BODDY-JOHNSON v. GILMORE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

:

ZAHIR BODDY-JOHNSON, : CIVIL ACTION

Petitioner, :

:

v. : NO. 18-0198

:

ROBERT GILMORE, :

SUPERINTENDENT, SCI-GREENE, et al., :

Respondents. :

__________________________________________:

REPORT AND RECOMMENDATION

Henry S. Perkin, M.J. November 16, 2020

Presently before the Court is the pro se Petition for Writ of Habeas Corpus filed

pursuant to 42 Pa. C.S.A. § 2254. Petitioner is currently incarcerated in State

Correctional Institution Greene located in Waynesburg, Pennsylvania. For the reasons

that follow, it is recommended that the Petition should be denied with prejudice and

dismissed without an evidentiary hearing.

I. FACTS AND PROCEDURAL HISTORY.

The facts as set forth in the trial court opinion are:

On February 17, 2008 Philadelphia Housing Authority Police

Officer Craig Kelley was on duty monitoring the entrance to the public

housing residence located [at] 301 Queen Lane, Philadelphia, PA when he

heard a knock on the steel door leading into the patrol booth where he was

stationed situated in the lobby area of the residence. Officer Kelley

testified that when he opened the door to the patrol booth he found a male

wearing a scarf partially covering his face standing in front of him with

the muzzle of a rifle pointed at his face. The male’s finger was on the

trigger of the rifle and the male stated “Don’t move.” The assailant then

began shooting Officer Kell[e]y, whereupon Kell[e]y closed the door to

the booth and he was spun around by the rifle fire and knocked to the

floor. The male continued to fire his weapon at Kell[e]y while he lay on

the floor beneath the window at his duty station as glass and debris

sprayed over him. Rifle bullets penetrated his protective vest and struck

Kell[e]y’s left torso.

In spite of his injuries, Officer Kelley was able to access his radio

and relay that he was down, needed assistance, and required a medic.

Kell[e]y was unable to get a response however he was then able to get to a

nearby telephone and he called the Housing Authority radio room for help.

Philadelphia police officers responded shortly thereafter and Kell[e]y was

immediately transported to Temple University Hospital.

Dr. Amy Goldberg testified that she was called to attend to Officer

Kell[e]y at Temple University Hospital and that she found him with a

large wound to the left side of his chest and abdomen. Kell[e]y was treated

and admitted to the hospital where he remained for three days. Upon his

release from the hospital, Kell[e]y was prescribed pain medication and

was further treated at Temple Wound Clinic and required the services of a

home care nurse three times a week for approximately two months. He

continues to receive physical therapy and continues on pain medicines.

Philadelphia Police Officer Robert Lee responded to the police

radio call that Officer Kelley had been shot. Lee began patrolling the area

near the crime scene whereupon [Petitioner] was observed wearing

clothing that fit the description relayed over the radio. [Petitioner] was

stopped and [asked] where he was coming from. [Petitioner] responded

that he was coming from 301 Queen Lane where his aunt lived. Lee

testified that his next question to [Petitioner] was whether [Petitioner]

knew that a police officer had been shot, whereupon [Boddy-Johnson]

responded, “No, I did not know a police officer had got shot a[t] 301

Queen Lane, but I heard the gunshots.” Lee had not identified the location

of the shooting of Officer Kell[e]y before [Petitioner’s] response. Lee

advised police radio that he had a potential suspect and he was then

instructed to transport [Petitioner] to Temple University Hospital. Upon

arriving at the hospital, Lee was unable to meet with Officer Kelley to

attempt to make an identification and was further instructed to transport

[Petitioner] to the homicide unit at police headquarters.

Detective George Pirrone arrived at the scene shortly after the

shooting and determined that video surveillance had been taken of the area

from a camera at the Hung Hing Restaurant located a block away. The

video, which was introduced into evidence, revealed a male running past

the restaurant carrying a rifle in his right hand while bystanders entered

the restaurant and hid behind a counter. In the area of [Petitioner’s] arrest,

and near the location shown in the video, an Erinco SK assault rifle, a

black nylon bag containing live rounds of ammunition along with other

contraband was recovered. A bank card found at the scene was traced to

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[Petitioner]. Other ballistics and DNA evidence linked [Boddy-Johnson]

to the shooting of Officer Kell[e]y.

Shortly after [Petitioner] was transported to police headquarters,

Detective Patrick Mangold and Detective McNamee conducted an

interview with him. [Petitioner] was first provided Miranda warnings and

he signed the standard form indicating that he had been read his rights,

that he understood them, and that he was voluntarily offering his

statement. Thereafter, [Petitioner] admitted that he shot Officer Kelley,

giving a detailed explanation.

[Petitioner] signed the statement at the end of the interview.

Detective Mangold testified that after the interview was completed,

[Petitioner’s] aunt, Miriam Davis, arrived and came into the interview

room and that she read over the statement with [Petitioner] and then she

also signed it[.]

The defense offered evidence of [Petitioner’s] reputation for being

peaceful, truthful, and law-abiding. The defense also offered testimony

that the glass enclosure of Kelley’s patrol booth had been previously

damaged with bullet holes from prior occasions.

Commonwealth v. Boddy-Johnson, No. CP-CR-0004485-2008, slip op. at 2-4 (Com. Pl.

Ct. Phila. Cty. Apr. 30, 2010) (footnote and record citations omitted); Resp., Ex. A.

Petitioner gave the following account of the crimes and his participation in them in his

confession which was read for the jury:

Question: Were you present when Officer Kelley was shot tonight while

he was working inside of the security booth at 301 Queen Lane?

Answer: Yes.

Question: Can you tell me who shot him?

Answer: I did.

Question: Can you tell me why you shot him?

Answer: I was going to rob him. When he opened the door to the booth, I

shot the gun one time and he closed the door. Then I shot two more times

while he was inside of the booth. I was shooting through the glass, but I

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don’t -- The bullets went through. I was just shooting.

Question: Can you explain to me exactly what happened?

Answer: I went to the door of the booth and I knocked on the door. As

soon as he

opened the door, I pointed the gun at him. After I pointed the gun at him,

he tried to close the door and that is when I shot. The gun went off.

* * * * *

He got the door closed and I just shot at the booth because I thought he

was going to shoot at me.

[Defense counsel]: Your Honor, I ask him to finish the whole statement.

[The prosecutor]: He said he got the door closed. And what did he say

after that?

Answer: And I just shot at the booth because I thought he was going to

shoot at me. I ran out of the building and onto Queen Lane. I dropped the

bag that I had the gun in on Queen Lane. I kept on moving and I dropped

the gun at the corner of the next block, I think at Morris and Queen. I went

up the block and I just tried to chill. Then while I was still on the block,

the cops stopped me and brought me here.

* * * * *

Question: When you told me that you were going to rob the officer, what

were you going to take from him?

Answer: I was going to take the laptop that was in there, and I was going

to try to take his gun.

Question: What were you going to do with the things that you took from

the officer?

Answer: I was going to sell them and spend the money for restitution for

my stolen car case.

Question: When did you decide to do this?

Answer: I saw him in there last Sunday, but I really didn’t think about it.

Then today I saw him again and I just decided to do it.

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Question: What kind of gun did you have today and how long have you

had it?

Answer: It’s an SKS, a rifle. I had it about a month.

* * * * *

Question: Do you know the officer that was shot today?

Answer: No, I don’t.

N.T., 6/9/09, pp. 55-59. Petitioner’s trial counsel did not dispute that Petitioner

committed the acts with which he was charged, but argued to the jury that Petitioner

contested that he acted with the intent to kill necessary to sustain an attempted murder

conviction. Counsel also told the jury that Petitioner was willing to accept responsibility

and punishment for the aggravated assault and firearms charges. See, e.g., N.T., 6/10/09,

at 12-13 (“When it comes to aggravated assault, the gun charges, we concede those

charges....Out of all of the facts that you heard, out of all of the evidence that was shown

to you by the DA, or the evidence that wasn’t shown to you, there was no way that you

can come to the conclusion that there was an intent to kill. What you heard here is was a

botched robbery by a 17-year-old kid who didn’t know what the heck he was doing.…he

did not intend to kill Officer Kelley and that’s what the charge of attempted murder talks

about.”).

The jury convicted Petitioner of attempted murder, aggravated assault and the

firearms charges, and the trial court sentenced Petitioner to an aggregate prison term of

22 1/2 to 47 years. Petitioner filed a timely appeal with the Pennsylvania Superior

Court. On September 29, 2010, the Superior Court affirmed the judgment of sentence,

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agreeing with the trial court that Petitioner’s confession was voluntary and properly

admitted at trial; that the reference in his confession to his “stolen car case” and the

resulting restitution obligation was relevant and properly admitted as evidence of

Petitioner’s motive to commit the charged crimes; that the evidence was sufficient for the

jury to find that Petitioner acted with the intent to kill Officer Kelley; and that the

evidence was sufficient to sustain Petitioner’s conviction for attempted murder.

Commonwealth v. Boddy-Johnson, No. 2910 EDA 2009, slip op. (Pa. Super. Ct. Sept. 29,

2010); Resp., Ex. B. On February 8, 2011, the Pennsylvania Supreme Court denied the

petition for discretionary review. Commonwealth v. Boddy-Johnson, 17 A.3d 1250 (Pa.

2011) (table).

Petitioner filed a timely pro se petition under Pennsylvania’s Post Conviction

Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541, et seq. Counsel was appointed and later

amended the petition. Petitioner claimed in his amended PCRA petition that, even if the

reference in his confession to his prior automobile theft case and resulting restitution

obligation was properly admitted as evidence of motive, trial counsel rendered

constitutionally ineffective assistance by declining the trial court’s offer of a limiting

instruction. The limiting instruction proposed by the trial court was that the jurors could

consider the auto theft and restitution reference only as evidence of motive, rather than as

evidence that Petitioner had a propensity to commit crimes. Trial counsel consulted with

Petitioner before finally declining the offer of a limiting instruction. N.T., 6/10/09, at 28.

On March 4, 2016, Judge Gwendolyn N. Bright, sitting as the PCRA court, denied

the amended PCRA petition, concluding that Petitioner failed to show either that the

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decision to decline a limiting instruction was professionally unreasonable or that

counsel’s supposedly deficient performance resulted in constitutional prejudice.

Commonwealth v. Boddy-Johnson, No. CP-51-CR0004485-2008, slip op. at 6 (Com. Pl.

Ct. Phila. Cty. Mar. 4, 2016); Resp., Ex. C. The PCRA court held that the reference to

Petitioner’s prior “stolen car case” was “minimally significant” and that counsel

reasonably could have thought a limiting instruction would “serve only to highlight” it.

Id. On appeal, the Superior Court affirmed the denial of PCRA relief, agreeing that

Petitioner failed to show a reasonable probability that the outcome of the trial would have

been different but for counsel’s supposedly deficient performance. Commonwealth v.

Boddy-Johnson, No. 3029 EDA 2015, 2017 WL 1050407 (Pa. Super. Ct. Mar. 20, 2017);

Resp., Ex. D. The Pennsylvania Supreme Court declined discretionary review on

September 12, 2017. Commonwealth v. Boddy-Johnson, 170 A.3d 1044 (Pa. 2017)

(table).

The instant Petition for Writ of Habeas Corpus was thereafter docketed containing

two claims of ineffective assistance of counsel: (1) trial and direct appeal counsel were

ineffective by failing to argue that the prosecution failed to prove beyond a reasonable

doubt all elements of the crime of aggravated assault; and (2) trial counsel was ineffective

by declining the court’s offer of a limiting instruction that evidence of and references to

Petitioner’s “stolen car case” and his restitution obligation could be considered only for

that purpose. The case was referred for preparation of a Report and Recommendation by

the Honorable Cynthia M. Rufe. In the Response to the Petition, counsel for the

Respondents contend that the claims are procedurally defaulted and meritless. Petitioner

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filed a Traverse to the Response, directly responding to the contentions of the

Respondents.

II. STANDARD OF REVIEW.

A. Petitions for Writ of Habeas Corpus.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides

that a writ of habeas corpus for a person serving a state court sentence shall not be

granted unless (I) the state court’s resolution of the claim “resulted in a decision that was

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

as determined by the Supreme Court of the United States” and (ii) the claim is

exhausted.1 See 28 U.S.C. § 2254(d)(1); Woodford v. Visciotti, 537 U.S. 19, 24-25

(2002); Berryman v. Morton, 100 F.3d 1089, 1103 (3d Cir. 1996). “As long as the

reasoning of the state court does not contradict relevant Supreme Court precedent,

1 Exhaustion requires that the claims have been presented at all available levels of the state judicial

system before being presented in a habeas corpus petition. See Anderson v. Harless, 459 U.S. 4, 7 (1982). If

a petition’s claims have not been exhausted, and a petitioner is time-barred from presenting those claims in

state court, the claims are procedurally defaulted and will not be reviewed on the merits. 28 U.S.C. §

2254(b)(1)(A); see O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

However, a procedurally defaulted claim may still succeed where a petitioner can show either (I)

cause for the default and actual prejudice, or (ii) that the failure to consider the claim will result in a

fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749 (1991). Cause exists when a

petitioner demonstrates “some objective factor external to the defense impeded efforts to comply with the

State’s procedural rule.” Slutzker v. Johnson, 393 F.3d 373, 381 (3d Cir. 2004) (quoting Murray v. Carrier,

477 U.S. 478, 488 (1986)); Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir.), cert. denied, 537 U.S. 897

(2002) (quoting Coleman, 501 U.S. at 753). Prejudice means that the alleged error worked to the

petitioner’s actual and substantial disadvantage. United States v. Rodriguez, 153 F. Supp. 2d 590, 594

(E.D. Pa. 2001) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).

A fundamental miscarriage of justice occurs if a petitioner presents new evidence and shows that

“it is [now] more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513

U.S. 298, 327 (1995); Keller v. Larkins, 251 F.3d 408, 415-416 (3d Cir. 2001). The burden is on the

petitioner to show that “a constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Schlup, 513 U.S. at 327.

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AEDPA’s general rule of deference applies.” Priester v. Vaughn, 382 F.3d 394, 398 (3d

Cir. 2004) (citing Early v. Packer, 537 U.S. 3 (2002) and Woodford, 537 U.S. 19).

An objectively unreasonable application does not require merely that a state

court’s decision be erroneous or incorrect, but also that it be unreasonable. Williams v.

Taylor, 529 U.S. 362, 407 (2000). Clearly established federal laws are the holdings, not

the dicta of the Supreme Court. Id. at 390.

B. Exhaustion and Procedural Default.

A petitioner may only succeed in a habeas corpus petition if he has first exhausted

all remedies available in the state courts. 28 U.S.C. § 2254(b)(1)(A). To satisfy this

requirement the petitioner must “fairly present” his claims to the state courts allowing the

state courts a meaningful opportunity to correct alleged constitutional violations.

Duncan v. Henry, 513 U.S. 364, 365 (1995); O’Sullivan v. Boerckel, 526 U.S. 838, 845

(1999) (requiring “one complete round” of the state’s appellate procedures). Petitioner

bears the burden of proving the exhaustion of all available remedies for each claim.

Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993).

Claims that are not exhausted will become procedurally defaulted, and the

petitioner is not entitled to a review on the merits. O’Sullivan, 526 U.S. at 848. Review

of a procedurally defaulted claim is permitted in extremely narrow circumstances, where

the petitioner can show either (1) cause for the default and actual prejudice or (2) the

failure to consider the claim will result in a fundamental miscarriage of justice. Coleman

v. Thompson, 501 U.S. 722, 749 (1991).

“Cause” for procedural default is shown when the petitioner demonstrates “some

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objective factor external to the defense impeded counsel’s efforts to comply with the state

procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “Actual prejudice”

occurs when the errors at trial “worked to his actual and substantial disadvantage,

infecting his entire trial with error of constitutional dimensions.” Id. at 494 (quoting

United States v. Frady, 456, U.S. 152, 179 (1982)). A “fundamental miscarriage of

justice” occurs when a petitioner presents new evidence of his actual innocence such that

“it is [now] more likely than not that no reasonable juror would have convicted him.”

Schlup v. Delo, 513 U.S. 298, 327 (1995).

In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme Court examined

whether ineffective assistance at the initial review of a collateral proceeding on a claim of

ineffective assistance at trial can provide cause for a procedural defect in federal habeas

proceedings. Id. at 1315. This case recognized a narrow exception to the Coleman rule

(that ineffective assistance of counsel at the state collateral review level could not

establish cause to excuse procedural default), holding that “[i]nadequate assistance of

counsel at initial-review collateral proceedings may establish cause for a prisoner’s

procedural default of a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at

1315.

Thus, a PCRA claim for ineffective trial counsel during an initial state collateral

review may qualify as “cause” to excuse the default if: (1) as a threshold matter, the state

requires a prisoner to bring ineffective counsel claims in a collateral proceeding; (2) the

state courts did not appoint counsel at the initial review collateral proceeding for an

ineffective- assistance-at-trial claim; (3) where appointed counsel at the initial-review

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collateral proceeding was ineffective under Strickland v. Washington, 466 U.S. 668

(1984) and (4) the underlying ineffective-assistance-at-trial claim is substantial.

Martinez, 132 S.Ct. at 1315-18.

C. Ineffective Assistance of Counsel.

Claims for ineffectiveness of counsel are governed by Strickland.2 Under

Strickland, counsel is presumed effective, and to prevail on an ineffectiveness claim, a

petitioner must “overcome the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689. Given this

presumption, a petitioner must first prove that counsel’s conduct was so unreasonable

that no competent lawyer would have followed it, and that counsel has “made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth

Amendment.” Id. at 687. In addition, a petitioner must prove prejudice. In order to do so,

the petitioner must demonstrate that “counsel’s errors were so serious as to deprive

[petitioner] a fair trial, a trial whose result is reliable.” Id. Thus, a petitioner must show a

reasonable probability that, but for counsel’s “unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is sufficient to

undermine confidence in the outcome.” Id. at 694. This determination must be made in

light of “the totality of the evidence before the judge or jury.” Id. at 695.

The United States Court of Appeals for the Third Circuit has cautioned that

“[o]nly the rare claim of ineffectiveness should succeed under the properly deferential

2 In Harrington v. Richter, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011), the United States Supreme

Court reaffirmed the continued applicability of the Strickland standard in federal habeas corpus cases. See

also Premo v. Moore, 131 S. Ct. 733, 178 L. Ed. 2d 649 (2011).

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standard to be applied in scrutinizing counsel’s performance.” Beuhl v. Vaughn, 166 F.3d

163, 169 (3d Cir.), cert. denied, 527 U.S. 1050 (1999) (quoting U.S. v. Gray, 878 F.2d

702, 711 (3d Cir. 1989)). Under the revised habeas corpus statute, such claims can

succeed only if the state court’s treatment of the ineffectiveness claim is not simply

erroneous, but objectively unreasonable as well. Berryman v. Morton, 100 F.3d 1089,

1103 (3d Cir. 1996). Recently, the Supreme Court acknowledged that “[s]urmounting

Strickland’s high bar is never an easy task.” Premo v. Moore, 131 S. Ct. 733, 739 (2011)

(quotation omitted). The Supreme Court explained that the relevant “question is whether

an attorney’s representation amounted to incompetence under ‘prevailing professional

norms,’ not whether it deviated from best practices or most common custom.” Id. at 740

(citing Strickland, 466 U.S. at 690).

Petitioner must show not only that counsel’s conduct was improper, but also that

it amounted to a constitutional deprivation. Petitioner must also show that the

prosecutor’s acts so infected the trial as to make his conviction a denial of due process.

Greer v. Miller, 483 U.S. 756, 765 (1987) (citation omitted). Petitioner must show that he

was deprived of a fair trial. Smith v. Phillips, 455 U.S. 209, 221 (1982); Ramseur v.

Beyer, 983 F.2d 1215, 1239 (3d Cir. 1992), cert. denied, 508 U.S. 947 (1993) (citations

omitted) (stating court must distinguish between ordinary trial error, and egregious

conduct that amounts to a denial of due process).

Where the state court has already rejected an ineffective assistance of counsel

claim, a federal court must defer to the previous decision, pursuant to 28 U.S.C. §

2254(d)(1). If a state court has already rejected an ineffective-assistance claim, a federal

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court may grant habeas relief if the decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Where the state court’s

application of governing federal law is challenged, it must be shown to be not only

erroneous, but objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 4, 124 S. Ct.

1 (2003) (per curiam) (citations omitted). The Supreme Court recently elaborated on this

standard:

Establishing that a state court’s application of Strickland was unreasonable

under §2254(d) is all the more difficult. The standards created by

Strickland and § 2254(d) are both “highly deferential,” id., at 689; Lindh v.

Murphy, 521 U.S. 320, 333 n. 7, 117 S. Ct. 2059 . . . , and when the two

apply in tandem, review is “doubly” so, Knowles, 556 U.S. at 123, 129 S.

Ct. at 1420. The Strickland standard is a general one, so the range of

reasonable applications is substantial. 556 U.S. at 123, 129 S. Ct. at

1420. Federal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under §

2254(d). When § 2254(d) applies, the question is not whether counsel’s

actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.

Premo, 131 S. Ct. at 740 (citations omitted).

III. DISCUSSION.

A. Ineffective Assistance – Aggravated Assault

Petitioner first claims that trial, direct appeal and PCRA counsel were ineffective

for failing to argue that the prosecution failed to prove beyond a reasonable doubt all

elements of the crime of aggravated assault. Aggravated assault is defined in 18 Pa. C.S.

§ 2702(a)(2) as attempting to cause “or intentionally, knowingly or recklessly caus[ing]

serious bodily injury to “any of the officers, agents, employees or other persons

enumerated in subsection (c)…while in the performance of duty.”

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Petitioner contends that the Commonwealth was required to find that the victim,

Mr. Kelley, was a police officer assaulted in the performance of his duty pursuant to 18

Pa. C.S.A. 2702(a)(2). He further contends that Mr. Kelley was legally recognized as a

“Security Officer” and not a “Police Officer” under state statute and points to

Philadelphia Housing Authority v. Commonwealth Labor Relations, 499 A.2d 294 (Pa.

1985), arguing that one of the holdings in that case is that Philadelphia Housing

Authority (”PHA”) “Security Officers” are not police officers. According to Petitioner,

Mr. Kelley was a security officer, not a police officer, therefore Petitioner could not be

convicted of aggravated assault.

This claim is unexhausted and procedurally defaulted. Petitioner admits that this

claim is unexhausted, but he argues that although he included this issue in his pro se

PCRA petition, PCRA counsel was ineffective for failing to include the claim in his

Amended PCRA petition. Pet. at 9. In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme

Court recognized a “limited exception” to the usual procedural default rules in holding

that ineffective assistance of trial-court-level state postconviction counsel, even though

not itself a claim to relief from one’s conviction, can constitute “cause” for the procedural

default of a “substantial” claim of ineffective assistance at trial.

To the extent that Petitioner is challenging direct appeal counsel’s failure to

litigate the claim of evidentiary insufficiency on appeal, any such claim fails because

Martinez applies only to defaulted claims of ineffective assistance at trial and not to

defaulted claims of ineffective assistance on direct appeal. See Davila v. Davis, 137 S. Ct.

2058 (2017).

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Petitioner contends in his Traverse that the underlying ineffective assistance of

trial counsel claim was “substantial” as required by Martinez because he contends that in

Commonwealth Labor Relations, 499 A.2d 294, the Pennsylvania Supreme Court held

that PHA security officers are not considered police officers.

In Commonwealth Labor Relations, the Housing Police Association argued that

its members who are the security officers employed by the Philadelphia Housing

Authority (“PHA”), are covered by the provisions of the Act of June 24, 1968, P.L. 237,

as amended, 43 P.S. § 217.1 et seq. (“Act 111”). Act 111 provides generally for

collective bargaining between policemen and firemen and their public employers and, in

the event of a bargaining impasse, for compulsory and binding arbitration with no right to

strike. In 1970, the Pennsylvania Legislature enacted a statute governing collective

bargaining in the public sector, the Public Employe Relations Act of 1970 (“PERA”),

sometimes referred to as “Act 195.” This Act excluded from the definition of employees

covered by the Act those employees covered under Act 111. Id. at 298. In

Commonwealth Labor Relations, the Pennsylvania Supreme Court held that the PHA

does not fall within the broader term of “political subdivision of the Commonwealth,”

therefore it does not fall within the definition of “Commonwealth” and it is not a public

employer under the terms of Act 111. Id. at 301.

Plaintiff contends that the following language in a footnote of the opinion is the

court’s holding and the Pennsylvania Supreme Court “ruled that the Philadelphia

Housing Authority ‘Security Officers’ were NOT police officers:”

. . . House Bill 200, which ultimately became subsections (ee) and (ff) of

the Housing Authorities Law, Act of May 28, 1937, P.L. 955, § 10, as

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amended, 35 P.S. § 1550(ee), (ff) (Supp. 1985), was amended to give PHA

the power to appoint “security officers” rather than “police officers.”

Traverse, pp. 5-6 (quoting Commonwealth Labor Relations Bd., 499 A.2d at 300 n.4). In

a later footnote of the opinion, also cited by Petitioner, the Pennsylvania Supreme Court

noted that:

There is an implicit suggestion that PHA security officers

substitute for the Philadelphia police in these public housing units. We

note that the responsibility for police protection within the city limits,

including the housing projects, is vested in the City’s police force. See

Philadelphia Home Rule Charter § 5.5–200, 201, 351 Pa.Code §

5.5–200351 Pa.Code § 5.5–200, 201201. The PHA is designed to

augment and not to replace the Philadelphia Police Force in these

areas. This augmentation is justified by the greater incidence of

criminal activity within these areas. To allow the PHA security force

to replace the Philadelphia Police Force in these areas defeats the

purpose of the creation of this security force.

Id. at 300 n.7 (emphasis added).

Petitioner’s legal theory that Philadelphia housing authority police officers are not

“police officers” under 18 Pa. C.S. § 2702(c)(1) is novel. In making this claim, Petitioner

does not consider the statutory provision that grants authority to the housing authority in

Philadelphia, including the power to appoint security officers as follows:

(ff) In the city of the first class, to appoint security officers who shall

have the same rights, powers and duties as police officers in the

Commonwealth in and upon the grounds and buildings of the

Authority and in instances of hot pursuit within the boundaries of the

city of the first class and who shall be authorized to arrest persons for

the commission of any offense and the keepers of the jails and other

places of detention in the city of the first class shall receive all persons

arrested by such security officers for purposes of detention until they

are dealt with according to law: Provided, however, That such security

officers successfully complete the course of instruction provided under

the act of June 18, 1974 (P.L. 359, No. 120), referred to as the

Municipal Police Education and Training Law. The Authority shall, to

the maximum extent practicable, give preference in hiring security officers

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first to any person living in public housing and receiving any form of State

or Federal public assistance, and second, to any other person living in

public housing.

35 Pa. Stat. Ann. § 1550 (ff) (emphasis added). The jury heard evidence about Mr.

Kelley’s training, authority, and responsibilities as a housing authority police officer and

found that Petitioner shot a person fitting that description. N.T. 6/5/09, at 28-29 (victim

noting that he attended and graduated from the Philadelphia Police Academy, had been

“trained by the same police who train the Philadelphia Police officers,” had to “go back

to the police department for…yearly re-certification,” and that he and his colleagues

generally did “everything that the Philadelphia Police do.…[i]t’s just that we are

employed by the Housing Authority”); id. at 29 (victim was working “in full police

uniform” at the time of the offenses); id. at 32-33 (details of victim’s police uniform,

including ballistics vest, and contents of victim’s belt, including holstered service

firearm, handcuffs, and pepper spray); id. at 30-31 (noting that victim and other housing

authority police officers work in conjunction with their Philadelphia Police Department

counterparts).

Petitioner claims that trial counsel was ineffective for failing to contend that the

evidence was insufficient to sustain his aggravated assault conviction. Under 18 Pa. C.S.

§ 2702(a)(2), the prosecution was required to prove beyond a reasonable doubt that

Petitioner “attempt[ed] to cause or intentionally, knowingly or recklessly cause[d] serious

bodily injury to any…officer[], agent[], employee[] or other person[] enumerated in

subsection (c)…while in the performance of duty.” Respondents note that the list of

public officials and employees covered under 18 Pa. C.S. § 2702(c) is extensive, covering

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explicitly a wide array of public officials and employees ranging from Pennsylvania’s

Governor, 18 Pa. C.S. § 2702(c)(28), to teachers, id. § 2702(c)(27). Undermining

Petitioner’s contention that Pennsylvania’s courts would have interpreted 18 Pa. C.S. §

2702(c) as excluding housing authority police officers from its coverage is Section

2702(c)(20), which covers “[a]ny person employed to assist or who assists any Federal,

State or local law enforcement official.” See also Commonwealth v. McFadden, 156 A.3d

299, 308 (Pa. Super. Ct.) (holding that Philadelphia school crossing guards were

“person[s] employed to assist or who assist[]…Federal, State or local law enforcement

official[s],” for purposes of § 2702(c), reasoning, among other things, that Philadelphia

crossing guards “may be subject to the same rules of conduct applicable to City police

officers”), appeal denied, 170 A.3d 993 (Pa. 2017); McKinley v. Commonwealth, 769

A.2d 1153, 1159 (Pa. 2001) (concluding that airport authority police officer, who had

authority to make arrests for any offense, was “police officer” for purposes of state

implied consent law, while holding particular arrest unlawful because it was conducted

outside of airport authority jurisdiction). Respondents note, and this Court agrees, that it

would be illogical to treat § 2702(c) as excluding housing authority police officers from

the definition of “police officer” when the legislature made clear its intent to include

within the scope of § 2702(c) almost every public employee or officer with law

enforcement responsibilities.

Petitioner contends that trial counsel failed to anticipate a legal development that

has not occurred and there is little reason to believe will occur in the future. He cites no

decision of any trial or appellate court that interprets the definition of “police officer” in

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18 Pa. C.S. § 2702 in accordance with his interpretation. Petitioner has also not suggested

any reason to believe that if the state courts were presented with this issue, they would

hold that housing authority police should be excluded from the treatment applied to

assaults committed on other public officers and employees in the course of their duties.

Because this claim lacks merit, Petitioner has not shown a substantial claim of

ineffective assistance at trial for not presenting the claim. Because the ineffective

assistance of trial counsel claim fails, the claim that PCRA counsel was ineffective for

failing to present an ineffective assistance of trial counsel claim is also meritless. See,

e.g., Ross v. Dist. Att’y of Allegheny Cty., 672 F.3d 198, 211 n.9 (3d Cir. 2012) (failing to

raise meritless claim cannot be considered ineffective assistance).

There is no reasonable likelihood that the state courts, acting reasonably and in

accordance with law, would have held that a housing authority law-enforcement officer

with “the same rights, powers and duties as [a] police officer” is not a “police officer” for

purposes of 18 Pa. C.S. § 2702(c), and that counsel was ineffective for failing to present

this argument. Thus, it is respectfully recommended that this claim should be denied.

B. Ineffective Assistance - Limiting Instruction

Petitioner’s second ineffective assistance of counsel claim concerns the reference

in his confession to his prior “stolen car case” and resulting restitution obligation. This

claim was exhausted in the state court. Although Petitioner’s counsel attempted at trial

to argue against the admissibility of the reference to the stolen car case, the state courts

held as a matter of state law that it was relevant and properly admitted because Petitioner

confessed that his restitution obligation was his motive for committing the charged

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offenses. N.T. 6/9/09, at 43-45; Resp., Ex. A at 6; Resp., Ex. B at 4. Petitioner told the

police that his intent was to take Mr. Kelley’s laptop computer and gun and sell them to

satisfy his restitution obligation in the stolen car case. N.T. 6/9/09, at 57-58. He

contends that trial counsel rendered ineffective assistance by declining the court’s offer of

a limiting instruction that evidence of and references to the “stolen car case” and his

restitution obligation could be considered only for that purpose.

Petitioner presented this claim in his Amended PCRA petition. Judge Bright as

the PCRA court held:

In his Amended PCRA Petition, however, Appellant alleges that

[trial] counsel rendered ineffective assistance for not requesting a jury

instruction regarding the purpose for which evidence of other crimes was

admitted at trial. This allegation is without merit.

. . . . .

In the case sub judice, the Court offered Appellant the opportunity

to have the jury instructed that it could not consider his prior conviction as

evidence of his guilt. After conferring with counsel, Appellant declined

to request the jury instruction. Clearly, this was a strategic decision made

by trial counsel in conjunction with the appellant. There was a reasonable

basis for declining to request a cautionary instruction regarding his prior

conviction. Such an instruction would serve only to highlight any

prejudice redounded to his detriment from counsel’s decision not to

request a cautionary instruction. Appellant’s claim of ineffectiveness is

without merit and error was not committed.

Resp., Ex. C, pp. 5-6. On PCRA appeal, the Pennsylvania Superior Court affirmed the

PCRA court, offering the following analysis:

Appellant raises the following issue for our review: “Was trial

counsel ineffective where they [sic] failed to request a jury instruction

explaining to the jury the purpose for which they were to consider

evidence of other crimes?” Appellant’s Brief at 6. Appellant contends that

“[t]rial counsel had no reasonable basis for not ... requesting an

appropriate instruction during the Court’s closing charge.” Id. at 15. He

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argues that “[a]ppellate courts have previously held that when bad acts

evidence is admitted at trial an instruction is necessary to explain the

limited purpose for which the evidence was admitted[.]” Id. He asserts

Appellant was prejudiced by counsel’s failure to request the instruction.

Id. at 16.

Our standard of review from the denial of relief under the PCRA is

well-settled:

[A]n appellate court reviews the PCRA court’s findings to

see if they are supported by the record and free from legal

error. This Court’s scope of review is limited to the

findings of the PCRA court and the evidence on the record

of the PCRA court’s hearing, viewed in the light most

favorable to the prevailing party.

Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008) (quotation marks

and citations omitted).

To be eligible for PCRA relief, [a]ppellant must prove by a

preponderance of the evidence that his conviction or sentence resulted

from one or more of the enumerated circumstances found at 42 Pa.C.S. §

9543(a)(2) (listing, inter alia, the ineffective assistance of counsel and the

unavailability at the time of trial of exculpatory evidence, which would

have changed the outcome of the trial had it been introduced). Further,

[a]ppellant must demonstrate that the issues raised in his PCRA petition

have not been previously litigated or waived. Id. § 9543(a)(3).... A PCRA

claim is waived “if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

post[-]conviction proceeding.” Id. § 9544(b)....

It is well-established that counsel is presumed effective, and to

rebut that presumption, the PCRA petitioner must demonstrate that

counsel’s performance was deficient and that such deficiency prejudiced

him. Strickland v. Washington, [ ] 104 S. Ct. 2052, [ ] (1984). This Court

has characterized the Strickland standard as tripartite, by dividing the

performance element into two distinct parts. Commonwealth v. Pierce, [ ]

527 A.2d 973, 975 ([Pa.] 1987). Thus, to prove counsel ineffective,

[a]ppellant must demonstrate that: (1) the underlying legal issue has

arguable merit; (2) counsel’s actions lacked an objective reasonable basis;

and (3) [a]ppellant was prejudiced by counsel’s act or omission. Id. at 975.

Relating to the reasonable basis prong, “[g]enerally, where matters

of strategy and tactics are concerned, counsel’s assistance is deemed

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constitutionally effective if he chose a particular course that had some

reasonable basis designed to effectuate his client’s interests.” Courts

should not deem counsel’s strategy or tactic unreasonable “unless it can be

concluded that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.” Id. Also “[a]s a

general rule, a lawyer should not be held ineffective without first having

an opportunity to address the accusation in some fashion. ... The ultimate

focus of an ineffectiveness inquiry is always upon counsel, and not upon

an alleged deficiency in the abstract.”

Relating to the prejudice prong of the ineffectiveness test, the

PCRA petitioner must demonstrate “that there is a reasonable probability

that, but for counsel’s error or omission, the result of the proceeding

would have been different.” Particularly relevant herein, it is well-settled

that “a court is not required to analyze the elements of an ineffectiveness

claim in any particular order of priority; instead, if a claim fails under any

necessary element of the Strickland test, the court may proceed to that

element first.”

Commonwealth v. Koehler, 36 A.3d 121, 131–32 (Pa. 2012) (some

citations omitted).

In reviewing the propriety of an order denying PCRA

relief, this Court is limited to examining whether the

evidence of record supports the determination of the PCRA

court, and whether the ruling is free of legal error. Great

deference is given to the findings of the PCRA court, which

may be disturbed only when they have no support in the

certified record.

Commonwealth v. Perry, 959 A.2d 932, 934–35 (Pa. Super. 2008)

(citations omitted).

In Commonwealth v. Spotz, 870 A.2d 822 (Pa. 2005), our

Pennsylvania Supreme Court opined: “Objections sometimes highlight the

issue for the jury, and curative instructions always do.” Id. at 832; accord

Commonwealth v. Washington, 927 A.2d 586, 606 (Pa. 2007).

In the case sub judice, the trial court opined:

[T]he [c]ourt offered Appellant the opportunity to have the

jury instructed that it could not consider his prior

conviction as evidence of his guilt. After conferring with

counsel, Appellant declined to request the jury instruction.

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... There was a reasonable basis for declining to request a

cautionary instruction regarding his prior conviction. Such

an instruction would serve only to highlight what was

otherwise minimally significant evidence. Moreover,

Appellant failed to plead and prove that any prejudice

redounded to his detriment from counsel’s decision not to

request a cautionary instruction. Appellant’s claim of

ineffective assistance is without merit and error was not

committed.

Trial Ct. Op., 3/4/16, at 6 (emphasis added). We agree no relief is due.

The court recessed the jury and stated as follows:

The Court: Counsel, basically what I am going to read is:

There was evidence tending to prove that the defendant has

a prior criminal matter involving car theft. That was

referenced in defendant’s statement to police. This

evidence is not evidence of the defendant’s guilt and you

must not infer guilt from the evidence of a prior criminal

matter. This evidence may be considered by you for one

purpose only: That is, to help you judge whether or not

there was potential for commission of the crime for which

the defendant is currently on trial. That’s basically what I

am going to read.

[Defense counsel]: Your Honor, I would just ask that it not

be read in general, just in terms of confusion.

The Court: So you don’t want the instruction at all?

[Defense counsel]: Your Honor, it’s a situation where, once

again, it’s not a conviction. It’s not something —

The Court: I understand. Do you want an instruction or you

do not want an instruction, or we can cut it off? There was

evidence tending to prove that [Appellant] has a prior

criminal matter involving car theft. That was referenced in

[Appellant’s] statement to police. This evidence is not

evidence of [Appellant’s] guilt and you must not infer guilt

from the evidence of a prior criminal matter. Then the only

purpose would be to help them assess motive. We could

leave that part out or —

[Defense counsel]: Let me just confer with my client.

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The Court: Yes. Go ahead.

[Defense counsel]: Thank you, Your Honor. Your Honor, I

ask that it not be given.

The Court: Very well. Commonwealth, you concur? You

concur? They do not wish to have this instruction.

[The Commonwealth]: It’s up to him. It’s totally his

decision.

The Court: Very well.

N.T., 6/10/09, at 26-28.

We discern no error by the PCRA court. Appellant has not satisfied

the prejudice prong of the ineffective assistance of counsel test. See

Koehler, 36 A.3d at 131-32. He has not shown that but for counsel’s

action the result of the proceedings would have been different. See id. The

record supports the determination of the PCRA court. See Perry, 959 A.2d

at 934–35. Therefore, his ineffective assistance of counsel claim is without

merit. See Koehler, 36 A.3d at 131–32. Accordingly, we affirm the order

of the PCRA court.

Commonwealth v. Boddy-Johnson, No. 3029 EDA 2015, 2017 WL 1050407, at *4-6 (Pa.

Super. Ct. Mar. 20, 2017); Resp., Ex. D.

Where the state court has already rejected an ineffective assistance of counsel

claim, a federal court must defer to the previous decision, pursuant to 28 U.S.C. §

2254(d)(1). If a state court has already rejected an ineffective-assistance claim, a federal

court may grant habeas relief if the decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). See also Vega v. Klem, No.

CIV.A. 03-5485, 2005 WL 3216738, at *6 (E.D. Pa. Nov. 29, 2005) (citing 28 U.S.C. §

2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-405 (2000); Fountain v. Kyler, 420

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F.3d 267, 272-273 (3d Cir. 2005)). Where the state court’s application of governing

federal law is challenged, it must be shown to be not only erroneous, but objectively

unreasonable. Yarborough v. Gentry, 540 U.S. 1, 4, 124 S. Ct. 1 (2003) (per curiam)

(citations omitted).

Under Strickland, counsel is presumed effective and to prevail on an

ineffectiveness claim, a petitioner must “overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland, 466 U.S. at 689 It is undisputed that counsel made the final decision to

decline the limiting instruction only after conferring with Petitioner. Counsel’s trial

strategy was that Petitioner lacked the specific intent to kill Mr. Kelley, which

was.necessary to sustain a conviction for attempted murder. Petitioner does not

challenge the reasonableness of the strategy of conceding that he committed the acts for

which he was on trial.

Petitioner contends that he suffered actual prejudice by counsel’s omission

because it may have created a reasonable probability that the jury utilized the evidence of

the prior crime in an improper way. See Traverse, pp. 10-11. However, Petitioner’s prior

auto theft imputed nothing about whether Petitioner acted with the intent to kill Mr.

Kelley. Trial counsel reasonably could have viewed a limiting instruction as a reminder

to the jury of Petitioner’s previous criminal activity or a distraction from the strategy of

contesting only Petitioner’s intent to commit murder. The indication that Petitioner’s

previous issue with the law involved a restitution debt over the theft of an automobile

was consistent with the defense theory that Petitioner’s intent in this case was to commit

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a robbery but not a murder, which is presumably why counsel, after consulting with

Petitioner, declined the instruction. Nothing in the appellate court’s analysis disapproves

or is inconsistent with the Common Pleas Court’s reasoning. The Common Pleas Court

described the reference to Petitioner’s “stolen car case” as “minimally significant” under

the circumstances of the case and the state courts reasonably concluded that Petitioner

failed to show at least a reasonable probability that the outcome of the trial would have

been different had counsel accepted the offer of a limiting instruction. Resp., Ex. C at 6;

Ex. D at *6. Because trial counsel’s strategy was to contest only whether Petitioner

possessed the intent to kill, the state courts reasonably rejected Petitioner’s claim that trial

counsel was ineffective for declining a limiting instruction about Petitioner’s “stolen car

case.”

In the present case, Petitioner has not identified any decision of the trial court or

the appellate court which is contrary to, or an unreasonable application of, Sixth

Amendment jurisprudence. Petitioner, therefore, does not meet his burden of proving

ineffective assistance of counsel on this claim and it is recommended that this claim

should be denied.

C. Certificate of Appealability.

The court must also determine whether to recommend granting a certificate of

appealability (“COA”) with respect to the Petitioner’s claims. A COA can issue if “jurists

of reason would find it debatable whether the petition states a valid claim of the denial of

a constitutional right and [if] jurists of reason would find it debatable whether the district

court was correct in its [] ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The

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Court is of the view that reasonable jurists would not debate the court’s determinations,

and a COA should not be granted.

IV. CONCLUSION

Petitioner’s claim that trial counsel was ineffective for failing to contest the

aggravated assault charge on the theory that a housing authority police officer is not a

“police officer” is procedurally defaulted and lacks merit. In addition, the state courts

reasonably rejected Petitioner’s claim that trial counsel was ineffective for declining a

limiting instruction about Petitioner’s “stolen car case,” given counsel’s strategy of

contesting only whether Petitioner had the requisite intent to kill to sustain an attempted

murder conviction.

For the above reasons, I make the following:

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RECOMMENDATION

AND NOW, this 16th day of November, 2020, IT IS RESPECTFULLY

RECOMMENDED that the instant Petition for Writ of Habeas Corpus filed pursuant to

28 U.S.C. § 2254 should be DENIED with prejudice and DISMISSED without an

evidentiary hearing. There is no probable cause to issue a certificate of appealability.

The Petitioner may file objections to this Report and Recommendation. See Local

Civ. Rule 72.1. Failure to timely file objections may constitute a waiver of any appellate

rights.

BY THE COURT:

__/s/ Henry S. Perkin_______________

HENRY S. PERKIN

United States Magistrate Judge

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