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Maitland v. Gilmore

United States District Court, M.D. Pennsylvania

September 4, 2019

NIGEL ALI MAITLAND Petitioner
v.
ROBERT GILMORE, PA STATE ATTORNEY GENERAL, Respondents

          MEMORANDUM

          JAMES M. MUNLEY JUDGE

         Petitioner Nigel Ali Maitland (“Petitioner” or “Maitland”), a state inmate currently confined at the State Correctional Institution at Huntingdon, Pennsylvania, files the instant petition (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from convictions of murder in the first degree, 18 Pa.C.S. § 2502(a), criminal conspiracy, 18 Pa.C.S. § 903, and a firearms violation 18 Pa.C.S. § 6105, obtained in criminal case CP-67-CR-00003898-2009, in the Court of Common Pleas of York County, Pennsylvania. The petition is presently ripe for disposition. For the reasons set forth below, the petition will be denied.

         I. Background

         The facts underlying Maitland's convictions are contained in the June 19, 2012 decision of the Superior Court of Pennsylvania affirming his Judgment of Sentence which was entered in the Court of Common Pleas of York County on August 4, 2011. (Doc. 13-1). The facts are as follows:

In the early hours of May 10, 2009, [Maitland], Skyler Handy (“Handy”), Bradley Walker, (“Walker”), and several other young men from the Parkway area of York City, were at Cheers Bar on East Market Street in East York. The bar was located in a “neutral zone, ” i.e., not part of the Parkway area or the South Side area. A fight broke out at the bar, between members of the Parkway area and the South Side area over an incident that occurred a month earlier and involved [Maitland's] younger brother, Niam Johnson.
At trial, Fernando Valentin, Jr. (“Valentin”), who was originally charged with first-degree murder and criminal conspiracy along with [Maitland], testified for the Commonwealth in exchange for the Commonwealth's promise to drop all charges filed against him. Valentin testified that he arrived at the bar just prior to the fight. According to Valentin, someone pushed him to the floor while trying to get to [Maitland]. Bottles and stools were thrown during the bar fight and Walker was badly injured. As Valentin was getting up off the floor, he saw a group of young men rush toward him, [Maitland], and their companions. Valentin and [Maitland] fled the bar. [Maitland] left in a red Dodge Avenger. Valentin ran and called his cousin to pick him up down the street from the bar.
Valentin's cousin picked him up and took him to the Parkway area to meet up with [Maitland], Handy, and others. When Valentin arrived, he saw one of the young men from the Parkway area waving a gun and arguing with “Woody, ” who was from the South Side area, about the bar fight. Once Woody left the area, [Maitland], Handy, and some others came out of a house. Some of the young men got into a Ford Fusion, while others, including [Maitland], got into the Dodge Avenger. Although the two cars first stopped at the Holiday Inn on Route 30 in York, they proceeded to cross the street and rent a room at the Days Inn. At some point, Valentin went to get a soda. When he returned, only [Maitland] and Handy were in the room. At this time, Valentin observed an automatic handgun on the lower portion of a nightstand between the two beds, as well as a revolver in [Maitland's] shoe. [Maitland], Handy, and Valentin talked for a while, and then went to sleep. Sometime before noon, [Maitland] and Handy woke up Valentin, and the three checked out of the hotel.
[Maitland], Handy, and Valentin then drove in the Dodge Avenger to Lee's Store on Pershing Avenue in the Parkway area of York. At the store, the trio met others from the Parkway area and discussed the fight that occurred at Cheers. [Maitland] left at one point and returned to join the group. During that time, a silver Chevy Tahoe drove by the store. [Maitland] and Handy approached the Chevy Tahoe; shortly thereafter, the Tahoe left the area.
Around 2: 00 p. m., [Maitland], Handy, and Valentin entered the Dodge Avenger, with [Maitland] driving, Handy in the passenger seat, and Valentin in the back seat behind Handy. According to Valentin, they intended to finish smoking their marijuana and go to the mall to shop for Mother's Day presents. At some point, Valentin told [Maitland] to drop him at his sister's house, but [Maitland] drove in the opposite direction.
According to Valentin, the car was driving on Duke Street in an area of York that he knew “was outside of our territory.” N. T., 3/ 8/ 11, at 511. Valentin then heard [Maitland] say, “Oh shit, ” and the car swerved and stopped. After ducking down in the back seat, Valentin looked up and saw Handy hanging out of the window of the vehicle with a semi-automatic gun in his hand. At that time, Valentin also heard the driver's side door open, followed by three to four shots being fired by [Maitland]. [Maitland] then got back into the car and the three fled the scene.
Valentin further testified that, as [Maitland] was driving away from the scene, Handy was trying to unjam the semi-automatic gun and inadvertently pointed it at [Maitland]. [Maitland] yelled at Handy and told him to give the gun to Valentin. According to Valentin, [Maitland] said that he hoped “none of them bitches got hit that was over there.” N. T., 3/ 8/ 11, at 515. As [Maitland] proceeded to drive up South Duke Street, someone appeared in front of them and threw a brick or rock at the side of the car. The impact knocked the passenger side mirror off the vehicle.
[Maitland] continued to head north to a small parking lot where he parked the Dodge Avenger. After checking the damage to the vehicle, the trio left on foot and proceeded to Smith Street. Once there, Handy got into the driver's seat of a silver Chevy Tahoe. Valentin got into the passenger seat, and [Maitland] entered the back seat. Handy drove the vehicle to Lee's Store, where the three told some young men standing in front of the store what had happened. According to Valentin, they told them “to be careful in case [some] Southside dudes try to come around.” N. T., 3/ 8/ 11, at 520.
Handy then drove to the West Manchester Mall in York. Valentin testified that they were going to stop at the Bon Ton, but instead went into the movie theater and bought some tickets. After they bought the tickets, however, Handy began to get some phone calls about the shooting. The trio then left the theater without watching the movie. Handy then dropped Valentin off, and he and [Maitland] left in the Chevy Tahoe.
Mariah Johnson-Skibber testified that she was in front of 537 South Duke Street playing with the nine-year-old victim and some other children. According to Ms. Johnson-Skibber, a group of about fifteen to twenty males, ages thirteen to twenty, were hanging out on the same side of the street. Ms. Johnson-Skibber heard one of the young men scream, “Oh, shit, ” and she then saw a red car coming up the street swerving and stop about five houses up from where she and the kids were playing. Ms. Johnson-Skibber then observed [Maitland] get out of the driver's side of the vehicle with a gun and point it in her direction. According to Ms. Johnson-Skibber, after she heard the first shot, she picked up one of the kids and hid behind a porch. She testified that she heard three to four shots coming from the same gun. After Ms. ]ohnson-Skibber saw the car drive away, she came out from behind the porch and saw the victim laying on her stomach in a pool of blood and asking for help. The victim's uncle ran outside, put the victim in his car, and drove to the hospital. The victim died a short time later from a gunshot wound to her back.
The Commonwealth also introduced a letter [Maitland] had written while he was incarcerated. Within the letter, [Maitland] wrote:
I'm sitting here reading your letter, and the shit brought me to tears because this shit hurts, and I know you just as sick as me, cuz, and the crazy thing about it was I was on my fallback, but them bitch ass niggas was taking it too far. They crossed the line when they fucked with [my younger brother]. Them bitch niggas sent some young boys to rob him just to get my [cell phone] number, then called me off of [my brother's] phone saying they kidnapped him. They didn't, but that was the last fucking straw. I was letting mad little shit slide, but I couldn't let that rock. I just wish that lil girl didn't get hurt by a stray. That shit hurts on the inside because it wasn't intended for her.
Now I got this case to deal wit [sic], and on top of that, both of my [co-defendants] are telling. So, like I said, I just turn to God, but I keep my mouth shut, and you already know I'm on my shit. Win, lose, or draw, imma [sic] fucking rumble. I never been a bitch, and I'm damn sure not going to start now. N. T., 3/ 9/ 11, at 629- 30.
[Maitland] also testified at trial. [Maitland] explained that he was driving in the South Duke Street area when he saw a black male emerge from the side of the street and reach for a gun under his shirt. According to [Maitland], he then swerved and stopped the car, and shot at the male in an effort to defend himself.
On March 10, 2011, a jury convicted [Maitland] on all three charges. On April 7, 2011, the trial court sentenced [Maitland] to life imprisonment for the first-degree murder conviction, a consecutive term of twenty to forty years of imprisonment for the criminal conspiracy conviction, and a consecutive term of five to ten years for the firearm violation.

(Doc. 13-1, pp. 1-6).

         Maitland filed a direct appeal raising the following issues:

I. Whether the trial court erred in concluding the Commonwealth presented sufficient evidence to sustain guilty verdicts on the criminal offenses of Murder in the First Degree and Criminal Conspiracy to Commit Criminal Homicide?
II. Whether the trial court erred in denying [Maitland's] motion for judgment of acquittal on the basis that the weight of the evidence presented at trial showed that he did not possess a specific intent to kill?
III. Whether the trial court erred in denying [Maitland's] motion for change of venue/ venire when the highly scrutinized media coverage the case received prevented him from empanelling a fair and impartial jury from York County?

(Id. at 7). The Superior Court affirmed the Judgment of Sentence on June 19, 2012. (Id. at 23).

         Maitland pursued his direct appeal in the Pennsylvania Supreme Court; the court affirmed on April 26, 2013. (Doc. 13-8, p. 2). Thereafter, he petitioned the United States Supreme Court for Writ of Certiorari, which the Supreme Court denied on November 14, 2013. (Id.)

         On February 26, 2014, Maitland filed a petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He raised a number of claims which the PCRA addressed in two separate opinions. In the first opinion, the court rejected the ineffective assistance of counsel claims concerning counsel's failure to object to the statements made by the prosecution during closing argument which indicated that Maitland was in a gang, contrary to the testimony of the expert witness who only testified that Maitland could be in a gang; counsel's failure to strike Juror No. 48 for cause; and, counsel's failure to view a surveillance video with Maitland. (Doc. 13-7, pp. 1-5). The court also rejected his claim that the trial court erred with regard to a curative instruction. (Id.). In its second opinion, the court rejected Maitland's claim that counsel was ineffective in failing to use impeachment evidence against witnesses Johnson and Valentin.[1] (Doc. 13-8, p. 2; Doc. 1, pp. 34, 35).

         Maitland pursued an appeal, raising the following issues:

1. Whether the [PCRA] court committed an error of law when it denied relief pursuant to the [PCRA] on the basis that trial counsel was ineffective for failing to timely object to the prosecutor's references in closing argument to [Maitland's] gang affiliation?
2. Whether the [PCRA] court committed an error of law when it denied relief pursuant to the [ PCRA] on the basis that the trial court's curative instruction regarding [Maitland's] gang affiliation and the prosecutor's closing argument was insufficient to prevent prejudice?
3. Whether the [PCRA] court committed an error of law when it denied relief pursuant to the [PCRA] on the basis that trial counsel was ineffective for failing to strike Juror Number [Forty-eight] who felt sorry for the victim and was unsure of whether she could be fair and impartial?
4. Whether the [PCRA] court committed an error of law when it denied relief pursuant to the [PCRA] on the basis that [d]efense counsel was ineffective for withdrawing a Rule 600 motion which had arguable merit and [Maitland] was not in agreement?

(Doc. 13-4, pp. 2, 3, citing Maitland's Brief).

         On September 28, 2015, in affirming the denial of PCRA relief, the Superior Court addressed the first and fourth claims on the merits, but deemed the second and third issues waived. (Id. at pp. 4-8). Maitland filed a petition for allowance of appeal with the Supreme Court, which the court denied on February 1, 2016. (Doc. 13-13).

         Maitland filed the instant petition on October 11, 2016.

         II. Issues Presented for Federal Review

         Maitland presents the following issues for our review:

1. Ineffective assistance of trial counsel in failing to preserve and prepare to litigate his right to a speedy trial.
2. Ineffective assistance of trial counsel in failing to strike a biased juror.
3. Ineffective assistance of trial counsel in failing to object to the prosecutor's gang references during closing argument.
4. Trial court error with regard to a curative instruction.
5. Ineffective assistance of PCRA counsel.
6. Ineffective assistance of trial counsel in ignoring impeachment evidence of two Commonwealth witnesses.
7. Ineffective assistance of trial counsel with regard to surveillance video presented at trial.
8. Ineffective assistance of trial counsel in failing to investigate and prepare to litigate the critical issues of ballistic evidence including his failure to secure independent ballistic expert, forensic pathologist expert and or to seek D.N.A. testing on any available evidence.

(Doc. 1, pp. 5, 6, 8, 9, 15, 20, 25, 30).

         III. Discussion

         A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the “fact or duration” of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). Maitland's case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”). 28 U.S.C. § 2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b)(1) an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that -
(A) the applicant has exhausted the remedies available in the courts of the State;
...
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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.

28 U.S.C. § 2254. Section 2254 clearly sets limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner. Cullen v. Pinholster, 536 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir. 2014). A federal court may consider a habeas petition filed by a state prisoner only “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Pulley v. Harris, 465 U.S. 37, 41 (1984). By limiting habeas relief to state conduct which violates “the Constitution or laws or treaties of the United States, ” § 2254 places a high threshold on the courts. Additionally, relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1).

         A. Exhaustion and Procedural Default

         Habeas relief “shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State, ” meaning a state prisoner must “fairly present” his claims in “one complete round of the state's established appellate review process, ” before bringing them in federal court. 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process.”); see also Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

         A petitioner has exhausted a federal claim only if he or she presented the “substantial equivalent” of the claim to the state court. Picard, 404 U.S. at 278. To satisfy this requirement, a petitioner must “fairly present” his federal claim's “factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” Robinson v. Beard, 762 F.3d 316, 328 (3d Cir. 2014); see Baldwin v. Reese, 541 U.S. 27, 29 (2004); see McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999).

         1. Ground 2

         Ground 2 contains a claim that trial counsel was ineffective for failing to strike Juror #48 based on bias. Maitland raised the issue during his initial PCRA proceedings and pursued it on appeal. The Superior Court disposed of the issue as follows:

Maitland also argues that Attorney Spadafora and co-counsel, Autumn Walden, Esquire, were ineffective for failing to strike a particular juror, Juror Number Forty-eight, for cause because she stated that she had read about the crime and felt sad for the family of the victim. Maitland's Brief at 17. Maitland does not cite, much less discuss, even one authority in support of his position. See id, at 17- 20. The Rules of Appellate Procedure require that appellants adequately develop each issue raised with discussion of pertinent facts and pertinent authority. See Pa. R. A. P. 2119(a). It is not this Court's responsibility to comb through the record seeking the factual underpinnings of an appellant's claim. Commonwealth v, Mulholland, 702 A.2d 1027, 1034 n. 5 (Pa. 1997). Further, this Court will not become the counsel for an appellant and develop arguments on an appellant's behalf. Commonwealth v, Gould, 912 A.2d 869, 873 (Pa. Super. 2006). It was Maitland's responsibility to provide an adequately developed argument providing citation to and discussion of relevant authority. Because he has failed to do so, we find this issue waived.

(Doc. 13-4, pp. 5, 6).

         “[A] state prisoner's habeas claims may not be entertained by a federal court “when (1) ‘a state court has declined to address those claims because the prisoner had failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.' ” Walker v. Martin, 562 U.S. [307, 316] (2011) (quoting Coleman, 501 U.S. at 729-30).” Maples v. Thomas, 565 U.S. 266, 280 (2012). A decision based on a state procedural rule is considered independent if it does not rely on the merits of the federal claim or rest primarily on federal grounds. Harris v. Reed, 489 U.S. 255, 260 (1989); see also Ake v. Oklahoma, 470 U.S. 68, 75 (1985). A state rule is “adequate” for procedural default purposes if it was “firmly established, readily ascertainable, and regularly followed at the time of the purported default.” Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001). “[A] state procedural ground is not ‘adequate' unless the procedural rule is ‘strictly or regularly followed,' ” Johnson v. Mississippi, 486 U.S. 578, 587 (1988), and the rule “speaks in unmistakable terms.” Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996) (abrogated on other grounds, Beard v. Kindler, 558 U.S. 53 (2009)). These requirements ensure that “federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule, ” and that review is foreclosed by “what may honestly be called ‘rules' ... of general applicability[, ] rather than by whim or prejudice against a claim or claimant.” Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007) (quoting Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005)).

         Pennsylvania Rule of Appellate Procedure 2119(a) requires that each argument presented on appeal be “followed by such discussion and citation of authorities as are deemed pertinent.” Pa. R. A. P. 2119(a). A failure to cite legal authorities or to develop argument results in waiver. See, e.g., Williams v. Patrick, No. 07-776, 2014 WL 2452049, at *7 (E.D. Pa. June 2, 2014) (explaining a “doctrine of waiver” has been long incorporated into Rule 2119(a) (overruled on other grounds); Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (citing Commonwealth v. Burkett, 830 A.2d 1034, 1038 (Pa. Super. 2003) and Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998)) (stating “Of particular importance is the provision of Rule 2119(a) that a brief must contain a developed argument augmented by citation to pertinent authorities. Arguments not appropriately developed are waived.”). Federal courts in this circuit have found this “waiver rule” to be an independent and adequate state court ground precluding federal review. See Rodriguez v. Giroux, No. CV 15-6182, 2017 WL 10821396, at *17 (E.D. Pa. Feb. 17, 2017), report and recommendation adopted, No. CV 15-6182, 2019 WL 587314 (E.D. Pa. Feb. 12, 2019) (collecting cases). There is no dispute that the waiver rule was firmly established, readily ascertainable, and regularly followed at the time of the default. It is evident from the above that Maitland's claim that trial counsel was ineffective for failing to strike Juror #48 based on bias was not fairly presented to the state courts. “When a claim is not exhausted because it has not been ‘fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, as is the case here, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.' 28 U.S.C. § 2254(b). In such cases, however, applicants are considered to have procedurally defaulted their claims and federal courts may not consider the merits of such claims unless the applicant establishes ‘cause and prejudice' or a ‘fundamental miscarriage of justice' to excuse his or her default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).” McCandless, 172 F.3d at 260.

         To demonstrate “cause” for a procedural default, a petitioner must point to some objective external factor which impeded his efforts to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Prejudice” will be satisfied only if he can demonstrate that the outcome of the state proceeding was “unreliable or fundamentally unfair” as a result of a violation of federal law. See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

         Alternatively, if a petitioner demonstrates that a “constitutional violation has probably resulted in the conviction of one who is actually innocent, ” Murray, 477 U.S. at 496, then a federal court can excuse the procedural default and review the claim in order to prevent a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception applies only in extraordinary cases, and actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner establishes actual innocence by asserting “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial, ” showing that no reasonable juror would have voted to find the petitioner guilty beyond a reasonable doubt. Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).

         Maitland fails to identify some objective external factor which prevented him from complying with the state's procedural rules and he does not demonstrate that the outcome of the state proceeding was “unreliable or fundamentally unfair” as a result of a violation of federal law. Nor is there any argument or indication that a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496. Ground 2 is therefore procedurally defaulted and federal review is barred.

         2. Ground 4

         In Ground 4, Maitland contends that the trial court violated his due process rights when iy failed to provide the jury with an adequate curative instruction to remedy the gang affiliation remarks made by the prosecutor during closing arguments. He raised the issue during his PCRA proceedings. In considering the claim on appeal, the Superior Court held as follows: “Maitland's final claim alleges an error on the part of the trial court; specifically, that a curative instruction the trial court gave to the jury was inadequate. Maitland's Brief at 14. A prerequisite for relief under the PCRA is that the claim the petition seeks to raise is not previously litigated or waived. 42 Pa. C. S. A. § 9543(a)(3). A claim is waived for purposes of PCRA review if the petitioner could have raised it on direct appeal but did not. Commonwealth v, Rivera, 108 A. 3d 779, 802 (Pa. 2014). Maitland could have raised this claim of trial court error on direct appeal, but he did not. Accordingly, he has waived it and cannot raise it under the PCRA.” (Doc. 13-4, pp. 7, 8).

         The rule relied on by the state court, 42 Pa. C. S. A. § 9453(a)(3) requires a petitioner seeking PCRA relief to plead and prove that the issue he or she raises has not been waived. Also, 42 Pa. C. S. A. § 9544(b) states that “an issue is waived if the petitioner could have raised it but failed to do so ... on appeal or in a prior state postconviction proceeding.” Because the state court determined that Maitland waived this issue in failing to meet a state procedural requirement, a finding which rests on an independent and adequate state law ground, the claim is procedurally defaulted.

         Mailtand failed to fairly presented this issue to the state courts and, as such, it is unexhausted and procedurally defaulted. He fails to identify some objective external factor which prevented him from complying with the state's procedural rules and he does not demonstrate that the outcome of the state proceeding was “unreliable or fundamentally unfair” as a result of a violation of federal law. And there is no argument or indication that a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496. Ground 4 is therefore procedurally defaulted and federal review is barred.

         3. Ground 6

         In Ground 6, Mailtand alleges that trial counsel ignored evidence relevant to the impeachment of witnesses Valentin and Johnson. (Doc. 1, p. 20). He raised the issue in his initial PCRA proceedings and the PCRA court adjudicated the claim on the merits. (Doc. 13-8, pp. 34, 35). However, he failed to pursue the claim in his PCRA appeal. Maitland concedes that this claim is unexhausted and procedurally defaulted. (Doc. 1, p. 21).

         In his Traverse, he indicates that he is relying on the Martinez v. Ryan, 566 U.S. 1 (2010) exception to excuse the procedural default of his claim. (Doc. 19, p. 13) Martinez recognized a “narrow exception” to the general rule that attorney errors in collateral proceedings do not establish cause to excuse a procedural default. Specifically, Martinez holds that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9. To successfully invoke the Martinez exception, a petitioner must satisfy two factors: that the underlying, otherwise defaulted, claim of ineffective assistance of trial counsel is “substantial, ” meaning that it has “some merit, ” id. at 14; and that petitioner had “no counsel” or “ineffective” counsel during the initial phase of the state collateral review proceeding. Id. at 17, 132 S.Ct. 1309; see also Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014).

         A petitioner demonstrates the underlying ineffective assistance of trial counsel claim has “some” merit by “show[ing] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Workman, 915 F.3d at 937-38; see also Martinez, 566 U.S. at 13-14. A petitioner demonstrates that post-conviction counsel's ineffectiveness caused the procedural default by showing that post-conviction counsel's performance was deficient under the first prong of the Strickland v. Washington, 466 U.S. 668 (1984) standard. See Preston v. Sup't Graterford, SCI, 902 F.3d 365, 376 (3d Cir. 2018); see also Workman v. Superintendent Albion SCI, 915 F.3d 928, 937-38 (3d Cir. 2019). Satisfaction of the first Strickland prong requires a petitioner to demonstrate that “counsel's representation fell below an objective standard of reasonableness, ” with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688.

         He first argues that that the procedural default should be excused based on PCRA counsel's failure to include the claim in the appeal to the Superior Court. However, because Martinez applies only to defaulted claims of ineffective assistance of trial counsel, Maitland's argument that exhaustion should be excused because PCRA counsel failed to pursue the claim beyond the initial collateral proceedings fails. See Davila v. Davis, ___U.S. ___, 137 S.Ct. 2058, 2065 (2017) (declining to extend Martinez to defaulted claims of ineffective assistance of appellate counsel); Murray v. Diguglielmo, No. 09-4960, 2016 WL 3476255, at *4 (E.D. Pa. June 27, 2016) (“These claims do not involve ineffective assistance of [trial] counsel. Martinez does not apply.”).

         Maitland also argues that the procedural default should be excused based on PCRA counsel's failure to submit additional evidence relevant to the impeachment of witnesses Valentin and Johnson to the PCRA court following the hearing.

         Trial counsel testified at the PCRA hearing as follows:

Q. And do you recall what your strategy was in regards to ...

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