Opinion
Civil Action 14 - 416
08-29-2022
PIERRE PINSON, Petitioner, v. BRIAN COLEMAN and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
Joy Flowers Conti, District Judge
REPORT AND RECOMMENDATION
Lisa Pupo Lenihan, United States Magistrate Judge
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that Petitioner's Motion for Relief from Judgment (ECF No. 40) be denied and that a certificate of appealability also be denied.
II. REPORT
Pending before the Court is a Motion for Relief from Judgment filed by Petitioner pursuant to Federal Rule of Civil Procedure 60(b)(6) (“Rule 60(b)”) on July 18, 2022. (ECF No. 40.) This is the second motion Petitioner has filed seeking relief pursuant to Rule 60(b) since the Court dismissed his Petition for Writ of Habeas Corpus as untimely on November 24, 2014.
A. Abbreviated Factual and Procedural History
See ECF No. 13, pp.1-11.
On October 21, 1999, the Commonwealth of Pennsylvania charged Petitioner with four counts of attempted homicide, four counts of aggravated assault, one count of criminal conspiracy and one count of carrying a firearm without a license. See Commonwealth v. Pinson, CP-02-CR-0013750-1999 (Allegheny Cty. Common Pleas Ct.). The charges stemmed from an incident in which shots were fired into a police station on August 27, 1999. Petitioner proceeded to a jury trial on July 19, 2000, at the conclusion of which the jury acquitted Petitioner of the attempted homicide charges but convicted Petitioner at all remaining counts. He was subsequently sentenced to an aggregate prison term of 35 to 90 years of incarceration. After the conclusion of his direct appeal, Petitioner filed three petitions pursuant to Pennsylvania's PostConviction Relief Act (“PCRA”). His final PCRA appeal ended on February 26, 2014.
On October 27, 1999, Petitioner was also charged with three counts of robbery, two counts of criminal conspiracy and one count of attempted robbery for his conduct in an attempted robbery, followed by an actual robbery, of a QwiCash store. See Commonwealth v. Pinson, CP-02-CR-0014157-1999 (Allegheny Cty. Common Pleas Ct.). Petitioner proceeded to a jury trial on July 26, 2000, at the conclusion of which the jury convicted Petitioner at all counts. Petitioner was sentenced to an aggregate prison term of 15 to 60 years, which he was ordered to serve consecutively to the sentence imposed above. Petitioner filed a direct appeal and later a PCRA petition. The PCRA petition at this case number was the same as the third PCRA petition at the above case number. His PCRA appeal ended on February 26, 2014.
Petitioner filed a Petition for Writ of Habeas Corpus (“Petition”) in this Court on March 31, 2014. (ECF No. 1.) The Respondents moved to dismiss the Petition on timeliness grounds arguing that it was untimely filed by over four years at CP-02-CR-0013750-1999 and by over eight years at CP-02-CR-0014157-1999. (ECF No. 9.) The undersigned issued a Report and Recommendation (“R&R”) on October 14, 2014, recommending the dismissal of the Petition as untimely. (ECF No. 13.) In a Memorandum Opinion and Order issued on November 24, 2014, the Court adopted the R&R, dismissed the Petition and denied Petitioner a certificate of appealability. (ECF No. 15.) Petitioner appealed and the Third Circuit Court of Appeals denied his request for a certificate of appealability on July 21, 2015. (ECF No. 19.) Petitioner later requested authorization to file a second or successive petition for writ of habeas corpus, which the Third Circuit denied on May 17, 2018. See C. A. No. 18-2027 (3d Cir.). Petitioner filed his first Rule 60(b) motion in this case on January 16, 2019. (ECF No. 24.) The undersigned issued a R&R on May 10, 2019, and the Court adopted the R&R and denied the Rule 60(b) motion on June 21, 2019. (ECF Nos. 33 & 34.) The Third Circuit denied Petitioner's request for a certificate of appealability on January 2, 2020. (ECF Nos. 38 & 39.)
After this Court dismissed his Petition as untimely on November 24, 2014, Petitioner returned to the state courts to again seek relief. He filed another PCRA petition in his cases on or about October 22, 2015. The petition was dismissed on June 21, 2016. The Pennsylvania Superior Court affirmed on June 8, 2017, and the Pennsylvania Supreme Court denied him allowance of appeal on February 6, 2018. Petitioner filed another PCRA petition on or about December 3, 2019. Said petition was dismissed on August 3, 2020, the Superior Court affirmed on October 22, 2021, and the Supreme Court denied him allowance of appeal on March 14, 2022.
None of the state court filings after the Petition was dismissed are found on the docket for this case, but the docket sheets for Petitioner's criminal cases are a matter of public record and available online at https://ujsportal.pacourts.us/CaseSearch.
As previously stated, Petitioner filed the current Rule 60(b) motion on July 18, 2022. (ECF No. 40.)
B. Discussion
Federal Rule of Civil Procedure 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances, including (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial; (3) fraud or misconduct by an opposing party; (4) because the judgment is void; (5) because the judgment has been satisfied, released or discharged; and (6) any other reason that justifies relief. Fed.R.Civ.P. 60(b). Petitioner specifically invokes Rule 60(b)(6). A court may grant equitable relief under Rule 60(b)(6) “in extraordinary circumstances where, without such relief, an extreme and unexpected hardship would occur.” Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014) (citation and internal quotation marks omitted). The petitioner “bears the burden of establishing entitlement to such equitable relief,” but the District Court “must consider the full measure of any properly presented facts and circumstances attendant to the [petitioner's] request.” Id. at 122.
In support of his Rule 60(b) motion, Petitioner alleges two extraordinary circumstances: (1) the issuance of the Third Circuit's decision in Bracey v. Superintendent Rockview SCI, 986 F.3d 274 (3d Cir. 2021), which he claims announced a change in the law affecting the dismissal of the Brady claim he raised in his Petition, and (2) he is actually innocent warranting application of the miscarriage of justice exception to AEDPA's statute of limitations as set forth in McQuiggin v. Perkins, 569 U.S. 383 (2013), and deemed to be a change in law that could justify Rule 60(b)(6) relief in Satterfield v. District Attorney Philadelphia, 872 F.3d 152 (3d Cir. 2017).
1. Bracey
Petitioner first argues for Rule 60(b) relief based on the Third Circuit's recent decision in Bracey. In Bracey, the Third Circuit reviewed a district court ruling that a claim raised in a habeas petition, based on Brady v. Maryland, 373 U.S. 83 (1963), was untimely pursuant to 28 U.S.C. § 2244(d)(1)(D). Understanding Bracey requires an understanding of three concepts: (1) the Commonwealth's obligations under Brady; (2) the Third Circuit's interpretation of Brady in Dennis v. Secretary Pennsylvania Department of Corrections, 834 F.3d 263 (2016); and (3) the AEDPA's time limit for filing habeas petitions.
In Brady, the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused . . . 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. To constitute a Brady violation, the undisclosed evidence must meet three criteria: “‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and, prejudice must have ensued.'” Banks v. Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). In other words, a petitioner must establish both “that evidence in the possession of the government was actually suppressed, and . . . that the suppressed evidence was material.” Slutzker v. Johnson, 393 F.3d 373, 386 (3d Cir. 2004). Materiality “is a ‘reasonable probability' of a different result” which is “shown when the government's evidentiary suppression undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (internal quotations omitted).
The requirements of Brady were examined by the Third Circuit in Dennis. The Third Circuit observed that “the United States Supreme Court has never recognized an affirmative due diligence duty on the part of defense counsel as part of Brady.” Id. at 290. It stated, “The Supreme Court has noted that its precedent ‘lends no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed.'” Id. (citing Banks, 540 U.S. at 695). The Third Circuit went on to state that
[w]hile we think that the United States Supreme Court has made it clear that Brady requires the prosecution to turn over all material favorable evidence in its possession, we acknowledge that it is not totally frivolous under our Third Circuit jurisprudence for the Commonwealth to have argued, as it did here, that because defense counsel could or should have discovered the Cason receipt with due diligence, the prosecution was not required to disclose it. That is because our case law, as we discuss below, is inconsistent and could easily confuse. Thus, we need to clarify our position: the concept of “due diligence” plays no role in the Brady analysis. To the contrary, the focus of the Supreme Court has been, and it must always be, on whether the government has unfairly “suppressed” the evidence in question in derogation of its duty of disclosure. See Gov't of the V.I. v. Mills, 821 F.3d 448, 460 n.10 (3d Cir. 2016) (“The critical question in assessing constitutional error is to what extent a defendant's rights were violated, not the culpability of the prosecutor.” (quoting Marshall v. Hendricks, 307 F.3d 36, 68 (3d Cir. 2002)).Dennis, 834 F.3d at 291-92 (footnotes omitted).
With respect to “suppression,” the Third Circuit noted that “[o]nly when the government is aware that the defense counsel already has the material in its possession should it be held to not have ‘suppressed' it in not turning it over to the defense. Any other rule presents too slippery a slope.” Id. at 292. The court concluded that “[t]o the extent that we have considered defense counsel's purported obligation to exercise due diligence to excuse the government's nondisclosure of material exculpatory evidence, we reject that concept as an unwarranted dilution of Brady's clear mandate.” Id. at 293. The court stated that “[a]ll favorable material ought to be disclosed by the prosecution. To hold otherwise would, in essence, add a fourth prong to the inquiry. . . .” Id.
The AEDPA also uses the phrase “due diligence” in providing time limits for habeas petitioners to seek relief. Under the AEDPA, habeas petitioners must petition the federal court within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2254(d)(1)(D). The applicability of Dennis on the due diligence requirement found in 28 U.S.C. § 2244(d)(1)(D) was examined in Bracey. At the outset, the Third Circuit observed:
Dennis effected a material change in Circuit law with respect to the reasonable expectations of a Brady claimant: While we had previously suggested that defendants had to search for exculpatory evidence themselves, Dennis made clear that a defendant can reasonably expect - and is entitled to presume - that the government fulfilled its Brady obligations because the prosecution's duty to disclose is absolute and in no way hinges on efforts by the defense. By altering the factual predicate and baseline expectations for Brady claims, Dennis correspondingly changed what § 2244(d)(1)(D)'s “due diligence” requirement demands of Brady claimants.Bracey, 986 F.3d at 279. However, it noted that due diligence for the purpose of Section 2244(d)(1)(D) “does not impose a one-size-fits-all requirement.” Id. at 285. Instead, it depends on the circumstances of each petitioner. Id. Citing Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005), the Third Circuit reaffirmed that a petitioner must exercise “reasonable diligence in the circumstances,” and such an inquiry “is context-specific.” Id. at 286 (citing Wilson, 426 F.3d at 660, 661.) It emphasized that “a petitioner will have an obligation to investigate only once he has a ‘reasonable basis . . . to expect that [investigation] would uncover . . . relevant information.' In short, unless ‘the petitioner should be expected to take actions which would lead him to the information,' his decision not to investigate ‘[i]s not a failure to exercise due diligence.'” Id. (quoting Wilson, 426 F.3d at 661, 662.) In sum, the Third Circuit concluded that “due diligence depends on each petitioner's circumstances and the nature of the claim asserted, and it requires that we assess, in light of that context, what a petitioner would have reasonably expected might result from investigative efforts.” Id. at 289 (internal citation omitted).
The Third Circuit noted that Dennis did not involve Section 2244(d)(1)(D) directly and did not alter that provision's requirement of due diligence. Id. at 291. Instead, the court concluded that Dennis shifted the ground on which Bracey's habeas petition was dismissed:
Put differently, § 2244(d)(1)(D) asks whether a “person in [the petitioner's] position would reasonably expect” that independent investigation would yield evidence of a Brady violation, Wilson, 426 F.3d at 661, and Dennis answers that, absent evidence to the contrary, a petitioner would reasonably expect - and, indeed, “is entitled to presume,” 834 F.3d at 290 - the exact opposite: that there is no Brady violation to be discovered.Id.
Petitioner argues that Bracey warrants him Rule 60(b) relief. He argues, as he did in claim one of his Petition, that evidence of alleged misconduct on the part of Detective Dennis Logan was wrongfully withheld by the Commonwealth in violation of Brady. Although Petitioner does not make this argument directly in his Rule 60(b) motion, the Court assumes that the motion is premised on Petitioner's belief that he petitioned for habeas relief within one year of discovering the Commonwealth's Brady violation, so that claim one of his Petition should be considered timely under Bracey despite any lack of “due diligence” on his part.
To give context to this argument, the undersigned must first provide background on Petitioner's Brady claim in his Petition. In that claim, Petitioner argued that Detective Logan testified at trial that he interrogated Petitioner for roughly four hours and five minutes on September 19, 1999. Detective Logan testified that after he gave his pre-interrogation warnings, Petitioner voluntarily waived his rights and confessed to his involvement in the shootings and the robbery of the QwiCash store. When asked whether Petitioner requested a lawyer, whether he ever refused to cooperate, if any threats or promises were made, or if any force was used, Detective Logan answered “no” to each question. Petitioner, however, claimed that he was never informed of his right to remain silent and when he requested the presence of an attorney Detective Logan stated that he “didn't need a lawyer.” Petitioner argued that his entire case hinged on the reliability of his confession to Detective Logan and the manner in which it was obtained and that while his trial counsel attempted to impeach Detective Logan's credibility on cross-examination, he “was unarmed with any information remotely suggesting the detective had less than a stellar character.” He claimed that the prosecutor's entire closing to the jury was focused on the reliability of his confession and the lack of proof suggesting any misconduct in obtaining it. (ECF No. 3, pp.7-10.)
Petitioner went on to explain that his “quest for information regarding Detective Logan began in or about the year 2002 when [he] heard from a third party that the improper and coercive tactics used by Detective Dennis Logan to secure confessions from suspects was widespread and may have been reported.” Id., p.9. Petitioner claimed that he learned from a newspaper article dated June 28, 2002, that a federal jury had awarded compensatory and punitive damages to a man whom Detective Logan and his partner had improperly treated during a criminal investigation. This was in reference to Manns v. City of Pittsburgh, et al., C. A. No. 00-838 (W.D. Pa.) (the “Manns evidence” or “Manns case”). According to Petitioner, he wrote to several agencies and entities after learning of the Manns case, but, despite his diligence, he was unsuccessful at obtaining any information validating his allegations of wrongdoing against Detective Logan until February 2011 when another inmate gave him a copy of an Office of Municipal Investigations (“OMI”) report detailing allegations of misconduct by Detective Logan. Id. The report, which was dated October 26, 1999, was purportedly the record of three complaints against Detective Logan made to the Police Department over a ten-year span, two of which concerned Detective Logan's conduct during interviews.After obtaining the OMI report, Petitioner argued in a petition to the PCRA court ineffectiveness of all prior trial, appellate and PCRA counsel for failing to investigate the background of Detective Logan and argued that the Commonwealth knowingly withheld or failed to disclose the OMI report which could have been used to impeach Detective Logan. (ECF No. 9-18.) Counsel was appointed for Petitioner, and he filed a no-merit letter stating, with regard to the OMI report:
The OMI report is found at ECF No. 9-19, p.33, and No. 9-25, p.24.
Without any verification through a fact finding investigation, the mere existence of three unsubstantiated complaints against an officer in ten years does not constitute material exculpatory evidence for the purpose of a PCRA claim. Had the jury learned that, in ten years, two criminal defendants had complained about improper interrogation techniques, without proof of fact, there does not exist a reasonable probability that the outcome of the entire case would have been different. If anything, the existence of such a small number of unverified complaints would likely bolster the officer's credibility. Therefore, Petitioner cannot demonstrate that relevant and material exculpatory evidence was withheld and the argument is without merit.(ECF No. 9-21, p.6.) Relying on counsel's statements in the no-merit letter and the fact that
Petitioner's claims in the PCRA petition were untimely, the PCRA court dismissed the petition without a hearing. (ECF No. 9-22, pp.5-6.) Despite arguing on appeal that his claim concerning the OMI report was timely filed under the PCRA's newly discovered evidence exception because it was filed within 60 days of learning of the report's existence, the Superior Court found that Petitioner had “failed to plead and prove that the document was unknown to him and could not have been ascertained by the exercise of due diligence.” (ECF No. 9-27, pp.26-27.) It further found that Petitioner “was aware of Detective Logan's history of misconduct as early as 2003, when he filed his first PCRA petition.” Id., pp.26-27. It thus concluded that Petitioner had not plead nor proven any exception to the PCRA's timeliness requirement and affirmed the dismissal of the petition as untimely. Id., p.27.
In the R&R dated October 14, 2014, the undersigned addressed the OMI report, not as it pertained to Petitioner's Brady claim, as that claim was found to be untimely under 28 U.S.C. § 2254(d)(1)(A), but instead as it pertained to Petitioner's argument that he was actually innocent and could therefore overcome his Petition's untimeliness pursuant to McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), where the United States Supreme Court reaffirmed an “equitable exception” to the statute of limitations applicable to habeas claims when a petitioner presents new evidence that “shows it is more likely than not that no reasonable juror would have convicted [him].” See ECF No. 13, pp.17-18 (quoting McQuiggin, 133 S.Ct. at 1933). The undersigned found that Petitioner's evidence, which included the OMI report and the Manns evidence, was “neither new nor so strong that the Court [could not] have confidence in Petitioner's conviction[,]” and it therefore did not meet the actual innocence exception. Id., p.18. As previously noted, Petitioner's Petition was dismissed as untimely when the Court adopted the undersigned's R&R on November 14, 2014. (ECF No. 15.)
Returning to the question at hand, which is whether Bracey alters the Court's ruling that Petitioner's Brady claim was untimely, or, in other words, that it was filed within one year of the date on which Petitioner had reason to believe that the prosecution may have violated its duty of disclosure, the undersigned finds that it does not. Notwithstanding any amount of diligence on his part of discovering the OMI report, Petitioner allegedly learned of the OMI report on February 11, 2011, but he did not file his Petition in this case until March 30, 2014, well over three years later. While Petitioner did file a PCRA petition in the state court in which he asserted the Brady claim, that petition was ultimately found to be untimely and therefore did not toll Petitioner's AEDPA statute of limitations during the time it was pending in the state courts pursuant to 28 U.S.C. § 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 8, 11 (2000) (noting that time limits on petitions are “condition[s] to filing,” such that an untimely petition would not be deemed “properly filed.”); see also Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).”); Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003) (holding that untimely PCRA petition was not “properly filed” for purposes of AEDPA and therefore does not toll the federal limitations period even where the petitioner sought to pursue his PCRA petition under a statutory exception to the PCRA's time bar). Accordingly, Petitioner's Brady claim would still be untimely even if the Court were to evaluate its timeliness pursuant to 28 U.S.C. § 2244(d)(1)(D) and Bracey's interpretation of that section's “due diligence” requirement.
However, there are places in the record that Petitioner claims to have learned of the OMI report on January 21, 2011 and February 6, 2011. See e.g., ECF No. 9-19, pp.14, 15.
Nevertheless, the undersigned feels compelled to inform Petitioner that his Brady claim is without merit and would not warrant habeas relief even if the Court were to review it de novo. First, it is not clear that the Commonwealth had a duty to disclose the OMI report in the absence of any specific request for such information about Detective Logan,but, even if it did, the OMI report at issue here simply consists of three complaints made against Detective Logan over a ten-year period and it contains no indication of whether the complaints were investigated and substantiated. In fact, only two of the three complaints are arguably even relevant, and neither complaint is material such that Petitioner can demonstrate that the outcome of his trials would have been different had they been admitted to impeach Detective Logan's testimony regarding his conduct during Petitioner's interrogation. In this regard, it is helpful to review the relevant facts of each of Petitioner's underlying criminal cases.
The prosecution is only “obligated to produce certain evidence actually or constructively in its possession or accessible to it[,]” United States v. Perdoma, 929 F.2d 967, 970 (3d Cir. 1991), but it is unclear whether police personnel and internal affairs files are considered evidence that is in the constructive possession of the Commonwealth or accessible to it. See Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa. Super. 1999) (“[W]e agree with the Attorney General that the personnel files may not be Brady material if they are not material within the possession or control of the Commonwealth, i.e., the District Attorney, as required by Pa.R.Crim.P. 305B(1)(a)). Notwithstanding, a criminal defendant must be able to articulate a reasonable basis for any inspection of police personnel files, Mejia-Arlas, 734 A.2d at 876, and a subpoena duces tecum is the proper means to secure information contained in personnel files. Id. at 875 (citing Commonwealth v. McElroy, 665 A.2d 813, 821-21 (Pa. Super. 1995)); see also Commonwealth v. Blakeney, 946 A.2d 645, 660-61 (Pa. 2008). The record in this case is void of any factual indication that defense counsel made such a request for inspection of Detective Logan's personnel file or for any information in his file regarding alleged misconduct in his conducting of interrogations.
According to their website, the City of Pittsburgh's Office of Municipal Investigations is responsible for coordinating the receipt, analysis and investigation of citizen complaints of civil and/or criminal misconduct alleged against employees of the City of Pittsburgh. https://pittsburghpa.gov/omi (last visited August 18, 2022).
It is unknown whether either of the two relevant complaints in the OMI report stem from Detective Logan's conduct that was at issue in the Manns case, but the Manns case does appear to have been filed before Petitioner was convicted at the two cases that were the subject of his Petition in this case. See C. A. No. 00-838 (W.D. Pa.) (removed from the Court of Common Pleas of Allegheny County and opened in this Court on May 1, 2000).
The relevant facts of CP-02-CR-0013750-1999 were summarized by the Pennsylvania Superior Court as follows:
The evidence presented at trial established that on August 27, 1999, Pittsburgh Police Officers Stephen Mescan, Michael Boyd, Darlene Gardner and Tracy Carson were at work in the Zone 6 Police Station on Northumberland Street in the Squirrel Hill section of the City of Pittsburgh. At approximately 3:00 a.m., numerous shots were fired at the police station. Bullets entered through the primarily wood and glass building front. Officers dove for cover and turned off lights so they would not be seen. Two officers stated that they could hear the “whiz” of a bullet passing right by their heads. One bullet struck Officer Steph[e]n Mescan in the foot. Witnesses could not definitively say the actual number of shots fired at the station, but there were (5) five holes in the front of the police station, and at least six shots fired into vehicles parked directly in front of the station. Casings and slugs were found in the street in front of the station, and there were bullet holes on the walls inside. Ballistics tests showed that the weapons used in the shooting were a 9 mm and a .45 caliber automatic.
Zhen Dong Ling, a delivery driver for the New York Times, was driving on Northumberland Street approximately two (2) blocks from the police station when he heard five to six “pops” like a firecracker. Then a vehicle drove past him, coming from the direction of the police station at a high rate of speed. The
vehicle was a dark sports utility vehicle which looked like a Jeep, possibly black or dark green. Mr. Ling could not see the occupant or occupants in the vehicle.
A few hours later, Megan Siegal awoke to find that her Black Jeep Cherokee had been stolen. Ms. Siegal, who lived five (5) blocks from the Zone 6 police station, had last seen her vehicle parked outside at approximately 11:00 p.m. on August 26, 1999. When she awoke to find the Jeep gone, she called police and reported [it] stolen. She received a call around 4:30 p.m. on August 27, 1999, from police informing her that her vehicle had been recovered in a post office parking lot in the East Liberty section of the City of Pittsburgh. Postal workers had called to report that a black Jeep Grand Cherokee had been left in the lot all day with its engine running. One postal worker had noticed the Jeep parked in the lot when he arrived for work at 5:45 a.m. Ms. Siegal met a police officer in the post office parking lot and confirmed that it was her vehicle. However, Mrs. Siegal noticed that there was a plastic Snapple brand iced tea bottle that did not belong to her, and there were bullet casings in the vehicle. Also, someone had written on the headliner (felt covering of the roof inside the vehicle) in the front seat area, writing which had not been there the night before when she left her car in her parking space. The writing on the headliner on the drivers side was “thank you.” The writing on the passenger side headliner was “Fucc the Piggz”, spelled and written in a very distinctive manner. Ballistics test later showed that the casings found inside Ms. Siegal's Jeep matched those found at the scene of the Zone 6 shooting.
During the investigation police received information that [Pinson] and his codefendant had perpetrated the shooting at the Zone 6 police station. Acting upon the information, police detectives visited Pinson's co-defendant, Ricky Boyer, approximately two (2) weeks after the incident. Boyer agreed to be interviewed at the detective's office and, after waiving his rights, confessed to the shooting, as well as other crimes. Boyer detailed his involvement, as well as that of [Pinson.] An arrest warrant was issued for [Pinson] and he was taken into custody on September 19, 1999. He was interviewed by detectives after he waived his rights and signed a pre-interrogation warning form. [Pinson] then confessed to his involvement in the shooting, as well as the other crimes he committed with Boyer.
* * *
....Pinson confessed to being a passenger in the stolen jeep during the shooting. Several witnesses testified to seeing a similar, dark colored jeep near the scene of the crime. Pinson also admitted firing shots at the police station from a .45 caliber weapon (the same caliber as the shell casings found at the scene), and writing “FUCC THE PIGGZ” (the same language used in his tattoo) on the headliner of the stolen jeep. In addition, various drawings were recovered from Pinson's cell in which he stylized the words “FUC” and “THE PIGZ.” The
confession, along with the eyewitnesses' statements, and the physical evidence recovered from the scene, constituted overwhelming evidence of Pinson's guilt. . . .(ECF No. 9-6, pp.2-4, 18.)
The relevant facts of CP-02-CR-0014157-1999 were summarized by the Pennsylvania Superior Court as follows:
Terry Williams was the manager of a QwiCash store. The store provided money services such as check cashing and Western Union Moneygrams. On August 30, 1999, Mr. Williams witnessed two men wearing bandanas attempting to break into the QwiCash before normal business hours. Mr. Williams fled to the back of the store and called 911. The two men were unable to gain entry to the store at that time. The following day, Pinson and his accomplice, Ricky Boyer, entered the store during business hours. Boyer began firing a silver handgun at the security windows inside the store which separated the customers from the employees. Witnesses testified they saw Pinson brandishing a black handgun during the robbery. It is unclear, however, whether Pinson actually fired his weapon. One customer, Bridget Ways, was caught in the melee. She dropped her money on the floor during the shooting, and Pinson and Boyer absconded with that money.
Following an investigation, the police were able to secure an arrest warrant for Pinson. The police served the warrant at the apartment of an unnamed third party, who granted the police access to the apartment. The leaseholder signed a “consent to search” form and permitted the police to search her apartment.
During the search, the police seized a black .45 caliber handgun from under a pillow in a bedroom. Subsequently, the police obtained a warrant to search a car registered to a Ms. Florence Charles. During the search, police found a box of .45 caliber shells along with an identification card and a learner's permit in the name of Pierre Pinson. Fourteen shells were missing from the case. Detective Alexander testified that no fingerprints could be obtained from the black handgun. The Commonwealth's expert testified that the weapon found during Pinson's arrest had not been fired during the robbery at the QwiCash.
Pinson filed a motion to suppress his statements to the police. At the pre-trial suppression hearing, Detective Logan testified that he read the pre-interrogation warning form to Pinson after his arrest, handed the form to Pinson to read, re-read the form to Pinson and then asked Pinson if he agreed to speak with him. Detective Logan testified that Pinson agreed to speak with him and then signed the form. Detective Logan testified that, at no time, did Pinson either ask to speak with a lawyer, or invoke his right to remain silent and refuse to answer questions. Detective Logan also denied having promised leniency or forcing him to make
any statements. Detective Logan testified the interrogation took approximately four hours.
At trial, Detective Logan testified that, during interrogation, Pinson confessed to attempting to rob the QwiCash on August 30, 1999, and robing it on August 31. Detective Logan testified that Pinson admitted he and “another man” attempted to rob the store because they believed there was $56,000.00 inside. In his confession, Pinson denied having a gun during the incident. He did admit, however, that he and Boyer took the $90 Ms. Ways dropped on the floor during the incident. At trial, Pinson denied any involvement in the incidents at the QwiCash.
At trial, Pinson's co-defendant, Boyer, also denied having made any admissions to Detective Logan. Boyer also testified that he had not been involved in either the robbery or the attempted robbery of the QwiCash. He stated he had not read or understood his signed confession. Boyer also testified that he wrote a letter of apology to the victims only because the police threatened him.(ECF No. 9-33, pp.14-17.)
Based on the aforementioned summary of the facts and the testimony that was presented at trial, which includes overwhelming evidence of Petitioner's guilt, the undersigned strongly disagrees with Petitioner's representation that his entire case hinged on the reliability of his confession to Detective Logan and that there is a reasonable probability that the outcome of his trials would have been different had his counsel been able to impeach Detective Logan by introducing the OMI report. Such evidence was not material and therefore Petitioner cannot demonstrate that its withholding resulted in a violation of his constitutional right to due process. See United States v. Bagley, 473 U.S. 667, 682 (1985) (“The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability' is a probability sufficient to undermine confidence in the outcome.”)
This assumes that the OMI report would have even been deemed admissible.
Furthermore, the undersigned finds relevant, at least as to Petitioner's representation of what occurred during the interrogation and his allegations of wrongdoing against Detective Logan, the Superior Court's opinion on direct appeal in CP-02-CR-0014157-1999 wherein Petitioner claimed that the trial court erred in failing to grant his motion to suppress the statements he made during Detective Logan's interrogation. Petitioner argued that he was subjected to coercive interrogation tactics and was refused his right to counsel when he requested an attorney during questioning. The Superior Court noted that although Petitioner testified at the suppression hearing that he was handcuffed to the floor of the interrogation room for five-to-six hours, that Detective Logan made threats and promises of leniency during the interrogation, that he was denied access to an attorney as well as food, drink and use of the bathroom, and that he signed the statement because he felt it was the only way to end the interrogation, the suppression judge believed Detective Logan's version of the interrogation which was that Petitioner freely and voluntarily signed the pre-interrogation waiver form, was not handcuffed during the four-hour interrogation, was granted food and bathroom breaks, and never requested an attorney. See ECF No. 9-33, pp.20-21.
2. Actual Innocence
Petitioner next argues that he is actually innocent. He cites the Supreme Court's decision in McQuiggin and the Third Circuit's decision in Satterfield in support of his request for this Court to vacate its judgment, reopen his Petition and consider the merits of his claims. In McQuiggin, the Supreme Court recognized that the actual innocence gateway to federal habeas review in Schlup v. Delo, 513 U.S. 298 (1995) for procedurally defaulted claims extends to cases where a petitioner's claims would otherwise be barred by the expiration of AEDPA's one-year statute of limitations. 569 U.S. at 386. In Satterfield, the Third Circuit said that “if a petitioner can make a showing of actual innocence, McQuiggin's change in law is almost certainly an exceptional circumstance” entitling a petitioner to relief under Rule 60(b)(6). 872 F.3d at 163.
In Schlup, the Supreme Court explained that a viable claim of actual innocence requires a petitioner “to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” 513 U.S. at 324.
The overarching question here is whether Petitioner has made a sufficient showing of actual innocence to gain relief under Rule 60(b)(6) - relief that would serve as a gateway past the procedural default of his having untimely filed his Petition, thus allowing the Petition to be considered. In Schlup, the Supreme Court established the analytical framework for addressing such a question. First, the petitioner must present “new reliable evidence” of actual innocence, id. at 324, and, second, that evidence must “persuade[] the district court that . . . no juror, acting reasonably, would have voted to find [the petitioner] guilty beyond a reasonable doubt.” Satterfield, 872 F.3d at 163 (quoting McQuiggin, 569 U.S. at 386). If a petitioner meets that Schlup standard, relief under Rule 60(b)(6) is warranted, and the habeas petition can be considered on the merits despite a procedural default, “unless the totality of equitable circumstances ultimately weigh heavily in the other direction.” Id.
In support of his assertion of actual innocence, at least as it pertains to the charges stemming from the shooting at the Zone 6 police station on August 27, 1999, Petitioner presents an Affidavit from Michael Javon Snowden (“Snowden”) dated November 14, 2019. Snowden states that on September 15, 1999, he and his friend, John Carter (“Carter”), “fled from a stolen gold Cadillac that was used in the robbery of the QuiCash on Frankstown Avenue.” (ECF No. 41-6, p.2.) He and Carter were later arrested, and, after he was persuaded to do so by Carter, Snowden lied to officers and told them that Petitioner and Boyer “did the Zone 6 police station shooting[] so that we could go free.” Id. Essentially, Petitioner argues that that Snowden and Carter lied when they told police that Petitioner and his co-defendant, Boyer, were involved in the Pittsburgh Police Zone 6 drive-by shooting, resulting in a false conviction.
Petitioner relied on Snowden's Affidavit to support a claim for relief in his fifth PCRA petition.The PCRA court dismissed the petition as untimely after concluding that it did not meet the newly-discovered facts exception to the PCRA's timeliness requirements because Petitioner must have been aware of the nature and substance of Snowden's testimony as early as September 2003. The Superior Court agreed, stating:
Similarly, in his first PCRA petition Petitioner argued that all prior counsel rendered ineffective assistance by failing to investigate and call Snowden and Carter to testify. See Commonwealth v. Pinson, 2021 WL 4932802, at *1 (Pa. Super. Oct. 22, 201) (citing Commonwealth v. Pinson, 968 A.2d 795 (Pa. Super. 2009) (unpublished memorandum at 7-8)). Ultimately, his ineffective assistance claim was dismissed for failure to produce any evidence supporting his claim. Id.; see also ECF No. 9-12, pp.28-29.
Our review of the record confirms the PCRA court's determinations. Indeed, contrary to Pinson's assertions, Pinson was aware of Snowden's involvement in this case since at least September 2003. See PCRA Court Opinion, 11/8/07, at 2-3 (wherein the PCRA court, in addressing Pinson's second PCRA Petition, summarized that Pinson filed his second PCRA Petition in September 2003, and raised his claim that all prior counsel were ineffective for failing to call Snowden and Carter as witnesses). Moreover, other than a bald assertion of Snowden's unavailability for 16 years, Pinson provides no explanation of the steps he took to secure the Snowden Affidavit, nor any pitfalls or delays.Commonwealth v. Pinson, 2021 WL 4932802, at *4 (Pa. Super. Oct. 22, 2021) (internal citations to cases omitted).
Notwithstanding the question of whether this evidence qualifies as “new” or “reliable”,Snowden's Affidavit does not persuade the Court that no juror acting reasonably would have voted to convict Petitioner of the shooting of the Zone 6 police station had Snowden testified that he lied to the police about Petitioner's involvement in the shooting. First, it is noted that Snowden and Carter were not called to testify at Petitioner's trial, and, therefore, the information in Snowden's Affidavit pertains only to the quality of the information given to the police during their investigation and is not considered a recantation of testimony given under oath at Petitioner's trial. Additionally, the Affidavit does not undermine the trial evidence that pointed to Petitioner as the perpetrator of the shooting of the Zone 6 police station, which the Superior Court characterized as “overwhelming” in Petitioner's direct appeal. Simply put, Petitioner has not made a sufficient showing of his actual innocence such that Rule 60(b) relief should be granted.
In Reeves v. Fayette SCI, 897 F.3d 154 (3d Cir. 2018), the Third Circuit explained that, “[a]s part of the reliability assessment of the first step [of the analysis under Schlup], the [district] court may consider how the timing of the petitioner's submission and the likely credibility of the witnesses bear on the probable reliability of that evidence, as well as the circumstances surrounding the evidence and any supporting corroboration.” Id. at 161.
In support of his assertion of innocence as it pertains to the charges stemming from the robbery of the QwiCash store on August 31, 1999, Petitioner seemingly argues that he could not have participated in the robbery because only three people were seen fleeing the scene in the gold Cadillac and all three were accounted for - Snowden and Carter were arrested in the stolen gold Cadillac on September 15, 1999, and Boyer was identified as one of the robbers by witnesses at the trial. However, Petitioner's logic is fundamentally flawed since Snowden and Carter's arrest in the stolen gold Cadillac on September 15, 1999, does not automatically equate to their participation in the QwiCash robbery 15 days earlier, nor does it establish Petitioner's non-participation. Petitioner also appears to argue that he is actually innocent of the QwiCash robbery because Leroy Collington, who identified Petitioner out of a photo array on September 15, 1999, was a “failed jailhouse snitch who once fabricated testimony in a homicide case.” He also claims that the identification was somehow suspect because it was made on the same day that Snowden and Carter were arrested and because the photo array shown to Collington did not contain any identifying marks, nor did it contain Collington's signature or initials, which Petitioner claims “is procedure substantiating identification.” This evidence similarly does not establish Petitioner's innocence but instead attacks Collington's credibility and the procedures used to establish his identification of Petitioner. See Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012) (“‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.”) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
For these reasons, and because there is no showing of “extraordinary circumstances” justifying the granting of relief under Rule 60(b), Petitioner's motion should be denied.
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that Petitioner's Motion for Relief from Judgment (ECF No. 40) be denied and that a certificate of appealability also be denied.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Petitioner shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.