United States District Court, W.D. Pennsylvania
THOMAS R. RHONE, Petitioner,
COMMONWEALTH OF PENNSYLVANIA, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, DISTRICT ATTORNEY FOR THE COUNTY OF BLAIR, and THOMAS McGINLEY, SUPERINTENDENT OF SCI COAL TOWNSHIP, Respondents.
Gibson, United States District Judge.
the Court are the counseled Amended Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254
("Petition") filed on behalf of Petitioner Thomas
R. Rhone ("Petitioner" or "Rhone") (ECF
No. 20), the Report and Recommendation of United States Chief
Magistrate Judge Cynthia Reed Eddy recommending that the
Petition be denied ("R&R," ECF No. 36), and
Petitioner's counseled Objections to the R&R. (ECF
No. 39). For the following reasons, the Report and
Recommendation will be adopted, as supplemented, the Petition
will be denied, and a certificate of appealability will be
STANDARD FOR REVIEWING A REPORT AND RECOMMENDATION
filing of timely objections requires the court to "make
a de novo determination of those portions of the
report or specified findings or recommendations to which
objection is made." 28 U.S.C. § 636(b)(1); see
also Goney v. Clark, 749 F.2d 5, 6 (3d Cir. 1984)
(explaining that de novo review is not required if
objections are not specific). In doing so, the Court may
accept, reject, or modify, in whole or in part, the findings
and recommendations contained in the report. 28 U.S.C. §
636(b)(1)(C). The district court may, in the exercise of
sound judicial discretion, rely on the magistrate judge's
proposed findings and recommendations. United States v.
Raddatz, 447 U.S. 667, 676 (1980); Goney, 749
F.2d at 7. "District Courts, however, are not required
to make any separate findings or conclusions when reviewing a
Magistrate Judge's recommendation de novo under
28 U.S.C. § 636(b)." Hill v. Barnacle, 655
Fed.Appx. 142, 148 (3d Cir. 2016). With regard to the
portions of the R&R to which no objections are made, the
district court should, as a matter of good practice,
"satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation."
Fed.R.Civ.P. 72(b), advisory committee notes.
Petition was referred to Chief Magistrate Judge Eddy, who
issued a R&R recommending that the Petition be dismissed.
While Rhone generally "opposes all the findings of the
Report and Recommendation," he specifically objects to
the recommendation that Claim Three of the Petition be
dismissed. Respondents did not file a response to
Petitioner's objections. His objections necessitate a
de novo review of the R&R by this Court.
as Rhone has a general objection to all the findings of the
R&R, the Court finds that such an objection is without
merit and will be denied. An objection to a R&R must
explain how the magistrate judge's analysis is alleged to
have been wrong, why it was wrong, and how de novo
review will achieve a different result on that issue. An
objection that does nothing more than state a disagreement
with the magistrate judge's suggested resolution, or
simply summarizes what has been presented before, is not an
objection as that term is used in this context. See
Thomas v. Am, 474 U.S. 140, 147 (1985) (noting that
"[t]he filing of objections to a magistrate's report
enables the district judge to focus attention on those issues
- factual and legal - that are at the heart of the
to Rhone's objection regarding Claim III of the Petition,
the Court finds that the magistrate judge correctly
recommended that the claim was procedurally defaulted.
Petitioner does not dispute that the claim is procedurally
defaulted, but rather, for the first time, now argues that
the procedural default should be excused under Cox v.
Horn, 757 F.3d 113, 119 (3d Cir. 2014) (quoting
Martinez v. Ryan, 566 U.S. 1 (2012)). Thus, the
Court will turn to Petitioner's argument that he can
overcome the procedural default of his trial counsel
ineffective assistance claim under Martinez.
claims of ineffectiveness of counsel not preserved and thus
defaulted on collateral review, Martinez provides a
possible means for establishing cause to excuse the default.
Martinez, 132 S.Ct. at 1315. The United States Court
of Appeals for the Third Circuit recently repeated the
requirements of the narrow exception to the doctrine of
procedural default recognized by the United States Supreme
Court in Martinez: "This exception is available
to a petitioner who can show that: 1) his procedurally
defaulted ineffective assistance of trial counsel has
'some merit;' and that 2) his state-post conviction
counsel was 'ineffective under the standards of
Strickland v. Washington." Workman v. Superintendent
Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019).
the Court does not find that Petitioner's state
post-conviction counsel was ineffective for failing to raise
a claim of trial counsel ineffective assistance based on
divided loyalties under the standards of Strickland.
Strickland contains two prongs, a performance prong and
a prejudice prong, both of which must be met to prove an
ineffective assistance of counsel claim. Bey, 856
F.3d at 238. To prove ineffective assistance of counsel under
Strickland, a petitioner must prove" '(1)
that his counsel's performance was deficient, that is, it
fell below an objective standard of reasonableness, and (2)
that counsel's deficient performance prejudiced his
client,' i.e., that 'there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.'" Id., citing Strickland, 466
U.S. at 694. Our appellate court has reasoned that to prove
that post-conviction counsel's performance caused
petitioner prejudice, petitioner "must show that state
post-conviction counsel could have obtained a different
result had he presented the now-defaulted
Workman, 915 F.3d at 939 (3d Cir. Feb. 12, 2019).
Meaning, petitioner "must prove the merits of his
underlying ineffective-assistance-of-trial-counsel claim in
order to excuse the procedural default of that claim and
obtain consideration on the merits." Id. The
Third Circuit further clarified in Workman that for
the purposes of a Martinez analysis, "what is
important is that the underlying
ineffective-assistance-of-trial-counsel claim is
"substantial," not that a petitioner has, in fact,
been "prejudiced" by trial counsel's deficient
performance under Strickland." Id.
the first Strickland prong, there is a strong
presumption that counsel's conduct was reasonable.
Strickland, 466 U.S. at 689. As to the second prong,
the United States Supreme Court held that "the defendant
must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at
Sixth Amendment guarantees a criminal defendant counsel's
"undivided loyalty." Government of Virgin
Islands v. Zepp, 748 F.2d 125, 131 (3d Cir. 1983). In
Mickensv. Taylor, the United States Supreme Court
defined an "actual conflict" as "precisely a
conflict that affected counsel's performance - as opposed
to a mere theoretical division of loyalties." 535 U.S.
162, 171 (2002).
Petitioner argues that his trial counsel had divided
loyalties because counsel "knew that Mr. Lyles was
willing to take responsibility and plead guilty." Obj.
at 2. Petitioner argues that his trial counsel "was
handicapped by the knowledge that Mr. Lyles had informed him
that he was responsible for the crimes . .. [and, therefore]
was not free to argue that Mr. Lyles committed the crimes
because Attorney Passarello knew that Mr. Lyles had agreed to
take responsibility for the crimes." Obj. at 3.
Court finds that the record belies Petitioner's arguments
that Attorney Passarello had divided loyalties which hampered
his representation of Petitioner. Rather, the record evidence
reflects that Attorney Passarello vigorously advocated on
behalf of his client. Further, at the PCRA hearing, Attorney
Passarello testified that he had numerous discussions with
Petitioner and Eli Lyles about the potential for conflict of
interest if they had inconsistent defenses. A motion to
suppress was filed on behalf of both defendants and after the
motion was denied, Eli Lyles sought separate counsel.
Attorney Passarello acknowledged that at some point was
informed that Mr. Lyles was willing to take a plea in return
for the nol pros of charges against Petitioner and
Mr. Robinson, the other co-defendant. PCRA Hearing
Transcript, ECF No. 10, Exhibit F, at 42. However, Attorney
Passarello further testified that he did not take that
statement as a factual admission by Mr. Lyles, but rather he
took the ...