NITZA I. QUIÑONES ALEJANDRO, District Judge.
Petitioner Guillmo (Guillermo) Perez ("Petitioner" or "Perez"), a Pennsylvania state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254, in which he asserted numerous claims of ineffectiveness of counsel and denial of due process, [ECF 1], supplemented by a traverse. [ECF 18]. In accordance with Title 28 U.S.C §636(b) and Local Civil Rule 72.1.IV(c), the petition was referred to United States Magistrate Judge Richard A. Lloret for a Report and Recommendation ("R&R"). [ECF 3]. On November 30, 2016, the Magistrate Judge issued an R&R, which recommended that the petition for a writ of habeas corpus be denied. [ECF 19]. After requesting and being granted an extension of time in which to do so, Petitioner filed objections to the R&R "addressing and preserving claims One (1) and Two (2) that were argued in Petitioner's Traverse to show cause." [ECF 23]. This matter is, therefore, ripe for a de novo review and determination of the specific objections to the R&R.
After a thorough and independent review of the state court record and court filings, for the reasons stated herein, Petitioner's objections are overruled, the R&R is approved and adopted, and the petition for a writ of habeas corpus is denied.
On April 17, 2003, Petitioner was found guilty by a jury of third degree murder, carrying a firearm without a license, and carrying a firearm on a public street in Philadelphia, Pennsylvania, and on June 17, 2003, was sentenced. Commonwealth v. Perez, 103 A.3d 344, 346 (Pa. Super. Ct. 2014). The facts underlying Petitioner's conviction were summarized by the Pennsylvania Superior Court and quoted in the R&R as follows:
Perez, 103 A.3d at 345-47.
The procedural history of this matter is set forth in the R&R, and need not be repeated in detail, and will be summarized to the extent relevant to the analysis of Petitioner's objections. As noted in the R&R, Petitioner initially did not file a direct appeal; his direct appeal rights were restored nunc pro tunc following his filing of a PCRA petition. Id. at 347. After an unsuccessful direct appeal, Petitioner filed a pro se PCRA petition asserting numerous claims, including, the purported claims that are the subject of his objections. Following the appointment of Attorney James S. Bruno as Petitioner's PCRA counsel, a counseled amended petition was filed which asserted six claims; but only one of the two claims on which Petitioner focuses his objections; to wit: ineffective assistance of trial counsel for failing to request a cautionary jury instruction. Attorney Bruno withdrew his representation, and Attorney Janis Smarro was substituted as counsel for Petitioner during his PCRA proceeding. After Respondents filed a motion to dismiss, Attorney Smarro filed a second amended PCRA petition which included only two of the six claims Attorney Bruno had alleged in the first amended PCRA petition. Neither of those two claims were the claims that are the focus of Petitioner's objections. On November 8, 2013, the second amended PCRA petition was dismissed without a hearing. Id. at 347.
Petitioner, still represented by Attorney Smarro, appealed the denial of his PCRA petition to the Superior Court. Id. at 345. In that appeal, Petitioner again asserted only the two claims included by Attorney Smarro in the second amended PCRA petition, which are not the two claims that are the subject of Petitioner's objections. Id. at 347. The Superior Court held that although the two ineffective assistance of trial counsel claims argued in the second amended PCRA petition had arguable merit, Petitioner could not demonstrate actual prejudice, and denied his appeal. Id. The Pennsylvania Supreme Court denied further review. Commonwealth v. Perez, 116 A.3d 604 (Pa. 2015) (Table). Petitioner's underlying timely habeas petition followed.
Where objections to an R&R are filed, the court must conduct a de novo review of the contested portions of the R&R, see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. §636(b)(1)(C)), provided the objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In conducting its de novo review, a court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. 28 U.S.C. § 636(b)(1). Although the review is de novo, the statute permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7. Objections which merely rehash an argument presented to and considered by a magistrate judge are not entitled to de novo review. Becker v. Tennis, 2011 WL 2550544, at *1 n.3 (E.D. Pa. June 23, 2011) (declining to address contentions included in petitioner's objections, concluding that they are "nothing more than a restatement of the underlying claims contained in his petition") (citing Morgan v. Astrue, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)).
The Antiterrorism and Effective Death Penalty Act ("AEDPA") amended the standards for reviewing state court judgments raised in federal habeas corpus petitions filed under 28 U.S.C. §2254. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). AEDPA increased the deference federal courts must give to the factual findings and legal determinations of the state courts. Id. at 196. Thus, in accordance with §2254(d), a habeas corpus petition may only be granted if the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §2254(d).
In order to seek federal habeas relief, however, a petitioner must first exhaust the remedies available in state court. See 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State . . ."). To meet this exhaustion requirement, a petitioner must "fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004). In order for a claim to be exhausted, "`[b]oth the legal theory and facts underpinning the federal claim must have been presented to the state courts, and the same method of legal analysis must be available to the state court as will be employed in the federal court.'" Tome v. Stickman, 167 F. App'x 320, 322-23 (3d Cir. 2006) (quoting Evans v. Court of Common Pleas, De. County, Pa., 959 F.2d 1227, 1231 (3d Cir. 1992)). A state prisoner must "fairly present" his federal claims to the state courts before seeking federal habeas relief by invoking "one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Pennsylvania, one complete round includes presenting the federal claim through the Superior Court on direct or collateral review. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). The habeas petitioner bears the burden of proving exhaustion of all state remedies. Boyd v. Waymart, 579 F.3d 330, 367 (3d Cir. 2009).
If a state court has refused or would refuse to review a claim based on a state procedural rule that is independent of the federal question and adequate to support the judgment, the court may deny that claim as procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729, 731-32 (1991); Lark v. Sec't Pa. Dept. of Corrections, 645 F.3d 596, 611 (3d Cir. 2011); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004). A federal court may consider the merits of a procedurally defaulted claim only if "the petitioner establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse the default." Holloway v. Horn, 355 F.3d 707, 715 n.3 (3d Cir. 2004) (quoting Coleman, 501 U.S. at 750).
To show "cause," the petitioner "must demonstrate some objective factor external to the defense that prevented compliance with the state's procedural requirements." Id.; see also Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples of suitable "cause" include a showing that: (1) the factual or legal basis for a claim was not reasonably available; (2) some interference by state officials made compliance with the state procedural rule impracticable; or (3) the procedural default was the result of ineffective assistance of counsel. Id. at 488. To demonstrate "prejudice," a petitioner must show "not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
Petitioner's objections to the Magistrate Judge's R&R are directed solely to claims one and two of his eight habeas claims. In the well-reasoned report, the Magistrate Judge found that these claims were procedurally defaulted and, further, that Petitioner had failed to meet the requirements to overcome the default. Petitioner's objections to these findings largely reiterate the same arguments he presented to, and which were thoroughly considered and rejected by, the Magistrate Judge. Because these objections merely rehash the disposed arguments made in the habeas petition, these objections are not entitled to a de novo review. Solely for this reason, Petitioner's objections can be overruled. Notwithstanding, in the interest of judicial economy, the objections are addressed below.
At claim one of the habeas petition, Petitioner asserts that trial counsel was ineffective for failing to request that the court issue a cautionary instruction with regard to the testimony of eyewitness Ismael Roman. At claim two, Petitioner asserts that trial counsel was ineffective for failing to impeach Police Officer Correa. As noted, the Magistrate Judge found that these claims were procedurally defaulted, as they had never been fairly presented to each requisite level of the state courts, and Petitioner had failed to meet his burden of demonstrating cause and prejudice sufficient to overcome the default. In his habeas petition and objections, Petitioner appears to concede that these claims were not exhausted, and relies on Martinez v. Ryan, 566 U.S. 1 (2012), to overcome the procedural default of these claims. Petitioner objects to the Magistrate Judge's findings that he has not met the requisite burden to overcome the procedural default of these claims.
In the argument to overcome this procedural default, Petitioner contends that his PCRA counsel, Attorney Smarro, was ineffective for not asserting these claims or including them in the second amended PCRA petition she filed on his behalf. The Magistrate Judge rejected this same argument, finding that Petitioner's PCRA counsel did not render ineffective assistance because she had reasonable strategic reasons for narrowing the claims asserted in the PCRA petition and, further, that Petitioner had not shown that he was prejudiced by the decision. This Court agrees.
In his objections, Petitioner offers no substantive argument that was not already presented to the Magistrate Judge, but merely suggests that these procedurally defaulted claims are somehow subject to the "narrow exception" set forth in Martinez. In that case, the United States Supreme Court carved out a "narrow exception" to the well-established rule that alleged errors by post-conviction counsel cannot be the basis for showing "cause" for a procedural default of an underlying ineffective assistance of trial counsel claim because there is no federal constitutional right to counsel on post-conviction review. Id. at 9, 15-16. The Martinez Court held that where state law requires that claims of ineffective assistance of trial counsel be raised for the first time in a collateral proceeding, a federal habeas petitioner may be able to establish "cause" sufficient to overcome a procedural default of a "substantial" claim of a trial counsel's ineffectiveness if the collateral counsel was ineffective. Id. Thus, a petitioner "may establish cause for the procedural default of an ineffective assistance of counsel claim by demonstrating that his or her counsel in an `initial-review collateral proceeding' provided ineffective assistance of counsel." Jones v. Pa. Bd. of Prob. & Parole, 492 F. App'x. 242, 244 (3d Cir. 2012) (citing Martinez, 566 U.S. at 8-9). One such "initial-review collateral proceeding" is at the PCRA petition stage where appointed counsel provides constitutionally ineffective assistance in failing to assert an ineffective assistance of trial counsel claim that should have been raised. See Martinez, 566 U.S. at 14 (citing Strickland v. Washington, 466 U.S. 668 (1984)).
With this narrow exception in mind, when evaluating the effectiveness of PCRA counsel on habeas review, this Court must apply the familiar two-prong inquiry articulated in Strickland, 466 U.S. 668. To sustain a claim for ineffective assistance of counsel, a petitioner must show that counsel's performance was objectively deficient and that this deficient performance prejudiced the defense. Id. at 687. Prejudice has been defined as a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.; see also Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992) ("[A] petitioner must demonstrate a reasonable probability that, but for the unprofessional errors, the result would have been different."). As set forth by the Supreme Court in Strickland, "judicial scrutiny of a counsel's performance must be highly deferential" and "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. To succeed, "a defendant must overcome the `presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689).
Here, this Court is of the opinion that the Magistrate Judge properly applied the two-prong Strickland analysis with respect to the performance of Petitioner's PCRA counsel and correctly found that Petitioner had failed to establish either prong. As noted, Petitioner had filed a pro se PCRA petition which asserted numerous claims, including the two claims that are the subject of Petitioner's objections. Attorney Bruno was later appointed to represent Petitioner and in that capacity, he filed an amended petition that asserted six claims which included only one of the two claims on which Petitioner focuses his objections, i.e., ineffective assistance of trial counsel for failing to request a cautionary jury instruction. Subsequently, Attorney Smarro was substituted as counsel for Petitioner during his PCRA proceeding. After Respondents filed a motion to dismiss, Attorney Smarro filed a second amended PCRA petition in which she included only two of the six claims asserted in Attorney Bruno's first amended PCRA petition. The asserted claims did not include either of the two claims that are the focus of Petitioner's objections. As such, and as conceded by Petitioner, these two claims were not exhausted, and are now procedurally defaulted.
To determine whether PCRA counsel, Attorney Smarro, was constitutionally ineffective for withdrawing the two claims regarding trial counsel's ineffective assistance, thus, providing cause for the default, Petitioner must show that (1) PCRA counsel's representation fell below an objective standard of "reasonableness under prevailing professional norms;" and (2) Petitioner suffered prejudice as a result. See Strickland, 466 U.S. at 688, 694. In undertaking this assessment, this Court is "required to . . . assume" that PCRA counsel "made an informed judgment call that was counsel's to make" "unless the petitioner has come forward with evidence to the contrary sufficiently probative to overcome the `strong presumption' required by Strickland." Sistrunk v. Vaughn, 96 F.3d 666, 671 (3d Cir. 1996). One of the duties of appellate counsel is to select which claims are most likely to obtain relief for their clients based upon the state of the law at that time, even if this means not presenting claims that might be meritorious if a higher court reconsiders a prior holding or repudiates an established state rule. See Smith v. Murray, 477 U.S. 527, 535-36 (1986). The "process of `winnowing out weaker arguments on appeal and focusing on' those most likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Id. at 536 (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)); see also Buehl v. Vaughn, 166 F.3d 163, 174 (3d Cir. 1999) (stating that "[o]ne element of effective appellate strategy is the exercise of reasonable selectivity in deciding which arguments to raise."); Sistrunk, 96 F.3d at 670 (holding that counsel has "no duty to raise every possible claim" on appeal, that "[a]n exercise of professional judgment is required," and that "[a]ppealing losing issues runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions.") (citations and quotations omitted); Tok v. Glunt, 2016 WL 721280, at *5 (E.D. Pa. 2016) ("PCRA counsel, acting as an appellate attorney, was entitled to select those issues on collateral review that he thought most likely to succeed on behalf of his client."). Absent evidence to the contrary, this Court must presume that PCRA counsel withdrew the two claims that are now the focus of Petitioner's objections "for tactical reasons rather than through sheer neglect." Yarborough v. Gentry, 540 U.S. 1, 8 (2003); Sistrunk, 96 F.3d at 671 (holding that reviewing court must presume appellate counsel's selection of issues was "informed judgment call").
Here, in rehashing the same arguments presented to the Magistrate Judge, Petitioner has failed to provide any evidence to overcome this presumption. Indeed, Petitioner makes no attempt in either the habeas petition or the objections to the R&R to explain why it was "objectively unreasonable" for Attorney Smarro to winnow out the two ineffective assistance of counsel claims that are the subject of his objections from his uncounseled PCRA petition when filing the second amended PCRA petition on his behalf. As noted, Attorney Smarro was substituted as Petitioner's PCRA counsel, after Petitioner had filed a pro se PCRA petition, which subsequently was amended by Attorney Bruno, Petitioner's first PCRA counsel.
In addition, in light of the overwhelming trial evidence of his guilt, Petitioner has not, nor can he, meet the prejudice prong of Strickland or as required to overcome his procedural default. To demonstrate prejudice under the Strickland analysis, Petitioner must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. To establish prejudice sufficient to overcome his procedural default, Petitioner must show that the errors he complains of "worked to his actual and substantial disadvantage, infecting his entire trial [or appeal] with error of constitutional dimensions." Frady, 456 U.S. at 170. In assessing prejudice, this Court must consider the strength of the evidence presented against the Petitioner at trial. See United States v. Calhoun, 600 F. App'x 842, 844 (3d Cir. 2015).
In finding that Petitioner had not met the prejudice prong of Strickland when analyzing Petitioner's other ineffective assistance of trial counsel claims, the Superior Court described the overwhelming evidence as follows:
Perez, 103 A.3d at 352. In light of this same compelling evidence of Petitioner's guilt, this Court concludes, as did the Magistrate Judge, that even if Petitioner's second appointed PCRA counsel, Attorney Smarro, had asserted the two withdrawn ineffective assistance of trial counsel claims that are the subject of Petitioner's objections, there was no realistic likelihood that the outcome of the PCRA proceedings would have been different. Likewise, there is no realistic likelihood that had Petitioner's trial counsel either requested a cautionary instruction or impeached Officer Correa, the outcome of the trial would have been different. Nor can it be said that these purported errors "worked to his actual and substantial disadvantage, infecting his trial with error of constitutional dimensions." Frady, 456 U.S. at 170. Under the totality of the circumstances described and evidence of record, Petitioner has not met the prejudice element necessary under Strickland or required to overcome his procedural default.
For the reasons stated herein, Petitioner's objections to the Report and Recommendation lack merit and are overruled. Consequently, the Report and Recommendation submitted is approved and adopted, and Petitioner's pro se petition for a writ of habeas corpus is denied. In addition, because reasonable jurists would not debate this Court's disposition of Petitioner's claims, a certificate of appealability is denied. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). An Order consistent with this Memorandum Opinion follows.
