Opinion
1:16-cv-128
07-05-2022
ANTHONY S. MORROW, Petitioner v. SUPERINTENDENT MICHAEL CLARK, PENNSYLVANIA ATTORNEY GENERAL, and DISTRICT ATTORNEY FOR ERIE COUNTY Respondents
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 44) REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the amended petition for writ of habeas corpus, ECF No. 44, be denied and that no certificate of appealability issue.
II. Report
A. Procedural history
Before the Court is a petition for a writ of habeas corpus filed by Petitioner Anthony S. Morrow pursuant to 28 U.S.C. § 2254. ECF No. 44. Morrow is incarcerated at the State Correctional Institution at Huntingdon, serving a sentence of imprisonment imposed by the Court of Common Pleas of Erie County, Pennsylvania, after he was convicted of shooting Louis Williams in a bar in Erie on New Year's Eve.
A review of the record and the criminal docket for Morrow's underlying convictions in Commonwealth v. Morrow, No. CP-25-CR-0000816-2011 (Erie Cnty. Com. Pl.), reveals the following. On November 17, 2011, a jury found Morrow guilty of criminal attempt (homicide), aggravated assault, and possession of an instrument of crime. On January 17, 2012, he was sentenced to an aggregate term of 21 to 45 years' imprisonment.
The Pennsylvania Superior Court affirmed the judgment of sentence on March 19, 2013. Commonwealth v. Morrow, 69 A.3d 1296 (Pa. Super. 2013) (unpublished memorandum). The Pennsylvania Supreme Court denied Morrow's petition for allowance of appeal on October 29, 2013. Commonwealth v. Morrow, 78 A.3d 1090 (Pa. 2013).
On July 2, 2014, Morrow filed a pro se petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq. Counsel was appointed and later granted leave to withdraw. The PCRA court denied the petition. The Superior Court affirmed the PCRA court's denial of relief. Commonwealth v. Morrow, 131 A.3d 84 (Pa. Super. 2015); ECF No. 10-3.
The instant litigation was commenced via a pro se petition for writ of habeas corpus placed in the prison mailing system on May 27, 2016 and filed on June 3, 2016. ECF No. 1. After Respondents filed a response, ECF No. 10, and Morrow filed a traverse, ECF No. 12, then-Magistrate Judge Susan Paradise Baxter entered a Memorandum Order, ECF No. 17, in which, inter alia, she appointed the Federal Public Defender to represent Morrow. Judge Baxter's August 4,2017, order also directed that the case be stayed and administratively closed in order for counsel to review the record and meet with Morrow. Id.
During this stay, on September 21,2018, Morrow filed a second PCRA petition. This case was subsequently stayed while Morrow litigated his second PCRA petition in state court. ECF No. 29. On November 13,2019, the PCRA court denied the PCRA petition. On February 3,2021, the Superior Court affirmed the denial, finding the petition to be untimely. Commonwealth v. Morrow, 249 A.3d 1127 (Pa. Super. 2021) (unpublished memorandum).
On July 1, 2021, the stay in this case was lifted, ECF No. 31, and the case was ultimately assigned to District Judge Susan Paradise Baxter as presider; the undersigned is referred.
Morrow, through counsel, filed an amended petition for writ of habeas corpus on August 13, 2021. ECF No. 44. Respondents filed a response. ECF No. 47. Morrow filed a traverse. ECF No. 50. The amended petition is now ripe for review.
B. Analysis
Morrow raises four claims in his amended petition: (1) ineffective assistance of trial counsel for failing to interview witnesses present at the scene and to present testimony from these witnesses, (“Claim 1”), ECF No. 44 at 33-41; (2) ineffective assistance of trial counsel for failing to develop and present impeachment testimony about Ray Brothers and/or other Commonwealth witnesses, (“Claim 2”), id. at 41-52; (3) actual innocence, (“Claim 3”), id. at 52-54; and (4) cumulative prejudicial error at trial, (“Claim 4”), id. at 54-55.
1. Claim 3
As a preliminary matter, in a non-capital case such as this one, a free-standing claim of actual innocence is not an independent substantive claim in federal habeas. Herrera v. Collins, 506 U.S. 390, 400 (1993). In Herrera, the United States Supreme Court held that federal habeas review is not available “absent an independent constitutional violation occurring in the underlying state criminal proceeding,” and that “a claim of ‘actual innocence' is not itself a constitutional claim.” Id. at 400, 404. “This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution - not to correct errors of fact.” Id. at 400.
Based upon Herrera, the United States Court of Appeals for the Third Circuit has held the same. Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004) (holding that “[i]t has long been recognized that ‘claims of actual innocence based on newly discovered evidence' are never grounds for ‘federal habeas relief absent an independent constitutional violation.'”) (quoting Herrera, 506 U.S. at 400). Accordingly, Claim 3 is not cognizable and should be denied as such.2. Timeliness
Alternatively, as will be discussed infra, this claim could be considered procedurally defaulted.
Respondents first argue that Morrow's habeas petition is untimely. ECF No. 47 at 3-5. Respondents' argument is based on an inaccurate timeline. The accurate timeline and relevant legal considerations were set forth in Judge Baxter's memorandum order of August 4, 2017, ECF No. 17, in which she found the petition to be timely. No further discussion is necessary.
For instance, Respondents assert that Morrow's judgment of sentence became final on October 29, 2013, when the Pennsylvania Supreme Court denied his petition for allowance of appeal. ECF No. 47 at 4. As set forth in Judge Baxter's August 4, 2017 memorandum order, Morrow's judgment of sentence became final on January 27, 2014, when the 90-day period for filing a writ of certiorari with the United States Supreme Court expired. ECF No. 17 at 12.
3. Exhaustion and Procedural Default
Respondents next argue that Morrow failed to exhaust his claims, and that the claims are procedurally defaulted. ECF No. 47 at 5-6.
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. This “exhaustion” requirement is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). See also O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A petitioner shall not be deemed to have exhausted state remedies if he has the right to raise his claims by any available state procedure. 28 U.S.C. § 2254(c).
In order to exhaust a claim, a petitioner must “fairly present” it to each level of the state courts. Lines v. Larkins, 208 F.3d 153,159 (3d Cir. 2000) (citing 28 U.S.C. § 2254(b)); O 'Sullivan, 526 U.S. at 848. In Pennsylvania, this requirement means that a petitioner in a non-capital case must have presented every federal constitutional claim raised in his habeas petition to the Court of Common Pleas and then the Superior Court either on direct or collateral appeal. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
“When a claim is not exhausted because it has not been ‘fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.'” McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (quoting 28 U.S.C. § 2254(b)). In such cases, however, applicants are considered to have procedurally defaulted their claims, Rolan v. Coleman, 680 F.3d 311,317 (3d Cir. 2012) (“Procedural default occurs when a claim has not been fairly presented to the state courts ... and there are no additional state remedies available to pursue ... or, when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule ....), and federal courts may not consider procedurally defaulted claims unless “the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To show cause, a petitioner must demonstrate “some objective factor external to the defense” that prevented compliance with the state's procedural requirements. Id. at 753 (citing Murray v. Carrier, MI U.S. 478, 488 (1986)). To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime, McCleskey v. Zant, 499 U.S. 467, 494 (1991), by presenting new evidence of innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995).
Morrow asserts that he presented his habeas claims in the litigation of his first PCRA petition. ECF No. 50 at 3-8. However, a review of his appellate brief and the Superior Court's decision in the appeal from the denial of his first PCRA petition reveals that none of them was presented in that appeal. ECF No. 10-3 at 5; ECF No. 41-22. Rather, Morrow raised only claims of errors by the PCRA court and failings of his PCRA counsel. ECF No. 41-22 at 9. Although Morrow points to references in his appellate brief concerning certain terms which are reminiscent of his current claims, such as “failing to adequately investigate” or “innocent,” these passing references were not presented in the brief in a manner that put the state court on notice that federal claim was being asserted on those bases. As the United States Court of Appeals for the Third Circuit has explained, to satisfy the exhaustion requirement:
... [A] petitioner must “present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” McCandless, 172 F.3d at 261. “It is not sufficient that all the facts necessary to support the federal claim were before the state courts,” Anderson v. Harless, 459 U.S. 4, 6, 74 L.Ed.2d 3, 103 S.Ct. 276 (1982), and “mere similarity of claims is insufficient to exhaust.” Duncan v. Henry, 513 U.S. 364, 366, 130 L.Ed.2d 865, 115 S.Ct. 887 (1995).Keller v. Larkins, 251 F.3d 408 (3d Cir. 2001). These claims were not fairly presented to the state court in the relevant appeal. Thus, they are unexhausted. Because Morrow is time-barred from raising these claims in state court, the exhaustion requirement is excused; however, the claims are procedurally defaulted. See, e.g., Lines, 208 F.3d at 162-66.
Morrow also asserts that he raised the instant claims in the litigation of his second PCRA petition. ECF No. 50 at 7. Because the state courts found that petition to be untimely, Morrow procedurally defaulted any claims raised in that petition. See Coniker v. Scherer, 2021 WL 355628, at *7 (W.D. Pa. 2021).
As set forth supra, Claim 3 is not cognizable and should be denied on that basis. The Court notes, however, that Morrow makes no attempt to overcome any procedural default as to Claims 3 and 4, even via the actual innocence “gateway.” Accordingly, Claim 4 should be denied as procedurally defaulted.
In an effort to overcome the procedural default of Claims 1 and 2, Morrow asserts that the default was caused by PCRA counsel's ineffectiveness. ECF No. 50 at 9-16. Generally, because there is no federal constitutional right to counsel in a PCRA proceeding, a petitioner cannot rely on PCRA counsel's ineffectiveness to establish the “cause” necessary to overcome the procedural default of a federal habeas claim. Davila v. Davis, 137 S.Ct. 2058, 2062 (2017). In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Supreme Court announced a narrow, but significant, exception to this rule. In relevant part, it held that in states like Pennsylvania, where the law requires that claims of ineffective assistance of trial counsel be raised for the first time in a collateral proceeding, a petitioner may overcome the default of a claim of trial counsel's ineffectiveness if the petitioner demonstrates: (1) the defaulted claim of trial counsel's ineffectiveness is “substantial” and (2) PCRA counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984) for failing to raise that claim in the initial review collateral proceeding. Martinez, 566 U.S. at 17.
Morrow also baldly states that “his actual innocence overcomes any procedural default of his ineffective assistance of cormsei claims the Court may find.” ECF No. 50 at 8 n.22. Because these claims are reviewed de novo, the Court need not address this basis for overcoming default.
This Court need not resolve the more complex issue of procedural default, however, if it determines that the ineffectiveness claim has no merit, even under a de novo review. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (where analysis of procedural default is complex, the court may skip the issue and proceed to the merits). That course is followed here for Claims 1 and 2.
4. Merits of Claims 1 and 2
Ineffective assistance of counsel claims are governed by the familiar standard set forth by the Supreme Court in Strickland, 466 U.S. 668. To prevail on a claim of ineffective assistance under Strickland, the petitioner has the burden of establishing that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. Strickland also requires that the petitioner demonstrate that he was prejudiced by his trial counsel's alleged deficient performance. This places the burden on the petitioner 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.
a. Claim 1
In Claim 1, Morrow asserts that trial counsel failed to adequately investigate the circumstances of the shooting, i.e., he failed to interview witnesses present at the scene and to present testimony from these witnesses. ECF No. 44 at 33-41. Morrow identifies two groups of relevant witnesses: (1) Craig Cook, Jeremy Bowling, and Thomas Culpepper; and (2) Ray Brothers and Louis Williams.
By way of background, at trial, Louis Williams, the victim, testified that, on the night in question, he went to the back room of the bar to retrieve his charging cell phone. Williams saw Morrow in the back with “Nino” (later identified as Jeremy Bowling, see id. at 40) and “Craig.” Morrow told Williams, “don't say nothing to [Morrow's] girl,” and then Nino tried to hit Williams with a pool stick. Williams ran out of the back room to the front of the bar, where he stopped in front of his cousin Darren Beason and was shot. Williams did not see who shot him. ECF No. 4017 at 23-25, 39.
Ray Brothers, the owner of the bar, testified to the following. He was bartending on the night in question and was behind the bar when his heard some noise from the back room of the bar and subsequently saw Louis Williams run out of that room, pursued by Morrow. Brothers observed that Morrow had a firearm in his hand and was extending it as he ran, pointing it at Williams, and then shooting it at Williams. On that night, Brothers recognized Morrow by sight, but did not know his name. Id. at 56-63, 81. The morning after the shooting, Brothers identified Morrow in a police photographic lineup. Id. at 112-14.
Turning to Morrow's claim that trial counsel failed to interview and present testimony from the first group of witnesses, Craig Cook, Jeremy Bowling and Thomas Culpepper, he attaches affidavits dated 2018 and 2019 from an investigator who interviewed these witnesses on Morrow's behalf in 2018, at which time each witness stated that they were with Morrow in the front room of the bar at the time of the shooting. ECF No. 44 at 40 (citing ECF Nos. 42-5,42-6 and 42-7). Their statements reflect that none of these witnesses saw the shooter, but they did see that Morrow was not the shooter. Id. Bowling was arrested in connection with the shooting, but not charged. ECF No. 40-15; ECF No. 44 at 35. Cool was arrested and charged, but the charges were dismissed “due to lack of witnesses showing up.” ECF No. 43-4; ECF No. 44 at 35.
Morrow asserts that trial counsel knew, or should have known, of these witnesses and had he interviewed them, he would have learned that they could provide eyewitness testimony that would contradict that of Ray Brothers, the sole witness to identify the shooter. He argues that if the Commonwealth had been unable to rely on Brothers' testimony as uncontradicted, there is a reasonable probability that the outcome of the trial would have been different.
The relevant law is as follows:
To establish ineffectiveness for failure to call a witness, [a petitioner] must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed
of the existence of the witness or counsel should otherwise have known of him; (4) the witness was prepared to cooperate and testify for [the petitioner] at trial; and (5) the absence of the testimony prejudiced [the petitioner] so as to deny him a fair trial. . . . Further, ineffectiveness for failing to call a witness will not be found where a [petitioner] fails to provide affidavits from the alleged witnesses indicating availability and willingness to cooperate with the defense.Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002) (citations omitted).
Morrow has not presented the requisite affidavits from these witnesses. His claim should be denied on this basis alone.
The affidavits from the investigator are insufficient to satisfy the requirement. Obviously, the purported witnesses were not the affiants thereof and they contain no reference to the witnesses' availability or willingness to testify. Further, although Morrow has included a general request for an evidentiary hearing in his amended petition, ECF No. 44 at 55, he has not produced any affidavits from witnesses setting forth what they would state if called to testify at an evidentiary hearing held before this Court or otherwise established that he has any evidence relevant to this claim to introduce at such a hearing. Without the required affidavits, he has not met the standard under 28 U.S.C. § 2254(e)(2). The Court notes with interest that the United States Supreme Court recently held that a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel unless the petition has satisfied the requirements imposed by § 2254(e)(2). Shinn v. Ramirez, 142 S.Ct. 1718, 1734 (2022).
Further, even assuming arguendo that these witnesses were available for trial and would have testified in accordance with their statements to the investigator, the weight of their testimony must be measured against, at a minimum, the facts that these witnesses were social associates of Morrow's and that at least two of them had some potential criminal liability for the shooting. Additionally, their bald statements that they “saw” that Morrow was not the shooter are without any significant detail or support.
In contrast, Brothers testified unequivocally as to his unobstructed observation of events before, during, and after the shooting; his version of the sequence of events was conoborated by Williams; and his testimony was credited by the jury even after vigorous cross examination.
As will be discussed infra, the Superior Court found that “defense counsel vigorously cross-examined Brothers regarding his identification of [Morrow].” ECF No. 10-3 at 6.
Based on these considerations, the Court is unpersuaded that the testimony of the three missing witnesses would have had the evidentiary weight necessary to make a different trial outcome reasonably probable. As the United States Supreme Court has stated, “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693). Thus, even if this claim was properly supported, Morrow would not have sustained his burden to show such a substantial likelihood and thus failed to show that trial counsel was ineffective for failing present these witnesses.
Morrow's claims concerning Commonwealth witnesses Brothers and Williams fare no better. Morrow baldly asserts that it was unreasonable for his trial counsel not to interview these witnesses whose testimony was crucial to the prosecution. ECF No. 44 at 38-39. However, he provides no assertion of prejudice from this failure. He has thus failed to carry his burden to show ineffectiveness.
Morrow is not entitled to habeas relief on this claim.
b. Claim 2
In Claim 2, Morrow asserts that his trial counsel was ineffective for failing to develop and present adequate impeachment testimony as to the Commonwealth's witnesses. ECF No. 44 at 41-52. Morrow claims trial counsel failed to challenge the Commonwealth witnesses, “primarily by [failing to] challenge Brothers' eyewitness testimony and identification of Mr. Morrow.” Id. at 42.
Morrow first asserts that his counsel failed to impeach Brothers about an alleged “change” in his “story.” Id. at 43-44. Specifically, Morrow points to Brothers' initial statement to police that he did not know the name of the shooter and his subsequent statement to police that “the shooter was the son of their doorman, Willie.” Id. at 43. As support for this assertion, Morrow cites to an Incident Date Sheet Report from the Erie Police Department, wherein the following narrative is related:
... On Saturday, 01/01/2011, at or about 0100 hrs., Raymond Brother [sic] & Kim MATTERN, Owners & Barmaid of RAY's Last Stop Bar showed up at the front counter to provide further information regarding the shooting that occurred earlier in the evening on 12/31/10 inside of the bar. They stated that after the police left the bar, a B/F showed up, stating that the shooter is the son of their doorman. They couldn't provide the last name of their doorman and said his first name is WILLIE. Neither Ray or Kim know the name of the B/F that stated their doorman's son was the shooter. ...”ECF No 40-11.
As is clear from the above, Brothers did not change his story; he reported new information that had been given to him. Morrow's claim that Brothers' statement to police “is in direct contradiction of Brothers' testimony that he did not know the shooter on the night of the shooting,” ECF No. 44 at 44, is inaccurate and misleading. Trial counsel was not ineffective for failing to impeach Brothers on this nonexistent basis.
Morrow next asserts that trial counsel should have “brought out” that “immediately after the shooting, Brothers told police the shooter was wearing a cream-colored jacket,” but that “it was Craig Cook - not Mr. Morrow - who was wearing a light, cream-colored sweater or sweatshirt on the night Williams was shot.” Id. at 44-45. In support of this claim, he attaches Cook's arrest photograph which shows him wearing a multi-colored top with a minimal cream component. ECF No. 40-5. Even assuming arguendo that this photograph could be interpreted to support that Cook was wearing a cream-colored jacket, Morrow cites to nothing to show that he was not also wearing such a jacket. Thus, the evidentiary record upon which Morrow argues his trial counsel should cross-examined Brothers is dubious, at best. As such, forgoing cross-examination based on this arguably nonexistent record represented reasonable trial strategy, and trial counsel was not ineffective for failing to impeach Brothers as Morrow now suggests.
Finally, Morrow asserts that his trial counsel had “substantial impeachment evidence he chose not to present;” specifically, he could have argued that that Brothers “was motivated to identify Mr. Morrow as the shooter so that the Williams family would have someone to hold accountable for the crime ...” and that “as the owner of a late-night business that serves alcohol, Brothers was particularly motivated to appear cooperative to the police.” ECF No. 44 at 45. Neither of these unsubstantiated theories constitute impeachment evidence. Trial counsel was not ineffective for failing to cross examine Brothers on these bases.
Brothers did testify that he had known Williams' father for “a long time;” ECF No. 40-17 at 82; however, that evidence was neutral. There was no indication that any relationship between the two existed or, if one did, what the nature of such a relationship was. Accordingly, no prejudice can be found from failing to question Brothers on this topic.
At this point, it is worth nothing that, in the appeal from the denial of Morrow's first PCRA petition, the Pennsylvania Superior Court addressed a claim of PCRA counsel's ineffectiveness for failing to raise trial counsel's ineffectiveness in failing to challenge Brothers' testimony based on alleged inconsistencies. The court's analysis was as follows:
In his appellate brief, Morrow argued that Brothers had “inconsistencies in his description and statement” and that there were “suggestive procedures utilized to obtain the identification” of Morrow. ECF No. 10-1 at 153-54.
Moreover, as for the ineffective assistance of counsel component to this claim, we have previously determined that counsel employs a reasonable strategy, and is thereby deemed effective, where he or she vigorously cross-examines an identification witness at trial. See Commonwealth v. Smith, 17 A.3d 873, 889 (Pa. 2011) (“By engaging in an aggressive defense based on cross-examining [an identification witness], counsel demonstrated that ‘he chose a particular course of action that had some reasonable basis designed to effectuate' Appellant's interests.”); Commonwealth v. Ly, 599 A.2d 613 (Pa. 1991) (defendant was not denied effective assistance of counsel by an attorney's failure to cross-examine a witness on the alleged suggestiveness of a photographic array and to instead concentrate on the quality of the witness' opportunity to observe the perpetrator of a crime.) Here, upon review of the trial transcript, defense counsel vigorously cross-examined Brothers regarding his identification of Appellant. See N.T., 11/15/2011, at 70-92. Accordingly, Appellant is not entitled to relief.ECF No. 10-3 at 6.
The Superior Court found that trial counsel pursued a reasonable strategy in his vigorous cross examination of Brothers. Morrow has not presented anything in the instant petition that seriously challenges that conclusion.
Morrow also argues that his trial counsel should have cross examined Commonwealth witness Officer Burrows “to show Brothers first told police he saw the shooter ‘walk up' to Williams, that the shooter was wearing a cream-colored jacket, and that he did not know the shooter but could identify him if seen again.” ECF No. 44 at 46. As set forth supra, the record does not support the merit of any of these asserted grounds for impeachment.
Morrow further argues that his trial counsel should have cross examined Commonwealth witness Detective Peters about the photo array shown to Brothers. Specifically, he asserts that trial counsel could have elicited from Burrows that Craig Cook was not in the photo array shown to Brothers. ECF No. 44 at 46. He does not explain how this evidence would have “undermined” the photo array. Id.
Finally, as to Commonwealth witness Katina Crosby, she provided the following brief testimony at trial. She is Williams' cousin and was at the bar with him on New Year's Eve, but that she was outside when he was shot. ECF No. 40-17 at 97, 100. When she went back into the bar upon hearing of the shooting, she saw Morrow walking out the bar. Id. at 100-02.
Morrow's trial counsel did not cross-examine Crosby at all. Id. at 102. Morrow now asserts that Crosby should have been impeached on multiple bases. ECF No. 44 at 46-49. He implies that he was prejudiced by that failure because, in her testimony, “she put Mr. Morrow -alone - exiting the bar immediately after the shooting, which supported Brothers' identification of Mr. Morrow as the shooter.” Id. at 46-47. This statement is a mischaracterization of both Crosby's and Brothers' testimony. At trial, Crosby testified that she was outside for several minutes before she realized something happened in the bar, and that upon reentering the bar, she saw Morrow coming out via the front door of the bar. ECF No. 40-17 at 100-01. She did not testify that Morrow was alone, to the extent that fact is relevant. In contrast, Brothers testified that after Morrow shot Williams, Morrow went back to the back room of the bar and that Brothers never saw him leave the bar. Id. at 63, 88-89. Thus, Crosby's testimony was not corroborative of Brothers' testimony. Accordingly, even assuming arguendo that trial counsel failed to utilize available impeachment information against Crosby, Morrow has failed to show how he was prejudiced by this inaction.
For all these reasons, Morrow is not entitled to relief on this claim.
C. Conclusion
In conclusion, Claims 1 and 2 should be denied because, even under a de novo review, they are without merit. Claims 3 should be denied as not cognizable. Claim 4 should be denied as procedurally defaulted.
D. Certificate of Appealability
The Antiterrorism and Effective Death Penalty Act of 1996 codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 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.” Id. Applying those standards here, jurists of reason would not find it debatable whether Morrow's claims should be denied for the reasons given herein. Accordingly, no certificate of appealability should issue.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).