RICHARD P. CONABOY, District Judge.
Here we consider Magistrate Judge Karoline Mehalchick's Report and Recommendation (Doc. 18) concerning Petitioner Allen Branthafer's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner filed this action on February 1, 2014, challenging his February 16, 2002, conviction for second degree murder, criminal conspiracy, burglary, robbery, and two counts of theft by unlawful taking in the Huntingdon County Court of Common Pleas. (Doc. 1 at 1; Doc. 18 at 1.) After reviewing Petitioner's asserted grounds for relief, the Magistrate Judge recommends dismissal of Petitioner's action. (Doc. 18 at 10.) For the reasons discussed below, we adopt the Magistrate Judge's Report and Recommendation as modified, deny the Petition and dismiss this case.
The incident leading to Petitioner's conviction took place on April 17, 2000. (Doc. 1-1 at 3.) According to Petitioner, the facts asserted by the prosecutor at trial were that Petitioner and two others, Thomas Duvall and Christopher Muckle, were in Muckle's apartment with Muckle's girlfriend, Crystal Frederick, drinking and doing drugs when the three men hatched a plan to burglarize a summer home located about thirty miles away. (Doc. 1-1 at 3.) Duvall got his sister, Tammy Beston, to give the three a ride to the remote location. (Id. at 4.) She dropped them off and returned home. (Id.) The three men broke into the summer residence, took rifles from the house when the burglar alarm went off and, because they were on foot, went in search of a vehicle. (Id.) They found a truck at a nearby hunting cabin. (Id. at 4.) While attempting to steal the truck, the three were confronted by the owner, Roy Ryen, who was shot and killed. (Id.)
They were eventually apprehended, and Duvall and Muckle identified Petitioner as the shooter. (Id. at 4-5.) They testified to this at Petitioner's capital murder trial and Ms. Beaston collaborated Petitioner's involvement. (Id.) Duvall and Muckle entered into a plea deal and agreed to testify against Petitioner. (Id.) After the prosecution rested, Petitioner's trial attorney, Thomas Dickey, called Thomas Skipper and Dustin Christoff who both testified that, while in jail, Duvall admitted to being the actual shooter. (Id. at 5.)
As noted above, the jury convicted Petitioner of second degree murder, criminal conspiracy, burglary, robbery, and two counts of theft by unlawful taking. He was sentenced to life in prison. (Doc. 1 at 1.)
Petitioner's conviction and sentence were affirmed on direct appeal to the Superior Court of Pennsylvania. (Doc. 18 at 1 (citing Commonwealth v. Branthafer, No. 1699 MDA 2003 (Pa. Super. Ct.)).) Petitioner filed a Petition for Allowance of Appeal, which was denied by the Supreme Court of Pennsylvania on December 22, 2004. (Doc. 18 at 1 (citing Commonwealth v. Branthafer, No. 876 MDA 2004 (Pa.)).)
On March 15, 2005, Petitioner filed a pro se PCRA petition in the Huntingdon County Court of Common Pleas. (Doc. 18 at 2.) In the Petition, he made nineteen claims of ineffectiveness against Mr. Dickey. (Doc. 10-1 at 4-5.) Shortly thereafter, the trial court appointed William Tressler as Petitioner's PCRA counsel. (Id.) Petitioner agreed to accept this representation after the court advised him at an evidentiary hearing that it was in his best interest to do so, and the evidentiary hearing was rescheduled. (Doc. 1-1 at 1.) Mr. Tressler amended the Petition on May 15, 2006, adding two additional claims of ineffectiveness. (Doc. 10-3 at 2-3.) Petitioner also filed a pro se motion to amend his petition asserting three additional claims of ineffectiveness, bringing the total number of inefectiveness claims involving Mr. Dickey to twenty-three. (See Doc. 10-2 at 2-3.)
Petitioner asserts that he explained to his PCRA counsel the reasons Mr. Dickey's performance was deficient, including that Mr. Dickey never met with Petitioner to discuss the case and during trial Mr Dickey placed petitioner at the crime scene and conceded guilt to the underlying felony against Petitioner's wishes. (Doc. 1-1 at 1.) Petitioner contends that he also told Mr. Tressler that the private investigator appointed at the trial level, James Ellis, informed Petitioner while he was in the Bedford County jail that several inmates sent Mr. Dickey statements claiming one of the state's main witnesses confessed to being the shooter and also confessed that Petitioner was not present at the crime scene. (Id.)
On May 15, 2006, a second evidentiary hearing was held. (Doc. 1-1.) Mr. Dickey had been subpoenaed by Mr. Tressler and "insinuated that he placed petitioner at the crime scene in an attempt to avoid the death penalty." (Doc. 1-1 at 2.) Petitioner asserts that Mr. Ellis testified to certain matters, including that Petitioner never placed himself at the crime scene. (Id.) Petitioner testified that he never consented to Mr. Dickey conceding guilt and Petitioner was never at the crime scene, "everything was explainable if Mr. Dickey had met with petitioner to discuss the case." (Id.)
On July 17, 2006, Petitioner filed another motion to proceed pro se, reportedly due to his dissatisfaction with Mr. Tressler's handling of the evidentiary hearing. (Doc. 1-1 at 2.) He also filed a motion for discovery that Mr. Dickey possessed. (Id.) The motions were granted and, according to Petitioner, the discovery which was turned over contained exculpatory statements from the two witnesses called at trial (Thomas Skipper and Dustin Christoff) which Mr. Dickey failed to elicit while the witnesses were on the stand. (Id.)
On March 20, 2008, Petitioner filed a pro se brief with attached exhibits and the court notified him that the filing was improper. (Doc. 1-1 at 2.) He sets out the following subsequent series of events:
(Doc. 1-1 at 2.)
Mr. Tressler filed a notice of appeal to the Superior Court on October 27, 2011. (Doc. 1-1 at 3.) On November 17, 2011, Mr. Tressler filed a Concise Statement of the Errors Complained of on Appeal in accordance with Pennsylvania Rule of Appellate Procedure 1925(b). (Doc. 1-1 at 3; Doc. 10-18 at 2-3.) He raised the following three issues:
(Doc. 10-18 at 2-3.)
In the Brief for Appellant filed in the Superior Court of Pennsylvania on January 12, 2012, Mr. Tressler identified one "Statement of Questions Involved": "Did the P.C.R.A. Court commit an error in law when it applied the Strickland performance-and-prejudice test?" (Doc. 10-19 at 6.)
By decision of December 24, 2012, the Superior Court concluded that the question Petitioner identified in his brief (his claim that "the PCRA court erred in applying the Strickland performance/prejudice test for ineffective assistance of counsel rather than the per se ineffective assistance of counsel rule found in United States v. Cronic" (Doc. 10-22 at 5)) was not raised before the PCRA court, either in the PCRA petition or in the 1925(b) statement and "[t]he failure to raise a claim in a 1925(b) statement results in the waiver of that claim on appeal." (Doc. 10-22 at 5-6 (citing Commonwealth v. Johnson, 51 A.3d 237, 247 (Pa. Super. Ct. 2012)).) The Superior Court further stated:
(Doc. 10-22 at 6.) The Superior Court noted in the margin that
(Doc. 10-22 at 5 n.8.)
On January 21, 2013, Mr. Tressler filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania which the Supreme Court denied on June 27, 2013. (Doc. 1-1 at 3.)
As noted above, Petitioner filed this action on February 1, 2014, challenging his February 16, 2002, conviction for second degree murder, criminal conspiracy, burglary, robbery, and two counts of theft by unlawful taking in the Huntingdon County Court of Common Pleas. (Doc. 1 at 1.) The Petition raises two grounds for relief: 1) appellate counsel, William Tressler, denied Petitioner effective assistance of counsel when he waived Petitioner's issues for review; and 2) trial counsel, Thomas Dickey, denied Petitioner effective assistance of counsel when he placed Petitioner at the crime scene and conceded guilt. (Doc. 1-1 at 1-5.)
On July 31, 2014, Respondents filed their Answer and Memorandum in Opposition to Petition for Writ of Habeas Corpus. (Doc. 9.) They asserted the Petition should be denied for the following reasons: the Petition fails to articulate cognizable claims (Doc. 9 at 15-17); assuming arguendo that the Petition is deemed to raise cognizable claims, Petitioner's claims are procedurally defaulted and ineligible for federal review (id. at 18-20); and Petitioner has not presented any basis upon which to excuse procedural default (id. at 21-31).
On September 14, 2014, Petitioner filed his reply brief (Doc. 14), arguing his claims support serious violations of constitutional guarantees and are not procedurally defaulted (id. at 14). Though difficult to follow, Petitioner seems to support his argument that his claims are not procedurally defaulted with the assertion that Martinez v. Ryan, 132 S.Ct. 1309 (2012), allows his ineffective assistance of PCRA counsel claim to provide cause for default and that prejudice is clearly established with claim two. (Doc. 14 at 17, 27.) Petitioner also maintains that claim two was fairly presented to the Superior Court and Supreme Court of Pennsylvania, asserting that Mr. Tressler presented the same issue in his brief to the Superior Court as he raised in his 1925(b) statement. (Doc. 14 at 28-29.)
Magistrate Judge Mehalchick recommended in her December 23, 2014, Report and Recommendation that the Petition be denied and dismissed with prejudice. (Doc. 18 at 10.) She concluded that Claim One is without merit because Petitioner does not have a constitutional right to effective assistance of PCRA counsel. (Doc. 18 at 4.) She also concluded that Claim Two for ineffective assistance of trial counsel was procedurally defaulted, and Petitioner did not provide a basis to excuse the default. (Id. at 6-10.)
Because objections to the Report and Recommendation were due by January 9, 2015, and had not been filed as of that date, the Court reviewed the case under the clear error standard and adopted the Report and Recommendation by Order of January 14, 2015. (Doc. 19.)
Petitioner's filing titled Petitioner's Objection(s) to Report and Recommendation (Doc. 20) was dated January 12, 2015, and docketed in this Court on January 22, 2015. Petitioner's specific objections will be set out in the following discussion. After allowing Petitioner an opportunity to present evidence that his objections were timely filed, Petitioner did so and the Court reopened the case on April 1, 2015. (Docs. 21, 22, 24.) On July 29, 2015, Respondents filed their response to Petitioner's objections (Doc. 33) after requesting and being granted extensions of time within which to do so (Docs. 27-32). On August 10, 2015, Petitioner filed a reply to the response. (Doc. 35.)
When a petitioner files objections to a magistrate judge's report and recommendation, the reviewing court conducts a de novo review of those portions of the report to which objection is made. 28 U.S.C. § 636(b). To warrant de novo review, the objections must be both timely and specific. Goney v. Clark, 749 F.3d 5, 6-7 (3d Cir. 1984). The court may accept, reject, or modify—in whole or in part—the findings made by the magistrate judge. 28 U.S.C. § 636(b)(1). Uncontested portions of the report are reviewed for clear error. Cruz v. Chater, 990 F.Supp. 375, 376-77 (M.D. Pa. 1998).
As noted by our Third Circuit Court of Appeals, the Supreme Court has often said habeas corpus is an "`extraordinary remedy' reserved for defendants who were `grievously wronged' by the criminal proceedings." Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)). The reasons for restraint exercised by federal courts in reviewing and granting habeas relief are many, including the considerations of comity and federalism. "The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power and their good-faith attempts to honor constitutional law." Engle v. Isaac, 456 U.S. 107, 128 (1982). Also, states have a recognized interest in the finality of convictions that have survived direct review within the state court system. Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).
A district court may entertain an application for a writ of habeas corpus filed by a person in state custody "only on the ground that he is in custody in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a). Absent special circumstances, the petition "shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the state." 28 U.S.C. § 2254(b). If an applicant has the right to raise the questions presented under any available state procedure, he shall not be deemed to have exhausted the remedies available. 28 U.S.C. § 2254(c). If a claim presented in a habeas § 2254 petition has been adjudicated on the merits in state court proceedings, habeas relief cannot be granted unless
28 U.S.C. § 2254(d). If the state court considers the merits in the alternative or in a summary fashion, the § 2254(d) deferential standard of review applies. Rolan v. Coleman, 680 F.3d 311, 319-21 (3d Cir. 2012) (agreeing with sister circuits that "an alternative merits determination to a procedural bar ruling is entitled to AEDPA deference); Chadwick v. Janecka, 312 F.3d 597, 605-07 (3d Cir. 2002) (AEDPA deferential standard applies when Pennsylvania Supreme Court rejected claim on the merits without explanation); Hunterson v. Sabato, 308 F.3d 236, 246 (3d Cir. 2002) ("summary adjudications are to be subjected to AEDPA standard of review"). "Where a lower state court opinion `represents the state courts' last reasoned opinion [on the relevant issue],' we `look through' the higher state court opinion and apply § 2254(d)'s standards to the `highest reasons opinion.'" Blystone v. Horn, 664 F.3d 397, 417 n.15 (3d Cir. 2011); see also Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008).
To exhaust state court remedies, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review procedures."
The petitioner bears the burden of proving exhaustion of all available state remedies. Bronshtein, 404 F.3d at 725 (citing Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993)).
"When a claim is not exhausted because it has not been `fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is `an absence of available State corrective process.'" McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Claims deemed exhausted because of a state procedural bar are procedurally defaulted. See, e.g., Lines, 208 F.3d at 159-60 (citing McCandless, 172 F.3d at 260). The district court then analyzes the claims under the procedural default doctrine. Id.; see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). Our Circuit Court has explained that
Rolan, 680 F.3d at 317.
When a state court does not review a claim based on a state procedural rule, the procedural bar applies "only when the state rule is `independent of the federal question [presented] and adequate to support the judgment.'" Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007) (citing Gray v. Netherland, 518 U.S. 152 (1996), and Coleman v. Thompson, 501 U.S. 722 (1991)). The requirements of independence and adequacy are distinct. Leyva, 504 F.3d at 365 (citing Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004)). A rule is "independent" if it is not dependent on any federal constitutional question, but "[a] state procedural ground will not bar federal habeas relief if the state law ground is `so interwoven with federal law' that it can not be said to be independent of the merits of a petitioner's federal claims." Johnson, 392 F.3d at 557. A rule is "adequate" if "`it was firmly established, readily ascertainable, and regularly followed at the time of the purported default.'" Leyva, 504 F.3d at 366 (quoting Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001)). Pertinent considerations include whether: "`(1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions.'" Id. (quoting Jacobs v. Horn, 395 F.3d 92, 117 (3d Cir. 2005)).
Ordinarily, the "adequacy" of the state procedural rule does not include an inquiry into whether the state erroneously applied its own rule in a particular case—"courts have repeatedly counseled [this] is not a cognizable claim on habeas." Tillery v. Horn, 142 F. App'x 66, 68 (3d Cir. 2005) (not precedential) (concluding petitioner conflated "concepts of adequacy and independence of state procedural rule with the correctness of the state court's application of its own law") (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1980) ("[F]ederal habeas corpus relief does not lie for errors of state law.")). Reviewing a § 2254 petition, a federal court "ordinarily may not second guess a state court's rejection of a claim on the basis of an independent and adequate state procedural rule." Logan v. Gelb, 790 F.3d 65, 70 (1
Branch, 2009 WL 1089560, at *8. Branch concluded that absent the petitioner's showing that the Superior Court's ruling amounts to violation of federal law, the claims are not cognizable on habeas review. Id. Despite these general rules, a reviewing court must keep in mind that there are "`exceptional circumstances in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.'" Rolan, 680 F.3d at 317 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)).
Under the procedural default doctrine, a district court does not reach the merits of a defaulted claim unless the petitioner can show "cause and prejudice" or that a "fundamental miscarriage of justice" will result if the court does not consider the merits. Coleman, 501 U.S. at 731. In order to show "cause and prejudice" sufficient to satisfy a state court default, a petitioner must show the "cause" for his default and "prejudice" attributable thereto. Werts, 228 F.3d at 192 (citing Harris v. Reed, 489 U.S. 255 (1989)). "[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). By way of example the Court added that "a showing that the factual or legal basis for a claim was not reasonably available to counsel or that some interference by officials made compliance impracticable, would constitute cause for this standard." Id. (internal citations and quotations omitted). Under the "prejudice prong," a petitioner has the burden of showing "not merely that the errors at his 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." United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494; Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008).
To show a "fundamental miscarriage of justice," a petitioner must establish that "a constitutional violation has probably resulted in the conviction of one who is actually innocent."
If a petitioner can meet the "cause and prejudice" or "fundamental miscarriage of justice" standard, his default will be excused and the court may review the merits of the claim presented. Id.
Petitioner specifically raises the following objections to Magistrate Judge Mehalchick's Report and Recommendation (Doc. 20): 1) the factual and legal substance of Petitioner's claim that trial counsel's decision to concede guilt without Petitioner's consent and against his wishes substantially undermined rights afforded by the United States Constitution was technically presented fairly for review (Doc. 20 at 1); 2) PCRA counsel was obligated to advance issues for review on appeal (id. at 3); and 3) denial of review of the PCRA Court's decision to deny ineffective assistance of counsel claim would be a fundamental miscarriage of justice (id. at 7).
A review of Petitioner's filings indicates that Petitioner's first and third objections relate to his second ground for relief, i.e., that trial counsel denied him effective assistance of counsel by placing him at the crime scene and conceding guilt (Doc. 1-1 at 3), and the second objection relates to his first ground for relief, i.e., that appellate counsel denied petitioner effective assistance of counsel when he waived Petitioner's issues for review (Doc. 1-1 at 1).
Petitioner's objection related to his first ground for relief is difficult to follow and appears to conflate ineffective assistance of PCRA initial review counsel, ineffective assistance of PCRA appellate counsel, and PCRA counsel errors providing "cause" for procedural default. (See Doc. 20 at 3-7.) To the extent Petitioner objects to Magistrate Judge Mehalchick's conclusion that Petitioner's ineffective assistance of PCRA counsel claim should be denied (Doc. 18 at 4), his objection is without merit. We agree with Magistrate Judge Mehalchick that a freestanding claim of ineffective assistance of PCRA counsel is not cognizable in a federal habeas proceeding. (Id. (citing 28 U.S.C. § 2254(I); Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987); Coleman v. Thompson, 501 U.S. 722, 755 (1991)).) Therefore, Petitioner's first ground for relief is properly denied. Petitioner's assertion that PCRA counsel's error was cause for the waiver of claims on PCRA review and the Magistrate Judge too narrowly applied law relevant to the waiver issue (Doc. 20 at 6-7) will be addressed in the discussion of Petitioner's second ground for relief.
The two objections specifically articulated regarding this ground for relief are that Petitioner fairly presented the claim to State courts (Doc. 20 at 1) and denial of review of this claim would be a fundamental miscarriage of justice (id. at 7).
Petitioner asserts that Magistrate Judge Mehalchick erred in determining that he had not fairly presented his claim that trial counsel was ineffective for deciding to concede Petitioner's guilt against his wishes. (Doc. 20 at 1.) Because "fairly presented" means the factual and legal basis of a claim must have been presented in state courts, see, e.g, Rolan, 680 F.3d at 317, and because the legal standard asserted and considered is at the heart of Petitioner's objection, I begin our discussion with the basic standards governing a Sixth Amendment ineffective assistance of counsel claim.
"The governing standard for ineffective-assistance-of-counsel claims emanates from the seminal decision in Strickland v. Washington, 466 U.S. 668 (1984)." Branch v. Sweeney, 758 F.3d 226, 233 (3d Cir. 2014). Strickland set out a two-prong test: a petitioner must demonstrate "(1) that counsel's performance was deficient, that is, fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced his client."
In United States v. Cronic, 466 U.S. 648 (1984), a case decided the same day as Strickland, the Court identified a narrow exception to the application of Strickland's prejudice requirement. Noting that there are "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified," the Court concluded that when such circumstances are present, "a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." 466 U.S. at 658, 659 (citations omitted). This presumption of prejudice is sometimes referred to as "per se ineffective assistance of counsel." See, e.g., Thomas v. Horn, 750 F.3d 105, 113 n.3 (3d Cir. 2009). Davenport v. Diguglielmo, 215 F. App'x 175 (3d Cir. 2007) (not precedential), identified three situations in which courts should apply the Cronic presumed prejudice standard. Id. at 182 (citing Cronic, 466 U.S. 648; Bell v. Cone, 535 U.S. 685, 697 (2002)).
215 F. App'x at 182. In the second situation, "Bell held if counsel only fails to challenge the prosecutions's case at specific points, to further a reasonable trial strategy, and not in its entirety, then Cronic does not apply. Id. (citing Bell, 535 U.S. at 697; Haynes v. Cain, 298 F.3d 375, 380-81 (5
Looking now to whether Petitioner fairly presented to State courts the ineffective assistance of counsel claim he asserts in his § 2254 Petition, I must first determine the contours of the claim raised in this Court. Respondents characterize this claim as Petitioner "alleging trial counsel's ineffectiveness with regard to his closing argument under the Strickland standard." (Doc. 9 at 20.) Although Strickland is the common legal basis for an ineffective assistance of counsel claim, here I cannot assume this is the basis for the claim raised without examining Petitioner's filings in this Court.
In his § 2254 Petition, Petitioner identifies his second ground for relief as follows: "Trial counsel denied petitioner effective assistance of counsel when he placed petitioner at the crime scene and conceded guilt." (Doc. 1-1 at 3.) Petitioner provides two and one-half pages of "supporting facts." (Id. at 3-5.) He does not identify any legal standard specifically or identify how his claim satisfies the elements of an ineffective assistance of counsel claim. (See id.) This is not a deficiency in his pleading in that the § 2254 petition form advises the petitioner to supply facts supporting the ground on which he claims he is being held in violation of the Constitution, laws or treaties of the United States but not to argue or cite law. (See, e.g., Doc. 1 at 5.) In Petitioner's Response to Respondents [sic] Untimely Answer to Petition for Writ of Habeas Corpus (Doc. 14), Petitioner argues that prejudice should be presumed in his case and he specifically cites United States v. Cronic, 466 U.S. 648, 658-59 (1984), in support of his assertion.
With the objection now considered, Petitioner argues that he has consistently asserted that the Cronic standard should be applied to the concession of guilt issue, citing specifically his brief to the Superior Court and his May 13, 2011, brief filed in the PCRA court. (Doc. 20 at 1-2.) In support of his argument that he fairly presented his ineffective assistance of counsel claim in Cronic terms, Petitioner also points to the facts that the PCRA court cited the Cronic rule in its decision, Respondents recognized Petitioner's Cronic argument in their appellate brief, and the Superior Court addressed the merits of his Cronic claim in its decision. (Doc. 20 at 1-2; Doc. 35 at 42.) Petitioner also argues that he could not have claimed the PCRA court erred in applying the wrong ineffectiveness standard before it issued its decision. (Doc. 20 at 2.) In Petitioner's Reply to Respondents' Response, Petitioner asserts that "[t]rial counsel's actions in the instant case, must trigger the presumption of prejudice under the Cronic standard of review." (Doc. 35 at 21.)
I conclude that Petitioner fairly presented his claim before us now, i.e., that he was denied effective assistance of counsel based on trial counsel's placing him at the crime concession of guilt at closing argument and that the claim should be judged on the pro se standard articulated in Cronic. The conclusion is based on several considerations. First, Petitioner (who filed his PCRA petition pro se and at times proceeded pro se in the six years his petition was pending before the PCRA court (see Doc. 9 at 7-11)) argued his ineffective assistance of counsel claim based on trial counsel's concession of guilt in terms of per se ineffectiveness: in his final brief to the PCRA court on May 13, 2011, Petitioner argues that "[a] lawyer who informs the jury that there is no reasonable doubt that his client committed the predicated crime to felony murder has utterly failed to `subject the prosecution's case to meaningful adversarial' scrutiny. United States v. Swanson, 943 F.2d 1070, 1074 (9
Having determined that Petitioner fairly presented his ineffective assistance of trial counsel claim to the State courts, I must next consider whether the procedural default doctrine applies in that the Superior Court did not decide Petitioner's claim on the merits but rather based on asserted violations of state procedural rules. As set out above, procedural default occurs "when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule." Rolan, 680 F.3d at 317.
Here the procedural rules upon which the Superior Court determined that Petitioner had waived his per se ineffective assistance of counsel claim are Pennsylvania Rules of Appellate Procedure 302(a) and 1925(b). (Doc. 10-22 at 5-6.) Therefore, I look to see if these rules are "independent and adequate." The Supreme Court has "pointed out that the adequate and independent state ground doctrine applies whenever the state court relies upon such an adequate and independent state ground, even when it goes on to address the federal claim in an alternative holding."
The Superior Court stated that
(Doc. 10-22 at 5-6.)
Rule 1925(b) provides the following:
Pa. R. App. P. 1925(b). Subsection (b)(4) also provides that
Pa. R. App. P. 1925(b)(4).
Though the Superior Court did not provide detailed reasons for its waiver determination, Petitioner's 1925(b) statement identified three bases upon which the PCRA court erred—all related to ineffective assistance of trial counsel and none indicating that the error was that the PCRA court applied the wrong standard to the claim which was the only basis of error presented in Petitioner's brief to the Superior Court. (See Doc. 10-18 at 2-3; Doc. 10-19.) Thus, arguably Petitioner did not "concisely identify each ruling or error" that he intended to challenge "with sufficient detail to identify all pertinent issues for the judge." Pa. R. App. P. 1925(b)(4)(v).
The Pennsylvania Superior Court's finding of waiver under Rule 1925(b) has been found to be an adequate basis to invoke the procedural default doctrine. Buck v. Colleran, 115 F. App'x 526, 527-28 (3d Cir. 2004) (not precedential); Sidberry v. Fisher, Civ. A. No. 11-888, 2015 WL 3866276, at *16 (W.D. Pa. June 23, 2015) (listing cases) ("Waiver of a claim for failure to comply with the requirements of Pa. R.A.P. 1925(b) and identify all issues to be reviewed on appeal has been found to be an adequate and independent ground sufficient to invoke the procedural default doctrine.")
The Superior Court alternatively cited Pennsylvania Rule of Appellate Procedure 302(a) (Doc. 10-22 at 6) which states that "issues not raised in the lower court are waived and cannot be raised for the first time on appeal." As discussed above, Petitioner did not claim the Cronic rule was applicable in his petition (see Docs. 10-1, 10-2, 10-3, 10-6); he did, however, claim it was applicable to his closing argument concession of guilt ineffective assistance claim in his May 13, 2011, brief to the PCRA court (Doc. 10-14 at 9, 14).
Rule 302(a) has been found to be an independent and adequate state ground for denying habeas relief. Thomas v. Sec'y, Pennsylvania Dep't of Corrections, 495 F. App'x 200, 206 (3d Cir. 2012) (not precedential); Tai-Nan v. Wilson, 366 F. App'x 256, 261 (3d Cir. 2009); Troutman v. Overmyer, Civ. A. No. 2:14-cv-1592, 2015 WL 1808640, at *12 (E.D. Pa. Apr. 21, 2015) (listing cases) (Rule 302(a) "and similar state procedural waiver rules," have been found to be adequate and independent state rules for purposes of procedural default).
Although Petitioner asserts that the Superior Court incorrectly concluded that he waived his closing argument ineffective assistance of counsel Cronic claim, this is clearly an attack on the State court's state law ruling. Therefore, absent a showing that the Superior Court's ruling amounts to a violation of federal law or presents an "exceptional circumstance," the conclusion that the grounds asserted for the decision are "adequate" is unaffected. See Rolan, 680 F.3d at 317; Branch, 2009 WL 1089560, at *8. Because Petitioner has not made such a showing, Pennsylvania Rules of Appellate Procedure 302(a) and 1925(b) are adequate grounds for the Superior Court's waiver ruling.
Having found that the State court's judgment was based on independent and adequate procedural rules, the procedural default doctrine applies to Petitioner's claim and I only reach the merits of his claim if he shows cause for the default and resulting prejudice or a fundamental miscarriage of justice will result if the court does not consider the merits. Coleman, 501 U.S. at 731.
Petitioner points to PCRA counsel's ineffectiveness as cause for the default, asserting that Martinez v. Ryan, 132 S.Ct. 1309 (2012), should apply to his case. (Doc. 20 at 6-7.) Martinez held that "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." 132 S. Ct. at 1320. Referring to its holding as "a narrow exception" to an unqualified statement made in Coleman, the Court explained the basis for its decision: "To protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it is necessary to modify the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." Id. at 1315. As discussed by Magistrate Judge Mehalchick, the Third Circuit has determined that Martinez applies in Pennsylvania. (Doc. 18 at 9 (citing Cox v. Horn, 757 F.3d 113, 124 n.8 (3d Cir. 2014)).) She also correctly concluded that under Martinez procedural default may only be excused when caused by ineffective assistance of counsel during the initial PCRA proceedings; it does not apply to claims of ineffective assistance of counsel during appellate collateral proceedings. (Doc. 18 at 9-10.) Our Circuit Court's recent decision in Norris v. Brooks, 794 F.3d 401 (3d Cir. 2015), confirmed the limited application of Martinez: "Most importantly, the Court stated that the exception applies only to attorney error in initial-review collateral proceedings, not appeals from those proceedings." 794 F.3d at 404 (citing Martinez, 132 S. Ct. at 1320).
Attorney William Tressler was Petitioner's counsel during initial review and appellate PCRA proceedings. Judge Stewart Kurtz, presiding over Petitioner's collateral proceedings in the Court of Common Pleas of Huntingdon County, issued his Order and Opinion on September 28, 2011, denying Petitioner's PCRA petition. (Doc. 10-17.) On October 26, 2011, Mr. Tressler was appointed for Mr. Branthafer to prosecute his appeal, and Mr. Tressler filed the Notice of Appeal on October 27, 2011.
As with many aspects of this case, the waters are muddied by less than lucid presentation of issues in the PCRA court and the Superior Court's limited explanation of its procedural findings. The Superior Court's reliance on Rules 302(a) and 1925(b) means that Petitioner's Cronic claim was first waived by PCRA counsel because it was not raised in a petition before the PCRA court and it was again waived by appellate counsel when it was not identified in the 1925(b) statement. Because I am presented with a Superior Court opinion that could support attorney error of PCRA initial review counsel and PCRA appellate counsel, the way forward is not clear. At the appellate level, Mr. Wheeler, functioning as appellate counsel, could not have saved his error of not sufficiently raising a Cronic claim when he was functioning as PCRA counsel, i.e., it was too late to go back and amend the petitions and briefs previously filed. Therefore, even if Mr. Wheeler had included a Cronic claim in his 1925(b) statement, the Cronic claim would have been waived pursuant to Rule 302(a). In this scenario, default was caused by PCRA counsel on initial review.
Where a petitioner claims PCRA initial review counsel caused the default of his underlying ineffective assistance of counsel claim, Martinez requires that the prisoner show that counsel in the collateral proceeding was ineffective under the standards of Strickland. Martinez, 132 S. Ct. at 1318 (citing Strickland, 466 U.S. 668). To overcome the default, Martinez also requires that the "prisoner demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Our Circuit Court has stated that, by citing Miller-El, the Court suggested that courts should apply the standard for issuance of a certificate of appealability to determine what constitutes a "substantial" claim. Jones v. Pa. Bd. of Probation and Parole, 492 F. App'x 242, 244-45 (3d Cir. 2012) (not precedential). Under the standard announced in Miller-El, "a petitioner must `show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The determination requires an overview, not full consideration of the factual and legal bases of the claims. Id.
Petitioner cannot show that his underlying ineffective assistance of counsel claim (that his trial counsel was per se ineffective pursuant to Cronic because he placed him at the crime scene and conceded guilt during closing argument) has merit because Strickland, not Cronic, has been held to be the governing standard where counsel concedes guilt in a capital case. Florida v. Nixon, 543 U.S. 175, 198-91 (2004); Davenport v. Diguglielmo, 215 F. App'x 175, 182 (3d Cir. 2007). Although he attempts to do so (see, e.g., Doc. 14 at 25-26), Petitioner has failed to distinguish his case in any meaningful way.
Because Petitioner has not presented a substantial claim of ineffectiveness of trial counsel based on trial counsel's closing argument, the narrow exception to the Coleman rule carved out by Martinez would not provide cause for the default in this case.
Having found that for Martinez purposes that Petitioner has not presented a "substantial claim" of ineffective assistance of trial counsel based on counsel's asserted closing argument errors, further analysis is somewhat academic. However, I will address Petitioner's third objection in the interest of completeness.
Petitioner asserts that "Denial of Review of the PCRA Court's decision to deny ineffective assistance of trial counsel would be a Fundamental Miscarriage of Justice." (Doc. 20 at 7.) The text following this heading is rambling but refers mainly to his claim that trial counsel was ineffective for placing him at the scene and conceding guilt during his closing argument. (Doc. 20 at 7-10; Doc. 1-1 at 3.)
As set out above, procedural default may also be excused, allowing the Court to reach the merits of the procedurally defaulted claim, if a petitioner can show a "fundamental miscarriage of justice." Schlup, 513 U.S. at 326. As explained in Goldblum, a petitioner
510 F.3d at 225. This is a two-step inquiry which requires first that the court "decide whether the petitioner has presented new reliable evidence not presented at trial," and second, if a petitioner "puts forth new evidence not considered by the jury, a court asks whether it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Goldblum, 510 F.3d at 225 (internal quotations omitted). Schlup noted that "new reliable evidence" could be "excuplatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." 513 U.S. at 324.
In his Petition, Petitioner asserted that he "testified at the evidentiary hearing that he was not present at the crime scene and never participated in the murder whatsoever." (Doc. 1-1 at 5.) In his responsive filing to Respondents' answer, Petitioner states that he "clearly established actual prejudice with claim two, . . . and if petitioner loses forever such an issue . . . would absolutely be a fundamental miscarriage of justice." (Doc. 14 at 27 (citing Coleman, 501 U.S. at 746; Schlup, 513 U.S. at 314).) With his objection, Petitioner does not discuss or attempt to show he has made the requisite showing. (See Doc. 20 at 7-10.)
Petitioner's "fundamental miscarriage of justice" argument fails because he has not presented "new reliable evidence"—he presents no exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence. His alibi is not supported by this type of evidence and the alibi is contradicted by information given to Ohio officers.
Because Petitioner has not made the requisite fundamental miscarriage of justice showing, procedural default cannot be excused on this basis.
For the reasons discussed above, we concur with Magistrate Judge Mehalchick that this Petitioner is properly denied and there is no basis for the issuance of a certificate of appealability. (See Doc. 18 at 10.) We adopt the Report and Recommendation as modified. An appropriate Order is filed simultaneously with this Memorandum.
The Court's discussion focuses on Petitioner's stated objections and considers Respondents' arguments appropriately.
I further note that Petitioner cites Coleman v. Thompson, 501 U.S. 722, 746 (1991), in support of his claim that he "established actual prejudice with claim two." (Doc. 14 at 27.) Because the citation to Coleman relates to the Court's discussion of cause and prejudice under the procedural default doctrine, I conclude Petitioner's reference to "prejudice" is not made in the context of the second (prejudice) prong of the Strickland standard, but rather in the context of the second prong of the "cause and prejudice" basis for excusing procedural default.
Despite the general rule that the "adequate" inquiry does not encompass a determination regarding the correctness of the state court decision, see, e.g., Tillery, 142 F. App'x at 68, on occasion the Third Circuit Court appears to have considered the correctness of the State court's application of Rule 1925(b), see, e.g., Buck, 115 F. App'x at 528 (determining procedural default doctrine applied after stating "we see no error in the Pennsylvania Superior Court judgment that petitioner's two Fifth Amendment issues were waived" pursuant to Rule 1925(b)) (emphasis added). Adequacy of the state procedural rule may also be questioned, as in Rolan, based on the "`exhorbitant application of a generally sound rule.'" 680 F.3d at 317-18 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)) (concluding petitioner who had "substantially, if imperfectly" complied with the requirements of Rule 1925(b) had not procedurally defaulted claim at issue).
Despite these observations, as concluded in the text, Petitioner provides no basis to conclude that his case falls into the Rolan/Lee exceptional category or the situation discussed in Branch. In the absence of such a showing, there is no reason in this case to intrude on the considerations of comity and finality which underpin § 2254 habeas review.
Although Attorney Wheeler's advocacy during initial PCRA review could be considered shoddy, it had a greater impact than the shoddy advocacy in Norris: in Norris, the Superior Court concluded the pertinent issue had been waived only because it was not included in the appellate brief; the Superior Court in this case rejected the pertinent claim in part because the court determined it was waived when not presented to the PRCA court. Therefore, Norris's rejection of the petitioner's argument does not indicate that a similar result is warranted here.
Given that Petitioner acknowledges in his Petition that three witnesses placed Petitioner at the crime scene and their testimony was not contradicted at trial (Doc. 1-1 at 3-5), full consideration of the factual and legal basis of Petitioner's closing argument ineffective assistance of counsel claim is not necessary to conclude that a substantial claim of prejudice based on closing argument error is not supported. This evidence alone indicates there was not a reasonable probability that the outcome of the trial would have been different but/for Mr. Dickey's placing Petitioner at the crime scene and conceding his guilt to burglary. Cedeno v. United States, 455 F. App'x 241, 244 (3d Cir. 2011) (not precedential) (a petitioner must show "that his counsel's deficiencies caused prejudice such that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'") (quoting Strickland, 466 U.S. at 694).
Petitioner's inferences that he was prejudiced by Mr. Dickey's performance are unavailing. Petitioner infers prejudice with his argument that if counsel "had sought an outright acquittal, like petitioner requested counsel to do when he was hired, the outcome of the trial would have been different." (Doc. 14 at 25.) Petitioner adds that
(Doc. 14 at 25.) In his Petition, Petitioner also points to statements found during (post-trial) discovery in which Dustin Christoff and Timothy Skipper, two witnesses who testified at trial that Duvall admitted to them that he was the shooter, also stated that Duvall told them Petitioner was not present at the crime— information not elicited at trial. (Doc. 1-1 at 5.) Petitioner notes that Mr. Dickey had these statements before the trial and they were not admitted into evidence at the PCRA level because PCRA counsel failed to subpoena the authors of the documents. (Id.)
The problem is that Petitioner's cited omissions have not been presented to this Court as bases for trial counsel's ineffectiveness. While Petitioner now asserts that his trial counsel did not present evidence which would have supported an argument that he was not at the scene, a claim of ineffectiveness for failing to present exculpatory witness testimony was not raised before the Superior Court nor is it before us now. Similarly, a claim of ineffectiveness based on Petitioner's assertion that more thorough investigation and presentation of an alibi at trial could have resulted in a different outcome is not before us. Although Petitioner states he "will demonstrate cumulative error to show counsel completely denied Petitioner assistance" (Doc. 14 at 14; Doc. 35 at 21), Petitioner did not raise a claim of cumulative error either in State court or in the Petition before this Court. Collins, 742 F.3d at 543, ("a claim of cumulative error must be presented for state courts before it may provide a basis for habeas relief").
