ROBERT D. MARIANI, District Judge.
Petitioner Keyon Freeland ("Freeland"), an inmate currently confined at the Rockview State Correctional Institution in Bellefonte, Pennsylvania, filed the instant pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The matter is proceeding via an amended petition. (Doc. 8). Freeland challenges his conviction and sentence from the York County Court of Common Pleas. (Id.). For the reasons discussed below, the Court will deny the amended habeas petition.
The factual background of this case has been aptly summarized by the Pennsylvania Superior Court as follows:
(Doc. 16-1, pp. 315-317, Commonwealth v. Freeland, No. 553 MDA 2012, unpublished memorandum (Pa. Super. filed August 23, 2012) (footnotes omitted)).
On January 19, 2011, Freeland was charged with two counts of criminal attempt homicide, two counts of aggravated assault, and one count of persons not to possess a firearm. See electronic docket sheet for Commonwealth v. Freeland, No. CP-67-CR-0001946-2011 (York Cnty. Ct. Com. Pl.), found at https://ujsportal.pacourts.us. Although represented by counsel, Freeland filed his own omnibus pre-trial motions, including a motion for substitution of counsel. (Doc. 16-1, pp. 7-10, Motion for Substitution of Counsel). On September 26, 2011, Judge Richard K. Renn of the York County Court of Common Pleas scheduled a hearing on Freeland's motion for substitution of counsel for immediately prior to the commencement of trial. (Doc. 16-1, p. 11, Order Scheduling Hearing). Although scheduled, the hearing on Freeland's motion did not occur.
A jury trial was held from December 6, 2011 through December 8, 2011, in the Court of Common Pleas of York County. (See Commonwealth v. Freeland, No. CP-67-CR-0001946-2011; see also Doc. 16-1, pp. 12-292, N.T. Jury Trial, 12/6/11-12/8/11). On December 8, 2011, the jury convicted Freeland of attempted homicide of Maxfield, aggravated assault (causing serious bodily injury) of Maxfield, and illegal possession of a firearm. (Doc. 16-1, pp. 315-24, Commonwealth v. Freeland, No. 553 MDA 2012). The jury acquitted Freeland of the attempted homicide of Barnes, and aggravated assault (serious bodily injury) of Barnes. (See id.). On February 17, 2012, the court sentenced Freeland to an aggregate term of fourteen to twenty-eight years' incarceration in a state correctional institution. (Doc. 16-1, pp. 285-90, N.T. Sentencing, 2/17/12). Freeland filed a post-sentence motion, which the trial court denied. (See Doc. 16-1, p. 317, Commonwealth v. Freeland, No. 553 MDA 2012).
Freeland pursued direct appeal proceedings challenging the sufficiency of the evidence for attempted homicide, the publication to the jury of the red-tinged color photo from the photo array lineup that he claimed depicted injuries to his face, and the trial court's admission of the police video of the car chase and flight on foot. See Commonwealth v. Freeland, 106 A.3d 768, 773 (Pa. Super. 2014). On August 23, 2012, the Pennsylvania Superior Court affirmed the judgment of sentence, rejecting all three claims. (See Doc. 16-1, pp. 315-24, Commonwealth v. Freeland, No. 553 MDA 2012). Freeland did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. (See Doc. 8, p. 2).
On March 4, 2013, Freeland filed a pro se petition for post-conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (Doc. 16-1, pp. 325-332, PCRA Petition). The PCRA court appointed counsel, who filed an amended petition on April 24, 2013. See Commonwealth v. Freeland, 106 A.3d at 773. That counsel, and other counsel, were subsequently permitted to withdraw. See id. The PCRA eventually appointed Attorney Scott A. McCabe, who filed an amended petition on August 16, 2013. (Doc. 16-1, pp. 344-47, Amended PCRA Petition). On September 25, 2013, a hearing was held and the PCRA court denied relief from the bench. (Doc. 16-1, pp. 349-446, N.T. PCRA Hearing, 9/25/13). The PCRA court subsequently issued a written order denying relief, which also explained the reasons for its denial. See Commonwealth v. Freeland, 106 A.3d at 773.
On October 3, 2013, counsel filed a timely notice of appeal. (Doc. 16-1, p. 448, Notice of Appeal). On March 13, 2014, the Superior Court remanded the appeal back to the PCRA court for a determination of whether counsel had abandoned Freeland by failing to file a brief. (Doc. 16-1, p. 477, Order, per curiam, 3/13/14). On remand, the PCRA court held a hearing and found that counsel had drafted a Turner/Finley
On April 4, 2014, Attorney McCabe filed a petition to withdraw with the Superior Court, attaching his Turner/Finley "no merit" letter, with notice to Freeland that he had the right to proceed pro se or retain private counsel. See Commonwealth v. Freeland, 106 A.3d at 774. On April 29, 2014, Freeland filed an application for relief. See id. On May 2, 2014, he filed a pro se response to the Turner/Finley letter. See id. Freeland also requested an extension to file a "cross-appeal" in support of his opposition to counsel's petition to withdraw. See id. After being granted two extensions of time, Freeland filed a pro se brief in response to counsel's petition to withdraw. (Doc. 16-1, pp. 486-559, Pro Se Brief). On December 11, 2014, the Superior Court affirmed the decision of the PCRA court. (Doc. 16-1, pp. 596-624, Commonwealth v. Freeland, No. 1790 MDA 2013 (Pa. Super. filed December 11, 2014)). Specifically, the Superior Court granted counsel's petition to withdraw, finding that PCRA counsel fulfilled the mandates of Turner/Finley, the issues in the PCRA petition had no merit, and that Freeland's pro se response to counsel's Turner/Finley letter did not entitle him to relief. See id.
The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A habeas corpus petition pursuant to § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.
Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
A state prisoner exhausts state remedies by giving the "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Respect for the state court system requires that the petitioner demonstrate that the claims in question have been "fairly presented to the state courts." Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). To "fairly present" a claim, a petitioner must present its "factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts). While the petitioner need not cite "book and verse" of the federal Constitution, Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), he must "give the State `the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" before presenting those claims here, Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard, 404 U.S. at 275, 92 S.Ct. 509).
In this case, Respondents contend that Freeland failed to properly exhaust his claims that trial counsel was ineffective for failing to request an instruction on prior bad acts, failing to object to statements made by Detective Clarkson, and failing to object to his alleged illegal sentence. (Doc. 16).
Once a court has determined that the exhaustion requirement is met and, therefore, that review on the merits of the issues presented in a habeas petition is warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). Section 2254(d) provides, in pertinent part, that an application for a writ of habeas corpus premised on a claim previously adjudicated on the merits in state court shall not be granted unless:
28 U.S.C. § 2254(d). To establish that the decision was contrary to federal law "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state court decision to be an unreasonable application of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id.
Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A petitioner may only rebut this presumption with clear and convincing evidence of the state court's error. Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, a habeas petitioner "must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).
Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F.Supp.2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316 (1979). "This provision essentially requires the district court to step into the shoes of an appellate tribunal, examining the record below to ascertain whether sufficient evidence existed to support the findings of fact material to the conviction." Breighner v. Chesney, 301 F.Supp.2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)
Freeland argues that the trial court violated his Fourteenth Amendment rights by failing to conduct a hearing on his motion for substitute counsel. Freeland presented this claim on post-conviction appeal, and the state courts denied it as waived and meritless. Accordingly, Freeland will only be entitled to relief if the state court decisions were either contrary to, or an unreasonable application of, clearly established federal law.
The PCRA court addressed this claim as follows:
(Doc. 16-1, pp. 462-63, PCRA Court's 1925(a) Statement).
The Pennsylvania Superior Court affirmed the PCRA court's judgment denying postconviction relief, addressed this claim as follows:
Commonwealth v. Freeland, 106 A.3d at 780 (emphasis in original).
The Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 S.Ct. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 S.Ct. 1461 (1938); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). "[T]he essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer he prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Consequently, the Sixth Amendment right to counsel does not guarantee a meaningful relationship between a defendant and counsel. Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). Additionally, although a defendant's right to counsel includes the right to counsel of one's choice, the "right to counsel of choice does not extend to defendants who require counsel to be appointed for them." United States v. Gonzalez-Lopez, 548 U.S. 140, 151, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). Thus, an indigent defendant requesting new counsel must show good cause to warrant such substitution. Determining if good cause exists for substitution of counsel is a factual inquiry, and the defendant must be given an opportunity to provide the court with the reason for his dissatisfaction. United States v. Welty, 674 F.2d 185, 190 (3d Cir. 1982).
Good cause for substitution of counsel is defined as a "conflict of interest, a complete breakdown of communication, or an irreconcilable conflict with the attorney." United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995). A disagreement between the defendant and defense counsel over legal strategy does not constitute good cause requiring substitution of counsel, nor does a defendant's unilateral decision not to cooperate with court appointed counsel. Id. at 1098-99; United States v. Gibbs, 190 F.3d 188, 207 n. 10 (3d Cir. 1999). A defendant's mere dissatisfaction with counsel also does not warrant substitution of counsel. See United States v. Moses, 58 F. App'x 549, 555 (3d Cir. 2003). If the trial court determines that good cause for substitution of counsel does not exist, then the court must "inform the defendant that he can either proceed with current counsel or represent himself." Goldberg, 67 F.3d at 1098.
The following state standard pertaining to substitution of counsel is clearly in line with prevailing federal law. Pennsylvania Rule of Criminal Procedure 122(C) provides "[a] motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons." Pa.R.Crim.P. 122(C). To satisfy this standard, a defendant must demonstrate he has an irreconcilable difference with counsel that precludes counsel from representing him. Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1150 (2000) (citing Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617, 619 (1976)). The decision whether to appoint new counsel lies within the trial court's sound discretion. Id. (citing Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462, 465 (1975)).
At the PCRA hearing, Freeland testified that he sought substitute counsel based on trial counsel's failure to file a suppression motion, failure to appeal an adverse Rule 600 decision prior to trial, and failure to discuss evidentiary issues with him sooner than he did. (Doc. 16-1, pp. 360-64, N.T. PCRA Hearing, 9/25/13). The state courts found that all of these reasons lacked merit, and that Freeland failed to establish good cause for substitution of counsel. Also at the PCRA hearing, trial counsel testified that he was aware of Freeland's pro se motion for substitute counsel, however, Freeland never told him that he wanted him removed from the case, and he did not remember the motion until his closing argument. (Doc. 16-1, pp. 398-400, N.T. PCRA Hearing, 9/25/13). Further, Freeland testified that nothing prevented him from reminding the Court that he had filed a motion for new counsel. (Doc. 16-1, pp. 389-90, 9/25/13). Freeland acknowledged that the trial judge asked if there were any outstanding matters prior to jury selection, to which Freeland did not respond or alert the trial judge of his outstanding motion for substitute counsel. (Id.).
Freeland's argument that his due process rights were violated when the trial court failed to appoint new counsel prior to trial is unavailing. First, Freeland waived this claim by failing to raise it prior to trial. Second, there is nothing in the state court record, or in Freeland's filings in this Court, indicating that his trial counsel had either an actual or apparent conflict. Indeed, Freeland specifically acknowledged that there was no conflict of interest. (Doc. 16-1, p. 361, N.T. PCRA Hearing, 9/25/13). Instead, it appears that Freeland's request for substitute counsel was simply due to perceived differences between himself and trial counsel. (Id.). Presented with what appears to be nothing more than Freeland's preference for different counsel, the Court concludes that the state court decisions were not contrary to clearly established federal law. Accordingly, the Court will deny this claim.
Freeland alleges ineffective assistance of counsel on the following grounds: (1) trial counsel failed to request an instruction on prior bad acts; (2) trial counsel failed to object to statements made by Detective Clarkson; (3) trial counsel failed to file a pre-trial motion to exclude the video evidence, and failed to object to the video evidence at trial; (4) trial counsel failed to request a jury instruction on consciousness of guilt; (5) trial counsel failed to request to reopen cross-examination of Ja'Quinn Barnes; (6) trial counsel failed to object to the sentence imposed by the trial court; and (7) PCRA counsel failed to raise substantial ineffective assistance of trial counsel claims. (Doc. 8).
The record reflects that Freeland failed to properly exhaust his claims that trial counsel was ineffective for failing to request an instruction on prior bad acts, failing to object to statements made by Detective Clarkson, failing to object to the video evidence, and failing to object to his sentence. The remainder of Freeland's ineffective assistance of counsel claims were addressed by the state courts on the merits and, therefore, are subject to AEDPA review.
The Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right to effective assistance of counsel also extends to the first appeal. Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004). In Strickland, the Supreme Court articulated a two-prong test in assessing whether a petitioner has been denied the effective assistance of counsel. Strickland, 466 U.S. at 687-88. A petitioner must demonstrate: (1) that his counsel's representation "fell below an objective standard of reasonableness" and (2) that such defective performance caused the petitioner prejudice. See id.
In evaluating the first prong of the Strickland test, the court must be "highly deferential" toward counsel's conduct. Id. at 689. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. ("It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."). "Strickland and its progeny make clear that counsel's strategic choices will not be second-guessed by post-hoc determinations that a different trial strategy would have fared better." Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006) (citing Strickland, 446 U.S. at 689). Notably, courts will not deem counsel ineffective for failing to raise a meritless argument. Strickland, 466 U.S. at 691; United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999).
To satisfy the prejudice prong, the petitioner must show that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Moreover, the petitioner must show that he or she had a reasonable likelihood of prevailing on the motion at issue, and having prevailed on the motion, it was also reasonably likely that the result of the trial would have been different. See Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005).
To prevail on a claim for ineffective assistance of counsel, a petitioner must satisfy both prongs of the Strickland test. Carpenter v. Vaughn, 296 F.3d 138, 149 (3d Cir. 2002). The inquiry may begin with either the deficient performance or prejudice prong, and the court is not required to consider the second prong of the test if the petitioner is unable to satisfy the first one. Strickland, 466 U.S. at 697.
Freeland argues that trial counsel was ineffective for failing to request an instruction on prior bad acts, and failing to object to statements made by Detective Clarkson. The record reflects that Freeland failed to raise either of these issues at the state court level. His failure to timely present these claims at the state level constitutes an independent and adequate state ground sufficient to support a procedural default of his claims. Barnhart v. Kyler, 318 F.Supp.2d 250 (M.D. Pa. 2004). The merits of Freeland's procedurally defaulted claims cannot be reviewed unless he demonstrates either cause for the procedural default and actual prejudice, or that a fundamental miscarriage of justice will result if the court does not review the claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Caswell v. Ryan, 953 F.2d 853, 861-62 (3d Cir. 1992). To demonstrate "cause" for a procedural default, he must point to some objective external factor which impeded his efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). "Prejudice" will be satisfied only if he can demonstrate that the outcome of the state proceeding was "unreliable or fundamentally unfair" as a result of a violation of federal law. Lockhart v. Fretwell, 506 U.S. 364, 366 (1993). Freeland fails to acknowledge his procedural default of these claims, and fails to allege any cause and prejudice to excuse it. (See Doc. 20). See Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that the petitioner's failure to allege cause for his default precluded federal habeas review of a defaulted claim). Nor is there any indication that a failure to review these claims will result in a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 327 (1995) (providing that "miscarriage of justice" exception requires petitioner to come forward with new evidence of actual innocence). Consequently, Freeland is precluded from pursuing federal habeas corpus relief with regard to these issues.
Furthermore, any attempt by Freeland to exhaust his state remedies at this time would be futile, because these claims are procedurally defaulted due to waiver of the claims and expiration of the PCRA statute of limitations. See 42 Pa. C.S.A. § 9544(b) ("For purposes of this subchapter, an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding"); 42 Pa. C.S.A. § 9545(b) ("Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final"). As such, Freeland is in procedural default for failing to comply with the state filing requirements.
Freeland next argues that trial counsel was ineffective for failing to file a pre-trial motion to exclude the video evidence, and failing to object to the video evidence at trial. The record reflects that Freeland waived his claim that trial counsel was ineffective in the way he handled the video evidence. On direct appeal, the Superior Court addressed this claim as follows:
(Doc. 16-1, pp. 322-23, Commonwealth v. Freeland, No. 553 MDA 2012).
As discussed supra, to demonstrate "cause" for a procedural default, the petitioner must show that "some objective factor external to the [petitioner's] defense impeded [his] efforts to comply with [a] procedural rule." Murray, 477 U.S. at 488. "Examples of external impediments which have been found to constitute cause in the procedural default context include `interference by officials,' `a showing that the factual or legal basis for a claim was not reasonably available to counsel,' and `ineffective assistance of counsel.'" Wise v. Fulcomer, 958 F.2d 30, 34 n.9 (3d Cir. 1992) (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)). Freeland appears to attempt to overcome his procedural default by arguing that any failure to obtain state court review of this claim was due to no fault of his own. (Doc. 20, p. 7). Freeland additionally posits that if trial counsel had objected to the video evidence, the state proceedings and the basis of his conviction would have been different. (Doc. 10, p. 40). However, this conclusory allegation fails to establish a sufficient showing of deficient performance, and thereby fails under the first prong of Strickland. Moreover, Freeland has failed to demonstrate how trial counsel's decision not to object to the video evidence prejudiced his case. This claim was aptly addressed by the Superior Court on direct appeal, wherein the Court found that the video evidence was relevant in that it established flight from the police and a consciousness of guilt regarding the crime at issue in the trial. (Doc. 16-1, pp. 322-23, Commonwealth v. Freeland, No. 553 MDA 2012). The Superior Court further noted that the probative value of the video outweighed the dangers of unfair prejudice, confusion of the issues, misleading the jury, or presenting cumulative evidence, and that the trial court did not err in permitting the jury to see the video of the police chase. (Id.). It is well-settled that trial counsel cannot be deemed ineffective for failing to raise a meritless issue. See Edrington v. Klopotoski, 2015 WL 999241, at *7 (M.D. Pa. 2015) (citing Hartey v. Vaughn, 186 F.3d 367, 372 (3d Cir. 1999)) ("[C]ounsel cannot be deemed ineffective for not pursuing a meritless claim"). Accordingly, Freeland has failed to show prejudice under the second prong of Strickland.
Consequently, Freeland has failed to identify justifiable cause to excuse his default, and this claim will be denied as procedurally defaulted.
Freeland next argues that trial counsel was ineffective for failing to request an instruction on consciousness of guilt. The PCRA court addressed this issue in its 1925(a) Statement in Support of its Decision and found that trial counsel did not render ineffective assistance of counsel by failing to request a jury instruction on consciousness of guilt. (Doc. 16-1, pp. 458-62, PCRA Court's 1925(a) Statement). At the PCRA hearing, trial counsel testified on direct and cross-examination as follows:
(Doc. 16-1, pp. 400-02, 407-09, N.T. PCRA Hearing, 9/25/13).
When presented with this claim, the PCRA court concluded that the claim lacked arguable merit and Freeland was not entitled to relief. (Doc. 16-1, pp. 458-62, PCRA Court's 1925(a) Statement). At the PCRA hearing, trial counsel articulated a sound and reasonable basis for not seeking jury instruction on consciousness of guilt. (Doc. 16-1, pp. 400-02, 407-09, N.T. PCRA Hearing, 9/25/13). Specifically, trial counsel testified that he could not think of an alternative, innocent explanation for Freeland's flight. (Id.). Freeland testified at the PCRA hearing that his contention was that he was fleeing the police because he was driving a stolen car without a license, not that he was fleeing the police because he shot Maxfield. (Doc. 16-1, pp. 371-74, N.T. PCRA Hearing, 9/25/13). However, trial counsel testified that his strategy was to acknowledge the video, and move on without drawing unnecessary attention to it. (Doc. 16-1, pp. 400-02, 407-09, N.T. PCRA Hearing, 9/25/13). His strategy was to focus on the time delay between the shooting and the date of video, arguing to the jury that it was not likely that a person would hold on to a gun he purportedly used in a shooting days earlier. (Id.).
In evaluating whether counsel's performance was deficient, the Court must defer to counsel's tactical decisions, avoid "the distorting effects of hindsight" and give counsel the benefit of a strong presumption of reasonableness. Strickland, 466 U.S. at 689. The Court finds that Freeland has not provided sufficient evidence to show that the representation by his trial counsel fell below an objective standard of reasonableness. Additionally, Freeland has not demonstrated that there was a reasonable probability that if his trial attorney had requested a jury instruction on consciousness of guilt, the result would have been different. As the Supreme Court has clarified, actions of counsel that "might be considered sound trial strategy" do not constitute ineffective assistance. Strickland, 466 U.S. at 689; see also Fahy v. Horn, 516 F.3d 169, 204 (3d Cir. 2008). Consequently, Freeland's argument that trial counsel was ineffective for failing to request a jury instruction on consciousness of guilt is without merit. The amended habeas petition will be denied on this ground.
Freeland next argues that trial counsel was ineffective for not requesting to reopen the cross-examination of Ja'Quinn Barnes. Similarly, in his PCRA petition, Freeland claimed that trial counsel was ineffective for not properly cross-examining Mr. Barnes. At the PCRA hearing, trial counsel testified as follows:
(Doc. 16-1, pp. 397-98, N.T. PCRA Hearing, 9/25/13).
When addressing Freeland's claim that trial counsel was ineffective for not requesting to reopen the cross-examination of Ja'Quinn Barnes, the PCRA court concluded that the claim lacked arguable merit and Freeland was not entitled to relief. (Doc. 16-1, pp. 458-62, PCRA Court's 1925(a) Statement). As outlined above, at the PCRA hearing, trial counsel articulated a sound and reasonable basis for not requesting to reopen the cross-examination of Ja'Quinn Barnes. (Doc. 16-1, pp. 397-98, N.T. PCRA Hearing, 9/25/13). Specifically, trial counsel testified that Barnes testified "awful[ly]" for the Commonwealth, his strategy was to highlight the more unbelievable parts of Barnes' testimony rather than highlight the inconsistencies, and he wanted to avoid a situation whereby Barnes could explain or rehabilitate his inconsistent statements. (Doc. 16-1, pp. 397-98, N.T. PCRA Hearing, 9/25/13). Further, he noted that some of Barnes' statements were inconsistent with the statements of the police officer, who trial counsel believed was a more credible witness. (Id.).
As stated supra, when evaluating whether counsel's performance was deficient, the Court must defer to counsel's tactical decisions, avoid "the distorting effects of hindsight" and give counsel the benefit of a strong presumption of reasonableness. Strickland, 466 U.S. at 689. The Court finds that Freeland has not provided sufficient evidence to show that the representation by his trial counsel fell below an objective standard of reasonableness. Additionally, Freeland has not demonstrated that there was a reasonable probability that if his trial attorney had reopened cross-examination of Barnes, the result would have been different. Consequently, Freeland's argument that trial counsel was ineffective for failing to request to reopen the cross-examination of Ja'Quinn Barnes is without merit. The amended habeas petition will be denied on this ground.
Freeland argues that his trial counsel rendered ineffective assistance of counsel for failing to object to his sentence. The record reflects that the sentence imposed was within the guideline range, and none of the sentences exceeded the statutory maximum. The record further reflects that Freeland failed to raise this claim at the state court level.
The Court finds that Freeland has procedurally defaulted this claim. Accordingly, he is not entitled to federal habeas review unless he can meet his burden of establishing "cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims would result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Harris, 489 U.S. at 260-63; Morris, 187 F.3d at 342. He cannot do so.
Notably, Freeland does not even acknowledge his procedural default, let alone allege cause and prejudice to excuse it. (See Doc. 20). For this reason alone, the default must stand. See Teague, 489 U.S. at 298 (holding that the petitioner's failure to allege cause for his default precluded federal habeas review of a defaulted claim). Further, he has not attempted to show that a miscarriage of justice would occur from a failure to consider the defaulted claim. See Schlup, 513 U.S. at 327 (providing that "miscarriage of justice" exception requires petitioner to come forward with new evidence of actual innocence). Because Freeland has not alleged, and cannot establish, cause and prejudice or a miscarriage of justice to excuse the default, federal review of this claim is unavailable.
Lastly, Freeland generally states that "during the petitioner's PCRA proceedings, appointed counsel failed to raise substantial ineffective assistance of trial counsel claims." (Doc. 8, p. 6). Freeland argues that the failure of PCRA counsel to advance certain ineffective assistance of trial counsel claims in his PCRA proceedings constitutes ineffective assistance of counsel. (Doc. 10, p. 30). The United States Supreme Court has recognized that, under certain circumstances, the procedural default of an ineffective assistance of trial counsel claim may be excused where the default was caused by ineffective assistance of counsel in post-conviction collateral proceedings. See Martinez v. Ryan, 566 U.S. 1, 6-18 (2012). Specifically, the Martinez Court held that:
Martinez, 566 U.S. at 17.
The Martinez Court limited its holding to cases where "under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding." Id. Shortly thereafter, the Supreme Court revisited its Martinez holding, extending it to apply not only to cases where state procedural law expressly prohibited ineffective assistance claims on direct appeal, but also where "state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal." Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013). The Third Circuit has subsequently examined Pennsylvania procedural law and found that Martinez applies in Pennsylvania. Cox v. Horn, 757 F.3d 113, 124 n.8 (3d Cir. 2014).
Freeland's claim of ineffective assistance of counsel at his collateral proceedings falls within the scope of the Martinez rule. Under Martinez, the failure of a federal habeas petitioner's counsel to raise a claim in an initial-review collateral proceeding can constitute cause if: (1) PCRA counsel's failure itself constituted ineffective assistance of counsel under Strickland, 466 U.S. at 687; and (2) the underlying ineffective assistance of trial counsel claim is "a substantial one." Martinez, 566 U.S. at 14. "Under Strickland, courts are precluded from finding that counsel was ineffective unless they find both that counsel's performance fell below an objectively unreasonable standard, and that the defendant was prejudiced by that performance." Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). A petitioner must overcome the strong presumption that his trial counsel's conduct fell "within the wide range of reasonable professional assistance" and that counsel "made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Even if a petitioner demonstrates that his attorney's performance fell below prevailing professional norms, habeas relief will only be available if he further demonstrates that this deficient performance prejudiced his defense. A petitioner must show that there is "reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The Court may deny an ineffective assistance of counsel claim solely upon a petitioner's failure to make a sufficient showing under either prong. Id. at 687, 697.
In the case at bar, Freeland fails to set forth any substantive claims regarding the ineffectiveness of PCRA counsel. (See Docs. 8, 10; see also Rule 2(c)(3) of the Rules Governing Habeas Corpus Cases, 28 U.S.C. § 2254 (a petitioner must "state the facts supporting each ground" specified in the petition)). Instead, Freeland sets forth conclusory statements that PCRA counsel was ineffective, and surmises that he "could be procedurally defaulted from raising certain claims of trial counsel's ineffectiveness" due to PCRA counsel's ineffectiveness. (Doc. 10, p. 30). However, as stated supra, the PCRA court and the Superior Court concluded that trial counsel was not deficient in his representation of Freeland, and this Court has found herein that there was no unreasonable determination of the facts or unreasonable application of clearly established federal law. Because Freeland's underlying ineffective assistance of trial counsel claims lack merit, any claims for relief under Martinez fail.
Notably, Freeland admitted to the prosecutor in the PCRA hearing that he shot at the victims. (See Doc. 16-1, pp. 383-84, N.T. PCRA Hearing, 9/25/13). However, he argued that lacked the intent to kill because he only shot the victim in the leg. (Id.). The following interchange occurred at the PCRA hearing:
(Doc. 16-1, pp. 383-84, 392-93, N.T. PCRA Hearing, 9/25/13).
It is clear that Freeland admitted to the conduct that served as the basis for the criminal action, i.e., shooting the firearm. The Superior Court noted that PCRA counsel was correct in concluding that, based on Freeland's admission of the shootings, he could not meet his burden to prove that any alleged claims of ineffectiveness by trial counsel "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v. Freeland, 106 A.3d at 777-78 (citation omitted). The Pennsylvania Superior Court addressed Freeland's claim that PCRA counsel abandoned him as follows:
Commonwealth v. Freeland, 106 A.3d at 777-78.
Because the underlying ineffective assistance of counsel claims related to Freeland's identification as the shooter are meritless or insubstantial, PCRA counsel's failure to advance these claims cannot constitute cause to excuse procedural default. Accordingly, this claim for relief will be denied.
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability ("COA"), an appeal may not be taken from a final order in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327. "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA 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). Here, jurists of reason would not find the disposition of this case debatable. Accordingly, a COA will not issue.
For the reasons set forth above, the Court will deny the amended petition for writ of habeas corpus. A separate Order shall issue.
