Opinion
2:18-cv-1671
05-09-2019
JULIAN BRYANT, KT-7886, Petitioner, v. WARDEN, SCI FAYETTE, et al., Respondents.
REPORT and RECOMMENDATION I. Recommendation:
It is respectfully recommended that the petition of Julian Bryant for a writ of habeas corpus be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied. II. Report:
Julian Bryant, an inmate at the State Correctional Institution-Fayette has presented a petition for a writ of habeas corpus. Bryant is presently serving a twenty to forty-year sentence imposed following his conviction by the court of criminal attempt (homicide), two counts of aggravated assault and acquitted on firearms violations at No. CP-02-CR-10073-2011 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on October 29, 2012.
See: Petition at ¶¶ 1-7.
An appeal was filed in the Superior Court in which the sole issue presented was:
I. Was the evidence sufficient to establish attempted murder as the intent here was to scare, not to kill, the victim?On August 13, 2014, the judgment of sentence was affirmed. Leave to appeal was denied by the Pennsylvania Supreme Court on January 27, 2015.
See: Commonwealth's answer exhibits at p.38.
Id. at pp.74-80.
Id. at p.126.
A timely post-conviction petition was filed on August 4, 2015 and denied. An appeal was filed in the Superior Court in which petitioner claimed he was entitled to relief on the basis that an improper mandatory minimum sentence had been imposed under the deadly weapons enhancement while he had been acquitted on the firearms charge. The denial of post-conviction relief was affirmed on November 16, 2017 and allowance of appeal was denied by the Pennsylvania Supreme Court on June 27, 2018.
Id. at p.169.
Id. at pp.193-197.
Id. at p.228.
In the instant petition received on December 17, 2018, two issues are presented:
I. Did the state courts reversibly err in ruling that the evidence established was sufficient to [demonstrate] petitioner's intent to kill?
II. Did the state courts abuse discretion and reversibly err in having overlooked the underlying basis of petitioner's illegal sentence?
The background to this prosecution is set forth in November 16, 2017 Memorandum of the Superior Court:
On the afternoon of June 18, 2011, the defendant, Julian Bryant, fired six shots, wounding Kareem "Moose" Howard. The victim, Mr. Howard, sustained three gunshot wounds to his buttocks, one to his arm, one to his hip, and one to his ear. The incident occurred at approximately 1:20 p.m. near the intersection of Frankstown Avenue and North Homewood in the City of Pittsburgh, Allegheny County, Pennsylvania.
[Appellant] had known Mr. Howard for approximately five years. The two were good friends. Mr. Howard referred to [Appellant] as "Juls" or "bro;" Mr. Howard was involved with [Appellant's] sister, Lateesha Bryant, and is the father of two of her children.
On the day of the incident, Mr. Howard testified that [Appellant] crossed the street to approach him and appeared "raged." [Appellant] then opened fire on him at a distance of "not quite" 20 feet after Mr. Howard had pulled a gun on Ms. Bryant during a dispute over the custody of their children.
Witness John Turner, the owner of a barbershop near the incident heard a number of shots fired and then saw Mr. Howard, whom he knew, laying on the ground, and in attempting to escape was shot another two times while crawling away. Fired at point blank range,
one shot came close to Mr. Howard's head, breaking an earring that he was wearing and damaging the ear. While crawling away, Mr. Howard picked up a Smith and Wesson 9mm semi-automatic pistol and returned fire in the direction of the fleeing [Appellant]. As a result of the incident, Mr. Howard was hospitalized for about eleven days, spending the first four in a coma. Among other injuries, he sustained a fractured pelvis, severe damage to the nerves of his right leg, and had to undergo three surgeries.
While en route to the scene of the incident, Detective Robert Shaw testified that at approximately 2:24 p.m. he received a report that a man had been hospitalized with a gunshot wound to the leg. The man in the hospital was [Appellant]; the 9mm bullet in his leg matched the Smith and Wesson pistol allegedly used by Mr. Howard upon returning fire.
Id. at pp.193-194.
Bryant's first claim is that he is entitled to relief as a result of insufficient evidence to sustain his conviction. Specifically, he contends that the evidence supports an inference that the petitioner was attempting to scare rather than kill the victim and thus the element of malice was absent. The Commonwealth concedes that this claim is properly before the court for consideration.
See: Answer at p.16.
When asked to review a sufficiency of the evidence claim in a state court proceeding, a federal habeas court must determine whether based on the evidence, a rational finder of fact could determine guilt beyond a reasonable doubt. Coleman v. Johnson, 566 U.S. 650, 656 (2012) citing Jackson v. Virginia, 443 U.S. 307 (1979). Ultimately, it is up to the fact-finder to draw conclusions from the evidence presented. Cavazos v. Smith, 565 U.S. 1 (2011). Under the uncontested factual discussion set forth above, more than sufficient evidence was presented from which the fact-finder could determine guilt beyond a reasonable doubt. This conclusion is bolstered by the presumption of correctness accorded to the state courts findings. 28 U.S.C. §2254(e)(1). Thus, this claim does not provide a basis for relief.
Petitioner's second claim is that the penalty imposed exceeded the maximum permitted for his convictions, and that in enhancing his pursuant to a mandatory minimum sentence, the trial court erred in not submitting the required relevant evidence to the fact-finder. The Commonwealth contends that this issue was not raised in the state courts and is now procedurally defaulted since there are no state court remedies available. Because there is no basis asserted for waiving the failure to exhaust he is not entitled to relief here.
Id. at pp.16-18.
However, 28 U.S.C. §2254((b)(2) authorizes a denial on the merits even when the state court remedies have not been exhausted. In its October 29, 2012 Order of Sentence, the trial court wrote:
Count 1: 18 Pa.C.S.A. §901(a) Criminal Attempt-Criminal Homicide -(F1) imposing a sentence of 20 years to 40 years...
Count 2: Aggravated Assault. Guilty without further penalty.
Count 3: Aggravated Assault. Guilty without further penalty.
Count 4: Possession of a Firearm Prohibited. Judgment of Acquittal.
See: Commonwealth answer exhibit at p. 96.
In reviewing this claim, the Superior Court wrote:
Appellant's first allegation is premised on the United States Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne the Court held that, under the Sixth Amendment's right to a jury trial, facts that invoke the application of a mandatory minimum sentence must be submitted to a jury and found beyond a reasonable doubt. however, Alleyne is not retroactive and cannot be applied in this PCRA setting... Additionally, as the PCRA court delineated clearly in its opinion and as the record confirmed, while the Commonwealth invoked a mandatory minimum sentence, such a sentence was not actually imposed. The sentencing court imposed a standard range guideline sentence under the deadly weapon enhancement matrix of the sentencing guidelines. Thus, Alleyne was not violated herein. Commonwealth v. Ziegler, 112 A.3d 656 (Pa.Super. 2015) (where mandatory minimum sentencing statute was invoked but defendant was sentenced to a higher term of imprisonment under guidelines involving use of deadly weapon, the sentence was not based upon the unconstitutional mandatory minimum sentencing statute and the sentence was not illegal).
Id. at pp. 195-196.
The relevant Pennsylvania sentencing statute, 18 Pa.C.S.A. § 1102(c) provides that a sentence of up to forty years can be imposed following a conviction of attempted murder. Thus, there is nothing in the record reflecting the imposition of a mandatory sentence, but rather that the appropriate statutory sentence was imposed. A challenge to a state sentence does not provide a basis for habeas corpus relief unless the sentence imposed exceeds the statutory maximum. Bozza v. United States, 330 U.S. 160, 166 (1947); Hickman v. Overmyer, 2019 WL 316452 (W.D.Pa. 2019). Such, is not the case here.
Accordingly, because the petitioner has failed to demonstrate that his conviction was secured in any manner "contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" he is not entitled to relief here. 28 U.S.C. §2254(d)(1).
For this reason, it is recommended that the petition of Julian Bryant be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections within fourteen (14) days of this date and mailing them to United States District Court, 700 Grant Street, Pittsburgh PA 15219-1957. Failure to file timely objections will waive the right to appeal.
Respectfully submitted,
s/ Robert C. Mitchell
United States Magistrate Judge Filed: May 9, 2019