CYNTHIA REED EDDY, Magistrate Judge.
Petitioner, Joshua Evans, is a state prisoner incarcerated at State Correctional Institution Mahanoy in Frackville, Pennsylvania. He seeks a writ of habeas corpus, pro se, pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition will be denied.
Evans was charged with two counts each of Criminal Attempt (Homicide) and Aggravated Assault, one count of Robbery (Serious Bodily Injury Inflicted), one count of Firearms Not to be Carried Without a License, and two counts of Recklessly Endangering Another Person (REAP), in connection with an incident that took place on May 24, 2007, in a public playground in Wilkinsburg, PA.
On March 30, 2009, a non-jury trial commenced before the Honorable Anthony M. Mariani. At the close of the trial, the court found Evans not guilty of the two attempted murder charges and the robbery charge, but found him guilty of both aggravated assault counts, the firearms offense, and the two REAP counts. According to the Superior Court, the relevant facts leading to Evans's conviction are as follows:
Superior Court Decision, 12/16/2011 at 1-2 (quoting the Trial Court Opinion, filed July 13, 2011, at 2-3). Sentencing was deferred pending the preparation of a presentence report.
On June 22, 2009, Evans was sentenced as follows: to a term of 7-1/2 to 15 years imprisonment for the first aggravated assault conviction; a consecutive term of 15 years probation for the other aggravated assault conviction; and a consecutive term of 3-1/2 to 7 years imprisonment for the firearms conviction. No further penalty was imposed at the remaining counts. Thus, Evans received an aggregate term of 11 to 30 years imprisonment, followed by a 15-year probationary term.
Evans, through counsel, filed post-sentencing motions claiming that trial counsel was ineffective for failing to object to Evans's improper REAP charges and convictions and to the court's alleged improper use as substantive evidence as to at least one of Evans's recorded calls from jail. Following a hearing, the trial court denied the motions.
Evans filed a direct appeal with the Superior Court, in which he raised five errors, including the above ineffective assistance of counsel claim. On December 16, 2011, the Superior Court affirmed the judgment of sentence, but declined to address the ineffectiveness claim absent an express waiver of further PCRA review. Evans filed a Petition for Allowance of Appeal (PAA) with the Pennsylvania Supreme Court, which was denied on May 23, 2012.
Unsuccessful on direct appeal, Evans filed a timely pro se petition under the Pennsylvania Post-Conviction Relief Act (PCRA). On collateral review, Evans, through counsel, raised the same ineffectiveness claim that had been raised in his post-sentencing motions and on direct appeal. After giving the requisite notice, the PCRA court, which was the same judge as the judge who presided over Evans's trial, denied the PCRA petition. Evans appealed to the Superior Court, raising the same ineffectiveness claims raised in his PCRA petition. On March 3, 2014, the Superior Court affirmed the dismissal of the PCRA petition. Evans sought leave to appeal to the Supreme Court of Pennsylvania but that request was declined on July 29, 2014.
Having been denied relief in state court, Evans filed pro se the instant habeas petition, pursuant to 28 U.S.C. § 2254, in which he raises the following five ineffectiveness claims, none of which has been raised previously:
Habeas Pet. at 7-14 (ECF No. 1). Respondents filed a timely Answer (ECF No. 10) and the relevant state court records, to which Evans filed a timely Reply Memorandum. (ECF No. 14). The Court has reviewed the filings by the parties, as well as the state court record, including the transcripts from Evans's non-jury trial, sentencing proceedings, and post-sentencing hearing. The matter is fully briefed and ripe for disposition.
This case is governed by the federal habeas statute applicable to state prisoners. 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, enacted on April 24, 1996 ("AEDPA"), "which imposes significant procedural and substantive limitations on the scope" of the Court's review.
Evans concedes that none of his claims was exhausted in state court. He also acknowledges that all of his claims are procedurally defaulted, but argues that the default should be excused because his PCRA counsel was ineffective for not raising these claims. A habeas petitioner's procedural default may be excused if the petitioner can show cause for the default and prejudice from arising from failure to consider the claim. Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)).
If cause and prejudice are shown and the default excused, the Court's review of the habeas claims is de novo because the state court did not consider the claim on the merits. Id. at 236 (citing Bronshtein v. Horn, 404 F.3d 700, 710 n.4, 715 (3d Cir. 2005). If, however, a constitutional claim is properly raised in state court and, therefore, not procedurally defaulted, the state court's determination is afforded substantial deference under AEDPA.
The five ineffectiveness claims raised in this habeas petition were not raised by Evans's PCRA counsel. Accordingly, the Court concludes that these claims are procedurally defaulted and may be reviewed only if the default can be excused.
Pursuant to the United States Supreme Court's decision in Martinez v. Ryan, 566 U.S. 1 (2012), counsel's failure to raise an ineffective assistance claim on collateral review may excuse a procedural default if: (1) collateral attack counsel's failure itself constituted ineffective assistance of counsel under Strickland, and (2) the underlying ineffective assistance claim is a substantial one. Martinez, 566 U.S. at 14.
Because Evans's claims that his PCRA counsel's assistance was ineffective stems from the strength of his underlying ineffective assistance of trial counsel claims, the Court considers the second Martinez requirement first. To satisfy this requirement, the petitioner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one." Id. "In other words, `the [petitioner] must demonstrate that the claim has some merit'." Bey, 856 F.3d at 238 (quoting Martinez, 566 U.S. at 14).
With this framework in mind, Evans's ineffective assistance of counsel claims will be reviewed.
Evans was represented by Attorney Komron J. Maknoon during his non-jury trial and sentencing. Court-appointed attorney Scott Coffey represented Evans during his post-sentencing proceedings, on direct appeal, and during his PCRA proceedings.
The clearly established federal law with respect to a claim of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the now familiar Strickland standard, Evans must show that his counsel's performance was deficient and that this deficiency prejudiced his defense. Bey, 856 F.3d at 238 (quoting Strickland, 466 U.S. at 694). These are referred to as the "performance" and "prejudice" prongs of the Strickland test. Id. As to the performance prong, there is a strong presumption that counsel's conduct was reasonable. Strickland, 466 U.S. at 689. As to the prejudice prong, the United States Supreme Court held that "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The burden is on the petitioner to establish both Strickland prongs. On habeas review, a court "may begin and, when dispositive, end with either of Strickland's two prongs." Mathias v. Superintendent Frackville SCI, 869 F.3d 175, 189 (3d Cir. 2017).
Respondents argue that Evans's trial counsel ineffectiveness claims are meritless and insubstantial and, therefore, do not establish "cause" to overcome the default. Evans's claims will be addressed seriatim.
In Claim 1, Evans argues that his trial counsel was ineffective for failing to investigate and present mitigation evidence, namely his psychological disorder, at trial and that PCRA counsel was ineffective for not raising this issue. In Claim 5, which basically mirrors Claim 1, Evans argues that trial counsel was ineffective for failing to investigate and/or present mitigation evidence of a psychological condition at sentencing. In his Petition, Evans does not offer any elaboration or factual or argumentative support of these claims. However, in his Reply addressing Respondents' argument that these are undeveloped claims and are insufficient to require habeas relief, Evans lists the following "facts" to support his claims:
While Evans claims that counsel failed to complete a psychological evaluation which would have revealed a "serious organic brain disorder," he has offered nothing to show that any mitigation evidence exists, much less that such mitigation evidence would have changed the outcome of the trial. Further, Evans has not suggested how his "serious organic brain disorder" would have mitigated his responsibility in this case. He testified at trial and asserted self defense. He testified coherently and in great detail as to his version of the events. (TT at 328-426).
Before turning to the merits of Claim 5, that counsel was ineffective for failing to investigate and/or present mitigating evidence of a psychological condition at sentencing, the Court notes that this is not the first time Evans has challenged his sentence. On direct appeal, Evans claimed that the sentencing court failed to provide an adequate, on-the-record statement of reasons for imposing minimum sentences above the aggravated range of the sentencing guidelines. Evans also complained, inter alia, that the sentencing court imposed manifestly excessive sentences for the aggravated assault and the firearms convictions, which were disproportionate to the offenses. The Superior Court rejected these arguments. Superior Court Opinion, December 16, 2011 (ECF No. 10-3).
Additionally, the Superior Court noted that the sentencing court had the benefit of a PSI report at sentencing and, therefore, can presume it considered the relevant factors when sentencing Evans. See Commonwealth v. Tirado, 870 A.3d 362, 365 (n.5 (Pa. Super. 2005) (stating where sentencing court had benefit of PSI, law assumes court was aware of and weighed relevant information regarding defendant's character and mitigating factors). At the sentencing hearing, Petitioner, his mother, Lajean Patterson, and his grandmother, Lajean Evans, testified on his behalf.
The sentencing transcript reflects that the sentencing court detailed Evans's family life and his personal background, as reflected in the presentence report:
Sentencing Transcript, 6/22/09, at 25-30.
The Court finds that Evans has not met his burden on these claims. He has failed to prove that any mitigation existed as to his alleged psychological disorder. Further, he has failed to show that his counsel knew or should have known that such evidence existed and/or that such evidence would have changed the outcome of the trial or the sentencing proceeding. Because the underlying ineffectiveness claim against trial counsel fails, PCRA counsel was not ineffective for failing to raise this issue. Accordingly, Claims 1 and 5 will be denied.
Evans contends that trial counsel was ineffective for failing to call three eyewitnesses to testify at trial: Quinten Anderson, Terrell Evans (Petitioner's cousin), and Maurice Jackson
To establish ineffectiveness for failure to call a witness under Pennsylvania law, Evans must show that "(1) the witness existed; (2) the witness was available; (3) counsel [knew] of the [witness's] existence; (4) the witness was prepared to cooperate and testify . . .; and (5) the absence of the testimony was prejudicial." Commonwealth v. Khalifa, 852 A.2d 1238, 1240 (Pa. Super. 2004).
Even assuming arguendo that counsel's performance was deficient in not calling these individuals as trial witnesses, Evans has not shown that the absence of the testimony from these witnesses was prejudicial. The trial transcript reflects that Evans testified on his own behalf in an attempt to raise a claim of self-defense. According to Evans, the testimony from these witnesses would have bolstered his self-defense claim. Evans has failed to demonstrate that there is a reasonable probability that the outcome of the trial would have been different if counsel had called these witnesses. Without a showing of a reasonable probability of a different outcome, Evans has failed to establish ineffective assistance of counsel and is not entitled to habeas relief on this claim. Strickland, 466 U.S. at 687, 694; Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000).
Because the underlying ineffectiveness claim against trial counsel fails, PCRA counsel was not ineffective for failing to raise it.
In a bald assertion, Evans claims that his counsel coerced him into testifying that during the incident he had chrome revolver when in fact he had a black automatic gun. Evans offers no support aside from his own self-serving statement and in his Reply simply states, "Petitioner's claim is the truth the whole truth and nothing but the truth so help me God." Reply at 4. Evans does not offer any elaboration or factual or argumentative support for his claim. An undeveloped claim is insufficient to require relief. A petitioner must set forth facts to support his contention. See Mayberry v. Petsock, 821 F.2d 179, 187 (3d Cir. 1987) (finding that Petitioner's vague and general allegations and supporting materials fail to make sufficient showing to justify relief), cert. denied, 484 U.S. 946 (1987). A petition with bald assertions which fails to provide any facts with which to analyze the claim should be dismissed. Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991).
For these reasons, Claim 3 will be dismissed.
Evans contends that he was denied his constitutional right to counsel because his attorney was operating under a conflict of interest. Specifically, Evans contends that because his trial counsel had represented Brandon McWright in the past, his counsel had a conflict of interest.
The Sixth Amendment guarantees a criminal defendant counsel's "undivided loyalty." Government of Virgin Islands v. Zepp, 748 F.2d 125, 131 (3d Cir. 1984). In Mickens v. Taylor, the United States Supreme Court defined an "actual conflict" as "precisely a conflict that affected counsel's performance — as opposed to a mere theoretical division of loyalties." 535 U.S. 162, 171 (2002). In order to prevail on this claim, Evans must demonstrate that the potential conflict adversely affected his counsel's performance. This Evans is unable to do on the factual record present here.
First, Evans presents no evidence that Attorney Maknoon knew that Brandon McWright was the brother of witness Ebony McWright. More importantly though, Evans has made no showing or provided any record support to demonstrate any adverse effect resulting from counsel's alleged conflict of interest. Rather, it is apparent from the trial transcript that counsel vigorously advocated on behalf of his client and in fact secured an acquittal on the charges of attempted homicide and burglary. Evans has not shown that his counsel's performance was unreasonable.
Accordingly, Evans has failed to establish the "prejudice" in "cause and prejudice." For these reasons, the Court finds that Evans has not shown that his claim of trial counsel's ineffectiveness of counsel has substantial merit under either Martinez or Strickland. Because the underlying ineffectiveness claim against trial counsel fails, PCRA counsel was not ineffective for failing to raise it. Accordingly, Claim 4 will be denied.
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." "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, the Court concludes that jurists of reason would not find it debatable whether Hopkins' claim should be dismissed. Accordingly, a certificate of appealability will be denied.
For all of the above reasons, the petition for a writ of habeas corpus will be denied. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. An appropriate Order follows.
