REPORT and RECOMMENDATION
ROBERT C. MITCHELL, Magistrate Judge.
I. Recommendation:
It is respectfully recommended that the petitioner of Henry Culver for a writ of habeas corpus (ECF No. 1) be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
Airport:
Henry Culver, an inmate at the State Correctional Institution-Fayette has presented a petition for a writ of habeas corpus.
Culver is presently serving a sentence of life without parole imposed on December 13, 2012 at No. CP-02-CR-8632-2011 in the Court of Common Pleas of Allegheny County, Pennsylvania, following his conviction by a jury of first-degree murder, possession of a prohibited firearm, carrying a firearm without a license, terroristic threats and simple assault.
An appeal was filed in which the questions presented were:
I. Did the trial court err in failing to suppress evidence that Mr. Culver signed a different name on a property inventory form when he was booked in jail considering Mr. Culver had invoked his right to remain silent and the question which asked for his name was calculated to elicit an incriminating response?
II. Did the trial court abuse its discretion in denying Mr. Culver's post-sentence motion that the verdict was against the weight of the evidence where the three witnesses who implicated Mr. Culver in the shooting provided entirely inconsistent and contradictory accounts of the incident, the witnesses' statements and actions immediately after the incident suggested they were covering up what actually occurred, the prosecution provided only a contrived and far-fetched motive for the shooting, and two of the Commonwealth's primary witnesses had a motive to fabricate their accounts of the incident?1
On October 2, 2014, the judgment of sentence was affirmed.2 Allowance of appeal was denied by the Pennsylvania Supreme Court on March 31, 2015.3
On July 23, 2015, Culver filed a post-conviction petition. On December 14, 2016 the latter petition was dismissed.4
A timely appeal was filed in which the questions presented were:
1. Did the ineffective assistance of petitioner's PCRA counsel and the PCRA court's failure to provide petitioner with his trial transcripts combine to deprive petitioner of his due process rights under the state and federal constitutions?
2. Did the PCRA court err in dismissing without a hearing the claim that trial counsel Lisa Middleman was ineffective for failing to present expert witness testimony concerning the DNA sample taken from the gloves found at the scene of the homicide?
3. Did the PCRA court err in dismissing without a hearing the claim that trial counsel Lisa Middleman was ineffective for failing to properly prepare for trial by interviewing witnesses LaPerry Raymond and Rasheeda Saxton before they testified?
4. Did the PCRA court err in dismissing without a hearing the claim that trial counsel Lisa Middleman was ineffective for failing to obtain medical records from Jefferson Memorial Clinic in Miami, Florida that would have explained that petitioner went to Florida seeking medical treatment, not to avoid apprehension by the police?
5. Did the PCRA court err in denying without a hearing the claim that trial counsel Lisa Middleman was ineffective for failing to challenge Albert Goodman's competency to testify?
6. Was trial counsel ineffective for failing to properly impeach Albert Goodman's testimony?5 On October 13, 2017, the judgment of the post-conviction court was affirmed and leave to appeal was denied by the Pennsylvania Supreme Court on March 28, 2018.6
In the instant petition filed on September 13, 20187, Culver alleges he is entitled to relief on the following grounds:
1. The State Court misapplied clearly established federal law when they sanctioned the Commonwealth's use of U.S. Marshal Ty Fallow's testimony combined with a jail property inventory form to show Culver's consciousness of guilt.
2. Did the ineffective assistance of petitioner's PCRA counsel and the PCRA court's failure to provide petitioner with his trial transcripts combine to deprive petitioner of his due process rights under the federal constitution?
3. Did the PCRA court err in dismissing without a hearing the claim that trial counsel was ineffective for failing to present expert witness testimony concerning the DNA sample taken from gloves found at the scene of the homicide?
4. Did the PCRA court err in dismissing without a hearing the claim that trial counsel was ineffective for failing to properly prepare for trial by interviewing witness LaPerry Raymond and Rasheeda Sexton before they testified?
5. Did the PCRA court err in dismissing without a hearing the claim that trial counsel was ineffective for failing to obtain medical records from Jefferson Memorial Clinic in Miami, FL that would have explained that petitioner went to Florida seeking medical treatment not to avoid apprehension by police?
6. Did the PCRA court err in denying without a hearing the claim that trial counsel was ineffective for failing to challenge Albert Goodman's competency to testify?
7. Was trial counsel ineffective for failing to properly impeach Albert Goodman's testimony?8
The background to this prosecution is set forth in the October 13, 2017 Memorandum of the Superior Court:
The Commonwealth's evidence established that on December 14, 2011, the victim, Scott Goodman, was at the home of his father, Albert Goodman. The elder Goodman was sitting in his home when he heard an argument coming from the kitchen. He recognized both voices[:] that of his son and that of [Culver], with whom he was also familiar. Mr. Goodman walked into the kitchen and saw [Culver] shoot his son. [Culver] then turned to Mr. Goodman and told him to back off or he would be next. Mr. Goodman then fled out the front door while [Culver] left through the back door.
At approximately the same time that Mr. Goodman was leaving his house, a witness, [Rasheeda] Saxton, was arriving. She saw [Culver come from the back of the house,] get into his car and drive off. While she was walking towards the Goodman residence, she heard Albert Goodman calling for help and, as she went around to the back, she saw Scott Goodman lying on the ground, bleeding. [When police arrived on the scene, Ms. Saxton told them that "Hank (meaning [Culver]) did this."] Scott Goodman was taken to the hospital where he eventually died of his wounds.
LaPerry Raymond, the mother of [Rasheeda] Saxton, also testified. She said that during that evening, she was on the phone with Scott Goodman. She heard a door slam and Scott told her to hold on. He then told her that it was "Hank" and he would call her back later. A few minutes later, her daughter called and told her that Scott Goodman had been shot....
[Detective Kenneth Ruckel of the Allegheny County police department testified that he found a black leather glove with a zipper near the cuff at the scene of the murder. A dark brown glove that was inside the black one as though the two were worn together contained Culver's DNA.]
The Commonwealth also presented evidence concerning [Culver]'s arrest sometime later in Miami....
After receiving a tip as to where [Culver] might be found, Deputy U[.]S[.] Marshal[ ] Ty Fallow and others went to this location [at a rescue mission in Miami, Florida.] They observed [Culver] and Marshal[ ] Fallow addressed [him], "Mr. Culver, Hank, Henry." At this point, [Culver] turned around. Later, as they were asking him his name, he told them that his name was Rocky Wallace. He showed them an ID [from the rescue mission] that bore the name Rocky Wallace but had his photograph on it. [Culver] was [detained] and transported to the Dade County Jail [where fingerprint analysis confirmed that he was Henry Culver and he was then arrested.] He was in a holding cell for a lengthy time as he waited his turn to be processed. The defendants' names are called out frequently. Marshal [] Fallow observed that on all but one occasion when the jail called out for Henry Culver, [Culver] did not respond. Once, however, when a nurse called the name Henry Culver, he did verbally respond.
Marshal[ ] Fallow also testified that he was present when [Culver] was provided with several intake forms including a property form. This form itemizes the property that was on his person when he was arrested. It has a place for the inmate's signature. Marshal[ ] Fallow observed [Culver] sign the name Rocky Wallace to that form. [The Commonwealth] introduced [the document] into evidence at trial...
At the conclusion of trial, the jury convicted [Culver] of [first-degree murder, firearms not to be carried without a license, terroristic threats, and simple assault—physical menace. In a bifurcated nonjury trial, the trial court convicted Culver of persons not to possess firearms.] On December 13, 2012, the court sentenced [Culver] to a term of life in prison without the possibly of parole on the murder of the first degree conviction, plus a concurrent aggregate term of imprisonment of not less than nine and one-half nor more than nineteen years on the remaining counts. The court denied [Culver]'s post-sentence motions on January 17, 2013 (record references and footnotes omitted).9
The first issue which the petitioner raises here is that his rights were violated when the Commonwealth introduced the testimony of Marshal Fallow and a jail property inventory receipt which he signed with a false name. Specifically, at trial testimony was presented by a United States Marshal from Miami who armed with a photo of the petitioner proceeded to a shelter where the petitioner was living and utilizing the name Rocky Wallace; that staff identified the photo as their resident Wallace; that petitioner was arrested and taken to the Dade County Jail where he signed the property receipt as Wallace, and that later in the day Wallace's fingerprints were identified as the petitioner's. At that time Fallow concluded that Culver was under arrest for Miranda purposes (TT. pp. 207-230).
At the conclusion of this testimony, defense counsel requested that the court strike this testimony as much of it related to pre-Mirandized matters. Thereupon, the court instructed the jury:
What I'm going to explain to you now is the defendant is alleged by testimony to have made certain statements or not responded in answer to questions put to him by the United States Marshal who testified yesterday. You should disregard those statements because the defendant was not advised of his Constitutional right to remain silent, and, therefore, those statements are an impingement upon his Constitution right to remain silent.
You may, however, consider whether or not the defendant after being advised of his Constitutional rights, signed a paper using a name which you may or may not find to be fraudulent. But as to the statements that he made, I'm asking you to compartmentalize the testimony. Do not consider that in evaluating the evidence. (TT. 250-251).
Finally, the Marshal was recalled as a witness and specifically testified that the property receipt in question was signed by the petitioner after he was advised of his Miranda rights (TT. 252).
Petitioner cites to Pennsylvania v. Muniz, 496 U.S. 582, 601-602 (1990), where the Court acknowledged that routine booking/administrative matters are excluded from the Miranda requirements but that potentially incriminating questions are not excluded.
In the instant case, the record clearly supports the conclusion of the state courts that all pre-Miranda evidence be excluded but that at the time the petitioner signed the property receipt, he had received his warnings and nevertheless signed a fictitious name which could very well lead to an inference of guilt. These findings are presumed correct and there is nothing in the record to dispel this presumption. 28 U.S.C. § 2254(e)(1). Accordingly, this allegation does not provide a basis for relief.
The remainder of petitioner's claims allege ineffective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court explained that there are two components to demonstrating a violation of the right to the effective assistance of counsel. First, the petitioner must show that counsel's performance was deficient. This requires showing that "counsel's representation fell below an objective standard of reasonableness." Id. at 688; see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000). Second, under Strickland, the defendant must show that he was prejudiced by the deficient performance. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To establish prejudice, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Strickland test is conjunctive and a habeas petitioner must establish both the deficiency in performance prong and the prejudice prong. See Strickland, 466 U.S. at 687; Rainey v. Varner, 603 F.3d 189, 197 (3d Cir.2010) cert. denied 131 S.Ct. 1673 (2011). As a result, if a petitioner fails on either prong, he loses. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006).
Petitioner contends that post-conviction counsel was ineffective in failing to secure a copy of the trial transcript for him. As a general proposition, a petitioner cannot raise an issue of ineffective assistance of post-conviction counsel. However, in Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012), the Court held that "where under state law, claims of ineffective assistance of counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance of trial counsel if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Such is the case in Pennsylvania where a claim of ineffective assistance is properly raised in a post-conviction petition. Commonwealth v. Bozic, 997 A.2d 2011 (Pa. Super.), leave to appeal denied 608 Pa. 659 (2010), cert. denied 131 S.Ct. 2939 (2011). As a result, as alleged here petitioner is contending that post-conviction counsel was ineffective in not providing a transcript and not that post-conviction counsel failed to challenge actions of trial counsel. Since this does not concern the actions of trial counsel, it does not provide a basis for relief here.
Additionally, in reviewing this claim, the Superior Court wrote:
[W]hen Culver initially requested transcripts on April 28, 2015, he had no matter pending in the courts... [and] he was not entitled to transcripts...
Next, with respect to his December 21, 2016 request, we recognize that, had Culver followed the correct procedure, he should have received his trial transcripts. However, it is evident that Culver's lack of access to those transcripts did not prevent him from receiving a meaningful appeal, as we were not hindered in determining that Culver's issues lack merit because we received the trial transcripts...10
These conclusions are entitled to a presumption of correctness. 28 U.S.C. § 2254 (e) and there is nothing in the record which would dispel this presumption.
Additionally, in the instant case petitioner seeks to challenge the actions or lack thereof of post-conviction counsel, and not actions by trial counsel, and for this reason the issue is barred here. Davila v. Davis, 137 S.Ct. 2058 (2017).
Culver's third claim is that trial counsel was ineffective for failing to present expert testimony to rebut the prosecution's testimony regarding the DNA sample recovered at the crime scene. At observed above, a glove within a glove was recovered at the crime scene which revealed DNA evidence which the Commonwealth's expert testified matched petitioner's DNA. (TT. 287) (Q. "In this case, would it be fair to say that Mr. Culver was the major contributor on the brown glove? A. Yes."). The witness was subject to a vigorous cross-examination at which time he related that the chance of error was one in 1.2 trillion (TT. 300-301).
When coupled with the eyewitness testimony, calling any further expert to testify would have been an exercise in futility for which counsel cannot be deemed to have been ineffective. Real v. Shannon, 600 F.3d 302, 310 (3d Cir. 2010). See also: Workman v. Supt. 903 F.3d 896 (3d Cir. 2018).
Petitioner's fourth claim is that trial counsel was ineffective for failing to interview potential defense witnesses Raymond and Saxton before they testified. More specifically, he contends that "the impact of [counsel's] failure to properly prepare could be felt in her incomplete cross-examination of the [two witnesses] had [counsel] prepared for trial thoroughly, it is likely that the outcome of the proceedings would have been different."11There is no supporting basis for this claim in the petition.
However, it was raised in both the post-conviction court as well as the Superior Court on appeal from the denial of post-conviction relief. The former court observed post-conviction counsel had noted that trial counsel's cross-examination of these witnesses was effective and "the defendant did not explain how a pre-trial interview would have changed the outcome of the trial ... [and] neither witness could have been compelled to submit to such an interview."12 This conclusion was reaffirmed by the Superior Court.13
We too have examined the testimony of Raymond (TT 9/18/12 pp.181-206) and Saxton (TT9/18/12 pp. 123-170) and likewise conclude that defense counsel conducted a thorough cross-examinations of those witnesses and the petitioner has failed to demonstrate how interviewing them prior to their testimony would have had any effect on the trial results.
Petitioner next contends that counsel was ineffective for failing to obtain medical records which explained that he had traveled to Florida to seek medical treatment and not to avoid apprehension. This issue was summarized by the Superior Court:
Culver argues that trial counsel was ineffective for failing to obtain medical records that would have shown that Culver traveled to Florida to be treated for an illness. According to Culver, he told trial counsel that while he was on parole, he was diagnosed as possibly having cancer and informed his parole officer. While the parole officer recommended that Culver obtain a second opinion, Culver saw an advertisement for a medical clinic in Miami, Florida. Knowing `that his [p]arole [o]fficer would not permit him to travel across state lines," Culver chose to travel under the assumed name of "Rocky Wallace."
Culver contends that his trial counsel told him that it would be beneficial to obtain the medical records of "Rocky Wallace" from the medical clinic, but trial counsel never attempted to obtain them and gave multiple excuses as to why she could not obtain them ... and this failure prejudiced him because the only inference the jury could draw from his travel was that he fled to avoid apprehension..." (record reference omitted).14
Specifically citing the post-conviction court, the Superior Court continued:
The fact that [Culver] received medical care in Florida is not inconsistent with him travelling there to avoid apprehension. Moreover, the fact that [Culver] had a fake ID and provided a fake name to the officers who arrested him and at the jail where he was being processed certainly corroborated the Commonwealth's contention that [Culver] fled to Florida and allowed the prosecution to argue to the jury that [Culver] fled this area and assumed a fake identity because he was conscious of his guilt[] and was trying to avoid apprehension.15
In addition, the post-conviction court wrote that defense counsel correctly pointed out that such evidence would alert the jury to the fact that the defendant had a parole officer and, therefore, a criminal record. It was not unreasonable for trial counsel to conclude that the harm of letting the jury know about this prior record certainly outweighed any benefit from the jury being told that the false name was to avoid being apprehended for violating parole rather than to avoid being apprehended in connection [with] the criminal charges involved in this matter.16
As a matter of sound defense strategy, this claim does not provide a basis for relief. Rolan v. Vaughn, 445 F.3d 671 (3d Cir. 2006). In addition, the state courts' decisions were grounded in state law, were not contrary to federal law and as such do not provide a basis for relief here. 28 U.S.C. § 2254(d).
Culver next contends that counsel was ineffective for failing to challenge the competency of Albert Goodman to testify. In its opinion filed on December 30, 2014, the trial court wrote:
The Commonwealth's evidence established that on December 14, 2011, the victim, Scott Goodman, was at the home of his father Albert Goodman. The elder Goodman was sitting in his home when he heard an argument coming from the kitchen. He recognized both voices; that of his son and that of the defendant, with whom he was also familiar. Mr. Goodman walked into the kitchen and saw the defendant shoot his son. The defendant then turned to Mr. Goodman and told him to back off or he would be next. Mr. Goodman then fled out the front door...
This Court and the jury viewed a video tape of that testimony. Though it was apparent from the video that Mr. Goodman was ill, he did not seem to have difficulty recalled the events surrounding the death of his son and relating them. He seemed tired and responded slowly to some questions, but it is simply inaccurate to claim that his illness effected his perception or that his testimony was confused, vague and contradictory...
It was clear to this Court that the [senior Goodman's] illness or taking of medications did not affect his ability to recall events or accurately describe what he had observed. There were some things about which Mr. Goodman was less than certain, things that he acknowledged that he could not remember, he was, however, clear about the essential facts of the night that his son was shot. He was cross examined by the defense as to his inability to recall events as to apparent inconsistencies between what he told the police the night of the incident and what he testified to in Court; and as to the effect his illness and medication had on his current state of mind. What effect, if any, to give to the questions raised by that cross examination as to the accuracy of Mr. Goodman's testimony, was something for the jury to decide. Clearly, Mr. Goodman was a competent witness and the jury was allowed to believe as must of his testimony as they wished.17
Because of his failing health and ultimate death prior to the trial, a video tape of the deposition of the senior Goodman, taken before the court and as outline above, was shown to the jury. We have examined the transcript of that deposition, taken on September 1, 2011 and conclude that the summary by the court accurately reflects the testimony present (e.g. TT. 9/1/11 at pp. 8-11). Defense counsel raised no issue as to Mr. Goodman's competency despite some apparent confusion being demonstrated (e.g. TT. 9/1/11 pp. 45-46). Nevertheless, the trial court determined that there was no basis to challenge the witness' competency, and counsel cannot be deemed to have been ineffective for failing to do so. 28 U.S.C. § 2254(e)(1); Real v. Shannon, 600 F.3d 302, 310 (3d Cir. 2010). For this reason, this claim likewise does not provide a basis for relief.
Petitioner's final claim is that trial counsel was ineffective for failing to impeach Albert Goodman's testimony. When Culver attempted to raise this issue in his post-conviction appeal, the Superior Court observed that this issue was never raised in the post-conviction court and accordingly was waived on appeal.18 Thus a procedural default has occurred since the claim cannot be raised in the state courts and no good cause is demonstrated for excusing this failure. Accordingly, the claim not subject to relief here. Shotts v. Wetzel, 724 F.3d 364 (3d Cir. 2013), cert. denied 571 U.S. 1224 (2014).
In his reply (ECF No. 25) contends that he is actually innocent. However, there is absolutely no support for this allegation.
Because there is no showing made that petitioner's conviction was secured in any manner contrary to federal law as determined by the Supreme Court nor that his conviction involved an unreasonable application of this decisions, he is not entitled to relief here.
Accordingly, it is respectfully recommended that the petition of Henry Culver (ECF No. 1) be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections within fourteen (14) days of this date and mailing them to United States District Court, 700 Grant Street, Pittsburgh PA 15219-1957. Failure to file timely objections will waive the right to appeal.
