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Bender v. McGinley

United States District Court, M.D. Pennsylvania

July 17, 2019

CLARENCE A. BENDER, Petitioner
v.
THOMAS MCGINLEY, et al., Respondents

          MEMORANDUM

          Kane Judge.

         On 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.

         I. BACKGROUND

         A. Procedural History

         Petitioner 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).[1] 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 a.m.
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.

         Subsequently, Petitioner filed a Post Conviction Relief Act (“PCRA”) petition, [2] 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. 2014).

         Petitioner 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.)

         B. Petitioner's Habeas Claims

         Petitioner raises the following grounds for relief in the instant habeas petition:

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 ...

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