instant habeas
1. Prosecutorial misconduct by not correcting known false
testimony by Ms. Daniels at trial;
2. Trial attorney was ineffective for failing to request a
suppression hearing before trial on the basis that the
affidavit of probable cause falsely stated that Petitioner
was armed and shot the victim;
3. Lower courts erred by not conducting a post-trial hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978),
on the basis of the allegedly false statement noted above;
4. Trial attorney was ineffective for not objecting to Ms.
Daniels's false testimony at trial and for not ...