United States District Court, E.D. Pennsylvania
G. SMITH, J.
NOW, this 29th day of August, 2019, after
considering (1) the petition for a writ of habeas corpus
under 28 U.S.C. § 2254 filed by the pro se
petitioner, Jeffery Gladney (“Gladney”) (Doc. No.
1), (2) the response to the habeas petition filed by the
respondents (Doc. No. 17), the report and recommendation
filed by the Honorable Thomas J. Rueter (the
“R&R”) (Doc. No. 18), Gladney's
“Traverse for Habeas Corpus Relief” (Doc. No.
19), the state court record, the supplemental report and
recommendation filed by Judge Rueter (the “Supplemental
R&R”) (Doc. No. 22), and Gladney's objections
to the R&R and Supplemental R&R (Doc. No. 25), it is
hereby ORDERED as follows:
clerk of court is DIRECTED to
REMOVE this action from civil suspense and
RETURN it to the court's active docket;
Gladney's objections to the R&R and Supplemental
R&R (Doc. No. 25) are
Honorable Thomas J. Rueter's R&R (Doc. No. 18) and
Supplemental R&R (Doc. No. 22) are
APPROVED and ADOPTED;
Gladney's petition for writ of habeas corpus (Doc. No. 1)
Gladney has not made a substantial showing of the denial of a
constitutional right and is therefore not entitled to a
certificate of appealability, 28 U.S.C. §
clerk of court shall mark this case as
in the habeas petition as vague and, even if it was an error,
Gladney would not be entitled to relief because Judge Rueter
analyzed the petition based on the claims Gladney raised to
the state courts. Therefore, this objection is overruled.
the second objection, Judge Rueter properly determined that
some of Gladney's claims were procedurally defaulted.
Gladney never points to any document or text in the record
showing that he raised a constitutional prosecutorial
misconduct claim under either the Sixth or the Fourteenth
Amendments and there is no indication in the record before
this court that the Pennsylvania appellate courts interpreted
his submissions as raising a federal constitutional claim.
Additionally, with respect to Gladney's claim relating to
the prosecutor's comment about him being on the run,
Judge Rueter explained that even if Gladney had preserved a
constitutional claim about this comment, the claim lacked
merit because the comment “was not so egregious that it
fatally infected the proceedings and rendered the entire
trial unfair, ” R&R at 11 (citing Darden v.
Wainwright, 477 U.S. 168, 181 (1986)), the trial court
gave a curative instruction that the jury should disregard
this statement, and there is a presumption that the jury
followed the trial court's instructions. Id.
(citing Greer v. Miller, 483 U.S. 756, 766 n.8
(1987) and United States v. Gonzalez, 905 F.3d 165,
169 (3d Cir. 2018)).
Gladney's claim that the prosecutor committed misconduct
by impermissibly vouching for the credibility of a witness,
Judge Rueter accurately noted that the Superior Court
determined that Gladney waived this issue under Rule 2119(c)
of the Pennsylvania Rules of Appellate Procedure. Judge
Rueter explained that “[c]ourts in this district have
found Pa. R. App. P. 2119(c) to be an independent and
adequate ground for the purposes of the procedural default
doctrine.” Id. at 12 (citing Davis v.
McGinley, 2018 WL 3596867, at *20 (E.D. Pa. Feb. 21.
2018) (collecting cases), approved and adopted by,
2018 WL 3585171 (E.D. Pa. July 25, 2018)). Judge Rueter
pointed out that Gladney had the burden to show that this
procedural rule is not independent and adequate, and Gladney
failed to meet this burden. Id. Gladney has failed
to articulate how Judge Rueter erred in finding procedural
default here, and this court has no issue with Judge
final note, Gladney does not explain how Judge Rueter erred
in determining that he did not demonstrate cause and
prejudice to excuse any procedural default through his
passing reference to the ineffectiveness of his direct appeal
counsel. Judge Rueter appropriately determined in the
Supplemental R&R that Gladney has not demonstrated cause
and prejudice here because he failed to (1) exhaust any
ineffective assistance claim against his counsel because he
did not file an appeal from the denial of his PCRA petition,
and (2) establish cause and prejudice that would have excused
him from exhausting his ineffective assistance of counsel
claim. Therefore, to the extent that Gladney's objection
extends to this argument as well, he is not entitled to any
relief, and the court overrules the objection to Judge
Rueter's procedural default determinations.