Opinion
Civil Action No. 04-5882.
March 6, 2006
ORDER
AND NOW, this ____ day of February, 2006, upon careful and independent consideration of the above-named petition for a writ of habeas corpus and the Respondents' response, the Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells, and Petitioner's objections thereto, it is hereby ORDERED that:
The petition raises ineffective assistance claims arising from four alleged deficiencies by trial counsel: (1) failure to investigate, interview, and call certain witnesses at trial; (2) prejudicing the jury during voir dire; (3) failing to appeal a properly preserved Batson issue; and (4) failing to object to a remark the prosecutor made during closing argument.
Petitioner did not object to the Magistrate's finding that because Petitioner's underlying Batson claim lacked merit, counsel was not ineffective for failing to raise it on appeal. Having reviewed the Magistrate's report and finding her reasoning cogent, I adopt this finding. Petitioner objected to the Magistrate's disposition of his other claims. As required by 28 U.S.C. § 636(b), I have reviewed de novo those portions of the Report to which Petitioner objects.
Magistrate Wells found that Petitioner had procedurally defaulted his claim that trial counsel was ineffective for failing to object when the prosecution presented a mistaken fact to the jury during closing. Petitioner failed to include this issue in his Pa. R.A.P. 1925(b) statement on appeal from the dismissal of his PCRA petition, and it was deemed waived. Because this is an independent and adequate state procedural grounds for rejecting Petitioner's claim, Szuchon v. Lehmon, 273 F.3d 299, 325-26 (3d Cir. 2001), it may not be excused without a showing of "cause" and "prejudice" or a "fundamental miscarriage of justice," Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977). Petitioner asserts that he asked his appellate PCRA counsel to raise this issue on appeal but that counsel failed to do so. However, even if the failure to appeal were the fault of Petitioner's attorney and not Petitioner himself, it could not qualify as "cause and prejudice" unless the attorney's conduct amounted to ineffective assistance of counsel. Cristin v. Brennan, 81 F.3d 404, 420 (3d Cir. 2002). Because there is no right to counsel in PCRA proceedings, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), Petitioner has no ineffective assistance claim against his appellate PCRA counsel and thus cannot establish "cause" excusing the procedural default. See Cristin, 81 F.3d at 420. Moreover, I agree with the Magistrate that even if Petitioner had not procedurally defaulted this claim, it would fail on the merits.
The Magistrate rejected on their merits all of Petitioner's ineffective assistance claims based on failure to call witnesses. Petitioner does not object to the Magistrate's finding that it was not ineffective assistance to fail to interview or call Temijiun Overby and Bryheem Alston, but objects to her findings on the other witnesses. With respect to Harvey Norris, Fredesha Williams, and Dashanna Meyers, the PCRA court found that because Petitioner's trial counsel was aware of these potential witnesses and made reasoned, strategic decisions not to call them, there was no ineffective assistance. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984). The Magistrate found that the PCRA court's decision was neither contrary to nor an unreasonable application of federal law, 28 U.S.C. § 2254(d)(1), and I adopt this finding.
With regard to Duron Peoples and Clark Terry, Jr., the PCRA court found that Petitioner's trial counsel had no reason to know of either of these potential witnesses in time to call them at trial. With respect to Terry in particular, the PCRA court found that Petitioner had not shown a reasonable probability that the outcome of the trial would have been different if this witness had been called. See Strickland, 466 U.S. at 694. Thus, the PCRA court concluded that the failure to call these witnesses was not ineffective assistance. I agree with the Magistrate that the PCRA court's decision was not contrary to or an unreasonable application of federal law.
The PCRA court found that potential witness Charlestae Taggart remained unavailable despite counsel's diligent efforts to locate him, and thus it was not ineffective assistance not to call him. Petitioner claims that after the PCRA hearing, Taggart informed him that he was in prison in Chester County at the time of Petitioner's trial. Because neither Taggart nor any other witness made any mention of this fact at the PCRA hearing, I would need to hold an evidentiary hearing in order to accept it as true. However, I will not grant a hearing on this question, because even if Taggart were in fact in Chester County prison during Petitioner's trial, this would not change the PCRA court's finding that trial counsel made every possible effort to contact Taggart. The fact that counsel was ultimately unsuccessful in locating him does not amount to an error "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.
The PCRA court found that trial counsel was not ineffective for not calling expert witnesses to testify on Petitioner's behalf. The PCRA court noted that counsel need not call expert witnesses to testify to information where, as here, he is able to elicit it through effective cross-examination of government witnesses.See Reinert v. Larkins, 379 F.3d 76, 95 (3d Cir. 2004). I agree with the Magistrate that the PCRA court's decision was not contrary to or an unreasonable application of federal law.
Finally, the Magistrate rejected Petitioner's claim that his trial counsel was ineffective for questioning potential jurors at voir dire on whether they could be impartial even if testimony showed that Petitioner sold or possessed cocaine. The PCRA court found that trial counsel had a reasonable strategic basis for these voir dire questions, given the prosecution's theory that the killing was motivated by the victim's theft of money and drugs from the Petitioner. Because courts must be "highly deferential" to the reasonable strategic decisions of counsel, I agree with the Magistrate that the PCRA court's decision was not contrary to or an unreasonable application of federal law.
1. The Report and Recommendation is APPROVED and ADOPTED and Petitioner's objections are OVERRULED;
2. The Petition for Writ of Habeas Corpus is DENIED without an evidentiary hearing; and
3. There is no basis for the issuance of a Certificate of Appealability.