United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
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.
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.
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.
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.
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
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.).
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.
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 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.). 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.).
January 10, 1997, Mitchell filed a pro se PCRA
petition. Com. v. Mitchell, No. 1572 EDA 2001, slip
op. (Jan. 18, 2005). 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
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. 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).
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). 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 &
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.)
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.) 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
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). 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).
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;
(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. §
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).
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)).
many of Mitchell's objections are repetitive and reflect
a factual as opposed to legal disagreement, ...