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Mitchell v. Folino

United States District Court, E.D. Pennsylvania

July 30, 2019

LOUIS FOLINO et al., Respondents.


          GERALD J. PAPPERT, J.

         On February 24, 2006, Tyrelle Mitchell filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenged his 1991 state court conviction, arguing that his Fifth Amendment rights were violated and that trial counsel was ineffective for failing to call exculpatory witnesses and for declining an alibi instruction. On December 21, 2007, Magistrate Judge Strawbridge issued a Report and Recommendation (“R. & R.”) recommending an evidentiary hearing on Mitchell's ineffective assistance of counsel claim and denial of the Petition as to all other grounds. Both parties filed objections, with Respondents objecting to the portion of the R. & R. granting the evidentiary hearing. On March 16, 2009, Judge Gardner overruled Respondents' objection, adopted and approved the R. & R. with respect to the evidentiary hearing and dismissed Mitchell's other objections without prejudice. The matter was remanded to Judge Strawbridge, who held an evidentiary hearing on the ineffective assistance of counsel claim on June 23 and 24, 2009.

         On May 31, 2011, Judge Strawbridge issued a Supplemental R. & R. (“Supp. R. & R.”) recommending denial of the Petition. Mitchell timely objected to the Supplemental R. & R. The case was reassigned from Judge Gardner to this Court on May 30, 2017. After thoroughly reviewing the record, Judge Strawbridge's Supplemental R. & R. and Mitchell's objections, the Court adopts the Supplemental R. & R. and denies Mitchell's Petition.



         The facts of this case are set forth in detail in Judge Strawbridge's R. & R. and Supplemental R. & R. See (R. & R. at 3-25, ECF No. 45; Supp. R. & R. at 2-23, ECF No. 132). The Court briefly summarizes those facts relevant to its review of Mitchell's objections.

         On April 12, 1990, Kevin Scott was shot to death and Mitchell was charged with his murder. See (R. & R. at 8; Supp. R. & R. at 3). The state court record reflects that Mitchell was represented by two attorneys in the early stages of the proceedings. See (Supp. R. & R. at 9-10). On June 28, 1990, Daniel Rendine appeared on Mitchell's behalf at his preliminary hearing in the Philadelphia Court of Common Pleas. See (id. at 10). Rendine later moved to suppress physical evidence, an identification at a lineup and the statement Mitchell gave to the police after he was arrested. See (id. at 10-11). On November 29, 1990, Judge Sabo listed the case for trial. See (id. at 11). Around that time, Rendine learned that Mitchell's prior counsel had hired an investigator to interview various witnesses. See (id.). Rendine obtained an order from Judge Sabo directing prior counsel to turn over the investigator's file (the “OSI Report”), but he had difficulty securing compliance with that order. See (id.). The case was continued on December 5, 1990. See (id.).

         Trial began on February 13, 1991. See (id.). Rendine pursued theories of misidentification and self-defense, arguing that Mitchell did not shoot Scott but, if the jury found that he did, Mitchell acted in self-defense. See (id. at 11-14). The jury heard from several defense witnesses, including Mitchell's longtime friend, Victoria Martinez. See (id. at 13). Martinez testified that she was with Mitchell and others on the night of Scott's murder. See (id.). On cross-examination, Martinez acknowledged that she did not come forward to tell the police Mitchell “had an alibi” after she learned he had been arrested for Scott's murder. See (id. at 14) (citation omitted). Rendine did not request an alibi instruction during the charging conference; he instead requested instructions pertaining to misidentification and self-defense. See (id.).

         On February 23, 1991, Mitchell was convicted of first-degree murder, four aggravated assault charges and weapons offenses related to the shooting. See (id. at 17). On February 25, the court re-convened to sentence Mitchell on the murder conviction. See (id.). Before the jury was brought in, Rendine notified the court that Mitchell's mother had spoken with Scott's mother over the preceding weekend. See (id. at 17-18). That conversation led Rendine to believe that “several people [who] were afraid to come forward because they were being threatened” had now “come forward with another version of this incident . . . which would relieve [Mitchell] of criminal responsibility.” (Id. at 18) (citation omitted). Judge Sabo told Rendine that he “can't stop anything at this stage” and instructed him to file post-trial motions. See (id.) (citation omitted). Mitchell was sentenced to life in prison for the murder and sentencing for the other offenses was deferred. See (id.).

         Rendine filed post-trial motions, which included a request for an evidentiary hearing on the “after-discovered evidence” he had previously discussed with Judge Sabo. See (id.) The judge denied the request on March 20, 1992, because he believed the issue would have to be addressed in a petition under the Post-Conviction Relief Act (“PCRA”) pursuant to 42 Cons. Stat. §§ 9541-9546. See (id. at 19). That same day, Mitchell was sentenced for the aggravated assault and weapons convictions. See (id. at 20).

         Mitchell subsequently filed a pro se “Motion for Reconsideration of Sentence & Petition for Writ of Coram Nobis, ” asking the court to consider “after discovered evidence” that “was not available to defendant for trial in [ ] spite of due diligence” and identified Vernetta Corey[1] and Darryl Finley as “two important defense witnesses” who were not presented at trial. (Id. at 21) (citation omitted). Judge Sabo denied the motion on April 13, 1992. See (id.).[2] The Pennsylvania Superior Court affirmed Mitchell's conviction. (R. & R. at 2, ECF No. 45.) On February 23, 1994, the Pennsylvania Supreme Court denied his petition for allocatur. See (id.). Mitchell did not seek review in the United States Supreme Court. See (id.).


         On January 10, 1997, Mitchell filed a pro se PCRA petition. Com. v. Mitchell, No. 1572 EDA 2001, slip op. (Jan. 18, 2005).[3] Judge Sabo appointed counsel for Mitchell, who filed an amended petition, arguing Rendine's ineffectiveness for failure to seek an alibi instruction and failure to present alibi witnesses. See Id. at 2. The case was reassigned to Judge Mazzola in 1998 upon Judge Sabo's retirement. See (R. & R. at 3). Judge Mazzola dismissed the petition on April 23, 2001 without holding an evidentiary hearing and issued his opinion on November 17, 2003. See (id.). Mitchell appealed to the Pennsylvania Superior Court, which affirmed Judge Mazzola's decision on January 18, 2005. See (id.). With respect to Mitchell's claim of trial ineffectiveness for failing to call alibi witnesses, the Superior Court recited the PCRA court's determination that because Mitchell failed to show he was prejudiced by the absence of testimony from these witnesses, “his claim was dismissed as meritless.” Mitchell, slip op. at 9. The Superior Court also added:

There is no other written account (be it notarized or otherwise) existing in the official record. This is fatal to [Mitchell's] contention that trial counsel was ineffective for failing to call known and existing alibi witnesses (i.e., Moore and Griffin), none of whom executed affidavits in support of their proposed testimony . . . Inclusion of copies of affidavits executed by alleged alibi witnesses Latrice Moore and Vanessa Griffin, which are attached to [Mitchell's] appellate brief, are not sufficient to undo not submitting the originals as part of the official record.

Id. at 10-11.[4] The court concluded by “finding no merit to any of the PCRA claims.” Id. at 11. The Pennsylvania Supreme Court denied Mitchell's petition for allocatur on November 23, 2005. Com. v. Mitchell, 586 Pa. 710, 889 A.2d 1214 (2005).


         Mitchell, again represented by counsel, filed his habeas petition on February 24, 2006, contending: (1) that trial counsel was ineffective for failing to call certain exculpatory witnesses; (2) that trial counsel was ineffective for declining an alibi instruction and (3) that his Fifth Amendment rights were violated when evidence of his silence in the face of an accusation was introduced against him. See (ECF No. 1).[5] Judge Strawbridge issued his R. & R. on December 21, 2007, in which he recommended granting an evidentiary hearing allowing Mitchell to further develop a record in support of his claim that Rendine was ineffective for failing to call Moore and Griffin at trial. See (R. & R. at 48-54). Judge Strawbridge recommended denial of the Petition on all other grounds. See (id. at 54-79). Both parties filed objections, with Respondents objecting solely to the portion of the R. & R. recommending the evidentiary hearing. (ECF Nos. 50 & 51.)

         On March 16, 2009, Judge Gardner overruled Respondents' objection and adopted and approved the R. & R. with respect to the evidentiary hearing. See (Order, ECF No. 77). He remanded the matter to Judge Strawbridge to conduct a hearing on Mitchell's ineffective assistance of counsel claim for failure to call Moore and Griffin at trial and “for preparation of a supplemental report and recommendation” addressing the remaining issues related to that claim. (Id. at 5.) He dismissed Mitchell's other objections without prejudice, instructing him to “raise [them] after a supplemental report and recommendation is filed.” (Id. at 5.) Judge Gardner also ordered the Clerk of Court to place the case in civil suspense “until such a time that a supplemental report and recommendation is filed.” (Id. at 5-6.)

         Judge Strawbridge held the evidentiary hearing on June 23 and 24, 2009. See (ECF Nos. 109-10). Mitchell presented the testimony of four witnesses: Moore, Griffin, Rendine and Mitchell's mother, Patricia Mitchell Oden. See (Supp. R. & R. at 24). On May 31, 2011, Judge Strawbridge issued his Supplemental R. & R., where he made a series of factual findings based largely on the witnesses' testimony. See (id. at 42-46). He ultimately determined that Mitchell had not demonstrated that Rendine performed deficiently at trial under Strickland v. Washington, 466 U.S. 668 (1984), and recommended that Mitchell's claim be denied. See (id. at 45-62). Mitchell timely objected to the R. & R. on June 10, 2011. (ECF No. 134.)[6] There was no activity in the case from 2011 until 2015, when an attorney from the Philadelphia District Attorney's Office entered his appearance. (ECF No. 151.)


         Mitchell now lodges through counsel seventeen objections to Judge Strawbridge's Supplemental R. & R. (Obj., ECF No. 134.) “[F]or the portion of the R&R to which no objection [is] made, the Court reviews the R&R for clear error.” Harris v. Mahally, No. 14-2879, 2016 WL 4440337, at *4 (E.D. Pa. Aug. 22, 2016).[7] The Court reviews de novo the specific portions of the R. & R. to which a party objects. See 28 U.S.C. § 636(b)(1); see also Cont'l Cas. Co. v. Dominick D'Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).


         Section 2254(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) limits a federal court's ability to grant habeas corpus relief to a petitioner based upon a federal constitutional claim that was “adjudicated on the merits” in state court. 28 U.S.C. § 2254(d). Where § 2254(d) applies, habeas relief shall not be granted unless the adjudication:

(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Id. A state court ruling is “contrary to . . . clearly established Federal law” if the court applies a rule that contradicts governing law set by the Supreme Court or if the court confronts a set of facts that are materially indistinguishable from a Supreme Court decision but arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406-07 (2000). A state court ruling “is considered an ‘unreasonable application' if the state court unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal principle to a new context, or unreasonably refuses to extend the principle to a new context where it should apply.” McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009). The petitioner must demonstrate that the state court's analysis was “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002). Where the state court's resolution of a claim required it to make a factual determination, the statute further provides that the state court's factual determination “shall be presumed to be correct, ” and that the petitioner bears the burden to rebut this presumption with a showing of “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).


         The Supreme Court's two-part test in Strickland governs claims for ineffective assistance of counsel. 466 U.S. at 669. “To succeed on such a claim, the petitioner must demonstrate (1) that counsel's performance was deficient, in that it fell below an objective standard of reasonableness, and (2) that the petitioner suffered prejudice as a result of the deficiency.” Blystone v. Horn, 664 F.3d 397, 418 (3d Cir. 2011) (citing Strickland, 466 U.S. at 687)). With respect to Strickland's first prong, there is a “strong presumption” that counsel's performance was not deficient. Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. Where “the record does not explicitly disclose trial counsel's actual strategy or lack thereof (either due to lack of diligence on the part of the petitioner or due to the unavailability of counsel), the presumption may only be rebutted through a showing that no sound strategy . . . could have supported the conduct.” Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005).

         With respect to prejudice, the defendant must show “that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. To make this showing, the “[d]efendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). The Court must consider the totality of the evidence before the jury in determining whether a petitioner satisfied this standard. See Berghuis, 560 U.S. at 389. Further, counsel cannot be found to be ineffective for failing to pursue a meritless claim. See United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015) (“‘[T]here can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument.'”) (quoting United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999)).


         Though many of Mitchell's objections are repetitive and reflect a factual as opposed to legal disagreement, ...

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