Opinion
CIVIL ACTION NO. 17-1076
09-04-2019
Shawn R. HILL, Petitioner, v. Tammy FERGUSON, et al., Respondents.
ORDER
Petitioner, who is proceeding pro se , seeks relief in this Court pursuant to 28 U.S.C. § 2254, arguing that his state-court conviction was imposed in violation of the United States Constitution. The Petition was referred to Magistrate Judge Elizabeth T. Hey, who has issued a Report and Recommendation ("R&R") that the petition be denied. Petitioner has filed objections to the R&R. Upon careful, de novo review of the record, the Court determines that Petitioner has not shown entitlement to relief, and agrees with the thorough R&R that Petitioner has failed to overcome the hurdle of the deference afforded to state courts.
Where the claims presented in a federal habeas petition have been decided on the merits in state court, a district court may not grant relief unless the adjudication of the claim in state court:
(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(d). A state court's decision is "contrary to" clearly established law if the state court applies a rule of law that differs from the governing rule set forth in Supreme Court precedent 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 [its] precedent." Lockyer v. Andrade , 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor , 529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ). The application of clearly established law must be "objectively unreasonable." Id. at 75, 123 S.Ct. 1166 (citation omitted).
After a bench trial in the Philadelphia Court of Common Pleas, Petitioner was convicted of first-degree murder, conspiracy, attempted murder, and related offenses, from an incident that involved multiple shooters and resulted in the death of one person and serious injuries to two others. The background is fully set forth in the R&R, and is adopted here. Petitioner raises several arguments in his objections, most of which are tied to his contention that the Commonwealth failed to have bullets or bullet fragments from the surviving shooting victims made available for ballistics testing, claiming that such testing would have shown that the bullets came from a .380 caliber firearm that was recovered at the scene and which did not contain Petitioner's fingerprints or DNA, but did contain material linked to other individuals.
Police also recovered at the scene numerous .380 and nine millimeter fired cartridge casings, which indicated that the .380 weapon and two nine millimeter guns had been fired. Trial Ct. Op. of July 17, 2014, at 6-7.
Petitioner argues that the failure to test the bullets or bullet fragments violated the Supreme Court's decision in Brady v. Maryland , which held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." To establish a Brady claim, the evidence "(1) must be favorable to the accused, either because it is exculpatory, or because it is impeaching, (2) must have been suppressed by the State, either willfully or inadvertently, and (3) must have been material such that prejudice resulted from its suppression."
373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Dennis v. Sec'y, Dep't of Corr. , 834 F.3d 263, 284 (3d Cir. 2016) (en banc) (internal quotation marks citations omitted).
This issue was raised in the trial court as a claim of prosecutorial misconduct, and the trial court held that witnesses saw Petitioner shoot the victims, that the bullets or fragments thereof were removed from one of the surviving victims months after the shooting, and that the Commonwealth had no obligation to "chase down" any ballistics evidence surgically removed months after the shooting. Petitioner takes issue with the trial court's statement as to Petitioner's argument that the bullets or bullet fragments would have matched the .380 weapon, that "[a]ssuming arguendo that this was the case, all that would establish is that [one of the victims] was shot with that .380, which has not been tied to decedent," and that the presence of another's fingerprints and DNA on the gun did not "mean it was impossible that the defendant used the gun as well." According to Petitioner, if the bullets were tied to that gun it would conclusively establish his innocence. The Court understands this is Petitioner's contention, but even if this claim were exhausted (which as the R&R explains it was not), all that it demonstrates is Petitioner's disagreement with the trial court's assessment of the evidence, to which this Court must accord full deference under § 2254. The trial court credited the testimony of numerous eyewitnesses identifying Petitioner, and placed special weight on a disinterested witness who was not part of the dispute that preceded the shootings.
Trial Ct. Op. of July 17, 2014, at 11-13. The trial court refers to the later surgery of one of the surviving victims; Petitioner appears to argue that both surviving victims underwent surgery months after the shooting. Even if Petitioner is correct, this does not change the analysis.
Id. at 12.
Abdul-Salaam v. Sec'y, Pa. Dep't of Corr. , 895 F.3d 254, 269–70 (3d Cir. 2018).
Trial Ct. Op. of July 17, 2014, at 11.
The record shows that the trial judge, sitting without a jury, was aware that the parties had stipulated that Petitioner's DNA and fingerprints were not on the recovered .380 weapon, and that there was no evidence of the bullets or bullet fragments removed from the surviving victims, when it found Petitioner guilty of murder on a conspiracy theory and guilty of attempted murder based on the eyewitness testimony. The decision was affirmed on direct appeal and after post-conviction proceedings. Petitioner has not shown that the Commonwealth ever had possession or knowledge of the surgical removal of the potential evidence, and has not shown that "use of the [evidence] by defense counsel at trial would have resulted in a different outcome at trial." After careful review of the record, the Court cannot hold that the state courts unreasonably applied federal law in rejecting Petitioner's claims.
Dennis , 834 F.3d at 302. Contrary to Petitioner's argument, this is not a situation where the ruling was based on the information being available to defense counsel through the exercise of diligence as defense counsel would not have had access to recovered bullets or fragments; the issue is that there is no evidence that the bullets were suppressed, because there is no evidence that the Commonwealth was even notified when the bullets or fragments were surgically removed months after the shootings. Also, although Petitioner objects to the reference to "bullet fragments" instead of "bullets" in the R&R, he cannot dispute that, as the R&R concluded, the evidence shows that at the time of the shooting, hospital personnel turned over the surviving victims' clothing to police, but the property receipt made no mention of bullets or bullet fragments. R&R [Doc. No. 32] at 18-19.
Finally, Petitioner argues that the prosecutor committed misconduct in closing arguments by contradicting the opening statement as to conspiracy. As explained in the R&R, this claim is unexhausted and procedurally defaulted, and therefore not reviewable.
AND NOW, this 3rd day of September 2019, upon careful and independent consideration of the Petition for Writ of Habeas Corpus, and all related filings, and upon review of the R&R of United States Magistrate Judge Elizabeth T. Hey, and the objections thereto, and for the reasons stated above, it is hereby ORDERED that:
1. The Objections [Doc. No. 34] are OVERRULED and the request for appointment of counsel is DENIED ;
2. The R&R [Doc. No. 32] is APPROVED and ADOPTED ;
3. Plaintiff's Motion to Lift Stay [Doc. No. 25] is DISMISSED AS MOOT ;
4. Petitioner's Motion for Discovery [Doc. No. 26] is DENIED ; and
5. The Petition will be dismissed by separate Order.
It is so ORDERED .
REPORT AND RECOMMENDATION
ELIZABETH T. HEY, U.S.M.J.
SHAWN R. HILL
v.
Rule 2(a) of the Rules Governing Section 2254 Cases requires Petitioner to name the officer with current custody as the respondent. At the time Petitioner filed his petition, he was housed at State Correctional Institution- ("SCI"-) Fayette. However, Petitioner has since been moved to SCI-Phoenix. Because the current superintendent of SCI-Phoenix is Tammy Ferguson, Ms. Ferguson is substituted as the proper respondent.
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Shawn R. Hill ("Petitioner"), who is currently incarcerated at the SCI-Phoenix in Collegeville, Pennsylvania. For the reasons that follow, I recommend that the petition be denied. I. FACTS AND PROCEDURAL HISTORY
On April 7, 2014, following a bench trial before the Honorable Barbara A. McDermott of the Philadelphia Court of Common Pleas, Petitioner was convicted of first-degree murder, conspiracy, attempted murder, and related offenses. The Pennsylvania Superior Court adopted Judge McDermott's summary of the facts as follows:
Around midnight on July 5, 2011, Chastity Cannon dropped off her mother, Darlene Cannon, at her home [on] Widener Street in North Philadelphia. Upon reaching her porch, Darlene Cannon overheard her neighbors, Marcella Ingrum ... and Paula Wilkins ... complaining about Cannon's practice of pouring condiments and chocolate syrup on her porch stairs. Cannon and Ingrum began [ ] arguing over Ingrum's comments. The argument prompted Cannon to call her daughter, Chastity Cannon, and explain the altercation to her. Chastity Cannon came back to Widener Street with her daughter and other females, both cousins and friends. Darlene Cannon identified Ingrum as the instigator of the altercation. Chastity Cannon and the other females began [ ] arguing with Ingrum. Eventually, Sydney Hill, [Petitioner's] brother and Ingrum's son, joined the argument.
Meanwhile, Ingrum called her daughter Rorie Hill, summoning her and [Petitioner] to the incident. Rorie Hill and [Petitioner] arrived at ... Widener Street. Upon exiting the car, Rorie Hill and [Petitioner] joined the argument. Sakima Santos, Chastity Cannon's fiancé, arrived on the scene and also joined the argument. Santos noticed [Petitioner] on the scene approximately five to ten minutes after he arrived.
....
Shortly thereafter, the argument resumed when two cars carrying a group of approximately eight males arrived on Widener Street. Jamel Newman, the decedent, was one of the males who arrived in the car. Most of the males exited the car and joined the argument. Santos was in the center of the crowd, attempting to calm down [Petitioner] and his family, explaining that no one wanted to fight. Pushing and shoving broke out, at which point Santos observed [Petitioner] pull a small, silver gun and fire two shots.
Upon hearing gun shots, Chastity Cannon turned to run toward Second Street but became caught up in the crowd. She noticed that her arm had been shot. She turned around and saw [Petitioner] pointing a gun at her. [Petitioner] struck her with another bullet. Santos, having started to run, noticed his fiancé[ ] lying in the street. When Santos turned back, he saw [Petitioner] pointing a gun at him. Santos asked [Petitioner] not to shoot and told him that "we have kids." Santos then watched as [Petitioner] shot him twice in the stomach. Santos counted to seven before standing up and carrying his fiancé to a police car at the end of Widener Street. When Santos arrived at a police car located at the corner of Second Street and Widener Street he noticed the decedent, Jamel Newman, lying next to it.
On July 5, 2011 shortly after midnight, Patrick Duncan and his wife were driving [s]outh on Second Street. Stopping at a light at Second Street and Nedro Avenue, Duncan observed two people running, one down the sidewalk and one down the street. Duncan hesitated to go through the light because he feared the two runners would cut in front of his car. As he began to accelerate,
he noticed a person coming out of Widener Street on foot. That person made a left onto Second Screed and as he did, he fell. Duncan also observed two different males standing next to the car on the [s]outheast corner of the street. The males stood with their backs to the car and were facing the person who turned off of Widener Street. Duncan then observed five or six gunshots. He saw one of the males standing by the car and holding a gun with two hands, and the other firing a gun. Duncan heard the person whom he saw fall moan as he drove past him on Second Street. On July 5, 2011, later in the morning, Duncan called Cheltenham Police who directed him to the Philadelphia Homicide Unit where Duncan then gave a statement consistent with his testimony.
Chastity Johnson, Chastity Cannon's daughter, was also present during the argument and the shooting. Johnson observed Newman at the scene of the argument. She also saw [Petitioner] pull out a gun and saw a spark ignite from it. Johnson saw Newman start to run. Johnson began running down the sidewalk, but soon moved to the street, which was less crowded. She watched Newman run in the street and observed [Petitioner] following him. Johnson saw another man with [Petitioner] who was carrying guns.
Officers Auty and Deacon, after quelling the argument on ... Widener Street, had just reached the corner of Second and Nedro Streets when they heard gunfire. The [o]fficers pulled over and saw a great deal of smoke and the decedent lying in the street. They pulled up to him and Officer Auty checked for signs of life, but found none. Sakima Santos approached Officer Auty, carrying Chastity Cannon and explaining that they had been shot. Officer Auty took Santos and Cannon to Einstein Hospital.
....
In her statement to police, Marcella Ingrum[, Petitioner's mother,] named [Petitioner] as the shooter and identified him from a police photo array. At trial, Ingrum testified that she did not remember giving or signing her statement, claiming she was under the influence of alcohol and marijuana at the time she gave it. Detective Pitts testified that Ingrum did not appear to be under the influence of either substance at the time she gave her statement, which she delivered in a coherent and cooperative manner. In her statement to police, Rorie Hill said she witnessed [Petitioner, her brother,] pull out a gun and fire a shot while arguing on Widener Street. At trial, Hill recanted her statement, claiming the police forced her to name [Petitioner]. Detective Harkins testified that he did not threaten Hill while taking her statement, nor did Hill indicate that she did not wish to speak with police.
Commonwealth v. Hill, 1527 EDA 2014, Memorandum, at 1-4 (Pa. Super. June 16, 2015) (Doc. 13-1) ("Super. Ct.-Direct") (quoting Commonwealth v. Hill, CP-51-CR-0009017-2012, Opinion, at 2-7 (Phila. C.C.P. July 17, 2014) ("Trial Ct. Op.")). The Superior Court also noted that ballistics evidence showed that three different guns were involved in the incident -- one .380 and two nine-millimeter firearms -- none of which was forensically linked to Petitioner, and that victims Mr. Santos and Ms. Cannon both survived after extensive hospital stays and multiple surgeries. Id. at 4. On April 21, 2014, Judge McDermott sentenced Petitioner to a mandatory sentence of life imprisonment for the murder of Jamel Newman, and to lesser terms of imprisonment on certain of the other charges. Commonwealth v. Hill, CP-51-CR-0009017-2012, Docket Sheet at 5-8 (Phila. C.C.P. entry dated 4/21/14) ("Docket Sheet").
Judge McDermott found Petitioner guilty of murder or attempted murder of all three shooting victims, and guilty of conspiracy to murder Mr. Newman, but not guilty of conspiracy as to the attempted murder of Ms. Cannon and Mr. Santos. N.T. 04/07/14 at 69.
The Notes of Testimony from the sentencing hearing are not contained in the state court record. The Docket Sheet indicates that Judge McDermott sentenced Petitioner to life imprisonment for the first-degree murder conviction, and to ten -to-twenty years' imprisonment for each of two counts of attempted murder, to run consecutive to the life sentence -- a total sentence of life imprisonment plus twenty -to-forty years. Docket Sheet at 5-8 (entries dated 4/21/14). Judge McDermott also sentenced Petitioner to concurrent terms of imprisonment of ten -to- twenty years for conspiracy to commit first-degree murder, ten -to- twenty years for each of two counts of aggravated assault, four -to- eight years for each of two counts of unlawful possession of a firearm, three -to- six years for firearms not to be carried without a license, and six -to-twelve months for one count of recklessly endangering another person. Id.
Following the denial of post-sentence motions, Petitioner filed a timely direct appeal challenging the sufficiency and weight of the evidence and arguing that the prosecution had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by suppressing bullet fragments removed from Ms. Cannon and Mr. Santos. On July 17, 2014, Judge McDermott filed a Rule 1925(a) opinion. Trial Ct. Op. The Superior Court affirmed, rejecting the sufficiency and weight claims, and with regard to the Brady claim, concluding that Petitioner failed to prove that the Commonwealth suppressed evidence or that the purported missing evidence was prejudicial. Super. Ct.-Direct at 10-11. Petitioner filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on December 17, 2015. Commonwealth v. Hill, 433 EAL 2015, 128 A.3d 1205 (Pa. Dec. 17, 2015) (table).
In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194.
On January 5, 2016, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541 - 9551, followed by an amended pro se petition on May 5, 2016 ("First PCRA"). Counsel was appointed who filed a Finley no-merit letter and petition to withdraw. See Docket Sheet (entry dated 07/05/16). On September 1, 2016, the PCRA court issued a Rule 907 notice of intent to dismiss First PCRA. Petitioner filed a response to the Rule 907 Notice on September 29, 2016, raising claims of ineffectiveness of PCRA counsel, and on the same day the PCRA court dismissed the First PCRA and granted counsel leave to withdraw. See Docket Sheet; see also Commonwealth v. Hill, 202 A.3d 792, 793–94 (Pa. Super. 2019) (" Super Ct.-Second PCRA") (noting procedural history).
The state court record forwarded to this court does not contain most of the PCRA filings, although the parties have provided certain of Petitioner's filings and state court opinions. See Doc. 18 at 9-26 & 28-35; Doc. 21-1; Doc. 25 at 16-32, 37-44; Docs. 25-1 & 25-2; Docs. 30-2 & 30-3.
Pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), appointed counsel in a post-conviction proceeding may be given leave to withdraw upon the submission of a "no merit" letter that details the nature and extent of his review of the case, lists each issue the petitioner wished to have reviewed, and explains his assessment that the case lacks merit. The court must also conduct an independent review of the record and must agree with counsel that the petition is meritless before dismissing the petition.
Petitioner appealed, asserting that the PCRA court (1) erred in that its legal conclusions failed to establish "independent evidentiary support," (2) erred in its discussion of DNA and fingerprint analysis, and (3) erred in its Brady conclusion which contravened the Third Circuit's decision in Dennis v. Sec'y, Pa. Dep't of Corr., 834 F.3d 263 (3d Cir. 2016). See Commonwealth v. Hill, No. 3534 EDA 2016, 2017 WL 5046335, at *2-3 (Pa. Super. Nov. 3, 2017) (" Super. Ct.-First PCRA"). The Superior Court granted Petitioner's request to supplement his appellate brief, and thereafter Petitioner sought to raise three allegations of ineffectiveness of PCRA counsel:
In Dennis, the Third Circuit held that "[t]he focus [in considering a Brady claim] is disclosure by the prosecutor, not diligence by the defense." 834 F.3d at 290.
(1) Whether PCRA counsel was ineffective for unreasonably narrowing its investigation to the Commonwealth's illegal suppression of vital ballistic evidence without investigation [sic] lead detective (George Pirrone's) illegal withholding of evidence from the Commonwealth?
(2) Whether trial, appellate and PCRA counsel[']s performances deprived [Petitioner] of his right to meaningful review where counsel allowed the Commonwealth to fraudulently misrepresent a material fact regarding the Commonwealth's possession of Sakima Santos and Chastity Cannon's medical records prior to trial?
(3) Whether PCRA counsel was deficient in his performance where he failed to ascertain evidence of detectives (James Pitts) conviction in a civil judgment/verdict, and (Ronald Dove's) guilty plea in a murder cover-up, both of which are crucial impeachable evidence surrounding Marcella Ingrum and Ror[ie] Hill's illegal arrests, extensive detention, and illegally coerced inculpatory [sic] statements used by the [c]ourt as definitive proof of [Petitioner's] guilt[ ]?
See id. at *2.
On November 3, 2017, the Superior Court affirmed the dismissal of Petitioner's First PCRA petition. Super. Ct.-First PCRA. The Superior Court declined to review the merits of the three IAC claims Petitioner asserted in his supplemental brief, explaining that he did not preserve them in his original brief and was not given leave by the court to include them in his supplemental brief. Id. at *2. In addition, the Superior Court concluded that the three issues properly raised were both previously litigated and meritless. Id. at *2-4. Petitioner did not seek allowance of appeal in Pennsylvania Supreme Court.
On November 30, 2017, Petitioner filed a second PCRA petition in the state court ("Second PCRA"), asserting the existence of newly-discovered facts of police corruption in unrelated legal matters, and raising eight claims of ineffective assistance of counsel ("IAC") at trial and appeal. See Commonwealth v. Hill, CP-51-CR-0009017-2012, Opinion and Order, at 5 (Phila. C.C.P. Jan. 25, 2018) ("PCRA Ct. Op.-Second PCRA") (Doc. 21-1). The PCRA court issued a Rule 907 Notice of Intent to Dismiss on the grounds that the petition was untimely and meritless, and Petitioner responded, arguing that his facially untimely Second PCRA qualified under the PCRA statute's newly-discovered facts exception. See id. at 2; Docket Sheet (entries dated 12/18/17 & 01/03/18); Second PCRA at 3 (citing 42 Pa. C.S.A. § 8545(b)(1)(ii) ). On January 25, 2018, the PCRA court dismissed the Second PCRA as untimely. PCRA Ct. Op.-Second PCRA.
Petitioner again appealed, arguing that the PCRA court erroneously found a lack of due diligence on his part, IAC in representing his interests during trial and direct appeal, and IAC of PCRA counsel based on news reports and civil judgments concerning detectives' unlawful investigative practices. See Super Ct.-Second PCRA, at 796–97. On January 11, 2019, the Superior Court affirmed the dismissal of the Second PCRA, finding that newspaper articles cited by Petitioner did not constitute newly discovered evidence on which Petitioner could base his untimely Second PCRA. Id. at 800–01. Although the Superior Court had granted Petitioner's "Request for Permission to File Supplemental Arguments," it did not review the claims Petitioner subsequently raised because he "neither sought nor received permission to include them in his supplemental brief." Id. The court found that Petitioner was aware of the alleged police malfeasance prior to his First PCRA, and that therefore the evidence relied upon in his Second PCRA did not constitute newly-discovered facts. Petitioner did not seek allowance of appeal in Pennsylvania Supreme Court.
Petitioner's filings in this court overlapped with his PCRA proceedings. On March 10, 2017 -- while the appeal of his First PCRA was pending in the Superior Court -- Petitioner filed the present pro se habeas petition, which together with exhibits runs 226 pages. Doc. 1. Petitioner raises the following four claims: (1) trial court error related to his Brady claim; (2) trial court error in DNA and fingerprint analyses; (3) trial court error in making "arguendo" statements regarding ballistics evidence, and (4) prosecutorial misconduct in closing statement. Id. ¶ 12 (GROUNDS ONE-FOUR). Petitioner subsequently filed a 112-page memorandum of law with exhibits in support of his habeas petition (Doc. 7), an addendum in support of his Brady claim (Doc. 10), and a motion for appointment of counsel (Doc. 14). On October 31, 2017, the District Attorney filed a response arguing that all of Petitioner's claims are unexhausted because his First PCRA remained pending in the Superior Court. Doc. 13. The Honorable Cynthia M. Rufe referred the matter to me for a Report and Recommendation. Doc. 2.
Petitioner signed his petition on March 10, 2017, and it was docketed in this court on March 13, 2017. Because the petition is timely based on the filing date, see infra at 518 n.11, I need not make any finding as to when he provided it to prison authorities pursuant to the mailbox rule. See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (pro se petition is deemed filed when given to prison authorities for mailing) (citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) ).
On March 15, 2018, while the Second PCRA remained pending, I issued an Order denying without prejudice Petitioner's motion for appointment of counsel, see Doc. 15, and on the same day ordered the District Attorney to file a supplemental response (1) incorporating the state court's adjudication of Petitioner's PCRA appeals, (2) addressing the merits of habeas claims, if necessary, (3) attaching copies of Petitioner's PCRA petitions, and (4) attaching copies of the PCRA court's September 29, 2016 and January 25, 2018 opinions. Doc. 16. On April 27, 2018, Petitioner filed a traverse in support of his federal habeas petition, arguing that Respondents were mistaken in arguing that his claims are unexhausted and that they are in fact fully exhausted and ripe for disposition. Doc. 18. Nevertheless, in consideration of a letter from the District Attorney regarding the procedural posture of Petitioner's state court appeal, see Doc. 17, I vacated the order for a supplemental response. Doc. 19.
Although Petitioner averred in his traverse that his Second PCRA appeal contained "separate and distinct" issues from his First PCRA and that the District Attorney somehow attempted to mislead the court in this regard, Doc. 18 at 4-5, the issues raised in the Second PCRA arose from the same trial and conviction and therefore may have been related, directly or indirectly, to the claims asserted in the present habeas petition. Therefore, in an abundance of caution, I delayed consideration of the habeas petition until the state courts fully adjudicated Petitioner's Second PCRA.
On July 6, 2018, the District Attorney filed a memorandum regarding the status of Petitioner's state court appeal, attaching a copy of the PCRA court's January 25, 2018 opinion dismissing the Second PCRA. Doc. 21. While his second PCRA appeal was still pending, on October 29, 2018, Petitioner filed an addendum in support of his second and fourth claims based upon a "new scientific study regarding secondary DNA transference," and caselaw regarding conspiracy versus accomplice liability. Doc. 23.
On February 11, 2019, Petitioner filed motions in this Court seeking to lift a stay on the ground that his state court proceedings had concluded, see Doc. 25, and for discovery. Doc. 26. On May 22, 2019, the District Attorney filed an omnibus response addressing Petitioner's petition, briefing, and motions. Doc. 30. The matter is now ripe for disposition.
Petitioner also renewed his request for appointment of counsel by letter dated June 18, 2019. See Doc. 31.
The petition is timely. Petitioner's conviction became final on March 17, 2016, 90 days after the Supreme Court of Pennsylvania denied Petitioner allowance of appeal on December 17, 2015. See Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999) (conviction becomes final when time for seeking next level of appeal expires if appeal is not taken); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999) (conviction became final after 90 days when time for seeking certiorari expires). Petitioner filed his First PCRA petition prior to the date his conviction became final, on January 5, 2016, and the First PCRA remained pending until December 3, 2017, thirty days after the Superior Court affirmed the PCRA court's dismissal of the petition. See Pa. R.A.P. 903(a) (defendant may file an appeal within 30 days from the date of the entry of the order from which the appeal is taken); see also Gonzalez v. Thaler, 565 U.S. 134, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (if appeal not taken, judgment final when time for pursuing direct review in state court expires). As Petitioner filed his habeas petition during the pendency of his First PCRA, on March 13, 2017, his petition is clearly timely.
A. Exhaustion and Procedural Default
Before the federal court can consider the merits of a habeas claim, Petitioner must comply with the exhaustion requirement of section 2254(b), by giving "the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The doctrine of procedural default is closely related to the exhaustion requirement. It is not enough that Petitioner present his claims to the state court; he must also comply with the state's procedural rules in doing so, thereby giving the state courts a full and fair opportunity to address them. A failure to do so results in a procedural default. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
[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, 131 S.Ct. 1120, 179 L.Ed.2d 62] (2011) (quoting Coleman, 501 U.S. at 729-30 ).
Maples v. Thomas, 565 U.S. 266, 280, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012) ; see also Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000) (where it would be futile to require petitioner to exhaust his claim because there is a procedural bar to relief in state court, the claim is subject to the procedural default rule).
The court may address a defaulted claim only if the petitioner establishes cause for the default and prejudice resulting therefrom, or that a failure to consider the claim will result in a fundamental miscarriage of justice. Werts, 228 F.3d at 192. To meet the "cause" requirement to excuse a procedural default, a Petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. at 192-93 (quoting and citing Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ). To establish prejudice, Petitioner must prove " ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ " Id. at 193.
In order for a Petitioner to satisfy the fundamental miscarriage of justice exception to the rule of procedural default, the Supreme Court requires that Petitioner show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Carrier, 477 U.S. at 496, 106 S.Ct. 2639 ). This requires that Petitioner supplement his claim with "a colorable showing of factual innocence." McCleskey v. Zant, 499 U.S. 467, 495, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (citing Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) ). In other words, a Petitioner must present new, reliable evidence of factual innocence. Schlup, 513 U.S. at 324, 115 S.Ct. 851.
B. Merits Review
Under the federal habeas statute, review is limited in nature and may only be granted if (1) the state court's adjudication of the claim "resulted in a decision contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or if (2) the adjudication "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(d)(1)-(2). Factual issues determined by a state court are presumed to be correct, rebuttable only by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1) ).
The Supreme Court has explained that "[u]nder the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to "the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. 1495. As the Third Circuit has noted, "an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts, 228 F.3d at 196 (citing Williams, 529 U.S. at 411, 120 S.Ct. 1495 ).
III. DISCUSSION
A. Ground One: Brady Violation
Petitioner first argues that the state courts erred in addressing his Brady claim, which as noted above concerned the Commonwealth's alleged failure to disclose bullet fragments removed from Chastity Cannon and Sakima Santos. Doc. 1 ¶ 12 (GROUND ONE); Doc. 7 at 31-35. Defendant initially argued that the claim was unexhausted due to Petitioner's then-pending First PCRA, see Doc. 13 at 5-6, and more recently argues that the claim is non-cognizable "to the extent it requests a straightforward review of the Pennsylvania Superior Court's decision," Doc. 30 at 12, and that if the claim is interpreted as a straightforward Brady claim, it is meritless. Id. at 12-17. By invoking Brady, Petitioner has raised a cognizable constitutional claim, and because he exhausted his Brady claim on direct appeal, I will address the claim on the merits.
All pinpoint citations to Petitioner's filings will be to the court's ECF pagination.
As previously noted, Brady requires the prosecution to disclose evidence favorable to the accused "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. To prove a Brady violation, a defendant must show that the evidence was (1) favorable in that it is exculpatory or impeaching of the government's evidence, (2) suppressed by the state, and (3) material such that the defendant was prejudiced by the government's suppression. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). "The focus [in considering a Brady claim] is disclosure by the prosecutor, not diligence by the defense." Dennis, 834 F.3d at 290.
In addressing Petitioner's Brady claim on direct appeal, the Superior Court stated:
... [Petitioner] claims that the Commonwealth violated Brady "where it concealed evidence that a bullet was removed from the body of Chastity Cannon and where it failed to procure it for comparison to the other ballistics evidence in the case[.]" We disagree.
To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued.
The burden rests with the appellant to prove, by reference to the record, that evidence was withheld or suppressed by the prosecution. The evidence at issue must have been material evidence that deprived the defendant of a fair trial. Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Commonwealth v. Watkins, 630 Pa. 652, 108 A.3d 692, 711 (2014) (internal quotation marks and citations omitted).
Here, [Petitioner] has failed to establish a single one of the elements required by Brady and its progeny. Most glaringly, he points to nothing in the record that proves the Commonwealth suppressed evidence. Instead, [Petitioner] notes that the Commonwealth "presumably" had the medical records of the victims "for a period of time" before they testified at trial, and "presumably had knowledge that projectiles were removed from their bodies." [Petitioner] cannot meet his burden with unsupported presumptions. Furthermore, as no ballistics evidence offered at trial incriminated [Petitioner], the missing evidence was not material, because no testing on the bullets removed from the victims could have exculpated [Petitioner] or impeached the Commonwealth's evidence against him. Finally, as the Commonwealth notes, [Petitioner] was convicted of conspiracy to commit first-degree murder, and therefore was responsible for the shootings even if it was his co-conspirator's gun that fired the bullets recovered from the bodies of the victims. Accordingly, [Petitioner's] Brady claim fails.
Super. Ct.-Direct at 10-11 (citations to appellate briefs omitted).
As previously noted, Judge McDermott found Petitioner guilty of conspiracy to murder Mr. Neuman, but not guilty of conspiracy as to the attempted murder of Ms. Cannon and Mr. Santos. N.T. 04/07/14 at 69. As will be more fully discussed infra at 523 n.17, the Superior Court appears in its final analysis to have conflated Petitioner's guilt in the conspiracy to commit first degree murder (as to Mr. Newman) with his acquittals related to the attempted murders of Ms. Cannon and Mr. Santos.
In his petition, Plaintiff avers that both Chastity Cannon and Sakima Santos testified that they were shot by Petitioner and that bullet fragments were surgically removed from their bodies, and he argues that if those fragments had been tested they would have matched a .380-caliber handgun which was recovered at the scene and determined not to have Petitioner's fingerprints. Doc. 1 at 9-13. In additional briefing, Petitioner avers that the Commonwealth misled the state courts by claiming that the prosecution was unaware of the surviving victims' medical records prior to trial, and that those records remain critical to determining whether bullets were removed from the surviving victims, whether they were handed over to investigating detectives, and whether the medical records should have been revealed to the defense as part of pretrial discovery. Doc. 10 at 7-8.
Petitioner's Brady claim on appeal addressed evidence removed from Ms. Cannon whereas on habeas he addresses evidence removed from both Ms. Cannon and Mr. Santos. I will assume to his benefit that he raised both on appeal and that the Superior Court's analysis applied to both.
Respondents aver that "copies of the victims' medical records were provided to defense counsel well in advance of trial" and that "[a]ny mention of bullet fragments in the hospital records would have been known to the defense, and [P]etitioner does not argue otherwise." Doc. 30 at 15. It is difficult to reconcile these representations with Plaintiff's averment that medical records of the surviving victims were not provided prior to trial. However, the Court need not resolve this dispute to adjudicate Petitioner's Brady claim.
The state courts' determination is neither contrary to, nor an unreasonable application of, Brady and its progeny. First, there is nothing in the record to indicate that the bullet fragments extracted from the surviving victims were provided to police and subsequently suppressed by the Commonwealth, and therefore no way to determine whether meaningful ballistics analysis of the fragments would have been possible or whether such analysis would have been exculpatory. In fact, what evidence exists strongly suggests otherwise. The victims' testimony established that two bullets were removed from Mr. Santos's body, and that one bullet lodged in Ms. Cannon's body which could not be extracted until a second surgery performed several months later. N.T. 04/02/14 at 225 (Mr. Santos); N.T. 04/04/14 at 13-14 (Ms. Cannon). However, there is no evidence that any of the fragments were given to the police or subjected to ballistics analysis. For example, the trial transcript reveals that hospital personnel turned over both surviving victims' clothing to police as memorialized on a property receipt, but there is no mention of any bullet fragments turned over along with the clothing. N.T. 04/03/14 at 243-44. Additionally, the only bullet fragments which were mentioned at trial as being recovered by the police -- fragments which the medical examiner recovered from decedent Jamel Newman's body and clothing -- were too damaged to be subjected to meaningful ballistics analysis. Id. at 204-06, 243-44. Thus, there is no evidence that the bullet fragments recovered from Mr. Santos and Ms. Cannon were ever in the custody of the Commonwealth or that they were subsequently suppressed. Petitioner therefore has not met his burden to demonstrate that the Superior Court's Brady analysis was unreasonable.
Second and more importantly, the bullet fragments would not have been exculpatory under the circumstances of this case, nor would they have impeached any of the Commonwealth's evidence, because no ballistics evidence directly incriminated Petitioner. He was convicted based on the testimony and statements of six eyewitnesses, including surviving victim Sakima Santos and Petitioner's own mother and sister, who identified Petitioner as a shooter. Mr. Santos testified at trial that he was four or five feet away from Petitioner when he saw Petitioner shooting, and Mr. Santos described Petitioner's gun as "dull, silver, little." N.T. 04/02/14 at 166. Mr. Santos took two steps and saw Ms. Cannon, his fiancée, lying on the ground. Id. at 167. He turned back and saw Petitioner pointing a gun at him, prompting him to put his hands up and say, "We got kids. Don't do it." Id. at 168. Mr. Santos testified that Petitioner then shot him twice in the stomach. Id. at 169. On cross-examination, Mr. Santos confirmed his statement to a detective that the shooter's gun was "small, dull, silver automatic like a .380," and that the .380 displayed in court looked like the gun used to shoot him. Id. at 184-85.
Both Petitioner's mother and sister recanted their police statements at trial, testifying that they did not see Petitioner shoot a gun and that they were under the influence and pressured into falsely identifying him. N.T. 04/01/14 at 175, 187; N.T. 04/02/14 at 47-48, 58. As fact finder, Judge McDermott did not specifically resolve whether these two witnesses gave false testimony. Trial Ct. Op. at 5. Nevertheless, she did specifically credit Mr. Santos's and Ms. Cannon's identification of Petitioner as having shot them. Id. at 4. Additionally, in convicting Petitioner of first-degree murder and conspiracy to murder of Mr. Newman, she credited Ms. Johnson's testimony that she saw Petitioner pull a gun, saw Newman run, and saw Petitioner and another man carrying guns chase Newman. Id. at 4, 5. She also credited testimony of a person who happened to drive by the events, whose testimony established that there were two shooters, one of whom was Petitioner, who chased and shot Mr. Newman. Id. at 10. Together, these witnesses established that Petitioner "and a conspirator pursued [Mr. Newman] and shot him repeatedly." Id. Finally, Judge McDermott did not credit Petitioner's "glib and self-serving testimony" denying that he was armed. Id. at 11. Judge McDermott's credibility findings regarding the witnesses cannot be disturbed by a federal habeas court. See Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) ("federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court").
Trial testimony also established that one day after the shooting occurred, police recovered a silver-colored .380-caliber handgun from under a parked car outside a hair salon located diagonally from the shooting location, and that subsequent fingerprint and DNA analysis did not link Petitioner to the weapon. N.T. 04/03/14 at 130-35. Five of the fired cartridge casings recovered from the shooting scene matched the recovered .380-caliber handgun. Id. at 209. However, numerous other cartridge casings recovered from the scene indicated that at least three firearms had been fired, only one of which was recovered, and that the unrecovered weapons included one 9mm handgun and either a 9mm or .380-caliber handgun. Id. at 209-11, 220. As a result, although no physical evidence established that the recovered weapon belonged to Petitioner or had been used by him, the prosecution argued that Petitioner most likely possessed and used one of the unrecovered firearms. N.T. 04.07/14 at 37.
Even if the bullet fragments from the surviving victims had established that they were shot with the .380-caliber handgun recovered by the police and not linked to Petitioner, he could not show the third element of a Brady claim, namely that the suppression of this evidence prejudiced him at trial. Simply stated, Petitioner was not convicted by ballistics evidence, but by the testimony of multiple witnesses who identified him as a shooter. Moreover, although no firearm was conclusively linked to Petitioner, the strength of the witness testimony resulted in Petitioner being convicted of conspiracy to commit first-degree murder in addition to his other offenses, meaning that be was criminally liable not only for the bullets that he fired, but for those fired by his co-conspirators using other weapons. Thus, even if the bullet fragments were in the Commonwealth's custody, and even if forensic testing of the fragments showed precisely what Petitioner claims it would have shown, the Superior Court reasonably concluded that this would not have changed the outcome of the trial.
There is one aspect of the Superior Court's opinion that does not wholly comport with Judge McDermott's verdicts. Judge McDermott acquitted Petitioner of conspiracy with respect to the attempted murders of Ms. Cannon and Mr. Santos, meaning that she was not persuaded that Petitioner acted in concert with anyone else in those shootings. However, the Superior Court observed that Petitioner's conviction for conspiracy to commit first-degree murder supported his responsibility for the shootings of all of the "victims." Super. Ct.-Direct at 11. Because the evidence of Petitioner's guilt for the shootings of Ms. Cannon and Mr. Santos was solidly supported by their own eyewitness testimony, the Superior Court's observation does not take away from its ultimate conclusion.
For the aforementioned reasons, Petitioner has failed to show that the Commonwealth possessed the bullet fragments from the surviving victims or that such evidence constituted material evidence whose suppression would give rise to a Brady violation. Therefore, Petitioner is not entitled to relief as to this claim.
B. Ground Two: Trial Court Error in DNA and Fingerprint Analyses
Petitioner next argues that the state courts erred in considering DNA and fingerprint evidence. Doc. 1 ¶ 12 (GROUND TWO); Doc. 7 at 35-40. In his petition, Plaintiff sets forth this claim as "Whether the State Courts [sic] final conclusions on its own DNA and fingerprint analysis can survive a question of law where it clearly failed to acknowledge stipulated DNA and fingerprint facts and abused its discretion when it alternatively -- without evidentiary support -- rested on multiple unsupported scientific theories regarding DNA and fingerprint transference not presented?" Doc. 1 at 16-17. In his supporting memorandum, Petitioner avers that the state courts "all interjected their own scientific theories regarding the absence of petitioner's DNA and fingerprints" and that this "violated [his] due process protection and his right to cross-examine the DNA and fingerprint experts." Doc. 7 at 38. In a separate filing, Petitioner submitted an article entitled "Secondary DNA Transfer" published in Criminal Legal News, along with additional legal argument. Doc. 23. In response, Respondent argues that the claim is procedurally defaulted and meritless. Doc. 30 at 17-20.
By way of context, the parties stipulated at trial that the Commonwealth's forensic analysis of the .380-caliber handgun recovered near the crime scene determined that the gun did not have either Petitioner's DNA or fingerprints on it. See N.T. 03/28/14 at 39-41; N.T. 04/03/14 at 130-35. According to Petitioner, the stipulation should have sufficed to prove his innocence, and explanations offered by the state courts for why the absence of his DNA and fingerprints from the recovered firearm should not be viewed as exonerating him amounted to the impermissible interjection of scientific theories which were not supported by the Commonwealth's own forensic analysis, thus violating his rights under the Due Process and Confrontation Clauses.
To the extent Petitioner argues that the state courts' consideration of the DNA and fingerprint analyses violated his due process and/or confrontation rights, the claim is unexhausted. On direct appeal, Petitioner discussed the DNA and fingerprint evidence in the context of sufficiency and weight of evidence claims, and in his appeal to the Superior Court on his First PCRA, Petitioner argued that the PCRA court erred "where an interjection of personal scientific theories post-trial circumvented the stipulation and diminished the materiality of [Petitioner's] Brady claim." Super. Ct.-First PCRA at *2. Because Petitioner did not place the state courts on notice of a due process or Confrontation Clause claim, the present claim is unexhausted. In addition, because the time for obtaining state review of those legal bases has now passed, the claim is also procedurally defaulted. Werts, 228 F.3d at 192.
The Superior Court held that the eyewitness testimony was sufficient to identify Petitioner even if the ballistics evidence was not conclusive. Super. Ct-Direct at 6. Also, the absence of forensic evidence of his guilt did not undermine the verdict as against the weight of the evidence. Id. at 9. If his present claim were construed as a challenge to these conclusions, it would fail. The state courts' conclusion that the evidence was sufficient was clearly reasonable, and a challenge to the weight of the evidence is not cognizable on habeas review. See, e.g., Lecount v. Patrick, Civil Action No. 06-0774, 2006 WL 2540800, at *6 (E.D. Pa. Aug. 30, 2006) (Giles, J.) ("A federal court has no power to grant habeas relief because it finds that the state conviction is against the ‘weight’ of the evidence.") (citing Tibbs v. Florida, 457 U.S. 31, 42-45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) ; Marshall v. Lonberger, 459 U.S. 422, 432, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) ).
As previously noted, a petitioner may overcome the procedural default of a claim by a showing of cause and prejudice. Petitioner has not done so. In his petition, Petitioner avers that this ground "was presented on direct review by appellate counsel as a stipulated fact," and that it was addressed in his "hybrid filings which were forwarded to appellate counsel, but not acted upon." Doc. 1 at 31-32. While it is true that the results of DNA and fingerprint testing were stipulated to by the parties at trial and that issues related to the DNA and fingerprint testing were presented to the state courts as noted above, these facts do not constitute "some objective factor external to the defense [which] impeded counsel's efforts to comply with the State's procedural rule," Werts, 228 F.3d at 192-93, nor do they establish prejudice. Additionally, pro se status is insufficient itself to excuse a procedural default. See Siluk v. Beard, 395 F. App'x 817, 820 (3d Cir. 2010) ("[P]ro se status, without more, cannot constitute cause sufficient to excuse the procedural default of his federal claims in state court."); Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir. 1992) (pro se status is not an "objective factor external to the defense that will provide cause for a procedural default").
A habeas petitioner can also overcome default by a showing of actual innocence, and Petitioner repeatedly asserts his actual innocence. See, e.g., Doc. 1 at 24. However, all of his protestations of innocence center around the fact that no ballistics tests were conducted on the bullet fragments recovered from the surviving victims, as well as the parties' stipulation at trial that Petitioner's DNA and fingerprints were not found on the .380-caliber handgun recovered near the crime scene. As previously explained, Petitioner was not convicted based on evidence connected to the recovered firearm -- one of at least three firearms involved in the incident -- but rather by the testimony of several witnesses who identified him as a shooter of Ms. Cannon and Mr. Santos, including themselves, Ms. Johnson who testified that Petitioner pulled a gun and was one of two armed men who chased Mr. Newman, and the driver of a car who testified that Petitioner was one of two shooters who chased and shot Mr. Newman. Moreover, the alleged after-discovered evidence related to the Brady claim, as well as the DNA and fingerprint results, were known to Petitioner at the time of trial and therefore do not constitute "new, reliable evidence of factual innocence." Schlup, 513 U.S. at 324, 115 S.Ct. 851. Thus, to the extent this claim implicates due process or the Confrontation Clause, it is defaulted and not reviewable.
To the extent the court construes the claim as being identical to a claim asserted in during his First PCRA appeal -- specifically, that the PCRA court erred by interjecting unsupported scientific theories regarding DNA and fingerprint analysis which circumvented the parties' stipulation and "diminished" his Brady claim -- such a claim is meritless. On direct appeal, in the context of Petitioner's claim that the verdict was against the weight of the evidence because the DNA and fingerprint stipulations failed to link him to the recovered gun, the Superior Court stated that "an absence of evidence is not evidence of absence," Super. Ct.-Direct at 9 (quoting Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa. Super. 2005) ), and that "[t]he fact there was no forensic evidence of [Petitioner's] guilt does not require a finding that [Petitioner] is innocent." Id. On appeal from the denial of the First PCRA, in the context of Petitioner's claim that DNA and/or fingerprint analysis of the bullet fragments extracted from the two surviving victims would have exonerated him, the Superior Court found the claim previously litigated and meritless, explaining in part that because Petitioner "was convicted based upon multiple eye-witness accounts ... the statement of AEMC policy would not compel a different verdict...." Super. Ct.-First PCRA at *3. Thus, the reasoning of the state courts does not amount to impermissible interjection of scientific theories in violation of Petitioner's due process or confrontation rights, but rather constitutes a valid explanation for why the stipulated results of the fingerprint and DNA analysis and/or the alleged after-discovered evidence of AEMC policy did not exonerate Petitioner.
In his First PCRA, Petitioner claimed to have newly-discovered evidence in support of his previously raised Brady claim, specifically, a statement from Albert Einstein Medical Center ("AEMC") describing the hospital's policy of turning all recovered projectiles over to the police. The Superior Court found that this evidence was not exculpatory and that it was not "newly-discovered" because "[Petitioner] could easily have obtained this policy prior to trial through reasonable diligence." Super. Ct. Op.-First PCRA at 3.
The article entitled "Secondary DNA Transfer," which Petitioner submitted in an addendum, see Doc. 23, is not relevant. The article discusses a phenomenon whereby the DNA from one individual can be transferred by a second individual to an object that the first individual never touched. Here, the parties stipulated at trial that Petitioner's DNA and fingerprints were not found on the .380-caliber handgun recovered near the crime scene. N.T. 03/28/14 at 39-41; N.T. 04/03/14 at 130-35. Because Petitioner's DNA was not found on the firearm, DNA transfer is not relevant.
In sum, to the extent this claim raises a due process and/or Confrontation Clause challenge to the state courts' consideration of the DNA and fingerprint analyses, the claim is unexhausted and procedurally defaulted and cannot be reviewed by this court. To the extent the claim is construed as the claim of PCRA court error raised in the state courts, it is meritless.
Even if the court reached the merits of the due process and Confrontation Clause claims, Petitioner would not be entitled to relief. The state courts clearly accepted the stipulated findings that Petitioner's DNA and fingerprints were not found on the recovered .380-caliber gun, and therefore it cannot be said the state courts violated his due process rights by ignoring the stipulations, or that his Confrontation Clause rights were violated because he could not cross-examine the experts as to these findings.
C. Ground Three: Trial Court Error in Making "Arguendo" Statement Regarding Ballistics Evidence
In Ground Three, Petitioner argues that an "arguendo" statement made by the trial court regarding the ballistics evidence "raises[s] a reasonable inference ... that [he] is completely innocent of the crime[ ] of attempted murder." Doc.1 ¶ 12 (GROUND THREE) & at 24; see also Doc. 7 at 40-43. Thus, Petitioner appears to argue that dicta in the state court opinions should be construed as evidence establishing his actual innocence. In response, Defendant argues that the claim is procedurally defaulted, non-cognizable, and meritless. Doc. 30 at 20-21.
The factual basis of Petitioner's third claim arises from Judge McDermott's verdict on certain charges together with statements made by the state courts regarding missing ballistics evidence. As previously explained, Petitioner was convicted of, among other things, conspiracy to commit first-degree murder related to the shooting death of Mr. Newman. Docket Sheet at 5-8 (entries dated 4/21/14). In reference to surviving victims Ms. Cannon and Mr. Santos, Petitioner was convicted of, among other things, two counts each of attempted murder and aggravated assault, but acquitted on two additional conspiracy charges. Id. According to Petitioner, this outcome followed from trial testimony indicating that Petitioner alone shot surviving victims, whereas Petitioner and an unidentified gunman or gunmen then proceeded to shoot and kill Mr. Newman. Doc. 1 at 23-24; Doc. 7 at 40. Next, Petitioner identifies the following statements made by the state courts which, he contends, should be construed as evidence of his innocence. Doc. 7 at 41-42. In addressing Petitioner's Brady claim on direct appeal, Judge McDermott stated:
Sakima Santos saw [Petitioner] shoot Chastity Cannon at close range. Thus, it is exceedingly unlikely that the evidence taken from Cannon's body would be materially exculpatory or potentially useful.... [Petitioner] expounds an elaborate theory seeming to imply that the recovered bullet or bullet fragments would have matched a recovered .380 handgun, which was found near the body of the decedent and which did not match [Petitioner's] DNA or fingerprints.
Assuming arguendo that this was the case, all that would establish is that Cannon was shot with that .380, which has not been tied to the decedent....
Trial Ct. Op. at 12. Petitioner also relies on a portion of the Superior Court's Brady discussion on direct appeal, quoted supra at 520–21, stating that because Petitioner was convicted of conspiracy to commit first-degree murder, "therefore [he] was responsible for the shootings even if it was his co-conspirator's gun that fired the bullets recovered from the bodies of the victims." Super. Ct.-Direct at 11. Petitioner avers that these arguendo statements "raise[ ] a probable fact of actual innocence for the attempted murders and aggravated assaults because if ... the removed bullets ... matched the recovered .380 handgun, petitioner would be totally exonerated because of the not guilty verdicts for conspiracy." Doc. 7 at 42.
Having identified the factual basis of Petitioner's third claim, I find that it is patently unexhausted because Petitioner never presented this claim to the state courts. Moreover, because the time for doing so has passed, the claim is also procedurally defaulted. Werts, 228 F.3d at 192. Petitioner has made no showing of cause or prejudice to excuse the default, and for the reasons previously discussed, I can discern none. Moreover, although Petitioner again alleges his factual innocence in the context of this claim, there is no case law support for finding that dicta in a petitioner's own state court opinions could constitute new and reliable evidence of actual innocence. Accordingly, I cannot reach the merits of this claim.
Petitioner concedes as much in his petition, stating that "Claim[s] III and IV was [sic] argued on direct appeal under the heading of an insufficient challenge, but was not argued in the manner petitioner presents herein." Doc. 1 at 32. Even had Petitioner exhausted this claim, he would not be entitled to relief. As previously discussed, see supra at 523 n.17, although the Superior Court appeared to conflate Petitioner's conviction for conspiracy related to the murder of Mr. Newman with the conspiracy charges related to the attempted murders of Ms. Cannon and Mr. Santos (for which Petitioner was acquitted), Petitioner's guilt for the shootings of Ms. Cannon and Mr. Santos was solidly supported by their own eyewitness testimony. Thus, the Superior Court's "arguendo statements" do not undermine its ultimate conclusion.
D. Ground Four: Prosecutorial Misconduct
Lastly, Petitioner argues that the prosecutor committed misconduct in closing argument in which "the Commonwealth completely contradicted its opening statement regarding conspiracy, especially where the trial court states ... that the Commonwealth had failed to establish a conspiracy." Doc. 1 ¶ 12 (GROUND FOUR) & at 25-26; Doc. 7 at 44-52. In support of this claim, Petitioner relies on Bennett v. Sup't Graterford SCI, 886 F.3d 268 (3d Cir. 2018), and Commonwealth v. Chambers, ––– Pa. ––––, 188 A.3d 400 (2018), for the proposition that an accomplice or conspirator cannot be convicted of first-degree murder based on the principal's specific intent to kill. Doc. 23 at 1-3. Defendant argues that the claim is procedurally defaulted and meritless, see Doc. 30 at 21-23, and that Petitioner's reliance on the identified cases is misplaced. Id. at 25-27.
As with the previous claim, Petitioner concedes that he never presented a claim of prosecutorial misconduct to the state courts. See Doc. 1 at 32. Therefore, the claim is unexhausted, and for the same reasons previously discussed, it is also procedurally defaulted. Petitioner has not provided a basis to excuse the default by a showing of cause and prejudice, nor that a failure to consider the claim would constitute a fundamental miscarriage of justice.
The cases identified by Plaintiff do not assist him in establishing cause and prejudice or his factual innocence, nor do they assist his claim substantively. In Bennett, the Third Circuit held that erroneous jury instructions may have permitted the jury to convict the defendant of first-degree murder based on a co-conspirator's specific intent to kill rather than his own, in violation of his due process rights. 886 F.3d at 286-88. In Chambers, the Pennsylvania Supreme Court held that there was insufficient evidence of a criminal conspiracy between the defendant and a passenger in the defendant's parked vehicle to hold the defendant liable for an aggravated assault committed by the passenger, and similarly insufficient evidence to support a finding of accomplice liability. 188 A.3d at 413, 415. Thus, neither case sets forth a new rule of law, but rather they applied existing principles of conspiracy and accomplice liability to fact-specific scenarios. Additionally, Bennett arose in the context of a faulty jury instruction and Chambers arose in the context of a sufficiency claim, both of which have different legal bases than Petitioner's claim of prosecutorial misconduct. Accordingly, I cannot reach the merits of this claim.
Chambers was a highly fact-intensive review on direct appeal under state law, whereas any sufficiency claim in this case would be limited to deferential habeas review. As previously discussed, such a claim would be denied on the merits. See supra at 521–23, 523–24 & n.18, 524–25.
IV. MOTIONS
Petitioner's motion to lift stay (Doc. 25) should be dismissed as moot. As discussed more fully in the procedural history, I did not formally stay this matter, but held the matter in abeyance pending the conclusion of Petitioner's Second PCRA. See Doc. 19 ("Petitioner and Respondents are directed to notify this court within thirty days of the conclusion of the state court proceedings so that the habeas petition may proceed in this court if necessary."). Once Petitioner's state court litigation ended, the informal suspension of the present habeas petition likewise ended, briefing resumed, and consideration of the petition proceeded.
Petitioner's motion for discovery (Doc. 26) should be denied. Discovery in a habeas proceeding is not automatic. Rule 6(a) of the Rules Governing Section 2254 Cases states that "[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of such discovery." The Supreme Court has interpreted good cause to mean that discovery will be permitted "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." Peterkin v. Horn, 30 F. Supp.2d 513, 516 (E.D. Pa. 1998) (quoting Bracy v. Gramley, 520 U.S. 899, 908-09, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) ). For the reasons set forth in this Report, I find that Petitioner has failed to meet this threshold. Accordingly, Petitioner's motion for discovery should be denied.
Finally, Petitioner's motion for appointment of counsel (Docs. 14 & 31) should be denied. There is no constitutional right to habeas counsel, see Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir. 1991), and no statutory right to habeas counsel in a non-capital case. Cf. 18 U.S.C. § 3599(a)(2) (providing for appointment of counsel in federal post-conviction proceedings seeking to vacate a death sentence). The court has discretion to appoint counsel "when the interests of justice so require." Id. § 3006A(a)(2). In making this determination the court should consider the complexity of the factual and legal issues in the case and the petitioner's ability to investigate facts and present his claims. Reese, 946 F.2d at 264. Counsel need not be appointed when the issues are " ‘straightforward and capable of resolution on the record’ ... or the petitioner ‘had a good understanding of the issues and the ability to present forcefully and coherently his conclusions.’ " Id. (quoting Ferguson v. Jones, 905 F.2d 211, 214 (8th Cir. 1990) ; LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) ); see also Ballard v. Duckworth, 656 F. Supp. 693, 695 (N.D. Ind. 1986) (factors to consider include the legal and factual merits of the claims, the degree of complexity of the issues, and the petitioner's apparent physical and intellectual abilities to prosecute the action) (citing, inter alia, Maclin v. Freake, 650 F.2d 885 (7th Cir. 1981) ).
Here, Petitioner asserted four claims in his petition, attached lengthy supporting argument to the petition, and thereafter filed additional briefing and evidence. Docs. 1, 7, 10, 14, 18, 23 & 25. Although some of the claims are difficult to decipher, neither the claims nor the record are unusually complex. Additionally, Plaintiff has not raised any issue as to his physical or mental ability to address his claims, nor can one be discerned from the record or submissions to this court. Therefore, I find that appointment of counsel is not warranted.
V. CONCLUSION
Petitioner's habeas petition is timely and raises four grounds for relief. Ground One, asserting a Brady violation, is meritless. Ground Two, asserting state court error in considering DNA and fingerprint evidence, is defaulted as presented and meritless if construed as the same claim raised on collateral appeal. Grounds Three and Four are defaulted, and Petitioner has not established cause and prejudice or made a showing of innocence to excuse the default.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 24th day of July 2019, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DENIED, that Plaintiff's motion for lift of stay be DISMISSED AS MOOT, and his motions for discovery and appointment of counsel be DENIED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.