JOSEPH F. LEESON, Jr., District Judge.
Joseph Mumma filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging prosecutorial misconduct, ineffective assistance of counsel, denial of severance from Mumma's codefendant, and violation of Mumma's Miranda rights with respect to his 2006 criminal trial and conviction in the Philadelphia County Court of Common Pleas. ECF No. 1. Magistrate Judge Timothy R. Rice has issued a Report and Recommendation ("R&R") recommending that the habeas corpus petition be denied. ECF No. 17. Mumma timely filed objections to the R&R, ECF No. 19, to which Respondents filed a response, ECF No. 22. After de novo review and for the reasons set for below, the R&R is adopted and the habeas petition is dismissed as procedurally defaulted and meritless.
Mumma was tried in November 2006 together with Joseph Romanelli for various crimes related to the home invasion robbery, sexual assault, and murder of Mumma's 84-year-old neighbor, Marie Lindgren. ECF No. 16-1, at 1.
Trial testimony established that around 3:00 a.m. on November 13, 2004, Mumma and Romanelli went to Ms. Lindgren's house to rob her. Id. at 6. When Ms. Lindgren was found dead the following morning by a neighbor, her body displayed extensive bruising, a laceration below the jaw that penetrated halfway through her neck, an amputated left earlobe, broken neck bones from strangulation, defensive wounds on her arms, a large tear on the back of her left hand exposing tendons, tissue missing from the left little finger, fractured ribs, bruising and abrasions to the vaginal area, and hemorrhaging in the brain. Id. at 4-5. An autopsy determined the cause of death as both sharp and blunt force injuries. Id. at 5.
On the morning that Ms. Lindgren's body was found, Mumma helped another neighbor enter Ms. Lindgren's house to check on her. Id. at 2. However, police later identified him as a suspect when he went to give a witness statement at the police station and a detective observed red and green paint stains on his shoes that matched paint used to graffiti the walls of Ms. Lindgren's house. Id. at 5-6. After receiving Miranda warnings, Mumma told police that he did participate in the robbery, but that Romanelli had killed Ms. Lindgren. Following a jury trial, Mumma was found guilty of second-degree murder, robbery, aggravated indecent assault, burglary, and criminal conspiracy, and sentenced to life imprisonment plus ten to twenty years. Id. at 5.
Mumma appealed his conviction, but the Pennsylvania Superior Court ultimately affirmed the conviction on November 11, 2010. ECF No. 16-3. The Pennsylvania Supreme Court denied Mumma's petition for allowance of appeal on June 8, 2011.
The instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was timely filed on April 21, 2014. Mumma seeks relief on the grounds of: (1) prosecutorial misconduct at trial through the prosecutor's characterization of the murder as "torture" and "using [Mumma's] co-defendant's statement against [him];"
Magistrate Judge Rice reviewed Mumma's claims and found them meritless, and some barred by procedural default. With respect to the claim for prosecutorial misconduct, Magistrate Judge Rice found that the prosecutor's characterization of the murder as "torture" fell within the acceptable range of the prosecutor's discretion and had a basis in the evidence presented. Additionally, the prosecutor's use of Romanelli's statement blaming "the other guy" did not affect the jury's decision: in convicting Mumma of second-degree murder, the jury found that Mumma and Romanelli had acted together in the commission of the crimes, a conclusion which the exclusion of Romanelli's statement would not have changed.
Magistrate Judge Rice concluded that the procedural default rule bars Mumma's ineffective assistance of counsel claim because Mumma did not present the claim to the state appellate courts. Additionally, none of Mumma's three allegations of ineffective assistance has merit. First, Mumma complains that his counsel did not attend a suppression hearing; however, this hearing ruled on Romanelli's motion to suppress. Second, Mumma alleges his trial counsel failed to preserve issues for appeal but does not specify which issues his attorney failed to preserve. Third, Mumma alleges that trial counsel did not bring up his mental health background or low I.Q. until late in the trial and at sentencing, but makes no argument that doing so would have resulted in a lesser sentence.
Magistrate Judge Rice also found that procedural default bars Mumma's severance claim because he did not raise this claim in state court and that regardless, the claim is meritless. Magistrate Judge Rice reasoned that Mumma has not explained how failure to sever his trial from Romanelli's led to prejudice so great as to deny him a fair trial, the standard required to prevail on a failure-to-sever claim. Although Mumma seeks to challenge the admission of Romanelli's statement because Romanelli was only seventeen when he made the statement, Mumma has no standing to do so. The Magistrate Judge observed that, in conjunction with the severance issue, Mumma seems to argue that because he could not cross-examine Romanelli, the use of Romanelli's statement at trial violated Mumma's rights under the Confrontation Clause. However, Romanelli's statement resulted in, at worst, harmless error: the jury rejected the defendants' attempts to blame one another for the homicide and convicted them both of second-degree murder.
Lastly, Magistrate Judge Rice evaluated Mumma's claim that the trial court should have suppressed his statement because he made it involuntarily. The Magistrate Judge concluded that the state courts considered this claim on the merits and rejected it based upon a reasonable application of federal law and a reasonable determination of the facts.
Mumma filed objections to the R&R, ECF No. 19, on April 8, 2015. Mumma's objections contain very little explicit argument and consist largely of quotations from caselaw, many duplicative of his Petition. However, he takes particular issue with the R&R's finding that his Confrontation Clause argument does not justify relief.
When objections to a report and recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) ("providing a complete de novo determination where only a general objection to the report is offered would undermine the efficiency the magistrate system was meant to contribute to the judicial process"). "District Courts, however, are not required to make any separate findings or conclusions when reviewing a Magistrate Judge's recommendation de novo under 28 U.S.C. § 636(b)." Hill v. Barnacle, 655 F. App'x. 142, 147 (3d Cir. 2016). The district "court may accept, reject, or modify, in whole or in part, the findings and recommendations" contained in the report. 28 U.S.C. § 636(b)(1)(C) (2009).
This Court has considered Mumma's Objections to the R&R and conducted a de novo review of his habeas corpus petition. This Court writes separately to provide additional explanation of the Confrontation Clause issue. As to Mumma's additional grounds for habeas relief, this Court agrees with Magistrate Judge Rice's reasoning and sees no need to make any separate findings or conclusions in this regard. See Hill, 655 F. App'x. at 147.
Even assuming for the sake of argument that Mumma can establish a violation of his Confrontation Clause rights based upon the use of Romanelli's statement incriminating him, the doctrines of procedural default and harmless error preclude the relief Mumma seeks. In his objections to the R&R, Mumma reiterates his assertion that the prosecutor's use of Romanelli's statement identifying Mumma as the killer, which was redacted to refer to Mumma only as "the other guy" violated Mumma's right to confront the witnesses against him. ECF No. 19, at 2.
However, Magistrate Judge Rice correctly found that procedural default bars this argument, regardless of its merits.
Regardless, as Magistrate Judge Rice recognized, any violation of Mumma's Confrontation Clause right would have been harmless error. See Harvey v. Meyers, No. 93-15680, 1994 U.S. App. LEXIS 18889, at *8 (9th Cir. 1994) (holding that any violation of the Confrontation Clause was harmless because "the jury necessarily rejected the evidence" that the defendant was responsible by convicting the defendant of second-degree and not first-degree murder). For purposes of federal habeas review, a constitutional error that implicates trial procedures is harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (applying harmless error analysis to Confrontation Clause claim).
Here, the alleged error Mumma complains about did not have the required effect on the jury's verdict. Mumma contends that Romanelli's statement that "the other guy" killed Ms. Lindgren unfairly implicated him as the killer; for his part, Mumma tried to blame Romanelli. Whether the jury believed Mumma or Romanelli did not matter to their ultimate determination of Mumma's guilt because they did not have to find that Mumma actually killed Ms. Lindgren to convict him of second-degree murder. Under Pennsylvania law, second-degree murder requires only (1) that the defendant be "engaged as a principal or an accomplice in the perpetration of a felony" and (2) that a homicide occur during that felony. 18 Pa. Stat. and Cons. Stat. Ann. § 2502. Even if the jury had not heard Romanelli's statement identifying "the other guy" as the killer and had concluded that Romanelli killed Ms. Lindgren, they still heard substantial evidence sufficient to convict Mumma of second-degree murder. Mumma admitted that he and Romanelli agreed to break into Ms. Lindgren's home to rob her, and Ms. Lindgren's homicide occurred during the perpetration of this felony. These facts suffice to convict Mumma of second-degree murder, so any violation of Mumma's Confrontation Clause rights had no "substantial and injurious effect" on the jury's verdict. See Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008), as amended (Oct. 17, 2008) (finding Confrontation Clause violation was harmless error because of extensive additional evidence of defendant's guilt). Mumma complains, at best, of harmless error, but he cannot obtain habeas relief on that basis.
Magistrate Judge Rice correctly concludes that the instant petition for writ of habeas corpus is meritless and that many of the claims have been procedurally defaulted. This Court therefore adopts the findings and conclusions in the Report and Recommendation and follows the recommendation to deny the habeas petition.
A separate Order will be issued.
