LISA PUPO LENIHAN, Magistrate Judge.
Pending before the Court is a Petition for Writ of Habeas Corpus filed by Robert Krol, Jr. ("Krol"), pursuant to 28 U.S.C. § 2254. Petitioner challenges his judgment of sentence of twenty to forty years imprisonment imposed following his conviction by a jury of third degree murder and carrying a firearm without a license. For the following reasons, the Petition will be denied.
The relevant facts and procedural history of this case, as summarized by the Superior Court on direct appeal, are as follows:
On appeal, the Superior Court affirmed Krol's judgment of sentence. Krol filed a pro se PCRA petition on December 8, 2009, after which PCRA counsel was appointed. Following a hearing, the PCRA court dismissed Krol's petition on July 27, 2010. The Superior Court affirmed the denial of PCRA relief on October 17, 2011. He filed the instant petition on May 7, 2012.
Krol's first claim is that the attorney who represented him in his suppression hearing, at trial and on direct appeal ("defense counsel") provided ineffective assistance when he failed to impeach Officer Viscuso at both the suppression hearing and at trial, and then failed to bring to the attention of the Superior Court on appeal the false testimony of Officer Viscuso at these proceedings.
Pertinent to this claim is the following background information. After observing the shooting, the eyewitness, Michelle Keally, called 911 around 2:30 a.m. and gave a description of the assailant as wearing a dark or black hooded sweatshirt and jeans. She further described the assailant as a black man.
When asked at trial what description she gave to the 911 Center, Michelle Keally testified, "I believe I said, you know, I thought the gentleman was black at the time. After I had thought about it, the only thing I ever remember looking at other than the gun was to try to figure out what he was shooting at, I glanced down at Miguel. I didn't get too much of a description until after he was running away." During cross-examination by defense counsel Michelle Keally was asked the following question, "In fact, it was so shocking as you just testified that you didn't know when you called the police you thought it (the assailant) was a black man, right, that is the description you gave?" Keally answered, "Yeah, I think, I know I glanced down momentarily to see what, you know, if anything was being shot at. That is when I noticed the victim, and you know, in the frantic state of mind I may have just said it, looking at the victim, I didn't really start until the gentleman ran away to get his description."
Officer Viscuso of the Economy Borough Police Department testified at both the suppression hearing and at the trial in this case. On both occasions he testified that he was assisting the Ambridge Police in a search for a shooting suspect, which he described as "a white male wearing a dark-colored black hoodie sweatshirt". After searching for 30 to 40 minutes, he observed an individual walking within approximately ¼ mile of the crime scene who fit the description of the suspect. He approached the individual who identified himself as Robert Krol. Officer Viscuso called Krol's name into County Dispatch and sat and talked with Krol until Ambridge Police arrived. Shortly thereafter, Sgt. Bufalini and two other Ambridge Police Officers arrived at Officer Viscuso's location. Sgt. Bufalini testified at the suppression hearing that he knew Krol to be on state parole and knew that he was in violation of his parole because he was out past curfew and obviously had been drinking.
Krol was taken to the Ambridge Police Department, where he was detained for the technical parole violations, and for the homicide investigation. Sgt. Bufalini testified that he notified Agent Richards from the Board of Probation and Parole Agency regarding Krol's violations. Agent Richards and Parole Supervisor Fronk responded to the Ambridge Police Department later that morning and filed a permanent detainer upon Krol for the technical violations. While he was detained and awaiting the arrival of his parole agent, the Ambridge Police also secured a search warrant for gunshot residue from Krol's hands and clothing.
Detective Patrick of the Beaver County District Attorney's Office questioned Krol as to the murder of Miguel Ogbara. Krol was given his Miranda rights and signed a Voluntary Statement Warnings sheet. Detective Patrick testified at the suppression hearing that he received a verbal statement from Krol, but the nature of the statement was not revealed in the court record.
Prior to trial, defense counsel filed an Omnibus Pre-Trial Motion to Suppress wherein he argued that Krol's arrest was effectuated without an arrest warrant and without probable cause. The Suppression Court disagreed because Sgt. Bufalini testified that he knew Krol was in violation of his parole at the time of his apprehension, and, according to the court, this fact alone was enough probable cause to warrant detention. Additionally, the Suppression Court noted that Officer Viscuso's initial detention of Krol was in response to the police broadcast of an individual matching the description of the suspect, who was in the general area during early morning hours.
On appeal, the Superior Court concluded that the Suppression Court properly denied Krol's motion to suppress, but not on the existence of probable cause. Instead, the court found that the interaction between police and Krol began as an investigatory detention and that it was supported by reasonable suspicion pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, because "there was a report of a murder in the area by an eyewitness, the eyewitness's description of the suspect was broadcast over the police radio, it was in the middle of the night, and Appellant, who matched the broadcast description, was stopped less than one-fourth of a mile from the crime scene." The Superior Court further found that because of the existence of exigent circumstances the transport of Krol to the police holding cell while he was undergoing investigative detention was reasonable and did not require probable cause. Specifically, "[i]t was known to the officers who detained [Krol] that he was an apparent parole violator, now implicated in a murder," and "[a]llowing [him] to walk free at that moment, while police pursued a search warrant for the gun-shot residue on his clothing and person, would be allowing a parole violator and possible murder suspect to destroy evidence or flee the jurisdiction." According to the Superior Court, detaining Krol while police contacted his parole officer was within the context of an investigative detention, not an arrest, and Sgt. Bufalini, who personally knew that Krol was in violation of his parole, "was justified in detaining [Krol] and contacting his parole officer mere hours after the original stop."
In his PCRA petition, Krol maintained that the race of the suspect was a vital point in the Suppression and Superior Court finding that his detention, search and arrest were legal. He asserted a layered claim of ineffective assistance of counsel in that had defense counsel impeached Officer Viscuso on the broadcast of the 911 call that the shooter was a black male, his suppression motion would have been granted, and had defense counsel presented the correct facts to the Superior Court, his appeal may have been decided differently. He argued that effective counsel would have used the discrepancy between the 911 log notes and Officer Viscuso's testimony as grounds to attack the credibility of the Officer and to attack the legality of his stop and detention. With respect to this claim, the PCRA court found as follows:
Where, as here, the state courts have reviewed a federal issue presented to them and disposed of the issue on the merits, AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state court's disposition of that issue. See 28 U.S.C. § 2254(d) and (e). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court expounded upon the standard found in 28 U.S.C. § 2254(d). In Williams, the Court explained that Congress intended that habeas relief for errors of law may only be granted in two situations: (1) where the State court decision was "contrary to . . . clearly established Federal law as determined by the Supreme Court of the United States" or (2) where the State court decision "involved an unreasonable application of[] clearly established Federal law as determined by the Supreme Court of the United States." Id. at 404-05. The Court explained the two situations in the following terms:
Williams, 529 U.S. at 412-13. The Court of Appeals for the Third Circuit has also elucidated the "contrary to" clause by noting that "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." Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (quoting Matteo v. Superintendent, SCI-Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en banc)). Moreover, the "unreasonable application" test is an objective one; "a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly." Jacobs v. Horn, 392 F.3d 92, 100 (3d Cir. 2005) (citation omitted). It is Petitioner's burden to prove the State court decision is either contrary to or an unreasonable application of clearly established federal law. See Matteo, 171 F.3d at 888; Werts, 228 F.3d at 197.
AEDPA also permits federal habeas relief where the State court's adjudication of the claim "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)(2).
Krol's claim is one of layered ineffective assistance of counsel. To demonstrate that a "layered" claim of appellate counsel's ineffectiveness has arguable merit in Pennsylvania, the petitioner must develop all three prongs of the Pierce
The Pennsylvania ineffective assistance standard announced in Pierce has been found to be materially identical to the test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and the Third Circuit has ruled that this standard is not "contrary to" Strickland. Werts, 228 F.3d at 204. Because the state court decided Krol's claim of layered ineffectiveness under the standard in McGill, which requires a petitioner to first satisfy the standard announced in Pierce with regard to trial counsel ineffectiveness, and that standard is essentially the same as the Strickland standard, Krol is barred from arguing that the state court decision is "contrary to" Supreme Court precedent. Krol could, however, argue for relief pursuant to the second part of the "contrary to" standard, i.e., that the state court reached a different result from that of the United States Supreme Court on a set of materially indistinguishable facts, but he has not done so and this Court is unaware of any such case.
It remains open to Krol that the state court's decision was an "unreasonable application" of federal law. In this regard, the Third Circuit has ruled that "the appropriate inquiry is whether the Pennsylvania courts' application of Strickland to [petitioner's] ineffectiveness claim was objectively unreasonable, i.e., the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under Strickland." Werts, 228 F.3d at 204. Krol, however, has not carried his burden.
To have been entitled to relief in state court, Krol had to show that defense counsel's representation fell below an objective standard of reasonableness, and there exists a reasonable probability that, but for counsel's error, the result would have been different.
In disposing of Krol's ineffectiveness claim, the PCRA court relied on "the law of the case", which, in this case, was the Superior Court's finding on direct appeal that Officer Viscuso had reasonable grounds to stop and detain Krol. The PCRA court also focused on the fact that defense counsel cross-examined the eyewitness, Michelle Keally, at trial about the description she provided to the 911 operator, and the fact that on two different occasions Officer Viscuso testified that he was looking for a white male. The court then concluded that counsel's assistance was not deemed ineffective simply because of the discrepancy between the 911 log notes describing the assailant as a black male and Officer Viscuso's testimony that he was looking for a white male wearing a dark-colored black hoodie sweatshirt.
With regard to his first claim, Krol has not shown that the state court unreasonably applied the law governing ineffective assistance of counsel claims to the facts of his case. Specifically, the state court identified the correct legal standard and determined that counsel was not ineffective because based on the evidence before it the result of Krol's suppression hearing and direct appeal would not have been different had defense counsel impeached Officer Viscuso with the race discrepancy in the 911 log notes or brought this to the attention of the Superior Court on direct appeal. Apart from its faulty reliance on the fact that Krol matched the description of the suspect that was broadcast over the police radio, both the Suppression Court and the Superior Court cited to other evidence that supported the legality of Krol's stop and initial detention. First, even though Officer Viscuso did not need any level of suspicion to stop and ask Krol for information, Krol was found in close proximity to the crime scene at an unusually late hour. Additionally, once Sgt. Bufalini recognized Krol as being on parole and committing technical violations, police had reasonable suspicion to conduct an investigatory detention and later transport him to the police station to wait while police contacted his parole officer. Given this evidence, the PCRA court found that it would not have made a difference in the ultimate outcome of Krol's suppression hearing and direct appeal even if both courts had been aware of the race discrepancy between the 911 log notes and Officer Viscuso's testimony. Because Krol could not show that he was prejudiced as a result of counsel's actions, it was not an unreasonable application of clearly established federal law for the state court to conclude that defense counsel was not ineffective. Krol has therefore failed to meet his burden under § 2254(d).
Krol next claims that his arrest was illegal for the reasons explained in relation to the previous claim and therefore his Omnibus Pre-Trial Motion to Suppress Evidence should have been granted. In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court examined the nature of the exclusionary rule, which it characterized as a "judicially created means of effectuating the rights secured by the Fourth Amendment" and balanced its utility as a deterrent against the risk of excluding trustworthy evidence and thus "deflect[ing] the truthfinding process." Id. at 482, 490. Finding that, as to collateral review, the costs of the exclusionary rule outweighed the benefits of its application, the Court concluded that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494. While federal courts are not thus deprived of jurisdiction to hear the claim, they are — for prudential reasons — restricted in their application of the exclusionary rule. Id. at 494 n.37.
Seeking to avoid this restriction, Krol seizes upon the qualifying phrase in Stone, "where the State has provided an opportunity for full and fair litigation," and argues that he was denied such an opportunity because defense counsel did not exploit the fact that the eyewitness described the suspect as being a black male and he is white.
The Third Circuit has interpreted "opportunity for full and fair litigation" as requiring only that no structural defect in the system prevents state courts from hearing a petitioner's Fourth Amendment claim. Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002). However, Krol has made no showing that he was prevented from litigating his Fourth Amendment claim in the state courts or that his situation is similar to any that has been recognized as qualifying under Stone. At most, Krol alleges that his counsel was ineffective in litigating his motion to suppress, but counsel's effectiveness in this regard did not affect the state court's ability to hear Krol's claim. See Hubbard v. Jeffes, 653 F.2d 99, 103 (3d Cir. 1981) (holding that a petitioner had a "full and fair opportunity" to present his Fourth Amendment claim to the state courts despite his counsel's failure to raise the claim, because the "failure to do so was not brought about by any restriction of the opportunity by the state courts.") Accordingly, Krol is not entitled to relief on this claim.
Section 102 of the AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Where a district court has rejected a constitutional claim on its merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Krol has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court will not issue a certificate of appealability. A separate Order will issue.
