WILLIAMS v. SUPERINTENDENT, SCI SOMERSET

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

_______________________________________

GEORGE WILLIAMS, JR., :

Petitioner, :

:

v. : No. 2:18-cv-00313

:

SUPERINTENDENT, SCI SOMERSET; :

THE DISTRICT ATTORNEY OF :

PHILADELPHIA COUNTY; and THE :

PENNSYLVANIA ATTORNEY GENERAL, :

Respondents. :

_______________________________________

O P I N I O N

Report and Recommendation, ECF No. 25 – Adopted

Joseph F. Leeson, Jr. March 3, 2020

United States District Judge

I. INTRODUCTION

Petitioner George Williams, Jr., filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254, challenging his conviction in the Philadelphia County Court of Common Pleas

for second-degree murder, conspiracy, and firearms charges. Magistrate Judge Marilyn Heffley

issued a Report and Recommendation (“R&R”) recommending that the habeas corpus claims be

denied and dismissed. Williams has filed objections to the R&R. For the reasons set forth

below, the R&R is adopted.

II. STANDARDS OF REVIEW

A. R&R

When objections to a report and recommendation have been filed under 28 U.S.C.

§ 636(b)(1)(C), the district court must make a de novo review of those portions of the report to

which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d 1099,

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1106 n.3 (3d Cir. 1989). “District Courts, however, are not required to make any separate

findings or conclusions when reviewing a Magistrate Judge’s recommendation de novo under 28

U.S.C. § 636(b).” Hill v. Barnacle, 655 F. App’x. 142, 147 (3d Cir. 2016). In the absence of a

specific objection, the district court is not statutorily required to review the report, under de novo

or any other standard. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 152 (1985).

Nevertheless, the Third Circuit Court of Appeals has held that it is better practice to afford some

level of review to dispositive legal issues raised by the report, Henderson v. Carlson, 812 F.2d

874, 878 (3d Cir. 1987), writ denied 484 U.S. 837 (1987); therefore, the court should review the

record for plain error or manifest injustice. Harper v. Sullivan, No. 89-4272, 1991 U.S. Dist.

LEXIS 2168, at *2 n.3 (E.D. Pa. Feb. 22, 1991); see also Oldrati v. Apfel, 33 F. Supp. 2d 397,

399 (E.D. Pa. 1998). The “court may accept, reject, or modify, in whole or in part, the findings

and recommendations” contained in the report. 28 U.S.C. § 636(b)(1)(C).

B. Habeas corpus petitions under 28 U.S.C. § 2254

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “state

prisoners 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 process” before seeking

federal habeas review. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Where a petitioner

has failed to properly present his claims in the state court and no longer has an available state

remedy, he has procedurally defaulted those claims. See id. at 847-48. An unexhausted or

procedurally defaulted claim cannot provide the basis for federal habeas relief unless the

petitioner “can demonstrate 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 will result in a

fundamental miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 732-33, 750

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(1991) (explaining that a “habeas petitioner who has defaulted his federal claims in state court

meets the technical requirements for exhaustion [because] there are no state remedies any longer

‘available’ to him”). The Supreme Court has held that the ineffectiveness of counsel on

collateral review may constitute “cause” to excuse a petitioner’s default. See Martinez v. Ryan,

566 U.S. 1 (2012). The fundamental miscarriage of justice exception “applies to a severely

confined category: cases in which new evidence shows ‘it is more likely than not that no

reasonable juror would have convicted [the petitioner].’” McQuiggin v. Perkins, 569 U.S. 383,

395 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

The AEDPA “imposes a highly deferential standard for evaluating state-court rulings and

demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562

U.S. 594, 598 (2011) (internal quotations omitted); See also 28 U.S.C. § 2254(d);1 Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009) (holding that there is a “doubly deferential judicial review

that applies to a Strickland claim evaluated under the § 2254(d)(1) standard” because the

question before a federal court is not whether the state court’s determination was correct, but

whether the determination was unreasonable); Hunterson v. Disabato, 308 F.3d 236, 245 (3d Cir.

2002) (“[I]f permissible inferences could be drawn either way, the state court decision must

stand, as its determination of the facts would not be unreasonable.”). Additionally, “a federal

habeas court must afford a state court’s factual findings a presumption of correctness and that []

presumption applies to the factual determinations of state trial and appellate courts.” Fahy v.

1 “An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted with respect to any claim that was adjudicated

on the merits in State court proceedings unless the adjudication . . . resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established Federal law . . .;

or . . . resulted in a decision that was based on an unreasonable determination of the facts . . . .”

28 U.S.C. § 2254(d).

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Horn, 516 F.3d 169, 181 (3d Cir. 2008). The habeas petitioner has the “burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

C. Claims of ineffective assistance of counsel

To establish counsel’s ineffectiveness, a petitioner must show: (1) counsel’s performance

fell below an objective standard of reasonableness; and (2) the performance was prejudicial to

the defense. Strickland v. Washington, 466 U.S. 668 (1984). There is a strong presumption that

counsel is effective and the courts, guarding against the temptation to engage in hindsight, must

be “highly deferential” to counsel’s reasonable strategic decisions. Marshall v. Hendricks, 307

F.3d 36, 85 (3d Cir. 2002). The mere existence of alternative, even more preferable or more

effective, strategies does not satisfy the first element of the Strickland test. Id. at 86. To

establish prejudice under the second element, the petitioner must show that there is “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000) (quoting Strickland, 466 U.S. at

694). “Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466

U.S. at 689 (explaining that courts should not second-guess counsel’s assistance and engage in

“hindsight, to reconstruct the circumstances of counsel’s challenged conduct”). The court must

consider the totality of the evidence and the burden is on the petitioner. Id. at 687, 695.

When considering ineffective assistance of counsel claims under § 2254, the question

before a federal court is not whether the state court’s determination was correct, but whether the

determination was unreasonable. Knowles, 556 U.S. at 123. “And, because the Strickland

standard is a general standard, a state court has even more latitude to reasonably determine that a

defendant has not satisfied that standard.” Id. (describing “the doubly deferential judicial review

that applies to a Strickland claim evaluated under the § 2254(d)(1) standard”).

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IV. ANALYSIS

Magistrate Judge Heffley reviewed the numerous habeas claims and determined that all

claims are procedurally defaulted and/or meritless. Williams filed objections to the R&R. This

Court has conducted de novo review of all of Williams’s claims, but writes separately to further

address only some of his objections. The R&R is adopted and incorporated herein.

A. Williams’s objection to the Magistrate Judge’s citation to the factual

background as summarized by the state court is overruled.

Williams objects to the Magistrate Judge’s reliance on the facts as summarized by the

Pennsylvania Superior Court as allegedly contrary to Strickland. See Objs. 1-4, ECF No. 27.

Williams asserts these facts were based on the sufficiency of the evidence as viewed in the light

most favorable to the Commonwealth, but the ineffectiveness claims should be considered based

on the totality of the evidence. See id. Williams complains that these facts ignore weaknesses in

the Commonwealth’s evidence, such as inconsistencies in witness Miller’s statements and

Williams’s assertion that he was an innocent bystander. See id.

After review, the Court finds that although the Magistrate Judge cited to the Pennsylvania

Superior Court’s summary of the facts in the background section of the R&R, the Magistrate

Judge considered the totality of the evidence when analyzing the habeas claims. See, e.g. R&R

9, 16, ECF No. 25. In addressing the habeas claims, the Magistrate Judge discussed, inter alia,

Miller’s different statements to police and the defense’s “‘mere presence’ theory of the case.”2

See id. at 28, 34. Additionally, the Magistrate Judge specifically considered and rejected

Williams’ claim that the Pennsylvania Superior Court’s decision affirming the denial of post-

2 After de novo review, Williams’s objection to the Magistrate Judge’s resolution of his

ineffectiveness claim regarding the defense theory, see R&R 27-29, is overruled for the reasons

set forth in the R&R. See Objs. 14-15.

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conviction relief was contrary to Strickland because it was based on the sufficiency of the

evidence, as opposed to the totality of the evidence. See id. at 16 n.4. The first objection is

therefore overruled.

B. Williams’s objection to the rejection of his Breakiron claim is overruled.

In his second and sixth objections, Williams objects to the Magistrate Judge’s analysis of

his Breakiron3 claim: that trial counsel was ineffective for failing to request an instruction on

theft, a lesser included crime of robbery. See Objs. 4-10, 13, 15. The Magistrate Judge

concluded that Breakiron was not persuasive because unlike the defendant in Breakiron, who

pursued a defense that he was only guilty of theft, not robbery, Williams did not pursue such a

defense. See R&R 35-36. Rather, Williams alleged at trial that he was an innocent bystander, in

contrast to the defendant in Breakiron who admitted to the theft underlying the robbery charge.

See United States v. Ware, 595 F. App’x 118, 121 (3d Cir. 2014) (holding that counsel was not

ineffective because unlike in Breakiron, “requesting a lesser-included jury instruction would

have been contrary to the defense narrative”). This Court agrees with the Magistrate Judge that

the evidence did not support an instruction that Williams only intended to steal from the victim.

See R&R 35-36.4 Moreover, while the defendant in Breakiron was charged with robbery, the

robbery charge against Williams was nolle prossed and did not even go to the jury. Williams’s

reliance on Breakiron is therefore misplaced. All objections based on Breakiron are overruled.5

3 Breakiron v. Horn, 642 F.3d 126, 138 (3d Cir. 2011) (holding that trial counsel was

ineffective for failing to request an instruction on theft as a lesser included offense despite

counsel’s trial strategy of admitting to the theft but challenging the robbery charge).

4 The Magistrate Judge also determined that because the claim was meritless, counsel’s

failure to raise it in the state courts could not be excused and the claim was procedurally

defaulted. See R&R 35-36. For the reasons set forth in the R&R, this Court agrees that the

Breakiron claim lacks merit and is procedurally defaulted.

5 Williams makes additional objections to the jury instructions, which are addressed below.

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C. Williams’s objections to the legal standards are overruled.

Williams’s next objection, which challenges the legal standard in pages six through eight

of the R&R because it is not being tailored to the facts of his case is frivolous. See Objs. 10.

Williams does not dispute the correctness of the law as stated in the R&R; therefore, the

objection is overruled.

Williams’s objection to the legal standard regarding the ineffective assistance of counsel

on pages eight and nine of the R&R is similarly without merit. See Objs. 10-12. Williams

contends that the R&R does not “accurately and comprehensively describe the tests for

ineffective assistance of counsel,” but does not suggest that the standard in the R&R was

incorrect. Rather, the caselaw cited in the objections is generally6 consistent with the law

6 The general standards announced in Lee and Garza, cases which Williams cites in his

objections, are applicable here; however, Williams misinterprets the holdings in those cases.

Williams incorrectly suggests that those cases hold that a petitioner convicted after a trial need

not show that the trial would have resulted in a more favorable outcome but for the

ineffectiveness of counsel. However, neither case addressed an ineffectiveness claim in the trial

context. In Lee, the court considered whether counsel’s failure to correctly advise a defendant

about the immigration consequences of his guilty plea was prejudicial. See Lee v. United States,

137 S. Ct. 1958 (2017). The court concluded that it was because if the defendant had been

correctly advised (no ineffectiveness) he would not have pled guilty. Thus, the outcome of the

proceedings would have been different as the defendant would have insisted on going to trial and

would not have pled guilty. See id. at 1969 (concluding “Lee has demonstrated a ‘reasonable

probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial’”). In Garza, the court considered whether counsel’s ineffectiveness

caused a defendant to forfeit his right to appeal. See Garza v. Idaho, 139 S. Ct. 738 (2019). The

court determined that because counsel failed to file an appeal that the defendant specifically told

counsel to file, there was prejudice as the outcome of the proceedings would have been different:

an appeal would have been filed, but for counsel’s ineffectiveness. See id. at 750. Williams’s

reliance on Vickers is similarly misplaced because the circuit court was not addressing alleged

ineffectiveness during a trial; rather, the court considered whether counsel’s ineffectiveness prior

to trial, by failing to ensure that the defendant properly waived his right to a jury trial, deprived

the defendant of his right to a jury trial. See Vickers v. Superintendent Graterford Sci, 858 F.3d

841 (3d Cir. 2017). The court concluded that there was no prejudice because the defendant “has

not established on this record a ‘reasonable probability’ that, but for counsel’s deficiency,

Vickers would have elected to proceed by way of jury trial.” Id. at 858.

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provided in the R&R. Cf. Objs. 11-12 (asserting that “the proper inquiry for prejudice is whether

the defendant can demonstrate a reasonable probability that, but for counsel’s ineffectiveness, he

would have opted to exercise the right at issue” (internal quotations omitted)), with R&R 9

(stating that to establish prejudice, “a petitioner must show a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different” (internal

quotations omitted)). Accordingly, the objection is overruled.

Williams’s next objection, that the Magistrate Judge erred in concluding that the failure

to hold an evidentiary hearing is not a denial of due process, is overruled. Counsel confuses the

concepts of the level of deference owed to a state-court opinion rendered without adequately

developed facts, with an independent due process claim for denial of an evidentiary hearing. See

Objs. 12-13. The Magistrate Judge correctly rejected Williams’s contention that the PCRA

court’s failure to conduct an evidentiary hearing could be an independent constitutional claim

under habeas. See R&R 10. Further, after review of the R&R, this Court finds that the

Magistrate Judge did not afford the improper level of deference to the state court. The PCRA

court refused to hold an evidentiary hearing because there were no genuine issues of material

fact raised by the PCRA petition,7 and Williams’s has not alleged any in his objections that

suggest an evidentiary hearing was needed to develop the facts. The objection to page ten of the

R&R is therefore overruled.

7 See PCRA Opinion 6 dated December 17, 2010 (citing Commonwealth v. Jones, 942

A.2d 903, 906 (Pa. Super. 2008) (“There is no absolute right to an evidentiary hearing on a

PCRA petition, and if the PCRA court can determine from the record that no genuine issues of

material fact exist, then a hearing is not necessary.”)).

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D. Williams’s objections regarding use of the uncharged predicates are

overruled.

Williams objects to the Magistrate Judge’s resolution of his claims challenging the use of

uncharged predicates to establish second-degree murder. See Objs. 13 (objecting to R&R 8-10).

Some of his arguments in support of this objection, his sixth, overlap with arguments in his tenth

objection. Accordingly, Williams’s objections based on lack of notice and failure to charge the

predicate felonies are addressed in this section. Any objections regarding jury instructions on the

predicate offenses are discussed in Section H below.

As to Williams’s objection that he was not charged with the predicate felonies to the

second-degree murder charge, this claim was thoroughly analyzed by the Magistrate Judge. For

the reasons correctly explained in the R&R, as well as by the state courts in numerous decisions,

the claim lacks merit. See, e.g. R&R 15. Specifically, the law does not require that a defendant

be charged with the predicate offense to a second-degree murder charge. See id. Further, the

Commonwealth is not required to prove that the defendant actually committed the predicate

offense. See id.

Next, Williams objects to the lack of notice because the predicate offenses were not

among the separate charges before the jury. See Objs. 13, 18. However, robbery and kidnapping

were separately charged in the Criminal Complaint, even though there was no requirement that

they had to be charged. Although the separate kidnapping charge was dismissed at the

preliminary hearing level, the robbery charge was included in the Criminal Information filed

with the Court of Common Pleas. It was not until the pretrial motions hearing, the day before

trial, that the Commonwealth stated it was not moving on the separate robbery charge because it

did not want to confuse the jury as to why robbery was separately charged but kidnapping was

not. See N.T. 22:12 – 23:16, Motion, Volume 1, October 4, 2010. The Commonwealth also

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stated for the record that it would “seek for second degree murder to go in for both robbery and

kidnapping.” See id. The Commonwealth explained that these matters had previously been

discussed between the Commonwealth attorney and the defense attorney. See id. Moreover, it

was clear from the facts of the probable cause affidavit to the Criminal Complaint that

kidnapping and/or robbery would serve as the predicate felony to a second-degree murder

charge.8 Williams therefore had notice from the date of his arrest that robbery and/or kidnapping

would serve as the predicate felony to a second-degree murder charge and this information was

reaffirmed on the record prior to trial. Williams’s lack of notice argument is therefore meritless.

Consequently, Williams’s objections regarding the use of uncharged predicates are

overruled.

E. Williams’s objections to the denial of his ineffectiveness claim for not seeking

to suppress the search of Williams’s cell phone are overruled.

Williams asserts that he did not procedurally default the claim that counsel was

ineffective for not seeking to suppress the search of Williams’s cell phone because both trial

counsel and PCRA counsel were ineffective for not raising the issue. See Objs. 13-14. He

further argues that the search was unlawful because it was conducted prior to the issuance of a

search warrant.

Upon de novo review, this Court also finds that the claim is procedurally defaulted

because it was not raised in the state courts. Further, because the claim lacks merit, PCRA

counsel was not ineffective for failing to raise it and Martinez offers no relief. Notably, in the

Memorandum of Law supporting the habeas petition, Williams alleged that the cell phone was

8 Although the affidavit also discussed, and Williams was charged with, felony firearms

violations, the predicate felonies for a second degree murder charge are limited to “robbery, rape,

or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.” See 18

Pa. C.S. § 2502(b), (d).

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searched without any warrant for the phone having ever been issued. See Habeas Memo. 31,

ECF No. 1. However, the Respondents established the inaccuracy of this argument by attaching

a copy of the warrant for the cell phone to their Response. See Resp. 44 and Ex. F, ECF No. 21.

In his objections, Williams now asserts, based solely on the fact that the warrant stated that the

owner of the phone was Williams, that the warrant was obtained after the cell phone was

searched. This argument is entirely baseless. The probable cause affidavit to the warrant

explains that the police recovered a cell phone bearing serial number 29CEE784 “from

Williams” and that Williams reported that he had certain specific information, which the police

deemed pertinent to the criminal investigation, “inside of his cell phone.” A search warrant was

approved for the cell phone bearing serial number 29CEE784. Counsel’s suggestion that the

police lied to obtain the cell phone warrant after having already conducted an illegal search

without a warrant is completely unfounded. In light of the warrant, trial counsel had no grounds

to move to suppress the search of the cell phone and Williams’s claim of ineffectiveness is

meritless. The objection is overruled.

F. Williams’s objection to the Magistrate Judge’s resolution of his

Confrontation Clause claim is overruled.

Williams objects to the Magistrate Judge’s determination that his claim alleging trial

counsel’s ineffectiveness for failing to object to testimony on Confrontation Clause grounds is

procedurally defaulted. See Objs. 15. In support of his objection, Williams cites to a statement

made by the PCRA court at the PCRA hearing regarding waiver of the claim. See id. However,

Williams ignores the Magistrate Judge’s explanation that the reason the claim is procedurally

defaulted is not because it was not addressed on direct appeal or even at the PCRA hearing, but

because it was not raised on PCRA appeal to the Pennsylvania Superior Court. It is for this

reason that the claim is procedurally defaulted. See Vaughter v. Lamas, No. 12-493, 2013 U.S.

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Dist. LEXIS 186367, at *18-23 (E.D. Pa. June 28, 2013), adopted by 2014 U.S. Dist. LEXIS

38137, at *33-35 and n.8 (E.D. Pa. Mar. 24, 2014) (determining that the claim was procedurally

defaulted because it was not raised on appeal from denial of PCRA relief and that “[a]ny failings

of Petitioner’s appellate PCRA counsel would not qualify for the Martinez exception, which

explicitly limited an excusable cause of procedural default to ineffective assistance of counsel at

the initial stage of collateral proceedings”); Aponte v. Palakovich, No. 09-3275, 2009 U.S. Dist.

LEXIS 128422, at *4 (E.D. Pa. Oct. 15, 2009) (“If [a petitioner] is unsuccessful in the PCRA

court, he must appeal the denial of relief to the Superior Court in order to comply with the

exhaustion requirement.”).

Furthermore, Williams’s mere assertion that procedural default does not apply because

“the gist of [his] habeas petition is actual, factual innocence,” see Objs. 15, is insufficient. The

Supreme Court has cautioned “that tenable actual-innocence gateway pleas are rare: ‘[A]

petitioner does not meet the threshold requirement unless he persuades the district court that, in

light of the new evidence, no juror, acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.’” McQuiggin, 569 U.S. at 386-87 (quoting Schlup, 513 U.S. at 329).

Williams, who does not allege the existence of new evidence, has not made the required

showing. Accordingly, the objection is overruled and the claim is dismissed as procedurally

defaulted.

G. Williams’s objection to the use of his nickname “Killa” is overruled.

In his objections, Williams reasserts his habeas claim that the repeated use of his

nickname, “Killa,” was unfairly prejudicial and constituted prosecutorial misconduct. See Objs.

17-18. His objection is two sentences long, which is the same length as the argument he offered

in both the petition for writ of habeas corpus and the memorandum of law supporting the

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petition, combined. See Habeas Pet. 9 and Habeas Memo. 35, ECF No. 1. Williams makes no

attempt to explain why the state courts’ resolution of this claim was incorrect, let alone show that

the decisions were unreasonable, as is necessary to rebut the presumption of correctness owed to

the state courts’ rulings. Moreover, only trial counsel’s alleged ineffectiveness in relation to the

use of the nickname is cognizable on habeas review and Williams’s objection makes no

reference to ineffectiveness.

Nevertheless, the Court has considered this issue and adopts the Magistrate Judge’s

analysis. The R&R explained that the trial court ruled that Williams’s rap name, Killa, which the

jury heard Williams gave to himself because he was a rapper, was relevant in that the witnesses

only knew Williams by that name and identified Williams only as Killa. See R&R 18-19

(quoting the trial court’s opinion pursuant to Rule 1925(b)). Additionally, as the Pennsylvania

Superior Court noted, the Commonwealth did not use the nickname to suggest that Williams was

violent. See R&R 19 (quoting the Superior Court’s opinion on direct appeal). Accordingly, the

prosecutor’s comments did not so infect the trial with unfairness as to make the resulting

conviction a denial of due process. See id. at 27. Moreover, trial counsel did object, both

pretrial and post-trial, to use of the nickname. See R&R 18. For all these reasons the claim lacks

merit and the objection is overruled.

H. Williams’s objection to unfair trial jury instructions.

In his tenth objection, Williams objects to the Magistrate Judge’s failure to address his

due process claim alleging the denial of a fair jury trial. See Objs. 16-18.9 Williams contends,

9 This objection is a word-for-word recitation of Ground Two in the Memorandum

supporting the habeas petition. Cf. Objs. 16-18, with Habeas Memo. 33-35. Some of the

arguments in this objection were also made in prior objections. See, e.g. Objs. 13. To avoid

repetition, the Court has limited Section H to Williams’s objections based on the jury

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first, that the failure to tailor the jury instructions to the facts of his case deprived him of a fair

trial. However, he fails to allege how the instructions should have been tailored differently, aside

from his claiming that the jury was not instructed on all lesser-included offenses.

Further, Williams’s complaint that “the jury was not instructed on all lesser included

offenses of robbery and kidnapping,” see Objs. 13, 16-18, lacks merit for two reasons. First,

because neither robbery nor kidnapping were charged as individual counts, trial counsel had no

basis to request a separate instruction that would allow the jury to convict on any lesser-included

offenses to these crimes.10 Second, to the extent that robbery and kidnapping served as the

predicate offenses to the second-degree murder charge, the jury was instructed on the elements

of second-degree murder, of robbery, and of kidnapping. In this context, the jury was also

instructed on the elements of theft as the predicate offense for robbery. See Notes of Testimony

(“N.T.”), Trial, Volume I, October 12, 2010, at N.T. 188:21 – 190:8. Contrary to Williams’s

suggestion, there is no lesser-included or predicate offense to kidnapping regarding which the

jury could have been instructed. See Commonwealth v. Ackerman, 361 A.2d 746, 749 (Pa. 1976)

(holding that “unlawful restraint cannot be said to be necessarily included within the crime of

kidnapping”); Commonwealth v. James, 121 A.3d 1132 (Pa. Super. Ct. 2015) (reaffirming that

“unlawful restraint is not a lesser included offense of kidnapping”). Accordingly, because the

jury was properly instructed on all the elements to which it had to find beyond a reasonable

doubt in order to convict Williams of the charged offenses, there was no error and no due process

violation.

instructions. Williams’s lack of notice argument regarding uncharged predicates was previously

addressed in Section D and the Breakiron claim was discussed Section B above.

10 Williams’s objection that the jury should have been instructed on the lesser included

offense of theft pursuant to Breakiron was further considered and overruled in Section B, supra.

14

Finally, as to Williams’s argument that the jury was not informed it had to reach a

unanimous verdict on the predicate offenses, this claim is procedurally defaulted. This Court has

conducted de novo review of the state court record including all motions, briefs, and state court

opinions.11 The unanimity issue was never raised, whether as trial court error or counsel’s

ineffectiveness, before the state courts. It is therefore procedurally defaulted and is dismissed.12

Williams’s final objection is overruled.

I. There is no basis for the issuance of a certificate of appealability.

A certificate of appealability (“COA”) should only be issued “if the petitioner ‘has made

a substantial showing of the denial of a constitutional right.’” Tomlin v. Britton, 448 F. App’x

224, 227 (3d Cir. 2011) (citing 28 U.S.C. § 2253(c)). “Where a district court has rejected the

constitutional claims on the merits, . . . the 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). “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.” Id.

11 This Court reviewed, inter alia, Williams’s statement of matters complained of on direct

appeal, his supplemental statement, his post-sentence motion, the trial court and Pennsylvania

Superior Court’s opinions on the same, Williams’s PCRA petition, his amended pro se PCRA

petition, his response to the Commonwealth’s motion to dismiss the PCRA petition, his

objections to the PCRA court’s notice of intent to dismiss, his corrected memorandum in support

of the PCRA petition, the PCRA court’s opinion, Williams’s statement of matters complained of

on appeal from the denial of PCRA relief, and the Pennsylvania Superior Court’s opinion

affirming the denial of PCRA relief.

12 The fundamental miscarriage of justice exception does not apply because Williams does

not allege the existence of new evidence.

15

For the reasons set forth herein and in the R&R, Williams has not made a substantial

showing of the denial of a constitutional right, nor would jurists of reason find the Court’s

assessment debatable or wrong.

V. CONCLUSION

After de novo review of Williams’s objections to the R&R, and for the reasons set forth

herein, the R&R is adopted. The objections are overruled and the habeas claims are denied and

dismissed.

A separate Order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.____________

JOSEPH F. LEESON, JR.

United States District Judge

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