Opinion
Civil Action No. 17-72 Erie
02-13-2019
ROBERT DIXON, Petitioner, v. KEVIN KAUFFMAN, et al., Respondents.
Judge Susan Paradise Baxter MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
Pending before the Court is a petition for a writ of habeas corpus filed by state prisoner Robert Dixon ("Petitioner") pursuant to 28 U.S.C. § 2254. ECF No. 5. He is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Erie County at criminal docket number CP-25-CR-239-2013. It is respectfully recommended that the Court deny each of his claims and deny a certificate of appealability.
II. REPORT
A. Background
On October 25, 2012, the victim in this case, Jason Baney, was working at Fortune Garden Chinese, a restaurant located in Erie, Pennsylvania. Trial Tr., 9/17/13, at 17-18. Around 10:00 p.m., he left the restaurant to deliver a food order. Id. at 18. When he realized that no address matched the one that had been given with the order, he called the individual that had placed it by using the number recorded on the restaurant's caller identification. Id. at 19-20. A female answered Baney's call. She told him that she was standing across the street from his car, and she waved him to come towards her. Id. After Baney exited his car and approached her, a man standing near her pulled out a gun and pointed it at Baney's stomach. Id. at 21-23. He told Baney to hand over his money or else he would "blow a hole right through [Baney's] belly." Id. at 23. Baney complied and gave him between $70.00 to $100.00 and his cell phone. Id. at 24. The man then told Baney to get back in his car and leave. Id. at 24-25. Baney fled the scene in his car, drove to a nearby gas station, and called the police. Id. at 25.
Baney gave the police a description of the assailant. Id. at 36. Around December 8, 2012, Detective Jason Triana showed him a photo array that contained eight pictures, including one of Petitioner. Id. at 27-28, 40-42. Baney identified Petitioner as the man who had robbed him. Id. at 27-28.
Petitioner was arrested and charged in the Court of Common Pleas of Erie County (the "trial court") with crimes related to the armed robbery. The trial court appointed an attorney with the Public Defender's Office to represent him, and Petitioner filed an omnibus pre-trial motion to suppress Baney's identification. He argued that the photo array was unduly suggestive and tainted by an unreliable investigation. The trial court held a hearing on Petitioner's motion on June 26, 2013. Detective Triana testified and he explained how Petitioner became a suspect in the case. Hr'g Tr., 6/26/13, at 6-25. He said that he traced the number of the phone the robber's female companion had used to place her take-out order. Id. at 21-23. He learned that the phone belonged to a man named Jeffry Steele, who Detective Tirana then proceeded to interview. Steele told him that someone named "Rob" had stolen his phone, and he gave a general description of "Rob" that matched the one that Baney had given of his assailant. Id. at 23. Steele also told Detective Triana that "Rob" had just been arrested. Id. That information prompted the detective to search recent police reports for an arrestee whose appearance aligned with the descriptions given by Baney and Steele. Id. Petitioner fit the criteria, and that is why the detective included his picture in the photo array that he showed to Baney. Id. at 23-24.
The trial court determined that Petitioner's pre-trial motion had no merit and denied it at the conclusion of the hearing. Id. at 75-78. Petitioner's one-day trial was held on September 17, 2013. Baney and Detective Triana were the only witnesses to testify. During his testimony, Baney explained what occurred during the robbery. Trial Tr., 9/17/13, at 17-25. He stated that the man who robbed him "had nothing covering his face[,]" id. at 26, and that "[w]ith the streetlights that we had I could see his face clearly." Id. at 27. Baney testified that he identified Petitioner as his assailant when the police showed him the photo array, and he also made an in-court identification of Petitioner. Id. at 27-30, 38. Detective Triana testified that Baney "immediately pointed to" Petitioner's picture when he was presented with the photo array. Id. at 40.
At the conclusion of the trial, the jury found Petitioner guilty of one count each of armed robbery, 18 PA. CONS. STAT. § 3701(a), theft by unlawful taking, id. § 3921(a), receiving stolen property, id. § 3925(a), and possession of the instrument of a crime, id. § 907(b). The trial court conducted Petitioner's sentencing hearing on November 26, 2013. The Commonwealth presented evidence that established that Petitioner had a prior robbery conviction that was a first-degree felony and a statutorily defined "crime of violence" that subjected him to the mandatory minimum term of incarceration of 10 years for the robbery he was convicted of in this case. 42 PA. CONS. STAT. § 9714(a)(1) (sentences for second and subsequent offense); id. § 9714(g) (defining "crime of violence" to include robbery); Hr'g Tr., 11/26/13, at 7-9, 21. The trial court sentenced him to a term of 10-20 years of imprisonment on that count, to be followed by a consecutive sentence of 9-18 months of incarceration on the count of possession of the instrument of crime.
The counts of theft by unlawful taking and receiving stolen property merged with the robbery count for the purposes of sentencing.
Petitioner filed a direct appeal with the Superior Court of Pennsylvania in which he raised claims that are not relevant to this federal habeas case. On August 22, 2014, the Superior Court affirmed his judgment of sentence. Commonwealth v. Dixon, 88 WDA 2014, 2014 WL 10889735 (Pa.Super.Ct. Aug. 22, 2014) ("Dixon I").
In December 2015, Petitioner filed with the trial court a pro se petition for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq. ECF No. 5-3 at 1-10. The trial court (now the "PCRA court") appointed Petitioner counsel, who subsequently filed a petition for leave to withdraw and an accompanying "no-merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) (en banc). ECF No. 5-1 at 1-4. The PCRA court dismissed Petitioner's claims without permitting discovery or holding a hearing. ECF No. 5-2 at 1-5. It did not rule upon counsel's petition for leave to withdraw. Commonwealth v. Dixon, 25 WDA 2016, 2016 WL 7442225, *2 n.6 (Pa. Super. Ct. Dec. 27, 2016) ("Dixon II").
Petitioner filed a pro se appeal to the Superior Court, which remanded the case to the PCRA court to conduct a hearing in accordance with Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) for the purpose of establishing whether Petitioner desired to proceed pro se on appeal. Dixon II, 25 WDA 2016, 2016 WL 7442224 at *3. Following a hearing held in March 2016, the PCRA court determined that Petitioner waived his right to counsel and wanted to proceed pro se. Id.
In his appeal to the Superior Court, Petitioner raised claims under Alleyne v. United States, 570 U.S. 99 (2013) and the Confrontation Clause, and related claims that his Sixth Amendment right to effective assistance of counsel was violated. Dixon II, 25 WDA 2016, 2016 WL 7442224 at *3-4. He also contended that he was entitled to discovery in order to litigate his claims. Id.
On December 27, 2016, the Superior Court issued Dixon II and disposed of each of the claims set forth above. Petitioner raised those same claims to this Court in his petition for a writ of habeas corpus, ECF No. 5, and brief in support, ECF No. 6. Respondents filed their answer, ECF No. 10, and hardcopies of the relevant portions of the state court record, ECF No. 11. Petitioner did not file a reply. Local Rule 2254(E)(2) ("Although not required, the Petitioner may file a Reply (also known as "a Traverse") within 30 days of the date the respondent files its Answer.")
B. Jurisdiction and Standard of Review
This court has jurisdiction pursuant to 28 U.S.C. § 2254, which is the federal habeas statute applicable to state prisoners. It permits a federal court to grant a state prisoner the writ of habeas corpus "on the ground that he or she is in custody in violation of the Constitution...of the United States." 28 U.S.C. § 2254(a). It is Petitioner's burden to prove that he is entitled to the writ. Id.; see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief (most relevant here is the burden imposed upon him by the standard of review set forth at 28 U.S.C. § 2254(d)), but ultimately Petitioner cannot receive federal habeas relief unless he demonstrates that he is in custody in violation of the federal constitution. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
In 1996, Congress made a number of significant amendments to the federal habeas statutes with the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It reflects the view that habeas corpus is a "'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment)).
AEDPA put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d). It provides, in relevant part:
(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-
28 U.S.C. § 2254(d)(1). When applying § 2254(d), the Court considers the "last reasoned decision" of the state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Superintendent Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016). In this case, that is the Superior Court's decision in Dixon II.(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[.]
In applying AEDPA's standard of review, this Court's first task is to ascertain what law falls within the scope of the "clearly established Federal law, as determined by the Supreme Court of the United States[,]" 28 U.S.C. § 2254(d)(1). Importantly, "'clearly established federal law' means 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)). It "includes only 'the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'" White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Howes v. Fields, 565 U.S. 499, 505 (2012), which quoted Williams, 529 U.S. at 412).
As noted above, the Superior Court issued its decision in Dixon II on December 27, 2016.
Once the "clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), is ascertained, this Court must determine whether the Superior Court's adjudication of the claim at issue was "contrary to" that law. Williams, 529 U.S. at 404-05 (§ 2254(d)(1)'s "contrary to" and "unreasonable application of" clauses have independent meaning). A state court's adjudication is "contrary to...clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," Williams, 529 U.S. at 405, or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent," id. at 406.
If the Superior Court's decision was not "contrary to...clearly established Federal law, as determined by the Supreme Court of the United States[,]" 28 U.S.C. § 2254(d)(1), then this Court next considers whether Petitioner demonstrated that the state court's decision to deny his claim was an "unreasonable application of[,]" 28 U.S.C. § 2254(d)(1), that law. "A state court decision is an 'unreasonable application of federal law' if the state court 'identifies the correct governing legal principle,' but 'unreasonably applies that principle to the facts of the prisoner's case.'" Dennis, 834 F.3d at 281 (quoting Williams, 529 U.S. at 413). To satisfy his burden under this clause, Petitioner must do more than convince this Court that the Superior Court's decision was incorrect. Id. He must show that it "'was objectively unreasonable.'" Id. (quoting Williams, 529 U.S. at 409) (emphasis added by court of appeals). This means that Petitioner must demonstrate that the Superior Court's adjudication "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See [Lockyer v. Andrade, 538 U.S. 63, 75 (2003)].Id. at 102.
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further.
C. Discussion
1. The Alleyne and Related Ineffective-Assistance Claims
The Sixth Amendment provides that those "accused" of a "crime" have the right to a trial "by an impartial jury[.]" U.S. CONST. amend. VI. This right, in conjunction with the accused's due process rights, requires that each element of a crime be proved to the jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000); Alleyne, 570 U.S. at 104. In Apprendi, the Supreme Court held that those rights apply to a sentencing factor that would increase a defendant's sentence beyond the statutory maximum because, like an element of a separate crime, such a sentencing factor results in a higher sentence than that which could be prescribed for the original crime. 530 U.S. at 490. It announced the rule that: "[o]ther that the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. (emphasis added). The exception noted by the Supreme Court in Apprendi, based on Almendarez-Torres v. United States, 523 U.S. 224 (1998), allows the fact of a prior conviction to be found by the judge. Apprendi, 530 U.S. at 490.
Apprendi left open the issue of whether a fact that increases the mandatory minimum sentence that the court is required to impose must be decided by a jury. In June 2013, the Supreme Court issued Alleyene and answered that question in the affirmative. It held that any fact that increases the mandatory minimum is an "element" that must be submitted to the jury and proven beyond a reasonable doubt. Alleyene, 570 U.S. at 112. The parties in that case did not contest the "narrow exception to this general rule for the fact of a prior conviction[,]" that it had recognized in Apprendi and which was based on Almendarez-Torres and, therefore, the Supreme Court did not "revisit" the issue. Id. at 112 n.1. See, e.g., United States v. Johnson, 899 F.3d 191, 201 (3d Cir. 2018) ("Almendarez-Torres is good law, and the District Court did not err by following it.")
There the law stood at the time the trial court sentenced Petitioner in November 2013. It imposed the mandatory minimum of 10 years of imprisonment in accordance with 42 PA.CONS.STAT. § 9714(a)(1) and (g) because it found as fact, based upon the evidence submitted by the Commonwealth at the sentencing hearing, that Petitioner had previously been convicted of a crime of violence.
Petitioner claims that the imposition of the mandatory minimum sentence violated the Supreme Court's holding in Alleyne. The Superior Court rejected this claim on the merits because the fact that he had previously been convicted of a crime of violence did not have to found by a jury under the prior-conviction exception based on Almendarez-Torres, expressly noted in Apprendi, and left undisturbed in Alleyne. Dixon II, 25 WDA 2016, 2016 WL 7442225 at *5.
Under Pennsylvania law, an Alleyne claim is a non-waivable challenge to the legality of a sentence. Commonwealth v. Barnes, 151 A.3d 121, 124-27 (Pa. 2016). For that reason, the Superior Court addressed Petitioner's Alleyne claim on the merits as a stand-alone claim, notwithstanding his trial counsel's failure to preserve it (and Petitioner's failure to raise it to the PCRA court in his Rule 907 Notice). Dixon II, 25 WDA 2016, 2016 WL 7442225 at *5 n.11 ("A legality-of-sentence claim...is always subject to review if the PCRA petition is timely filed.")
The Superior Court's decision withstands review under § 2254(d)(1). It applied the correct rule set forth by the Supreme Court in Alleyne, which did not alter Almendarez-Torres' narrow exception pertaining to the fact of a prior conviction, and its adjudication was obviously not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Therefore, the Superior Court's adjudication was neither "contrary to" nor "an unreasonable application of" controlling Supreme Court precedent.
Petitioner also claims that his Sixth Amendment right to effective assistance of counsel was violated because his attorney did not raise the alleged Alleyne error at his sentencing hearing. The Superior Court rejected this claim on the grounds that Petitioner waived it because he did not properly raise it to the PCRA court. Dixon II, 25 WDA 2016, 2016 WL 7442225 at *6. Because the Superior Court held that Petitioner waived this claim, this Court could determine that it is procedurally defaulted. However, since the Superior Court also provided an alternative holding on the merits, id. at *6 n.12, this Court should avoid the procedural default issue and deny it on the merits too. Lambrex v. Singletary, 520 U.S. 518, 525 (1997) (the court may avoid the more complex issue of procedural default and evaluate the claim on the merits if it is more efficient to do so).
The doctrine of procedural default is "grounded in concerns of comity and federalism," Coleman v. Thompson, 501 U.S. 722, 730 (1991), and, in simple terms, it provides that a petitioner defaults a federal habeas claim if he: (a) failed to present it to the state court and the state court would now decline to address it on the merits because state procedural rules bar such consideration; or (b) failed to comply with a state procedural rule when he presented the claim to the state court, and for that reason the state court declined to address the federal claim on the merits. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451 (2000); O'Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999) (Stevens, J. dissenting) (describing the history of the procedural default doctrine); Wainwright v. Sykes, 433 U.S. 72 (1977); Lines v. Larkins, 208 F.3d 153, 162-69 (3d Cir. 2000).
Pennsylvania courts, like federal courts, evaluate claims of ineffective assistance under the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015); Commonwealth v. Sepulveda, 55 A.3d 1108, 1117-18 (Pa. 2012). Under the Strickland standard, it is Petitioner's burden to establish that his trial counsel's "representation fell below an objective standard of reasonableness." Id. at 688. It also requires that he demonstrate that he was prejudiced by his counsel's alleged deficient performance. This places the burden on him to establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The Superior Court applied the Strickland standard when it evaluated each of Petitioner's ineffective-assistance claims and, therefore, its adjudication was not "contrary to" Supreme Court precedent. Williams, 529 U.S. at 406 (a "run-of-the-mill" state-court decision applying the correct legal rule from Supreme Court decisions to the facts of a particular case does not fit within § 2254(d)(1)'s "contrary to" clause). Nor was the Superior Court's decision an "unreasonable application of" that law, since counsel cannot be deemed ineffective for failing to raise a meritless claim. See, e.g., Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000).
Based upon all of the foregoing, the Court should deny Petitioner's Alleyne claim and his related ineffective-assistance claim.
2. Confrontation Clause and Related Ineffective-Assistance Claims
In his appeal to the Superior Court, Petitioner claimed that his rights under the Sixth Amendment's Confrontation Clause were violated because "Mr. Steele was an identifying witness [who] was 'never' present in the court room in order for [Appellant] to cross-examine," and that his trial counsel was ineffective for failing to object to that alleged constitutional violation. Id. at 4 (quoting Appellant's Brief at 3-4). The Superior Court held that Petitioner's stand-alone claim under the Confrontation Clause was waived because Petitioner did not raise "this claim of trial court error at any prior level of review until this collateral appeal." Dixon II, 25 WDA 2016, 2016 WL 7442225 at *5. For that reason, it reviewed the claim only as a component of the related ineffective-assistance-of-counsel claim, which it denied on the merits. Id. at *5-6. It disposed of that claim on the basis that the underlying Confrontation Clause claim had no merit, since Steele did not testify at Petitioner trial and no statement he made was introduced through another witness's trial testimony. Id. It held:
If Petitioner believes that Steele could have provided testimony to assist his defense and that, therefore, his trial counsel should have called him as a witness at the trial, he should have raised that specific claim to the Superior Court and to this Court and explained what favorable testimony Steele could have provided. He did not do so.
[Petitioner's] argument on this point misapprehends the purpose of the Confrontation Clause. It is well-settled that
[t]he Confrontation Clause provides that in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him. At its most basic level, the Sixth Amendment's Confrontation Clause seeks to ensure that the trial is fair and reliable by preserving an accused's right to cross-examine and confront the witnesses against him.
Id.
Commonwealth v. Collins, 888 A.2d 564, 575 (Pa. 2005) (emphasis added) (internal quotation marks and citations omitted). Because there was no evidence by or regarding Mr. Steele at trial, there was no reason to test its reliability through cross-examination.
Because the Superior Court held that Petitioner waived his stand-alone Confrontation Clause claim, this Court could consider whether it is procedurally defaulted notwithstanding Respondent's failure to raise that defense. Since it is more efficient for this Court to simply deny it on the merits at the same time it disposes of the related ineffective-assistance claim, that course should be followed.
This Court has the authority to raise the procedural default issue sua sponte, Evans v. Sec'y Pennsylvania Dept. of Corr., 645 F.3d 650, 656 n.12 (3d Cir. 2011), as long as Petitioner is given fair notice and an opportunity to respond and is not prejudiced. Day v. McDonough, 547 U.S. 198, 205-10 (2006) (raising statute of limitations sua sponte); United States v. Bendolph, 409 F.3d 155, 161-70 (3d Cir. 2005) (en banc) (same); Sweger v. Chesney, 294 F.3d 506, 520 n.3 (3d Cir. 2002) (courts may consider sua sponte whether procedural default bars claim).
When the state court, in adjudicating an ineffective-assistance claim, rules on the merits of the component constitutional claim, the federal habeas court must apply § 2254(d)'s standard of review to the state court's adjudication of the component constitutional claim as well as its adjudication of the ineffective-assistance claim. See, e.g., Mathias v. Superintendent Frackville, 876 F.3d 462, 479-80 (3d Cir. 2017). Here, the Superior Court's adjudication of both claims withstands review under § 2254(d)(1). It was not "contrary to or an unreasonable application of" the Strickland standard, or the Supreme Court's Confrontation Clause jurisprudence (Crawford v. Washington, 541 U.S. 36 (2004) and its progeny), since Steele did not testify at Petitioner's trial and Detective Triana did not restate during his trial testimony anything that Steele had said to him during his investigation.
To the extent that Petitioner is also claiming that his trial counsel was ineffective for failing to raise a Confrontation Clause objection at the suppression hearing when Detective Triana discussed what Steele had stated to him, or that he should have called Steele as a witness at that hearing, the Court can deny that claim on the grounds that he failed to demonstrate that he was prejudiced by counsel's challenged conduct. There is no evidence that the police investigation was unreliable such that it tainted the photo array that the detective showed to Baney, or that Steele could have provided testimony to support the motion to suppress.
In Commonwealth v. Atkinson, 987 A.2d 743, 747 (Pa. Super. Ct. 2009), the Superior Court held that "a defendant's confrontation clause rights apply during a suppression hearing."
Based upon all of the foregoing, the Court should deny Petitioner's Confrontation Clause claim and the related ineffective-assistance claim.
3. Discovery Claim
In his appeal to the Superior Court, Petitioner contended that the PCRA court erred when it did not permit him to conduct any discovery. The Superior Court explained that no discovery is "permitted at any stage of [a PCRA] proceeding[ ], except upon leave of court after a showing of exceptional circumstances." Dixon II, 25 WDA 2016, 2016 WL 7442225 at *6 (quoting Pa. R. Crim. P. 902(E)(1)). It concluded that Petitioner "has not set forth any such exceptional circumstances in either his PCRA petition or his brief to this Court." Id.
To the extent that Petitioner is challenging the Superior Court's decision regarding discovery, that claim is not cognizable because "the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral [PCRA] proceeding does not enter into the habeas calculation." Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (internal citations omitted) (emphasis added).
Petitioner also requests that this Court permit him to conduct discovery. "A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). See also Harris v. Nelson, 394 U.S. 286, 300 (1969) ("broad-ranging preliminary inquiry is neither necessary nor appropriate in the context of a habeas corpus proceeding.") Discovery is authorized in Rule 6(a) of the Rules Governing Section 2254 Cases In the United States District Courts only by leave of court upon a showing by the petitioner of "good cause," which may be made "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is...entitled to relief[.]" Harris, 394 U.S. at 300. See also Bracy, 520 U.S. at 908-09; Lee v. Glunt, 667 F.3d 397, 404 (3d Cir. 2012).
The "burden rests upon the petitioner to demonstrate that the sought-after information is pertinent and that there is good cause for its production[,]" Williams v. Beard, 637 F.3d 195, 209 (3d Cir. 2011), and Petitioner has not met his burden here. "[B]ald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing[,]" Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991), and Rule 6 does not authorize what is commonly referred to as "fishing expeditions." See, e.g., Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994); Williams, 637 F.3d at 210-11 (the petitioner's discovery request "amounts to an entreaty to engage in a fishing expedition. The law is clear, however, that such speculative discovery requests should be rejected.")
Petitioner also requests copies of the transcripts of his suppression hearing and his trial and sentencing proceedings. Respondents produced copies of those transcripts to this Court in accordance with the scheduling order for this case, ECF No. 7, this Court's "Electronic Case Filing Policies and Procedures" and Local Rule 2254(E)(1)(f). Together they require that in addition to the state court records that must be filed electronically with the Answer and served upon Petitioner in accordance with Rule 5 of the Rules Governing Section 2254 Cases In the United States District Courts, Respondents must also submit to the Court in the traditional manner on paper a complete copy the documents filed with the Court of Common Pleas in the petitioner's state criminal case and a complete set of all transcripts. Rule 5 required that Respondent "attach to the answer parts of the transcript that the [they] consider relevant." Because Respondent did not attach any part of any transcript to their answer, Petitioner is proceeding in forma pauperis, and the transcripts he requests are not lengthy, the requested transcripts are provided to him as attachments to this Report and Recommendation.
Section 9.4 of this Court's "Electronic Case Filing Policies and Procedures" provides: "Original State Court Records presented in 28 U.S.C. Section 2254 cases shall be filed in the traditional manner on paper. Records received will be noted on the docket, however, will not be available for view electronically. State Court records are NOT part of this court's permanent case file and are returned to the appropriate State Court upon final disposition."
Local Rule 2254(E)(1)(f) provides: "[I]n addition to the items that must be filed electronically with the Answer, a respondent shall also submit the original state Court records, or a certified complete copy of those records. The records shall be submitted in the traditional manner on paper. The Clerk of Court shall note on the docket that the original state Court records have been received. State Court records are not part of this Court's permanent case file and will be returned to the appropriate state Court upon final disposition, including appeals."
4. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. 28 U.S.C. § 2253 ("A certificate of appealability may issue...only if the applicant has made a substantial showing of the denial of a constitutional right.") Where the district court has rejected a constitutional claim on its merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would not find it debatable that each of Petitioner's claims lack merit, the Court should deny him a certificate of appealability with respect to each claim.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court deny each of Petitioner's claims for habeas relief and deny a certificate of appealability on all claims. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Petitioner is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
/s/ Richard A. Lanzillo
RICHARD A. LANZILLO
United States Magistrate Judge February 13, 2019