GREEN v. KAUFFMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AMAR GREEN : CIVIL ACTION

:

v. : NO. 19-2919

:

KEVIN KAUFFMAN, et al. :

:

MEMORANDUM

KEARNEY, J. August 26, 2020

The incarcerated Amar Green petitions for habeas relief for the seventh time arguing he is

entitled release or a new trial because the verdict lacked sufficient evidence, his trial counsel

ineffectively assisted in his defense, and the ineffective assistance of post-conviction counsel

should excuse his procedurally defaulted claims. After reviewing the record and Mr. Green’s

Objections, we overrule Mr. Green’s Objections and adopt Judge Rice’s comprehensive Report

and Recommendation. We decline to issue a certificate of appealability as reasonable jurists could

not dispute our findings.

I. Facts adduced from the public record.

A Philadelphia police officer heard seven gunshots on July 23, 1999 while on patrol near

the 2100 block of Dickinson Street in Philadelphia.1 The officer found Luther Johnson bleeding,

unresponsive, and without a pulse.2 The responding emergency medical team declared

Mr. Johnson dead,3 and an autopsy showed Mr. Johnson had suffered six gunshot wounds,

including one to his head.4 The reporting officer later testified he heard seven gunshots: two in

quick succession, followed by a pause and then the remaining five.5

Four years later, Marcus Franklin reported the shooting to the police and the

Commonwealth arrested and charged Mr. Green and a co-defendant with the first-degree murder

of Mr. Johnson.6 Mr. Franklin testified he knew both the decedent and Mr. Green.7 Mr. Franklin

stated he saw Mr. Johnson leave a store on Dickinson Street and a car often in Mr. Green’s or the

co-defendant’s possession turn down the same street.8 Mr. Franklin saw Mr. Green in the

passenger seat of the car and Mr. Green’s co-defendant in the seat behind him.9 The car turned

left onto Dickinson Street, and the passengers on the right passenger-seat side of the car shot Mr.

Johnson as he rode his bicycle: Mr. Green shot first, knocking the decedent off of his bicycle and

Mr. Green’s co-defendant fired the remaining shots.10

Mr. Franklin left Pennsylvania in 2004 because “someone tried to kill him,” postponing

the trial.11 The prosecution located Mr. Franklin and put him in the witness protection program in

November 2010.12 The Commonwealth reinstated the charges against Mr. Green and set trial for

August 2012.13

Police held Mr. Green, his co-defendant, and Mr. Franklin in the same facility overnight

during the trial.14 Mr. Franklin testified both Mr. Green and his co-defendant “threatened” him to

try to prevent his testimony.15 During Mr. Green’s imprisonment, he confided to Marc Moore

about the murder.16 Mr. Green told Mr. Moore he killed a man on his bicycle17 and “kept firing

until [he] fell off the bike.”18 Mr. Moore relayed this information to a detective before trial.19

Mr. Green’s trial counsel attempted to undermine Mr. Franklin’s credibility by highlighting

the three-year delay between his witnessing the shooting and reporting it to the police during her

opening statement.20 Mr. Green’s trial counsel referred to potential evidence which would show

Mr. Franklin’s testimony to be baseless and derived from “gossip and innuendo.”21

Philadelphia’s Chief Medical Examiner Dr. Sam Gulino testified at trial as to his

independent observations confirmed in Mr. Johnson’s autopsy report.22 The original preparer of

the autopsy determined the gunshot wounds caused the decedent’s death, but she did not testify at

trial as she no longer worked in Philadelphia.23 Dr. Gulino concluded homicide caused

Mr. Johnson’s death with “a reasonable degree of medical certainty.”24 Dr. Gulino’s testimony

swore the bullet wound to the left side of Mr. Johnson’s head “would have been [] fatal[,]” and an

additional bullet severed Mr. Johnson’s spine and could have separately caused death.25

Two police officers testified at trial about their response to other shootings in March and

August 1999.26 The ballistics evidence of the bullet casings recovered from those shootings

matched a gun used in the killing of Mr. Johnson.27 After the shooting in August 1999, Officer

Kerry Pleasant swore he saw Mr. Green leave the apartment building from which Officer Pleasant

recovered the same gun.28 This testimony conflicted with Officer Pleasant’s statements to

homicide detectives, but he corrected it by stating he included his account of Mr. Green leaving

the apartment in his on-scene incident report.29

Both Mr. Franklin and Mr. Moore testified at trial.30 Mr. Green’s trial counsel cross-

examined the detective who took Mr. Moore’s testimony.31 Detective Dougherty posited

Mr. Moore’s testimony came from Mr. Green because of the “precise” nature of Mr. Moore’s

testimony.32 Mr. Green’s trial counsel highlighted the inconsistencies between Mr. Franklin and

Mr. Moore’s testimony.33

Neither defendant testified.34 At the close of trial, counsel for Mr. Green’s co-defendant

attempted to argue a jury could consider his client’s not-guilty plea as evidence tending to prove

his innocence.35 The prosecutor refuted this by explaining a plea is not exculpatory evidence

because it cannot be cross-examined, to which Mr. Green’s counsel twice objected.36

The trial judge instructed the jury to not consider attorney arguments as evidence.37 The

trial judge also instructed the jury it “may consider” Mr. Green and his co-defendant’s threats to

Mr. Franklin on the eve of trial “as tending to prove [their] consciousness of guilt,” but were “not

required to do so.”38 The trial judge instructed the jury it should evaluate inconsistencies in

statements Mr. Franklin and Mr. Moore gave before the trial and their testimony at trial.39 The

jury convicted Mr. Green of, among other things, first-degree murder,40 but the jury acquitted

Mr. Green’s co-defendant.41

Mr. Green appealed his conviction to the Pennsylvania Superior Court.42 Mr. Green argued

the judgment against him should be vacated for insufficient evidence to prove he had the requisite

specific intent for first-degree murder and because of the impropriety of the trial judge’s

consciousness of guilt instruction.43 The Superior Court rejected both claims.44 The Pennsylvania

Supreme Court did not grant review.45

Mr. Green then petitioned for post-conviction relief to overturn his conviction and the trial

court dismissed his petition.46 Mr. Green appealed arguing the post-conviction court erred by

dismissing his claims of ineffective assistance of trial counsel for not presenting character

witnesses to testify as to Mr. Green’s “non-violent” nature and ineffective assistance of trial

counsel for not requesting a mistrial after the prosecutor stated a not-guilty plea could not be

considered exculpatory evidence.47 The Superior Court rejected both claims on the merits.48

II. Analysis

Mr. Green timely petitioned for habeas relief.49 Mr. Green raises three claims denied by the

state courts: (1) the Commonwealth did not present sufficient evidence to support his first degree

murder conviction; (2) trial counsel was ineffective for failing to call character witnesses to testify

about his reputation for peacefulness; and, (3) trial counsel was ineffective for not seeking a

mistrial after the prosecutor improperly discussed his right to remain silent.50

Mr. Green adds five claims in his petition he did not present for the state court’s review:

(1) ineffective assistance of trial counsel for not requesting a mistrial after the trial court admitted

both the decedent’s autopsy into evidence and testimony from another medical examiner;

(2) ineffective assistance of trial counsel for failing to object to Officer Pleasant’s “perjured”

testimony; (3) ineffective assistance of trial counsel for positing there were “rumors” Mr. Green

committed the murder and these rumors could be used as evidence against him; (4) ineffective

assistance of trial counsel for deficient questioning of Detective Dougherty; and (5) a violation of

his due process rights due to the trial court’s instructions to the jury to consider both defendants’

threats to Mr. Franklin as indicative of their consciousness of guilt.51 As Mr. Green failed to

present these claims for state court review, they are procedurally defaulted, and we cannot consider

their merits unless Mr. Green meets his burden to excuse the procedural default.

The Honorable Timothy R. Rice “respectfully recommend[ed] [we] dismiss[] Green’s

claims with prejudice as meritless and procedurally defaulted.”52 After an extension due to

COVID-19 mitigation in his prison, Mr. Green objected to Judge Rice’s recommendations as to

each of his claims but did not raise new evidence or allege Judge Rice committed legal error.53 He

repeats his same arguments but now casts them as objections to Judge Rice’s Recommendation.

In an abundance of caution, we will consider Mr. Green as objecting to the entirety of Judge Rice’s

Recommendation. After studying the record, Judge Rice’s thoughtful analysis, and Mr. Green’s

objections, we adopt Judge Rice’s Report and Recommendation, reject Mr. Green’s previously

raised claims as well as his newly raised procedurally defaulted claims, and deny his petition with

prejudice. We further find no basis for an evidentiary hearing54 or a certificate of appealability.

A. Mr. Green may not proceed on claims state courts rejected on the merits.

We first look to the three claims Mr. Green raises today which he previously raised before

the state courts. We may only review a section 2254 habeas petition if the petitioner alleges his

imprisonment is “in violation of the Constitution, laws, or treaties of the United States.”55

If the petition meets this threshold, we apply a two-prong test under section 2254(d) where

a petitioner challenges a state court’s judgment made on the merits.56 Congress, in

section 2254(d)(1), requires a federal court to overturn a state court decision if it “was contrary to,

or involved an unreasonable application of, clearly established [Supreme Court] law.”57 A state

court’s decision is “contrary to” clearly established Supreme Court law where the state court

incorrectly relies on a “different” law than one controlling the specific issue.58 A state court

decision applying the applicable Supreme Court law “will rarely be unreasonable”59 and a federal

court can only grant habeas relief if the state court “unreasonably” applies the applicable law to

the set of facts,60 and not if the state court applies the applicable law “incorrectly” to the set of

facts.61 Federal habeas review of a state court decision under section 2254 is highly deferential to

the state court, and a federal court can only overturn the decision if it is “firmly convinced” the

state court’s decision amounted to a constitutional violation.62

Congress’s second prong of review under section 2254(d) requires we consider whether

the state court made an “unreasonable determination of the facts” given the evidence presented.63

We afford a similarly high level of deference to the state court’s determination as we do in the first

prong of section 2254(d) and we “presume[] [the state court] to be correct.”64 The habeas

petitioner must show the state court’s determination of fact to have been unreasonable by “clear

and convincing evidence.”65

Mr. Green raises claims rejected by the Pennsylvania Superior Court on both direct appeal

and in a post-conviction appeal on the merits: (1) insufficient evidence to convict for first-degree

murder, (2) ineffective assistance of trial counsel for failing to call character witnesses, and

(3) ineffective assistance of trial counsel for failing to request a mistrial after the prosecution stated

a not-guilty plea could not be considered as exculpatory evidence.66

1. The Pennsylvania Superior Court did not unreasonably apply the law

or determine facts in rejecting Mr. Green’s insufficient evidence

challenge on the merits.

Mr. Green argues we should overturn his conviction because the prosecution did not prove

he had the “premeditated specific intent to kill.”67 A sufficiency of the evidence challenge to a

state court conviction is a constitutional claim and satisfies the requirement of section 2254(a) for

our review. As Mr. Green raised this same constitutional claim on his direct appeal and because

the Superior Court rejected it on the merits, we conduct our review under section 2254(d) allowing

us to grant relief if (1) the state court decision was (1) contrary to clearly established federal law,

or (2) “ based on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.”68

We first consider whether the Superior Court applied a law “contrary to” the controlling

Supreme Court law on insufficiency of evidence challenges.69 The Supreme Court in Jackson v.

Virginia defined the scope of our review of challenges to the sufficiency of the trial evidence.70

Under Jackson, we must “view[] the evidence in the light most favorable to the prosecution” and

determine whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.”71 The Court’s Jackson standard “preserve[s]” the jury’s

determination about the evidence72 and affords the state appellate court’s review of the sufficiency

of evidence challenge deference.73

The Superior Court’s application of a similar standard to Jackson satisfies Congress’s

requirements in section 2254(d)(1). On Mr. Green’s direct appeal, the Superior Court applied a

Pennsylvania standard of review which required it consider the evidence from the trial “in the light

most favorable to the Commonwealth.”74 This standard is neither contrary to, nor an unreasonable

application of, the Jackson standard.

We next consider whether the Superior Court made an unreasonable determination to reject

Mr. Green’s sufficiency of the evidence challenge based on the evidence presented at trial. The

Superior Court rejected Mr. Green’s sufficiency of the evidence challenge by determining the

evidence presented at trial sufficiently established Mr. Green had the specific intent to kill

Mr. Johnson.75 The Superior Court relied on established Pennsylvania precedent where a

defendant commits the shooting “in concert” with another the prosecution need not prove the

defendant fired the “fatal shot” to show specific intent.76 The court added Dr. Gulino’s

independent evaluation of the autopsy report as supplementary evidence to support its

affirmance.77 The autopsy report noted Mr. Johnson sustained a gunshot wound to the forehead

and Dr. Gulino determined it “certainly would have been [] fatal[].”78 The court cited to earlier

Pennsylvania decisions which held specific intent can be shown where the defendant “used a

deadly weapon on a vital part of the decedent’s body”, and the autopsy report with Dr. Gulino’s

testimony could be used by the jury to support the conviction.79

In Kirnon v. Klopotoski, Judge Yohn denied a habeas petition based on a similar

evidentiary showing.80 The Commonwealth convicted the petitioner of first-degree murder after

a shootout.81 The Commonwealth’s conviction rested on eyewitness testimony.82 The habeas

petitioner alleged insufficient evidence to support his conviction on appeal, and the Superior Court

rejected the claim by relying on eyewitness testimony, which not only placed the petitioner “at the

scene of the murder” but also confirmed “he, along with his associate, actively participated in the

shooting[.]”83 As the petitioner did not refute the existence of eyewitness testimony during habeas

proceedings, Judge Yohn rejected the claim.84 Judge Yohn held the Superior Court’s reliance on

eyewitness testimony in affirming the conviction not to be an “unreasonable factual determination”

under section 2254(d)(2).85

Like in Kirnon, the Superior Court did not make an unreasonable determination in rejecting

Mr. Green’s sufficiency of the evidence claim based on the facts adduced at trial. Mr. Franklin

testified he saw Mr. Green and his co-defendant shoot Mr. Johnson.86 The responding medical

emergency team pronounced Mr. Johnson dead at the scene.87 The Superior Court’s decision

relied on Mr. Franklin’s eyewitness testimony and the Pennsylvania “concert of action” precedent

to affirm the trial court’s finding Mr. Green possessed the requisite specific intent to be convicted

of first-degree murder.88

Mr. Green presents no evidence to suggest the Superior Court made an unreasonable

determination in light of this eyewitness testimony. Mr. Green’s claim for insufficient evidence

is no different from his direct appeal.89 Like the petitioner in Kirnon, Mr. Green does not refute

Mr. Franklin’s eyewitness testimony.90 He instead tries to undermine the reliability of Dr.

Gulino’s independent determinations of the autopsy report.91 The Superior Court considered Dr.

Gulino’s testimony and the report as additional evidence to support Mr. Green’s conviction.92

We agree with Judge Rice’s Report and Recommendation recommending we dismiss this

claim with prejudice. We decline to grant Mr. Green relief on his insufficiency of evidence claim.

2. The post-conviction court did not unreasonably apply the law or

determine facts in rejecting Mr. Green’s claim of ineffective assistance

of trial counsel for failing to call character witnesses on the merits.

Mr. Green argued in the Pennsylvania Superior Court and repeats now his trial counsel

rendered ineffective assistance by not calling character witnesses to testify as to his “non-violent

character.”93 The post-conviction court rejected this claim on the merits.94 The Sixth Amendment

guarantees both the “right to counsel” and the “right to [] effective assistance of counsel.”95 We

have jurisdiction to review Mr. Green’s claims of ineffective assistance of counsel under

section 2254(a).96 As Mr. Green raised this same constitutional claim on his direct appeal and

because the Superior Court rejected it on the merits, we conduct our review under section 2254(d)

allowing us to grant relief if (1) the state court decision was contrary to clearly established federal

law, or (2) it “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”97

The Superior Court did not apply a law “contrary to” the controlling Supreme Court law

on ineffective assistance of counsel challenges.98 We apply the Supreme Court’s well-established

Strickland v. Washington standard in evaluating the effectiveness of Mr. Green’s counsel.99

Mr. Green must show his trial counsel performed “deficient[ly]” and thereby prejudiced him.100

We find no basis to disagree with the Pennsylvania courts’ holding trial counsel performed

deficiently if they “made errors so serious” so as to not qualify as “counsel” for the purposes of

the Sixth Amendment.101 Federal habeas review of Mr. Green’s trial counsel performance is

“highly deferential” and considers counsel to have performed “within the wide range of reasonable

professional assistance” unless shown otherwise.102 Mr. Green must present evidence his counsel

did not engage in “sound trial strategy.”103 Counsel has not acted “unreasonabl[y”] if Mr. Green’s

character or background prompted counsel to not engage in “fruitless or even harmful”

inquiries.”104 Our Court of Appeals has held counsel cannot be considered ineffective for refusing

to pursue a “meritless claim.”105

Counsel’s performance prejudices a petitioner if the severity of their errors “deprive[s] the

[petitioner] of a fair trial.”106 The petitioner bears the burden of demonstrating “but for counsel’s

[] errors” there existed a “reasonable probability” the underlying lawsuit would have been decided

differently.107 The strength of the evidentiary record at trial affects the merits of the prejudice

prong of the Strickland test.108 The reviewing habeas court must consider the entire evidentiary

record in determining prejudice.109

We need not consider section 2254(d)(1) as the post-conviction court applied a “refined”

Strickland standard to Mr. Green’s ineffective assistance claim for failing to call character

witnesses.110

We now must consider whether the post-conviction court made an “unreasonable

determination” to reject Mr. Green’s ineffective assistance of counsel claim based on the facts.

The post-conviction court rejected Mr. Green’s ineffective assistance of counsel claim on the

merits.111 In its review, the court reasoned Mr. Green’s trial counsel engaged in sound trial strategy

by not calling character witnesses because they could have presented damaging information about

Mr. Green.112 As the prosecution prepared to undermine any positive inferences from the character

witnesses, the post-conviction court considered Mr. Green’s previous criminal history and his role

in other shootings would render any benefit from their testimony negligible.113

Our Court of Appeals has examined an ineffective assistance of counsel claim in a similar

context.114 In Jeffs, the jury convicted the petitioner of first-degree murder after he admitted to

shooting the decedent in self-defense.115 The petitioner sought to overturn the conviction by

alleging ineffective assistance of trial counsel for its failure to call a character witness who would

have testified to the decedent’s “aggressive behavior,” potentially “exculpat[ing]” the petitioner

by lending support to his self-defense claim.116 Our Court of Appeals rejected the petitioner’s

claim, reasoning the decision to not call the witness sounded in strategy because the testimony

could have been damaging.117 It would have invited testimony both to the decedent’s “peaceful”

nature and the petitioner’s “aggressive” behavior, thereby casting doubt on the self-defense

claim.118

Mr. Green fails to adduce a basis for us to find the post-conviction court made an

unreasonable determination in rejecting his ineffective assistance claim where trial counsel did not

call character witnesses. Like the defense attorney in Jeffs, Mr. Green’s trial counsel exercised

sound trial strategy by not calling the character witnesses as it would have permitted questions

about Mr. Green’s criminal background and role in other shootings.119 Mr. Green does not indicate

the testimony would do anything beyond show he had “good character.”120 Mr. Green argues the

testimony would be exculpatory by “undermin[ing] the inconsistent eyewitness” testimony of

Mr. Franklin,121 but the trial judge instructed the jury to consider this inconsistency in its

deliberations.122 Mr. Franklin’s testimony played an integral role in the prosecution’s case against

Mr. Green.123 Mr. Green’s failure to allege facts as to how the character witness testimony would

have negated this principal form of evidence for his conviction is also a failure to show this

decision prejudiced him.

The cases to which Mr. Green cites provide no support to his argument as they contain no

factual parallels.124 Mr. Green cited Commonwealth v. Neely, which involved a defendant who

the witnesses considered a “peaceful and law-abiding citizen.”125 The evidence adduced both at

trial and Mr. Green’s post-conviction proceedings support the notion he is neither.126 His citation

to Commonwealth v. Weiss is also misguided as the underlying criminal trial relied on “direct”

eyewitness testimony of the defendant and the victim.127 Neither defendant testified in

Mr. Green’s trial, and the victim could not do so.

As Judge Rice concluded “[a]ny potential benefit from character testimony would have

been negated by the introduction of Green’s criminal history.”128 We adopt Judge Rice’s Report

and Recommendation and reject Mr. Green’s claim of ineffective assistance of trial counsel for

not calling character witnesses.129

3. The post-conviction court did not unreasonably apply the law or

determine facts in rejecting Mr. Green’s claim of ineffective assistance

of trial counsel for not requesting a mistrial due to alleged prosecutorial

misconduct at the trial’s end.

Mr. Green argues his trial counsel provided ineffective assistance for not demanding a

mistrial after the prosecution created an alleged “negative inference” with respect to Mr. Green’s

not-guilty plea.130 The post-conviction court rejected this claim on the merits.131 Prosecutorial

misconduct invokes a defendant’s due process rights.132 As both ineffective assistance and

prosecutorial misconduct claims implicate constitutional rights, we can properly review them

under section 2254(a).133

The post-conviction court applied the prejudice prong of the Strickland ineffective

assistance standard, so we need not make section 2254(d)(1) the focus of our inquiry as the

Strickland standard is conjunctive.134 We must determine whether the post-conviction court made

an unreasonable determination in rejecting Mr. Green’s claim of ineffective assistance based on

the statements of the prosecution.

A prosecutor’s actions at trial violate due process if they “infect[] the trial with

unfairness.”135 The prosecution’s misconduct must not be viewed in isolation.136 The court

examining the misconduct must review the “severity of the conduct, the effect of the curative

instructions, and the quantum of evidence against the defendant.”137 A reviewing court must also

exercise caution in evaluating counsel’s conduct at the end of the trial.138 The prosecution’s

closing arguments should not “lightly” be considered to “have [their] most damaging meaning”

nor be assumed to be construed as such by the jury.139

The post-conviction court did not apply a standard contrary to Strickland in its assessment

of defense counsel’s actions at the end of the trial.140 The Strickland standard is conjunctive: it

requires a petitioner to show their counsel performed deficiently and this performance prejudiced

them.141 The post-conviction court only applied the Pennsylvania equivalent to the prejudice

prong of the Strickland test.142 We now review whether the post-conviction court made an

unreasonable determination given the facts of his case by rejecting Mr. Green’s claim of ineffective

assistance of trial counsel for failing to request a mistrial in light of the prosecution’s remarks.

Neither Mr. Green nor his co-defendant testified at trial and both pleaded not guilty.143 At

the close of trial, defense counsel for Mr. Green’s co-defendant “improperly” attempted to argue

the jury could consider his client’s not-guilty plea as tending to show his innocence.144 The

prosecution refuted this argument by stating the jury could not consider the co-defendant’s plea as

evidence of guilt or innocence because the co-defendant did not avail himself to cross-

examination.145 Defense counsel twice objected to the prosecution’s comments.146 The post-

conviction court rejected Mr. Green’s claim of ineffective assistance of counsel for lack of

prejudice because the jury acquitted his co-defendant despite this exchange.147 The prosecutor

directed his statements in response to the co-defendant’s counsel.148 The post-conviction court

considered the prosecution’s comments to be a “fair response to the other defense counsel’s

ploy.”149

Our Court of Appeals considered a similar ineffective assistance claim to the one Mr.

Green’s now raises in Werts v. Vaughn.150 The petitioner in Werts argued his trial counsel rendered

ineffective assistance by failing to request a mistrial and object to the prosecution’s remarks during

closing arguments.151 Our Court of Appeals evaluated whether the comments were an “invited

response” to arguments made by defense counsel, and whether the prosecutor “went no further

than required to right the scale.”152 The court held the prosecutor’s remarks neither warranted a

mistrial nor constituted misconduct as they fairly responded to comments made by defense

counsel.153 The court also rejected the petitioner’s argument of ineffective assistance as counsel

cannot be considered ineffective for lack of objection to “not improper” prosecutorial

comments.154

The post-conviction court did not make an unreasonable determination of the facts by

rejecting Mr. Green’s claim of ineffective assistance of counsel for failing to request a mistrial

because the prosecutor did not commit misconduct. Mr. Green fails to show his trial counsel

prejudiced him by not requesting a mistrial.155 Mr. Green cannot argue ineffective assistance of

counsel in the first instance as there is no evidence of prosecutorial misconduct. Like the

prosecution in Werts, the defense counsel’s comment “invited” the prosecutor’s response.156 The

prosecutor’s statement a plea could not be considered exculpatory evidence “went no further than

required to right the scale.”157 Counsel for Mr. Green objected to the prosecutor’s responses unlike

the defense counsel in Werts.158 But consideration of the objection is immaterial to our inquiry as

Mr. Green fails to show the prosecutor’s comments constituted misconduct. As there is no

showing of misconduct, Mr. Green’s claim of ineffective assistance fails on the merits.159

We agree with Judge Rice’s Report and Recommendation and decline to grant relief on

Mr. Green’s claim of ineffective assistance of counsel for failing to request a mistrial as he fails to

plead prosecutorial misconduct.160

B. We deny Mr. Green’s procedurally defaulted habeas claims.

We now review Mr. Green’s claims which he raises today but failed to raise in state court.

A habeas petitioner must first argue their claims in state court before they can raise them in a

section 2254 petition as section 2254(b)(1)(A) prevents us from granting federal habeas relief if

the petitioner failed to “exhaust[] the remedies” at the state level.161 Failure to comply with section

2254(b)(1)(A) renders the unraised claims “procedurally defaulted.”

Yet a procedural default on a habeas claim does not necessarily prevent our review.162 To

enable our review, a petitioner must show “cause for the default[,]” and the underlying claim

asserted “actual[ly] prejudice[d]” them at their initial trial, or a federal court’s refusal to review

the procedurally defaulted claim “will result in a fundamental miscarriage of justice.”163 Our Court

of Appeals held a petitioner can show cause for a procedural default if “some objective factor

external to the defense” prevented their bringing the defaulted claim in state court.164 Our Court

of Appeals defines a “fundamental miscarriage of justice” argument as requiring the petitioner to

present evidence establishing their “actual innocence.”165 A habeas petitioner alleges “actual

innocence” by presenting “new evidence” which would prevent any factfinder from concluding

the petitioner’s guilt “beyond a reasonable doubt.”166

A petitioner can show cause to defeat a procedural default on an ineffective assistance of

trial counsel claim where the post-conviction counsel falls below the Strickland standard.167 A

petitioner must show the “underlying ineffective assistance of trial counsel claim is [] substantial”

and has some merit.168 A petitioner must show both trial and post-conviction counsel rendered

ineffective assistance to establish the “cause” prong of the Coleman excusal-of-procedural-default

test.169

A petitioner pleads “actual prejudice” for their procedurally defaulted claim where the trial

counsel’s performance contributed to their “actual and substantial disadvantage,” and “infect[ed]

[the petitioner’s] trial with error of constitutional dimensions.”170

Mr. Green brings five claims he did not raise in the state court: (1) ineffective assistance

of trial counsel for failing to object to the admission of the decedent’s autopsy and testimony from

an independent medical examiner, (2) ineffective assistance of trial counsel for failing to object to

Officer Pleasant’s perjured testimony, (3) ineffective assistance of trial counsel for discussing

rumors about Mr. Green during trial counsel’s opening remarks and whether these rumors could

have been used as evidence against Mr. Green, (4) ineffective assistance of trial counsel for failing

to object to Detective Dougherty’s vouching for Mr. Moore, and (5) the trial judge’s instruction to

the jury to consider Mr. Green and his co-defendants’ threats to Mr. Franklin as indicative of their

consciousness of guilt violated Mr. Green’s due process rights.171

Mr. Green presents no new evidence of actual innocence; our review of his procedurally

defaulted claims is limited to whether Mr. Green can show cause and prejudice from the underlying

trial counsel claims to warrant relief.172

1. Mr. Green’s procedurally defaulted claim of ineffective assistance of

trial counsel for failing object to the admission of the autopsy report

and testimony from a different medical examiner cannot be excused as

it lacks merit.

Mr. Green argues the trial court’s admitting the autopsy report and permitting someone

other than its original preparer to testify as to its contents violated his Sixth Amendment

Confrontation Clause rights.173 We must assess whether Mr. Green pleads a “substantial” claim

of ineffective assistance of trial counsel before we can determine whether post-conviction counsel

rendered ineffective assistance because this claim is procedurally defaulted.174 Mr. Green bears

the burden of demonstrating his underlying claim has merit and the decision to not object to

admission of the autopsy report and testimony from another medical examiner fell below

Strickland’s “wide range” of adequate legal assistance and “deprived” Mr. Green of a fair trial in

light of the entire evidentiary record.175

The Confrontation Clause affords a criminal defendant “the right . . . to be confronted with

the witnesses against him.”176 The Confrontation Clause bars the admission of “testimonial”

evidence or statements of certain witnesses who are unable to testify and permits admission of

such evidence or statements only if the witness is “unavailable” to testify or the defendant “had a

prior opportunity to cross-examine” them.177

The Supreme Court has not opined on whether an autopsy report qualifies as “testimonial

evidence” under the Confrontation Clause.178 The United States District Court for the Southern

District of New York interpreted this lack of settled law as a reason to deny a habeas petitioner’s

ineffective assistance of counsel claim similar to the one before us.179 In Johnston v. Mahally,

Judge Robreno reached a similar conclusion in a different habeas context.180 A state jury convicted

the defendant of the first-degree murder of two victims.181 The prosecution called a medical

examiner who did not prepare the autopsy reports to testify as to the cause of the deaths of the

decedents.182 The prosecution “asked” if the examiner could make an independent determination

by examining the autopsy reports, to which defense counsel objected.183 The defendant’s habeas

petition alleged the medical examiner’s testimony and the admission of the autopsy reports into

evidence violated his Confrontation Clause rights.184 Judge Robreno rejected the petitioner’s

claim, adding “even if” the admission of this evidence violated the petitioner’s Confrontation

Clause rights, the totality of the evidence adduced at trial supported upholding the conviction.185

Though our review of Mr. Green’s Confrontation Clause claim is under an ineffective

assistance of trial counsel standard, Judge Robreno’s decision is persuasive. Even if we concede

Mr. Green’s trial counsel performed deficiently under Strickland by not objecting to the admission

of this evidence, we must reject his claim for failure to show the evidence prejudiced him at trial.186

Much of Mr. Green’s claim focuses on the effect the autopsy evidence might have had on his

conviction.187 Yet the Superior Court affirmed his conviction by relying on Mr. Franklin’s

eyewitness testimony and settled Pennsylvania precedent on killings committed in concert with

another person.188 Like the petitioner addressed by Judge Robreno in Johnston, evidence other

than the autopsy report and medical examiner’s testimony formed the basis of Mr. Green’s

conviction.189 Mr. Green speculates about the “effect” the autopsy testimony had on his

conviction.190 Yet the state court cases he cites do not include instances of testimony or evidence

inadmissible under the Confrontation Clause which affected the outcome of the criminal

defendant’s trial.191

We agree with Judge Rice’s Report and Recommendation and decline to apply the

Martinez exception for Mr. Green’s procedurally defaulted claim as the underlying claim of

ineffective assistance lacks prejudice.192

2. Mr. Green’s procedurally defaulted claim of ineffective assistance of

trial counsel for failing to object to perjured testimony cannot be

excused because it lacks merit.

Mr. Green argues his trial counsel rendered ineffective assistance by failing to object to

Officer Kerry Pleasant’s testimony about the difference between his testimony at trial and his

statement to detectives after the August shooting.193 Officer Pleasant wrote in his on-scene

incident report and testified at trial he saw Mr. Green leave the apartment building, but told the

homicide detectives he saw another person.194 Mr. Green alleges this “conflicting and

contradictory testimony” constituted perjury, and his trial counsel rendered ineffective assistance

by failing to object to it.195 Mr. Green bears the burden of showing his ineffective assistance claim

has merit to overcome its procedural default.196

Our Court of Appeals defines perjury as a witness “giv[ing] false testimony concerning a

material matter with the willful intent to provide false testimony, rather than as a result of

confusion, mistake or faulty memory.”197 A “discrepancy” in a witness’s testimony is “not enough

to prove perjury.”198 Perjured testimony violates a habeas petitioner’s due process rights if the

state “presents or fails to correct” it during the criminal trial.199 A habeas petitioner alleging a

claim of perjured testimony has the burden of establishing “(1) [the witness] committed perjury,

(2) the Commonwealth knew or should have known that the testimony was false, (3) the false

testimony was not corrected, and (4) there is a reasonable likelihood that the perjured testimony

could have affected the judgment of the jury.”200

Mr. Green fails to present evidence Officer Pleasant “willfully intended” to provide false

testimony as to whom he saw leave the apartment building after the August shooting.201 Mr. Green

pleads conclusory statements in his petition and labels Officer Pleasant’s testimony as “deliberate

deception” but nowhere alleges facts to prove Officer Pleasant deliberately gave false testimony.202

Because Mr. Green pleads no facts Officer Pleasant provided perjured testimony, Mr. Green’s

ineffective assistance of trial counsel for failing to object to the testimony must also fail.203

Mr. Green cannot show cause for its procedural default because the underlying ineffective

assistance of trial counsel claim lacks merit.204

We agree with Judge Rice’s Report and Recommendation and decline to excuse the

procedural default of Mr. Green’s claim of ineffective assistance of trial counsel for failing to

object to Officer Pleasant’s testimony.205

3. Mr. Green’s procedurally defaulted claim of ineffective assistance of

counsel for their statements made during opening remarks cannot be

excused because it lacks merit.

Mr. Green argues trial counsel rendered ineffective assistance by referencing “rumors” as

to whether Mr. Green committed the murder and this reference could have been used as evidence

against him in violation of his Confrontation Clause rights.206 During opening remarks,

Mr. Green’s counsel stated the evidence at trial would cast doubt on Mr. Franklin’s eyewitness

testimony as being based on “gossip” because of the delay between the murder and Mr. Franklin’s

report of it to the police.207 Mr. Green argues these remarks could have been used as “additional

evidence” as he could not respond to them at trial.208 Mr. Green must allege the underlying

ineffective assistance of trial counsel argument has merit to show cause and excuse its procedural

default.209

The Confrontation Clause protects a criminal defendant from “testimonial statements of

witnesses” unable to testify or be questioned at trial unless the witness either cannot appear at trial

or the defendant had a “prior opportunity to cross-examine” the witness.210 Our Court of Appeals

has held the remarks or arguments of counsel “are simply not evidence.”211 Before considering

the evidence from trial and returning a verdict, juries are given instructions as to how to weigh the

evidence in their decision and are “presumed to follow [] instructions.”212

Mr. Green’s claim trial counsel violated his Confrontation Clause rights by discussing

rumors during opening argument lacks merit. Mr. Green’s counsel posited whether “gossip and

innuendo” from the neighborhood formed the basis of Mr. Franklin’s eyewitness testimony.213

Mr. Green incorrectly characterizes this as “additional evidence” by which the jury could have

found Mr. Green guilty.214 Counsel’s arguments are not evidence and Mr. Green does not assert

the Commonwealth admitted the “rumors” into evidence.215 Even if the jury considered the

mention of these rumors as evidence, the trial judge instructed the jury to not consider counsel

arguments as evidence, and we presume the jury will follow the judge’s instructions.216

We agree with Judge Rice’s Report and Recommendation and decline to excuse the

procedural default of Mr. Green’s claim of ineffective assistance of trial counsel for their opening

remarks as arguments of counsel are not evidence for the purposes of the Confrontation Clause.217

4. Mr. Green’s procedurally defaulted claim of ineffective assistance of

trial counsel for cross-examining Detective Dougherty and allowing

him to vouch for the testimony of Mr. Moore cannot be excused because

it lacks merit.

Mr. Green argues his trial counsel rendered ineffective assistance by cross-examining

Detective Dougherty so as to “elicit[] the detective’s belief that [Mr. Moore] was truthful.”218

Under questioning, Detective Dougherty stated he “believe[d]” Mr. Moore’s testimony came

directly from Mr. Green as his testimony “is so precise.”219 Mr. Green categorizes this as “opinion

evidence . . . [as to] witness credibility,” essentially alleging Detective Dougherty vouched for

Mr. Moore as a witness.220 Mr. Green bears the burden of establishing his procedurally defaulted

claim of ineffective assistance for facilitating this witness vouching has some merit to excuse its

default.221

Our Court of Appeals defines witness vouching as instances where the prosecuting attorney

“suggests that she has reasons to believe a witness that were not presented to the jury.”222 An

integral component of vouching is its reference to information not included in the evidentiary

record.223 An attorney can argue a witness is “trustworthy” by reference to the witness’s testimony

presented to the jury.224

Detective Dougherty did not vouch for the testimony of Mr. Moore based on this definition.

Mr. Green’s petition includes a citation to the transcript from his trial as evidence of Detective

Dougherty’s vouching.225 Yet the full section of defense counsel’s questioning of Detective

Dougherty reveals his opinion Mr. Moore’s testimony came from Mr. Green because of the

“precise” nature of Mr. Moore’s testimony.226 Witness testimony is record evidence. Mr. Green’s

underlying ineffective assistance of counsel claim lacks merit.

We agree with Judge Rice’s Report and Recommendation and decline to excuse the

procedural default of Mr. Green’s claim of ineffective assistance of trial counsel as trial counsel’s

questioning of Detective Moore did not constitute witness vouching.227

5. Mr. Green’s procedurally defaulted claim regarding the trial judge’s

instructions as to his consciousness of guilt cannot be excused because

he fails to show the instructions prejudiced him.

Mr. Green makes several claims in his habeas petition about the trial judge’s instruction to

the jury as to his and his co-defendant’s consciousness of guilt for trying to prevent Mr. Franklin’s

testimony.228 The trial judge instructed the jury it could consider Mr. Franklin’s testimony about

the co-defendant’s threats as proving their “consciousness of guilt” if they “believe[d] this

evidence,” but did not “require” this of the jury.229 Mr. Green alleges the trial judge lacked

sufficient evidence to give this instruction, the instruction created a “mandatory presumption” he

committed the murder, and his trial counsel’s failure to object to the instruction prejudiced him.230

Mr. Green fails to plead facts demonstrating the trial judge’s instructions prejudiced him.

The instruction applied to both Mr. Green and his co-defendant.231 Yet the jury acquitted

Mr. Green’s co-defendant.232 Mr. Green does not explain how the instruction operated as a

“mandatory presumption” to his guilt but not to his co-defendant’s.233

We agree with Judge Rice’s Report and Recommendation and decline to excuse the

procedural default of Mr. Green’s due process claim as to the trial judge’s instructions because

Mr. Green fails to show prejudice.234

C. We deny a certificate of appealability.

“[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

district court's denial of his petition.”235 Congress, in section 2253, provides the standard for a

certificate of appealability required for appellate review of a district court’s judgment denying

habeas relief:

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district

judge, the final order shall be subject to review, on appeal, by the court of appeals for

the circuit in which the proceeding is held.

(b) There shall be no right of appeal from a final order in a proceeding to test the validity

of a warrant to remove to another district or place for commitment or trial a person

charged with a criminal offense against the United States, or to test the validity of such

person’s detention pending removal proceedings.

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may

not be taken to the court of appeals from—

(A) the final order in a habeas corpus proceeding in which the detention complained

of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant

has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific

issue or issues satisfy the showing required by paragraph (2).236

A certificate of appealability “will issue only if the requirements of § 2253 have been

satisfied.”237 A habeas petitioner seeking a certificate of appealability “need only demonstrate ‘a

substantial showing of the denial of a constitutional right.’”238 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.” 239

Federal Rule of Appellate Procedure 22 contemplates a district court issuing a certificate

of appealability in the first instance:

(b) Certificate of Appealability. (1) In a habeas corpus proceeding in which the

detention complained of arises from process issued by a state court, or in a 28

U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a circuit

justice or a circuit or district judge issues a certificate of appealability under 28

U.S.C. § 2253(c). If an applicant files a notice of appeal, the district clerk must send

to the court of appeals the certificate (if any) and the statement described in Rule

11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255 (if

any), along with the notice of appeal and the file of the district-court proceedings.

If the district judge has denied the certificate, the applicant may request a circuit

judge to issue it.240

Given the standard we apply today to habeas challenges to state trial court rulings and

ineffectiveness of counsel, we cannot find jurists of reason could disagree with our reasoning in

denying the petition. Mr. Green has not met his burden in showing a reasonable jurist would

disagree with the denial of his petition.

III. Conclusion

We adopt Judge Rice’s Report and Recommendation and dismiss Mr. Green’s petition.

We decline to issue a certificate of appealability under 28 U.S.C. § 2253 as Mr. Green has not

made a “substantial showing” any of the claims discussed above denied him a constitutional right.

1 ECF Doc. No. 12 at *1.

2 Id.

3 Id.

4 Id.

5 Commonwealth v. Green, No. 2711 EDA 2012, 2014 WL 10889887, at *1 (Pa. Super. Aug. 15,

2014).

6 Id. at *3.

7 Id. at *1.

8 Id.

9 Id.

10 Id.

11 Id. at *3.

12 Id.

13 Id.

14 ECF Doc. No. 12 at 15.

15 Notes of Testimony (“N.T.”) August 24, 2012 Trial at 130-33; Green, 2014 WL 10889887,

at *1.

16 N.T. August 24, 2012 at 188-89.

17 Id.

18 Id.

19 Id. at 185.

20 N.T. August 23, 2012 Trial at 65.

21 Id. at 65-66.

22 Id. at 105.

23 Id. at 104-05.

24 Id. at 105.

25 Green, 2014 WL 10889887, at *1.

26 Id. at *2.

27 Id.

28 Id. at *3.

29 N.T. August 27, 2012 Trial at 125.

30 ECF Doc. No. 12 at 2.

31 N.T. August 24, 2012 Trial at 241-44.

32 Id. at 244.

33 N.T. August 23, 2012 Trial at 200 (“I [Mr. Franklin] saw Amar shoot him from the passenger’s

side[.]”); N.T. August 24, 2012 Trial at 188 (“Amar shot the dude once in the neck, and he kept

firing until the dude fell off the bike . . . and the two of them [Mr. Green and his co-defendant] just

kept walking[.]”).

34 ECF Doc. No. 12 at 6.

35 Id.

36 N.T. August 28, 2012 Trial at 241-42.

37 N.T. August 28, 2012 Trial at 9.

38 Id. at 48-49.

39 Id. at 45.

40 Commonwealth v. Green, No. 681 EDA 2018, 2018 WL 6060547, at *3 (Pa. Super. Nov. 20,

2018).

41 ECF Doc. No. 12 at 6.

42 Commonwealth v. Green, No. 2711, 2014 WL 10889887 (Pa. Super. Aug. 15, 2014).

43 Id. at *4.

44 Id.

45 ECF Doc. No. 12 at 2.

46 Id. at 3.

47 Green, 2018 WL 6060547, at *1-2.

48 Id. at *3.

49 ECF Doc. No. 12 at 3.

50 ECF Doc. No. 2 at 33, 37, 41.

51 Id. at 35, 50, 59, 63. As Judge Rice correctly pointed out about this fifth claim, “Green raised a

similar claim in state court, arguing there was insufficient evidence to support a consciousness of

guilt jury instruction. To the extent he raises that same claim in his federal petition, it is non-

cognizable.” ECF Doc. No. 12 at 15 (citations omitted).

52 ECF Doc. No. 12 at 1.

53 ECF Doc. No. 22.

54 In United States v. Scripps, our Court of Appeals remanded to the district court for an evidentiary

hearing on the defendant’s section 2255 petition asserting ineffective assistance of counsel for

advising Mr. Scripps to not speak during sentencing. 961 F.3d 626. Our Court of Appeals held

we “must hold an evidentiary hearing ‘[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.’” Scripps, 961 F.3d at 631-632. Unlike

in Scripps, the factual record and briefing before us “conclusively show [Mr. Green] is entitled to

no relief.” Id. We do not believe further factual development is necessary and, under Scripps, we

need not hold an evidentiary hearing.

55 Mitchell v. Superintendent Dallas SCI, 902 F.3d 156, 163 (3d Cir. 2018) (citing 28 U.S.C.

§ 2254(a)).

56 Eley v. Erickson, 712 F.3d 837 (3d Cir. 2013).

57 See id. at 845; 28 U.S.C. § 2254(d)(1).

58 Bell v. Cone, 535 U.S. 685, 694 (2002).

59 Williams v. Taylor, 529 U.S. 362, 389 (2000).

60 Bell, 535 U.S. at 694.

61 Eley, 712 F.3d at 846.

62 Williams, 529 U.S. at 389.

63 28 U.S.C. § 2254(d)(2).

64 Eley, 712 F.3d at 846.

65 Id.

66 ECF Doc. No. 2 at 33, 37, 41.

67 Id. at 33.

68 28 U.S.C. § 2254(d)(2).

69 Id. at *4.

70 433 U.S. 307 (1979).

71 Id. at 319.

72 Id.

73 See id. at 322 (“[M]ost meritorious challenges to constitutional sufficiency of the evidence

undoubtedly will be recognized in the state courts, and, if the state courts have fully considered

the issue of sufficiency, the task of a federal court should not be difficult.”).

74 Green, 2014 WL 10889887, at *4.

75 Id. at *5.

76 Id. (quoting Commonwealth v. Boxley, 838 A.2d 608, 612 n.1 (Pa. 2003)).

77 Id. at *6.

78 Id.

79 Id. at *5-6.

80 Kirnon v. Klopotoski, 620 F. Supp. 2d 674 (E.D. Pa. 2008).

81 Id. at 678.

82 Id.

83 Id.

84 Id. at 680, 685.

85 Id. at 689.

86Green, 2014 WL 10889887, at *1.

87 Id.

88 Id. at *1, *5.

89 Compare id. at *4 (“[T]he Commonwealth failed to prove that Appellant committed an

intentional killing and possessed a premeditated, shared specific intent to kill[.]”), with ECF Doc.

No. 2 p. 33 (“[T]he Commonwealth failed to prove beyond a reasonable doubt that [petitioner]

committed an intentional killing and possessed a premeditated specific intent to kill[.]”).

90 See ECF Doc. No. 2 at 33-35.

91 Id. at 35.

92 See Green, 2014 WL 10889887, at *5 (“We conclude that Appellant’s actions, taken as a whole,

demonstrate that he and Custis shared the specific intent to kill decedent. Contrary to Appellant’s

contention, the record further reveals that the jury could infer that Appellant had a specific intent

to kill [based on Gulino’s testimony] . . . .”).

93 ECF Doc. No. 2 at 37.

94 Commonwealth v. Green, No. 681 EDA 2018, 2018 WL 6060547, at *1, *3 (Pa. Super. Nov. 20,

2018).

95 Strickland v. Washington, 466 U.S. 668, 686 (1984).

96 Mitchell v. Superintendent Dallas SCI, 902 F.3d 156, 163 (3d Cir. 2018) (citing 28 U.S.C.

§ 2254(a)).

97 28 U.S.C. § 2254(d)(2).

98 Id. at *2.

99 Strickland, 466 U.S. at 687.

100 Id.

101 Id.

102 Id. at 689.

103 Id.

104 Id. at 691.

105 Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000).

106 Strickland, 466 U.S. at 687.

107 Id. at 694.

108 Id. at 696 (“Moreover, a verdict or conclusion only weakly supported by the record is more

likely to have been affected by errors than one with overwhelming record support.”).

109 Id. at 695.

110 Green, 2018 WL 6060547, at *2.

111 Id. at *3.

112 Id. (citing N.T. January 30, 2018 Hearing at 3-7).

113 Id. at *1, *3; see also N.T. January 30, 2018 at 7 (“This is certainly not a witness who this Court

would consider having a good character for peacefulness. Once peacefulness was put out on direct

examination and character as reputation evidence, there was much fodder for the

Commonwealth.”).

114 Jeffs v. Secretary Pennsylvania Department of Corrections, 715 F. App’x 131 (3d Cir. 2017).

115 Id.

116 Id. at 132-33.

117 Id. at 134.

118 Id.

119 Green, 2018 WL 6060547, at *3.

120 See ECF Doc. No. 2 at 40-41.

121 Id. at 41.

122 N.T. August 29, 2012 Trial at 45.

123 Green, 2014 WL 10889887, at *3. The Commonwealth suspended the charges against Mr.

Green for six years until it could locate Mr. Franklin.

124 ECF Doc. No. 2 at 38.

125 Commonwealth v. Neely, 561 A.2d 1, 2 (Pa. 1989).

126 N.T. January 30, 2018 at 3-7.

127 Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992).

128 ECF Doc. No. 12 at 5.

129 ECF Doc. No. 12 at 5.

130 ECF Doc. No. 2 at 41.

131 Green, 2018 WL 6060547, at *3.

132 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

133 Mitchell v. Superintendent Dallas SCI, 902 F.3d 156, 163 (3d Cir. 2018) (citing 28 U.S.C.

§ 2254(a)).

134 Strickland v. Washington, 466 U.S. 668, 687 (1984).

135 Donnelly, 416 U.S. at 643.

136 Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).

137 Id.

138 Donnelly, 416 U.S. at 647.

139 Id.

140 Green, 2018 WL 6060547, at *3.

141 Strickland v. Washington, 466 U.S. 668, 687 (1984).

142 Green, 2018 WL 6060547, at *3.

143 ECF Doc. No. 12 at 6.

144 Green, 2018 WL 6060547, at *3.

145 N.T. August 28, 2012 Trial at 241.

146 Id. at 241-42.

147 Green, 2018 WL 6060547, at *3.

148 Id.

149 Id.

150 Werts v. Vaughn, 228 F.3d 178 (3d Cir. 2000).

151 Id. at 189.

152 Id. at 199.

153 Id. at 205.

154 Id.

155 See ECF Doc. No. 2 at 41-48 (failing to address co-defendant’s acquittal in light of prosecutor’s

alleged misconduct).

156 Green, 2018 WL 6060547, at *3 (categorizing prosecution’s comments as “a fair response to

the other defense counsel’s ploy.”); N.T. January 30, 2018 Hearing at 12 (“It was a tricky move

on the part of Defense Counsel to actually try to get credibility for his client with the jury without

testifying. In that regard, this Court would find that it is fair response.”).

157 See N.T. August 28, 2012 Trial at 241 (“When [co-defendant] stood up at the beginning of this

trial, and said: ‘Not guilty” that’s what we call an arraignment . . . It is not what they call

testimonial.”).

158 Id. at 241-42.

159 See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (“[C]ounsel cannot be deemed

ineffective for failing to raise a meritless claim.”).

160 ECF Doc. No. 12 at 6.

161 Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007); 28 U.S.C. § 2254(b)(1)(A).

162 Coleman v. Thompson, 501 U.S. 722 (1991).

163 Id. at 750.

164 Leyva, 504 F.3d at 366.

165 Id.

166 Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002).

167 Martinez v. Ryan, 566 U.S. 1, 14 (2012).

168 Id.

169 Id.

170 Albrecht v. Horn, 485 F.3d 103, 124 n.7 (3d Cir. 2007).

171 ECF Doc. No. 2 at 35, 50, 59, 63.

172 Id. at 35, 50-63.

173 Id. at 50-58.

174 Martinez v. Ryan, 566 U.S. 1, 14 (2012).

175 Strickland v. Washington, 466 U.S. 668, 689, 695 (1984).

176 Bullcoming v. Mexico, 564 U.S. 647, 658 (2011).

177 Id.

178 See Portes v. Capra, 420 F. Supp. 3d 49, 56 (S.D.N.Y. 2018) (“[T]he Supreme Court has not

firmly determined if autopsy reports are testimonial evidence subject to the Confrontation

Clause[.]”).

179 Id. at 56.

180 Johnston v. Mahally, 348 F. Supp. 3d 417 (E.D. Pa. 2018).

181 Id. at 425.

182 Id. at 426.

183 Id.

184 Id. at 427.

185 Id. at 436.

186 See ECF Doc. No. 2 at 50-58.

187 Id.

188 Green, 2014 WL 10889887, at *5.

189 Id.

190 ECF Doc. No. 2 at 58.

191 Id. at 54, 57.

192 ECF Doc. No. 12 at 11.

193 ECF Doc. No. 2 at 59-62.

194 N.T. August 27, 2012 Trial at 125-27.

195 ECF Doc. No. 2 at 60-61.

196 Martinez v. Ryan, 566 U.S. 1, 14 (2012).

197 United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008).

198 Lambert v. Blackwell, 387 F.3d 210, 249 (3d Cir. 2004).

199 Haskell v. Superintendent Greene SCI, 866 F.3d 139, 145-46 (3d Cir. 2017).

200 Id. at 146.

201 ECF Doc. No. 2 at 59-62.

202 Id. at 60.

203 See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (“Moreover, counsel cannot be deemed

ineffective for failing to raise a meritless claim).

204 Martinez, 566 U.S. at 14.

205 ECF Doc. No. 12 at 12.

206 ECF Doc. No. 2 at 63.

207 N.T. August 23, 2012 Trial at 65-66.

208 ECF Doc. No. 2 at 63.

209 Martinez, 566 U.S. at 14.

210 Bullcoming v. New Mexico, 564 U.S. 647, 658 (2011).

211 United States v. Sandini, 888 F.3d 300, 311 (3d Cir. 1989).

212 Weeks v. Angelone, 528 U.S. 225, 234 (2000).

213 N.T. August 23, 2012 at 65-66.

214 ECF Doc. No. 2 at 63.

215 Id.

216 N.T. August 29, 2012 Trial at 9.

217 ECF Doc. No. 12 at 13.

218 ECF Doc. No. 2 at 63.

219 N.T. August 24, 2012 Trial at 244.

220 ECF Doc. No. 2 at 64.

221 Martinez, 566 U.S. at 14.

222 United States v. Rivas, 493 F.3d 131, 137 (3d Cir. 2007).

223 Id.

224 Id.

225 ECF Doc. No. 2 at 64.

226 N.T. August 24, 2012 at 244.

227 ECF Doc. No. 12 at 14-15.

228 ECF Doc. No. 2 at 35-36.

229 N.T. August 29, 2012 at 48-49; Green, 2014 WL 10889887, at *7.

230 ECF Doc. No. 2 at 35-36.

231 Green, 2014 WL 10889887, at *7.

232 Green, 2018 WL 6060547, at *3.

233 ECF Doc. No. 2 at 36.

234 ECF Doc. No. 12 at 16.

235 Miller-El v. Cockrell, 537 U.S. 322, 335-37 (2003) (citing 28 U.S.C. § 2253).

236 28 U.S.C. § 2253.

237 Miller-El, 537 U.S. at 336.

238 Id. at 327 (citing 28 U.S.C. § 2253(c)(2)).

239 Id. at 323 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

240 Fed. R. App. P. 22(b)(1).