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Jones v. Gavin

United States District Court, E.D. Pennsylvania

August 20, 2019



          TIMOTHY J. SAVAGE J.

         In this § 2254 habeas case arising out of his murder conviction, state prisoner Antonio Jones claims that his trial counsel was ineffective for failing to impeach two Commonwealth eyewitnesses who identified him as the shooter of the victim. Both eyewitnesses had previously given statements undermining their identification of Jones as the shooter, but trial counsel did not present that evidence to the jury. Jones argues that his trial counsel was ineffective for failing to call two police officers to testify about the statements those witnesses had given that contradicted or significantly undermined their trial testimony.

         During state post-conviction proceedings, Jones repeatedly attempted to raise the same ineffective assistance claim. After his counsel failed to raise the claim, Jones filed a pro se application to remand and for appointment of new counsel. The Superior Court, following its Battle procedure, [1] vacated the lower court's order denying PCRA relief and remanded for an evidentiary hearing. Two years later, abrogating the Battle procedure, the Pennsylvania Supreme Court vacated that order. Comm. v. Jette, 23 A.3d 1032, 1034-35 (Pa. 2011). As a result, despite his persistent efforts throughout the post-conviction process, Jones has never had a merits determination of his ineffectiveness of trial counsel claim.

         Jones contends that his claim was barred by an inadequate state procedural rule and should be reviewed on the merits. Alternatively, he argues procedural default of his underlying claim of ineffective assistance of trial counsel is excused under Martinez v. Ryan, 566 U.S. 1 (2012).

         We conclude that procedural default of the ineffectiveness of trial counsel claim is excused under both the inadequate state procedural rule and Martinez. Upon review of the underlying claim, we find that trial counsel's performance was deficient and Jones was prejudiced as a result because there is a reasonable probability that the outcome of the trial would have been different. Therefore, we shall conditionally grant a writ of habeas corpus.

         Factual Background

         On the morning of February 14, 1999, fifteen-year-old Christopher McClain was shot and killed while sitting in a parked car with two other teenagers, Kenyatta Rucker and Charles Lyles. McClain was in the driver's seat, Lyles in the front passenger seat, and Rucker in the rear seat behind McClain.

         McClain had driven to 715 Clearfield Street with Rucker, Lyles, and Jennifer Osorio to pick up Osorio's baby from the home of Marques Riggins, the child's father. Shortly after Osorio went into the home, three males walked out of an alley and passed McClain's parked car. One of them asked the occupants if they wanted to buy weed. When the boys in the car declined, one of the males on the street started shooting. Rucker and Lyles both ran to Riggins's house to call the police.

         The police arrived at the scene within minutes. The first two officers to respond tended to McClain, who was still alive but unconscious. Those officers transported him to Temple University Hospital. Other officers arrived and interviewed witnesses.[2] Officer Walter Brennan spoke with Lyles, the victim's cousin, who was “screaming & crying”.[3]

         Lyles told Officer Brennan that three black males had approached the car and one of them started shooting. Officer Brennan recorded Lyles's description of what had happened and what the three males had done:

#1 was wearing a yellow jump suit with a blue hoodie. Med complexion, 5'10” - 6'0”, he had no hat, was the shooter he fled on foot East on Clearfield toward Kensington. #2 dressed all in black. #3 He could give no information on.
. . .
He said that the deceased was his cousin. He said they were sitting in his cousin's car waiting for the deceased (sic) girlfriend when the three males approached asked the deceased if he wanted to buy some pot. He told them no the three males walked towards Kensington Ave when the male in yellow spun around started shooting. He ducked down under the dash board. When the shooting stopped he shook his cousin to get out of there when he noticed that he was bleeding from the head.[4]

         Sergeant Scott Bradley spoke with Rucker at the crime scene. Rucker told him that he had been in the car and had seen the shooters. Sergeant Bradley recorded what Rucker told him:

He stated that there were three males, and that they fled on foot Eastbound on Clearfield St. He said that the males approached them in the car, and the males came up to them, and there was a short conversation about weed, and then they left, and then they came back and they started to shoot. He didn't say how many had guns. He said that one of them had a yellow jump suit on.[5]

         Based on the statements of Rucker and Lyles, police radio broadcasted flash information. It reported several black males running from the scene east on Clearfield Street toward Custer Street, one of whom was wearing “some kind of jumpsuit or work suit.” Sergeant Bradley also interviewed Rhonda Riggins, the victim's cousin, who did not see the shooting but saw the shooters shortly beforehand. She told several police officers that the shooters were “Khalil” and “Ed.”[6]

         Marques Riggins, Rhonda's brother, reported that he saw Khalil Rippy and Edward Thomas running from the scene immediately after the shooting. He told the police that Rippy and Thomas were brothers who sold drugs at Custer and Clearfield Streets, around the corner from the shooting. He did not mention a third man.[7]

         Rucker, Lyles and Marquis Riggins were taken to a police station where they gave statements to detectives that afternoon. Those statements were not consistent with the ones they had made earlier at the scene.

         Lyles gave different descriptions of the shooter and his companions than he had at the scene immediately after the shooting. At the station, Lyles said two males came out of the alley. The light-skinned one asked “if we was looking for … weed” and then “the light skinned guy pulled out a gun. I ducked under the dash when I saw the gun. I thought PHER saw it too. Then I heard 2 shots . . . .”[8] Lyles described the two males. According to Lyles the light-skinned male with the gun was 17-18 years old, “5'7 [or] 5'8 with a little nappy Afro, ” and wearing “a dark blue colored hoody.” The other male was darker, shorter, and dressed in “black jeans and a black hoody”.[9] From a photo array, he identified Antonio Jones as the shooter and Edward Thomas as the male with the shooter.[10] He said nothing about a yellow jumpsuit or a third male as he had told Officer Brennan earlier.

         Rucker's statement to detectives was also inconsistent with what he had described earlier at the scene. He had told Sergeant Bradley that morning that there were three males present at the time of the shooting and one wore a yellow jumpsuit. In his afternoon statement, Rucker did not mention anyone wearing a yellow jumpsuit. He stated:

Two of the three boys from the other block came out of the alleyway and stood across from our car. The dark skinned boy asked if we wanted weed Man-Man said No. Then the light skinned boy just pulled out a gun and started shooting. I heard a couple shots and I ducked down....[11]

         As Lyles did, Rucker identified Antonio Jones as the shooter from a photo array. He also identified Khalil Rippy as one of the three males and Edward Thomas as the person who tried to sell them weed. He stated Rippy was not present at the time of the shooting.

         Edward Thomas was arrested the next day and charged with murder and related offenses. The charges were later quashed.

         Learning that there was an arrest warrant for him, Jones surrendered to police on February 18, 1999. He was charged with the murder of Christopher McClain.

         On September 13, 2000, a jury found Jones guilty of third-degree murder, violation of the Uniform Firearms Act, and possession of an instrument of crime. On December 4, 2000, Jones was sentenced to 15-30 years' imprisonment on the murder count and a concurrent term of one to two years' imprisonment on the remaining counts.

         Procedural History

         Direct Appeal

         After Jones was sentenced, his trial counsel requested leave to withdraw as counsel. The trial judge ordered him to file a notice of appeal within thirty days before withdrawing. Despite the judge's clear instructions, trial counsel did not file a notice of appeal. On June 25, 2001, less than seven months later, Jones filed a pro se PCRA petition requesting the court to reinstate his direct appellate rights. The trial court reinstated his appellate rights and appointed counsel.

         Appellate counsel raised only sufficiency and weight of the evidence claims. Addressing the merits of only the sufficiency of the evidence claim, the Superior Court affirmed the conviction and sentence on December 19, 2003, in an unpublished memorandum opinion.[12] The Pennsylvania Supreme Court denied allocatur on June 30, 2004.[13]

         PCRA Proceedings

         Jones filed a timely pro se PCRA petition on December 6, 2004, raising several ineffective assistance of counsel claims.[14] One was that trial counsel failed to preserve a weight of the evidence claim. He based this argument on the inconsistencies between Rucker's and Lyles's trial testimony and their crime scene statements to Sergeant Bradley and Officer Brennan.

         After PCRA counsel was appointed and before the PCRA Court considered the petition, Jones filed a pro se request to amend his PCRA petition to add the additional claim that trial counsel was ineffective for failing to impeach Rucker and Lyles with extrinsic evidence of their prior inconsistent statements.[15] The PCRA Court did not rule on his request to amend.

         On June 14, 2006, PCRA counsel filed an amended PCRA petition. He did not include the claim Jones wanted to make. He raised only the following two claims:

1. Trial and appellate counsel were ineffective for failing to raise and preserve a weight of the evidence challenge; and
2. Trial and appellate counsel were ineffective for failing to investigate and present known alibi witnesses.

         On February 1, 2007, the Commonwealth moved to dismiss, contending that the claims lacked merit. The PCRA Court filed a Notice of Intent to Dismiss on February 16, 2007. On February 27, 2007, petitioner requested that PCRA counsel be replaced or he be granted leave to proceed pro se pursuant to Comm. v. Grazier, 713 A.2d 81 (Pa. 1998).

         The PCRA Court, without holding an evidentiary hearing or addressing the request for a Grazier hearing, denied relief on April 13, 2007. The court ignored the pro se motion to amend the PCRA petition to include the claim of ineffective assistance of counsel for failure to use the witnesses' prior inconsistent statements to impeach their testimony.

         Jones filed a pro se notice of appeal on April 30, 2007. His court-appointed PCRA counsel also filed a notice of appeal on May 14, 2007, which was docketed in the Superior Court as a separate action. On June 7, 2007, counsel filed a Concise Statement of Matters Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (“1925(b) Statement”) in which he raised the same two issues he had at the PCRA level. He did not include the third claim Jones had insisted he present. Jones then filed a pro se Application for Remand, arguing that the PCRA Court had ignored his Grazier request to proceed pro se.

         On July 13, 2007, the Superior Court dismissed the pro se appeal, ordered that the pro se Application for Remand be docketed under the counseled appeal, and remanded the case to the PCRA Court to hold a Grazier hearing. At the Grazier hearing on September 28, 2007, Jones stated that he did not wish to represent himself and wanted new counsel appointed. The PCRA Court appointed new counsel to represent Jones. On November 6, 2007, new counsel filed a 1925(b) Statement, listing the same two issues prior counsel had in the amended PCRA petition. Like his predecessor, new counsel did not include the ineffectiveness claim premised on the failure to impeach.

         On November 16, 2007, the PCRA Court issued an opinion rejecting the two claims counsel had asserted. The court did not address the failure to impeach claim, concluding that it was waived because it had not been included in the 1925(b) Statement.

         On April 14, 2008, in his appellate brief to the Superior Court, counsel raised only one issue. He argued that the PCRA Court had erred in denying an evidentiary hearing on the alibi claim. On May 9, 2008, Jones filed a pro se application to remand and for appointment of new counsel. He claimed his then-current counsel was ineffective for failing to include in his 1925(b) Statement the ineffectiveness claim that he had been trying to raise repeatedly since he filed his pro se motion to amend his April 2005 PCRA petition. In his application, Jones noted that if counsel had read the transcript of the Grazier hearing held on September 28, 2007 and reviewed his pro se pleadings, he would have been alerted to the issue.[16] Counsel then filed a petition to remand for appointment of appellate counsel.

         On June 11, 2008, pursuant to its Battle procedure, the Superior Court denied Jones's pro se application to remand and for appointment of new counsel. Instead, the court instructed his second PCRA counsel to address Jones's allegations of appellate counsel's ineffectiveness. Counsel's response was that he “believe[d]” that the failure to impeach issue had “no merit because this issue was not raised before the PCRA/trial court and cannot now be raised for the first time on appeal.”[17] It appears PCRA counsel conflated merits and waiver arguments.

         On November 20, 2008, the Superior Court found that the petition to remand to appoint new counsel was deficient because it failed to adequately evaluate and analyze Jones's ineffectiveness claims.[18] The court noted that Jones was making the same specific ineffectiveness claim that he had previously made in his April 2005 pro se petition to amend the PCRA petition to add it. The court also stated that the amended PCRA petition filed in June 2006 raised “this issue in the context of trial counsel's ineffectiveness for failing to preserve a weight of the evidence claim.”[19] Accordingly, the court concluded that appellate counsel could not “rely on the waiver doctrine.”[20]

         Additionally, the Superior Court noted that the PCRA Court's opinion addressed the weight of the evidence issue only with respect to Jones's contention that the two witnesses lacked credibility because they had been given “deals” on unrelated drug charges in exchange for their testimony against Jones. This statement is not entirely accurate. The PCRA Court did examine the weight of the evidence claim in light of the assertion that the Commonwealth witnesses had not consistently identified Jones as the shooter. Specifically, after analyzing Lyles's and Rucker's testimony, the PCRA Court concluded that they “never wavered in their identification of Petitioner as the shooter. Neither man ever identified Petitioner's cohort, Edward Thomas, as the shooter, but as the man who asked them if they wanted marijuana. . . . [T]he men testified that within hours of the shooting each of them had identified Petitioner as the shooter from a photo array presented to them by the police.”[21]

         Because neither the PCRA Court nor counsel in his petition to remand analyzed the ineffectiveness claim regarding the impeachment of Rucker and Lyles by their prior inconsistent statements, the Superior Court concluded that the issue “was never properly presented or reviewed, ” and, consequently, it could not “adequately review the ineffectiveness claim raised in Jones's pro se petition” and was “left to speculate as to the alleged prior inconsistent statements.” It directed counsel to amend the petition to remand by providing a “careful evaluation” and analysis of Jones's pro se ineffectiveness claim “rather than relying on a finding of waiver.”[22]

         In response to the Superior Court's directive, counsel filed a supplemental amended PCRA petition arguing that Jones's trial counsel was ineffective when he failed to call Officer Brennan and Sergeant Bradley who would have impeached and contradicted the trial testimony of Rucker and Lyles about what the shooter was wearing. He accurately explained that both witnesses had initially told police there were three perpetrators and that the shooter wore a yellow jumpsuit, but testified at trial that there were only two assailants and neither was wearing a jumpsuit. He also noted that Marques Riggins testified that the person wearing a yellow jumpsuit was not Jones. Counsel asserted that the claim of ineffectiveness for failure to impeach the witnesses “has not been waived by the defendant.”[23]

         On April 7, 2009, the Superior Court vacated the order denying PCRA relief.[24]Based on the inconsistencies between the trial testimony of Rucker and Lyles, and their earlier statements to police, it determined that Jones was entitled to an evidentiary hearing on the issue of whether trial counsel was ineffective for failing to call the two police officers to impeach the testimony of the two Commonwealth eyewitnesses with their prior inconsistent statements. The court noted that although trial counsel was aware of and suggested during his cross-examination that the two witnesses had given prior inconsistent statements to police, he did not introduce evidence of those statements to confirm his suggestion.

         Because “identification [was] the critical issue and the prior inconsistent statement relate[d] to that identification, ” the Superior Court stated that there may have been ineffectiveness “where that statement would corroborate the defense theory that Jones was not the shooter and thus change the outcome of trial.”[25] Notably, the court stated:

“Had the jury heard this evidence, it may have cast serious doubt on the veracity of the eyewitnesses. Without a hearing on this issue, we are unable to discern whether counsel had a reasonable basis for hinting at this evidence, but not following through with it.”[26]

         Thus, it vacated the order dismissing Jones's PCRA petition and remanded for an evidentiary hearing, a hearing that would never take place in state court.

         On April 30, 2009, the Commonwealth filed a petition for allocatur to the Pennsylvania Supreme Court, arguing that the Battle procedure should be abrogated because it contravened the Pennsylvania rule barring hybrid representation. Essentially, the Commonwealth contended that the Superior Court had erred in considering the issue Jones had raised pro se while represented by counsel. The Supreme Court stayed the allocatur petition while it considered the validity of the Battle procedure in a pending case, Comm. v. Jette, 40 EAP 2009. Almost two years later, in Jette, the Supreme Court invalidated the Battle procedure. Jette, 23 A.3d at 1032. The Jette Court found that the Superior Court in Battle had misinterpreted the Supreme Court's decision in Comm. v. Ellis, 626 A.2d 1137 (Pa. 1993), which had held that a criminal defendant has no right to hybrid representation in either trial or appellate courts. Jette, 23 A.3d at 1038. It held that the “Battle Procedure as applied to address pro se claims of appellate counsel's ineffectiveness while that counsel is still representing the appellant is in contravention of this Court's long-standing policy that precludes hybrid representation.” Id. at 1036 (citations omitted). Thus, it held that any pro se pleading filed by a represented PCRA petitioner is to be forwarded to counsel without commentary; and, if counsel still refuses to address the pro se issues, the petitioner's only recourse is to proceed pro se or retain new counsel. Id. at 1042.

         On September 14, 2011, in Jones's case, the Supreme Court granted the Commonwealth's petition for allowance of appeal, vacated the Superior Court's April 2009 decision, and remanded the case for reconsideration in light of Jette. On July 20, 2012, the Superior Court again vacated the lower court's order denying PCRA relief, concluding that the Superior Court had met the requirements of Jette in its April 2009 decision.

         The Commonwealth again sought allowance of appeal in the Pennsylvania Supreme Court, which granted allocatur, vacated the Superior Court's July 2012 decision, and remanded the case again for reconsideration in light of Jette. The Supreme Court explained:

[T]he Superior Court's November 20, 2008 and April 7, 2009 decisions did not exercise the judicial restraint dictated by Jette. Rather than simply forwarding [petitioner's] pro se filings [to his attorney] as Jette would dictate, the Superior Court took the additional Battle step of ordering counsel to submit a petition for remands [sic], which the court then evaluated. When that court-ordered response by counsel was deemed insufficient, the Superior Court took the further step of ordering counsel to submit yet another petition for remand. Upon evaluating the new petition, the court remanded both for an evidentiary hearing and to appoint new counsel. Those directives did not comport with our Jette directive that, following the forwarding of pro se filings to counsel, the court is to take no other action unless counsel forwards a motion. The remand petitions forwarded by counsel here were required by the Superior Court, employ[ing] the since-disapproved procedure in Battle.

Comm. v. Jones, 58 A.3d 751, 751 (Pa. 2012). The Supreme Court instructed the Superior Court to limit its review to the issue originally presented in the appellate brief. Id. at 752. It effectively barred the PCRA Court from considering the ineffectiveness claim Jones had been pressing for over eight years.

         On June 7, 2013, the Superior Court issued a decision affirming the order of the PCRA Court denying PCRA relief.[27] In its opinion, the court examined only the original issue raised in the counseled brief on PCRA appeal, namely, that trial counsel was ineffective for failing to investigate and present known alibi witnesses. The Superior Court agreed with the PCRA Court that the alibi claim lacked merit. Jones's petition for allocatur was denied on October 13, 2013.[28] Thus, the Pennsylvania courts have never decided whether trial counsel was ineffective for failing to impeach the Commonwealth's identification witnesses by their prior inconsistent statements -- the issue Jones has continually attempted to present since seeking to amend his first PCRA petition.

         Federal Habeas Proceedings

         Jones filed his timely pro se habeas petition, raising the following claims:

(1) Trial counsel was ineffective for failing to impeach the two Commonwealth witnesses, Lyles and Rucker, with prior inconsistent statements that contradicted their trial testimony regarding their identification of the petitioner as the shooter.
(2) Jones was denied due process because the evidence, based on Lyles's and Rucker's faulty identification of Jones as the shooter, was insufficient to support his conviction.[29]

         In response, the Commonwealth argued that the first claim was unexhausted, procedurally defaulted and meritless. It contends that despite Jones's assertion that he had raised the issue in his pro se PCRA petition, he did not raise it in his initial pro se PCRA petition as an ineffective assistance of counsel claim. Nor was it raised in the amended PCRA petition filed by his appointed PCRA counsel. The Commonwealth also noted that Jones's second PCRA counsel declined to identify the issue in the Rule 1925(b) Statement and his brief. As to the second claim that the evidence was constitutionally insufficient to sustain the conviction, the Commonwealth argues it must fail because the Superior Court's decision finding the evidence sufficient was plainly reasonable.[30]

         Magistrate Judge Sitarski, to whom the petition was referred for a report and recommendation, appointed counsel and ordered an evidentiary hearing on the ineffective assistance of counsel claim. In his counseled brief, [31] Jones argued that PCRA counsel's failure to raise the ineffective assistance of counsel claim during the initial PCRA proceedings constituted cause and prejudice to overcome the procedural default of his constitutional claim. In a supplemental brief, Jones contended alternatively that the Jette rule that barred him from obtaining review of his claim by the PCRA Court was inadequate.

         On June 17, 2015, the magistrate judge conducted an evidentiary hearing regarding the claims that trial counsel was ineffective for failing to impeach the Commonwealth's eyewitnesses with their prior inconsistent statements, and the allegation that PCRA counsel was ineffective for failing to raise and litigate the ineffectiveness for failure to impeach claim. Both attorneys testified at the hearing. In his post-hearing brief, Jones contended that he established cause and prejudice to overcome procedural default of his ineffectiveness claim under Martinez, because he had demonstrated that counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), and the underlying ineffective assistance of trial counsel claim was substantial because it has merit.[32]

         Magistrate Judge Sitarski, in a thorough and thoughtful report, recommended that the habeas petition be denied. She concluded that Martinez did not excuse the default because the ineffectiveness claim was not substantial and PCRA counsel was not ineffective.[33] She found that trial counsel engaged in “active and capable advocacy, ” and his failure to call the police officers for impeachment purposes did not have an objectively unreasonable basis. Similarly, she found that PCRA counsel's representation was not constitutionally ineffective under Strickland when he failed to raise the defaulted claim of ineffective assistance of trial counsel.

         Magistrate Judge Sitarski also rejected Jones's alternative ground to excuse the procedural default of his claim on the basis that the Jette rule was an inadequate bar. She found that because Jones conceded that his claim of ineffective assistance of counsel for failure to impeach was not exhausted in state court, his inadequate bar ...

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